unintentional damage to TPO tree

[timbernut]

Why on earth didn't they just use a couple of slings with shackles for the swing?

[daltontrees]

All classic Arbtalk knee-jerk reaction. None of us have seen the tree, or the damage, or know the context, but of course the Council is wrong to err on the side of the law and investigate properly.

[Mull]

TPO's swings, LA, Jesus Christ the world has gone mad, so, does brexit mean kids can swing on trees again or not?

Was the tree near a food bank?

Was the food bank really necessary In the first place?

Does the kid need a swing?

Is a swing part of the human rights movement?

Probably!

[daltontrees]

Don't forget the tree's human rights being abused!

[Mull]

Don't forget the tree's human rights being abused!

 

 

I did consider that, but it's not a human, therefore doesn't matter!

[Mull]

So do I owe you a bottle of Jura or not after the yes no Scot ref vote?

[Gary Prentice]

All classic Arbtalk knee-jerk reaction. None of us have seen the tree, or the damage, or know the context, but of course the Council is wrong to err on the side of the law and investigate properly.

 

Well put.

 

I find it strange that an arboticulture forum should, in the main, choose to defend a TPO contravention.

[daltontrees]

So drilling holes in a tree to put up a swing isn't a wilful act? Of course it is. A wilful act has also been taken by the Courts to mean the same as a negligent act.

 

How often on this, and other websites, do you hear the wailing and gnashing of posters teeth when they are complaining about poor service or lazy officers when a criminal act is perpetrated but the enforcing authority, be it police or council, take no action. Then, when a criminal act is perpetrated and the enforcing authority, be it police or council, do act the same posters wail and gnash their teeth and complain about the heavy handedness and jobsworths doing the little person down.

 

This post is titled 'unintentional damage to TPO tree'. How is drilling holes in a tree to put up a swing unintentional. The tree was protected, wilfully damaging it is a criminal offence, a complaint was made, the council must investigate. As I said at the start, and others have reiterated, it will depend on the merits of the case what action is taken.

 

Ed

 

I am with you entirely on this. And clearly drilling holes is wilful. But the test is wilful damage, and within that there must also be a test of whether the intention of the act was to damage the tree. There must also be some de minimus cut-off.

 

I'm sure this has come up before a few times, and I recall concluding that it must fail to be enforceable as a strict liability offence because intent needs to be demonstrated. Then there's the whole issue of whether the damage is trivial and whether it would serve any public interest to pursue prosecution. And has the public amenity that the tree provides been reduced or lost as a result of the damage? If not, case dismissed in my mind.

 

There's a lot of people who wouldn't realise that screwing things into trees damages them. Yesterday I pulled 6 catherine wheels out of the stem of a tree. That's damage. And nailing them on was a wilful act. In a few years the tree would have had to swallow the nails and plastic bits. But it wasn't wilful damage.

 

Hence I think the concept of unintentional damage. If the intent was to put up a swing, it's a fair cop. But if the person that did it didn't intend to damage the tree in what they considered any material extent, then the damage was unintentional. Or at least, that's the defence that would have to be argued.

Edited July 4, 2016 by daltontrees

[daltontrees]

I did consider that, but it's not a human, therefore doesn't matter!

 

Sorry, I was just joining the Brexit bandwagon of blaming europe for imposing all that wishy-washy human rights stuff on everything. But Gove will repeal the TPO and Human Rights Acts so that nothing stands in the way of his scorched-earth policies. He probably had an unhappy childhood too, so swings will be banned.

[Gary Prentice]

Some interesting points of view Jules and Edward. Is there any case history or precedents that anyone is aware of? I find that unfortunately areas such as this seem grey and undefined with an outcome that's pretty much anyones guess.