woodrep

[woodrep]

as a retired arborist I rarely concern myself with my past activities.But seemed from looking at the planning threads there is not much evidence of the change in the case law governing TPOs that occurred as the result of the incorporation of the human rights act into UK law.Briefly TPO breach is a criminal act and thus must be proved beyond all reasonable doubt.No one can be prosecuted without strict adherence to the magistrates acts and PACE.What this means is that if you do work the LA deems a breach .THEY have to prove that it did not come within the exceptions of the acts.Rather hard if the tree is felled or the prunings are chipped. How do I know how this applies,by arranging for an old client to fell a tree causing a obstacle to an proceeding planning application.Much huffing an puffing and posturing occurred including initiation of non prosecution.The ministries blue book does not mention this change for obvious reasons .But it is a fact. Local tree officers have been cosseted by an old court ruling which made the offender have the burden of proof of innocence ,always an insult to the precepts of good law.So get up off your knees out there and realise that TPO legislation is for too long been blunt instrument wielded by often ignorant officials

Edited July 19, 2012 by woodrep
missing word

[sloth]

Rather hard if the tree is felled or the prunings are chipped. How do I know how this applies,by arranging for an old client to fell a tree causing a obstacle to an proceeding planning application.Much huffing an puffing and posturing occurred including initiation of non prosecution.The ministries blue book does not mention this change for obvious reasons .But it is a fact. Local tree officers have been cosseted by an old court ruling which made the offender have the burden of proof of innocence ,always an insult to the precepts of good law.So get up off your knees out there and realise that TPO legislation is for too long been blunt instrument wielded by often ignorant officials

 

Interesting post...

As a retired arborist highlighting this fact(?) What do you hope to achieve? The felling, grinding and chipping of many tpo trees to allow 'development progress'? If what you say is true, and I suspect it isn't that simple, then I'm fairly sure something would be done about it bloody sharpish, lest we lose potentially hundreds of high value amenity trees in favour of more light or another conservatory!

[Amelanchier]

as a retired arborist I rarely concern myself with my past activities.But seemed from looking at the planning threads there is not much evidence of the change in the case law governing TPOs that occurred as the result of the incorporation of the human rights act into UK law.Briefly TPO breach is a criminal act and thus must be proved beyond all reasonable doubt.No one can be prosecuted without strict adherence to the magistrates acts and PACE.What this means is that if you do work the LA deems a breach .THEY have to prove that it did not come within the exceptions of the acts.Rather hard if the tree is felled or the prunings are chipped. How do I know how this applies,by arranging for an old client to fell a tree causing a obstacle to an proceeding planning application.Much huffing an puffing and posturing occurred including initiation of non prosecution.The ministries blue book does not mention this change for obvious reasons .But it is a fact. Local tree officers have been cosseted by an old court ruling which made the offender have the burden of proof of innocence ,always an insult to the precepts of good law.So get up off your knees out there and realise that TPO legislation is for too long been blunt instrument wielded by often ignorant officials

 

So you extrapolated this from your single experience of not being prosecuted? s210 of the TCPA seems clear enough to me;

 

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.

 

If you cut the tree down and it is protected - you are guilty of an offence.

 

How your LPA handles it is quite another matter altogether...

[arnoldbuchsassinger]

I think retirement is the best place for these type of outfits, bury ya head in the sand, ahhh cant see the problem now, what happened to responsibility and accountability, unless it is just a case of knocking trees down

[woodrep]

Not a single case ,tree officers jobs are to protect trees. A contractors duty is to his client.You dont have laywers turn down cases because what client is accused of is bad .It is a fact that you are not guilty until proven . Nothing my client did was illegal as it did not involve ANY breach of the law.The latest April 2012 changes are to clear up the mess that LAs made when they ignored circular 36/78 advice to update existing TPOs.The tree officer is junior planning officer with his own departmental clients.Not trees or the public

[woodrep]

Sharpish doesnt happen unless there is an urgent need .Tree loss is not caused by development per se it is caused by bad development nurtured by ignorance .Down the road a small close has been built in which some houses are completely shaded by retained trees. there will soon be a time when these will come down.No doubt at greater expense and by you or your colleagues.the tree is still gone but so is the possibility of a properly managed mature treescape.Further even before the build some of the tree had crown dieback?Whos job is it to stop this,who do we pay----THE PLANNING DEPARTMENT It would be nice if this were a system based on consensus but it is not. IT IS is adversarial but it should also be professional and open.frequently I have noticed that being friendly with the tree officer makes a lot of commercial sense,but that removes some decisions to an arena out public gaze .Do not assume I have any negative attitudes to tree preservation as a concept. I have kept trees for clients despite notices to fell ,but this really annoys tree officers.

[woodrep]

Wilfully

[Amelanchier]

Not a single case ,tree officers jobs are to protect trees.

 

Actually its a little more complicated than that.

 

A contractors duty is to his client.You dont have laywers turn down cases because what client is accused of is bad .

 

If you are a member of a professional organisation you are typcally also obliged to follow their code of ethics - this normally includes an expectation that you will not bring your organisation into disrepute. Also, you certainly will find lawyers that turn clients down.

 

It is a fact that you are not guilty until proven . Nothing my client did was illegal as it did not involve ANY breach of the law.

 

So the trees weren't protected then?

 

The latest April 2012 changes are to clear up the mess that LAs made when they ignored circular 36/78 advice to update existing TPOs.

 

I doubt they were. Not all LPAs did ignore Govt. advice and in any case the recent changes are far more wide ranging than just a moratorium for old orders.

 

The tree officer is junior planning officer with his own departmental clients.Not trees or the public

 

The position and standing of the TO depends on the structure of the LPA.

[Amelanchier]

Wilfully

 

Wilfully indeed for some offences but not all. Some are strict liability (i.e., no mens rea) - such as felling under s210 and pruning under s211). This is not common law, its statute and if words implying mens rea are included in some sections and left out of others in the legislation it is read that this was the intention of the legislators. Hence you can be criminally guilty without the intent to be so; therefore no need for the prosecution to demonstrate your 'guilty mind'.

 

As I say - cut a protected tree down (without consent or exemption) and you have committed an offence. This has been the case since the inception of TPOs and has changed little from that time.

 

In any case, the bloke in the wig ultimately decides. I certainly wouldn't advise my clients that I had found a loophole that allowed them to knock protected trees over - I would say that yours could be on some wafer thin ice if they do.

[woodrep]

as i said i am retired. after 30yrs as tree surgeon latterly dealing with difficult planning cases I think have a fair view of the real structures of local government .I also know about absolute offences. However the fact remains that local authorities have not updated their tpos but have often acted as if they had.Any offence is derived from the specific tpo document and cannot exist if that is wrong.Obviously the new regs cover a wide area,but the homogenization of past tpos is the main legal change