TPO Root Damage

[monkeybusiness]

A friend operates an off road site in some woodland covered by a woodland TPO (in effect since the 1950s). The woodland is growing on an old mining slag heap and is largely populated with birch, sycamore and goat willow, but is also home to some mature (even veteran?) beech trees. The land is privately owned, but is easily accessible to 4x4 vehicles and has subsequently been used (unofficially by trespassers) as an off road playground since 2000 (possibly earlier). As a result, it is criss crossed with well used tracks (down to the shale below). The majority of these tracks are root free, but there are several that have damaged tree roots exposed (they have obviously been exposed/damaged over a number of years).

My friend has operated a pay and play off road business at the site since 2006 (once a month, sticking to the existing tracks), with permission from the land owner. There appears to be politics at play within the local authority, but the long and the short of it is that they are now forcing my friend to stop operating as a result of the existing TPO and evidential root damage.

Does the LA have grounds to stop the current/historic use of this land as a result of the TPO? No trees have been wilfully damaged - the only evidence of damage to any trees is to roots growing across obviously well used tracks.

Your thoughts would be welcomed!

[arnoldbuchsassinger]

By the nature of the four wheel driving, the roots of trees covered by a TPO are being damaged, i would speak to the Tree Office and find out what the issue is. I know nothing of the site, does it back on to houses etc, have people complained about noise or other goings on which are associated with the use of the land.Is it something indirect, the roots can be protected, several ways, tipping soil, shale, buidling up land, changing the route for traffic would reduce the disturbance to the root areas in question.

[Justme]

I think had the council stopped him by using the planning laws on change of use he would have been ok as its been going on long enough for it to have some rights.

 

However I think that the TPO is an absolute & he is prob lucky they only want to shut him down & not take it to court.

 

But I am just some RBOTI (random bloke off the internet) so get proper legal advice.

[daltontrees]

Another RBOTI reply here.

The English legislation may be slighly different from what we have up here, but if it were here the TPO couldn't in any way be used to stop the use. It could be used though to prosecute for wilful damage or destruction of trees. The penalties are quite severe. But the damage has to be wilful and since it is not the result of a single action like felling or excavation and your average 4X4 guy couldn't be expected to know he was damaging a tree by driving over roots, it could be tricky for the LA to pin it on one person or to show that it was wilful.

If the LA brings it to the attention that continued use will cause damage, it might thereafter be construed as wilful, but as someone has pointed out further damage could be prevented by resurfacing etc.

Sounds likk you're right about the politics. The answer to your question, based on Scottish legislation, would be NO!

[AA Teccie (Paul)]

Arguably, once the landowner has been 'informed' by the LPA (Local Planning Authority) that the actions of vehciles passing over the roots is causing damage, and I would suggest 'direct damage' such as root bark scuffing / removal / breakage, then any subsequent 'damage' could be construed as 'wilful' and a prosecution could follow...possibly.

 

I 'advise' the above as a precautionary not as a TPO expert by any means.

 

Take it there's no altrenative site away from the TPO'd woodland, or in an area which would lessen the impact...just a thought.

 

Paul

[HCR]

From the current regs:

 

Prohibited activities

This section has no associated Explanatory Memorandum

13. Without prejudice to subsection (7) of section 198(1) (power to make tree preservation orders) or subsection (1) of section 200(2) (tree preservation orders: Forestry Commissioners) and, subject to the exceptions in regulation 14, no person shall—

 

(a)cut down; .

(b)top; .

©lop; .

(d)uproot; .

(e)wilfully damage; or .

(f)wilfully destroy, .

any tree to which an order relates, or shall cause or permit the carrying out of any of the activities in sub-paragraphs (a) to (f) to such a tree, except with the written consent of the authority and, where such consent is given subject to conditions, in accordance with those conditions.

 

(my bold)

 

There's no need to prove which driver caused the damage - the landowner would be criminally liable.

 

Can he simply apply to fell the trees that have roots in the tracks?

[daltontrees]

Ah but if you interpret 'wilful' as deliberate then it would only be an offence under TPO law if vehicles were being driven over roots for the purpose of destroying them and the trees. I would be more worried if the law said 'reckless'. The LA would be hard pushed to show that the landowner was permitting the damage for the purpose of destroying the trees.

Reminiscent of the change that was made in the law about destroying birds nests, the law used to say wilful but was changed to reckless, because there had been an easy defense. That is why I think if the LA brought root damage to landowners attention and the activity that was causing the damage then continued a defense would become more difficult. But not impossible

[HCR]

Ah but if you interpret 'wilful' as deliberate then it would only be an offence under TPO law if vehicles were being driven over roots for the purpose of destroying them and the trees. I would be more worried if the law said 'reckless'. The LA would be hard pushed to show that the landowner was permitting the damage for the purpose of destroying the trees.

Reminiscent of the change that was made in the law about destroying birds nests, the law used to say wilful but was changed to reckless, because there had been an easy defense. That is why I think if the LA brought root damage to landowners attention and the activity that was causing the damage then continued a defense would become more difficult. But not impossible

 

Intent can exist in several forms in law; direct intent (purpose, foresight of certainty), indirect/oblique intent (requires foresight of the consequences).

 

R v Moloney (1985) HL "foresaw, as natural consequence"

 

The draft criminal code seeks to codify existing common law thus: "A person acts ‘intentionally’ with respect to...a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events."

[monkeybusiness]

Thanks for the replies everyone, it is all very helpful.

 

The issue that I'm not sure about and I think may be quite grey is that the tracks are all well used and have obviously existed for a long time. There are some roots in evidence across some tracks, and in reality these are the real issue/sticking point. Does a local authority have the power to stop a landowner from using existing/historic access tracks under TPO rules? I can understand them preventing new tracks from being built, but those that already exist are surely outside the scope of the legislation?

[HCR]

Thanks for the replies everyone, it is all very helpful.

 

The issue that I'm not sure about and I think may be quite grey is that the tracks are all well used and have obviously existed for a long time. There are some roots in evidence across some tracks, and in reality these are the real issue/sticking point. Does a local authority have the power to stop a landowner from using existing/historic access tracks under TPO rules? I can understand them preventing new tracks from being built, but those that already exist are surely outside the scope of the legislation?

 

I would say it's a grey area. I wouldn't like to bet on which way a prosecution would go, but given that the landowner has been informed that the activity will cause damage (and therefore criminal liability) he is on shaky ground if he allows the activity to continue. Damage is damage, however long a track has existed. If it was a highway, that might be a different matter but from what you have said I don't think that is the case.

 

A felling application might be the best way forward, especially if it is matched with a woodland management scheme in areas that tracks don't cross. If he fights it, he'll probably get nowhere. If on the other hand he goes in with a positive approach, he might make some good friends at the LPA.