Potential landowner liability for 'anonymous' felling in CA

[kevinjohnsonmbe]

Finding this a tricky one to resolve since it came up in conversation recently.  

 

Mynors is clear enough on the matters to be proved by a LA in order to secure a conviction for felling in a CA without having provided notice of intent (28.5 p809), but what might be the procedure where there is no "accused" (since nobody knows (or will say) who done it?)

 

Can the landowner be compelled in any way to undertake the replanting / prosecution since they exercise a degree of control over the land but are not physically in a position to mount a sentry to prevent unauthorised access where 'others' may have an interest in removing trees for their own nefarious reasons?

 

Any opinions / suggestions / pointers appreciated.

[Haironyourchest]

Just an opinion but I would think it would be decided by a court (judge) on the balance of evidence, on a case by case basis. If the landowner had previous conviction for illegal felling then he/she would be a suspect. If the landowner can convince the court that he/she did not want the trees removed and suffered material loss by their removal, then I suppose he would be considered the victim. Whether liability could be attributed to the landowner would depend on the measures the landowner took to secure access to his land. Locked gates, livestock fencing, signs etc would be reasonable precautions, can't see how anyone can be expected to do more than that.

[Gary Prentice]

I wouldn’t think so. Replanting notices and conditions are normally in response to applications or contraventions. 

 

 

[kevinjohnsonmbe]

41 minutes ago, Haironyourchest said:

Just an opinion but I would think it would be decided by a court (judge) on the balance of evidence, on a case by case basis. If the landowner had previous conviction for illegal felling then he/she would be a suspect. If the landowner can convince the court that he/she did not want the trees removed and suffered material loss by their removal, then I suppose he would be considered the victim. Whether liability could be attributed to the landowner would depend on the measures the landowner took to secure access to his land. Locked gates, livestock fencing, signs etc would be reasonable precautions, can't see how anyone can be expected to do more than that.

Appreciate what you're saying, but...

 

Without sufficient (any) evidence of who did the deed, nobody would have been in Court because there isn't an 'accused.'  There is a requirement to have sufficient evidence to frame a charge in order to progress any further....  That's the tricky bit. 

[kevinjohnsonmbe]

21 minutes ago, Gary Prentice said:

I wouldn’t think so. Replanting notices and conditions are normally in response to applications or contraventions. 

 

 

Similarly, where the contravention has occurred, but the culprit is unknown, I can find no detail that would support an assertion that the landowner would bear the liability for replant/restitution.

[Gary Prentice]

It would seem unjust to force someone to bear the cost of replanting after they've already suffered the loss of the original trees.

[Haironyourchest]

1 hour ago, kevinjohnsonmbe said:

Appreciate what you're saying, but...

 

Without sufficient (any) evidence of who did the deed, nobody would have been in Court because there isn't an 'accused.'  There is a requirement to have sufficient evidence to frame a charge in order to progress any further....  That's the tricky bit. 

Well yes, but wouldn't the prosecution automatically target the landowner? I mean, if the crime happened on his land, then he is presumed to be the offender, in the absence of contradictory evidence? Like if someone reported noxious smoke arising from your land, phoned it in, LA environmental section guy investigates and suspects burning tyres, nobody is present but there is visual evidence of burned tyre pile, photos taken, landowner identified through registry, and action taken against said landowner. This would be reasonable no? Of course, the landowner might not occupy or use the land from one month to the next, might have been abroad even, and some other unidentifiable party trespassed and burned the tyres. But of course the landowner would claim that to be the case, and if that were sufficient defence then every scumbag would be dumping rubbish, felling trees, burning etc and claim it was parties unknown who sneaked onto their land while they were down the pub....so somebody has to be presumed responsible.

[Gary Prentice]

I think that for TPO/CA contraventions it has to be a case of 'beyond reasonable doubt', for the case to be proven. 

 

So, if trees are felled and another property suddenly gains a sea view, there's now a second party who might have benefitted 

Edited June 21, 2018 by Gary Prentice

[kevinjohnsonmbe]

20 minutes ago, Haironyourchest said:

Well yes, but wouldn't the prosecution automatically target the landowner?

I think not, not just on the basis that they are the landowner.

 

22 minutes ago, Haironyourchest said:

might have been abroad even

It wouldn't (ordinarily) even proceed to Court without a better than reasonable expectation of success.  Land owner presents evidence that he was oversees during the period in which the offence was believed to have occurred, he's not even charged let alone appearing in Court.  They wouldn't even have to show that they'd been overseas, the burden of proof rests with prosecuting authority to produce sufficient evidence that the accused 'did' rather than a suspect having to provide evidence that they 'didn't.'  

 

For example, the inalienable right to silence...  If the prosecuting authority cannot show that he 'did' and he says nothing, it goes no further...  That's where I'm at with it, was hoping there might be a nugget of info that might take us down a different path.... 

[kevinjohnsonmbe]

15 minutes ago, Gary Prentice said:

I think that for TPO/CA contraventions it has to be a case of 'beyond reasonable doubt', for the case to be proven. 

 

So, if trees are felled and another property suddenly gains a sea view, there's now a second party who might have benefitted 

Agreed, and spookily close to the hypothetical set of circumstances I'm playing with!  ?

 

As a criminal case, the burden of proving the defendant's guilt is on the prosecution, and they must establish that fact beyond a reasonable doubt.