Potential landowner liability for 'anonymous' felling in CA

[kevinjohnsonmbe]

11 hours ago, EdwardC said:

Yes. Because S206 TCPA says 'it shall be the duty of the owner of the land to plant another tree...'

 

As for the removal... The landowner will be first in the firing line. It is their tree. They have to do something to evidence their innocence, provide an alibi. The days of saying nothing not weighing against you are long gone. Saying nothing can now be viewed by Magistrates/jury's as they see fit, and that can be as evidence of your guilt.

 

But at the end of the day it will be for the prosecuting authority to decide whether to proceed with a prosecution or not, and the Court to determine guilt.

I see that 206 "says" that it should be the landowner to replant, but if there is an absence of "cause or permit" as in 202C(2) and whilst acknowledging that "saying nothing" can be interpreted by the Court as it sees fit (it was probably a bad choice of example to attempt to demonstrate where the burden of proof lays since they wouldn't say nothing, they'd say all that might reasonably demonstrate that they had not caused or permitted.) 

 

So whilst 206 might state landowner, could it ever realistically (a) get to Court if there was no 'accused' and (b) stand a chance of a successful outcome?  206 appears to me, to have the potential to unfairly penalise a landowner that has already suffered no fault loss and the direction that they should re-plant (further punishment without trial) appears to contradict basic tenants of English Law.   Mindful also of 208(1)(aa), if it did go so far as the Court, could it withstand appeal?

 

Maybe it's just one of those anomalies that was never quite envisaged when 206 was written and will be added to the list of things we have to wait for a judgement on before we ever really no for sure....? 

[kevinjohnsonmbe]

I had that case in mind Ed - and in reality, no one would really believe there wasn't an obvious beneficiary / likely culprit in that scenario.  He was bang-to-rights (cause or permit) and probably still prof'ed from the final outcome.

 

I'm thinking along the lines of an isolated woodland (without the sort of control which might be expected within a private domestic garden) where timber is lost (stolen in effect / criminal trespass / criminal damage) and the landowner could (if the LA were so minded - and I suppose that is the key factor) then be hit with the requirement to re-plant.  

 

I suppose the answer is yes, action could be commenced by LA and if it was the landowner would have to weigh the cost of legal challenge & potential for success against the cost of re-planting whilst the LA are simultaneously making a similar / opposite calculation of potential of success weighed against the loss of amenity / public interest.

 

I think I'm going to have to put it in the "no straight answer" file and watch daytime TV instead... 

[Gary Prentice]

Is there actually a duty to replant if the trees coppice? 

 

Another thread, on another forum , concludes that if a TPO tree is felled and then coppices, the new stems are then protected.