advice or help

[Gary Prentice]

On 5/14/2018 at 19:17, EdwardC said:

Were the TPO layers on the mapping turned on, or were they off so the trees didn't show up.

 

Never trust your client. Always check for yourself.

If you check yourself, by contacting the LA and they don't have the layers on, you're still in the same boat unfortunately. It's happened to me!

[kevinjohnsonmbe]

Unless I've missed it, I still don't think the binary question "is (or was) there / is there not, an existing TPO in effect on the new acquisition" has been answered.

 

It's yes or no.

 

If the answer is yes, then maybe or maybe not the new land owner intentionally misled the contractor and placed him in a position of vulnerability with the LA.

 

If so, some mitigation may be applied....

 

If the answer to the binary question is "no", what are we wasting our time for, there's no case to answer.....?

 

 

[jose]

So the answer is yes there is a TPO.

But as i said all indications and correspondence with TO said No. 

The only mention if this was once the work took place. 

This is as you say mitigating circumstances which from my position is a perfectly understandable position to explain/defend my actions.

If the council cannot keep up to date records why should i or anyone else be blamed? 

doesnt seem fair to me.

 

[kevinjohnsonmbe]

1 hour ago, EdwardC said:

infections..

How did you know about that.....?

[daltontrees]

8 hours ago, Gary Prentice said:

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

I know, but like Kevin I am holding back 1.95% just in case.

[kevinjohnsonmbe]

1 hour ago, jose said:

So the answer is yes there is a TPO.

But as i said all indications and correspondence with TO said No. 

The only mention if this was once the work took place. 

This is as you say mitigating circumstances which from my position is a perfectly understandable position to explain/defend my actions.

If the council cannot keep up to date records why should i or anyone else be blamed? 

doesnt seem fair to me.

 

Sorry shipmate, I think you were kippered by the landowner who showed you just enough to make you 'believe' it had been duly checked.  

 

If I were in your shoes (from what I can read from the thread), it'd be the landowner that I'd be narked with rather than the LA.

 

Life's a roller-coaster, take it on the chin, ditch any loyalty to the bloke that kippered you and re-align yourself with the LA.

 

(if I'm reading this right)

 

 

[daltontrees]

5 hours ago, EdwardC said:

I don't think we disagree Jules. Any means any, and that could be any person involved with the destruction or whatever of the tree. As I said, I wouldn't expect the sweeper upper or chipper feeder to be prosecuted. However, the Courts would expect a higher degree of responsibility from the householder and the manager of the tree surgery firm. One you would expect to know, the other you would expect to check, they're professional tree surgeons with a greater level of knowledge and responsibilities after all.

 

We do know some facts. Jose tells us he cut down a protected tree and didn't check with the LPA to see if it was protected.

 

As a professional arborist you would be expected to know about tree protection and act in a professional manner. That is check with the LPA. 

 

If we extrapolate your argument out nobody would ever be prosecuted because the defence would be 'the other person checked and said there was no TPO'. And that would be an end to it, and that would make the legislation meaningless. But it doesn't work like that. Someone has to bear responsibility or at least a portion of it. If you're a professional with a greater degree of knowledge, or the landowner then you will be expected to know and comply.  Proportionality will in the end be decided by the Courts.

 

Don't trust the client/customer, do the professional thing, check for yourself, then you won't be posting on here for advice or help.

I agree and have agreed that (subject to the Vale of Glamorgan get-out) somebody has to get it. And yes it's a matter of apportionment of blame. The 'any person' can be several persons. We're only differning on whether a cotractor can take a client's word for it if the client presents writtee evidence to him of a negative disclosure.

[daltontrees]

1 hour ago, jose said:

So the answer is yes there is a TPO.

But as i said all indications and correspondence with TO said No. 

The only mention if this was once the work took place. 

This is as you say mitigating circumstances which from my position is a perfectly understandable position to explain/defend my actions.

If the council cannot keep up to date records why should i or anyone else be blamed? 

doesnt seem fair to me.

 

It seems a prima facie case of inabulity to know of the existence of a TPO. You ask the LPA if the is one and they say no. I can't see that the Vale of Glamorgan defence should not apply to you. Strict liabiity offence + no possibility of knowing it would be an offence = no offence.

[Gary Prentice]

11 hours ago, EdwardC said:

No, you're not in the same boat, you're not even on the same ocean. Checking with the LPA is undertaking due diligence. Relying on third party heresay is incompetence. You're the professional arborist so would be expected to act accordingly.

 

Were you prosecuted for what was clearly an LPA error? No? So why is Jose and the landowner facing prosecution?

 

Don't trust your client/customer. Check for yourself.

 

It's better to learn from others mistakes, rather than your own. But hey, why be professional when you can be incompetent and blame every one else for the guano you are up to your neck in as a result of your actions/infections..

Is a copy of an email between a TO and the homeowner really, legally, heresay though?

 

jose has relied on that, as has the owner in instructing him. I would do the same. 

Ive had a new homeowner show me the land search results from her solicitor, no statutory protection in a garden that I knew was in a CA. It wouldn’t be unreasonable, nor unprofessional, to rely on a solicitors searches would it?

 

LAs make mistakes, you can’t deny that, it’s how they act when the truth comes out that matters.

 

 

[kevinjohnsonmbe]

58 minutes ago, Gary Prentice said:

12 hours ago, EdwardC said:

Is a copy of an email between a TO and the homeowner really, legally, heresay though?

It could well be a fundamental element of the contractors mitigation.

 

“I was duped your Honour, I should have been more alert to the potential that the landowner could be intentionally misleading me, but as a good, honest, God fearing, temperate man of previous good character, I took him at his word - the documentary submissions he provided to me seemed, to all reasonable intents and purposes, to verify that which was presented to me. I had no reason to suspect such devious and premeditated intentional deceit from another of God’s sweet creations and I am perplexed beyond explanation that my naive faith in humankind has been so comprehensively devastated. I can see now that I should have checked that the documents I’d been shown actually related to the area / task I was being asked to undertake.”

 

Magistrate “You’ve been mugged off chum, but I fail to see why it’s gone this far? I could understand having the landowner up before me, but why are you here?”

 

”Well, it’s like this Sir, the LA did offer a Caution on the basis that it WAS me that chopped the invaluable, irreplaceable, 1000yr old historically and culturally important centrepiece of the local community down, but, I wasn’t having it - because of these here emails you see.”

 

I wonder if it’ll pan out anything like that.....? It’s got the basics of a half decent soap / docu-drama ?