Valid TPO ??

[steve.m]

A situation I have been asked about is where contractors felled a tree covered by a woodland TPO . The council were informed about said works but was subsequently found that the land owner was never informed of the TPO. A bit of toing and froing resulted but in the end the contractor was let off due to this fact that the TPO was not implemented correctly

 

My query is now the TPO is known about does the original TPO stand or do the council have to re-do the paper work so to speak in such that the original TPO is invalid due to incorrect procedures etc....

 

Any ideas be much appreciated

[10 Bears]

My reading of this is that the TPO *could* potentially be suspect, if it was not properly confirmed or issued to the owner.

 

There is the case though, that if the TPO was placed on the public register (as it should be during the creation of a TPO), then there is the argument to say that the TPO is publicly available to the owner - but to be honest, this would be a little mean in the circumstances.

 

In some instances, public notices are affixed to the property itself, so pinned to the gate of the woodland perhaps, and this can serve as giving the owner notice in their absence.

 

Any decent TO would now either redraft the TPO ensuring all elements of the procedure are followed (flowchart), or failing that and assuming the TPO is valid, they should re-send the order to the owner.

 

What I would do in the first instance though, is confirm with the TO that the TPO is actually valid and held against the correct iteration of the law at the time of its inception - if its not correct, then the TPO would be invalidated on these grounds alone.

[steve.m]

Hi 10Bears

 

Yes that was my thoughts, the Mynors book seems to only deal with prosecution for tree works on TPO trees rather than the validity of the TPO itself and any consequences of this.

 

I will ask the TO his thoughts

 

Thank you for the response

[ReubenHayes]

As the same as above, and I would also just add. You say the TO and LA let off the contractor as the TPO was incorrect. If the LA has made a formal decision that the original TPO was incorrect (no matter how small), then it would be prudent of the LA to place a new TPO, otherwise they may find themselves in the same situation, i.e. a lawyer in court would ask for confirmation of all persons affected and if letters were sent out, if this was not the case then it could fall apart. Even though people may now know it would be one of these little legal issues and would be far easier to make a new one.

 

I have been involved in a TPO which is now on its 3rd making! The first time was out of date, second no one was told about it. Lets see what the LA do this time!!!

[10 Bears]

No problem Steve.

 

Let us know what pans out - its always interesting to hear the end of the story...

[Mick Dempsey]

Couple win payout after Derby council bosses refused to chop down tree that damaged home | Daily Mail Online

 

I piggy backed this thread to post this.

Whilst bearing in mind you have to take the story with a pinch of salt, if taken at face value it seems a bit daft to fight to save this tree.

I remember a cedar in Horsham 15 years ago, sameish size, I asked the TO at the time if I could remove it, not knowing if it had a tpo or not.

He was fine with it, wrong tree, wrong place he said, whilst warning me off a white birch in a nearby rear garden.

The TO in this case could have learnt a bit from him.

[Chris at eden]

A situation I have been asked about is where contractors felled a tree covered by a woodland TPO . The council were informed about said works but was subsequently found that the land owner was never informed of the TPO. A bit of toing and froing resulted but in the end the contractor was let off due to this fact that the TPO was not implemented correctly

 

My query is now the TPO is known about does the original TPO stand or do the council have to re-do the paper work so to speak in such that the original TPO is invalid due to incorrect procedures etc....

 

Any ideas be much appreciated

 

 

If it wasn't served then no not valid. Serving could be a simple as pinning the order to the tree though if the owner is not known. Seems unlikely that it wasn't served at all.

 

Not confirmed on the other hand is far more common. Still not valid in this case. It used to be that you could confirm an order years after it was served but it wouldn't be protected after the initial 6 months until the date of confirmation. So a gap in protection. But then once confirmed it would!!! That's gone now, if you don't confirm within 6 months the TPO is invalid and cannot be confirmed. This is how the LPA that Reuben mentioned got caught out, not up to date with the current regs.

 

What is also pretty common is that the trees are TPOd and then the land changes ownership with the new owner not informed of the order by their solicitor. I spoke to a solicitor a few months ago who had been doing conveyancing for years but had no idea what a TPO was and this was the first time he had come across them, I'm still not sure if he was winding me up. In this case the TPO would be valid but the LPA may consider that to be a mitigating circumstance. Also, felling one tree within a woodland is probably not going to destroy or damage the woodland as a whole so may not be in the public interest to prosecute. I stress the words may not though.

[Gary Prentice]

I came across a TPO that wasn't confirmed, under the old Regs, for eight years. I think IIRC the longest one I've read about was thirteen years!

 

We've also had a couple of clients who had bought houses unaware of statutory protection because the solicitor hadn't searched them/been misinformed in their searches.

Edited March 22, 2016 by Gary Prentice