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Planning Authorities: when is a TPO a valid TPO?

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“I cant be guilty of illegally felling a TPO protected tree as the TPO wasn’t valid”

Is there any mileage in that as a defence?

 

There are two potential criminal offences when it comes to works to a tree protected by a TPO.  Those are:

  1.  Where a tree is cut down, uprooted or wilfully destroyed, and
  2. Where a tree is topped, lopped or wilfully damaged in a way that is likely to destroy it.

A criminal offence may have occurred where the planning authority’s consent to tree work has not been obtained prior to the work going ahead and where none of the exemptions to the requirement for permission, set out in the Town and Country Planning Act, can be said to apply.

From recent experience it appears that a regular point argued in response to a TPO prosecution claim is that the TPO itself was not valid.  If that question of validity succeeds then a prosecution would be stopped in its tracks.  If the TPO was not valid then there was no protection and the Defendant’s action in relation to the tree cannot have breached a protection and therefore cannot be a criminal offence.

Is there any mileage in this as a defence though?  It seems to be ‘step 1’ in launching a defence to a TPO case; argue that the TPO wasn’t valid.

This argument is doomed to fail as sections 284 of the Town and County Planning Act sets out that the validity of a TPO shall not be questioned in any legal proceedings whatsoever:

S284

1.Except in so far as may be provide by this Part, the validity of

(e) any such order as is mentioned in subsection (2), whether before or after it has been confirmed,

Shall not be questioned in any legal proceedings whatsoever.

1. The orders referred to in section (1) (e) are

(c) any tree preservation order

 

So can and when can a TPO itself be called into question?

Yes there are opportunities to object to a tree preservation order.

When a TPO is made there is a 6 month period of time between the order being made and being confirmed.  During that period the planning authority will allow for objections to be raised in relation to the proposed order.

However, once the Order has been confirmed there is a strict 6 week timescale within which an appeal against the order can be made.  This is an appeal made to the High Court.  The process to launch such an appeal has to be carried out quickly due to the tight timescale.  This appeal is launched by lodging a claim form document with the planning court seeking permission to appeal the TPO.  At this point the TPO can only have its validity challenged on the grounds that the order is not within the powers of the TCPA or a requirement of the act or regulations has not been complied with.  This is legal point only.  There is certainly no guarantee of success in launching such an application. The statistic is that no more than 25% of appeals are successful.

 

What does this mean for planning authorities?

For planning authorities this means that, where a prosecution is brought for an illegal felling, the argument that the TPO wasn’t valid is doomed to fail.  Those raising it can be politely referred to S284 and invited to withdraw that argument.

 

Tree Law specialise in claims involving trees including advising planning authorities and individuals in relation to TPO prosecutions.  Join Tree Law’s free 2025 conference which will be addressing the issue of TPO prosecutions.Tree Law Conference 2025 | Tree Law – Legal tree expert

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