Authority refusing to register any works unless individual branches are specified.

[treequip]

Here's an extract from Department of Environment pamphlet on TPOs:

 

What happens if I carry out works to protected trees without consent?

 

It is a criminal offence to cut down, lop, top, uproot or wilfully damage a protected tree in a manner likely to destroy it, without the consent of the Department and on summary conviction you could be fined up to £100, 000 ( and on conviction on indictment, to an unlimited fine ).

 

Key phrase.....? "In a manner likely to destroy it"

 

Question.... How could it ever be proven 'beyond reasonable doubt' that the pruning (assuming it was sensible, appropriate and professionally implemented) was the direct and sole cause of destruction of the tree.

 

Personally, I think it would be almost impossible to prove / convict (even if the LAs had sufficient funds / willpower to pursue it.

 

I'm not advocating ignoring the current process (yet), but when the LA makes it so bloody frustrating to get an app approved, how long will it be before the tree owner and/or the arborist just say to hell with it....

 

I'll let you know what my address in jail is if one of my current TPO apps is declined after the 2nd request for more detail from the TO.

 

Civil Servants: a power trip or a useful contribution to society. Discuss....

 

You are just the latest in a long line of people looking for loop holes, firstly lets point out that what you have read is guidance not the law.

 

Your argument relies on semantics, you cite

 

It is a criminal offence to cut down, lop, top, uproot or wilfully damage a protected tree in a manner likely to destroy it

And you are taking the “in a manner likely to destroy” to apply to all the actions whereas it actually applies to the wilful damage part and the “cut down, lop, top, uproot” parts are all offence absolute.

 

Your opinion that

Personally, I think it would be almost impossible to prove / convict (even if the LAs had sufficient funds / willpower to pursue it.

 

Is also flawed, there have been any number of successful prosecutions

[kevinjohnsonmbe]

Whooooa..... Hold on Lofty!

 

First of all, I'm not "looking for a loop hole", I am a conscientious, professional deeply frustrated by the red tape and administration of local government. I understand, and fully appreciate, the value of planning law - when properly and consistently applied.

 

There is an active thread here which could be taken to indicate a broader 'problem' with interpretation, application and reluctance to review TPOs by local authorities.

 

As to the legal case history, that will be the subject of additional research which I'll happily publish.

[Dean Lofthouse]

Whooooa..... Hold on Lofty!

 

.

 

Don't drag me into it!

[kevinjohnsonmbe]

Not by intention!!!! "Lofty" just a personal 'term of endearment' in my vocabulary!!

[Dean Lofthouse]

Not by intention!!!! "Lofty" just a personal 'term of endearment' in my vocabulary!!

 

No worries.

[Amelanchier]

And you are taking the “in a manner likely to destroy” to apply to all the actions whereas it actually applies to the wilful damage part and the “cut down, lop, top, uproot” parts are all offence absolute.

 

Beat me to it.

 

With regard to the likelihood of prosecution angle it's worth remembering that the LPA has a duty under law to make provision for the preservation of trees and that there have been cases taken to the ombudsman against councils who have been too slack in pursuing that public interest duty.

[kevinjohnsonmbe]

For treequip,

 

here's an extract from a Salford council case history where trees were FELLED in contradiction to a TPO:

 

 

THE LEGAL BACKGROUND

 

The consequences of breach of a tree preservation order are set out in sections 206 and 210 of the Town and Country Planning Act 1990.

 

Section 206 provides for the replacement of trees, which have been cut down, uprooted or removed in contravention of a TPO. It is the duty of the landowner to plant another tree of an appropriate size and species at the same place as soon as he reasonably can, and the TPO will apply to the replacement tree(s) in the same way as it did to the original one(s). If it appears to the local authority that this duty has not been complied with, it may serve a notice on the landowner requiring him to replace the tree(s) within a specified period, and if the landowner fails to do so the local authority can enter the land and carry out the planting and recover the cost from the landowner.

 

So far as other penalties are concerned, section 210 states that anyone who, in contravention of a TPO, cuts down any tree or tops, lops or wilfully damages it in a way that is likely to destroy it, commits an offence, the penalty for which is a fine of up to £20,000 in the Magistrates Court. In the most serious cases a person may be committed for trial in the Crown Court and, if convicted, is liable to an unlimited fine.

 

There is also a lesser penalty for “other” breaches of a TPO – this would cover the situation where someone has not actually cut down the tree themselves, but has caused or permitted it to be cut down. In this instance the person/organisation that have given permission for the trees to be felled can be liable for a fine of up to £2,500. A prosecution for that offence needs to be commenced within 6 months from the date of the offence.

 

 

When considering any potential prosecution, the Council takes account of the Crown Prosecution Service guidelines and general advice regarding prosecutions. The Council needs to be satisfied that it is in the public interest to take proceedings, and it should be borne in mind that a prosecution does not in itself resolve the breach of planning control. This is why charges are generally brought where there has been a flagrant, deliberate act in breach of the TPO. The CPS code states that the first stage of the decision whether or not to prosecute is consideration of the evidence and what any possible defence may be, and how that is likely to affect the prosecution case. The advice of the Attorney-General was that it has never been the rule that suspected offences must automatically be the subject of prosecution.

 

Perhaps worthy of note, this discussion thread is based upon the question of that which is considered excessive pedantry in the application for PRUNING TPO trees. Best to keep a sense of perspective....

 

PS, if you can reference a case history of an arb contractor actually being prosecuted for PRUNING, I'll be impressed...

[daltontrees]

The general point is well made by treequip. There are two types of offence. The simplest one is to do unauthorised or unnotified work. The extent of damage and whether it will damage or setroy the tree is unimportant. The deed is a fact and the Council can prosecute and fines are on a fixed scale. The second involves wilful damage or destruction. The proof of that might be hard but the fines are in theory unlimited.

 

All this of course has no bearing on the original posting, if you have made an application and the Council doesn't know enough to foresee whether the proposed works will damage or destroy the tree it quite rightly can ask for more information. If it doesn't get it it can refuse or there will be a deemed refusal. There is a more subtle point though; if the Council doesn't know whether the proposed works will damage the amenity provided by the tree, it can quite rightly ask for more information. But there should in my view be a limit to the detail that the applicant needs to provide. The onus should be on what the desired outcome of the works is, and the Council should condition consents in a way that controls the extent of the works and allows for prosecution in the event of breach of conditions.

[kevinjohnsonmbe]

There’s quite a lengthy document from the Magistrates Association here:

 

http://www.magistrates-association-temp.org.uk/dox/Costing%20the%20Earth%20for%20MA%20with%20cover.pdf

 

And an extract from Section 210 of the Town & Country Planning Act 1990 (TCPA 1990) which provides that:

 

(1) 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.

 

I still see the ‘…in such a manner as likely to destroy it….’ As the key phrase.

 

Can anyone example case history to the contrary? I’m still looking….

[kevinjohnsonmbe]

PS. page 56

 

 

http://www.magistrates-association-temp.org.uk/dox/Costing%20the%20Earth%20for%20MA%20with%20cover.pdf