advice or help

[Roz]

Good for him - would like to have been a fly on the wall.

Of course there is also the hidden politics, local member trying to prove a point etc...........which in fairness can place us TO's in an awkward situation sometimes but even so.

 

we aint perfect here in the world of bureaucratic tick boxes but even so no need to make yourself look totally incompetent.........

 

What was the outcome or is your client awaiting a letter.........................

[jose]

This is exactly what i think is happening!

So to be clear if you hadnt guessed its myself / my firm who did the work. 

thing is its scary as ive never had bother with the law, do it all by the book etc. And all reasonable steps were taken. 

Yet i am facing caution which may come to bite me later if ever make a mistake again ( said it can be used against me if i do something wrong).

Council is walking away scot free saying yes we told him off so yes we take this all seriously. Not opps we didnt check properly and created this mess in the first place!

[jose]

since that interview he received a notice to prosecute  ( about 3 months later)and then its gone silent.

I believe he intends to sue the council but i wont go into that as i dont know those details . 

 

 

 

[Roz]

Understand.............given its an either way offence there's no time limit but even so again the council need to be proactive otherwise courts don't take that well.......Mmm

 

Not a nice situation to be in when you've done everything you can to determine the correct information, unfortunately the one thing councils are not good at is admitting they made a mistake 

 

[nepia]

8 hours ago, jose said:

 

Yet i am facing caution which may come to bite me later if ever make a mistake again ( said it can be used against me if i do something wrong).

 

I can't see it happening unless, as said earlier, you both admit the offence and accept the Caution.

As for coming back to bite you Cautions have a lifespan; a few years ago they were redundant for the purpose of later proceedings after 5 years though it's possible you may have needed to apply for it to happen.  That function probably came from the Rehabilitation of Offenders Act which also operates a complicated system of lifespans for actual convictions, making them irrelevant - 'spent' - for court purposes after x, y or z years.

[jose]

Normally i do check, but when i received the emails from the tree officer who i have dealt with many times previously clearly stating the trees were not TPO'd i didnt see the need to repeat the same question.

 

Around these ways the councils are often reluctant to even answer a phone, in fact i know of 2 local ones that point blank refuse. all you get is the general reception saying put it in a email.

 

Another lesson in life learnt here.

Talking to my solicitor it would appear that even when a council says no tpo present, if they subsequently realise there is one its the contractor that takes the blame regardless of the fact the LA messed up. The law sucks.

I tried to liken it to another scenario and all i could come up with is if you were driving down a hill in a car and your brakes fail and you speed up and they happens to be a speed trap at the bottom, regardless of the reasons why even when provable you are guilty of speeding. You can give your mitigating reasons but your still getting done.

 

 

[Al Cormack]

Go to court Jose. If you have a paper trail that shows the council said there is no TPO on the trees then I would expect the judge to throw the case out.

[Gary Prentice]

5 hours ago, jose said:

Normally i do check, but when i received the emails from the tree officer who i have dealt with many times previously clearly stating the trees were not TPO'd i didnt see the need to repeat the same question.

 

Around these ways the councils are often reluctant to even answer a phone, in fact i know of 2 local ones that point blank refuse. all you get is the general reception saying put it in a email.

 

Another lesson in life learnt here.

Talking to my solicitor it would appear that even when a council says no tpo present, if they subsequently realise there is one its the contractor that takes the blame regardless of the fact the LA messed up. The law sucks.

I tried to liken it to another scenario and all i could come up with is if you were driving down a hill in a car and your brakes fail and you speed up and they happens to be a speed trap at the bottom, regardless of the reasons why even when provable you are guilty of speeding. You can give your mitigating reasons but your still getting done.

 

 

The way I underdtand it is, if there is a TPO in place and you contravene it, for whatever reason - you’re guilty. Then the mitigating circumstances come into play, for the judge to consider. 

 

Ive felled a TPOd tree after the call centre said no restraints. A later check on a house two doors up revealed a big Area TPO.

 

I went straight to the TO, told him the story & waited to see what happened. Legal department phoned us, I offered all of our Search Records up, every address we’ve searched, which LA, the name of the person who we’d spoken to. All to demonstrate that we act reasonably to establish constraints. 

 

The error, on that occasion, wasn’t ours, and I would have happily gone to court but the LA decided not to take any action. It might have been interest if they had. I don’t think that in that case I would have accepted a caution and the guilt implied.

[kevinjohnsonmbe]

Nah, there are still some missing parts in this tale....

 

Are there or are there not paper copy of pre-existing TPOs?

 

Did the land owner check and show copy of enquiry INCLUDING new area?

 

if no TPO, no caution, no discussion with LA, no more nonsense. 

 

Im starting to think the home owner showed you just enough to make it sound diligent but may have intentionally withheld the important bits....

Edited May 15, 2018 by kevinjohnsonmbe

[daltontrees]

Yeah definitely doesn't add up.

 

I suppose it's possible that a TPO was made shortly before or after purchase but not conformed, and therefore didn't turn up in conveyancing searches or enquiries. But the new owner should have been notified.

 

I woud accept a caution in this case over my own dead body. IF all we hav ebeen told is accurate, it's ridiculous to expect a tree contractor to take the blame.

 

I don't agree with Edward C, there are situations where it is not necessary to check independently. My standard discussion with customers is 'it is an offence to work on trees in a CA or a TPO, I or you should check.' customer says 'But I have checked, and I've just bought, so a TPO or CA should have turned up in searches, but it didn't so I checked with the Council and they said no CA or TPO.' Me, ' do you have evidence of that?' Customer, 'Yes'. 'Can you send me it?' 'Yes'. Sends it. It's true, LPA says no TPO.

 

End of story, the Planning Acts do not delegate policing of trees to contractors, they say what's an offence and they say that LPAs have to make TPOs known and available for checking. Everyone acted in good faith. It is a valid defence to show tha the Order was not disclosable. This is covered in Vale of Glamorgan v Palmer and Bowles 1983 if anyone wants to check. You'd better do, because you daren't take Dr Charles Mynors MRTPI FRICS IHBC word for it, pop off then and get a law degree before chopping any more trees anywhere.

 

And while I have Mynors' book open, I see he covers who is liable, the contractor or the customer. Well, if nothing else the Aiders and Abettors Act 1980 would leave the customer holding the baby in the circumstances that have been related here, because the contractor would have to have been 'reckless' as to whether a TPO existed. If indeed an offence has been committed in the absence of a discoverable TPO.

 

Caution, my a#%$. I'd take my reputation to hell and back first.