Flaws in TPO Plans

[Gary Prentice]

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.

 

As it appears to be only under CA protection currently, the LA only have two choices: admit no interest or serve an order.

 

To serve an order it has to meet the criteria of value, public view and a reasonable life expectancy. If they serve an order, the representation is everything that they have already admitted to.

 

It would be nice to imagine, due to the length of time and effort that has already ensued, that you'd get a letter within the week declaring no further interest. But, because they seem to value the tree enough to refuse (although it wasn't actually covered) consent, I wouldn't bet on it.

[Gray git]

I'm sort of wanting them to serve a tpo on it so that we can appeal against it (which I presume costs the council money) which with luck will show up there incompetency and lack of understanding of the tpo reg's. Until recently the planning officer that deals with trees didn't realise new tpo reg's had come out and at another recent sight meeting misidentified a lime as the sycamore we were applying to remove.

[Gary Prentice]

I'm sort of wanting them to serve a tpo on it so that we can appeal against it (which I presume costs the council money) which with luck will show up there incompetency and lack of understanding of the tpo reg's. Until recently the planning officer that deals with trees didn't realise new tpo reg's had come out and at another recent sight meeting misidentified a lime as the sycamore we were applying to remove.

 

You can't appeal against a TPO. You can make representation for or against the making of it. The authority have to allow a minimum period of 28 days after it is initially served for that. After it is confirmed, that's it. There's no appeal to the Secretary of State - only a challenge in the High Court.

 

If the order is made and duly confirmed, the option is an application then an appeal as to the decision to refuse. (not to the validity of the TPO as such)

 

The authority act as judge and jury in serving TPO's, but the law takes a view that after the fact the opportunity is there to apply to prune/fell, so it doesn't really matter.

 

The PINS inspectors basically review the application for pruning/felling and make a decision. Don't forget the inspectors (for the fast track route) are arb consultants who are normally better qualified and more experienced than the TO/planning officer. In your situation, I think the inspector has probably judged that the tree wasn't protected, ergo wasn't subject to the requirement for an application and stopped the appeal process, rather than continuing to decide on the validity of the decision to refuse.

 

If a new order is made - despite objections, an application to fell is refused, then you can appeal the refusal again - welcome to the merry-go-round of planning and legislation:biggrin:

[Gray git]

Hmm yes, could be fun over the next few months. Getting so sick of this council recently where a person with no arb related qualifications is making these decisions and in not just my opinion making some bad calls! Like my pre mentioned sycamore/lime mix up, refusing the removal of a **** sycamore because she was looking at a lovely lime even though the report had both photos and plan showing the correct tree.

In the case of the main tree I'm talking about my client is actually an independent planning consultant(industrial developments) so has quite a good handle on the planning process and I'm just filling in the arb words for him, could get fun.

Anyone know if "managing it's graceful decline" is actually a recognised term for trees within the urban environment as think I must have dozed of for that one at uni. Could respect it in veteran parkland trees with minimal exposure to persons.

[Gray git]

Sorry for slightly De railings the op's thred, was going to start mine today on this and just stole yours

[daltontrees]

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.

 

I see the difficulty. Someone on UKTC was investigating a similar type of issue last year or the year before, I think the conclusion was that the TPO was unchallengable despite defects. But your problem goes beyond that level of defects.

 

The feeling I still have is that 'annexed', whether it means stapled to or part of the same pdf or under the same on-line section, might trump any defects in cross-referencing.

 

There's also the issue of prejudice. Who has suffered as a result of the defect? HAs anyone actually been in the position of wanting to do something on land and has been prevented from doing it or is being prosecuted for doing something that a TPO would have stopped, because of the defect in the TPO? I ask it as a hypothetical court might do, because courts tend to be slow to interfere unless there has been prejudice to someone.

[daltontrees]

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.

 

If it's true that it there is high risk, the TPO is academic as the tree could be worked on to eliminate the high risk under the standard TPO exemption (Regulation 14(1)©).

[Gary Prentice]

Hmm yes, could be fun over the next few months. Getting so sick of this council recently where a person with no arb related qualifications is making these decisions and in not just my opinion making some bad calls! Like my pre mentioned sycamore/lime mix up, refusing the removal of a **** sycamore because she was looking at a lovely lime even though the report had both photos and plan showing the correct tree.

In the case of the main tree I'm talking about my client is actually an independent planning consultant(industrial developments) so has quite a good handle on the planning process and I'm just filling in the arb words for him, could get fun.

Anyone know if "managing it's graceful decline" is actually a recognised term for trees within the urban environment as think I must have dozed of for that one at uni. Could respect it in veteran parkland trees with minimal exposure to persons.

 

It's becoming increasingly common for non-arbs to decide planning applications:thumbdown:

 

If you haven't already submitted your 211 notice, I'd back it up with all the reasons why the tree is unsuitable for further protection. Basically TELL the recipient that it is unsuitable and indefensible to protect it.

 

I've had an application in for almost three months. Phoning the planning department the reason for non-determination was that due to an application going in after mine for an extension, the officer decided to look at both applications together. I sorely wanted to remind him of the statutory time periods ( on the tree application) and tell him that I'd gone to PINS, but can't rock the boat for my client. The whole situation on this particular site is a joke, the committee require tree loss to be kept at a minimum despite the fact that the majority of the trees are extremely hazardous, what makes it worse is that they have consented a change of use to a kids nursery for thirty children.

 

One tree I recommended to remove actually failed at christmas, falling across a public footpath and then we were asked had we felled it, as a condition of the change of use was that felling didn't occur until the development started. The entire tree had uprooted!

 

It seems on this site the authority have decided that the trees are staying - no matter what. In a few weeks I'm going to chuck in some applications and then go to appeal on every refusal.

[hamdogg]

Out of interest, does everyone usually get the letter back from the council after applying to works in CA! I applied and the deadline for them to give a decision was 31st! Not got no letter! So I went ahead with the works shortly after!

[Gary Prentice]

I see the difficulty. Someone on UKTC was investigating a similar type of issue last year or the year before, I think the conclusion was that the TPO was unchallengable despite defects. But your problem goes beyond that level of defects.

 

The feeling I still have is that 'annexed', whether it means stapled to or part of the same pdf or under the same on-line section, might trump any defects in cross-referencing.

 

There's also the issue of prejudice. Who has suffered as a result of the defect? HAs anyone actually been in the position of wanting to do something on land and has been prevented from doing it or is being prosecuted for doing something that a TPO would have stopped, because of the defect in the TPO? I ask it as a hypothetical court might do, because courts tend to be slow to interfere unless there has been prejudice to someone.

 

I searched UKTC last night but didn't come across that.

 

What I actually have is a PDF, but I have nothing to suggest that it is an original PDF made by the authority. Everything is jumbled up (no page numbers) and out of sequence. So I don't know if this is how the council created it or whether it has been supplied in this manner deliberately. The order isn't available on-line, just the interactive map identifying the tree numbers and a different Ref number (which coincides with the plan title ref. no.) to the order.

 

Searching previous applications on-line, back to 1984, hasn't provided any further information, although I don't think the intention is to really research the site - just to provide a conclusion based on the information provided.

 

The differing opinion that I'm attempting to counter is that the intent to protect is there! I feel that's correct to assume, because an order has been created but the pertinent question is whether it is valid. With differing titles there is no evidence to prove that this map belongs to a valid order, there's no link apart from that they are together and is ambiguous. I can't consider hypothetical prejudice because of the unavailability of further information.