Help and advice needed. TPO's/Conservation areas and prosecution!

[Amelanchier]

In what way were the trees damaged?

 

Surely a LA would only go after a contractor for damaging or destroying a tree that falls within a conservation area?

 

The same offences apply to CAs as they do to TPOs, including unauthorised works. Essentially Section 211 of the TCPA 1990 sets up a number of possible defences against the strict liability offences listed in 198 3) a) (i.e., those that you are guilty of unless you can prove otherwise). One of which is the (6 week) notification of intent.

[Rupe]

I dont think the local tree planning dept. are the same as the Police!! Jeez, its only a conservation area infringment, not even a TPO. Its a proffessional mis hap but not a criminal offence.

[Rupe]

Ah, tony, just the common sense we needed!!

[RobArb]

its the fact that he has told the LA interviewers that he has no Arb qualifications and has created this "report" with my name on it that i have been dragged in for.

[RobArb]

it could also be weeks to months before i hear anything now which is a worry for the missus coz she likes to worry!!

[Glen Poole]

has your signature been forged on he report then?

[Amelanchier]

Its the companies responsibility we know that already. If a climber is contracted to sort these things out as part of his employment with a company and he fails to do so, then its the companies fault but they would then sack him failing to do his job.

 

Its never the climbers fault. Its the company that carries out the work, and whoever owns that company is responsible end of.

 

I dunno Rupe. There's nothing in the legislation or the guidance that indicates that LPAs need examine the company heirachy to attribute liability.

 

Depending on the order there are two seperate and distinct offences listed. In the most recent model they are as follows (these apply to CA trees by virtue of section 211 [my emphasis in bold]:-

 

"...no person shall;

 

(a) cut down, top, lop, uproot, wilfully damage or wilfully destroy; or

 

(b) cause or permit the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of,

 

any tree specified in Schedule 1 to this Order..."

 

So its fairly inclusive really. This means that both the person who commits the offence and the person who asks/tells him to are both at risk of prosecution. Whilst there may be a convention for aiming for the boss (or indeed prosecuting the person with the most money), there is nothing that specifically and categorically excludes the bloke on the saw (even the subbie) from potential liability.

[Amelanchier]

In any case, from the warm comfort of my considerably well furnished ivory tower where I sit happily in full armchair legal expert mode - this doesn't look like they are considering taking action against the OP.

 

I'd go for the college.

[Rupe]

Yes, employment law would exclude the bloke on the saw from liabilty.

 

Subbies would have less protection if they were genuin sub contractors but none of them are.

 

Tony, would you be happy with EVERY tree cutter, and all the groundies in you area phoning you every day to check the TPO/CA status of hte job they have been sent to do?

[Amelanchier]

Yes, employment law would exclude the bloke on the saw from liabilty.

 

I guess it possibly would - my point was that the OP had been asked in for FI regarding an offence under a certain part of the law and that that particular legislation did not exlcude anyone from liability. Decisions about whether its reasonable for those individuals to have checked the constraints are subjective and not measured against an agreed guidance - the bloke in the wig will decide!

 

Tony, would you be happy with EVERY tree cutter, and all the groundies in you area phoning you every day to check the TPO/CA status of hte job they have been sent to do?

 

No I wouldn't. Mainly because I left the Council over a year ago but also because I agree it would be ridiculous. However, I can't agree that they wouldn't be at risk of committing an offence as a result of that opinion!