CA / Sect. 211 Notice

[AA Teccie (Paul)]

Hi all, hope yer well.

 

Albeit only applicable in England, as per 2012 'Trees Regs,', one of our contractors had a most concerning situation recently involving a LPA making a TPO on a tree resultant from 'his' Sect. 211 notice but didn't see fit to inform him...hence he turned up to do the job only to be informed by the tree owner about the TPO.

 

He challenged this as the LPA indicated they were not obliged to inform him nor serve a copy of the order on him as an 'interested party,' which didn't seem right. Hence he turned to me for advice...and I duly went elsewhere (Mr Annett, former DCLG 'Arboriculturist' who cited the relevant legislation below)

 

Procedure after making an order

5.—(1) As soon as practicable after making an order, and before confirming it, the authority which made it shall—

(a)serve on the persons interested in the land affected by the order—

(i)a copy of the order; and

(ii)a notice containing the particulars specified in paragraph (2);

(b)make a copy of the order available for public inspection, in accordance with paragraph (3); and

©in the case of an order made following service of a notice under section 211(3) (preservation of trees in conservation areas), serve on the person who served that notice the information specified in sub-paragraph (a).

 

So, do bear this in mind.

 

Cheers all..

Paul

[Paul Barton]

Just as well the tree owner was in when he turned up to do the work!

 

I wonder how far the LPA would have got with enforcement action if he had carried on oblivious considering they had not not served the TPO to the s.211 agent. Not far you would hope.

[Gary Prentice]

I'm not surprised as in my experience when acting as the agent, I'm not notified. I think all future 211 notices will be drawing the LA's attention to this paragraph, along with an expression of expectation that the duty is duly fulfilled.

 

Thank you Paul

[openspaceman]

Just as well the tree owner was in when he turned up to do the work!

 

I wonder how far the LPA would have got with enforcement action if he had carried on oblivious considering they had not not served the TPO to the s.211 agent. Not far you would hope.

 

but surely as they hadn't gone through the proper procedure and informed him as the notifier and six weeks had passed he could have felled it with impunity??

[Gary Prentice]

but surely as they hadn't gone through the proper procedure and informed him as the notifier and six weeks had passed he could have felled it with impunity??

 

Quite possible. There was a recent, or fairly recent case, where the order was served at the developers company address, but the land was held in the company owners own name and it was decreed, should have been served to his personal address - not the companies. Council lost the case.

[Gary Prentice]

Sorry, to rephrase the above.

 

Impunity would suggest that to do so would have no consequence. As there is an order in place, prosecution could ensue but the defence is that the order hadn't been properly served and the removal had been carried out in the absence of it being properly served.

[Jon Heuch]

Sorry, to rephrase the above.

 

Impunity would suggest that to do so would have no consequence. As there is an order in place, prosecution could ensue but the defence is that the order hadn't been properly served and the removal had been carried out in the absence of it being properly served.

 

Yes, but you really want to avoid the cost of gathering evidence and witness statements and possible engagement of lawyers. Significant costs and waste of senior management time. it's nice to know you may have a defence but if it only comes into play once you are in Court you could be seriously out of pocket.

 

I am intrigued to know how the words "the person who served that notice" should be interpreted - does that imply that both the applicant and their agent have to be served the TPO (separately) or just one (either one), assuming that the applicant and agent are one and the same?

[TIMON]

This is handy to know as we work (or try to) in an area where the LPA won't tell us straight out wether there are TPO's or not on specific sites. They ask us to apply to carry out the work so the TO can go round and assess the tree. This has resulted in reactive TPO's and CA notices served "reactively" and retrospectively. It is very frustrating to say the least. Particularly when you are trying to play a straight game.

 

It begs the question have they conducted adequate surveys?

 

Surely if they had then they would be willing and able to give straight answers?

 

One particular instance was in an area with large mid-Victorian houses and lots of mature specimen trees. We subsequently found out there were no TPO's on any of the trees (surveyors report).

When a neighbour begged us to stop work we phoned the LPA to confirm the surveyors report and the TO told us he was immediately designating the area a conservation area.

 

[AA Teccie (Paul)]

This is handy to know as we work (or try to) in an area where the LPA won't tell us straight out wether there are TPO's or not on specific sites. They ask us to apply to carry out the work so the TO can go round and assess the tree. This has resulted in reactive TPO's and CA notices served "reactively" and retrospectively. It is very frustrating to say the least. Particularly when you are trying to play a straight game.

 

It begs the question have they conducted adequate surveys?

 

Surely if they had then they would be willing and able to give straight answers?

 

One particular instance was in an area with large mid-Victorian houses and lots of mature specimen trees. We subsequently found out there were no TPO's on any of the trees (surveyors report).

When a neighbour begged us to stop work we phoned the LPA to confirm the surveyors report and the TO told us he was immediately designating the area a conservation area.

 

 

Hi Ti, hope you're well.

 

Firstly, if I may, a point of clarification here in that it was probably an 'Area' TPO rather than a Conservation Area designated as that involves quite a long process and is primarily done to protect / maintain buildings and architectural features not trees, they are incidental and contribute to the overall setting and landscape.

 

Secondly, and in the strictest sense, once the trees are deemed "under threat", and thereby it is considered 'expedient' to make the TPO (assuming the trees have significant public amenity value of course) the TO is just doing his/her job. Nonetheless when you've gone through the official channels to start with and established there are no protections / restriction in place it is very difficult to accept that.

 

The LPA should now survey the site quickly, and ideally prior to confirmation (6 months?) designating trees as individuals, groups and/or woodlands and this often results in some trees not being included in the amended TPO schedule.

 

Anyhow's just my ten-penneth

 

Have great BH weekend...'et al'

Paul

[TIMON]

Thanks Paul.

 

Hope you are well. Thanks for this. We were surprised to find through the surveyors report that there were no TPO's on any trees in that area given the fact that there are a large number of mature trees with amenity value. We weren't entirely surprised that we were asked to stop working there as it is probably the nicest street in the whole town and yet it seemed like no survey had been conducted. Or if it had, no TPO's had resulted from it.

 

 

Is a Local Planning Authority obliged to carry out tree surveys in order to protect such trees? Do they have any legal obligation with regard to due diligence or similar? I only ask because whenever we try to work in this area we can't get a straight answer from them.

 

Thanks mate, enjoy the weekend.

Timon