Flaws in TPO Plans

[Gary Prentice]

I have posted this question before, but for varying reasons asked for it to be removed, so apologies for that.

 

This is a hypothetical question, but as far as I know the TPO I'm looking at is real and in existence.

 

Reading The Town and Country Planning (tree Preservation)(England) Regulations 2012:

 

Part 2

Tree Preservation Orders

 

Form of tree preservation order

3.-(1)An order shall be in the form set out in the schedule to these regulations or in a form substantially to the same affect and -

 

© shall indicate the position of the trees, groups of trees or woodlands, as the case may be, by reference to a map...........

 

(2) An order shall contain or have annexed to it the map referred to in paragraph (1)© and, where the map is annexed to an order, shall be treated as part of the order.

 

(4) In the case of any discrepancy between the map contained in, or annexed to, an order and the specification contained in the Schedule to that order, the map shall prevail.

 

 

Okay, so fairly straight forward. But what is the situation when the citation has a different title to that of the map in the annex. I'm looking at a real TPO titled or cited as " South XXXXX District Council (Parish of Hxxxxx) (No.2) 2000.

 

The annexed map is however titled: XXXXX Barn, XXx and XXXXX Cross, Hxxxxx. TPO Ref: 491. The plan is stamped 'Confirmed Unopposed'

 

My argument is that the differing titles are of significant magnitude to create doubt in the validity of the order. Others have differed:biggrin:

 

I think I'm reasonable in my belief (of course I would though), but now need to find a legal precedent along similar lines. Because of the limitations of challenging TPOs in the High Court, I'd have to show that the requirements of the Act or Regulations have not been complied with in relation to the TPO.

 

The more I've researched this, the more I've realised the difficulty of actually overturning an Order - no matter how fundamentally flawed it appears.

[Jesse]

One thing which i have discovered or interpreted, i have won one case and been very close in the past to appealing against another LPAs decision, did all my homework, the LPA in question had made A LOT of errors and mistakes, i would have won my case but for one of my clients partners getting cold feet, what was also a concern was the replies from the LPA indicated that even if we were to win our case costs still may have been awarded against us ?

[kevinjohnsonmbe]

One thing which i have discovered or interpreted, i have won one case and been very close in the past to appealing against another LPAs decision, did all my homework, the LPA in question had made A LOT of errors and mistakes, i would have won my case but for one of my clients partners getting cold feet, what was also a concern was the replies from the LPA indicated that even if we were to win our case costs still may have been awarded against us ?

 

 

Jesse, was it the LPA suggesting that costs would be incurred regardless of judgement?

 

Wouldn't that be a presumption on the part of the LPA (presumption is one way of putting it, intimidation might be another since, surely, it would be for the court to deliver a judgement and allocate costs?)

[Gray git]

Got a similar 1 on the go at the moment where a removal of a tpo tree was refused as LPA didn't agree with the need to remove, we appealed to which the reply was that it wasn't actually covered by a tpo due to being plotted incorrectly and misidentified so now applying as conservation area notification. Will let you know how it go's.

[Jesse]

Jesse, was it the LPA suggesting that costs would be incurred regardless of judgement?

 

Wouldn't that be a presumption on the part of the LPA (presumption is one way of putting it, intimidation might be another since, surely, it would be for the court to deliver a judgement and allocate costs?)

 

Yes it was, Torbay DC, I was already to go, everything in place, still have all the paperwork but it was enough to put of one of the partners of my clients, very bad practice on the local authorities side, and they were totally incompetent.

[daltontrees]

I don't know of any such precedent.

 

Seems to me though that the plan is annexed to the Order and so there shouldn't be any scope for doubt as to which trees are covered by the Order. That's probably the over-riding importance. Anyone coming across an Order will automatically look for the related plan, and vice versa, and as long as there is negligible possibility of obtaining from the Council (on enquiry) an Order and a plan from a different Order then the defect in the title is immaterial.

 

Just my knee-jerk reaction, I don't have as much info as you. I don't think the defect creates doubt about validity of the Order, only about its applicability. And if it isn't possible in a practical sense to mistake the applicability then it's probably a moot point.

[Gary Prentice]

Jules I can understand your point, there is a plan (stamped confirmed) with two trees and the schedule overleaf identifies two pines. My objection is the absence of a link with the order itself.

 

The entire order contains omissions, typos and unfortunately lacks page numbers. articles appear out of sequence. it appears that a clerk has dropped a load of papers and randomly assigned maps to orders. The absence of the linking title concerns me.

 

I've searched the appropriate authorities website for the address. The two trees are there and clicking the info button reveals the TPO ref numbers T1 - 491 and T2-491, yet the paper copy I have refers to TPO (No.2)

 

The opposing opinion that I'm up against, in this exercise, is that the intention is there! In the absence of the link in titles, there is no way to determine that the plan has any relationship to the body of the order, therefore there is nothing to say that the order included all the relevant articles or was correctly signed and confirmed. The only evidence of confirmation of the plan (order) is a rubber stamp on it.

 

 

I may appear to be pedantic on this, but I really can't see how this can be validated - on the evidence that is currently available.

[Marc Lewis]

Got a similar 1 on the go at the moment where a removal of a tpo tree was refused as LPA didn't agree with the need to remove, we appealed to which the reply was that it wasn't actually covered by a tpo due to being plotted incorrectly and misidentified so now applying as conservation area notification. Will let you know how it go's.

 

Surely the LPA will assign updated tpo to this tree and plot it correctly gg? Or have i missed something.

[Gray git]

Well the tree is on its way out and the council have admitted as much by wanting us to, I quote "manage it's graceful decline". It's riddled with ustulina and had deep decay cavities, and last year the leaf structure was very small and opaque compared to surrounding trees. The independent consultant who came out as part of the appeal stop just short of saying the council's poor paperwork was a joke! But what I want to know is would they have the gonads to tpo this tree now that they have admitted it has no long term future and is in a position where person and property is at high risk of damage or harm.

[Marc Lewis]

It is annoying to say the least when councils behave like this. The tree clearly has no long term future and as there are people and property at risk, i think it is completely irresponsible when they behave in this way, usually due to 1 person flexing the muscles of his position.