Conditioned TPO approval

[kevinjohnsonmbe]

Struggling to find an answer or probable/possible implication where a TPO approval is granted, subject to condition(s) but some or all conditions are breached.

 

For example:

 

Normal or expected conditions

 

"completed within 2 years" - ok, fairly obvious, after 2 years the approval expires and it might be treated the same as there not being permission.

 

"To the standard of BS3998 - what if it isn't? What happens next? What process would LA be able to implement to force remedial action?

 

"No work between Apr-Aug so as not to disturb nesting birds" but then work is done within that period? What could be a LA reaction?

 

What is the mechanics of LA response to condition breach? Does it invalidate the approval and lead to possible prosecution along similar lines to doing work without having gained approval?

 

Any thoughts appreciated.

[Chris at eden]

Struggling to find an answer or probable/possible implication where a TPO approval is granted, subject to condition(s) but some or all conditions are breached.

 

For example:

 

Normal or expected conditions

 

"completed within 2 years" - ok, fairly obvious, after 2 years the approval expires and it might be treated the same as there not being permission.

 

"To the standard of BS3998 - what if it isn't? What happens next? What process would LA be able to implement to force remedial action?

 

"No work between Apr-Aug so as not to disturb nesting birds" but then work is done within that period? What could be a LA reaction?

 

What is the mechanics of LA response to condition breach? Does it invalidate the approval and lead to possible prosecution along similar lines to doing work without having gained approval?

 

Any thoughts appreciated.

 

Hi Kev

 

2 years is not a condition. Its a standard time limit within the new regs. It can be varied though. If the LPA are conditioning 2 years they don't know what they are doing.

 

3998 ensures the works are done to a good standard. If its not to 3998 and the works are considered to be wilful damage or destruction then prosecution may happen. Council legal depts. though don't like to take risks. If its not a slam dunk they wont take it on. Or at least the ones I have worked for won't.

 

The April to August thing is bonkers. Legislation already exists for that purpose. if you thinned a tree to a good spec within that period and there was no damage or destruction then how would that be a contravention. How would you prove wilful damage or destruction? You would pursue them under the wildlife life legislation surely.

[Gary Prentice]

There's a thread on UKTC currently about conditions being fair, reasonable and enforceable.

[kevinjohnsonmbe]

Thanks for that guys!

 

Hi Kev

 

2 years is not a condition. Its a standard time limit within the new regs. It can be varied though. If the LPA are conditioning 2 years they don't know what they are doing.

 

3998 ensures the works are done to a good standard. If its not to 3998 and the works are considered to be wilful damage or destruction then prosecution may happen. Council legal depts. though don't like to take risks. If its not a slam dunk they wont take it on. Or at least the ones I have worked for won't.

 

Agreed - it would have to be abysmal work to make it even worth an attempt at follow up action. Of course I understand the need to have, and specify, a standard, but if it really is so difficult to bring a follow up action it seems kind of nugatory in a way. Better to have, than not have I guess.

 

The April to August thing is bonkers. Legislation already exists for that purpose. if you thinned a tree to a good spec within that period and there was no damage or destruction then how would that be a contravention. How would you prove wilful damage or destruction? You would pursue them under the wildlife life legislation surely.

 

Absolutely bonkers and not an enforceable condition under planning law - so far as I can make out.

 

 

There's a thread on UKTC currently about conditions being fair, reasonable and enforceable.

 

It's been several years since I've looked in there Gary, I found the format of threads too tedious and clumsy - must try and get back to it again I think.

 

 

Hi

 

Pretty much as Chris says.

 

The two year limit is now the statutory default period in which the works are to be undertaken. It can be varied by condition, e.g. to allow repeat works over a longer period.

 

If the works aren't to the specification/required standard then the Council could prosecute the tree surgeon/home owner. Maybe they could get the tree surgeon to come back and do a better job. It will depend on what the problem is.

 

Understood Ed - An operator that cares about professional standards and reputation probably wouldn't get into that situation. The ones that don't have such a keen eye for detail probably wouldn't respond well to a "request" from LA to return and do a better job.... Tricky.

Separate legislation covers wildlife/protected species. A condition is unnecessary. An informative note advising the applicant/agent of the need to comply with the wildlife legislation would be the way to go.

 

Agreed..... I have seen, and rather expect to see again shortly, a condition just like this. I suspect however (purely a suspicion) that it is being used to placate angry neighbours / impede or delay works..... No evidence to support that - other than it seems like a condition for conditions sake and rather inappropriate.

What the Council would do depends on what has happened. Getting the tree surgeon back to put things right, or prosecution is possible. However, the local planning authority is not the enforcing authority for the Wildlife and Countryside Act. That would have to be passed to the police.

 

Really can't see the local constabulary committing too much resource unless it's something like a red kite or high profile. The chances of seeing PC Dibble cutting his way through bramble and brash to see if he can find an active nest just isn't likely...

 

 

Thanks all for comments.....

[Anno]

coming from the other side of the fence my usual advice to planning will contain the following:

 

Further conditions would be:

 

- That all work is undertaken to BS3998

 

- That the consent shall be valid for a period of two years from the date of this notice.

 

We would recommend that all works are carried out by a qualified tree surgeon and that any pruning works comply with current bird nesting legislation.

 

Wildlife and Countryside Act 1981 Part 1 Section 1 (1)

Consult W&C Act 1981 (with amendments) for full details of protection afforded to wild birds.

[kevinjohnsonmbe]

coming from the other side of the fence my usual advice to planning will contain the following:

 

Further conditions would be:

 

- That all work is undertaken to BS3998

 

- That the consent shall be valid for a period of two years from the date of this notice.

 

We would recommend that all works are carried out by a qualified tree surgeon and that any pruning works comply with current bird nesting legislation.

 

Wildlife and Countryside Act 1981 Part 1 Section 1 (1)

Consult W&C Act 1981 (with amendments) for full details of protection afforded to wild birds.

 

 

Thanks Anno! I try not to think of it as a "fence" with the possible connotations of barriers....

 

Plus, Chris and Ed comments above are from TO perspective too I think.

 

What I find really useful is getting real life feedback from TO's because there is often a perspective that the contractor may not be aware of.

[Chris at eden]

There's a thread on UKTC currently about conditions being fair, reasonable and enforceable.

 

Its from the planning policy guidance but there are 6 tests as mentioned by Ed below. See link:

 

Use of Planning Conditions | Planning Practice Guidance

[Chris at eden]

When issuing a decision notice I would detail which section of BS 3998 the works should be carried out to. E.g. The crown thinning consented to in this decision shall be carried out in accordance with section 7.5 Crown thinning of BS3998.

 

I'd never recommend that the works should be carried out by anyone. Firstly conditions have to be complied with so are more than just a recommendation. A recommendation wouldn't meet the six tests for conditions. It's not enforceable, nor is it reasonable. An informative note advising that a qualified tree surgeon carry out the works would suffice. Also, you could open up the possibility of a compensation claim against the Council. This has been successful in the past.

 

Ed

 

 

I agree.

[Gary Prentice]

Its from the planning policy guidance but there are 6 tests as mentioned by Ed below. See link:

 

Use of Planning Conditions | Planning Practice Guidance

 

It's all very confusing:confused1:

 

From the yesterdays Sheffield CC Appeal. Dillner, R (On the Application Of) v Sheffield City Council [2016] EWHC 945 (Admin) (27 April 2016)

 

Paragraph 149.

 

"The textbook Moore and Purdue "A Practical Approach to Planning Law" (12th Ed 2012) at [26.01] says that the cutting down of a tree does not appear to be development within the 1990 Act. That explains the use of Tree Preservation Orders, which would not be required if such works required planning permission and were thus acts of development."

 

 

What is the Government’s policy on the use of conditions in planning permissions?

Paragraph 203 of the National Planning Policy Framework states “Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions”

 

Paragraph 206 of the National Planning Policy Framework states “Planning conditions should only be imposed where they are:

 

necessary;

relevant to planning and;

to the development to be permitted;

enforceable;

precise and;

reasonable in all other respects.”

 

The policy requirement above is referred to in this guidance as the six tests.

 

After reading another thread last night (about contacting tree owners who had made TPO work applications), I was wondering why our LA didn't publicize TPO application decisions. From Sheffield I now know:biggrin: (I think!)

[Gary Prentice]

Thanks Anno! I try not to think of it as a "fence" with the possible connotations of barriers....

 

Plus, Chris and Ed comments above are from TO perspective too I think.

 

What I find really useful is getting real life feedback from TO's because there is often a perspective that the contractor may not be aware of.

 

As time passes I've found that more and more often I'm playing devils advocate with the client, responding to their complaints from the Arb Officers point of view; "you have no right to satellite reception, collecting leaves - they're legally free agents, cleaning gutters - householders maintenance etc, etc etc etc

 

Admittedly, I'll still work in the clients best interests but won't waste my own time and energy pursuing the unobtainable. I fully understand and appreciate the TO's task 'to maintain and improve the canopy cover within the borough' and by and large attempt to work towards the same ends.

 

I certainly don't envy their position, I'm sure very few people ring up to enthuse about the LA tree outside their house, rather I know they receive endless complaints day after day which aren't mitigated by an explanation of the benefits that trees provide. Nimby's come to mind

 

At the end of the day, shouldn't we all: arborists, arboriculturists, consultants and planning officers all have a great deal of common ground and goals? This is a general post Kevin, I read yours this morning and it made me think all day about my own attitudes, relationships and the barriers that did exist earlier in my own career.