daltontrees

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.

Did anybody respond to this consultation? It closed on Friday. And if not, was it so perfect that no resposnes were needed? Or was it thought unnecessary, or was it too much like hard work to try and understand it?

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...

What's that music, Tim?

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.

I don't quite understand. There is no right of appeal against the making of a TPO.

I'm glad I don't live in Englandshire where there seems to be sucha broad acceptance of what appears on the face of it to be a regular misinterpretation of the TPO law by Councils if they are prosecuting contractors. I would fight them to the death if they tried to press me to accept a caution or to prosecute me in this situation.

If you've been naughty the courts will decide. Tghey dont care about red tape. I say all you need is a reasonable command of english and a dictionary for back-up. No point in taking definitions from one Act that is there largely for convenient abbreviation and for specific purpose, and trying to apply it out of context to another Act.

I disagree, the FC's original remit, although somewhat diluted now, was to create and preserve an adequate national stock of timber. Didn't matter whether the tree was woodland or otherwise or if it was felled, sectioned down or whisked away with a helicopter. Nothing to do with woodland cover. Everyone has their own 'rule of thumb' for FL exemption, but there's only one rule that counts and that's the one that's in the Act. There are enough examples of prosecutions and admonishments and near misses to suggest that the FC can and will get pretty pedantic about the definition. I'd never advise a client to take a chance on it. The exemption definition is so succinct that I find paraphrasing of it unnecessary - "in an orchard, garden, churchyard or public open space"

I see, it's in PPG17. It's saying that school playing fields may be of public value as open space when considering the supply of recreation facilities in an area.

For the record, the exemption is for "prevention of danger", the dead/diseased/dying is not an exemption. It was under the old Planning legislation for TPOs, but even that has been superseded by "dead" and "urgently necessary to remove an immediate risk of serious harm". That's England anyway. Somewhat different rules in Scotland.

I can't find this reference in any of the Acts. Is that the 1990 Act and did you mean s106? That Act seems only to define “open space” for some Planning purposes as "any land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground" The exemption for felling licenses is for 'public open space', which I think is a different matter. The whole exemption is "felling of fruit trees or trees standing or growing on land comprised in an orchard, garden, churchyard or public open space". I don't think it entirely safe to assume that the definition from a Planning Act can be applied to the Forestry Act which is after all from 1967 and predates almost all current Planning legislation. Even takign a plain view of it, are school grounds 'public' spaces? Yes the public go there but only for a specific purpose. Try randomly having a picnic in the grounds or walking your dog and you'll soon get chased. Yeah, still too risky for me or my customers.

Sorry, short of time tonight and I am in 'straight to the point' mode. See school trees thread post a few minutes ago. I hate to see vague advice left hanging, if I can suggest a clarification that i have researched thoroughly. Will no doubt regret tomorrow seeming like pedantic and rude anorak-type...

School a domestic curtilage? Risky! Wouldn't recommend unlicensed removal based so;e;y on 'arboricultural advice' either. As with my previous post, if 'custon and practice' shows that certain activites are considered by the FC to be outwith the legislation then fair enough, but unless I saw genaralities like schools, 'open grown' or arboricultural advice covered by FC guidance I would always err on the safe side.

I see, a matter of common practice rather than what the legislation says.

I don't understand that. The exemption is for "orchard, garden, churchyard or public open space". How is school grounds exempt?

Presumably http://arbtalk.co.uk/forum/general-chat/80871-school-trees.html

Sorry, but I disagree. If you apply for felling of 10 cube in a quarter, you can fell up to 5 cube (for use, not for sale) in a quarter while awaiting approval for the other 5 cube. If you want to get fancy about it, apply for and get approvial for 10 cube so that the 5 cube exemption can be used elsewhere by you and/or in the holding. Surely there is, strictly speaking', no such thing as a "non license application"?

You haven't said enough to be able to help. Are the trees dangerous? Is their total volume of wood more than 2 cubic metres?

I'd say so. Decurrent to near decurrent gills, white-ish. Faintly scaly cap. Almost white partial veil ring. On conifer, clustered, with fairly untapered stem.

You mightn't be surprised to hear me disagreeing a little with this. The relevant questions might just as easily be ... Is this a client to whom you have professional responsibility in return for payment for investigating land ownerships? Are you qualiified to do this kind of investigative work? Do you normally carry out ownership checks on land on which you have been asked to provide a quote for work? If not, why would you be expected to do so in this case? You don't ask the cli... customer for a waiver (not a 'wilful blindness'), all you need to do is record that in case there is any doubt as to whether it was you or the customer that had responsibility to check, it was the customer's responsibility. You're just a contractor, you are probably not qualified even to speculate about ownership never mind check it. That would be a solicitor's job. I don't see this being the same as TPOs/CAs. Ownership is largely a matter of common law. TPOs etc exist purely from statute, and the Acts are very clear that it is an offence to carry out unauthorised work, or cause or knowingly permit it. This opens the way for prosecution of contractors whose specialism is trees and who would have an implied duty to check or at least to advise the customer to check. It would make a mockery of the Act if it were left open to avoid prosecution by a customer claiming that he thought you were checking and you claiming that you thought he was checking. Ownershp checking has no equivalent Act creating an implied duty. I'm not looking to argue about it, but because people on this forum rely on advice they are given, I thought it appropriate to leave a fuller explanation of this side of the opinion divide here. In conclusion, don't ask for a waiver, just state that you haven't checked.

Should do, but in future it would be better still nit to acknowledfge that there is an unknown ownership issue, just say ""I have not investigated nor have I been entrusted to investigate ownership of the land, and your written (email) acceptance of this quote will imply that you have satisfied yourself that you have researched and obtained all necessary consents for us to carry out the work". Something like that anyway.

Looks like it already was stronger than the other two. What strengthens trees is them standing up naturally to wind. If you support them you will weaken their natural strength. If they are too tall and have a large wind resistance and you are worried that they are close to blowing over in strong winds, you could reduce them a bit. As little as you can get away with.

Aye, quite! Am i right in saying you're just the contractor being asked to do the job, nit the adjacent landowner? If so, much as everyone here is mucking in as usual with innovative suggetions, the simplest solution for you is to tell the customer that you are not qualified or able to determine his legal rights to have you remove the tree, that you are just a contractor and that if he instructs you to remove the tree (get this one in writing, even an email!) then you will do it. What is important is that he knows that he cannot rely on you having done any checks. If he baulks at this, walk away, because he is probably trying to set you up to take the rap for something he suspects is dodgy.

Gorgeous, I love the simplicity. Good sustain? Does it cut a groove in your shoulder with the strap?