advice or help

[Gary Prentice]

I’m a long way from siding with theLA.

 

Ive spent too many hours in the planning office reading the case files and associated documents, correspondence and memos to believe that they always act appropriately.

[kevinjohnsonmbe]

4 minutes ago, Gary Prentice said:

I’m a long way from siding with theLA.

 

Ive spent too many hours in the planning office reading the case files and associated documents, correspondence and memos to believe that they always act appropriately.

I figured you were letting (quite understandable) historic frustration cloud the analysis Gary ?

 

And far be it from my usual starting point to automatically side with “the man”, but the longer it goes until the OP affirms wether there actually IS (was) or ISN’T (wasn’t) a TPO in place all along, the further my sympathometer swings downwards (from an already fairly meagre 10.55%) probability of a miscarriage of justice! 

 

(I know! I already said 87.5% and plus 10.55% = 98.05% (I’m keeping 1.95% in reserve for unforeseen circumstances ?) ? 

[daltontrees]

3 hours ago, EdwardC said:

They felled a TPO'd tree. They didn't check to see if it was TPO'd.

No-one really knows now what they did or did not do... I am thoroughly confused as to who checked what .

 

I will until otherwise persuaded take it that the law intends to punish the person who caused the unlawful work to be done. It is not necessarily the contractor who is to be prosecuted, just because he is the person who felled the tree. If he was instructed to do it, his is merely the tool, not the intent. 

 

So we have s210 of rthe 1990 Act -

210 Penalties for non-compliance with tree preservation order.

(1) If any person, in contravention of a tree preservation order—

(a) cuts down, uproots or wilfully destroys a tree, or

(b) wilfully damages, tops or lops a tree in such a manner as to be likely to destroy it,

he shall be guilty of an offence."

And you might say the 'person' is he who wields the saw. Or is it the groundy that pulled it over, or the trainee who put in the sink cut before the boss did the back cut? Or the climber who stripped it before the groundies felled the pole. Or the boss who gave them the job sheet? No, it's the person who decided it should be done. 

We saw in the appeal R v Davey (Poole),  the judge says "the appellant was convicted of causing or permitting the wilful destruction of the tree, contrary to section 21O(1) of the Town and Country Planning Act 1990". [My emphasis] The appellant was the customer. The eejit with the saw was indicted too because he knowingly aided and abetted, and lied to the court too and was busted for it.

Point is (again) it's the person who causes it who is in the wrong.

There then comes the question of whose duty it was to check if there was a TPO. In Poole there was no doubt, the appellant knew and got his man to do the deed while the tree's owners were away on holiday (yes, it wasn't even the appellant's tree). One might argue that it's for a professional tree person to alert a customer to the need to check, but I would personally stop short of saying that he is not allowed to take his customer's word for it that the customer has checked. The contractor may have a duty to alert, but he has no duty to police. Just as he doesn't have to order a copy of a customer's title deeds if the customer says he owns a tree.

I've never been caught out myself, but then I have laminated copies of every CA and TPO for 50 miles around. I have had people never call me back when I have alaerted them to the likely existence of restrictions, and in the circumstances I was glad not to be drawn in to wilful disregard of restrictions.

 

 

[daltontrees]

12 hours ago, EdwardC said:

But, the TCPA doesn't say 'THE' person who contravenes a TPO is guilty of an offence. It says 'ANY' person who contravenes a TPO is guilty of an offence. So all of those involved are guilty. Are they all likely to be prosecuted, no. THE/ANY, little words, big difference in meaning.

 

I disagree that the contractor has a 'duty' to alert the client to the possible presence of tree protection. Where does this 'duty' arise from. The contractor should undertake due dilligence. That doesn't mean taking the customers/clients word for it. If the contractor doesn't check they can hardly claim they couldn't have been aware of the TPO if it was actually there to be seen had they looked or asked the right questions.

 

None of us have seen the documentary evidence of council incompetence. But most are very quick to blame the Council. I would want to see the local land search document undertaken when the land was conveyed before I accepted it didn't show the TPO. Was a local land search even done, it's not obligatory. Was Jose shown a whole load of paperwork which didn't include the local land search and told  look no TPO. There wouldn't be would there, if the bit of paper it would show on wasn't there. Also, the email chain so I knew what the question was and to which bit of land it was referring. Did it include the  newly conveyed land or just the original garden. And the screen capture of the councils GIS maps, were the TPO layers toggled on, or off.

 

It's easy enough to check, mostly, so just check and it won't happen to you. I'll bet Jose wished they'd checked.

Last bit first. We don't know what happened. It seems likely there is a TPO.

 

I didn't say the contractor has a duty to alert, I said that 'one might argue that...', I was more interested in whether taking a customer's written records of the same searches that a contractor would have made are sufficient to absolve the contractor. I think they are, but you say 'That doesn't mean taking the customers/clients word for it.' We'll just have to agree to disagree, since  think that such due diligence as is required of a contractor is just to know that someone checked and that there is a record of the results.

 

I believe the word 'Any' is to make it immaterial whether it is an owner, tenant or occupier, and to include a contractor if the contractor was the guiding force behind the removal. But it doesn't mean the groundie and the climber and the brash rat and the guy who sharpened the saw are guilty. That was what was so edifying about R v Davey, the court was clear that the intention in the Act is to fingd guilty the person that caused or knowingly permitted the felling. An extension of that interpretation would I believe find a contractor wholly or largely responsible if he led a customer to believe that there were no restrictions or that the contractor had checked on their behalf and pretended there were none. Or just as bad, said he would check, hadn't and pretended he had.

 

The courts don't apply laws literally where the outcome would be to punish the innocent. Punishment is a deterrent to others, a public 'flogging', an atonement for conscious wrongdoing, an encouragement of improved behaviour. I do not see that soiciuety's needs would be better served by punishing someone for taking a customer's word and evidence of a negative TPO search.

 

Me, I'd defend my reputation in court until my life savings were gone and I was living in a tent outside the court.

 

But we don't know the facts, so all we can do is rehearse arguments about the generalities. No offence intended. We're allowed to disagree, and God forbid that it is ever tested in court for either of us. I don't even like camping.

[Gary Prentice]

2 hours ago, daltontrees said:

I'd defend my reputation in court until my life savings were gone and I was living in a tent outside the court.

If you were really serious about this, you'd spend your life saving, sell the tent and live in a cardboard box outside the court though

[jose]

Sorry been crazy busy lately.

Yes 99.9 % i always check myself with the LPA

I always state trees can only be worked on subject to No TPO's been present. 

When i attended site there was only one garden, not a garden and a separate parcel of land.

This land was fenced off and had been for quite some time ( 6 months at least).

Upon accepting the quotation the customer supplied all local searches but also the email conversation with the correct tree officer regarding the land ( his garden). The conversation and question asking about the status of his land was clear.

In no uncertain terms the TO clearly states there are no TPO's on his property.

I see no reason why not to believe this as i had corresponded with this TO previously. Hence why i didnt see the need to repeat the exact same question to the TO. 

 

No mention of any nearby TPO's

 

Its only once the tree officers who attended once work commenced was any mention of a TPO was made.

Why would i ask for land searches when the sale was made 8+months previously and the TO had confirmed no TPO?

 

Surely if the tree department / planning dont update records that is not my fault? 

 

If i tried to pull a fast one i sure as hell wouldnt be posting about it!

Add to that ive no need to do dodgy work, i have been crazy busy for the last 10 yrs plus! this grief isnt something i need or want.

Hope this clarifies things.

Cheers

[Roz]

One line of exploration which I think all have omitted, if not apologies - for those with Mr Mynors book page 781 the first question to be asked is.....is there sufficient evidence available to prove "realistic prospects of conviction"?.if there is then the prosecutor - the council - must then ask is a prosecution in the public best interest and there are several factors militating (of a fact or circumstance) be a powerful or conclusive factor in preventing) against prosecution, this includes - the offence was committed as a result of a genuine mistake or misunderstanding.

So if we have all the facts (not supposing otherwise Jose) given as we understand the land recently sold by the council showed no TPO in the conveyancing pack, an e-mail from the TO confirms no TPO while a breach of a TPO has occurred (if there is a TPO) then the mistake stems from the incompetence of the council..................

I would go to court - I know of cases with our legal team when they have presented a case at magistrates and been told really is this in the public best interest I think you may want to think about this ?  Th council have pushed it through out of 'were the council we know best' and been well and truly butt kicked by the magistrate and been hit with costs...........what a good use of public money huh...!?!?!? 

[Gary Prentice]

2 minutes ago, Roz said:

One line of exploration which I think all have omitted, if not apologies - for those with Mr Mynors book page 781 the first question to be asked is.....is there sufficient evidence available to prove "realistic prospects of conviction"?.if there is then the prosecutor - the council - must then ask is a prosecution in the public best interest and there are several factors militating (of a fact or circumstance) be a powerful or conclusive factor in preventing) against prosecution, this includes - the offence was committed as a result of a genuine mistake or misunderstanding.

So if we have all the facts (not supposing otherwise Jose) given as we understand the land recently sold by the council showed no TPO in the conveyancing pack, an e-mail from the TO confirms no TPO while a breach of a TPO has occurred (if there is a TPO) then the mistake stems from the incompetence of the council..................

I would go to court - I know of cases with our legal team when they have presented a case at magistrates and been told really is this in the public best interest I think you may want to think about this ?  Th council have pushed it through out of 'were the council we know best' and been well and truly butt kicked by the magistrate and been hit with costs...........what a good use of public money huh...!?!?!? 

You beat me to it Roz.

 

The sooner everyone gets all TPOs and CAs online the better. At least the contractor can protect themselves and not rely on someone at the other end of the phone switching the right layers on on a map.

[Roz]

I agree - I have spent hours hours just collating the TPO data for this council and I am hoping by the end of June for it to go live - it wont be perfect but I can then go out and ground truth but all TPO docs will be available from the maps.

I'll send you a link to see what you think ?!?!?

[Gary Prentice]

21 hours ago, kevinjohnsonmbe said:

I figured you were letting (quite understandable) historic frustration cloud the analysis Gary ?

 

And far be it from my usual starting point to automatically side with “the man”, but the longer it goes until the OP affirms wether there actually IS (was) or ISN’T (wasn’t) a TPO in place all along, the further my sympathometer swings downwards (from an already fairly meagre 10.55%) probability of a miscarriage of justice! 

 

(I know! I already said 87.5% and plus 10.55% = 98.05% (I’m keeping 1.95% in reserve for unforeseen circumstances ?) ? 

Historic!!! If only it was..

 

24 minutes ago, Roz said:

I'll send you a link to see what you think ?!?!?

Please do.