Amelanchier

The UK courts only started adopting the purposive approach (i.e., accounting for the purpose and intention of legislators) in 1969! I'm sure you're right (and nepia earlier also) insofar as I would expect that the courts would see the notice as a attempt to game the system and determine that the intention of the original legislators was to allow the LPA a fair chance to serve a TPO on a case by case basis rather than to create a device for triggering a huge workload to evade proper assessment. I'm not sure if it's different in Scotland but there is existing legislation in the TCPA that grants the LPA rights of access to protected trees without the need for a notice. Can't quite recall it at the moment though. Your second point is quite effective - that would be a decent reason for an Order! So the ubernotice is not so much a tool to allow the felling of a protected tree rather a mechanism for forcing the serving of an Order. A TPO review device?

That'll teach me for not checking - cheers.

Cheers for the feedback Jon. I don't agree that there is any difficulty in identifying the trees affected. The same criteria is used to identify them as protected and presumably one wouldn't say that that criteria made them hard to distinguish from the others. If it did, how would an LPA identify that an offence had occurred? Also just to be clear for all. This is a thought experiment - actually doing it would be commercial and professional suicide IMO!

Also a final thought on agency. I know a previous client who lives in a CA and was refused planning consent essentially on the basis of a huge number of objections from neighbours and others in the village. He also had a TPO served on his property which was confirmed despite his objection, mainly due to the high local support for the Order. Now this chap already has a bad relationship with the village so wouldn't at all be bothered about being named as the instigator provided every other resident was served with an Order. How would an LPA deal with that variation of the uber211? Just let it pass I guess and take the risk? What if the notifier was a tree contractor...?

Indeed. They are being asked to determine the principle and appropriateness of the proposal not the legality of its construction. Under s211 the LPA is just being given an oppourtunity to make an Order not a mandate to police the future business relationships of those involved.

So not guessing at species and condition at all then.

So I'm not allowed to alter my own hypothetical situation? So you recieve the following notification; Dear Sir/Madam, As per the requirements of section 211 of the Town & Country Planning Act 1990 (as amended) I hereby notify you of my intention to fell all the trees in the _________ conservation area that are over 75mm in diameter when measured at 1.5m from adjacent ground level. I am not an agent for any of the tree owners at the current time but may choose to act as such in the future. Yours sincerely, Person A And you would say that, despite the clear indication, he would still be an agent?!? If I serve a notice on the LPA for a protected tree on LPA land am I the LPA's agent? What if serve a notice for a tree on land that changes ownership during the six week period - am I the agent to the new owner? I don't think that awkwardly defining person A as a universal agent helps the LPA at all - it may put some pressure back on him but doesn't alter the decision the LPA has to make. As for serving an Order solely on Person A's property that would be perfectly reasonable but does rather suppose that the tree he wanted to fell was his...

You can go through the archive of the old (but very informative) DCLG website or you can follow the link below through to the new format for the facebook generation who just want headlines and no content. https://www.gov.uk/government/publications/tree-preservation-procedures-guidance

Not if its still in the container... I had a site once where the new home owner moved a young (but 80mm dbh) Gleditsia from one side of the garden to the other. It had been planted a couple of years previous so undoubtedly some roots were severed in doing so but as the tree didn't appear to suffer (tough species) it seemed unduly petty to chase him up for un-notified works. What's more fun with your container tree is to think how the LPA would prevent you from moving it about. Any TPO map could be made inaccurate in moments...

There's no doubt that he intended to remove a specific tree; could the court reject his intention to fell all the others though? Do you need to have a reasonable chance of doing something for it to be a legally defendable intention? It's certainly unrealistic and unlikely but why should that be a barrier? If you buy a lottery ticket it's your intention to win however unlikely the outcome.

But the affected trees are identified clearly - its just all of them; there's no ambiguity there. I can't see how the LPA could argue that they were unclear about whether a tree was included or not as the same identification rules are applied to designate the protection - unless they took the view that the legislation that granted the protection was vague in the first place...

But in the limited context of s211 there is no requirement for Person A to justify his ability to fell anything nor to confirm that he has obtained the agreement of the tree owners - just that he gives notice of his intentions. What if Person A confirmed that he was not an agent for the tree owners at the time of notification but that he reserved the right to approach them in the future. Two years is a long time - I can't see that the LPA has any discretion on the matter.

Appreciated - here is the relevant part of s211 211 Preservation of trees in conservation areas.. 1)Subject to the provisions of this section and section 212, any person who, in relation to a tree to which this section applies, does any act which might by virtue of section 198(3)(a) be prohibited by a tree preservation order shall be guilty of an offence. . (2)Subject to section 212, this section applies to any tree in a conservation area in respect of which no tree preservation order is for the time being in force. . (3)It shall be a defence for a person charged with an offence under subsection (1) to prove— . (a)that he served notice of his intention to do the act in question (with sufficient particulars to identify the tree) on the local planning authority in whose area the tree is or was situated; and . (b)that he did the act in question— . (i)with the consent of the local planning authority in whose area the tree is or was situated, or . (ii)after the expiry of the period of six weeks from the date of the notice but before the expiry of the period of two years from that date. . (4)Section 210 shall apply to an offence under this section as it applies to a contravention of a tree preservation order. I agree it does read very specific regarding the notifier. Read strictly I can't see that you can even pass that onto a contractor as an agent / homeowner. That might not help the theoretical LPA much though as they can't be sure that he won't be doing the felling for any other thrid party in the affected CA.

Nope Huck but the legislation doesn't take that into account.

It just occured to me that Person A could also respond to any direct grief that he recieved by pointing out that the Order has been served because the LPA just doesn't trust the residents not to fell their trees...

And its that transferring of defence that constitutes the threat in this case. It happens every day with one party providing the notification and another doing the work but doesn't seem to be the letter of the law...

Possibly simples but tree owners can't object to person A so while the TO is out wandering around objection letters are piling up on the TO's desk. Speaking from experience they would come thick and fast regardless of any covering letter explaining the situation. Also I'd have to check but while there certainly is an obligation to keep a public record of applications and notifications I'm not sure if the data protection act allows the LPA to mailshot Person A's address in that manner. The s211 did not state that Person A was the residents agent so that could be a risky strategy.

Wait til April 1st to really twist their melons...

Typically, a external consultant is appointed to assess the area, draw up a boundary and appraisal of a potential CA before a public consultation period. Its this consultation period that will normally see a considerable increase in tree removal unless premeptive TPOs are made; its an imperfect system and understandably does really aggravate people. And yes, its a LOT of work.

The purposive approach indeed - I think your probably right, a court would look at the notice and see a deliberate attempt to evade the spirit. But it would have to get to acourt in the first place for that to happen... Yes you can submit a notification for anyones trees - essentially the notice serves as a defence against prosecution, it isn't bothered as to whether you would practically asked or able to do the work. Its normally taken to be transferrable (which is how a cient can notify and the contractor do the work) but I can see some difficulties there also. The wrath arises from having a TPO drop on your doormat (or having to go to the post office to pick it up if you were out and it was sent recorded) showing all your trees protected when you haven't done anything to warrant it. I've served large scale Orders before (in anticipation of new conservation areas) and people often aren't to happy about it. You definitely wouldn't make any friends by doing it. Six weeks is probably long enough but dealing with the repercussions would probably take months. The only objection that the law allows is a TPO though...

Ha possibly, though that would require unparalleled cooperation between departments (and I say that as an ex LPA employee) Regarding the former - surely it wouldn't matter if they did ask because the notice has been given and the clock starts whether they think it has or not (its a defence in law not a requirement of it). If Person A were feeling particularly vindictive he could even consider submitting one such notice for each CA in the district on the same day... Its been suggested that an injunction could be used to negate/prevent the uber-211 but I can't see how that could be done fairly?

I did append this to another issue on the UKTC some years back but that derailed rather promptly (as these things do). It's come to mind again and this time I thought I'd approach those on the other side of the fence.

Does he need to submit a plan to have met the requirements of the Act? The notice contains "sufficient particulars to identify the trees".

Person A wants to fell a protected tree in a conservation area but thinks it likely that the tree would be TPO'd by the LPA. After a bit of scheming he resolves to submit the following s211 notification: Dear Sir/Madam, As per the requirements of section 211 of the Town & Country Planning Act 1990 (as amended) I hereby notify you of my intention to fell all the trees in the _________ conservation area that are over 75mm in diameter when measured at 1.5m from adjacent ground level. Yours sincerely, Person A What do the LPA do? Ignore a legally made notice and let person A fell his tree (plus anyone else who wanted to)? TPO everything and incur the wrath/objections of several hundred residents?

Off road duathlon season again (first one in feb) building up to Hellrider in May. Training started November and this week is a reload / recovery week (thankfully) so 15km bike / 3km run brick session this morning. Also maintaining lifting through 5/3/1 two days a week and just set some PBs (gonna be a long way back to last years deadlift peak after 6 months off though...)