Conservation area tree works

[skyhuck]

Put it this way, TPOs are now served promptly.

 

[john k]

It's the law of contract. As long as the condition is not 'unfair' (Unfair Contract Terms Act 1977), it seems clear enough that parties can agree between themselves who tkaes repsonsibility for doing (and not doing) what.

 

R v Bournemouth Justices, ex parte Bournemouth Corporation (1970) established the offence of "causing or permitting" but doesn't exonerate the person carrying out the work.

 

Contravening a TPO is a legal offence. You can't contract out of that.

[daltontrees]

R v Bournemouth Justices, ex parte Bournemouth Corporation (1970) established the offence of "causing or permitting" but doesn't exonerate the person carrying out the work.

 

Contravening a TPO is a legal offence. You can't contract out of that.

 

That's not what I said. Firstly it's not a TPO it's a CA. Secondly, what I was saying was that if there is a contravention, either the contractor or the tree owner, or both, could be the guilty party.The contractor can contract out of this possible responsibility. An example of an unfair contract term would be to contract out of responsibility for the offence but not contract out of responsibility for making sure no offence was committed.

[john k]

That's not what I said. Firstly it's not a TPO it's a CA.

The situation is effectively the same. The application/notification is different, but unauthorised work is an offence either way and carries the same penalties.

 

Secondly, what I was saying was that if there is a contravention, either the contractor or the tree owner, or both, could be the guilty party.The contractor can contract out of this possible responsibility.

 

S211 of the Town and Country Planning Act 1990 states:

 

(3) It shall be a defence for a person charged with an offence under subsection (1) to prove—

 

(a) that he served notice of his intention to do the act in question (with sufficient particulars to identify the tree) on the local planning authority in whose area the tree is or was situated; and

 

(b) that he did the act in question—

 

(i) with the consent of the local planning authority in whose area the tree is or was situated, or

 

(ii) after the expiry of the period of six weeks from the date of the notice but before the expiry of the period of two years from that date.

 

I don't know of any case law where a contract has been accepted as a defence in this situation (I'd be happy to be wrong in this though). It might be helpful in mitigation, and it might even persuade the LPA to prosecute the land owner and not the person who actually did the work, but I certainly wouldn't want to be relying on it.

 

I've just looked at your web site and you have way more experience of tree law than I do so you're probably right. What's the case law that establishes this ability to contract out from a legal responsibility in this case?

Edited June 20, 2015 by john k

[daltontrees]

The situation is effectively the same. The application/notification is different, but unauthorised work is an offence either way and carries the same penalties.

 

 

 

S211 of the Town and Country Planning Act 1990 states:

 

(3) It shall be a defence for a person charged with an offence under subsection (1) to prove—

 

(a) that he served notice of his intention to do the act in question (with sufficient particulars to identify the tree) on the local planning authority in whose area the tree is or was situated; and

 

(b) that he did the act in question—

 

(i) with the consent of the local planning authority in whose area the tree is or was situated, or

 

(ii) after the expiry of the period of six weeks from the date of the notice but before the expiry of the period of two years from that date.

 

I don't know of any case law where a contract has been accepted as a defence in this situation (I'd be happy to be wrong in this though). It might be helpful in mitigation, and it might even persuade the LPA to prosecute the land owner and not the person who actually did the work, but I certainly wouldn't want to be relying on it.

 

I've just looked at your web site and you have way more experience of tree law than I do so you're probably right. What's the case law that establishes this ability to contract out from a legal responsibility in this case?

 

I think it is useful to appreciate that clear law, whether statutory or common, does not generate case law. Case law is only part of law to fill in the blanks in otherwise established principles. The idea that parties to a contract can stse tha tey are not responsible for situations that might arise is so ancient and so well established that it has been enshrined in common law probably for a good 1000 years, possibly even 2000 years.

 

It's so fundamnetal that it's not even tree law, it's just law. For specifics like Conservation Areas, there doesn't need to be case law for it to be clear what it means. Mynors did speculate that it needed clarified (not changed, but clarified) but I think it has remained robust.

 

Anyway, it's not any sort of competiton about who knows more about law here, all I am saying is that I have contracted out of responsibility and I believe it is cmpetent to do so. Whether I am right has never been tested on me because either my customers have alwasys been honest or because the Council hasn't caught them or cared. I don't know and I don't need to know.

 

Woudl I still do this? Yes, I did it this week with a new client. Obviously I can't breach confidentiality by explaining the details, but basically CA notification is proably required, he/she thinks he/she has it covered and on that basis will take responsibility, and I will be doing the work in 2 weeks' time without seeing any CA paperwork or case law.

[john k]

The idea that parties to a contract can stse tha tey are not responsible for situations that might arise is so ancient and so well established that it has been enshrined in common law probably for a good 1000 years, possibly even 2000 years.

 

I understand that parties to a contract can agree who is responsible for what, but I'm struggling with the idea that someone can commit a criminal act and be blameless because someone else has contracted to take responsibility for it.

 

There must be more to it than just having a contract. If I was hired as a hit man, the contract from my employer absolving me from the consequences of knocking someone off is unlikely to be very useful.

 

Presumably you'd also need to have good grounds for believing that what you're doing is legal. Is there some sort of established test of reasonableness?

[bolthole]

I understand that parties to a contract can agree who is responsible for what, but I'm struggling with the idea that someone can commit a criminal act and be blameless because someone else has contracted to take responsibility for it.

 

There must be more to it than just having a contract. If I was hired as a hit man, the contract from my employer absolving me from the consequences of knocking someone off is unlikely to be very useful.

 

Presumably you'd also need to have good grounds for believing that what you're doing is legal. Is there some sort of established test of reasonableness?

 

This could all probably be settled with a quick call to the TO or planning office.

 

Or did I miss that bit?...

[Gary Prentice]

This could all probably be settled with a quick call to the TO or planning office.

 

Or did I miss that bit?...

 

First post "I have checked on council website and I'm unable to find detail, and as yet unable to get hold of tree officer. "

[daltontrees]

There must be more to it than just having a contract. If I was hired as a hit man, the contract from my employer absolving me from the consequences of knocking someone off is unlikely to be very useful.

 

That would be a pacta illicita and would therefore be void, protecting no-one.

[daltontrees]

I understand that parties to a contract can agree who is responsible for what, but I'm struggling with the idea that someone can commit a criminal act and be blameless because someone else has contracted to take responsibility for it.

 

That's still not the point. How many tree conbtractors go onto someone's land and cut down trees without the owner's permission. Rare. So if it can be assumed tha thte contractor is working for a land owner, it can be assumed (the law will assume an unwritten contract) that a contract exists.

 

So whose decision is it to commit the Act? The landowner. Whose fault would it be to ignore CA controls? The landowner. It's then just a question of the owner and the contractor having decided between them whose job it was to check.

 

The only excuses the landowner could offer was that he wasn't aware of the CA or that he wasn't aware that CAs protect trees or that he had to notify the Council or that the penalties fir failing to do so could be harsh. That is why I always tell custoomers about all these things. And then if required I agree with it the customer that he will check and notify, not me. This to me is s amuch better situation than not saying anything about whose responsibiliy it is. If nothing is said the potental for oversight is high and the consequences for prosecution and argument about blame is high also.

 

I get it out in the open. Very low chance of oversight and, in my opinion (which is what matters to me in each case), no chance of me being prosecuted for the landowner's failings or attempted sneakiness.