TPO tree taken down with out consent

[daltontrees]

Hi Jules,

 

Can councils not prosecute contractors up your way then? down here yes. They was a fairly high profile one last year in Poole. House owner got hit for 150k ish, tree surgeon for about 2k. That was basically cos the house owner had made the bigger gain or so I am told.

 

I'm going to answer this in a few chunks, probbaly most people will find this boring but I have done the research so I may as well share it here.

 

SCOTLAND V ENGLAND

The offence in England is in the current Regulations, here abridged to

"no person shall cut down .... any tree to which [a TPO] relates, or shall cause or permit the [cutting down of] such a tree, except with the written consent of the authority"

 

In Scotland it's in the primary legislation and the equivalent is -

"If any person, in contravention of a [TPO] cuts down a tree, ... he shall be guilty of an offence."

 

As I will explain below, I don't think that this means in Scotland that you are off the hook if you get someone else to cut your tree down.

 

THE POOLE CASE

 

I have only seen the appeal judgement. The appeal related only to the person who told the tree surgeon to do it. The appeal related only to the applicability of the Proceeds of Crime legislation. The original decision was in Bournemouth Crown Court. I have not seen that judgement. Mr Davey's fine was £150k, including value added to his house by improved views.

 

In the case, it is at least clear that the tree was not even on Mr Davey's land, and he knew it. He got his neighbour's TPO'd tree cut down. There is nothing in the judgement to say that the tree surgeon's relatively paltry fine of £2k was for breach of TPO. It could have been for proceeds of crimes including criminal damage and trespass.

 

So, I don't think this judgement in itself is proof of the ability of COuncils to fine contractors. Even if the Crown Court had done that, it was not appealed and could have been a flawed decision.

 

MAGISTRATES COURTS ACT

 

I suppose smaller prosecutions than the Poole case are handled by the MAgistrates Courts. Section 44 of the Magistrates' Court Act 1980 provides that any person who 'aids, abets, counsels or procures the commission by another person of a summary offence' is guilty of the like offence. That seems to open the way for contractors to be fined too.

 

THE CONTRACTOR'S POSITION GENERALLY

 

However, aiding or abetting is only punishable when the aider or abetter knows that it is a crime he is aiding or abetting. If a contractor innocently helps bring about a crime or asks if the customer has checked for restrictions and is told yes, it is nothing short of ridiculous for the law to prosecute him. What benefit would arise? Well, the only one I could think of would be scaring the industry into becoming tree police for the Council. That is clearly clearly not the law's intention.

 

The English Act is more explicit about whether a tree is merely cut down or is caused ot permittedto be. But fundamentally this cannot change the basic point. Trees don't move. They go with the land and so the resonsibility for them and for adhering to laws relating to them (like Occupiers Liability Act) rests with the occupier (usually but not always the owner).

 

The offence of cutting down applies to when an occupier does it himself, and to close a potential loophole you can't wriggle out of it because you got someone else to do it, or turned a blind eye while it was done. In Scotland we don't even see it as a loophole and don't have to spell it out, that is why our wording is simpler.

 

If a contractor cuts the tree down and has been appointed to do so by the customer, the customer is very very obviously causing the the to be cut down. Unless the contractor knowingly aids or abets this (i.e. knows it is wrong but does it anyway), he is blameless.

 

THIS AND SIMILAR CASES

 

I think the OP is blameless. If a prosecution went ahead, it would be his word againstthe customer's. And if a court couldn't decide who was tellign the truth, the default position in my mind is that the occuier is guilty. If the ofccupier disagrees with the judgement, he can sue the contractor on the balance of probabilites principle.

 

Me? I'd say nothing to nobody. I checked, the occupier said he knew of the TPO and that it was OK. Note in my diary to that effect. Invoice and payment on file. QED. If prosecuted or offered a caution I'd fight it till I was penniless, and then I'd keep on fighting. Who'd want to accept living in such an unfair society if something could be done about it to set the record straight for every Council in the land. Councils get these things wrong, all too frequently. Well, England anyway. Till I move there, which is not anytime soon, I am satisfied that my view on how the law would be interpreted if push came to shove is about right.

[treequip]

So you basically accepted what amounts to a conviction for felling 3 DEAD trees in a CA?????? WOW

 

Breach of statutory protection is an offence absolute so if you are in breach and they are bent on action you are going to have to take it on the chin.

 

Better their mickey mouse caution than a conviction, cost, stress etc.

[daltontrees]

Bet the client and the Council were quite relieved that someone took the rap for their lies and incompetence.

 

Better no caution than a caution. Oh well, I suppose we all have different priorities...

[Chris at eden]

I'm going to answer this in a few chunks, probbaly most people will find this boring but I have done the research so I may as well share it here.

 

SCOTLAND V ENGLAND

The offence in England is in the current Regulations, here abridged to

"no person shall cut down .... any tree to which [a TPO] relates, or shall cause or permit the [cutting down of] such a tree, except with the written consent of the authority"

 

In Scotland it's in the primary legislation and the equivalent is -

"If any person, in contravention of a [TPO] cuts down a tree, ... he shall be guilty of an offence."

 

As I will explain below, I don't think that this means in Scotland that you are off the hook if you get someone else to cut your tree down.

 

THE POOLE CASE

 

I have only seen the appeal judgement. The appeal related only to the person who told the tree surgeon to do it. The appeal related only to the applicability of the Proceeds of Crime legislation. The original decision was in Bournemouth Crown Court. I have not seen that judgement. Mr Davey's fine was £150k, including value added to his house by improved views.

 

In the case, it is at least clear that the tree was not even on Mr Davey's land, and he knew it. He got his neighbour's TPO'd tree cut down. There is nothing in the judgement to say that the tree surgeon's relatively paltry fine of £2k was for breach of TPO. It could have been for proceeds of crimes including criminal damage and trespass.

 

So, I don't think this judgement in itself is proof of the ability of COuncils to fine contractors. Even if the Crown Court had done that, it was not appealed and could have been a flawed decision.

 

MAGISTRATES COURTS ACT

 

I suppose smaller prosecutions than the Poole case are handled by the MAgistrates Courts. Section 44 of the Magistrates' Court Act 1980 provides that any person who 'aids, abets, counsels or procures the commission by another person of a summary offence' is guilty of the like offence. That seems to open the way for contractors to be fined too.

 

THE CONTRACTOR'S POSITION GENERALLY

 

However, aiding or abetting is only punishable when the aider or abetter knows that it is a crime he is aiding or abetting. If a contractor innocently helps bring about a crime or asks if the customer has checked for restrictions and is told yes, it is nothing short of ridiculous for the law to prosecute him. What benefit would arise? Well, the only one I could think of would be scaring the industry into becoming tree police for the Council. That is clearly clearly not the law's intention.

 

The English Act is more explicit about whether a tree is merely cut down or is caused ot permittedto be. But fundamentally this cannot change the basic point. Trees don't move. They go with the land and so the resonsibility for them and for adhering to laws relating to them (like Occupiers Liability Act) rests with the occupier (usually but not always the owner).

 

The offence of cutting down applies to when an occupier does it himself, and to close a potential loophole you can't wriggle out of it because you got someone else to do it, or turned a blind eye while it was done. In Scotland we don't even see it as a loophole and don't have to spell it out, that is why our wording is simpler.

 

If a contractor cuts the tree down and has been appointed to do so by the customer, the customer is very very obviously causing the the to be cut down. Unless the contractor knowingly aids or abets this (i.e. knows it is wrong but does it anyway), he is blameless.

 

THIS AND SIMILAR CASES

 

I think the OP is blameless. If a prosecution went ahead, it would be his word againstthe customer's. And if a court couldn't decide who was tellign the truth, the default position in my mind is that the occuier is guilty. If the ofccupier disagrees with the judgement, he can sue the contractor on the balance of probabilites principle.

 

Me? I'd say nothing to nobody. I checked, the occupier said he knew of the TPO and that it was OK. Note in my diary to that effect. Invoice and payment on file. QED. If prosecuted or offered a caution I'd fight it till I was penniless, and then I'd keep on fighting. Who'd want to accept living in such an unfair society if something could be done about it to set the record straight for every Council in the land. Councils get these things wrong, all too frequently. Well, England anyway. Till I move there, which is not anytime soon, I am satisfied that my view on how the law would be interpreted if push came to shove is about right.

 

 

Interesting points Jules. One thing I would say though is that TPO contravention is a strict liability offence so as far as I am aware saying they did not know they were doing wrong does not make them blameless.

[Wood wasp]

Fair points Jules but does the "ignorance is no defence" rule not kick in at some point?

[daltontrees]

Interesting points Jules. One thing I would say though is that TPO contravention is a strict liability offence so as far as I am aware saying they did not know they were doing wrong does not make them blameless.

 

I agree, ignorance can never be a defence. But what I am really saying is that I think the Act is intended to deter the person who owns the tree. When a contractor cuts down a tree, the offence that has really been committed is that the tree's owner has caused it to be cut down. The offender is the tres owner, not teh contractor. Sure, it's always gong to be easier to misinterpret the Act and puruse the easy target of the contractor covered in sawdust with a load of chip in his truck. But that CANNOT be the intention of the law. The amenity of an area will only be protected by deterring the tree's owner from doing what is wrong.

 

Yeah, I reckon I'd take a defense on that basis all the way. If Council Tree Officers want to try and turn contractors into tree police, they should give them part of trheir budget to do so instead of chickening out from pursuing the real culprit i.e. person who made the decision to break the law.

 

None of this applies, of course, when a contractor as a business service undertakes to do the checks for a tree owner. That is a separate matter.

[toxicity2182]

Can't believe this is an issue. It takes 2 minutes to make the enquiry regarding TPO's and conservation areas, etc. Just have a template ready to go. Even when I was doing cashers at weekends in my teens and early 20's I was doing this. I've rarely heard of the customer organising all the relevant permission and in the rare cases they have done, I asked for a copy. Why would you not do this?

[Wolfie]

In recent months a client and myself had an honest mistake working on a group TPO of trees.

 

Since then and because of the recent case, which is still open, i refused to remove a regular customers Pine tree as i wasn't 100% certain that it was ok.

Because the tree is close to the house and causing very large lumps in his drive, the client had applied for removal of the tree (conservation area) on two occasions over the last few years. Both times the council tried to put a TPO on the tree. Don't know what happened after the first attempt but was shown the letter after the second attempt which stated something along the lines of "due to a split decision by the planning committee it will not be progressing with the TPO".

My thinking is that no TPO but still covered but still covered by CA. I'm unsure so client will be getting someone else to do it.

The TO's won't take direct calls or emails, the council call centre couldn't clarify and said use public access website - also useless. What are you suppose to do??

[daltontrees]

What are you suppose to do??

 

Fresh s.211 notification and wait for 6 weeks. If Council does f.a. you are immune from prosecution.

[Kveldssanger]

A better tip would be to check for TPO's before hand.

 

Absolutely. I am always welcoming of calls from contractors enquiring as to whether a tree is TPO'd.

 

The lady should have been aware they were preserved. That aside, you should always check - call the Planning Department at the council in question and it's literally going to take you two minutes.