daltontrees

Just for, practice, anyone want to figure out what this species of tree (not a shrub) is, from a single picture of a bud starting to elongate?

I woudl agree it is pointless incurring unnecessary expenditure on tree info for the whole site. However, it is not a question of whether the part of the site is 'likely to be used for development' (your words) but which parts of the 'site' (as defined in the registered application) would 'influenced or be affected by the development '.

Here's how I would see it. You gave a quote to do work, it was accepted and you now have a contractual obligation to do the work and the client has a contractual obligation to pay you for it on completion. However, your quote was broken down into headings and so it should be possible by mutual agreement to stop both parties' obligations after the felling or grinding stage and for you to get paid for the appropriate part of the job that you have done. What is important is that you make it clear to the client that you are handing over responsibility for replanting to him and that it is a condition of TPO consent for which breach carries penalties. Conscience clear, professionally closed.

If it's £200 net, take it. If it's £100, go climb a tree for £130 unless you want the experience and a less physical job. I've doen this sort of thing, and wandering around looking at trees it aint, it can be fast and tiring and you have to be decisive because the client can't be paying for you to pop back to the car to look things up in books too many times. If you miss a disease or pest and the client loses valuable stock due to something that could have been remedied a tthe point you missed it, you could be liable for commercial losses. So factor in your PI insurance.

I am saying that knowledge of an impending Order doesn't create the offence (the existence or otherwise of the Order does that) but that prosecution is more likely to succeed if there was evidence that enquiry had been made and that the owner/contractor was aware of the possibility that an Order might exist at the time of the work even if it had not been served. Just to be super-cler though, I am convinced that in a CA you would be in the clear if you gave notice, waited 6 weeks, heard nothing back then did the work. It really is on the Council to respond within the 6 weeks, that is what the stipulation of an exact timetable in the Act is for. What makes for an interesting supplementary question is whether that notice 'life' of 2 years grants immunity from prosecution for that work on that tree even if a TPO is subsequently made and served? I believe the only answer to that question can be yes.

A quick addendum. The last post might appear to conflict with my earlier posting o this thread but the earlier one related to confirmed orders adn the later to made orders. And as ever I could be wrong on both but I have given it some thought and done some research so I hope the suggestions help.

It happens up here too that the Council resists replying to the agent. I generally agree with the client beforehand that if the TO contacts them after a notice has been served then all communications be redirected to me and the temptation to discuss directly with the TO be resisted. That is the only way the progrees of a notice can be controlled and miscommunications eliminated. In the situation being discussed here, it seems very much simpler in a CA than not. If the 6 weks are up there is an immunity from prosecution adn the onus (in therms of natural justice) would be on the Council to make a AND serve it within the 6 weeks. If it's not in a CA and you enquired and were told no TPO, a prosecution that was pursued for infringing a TPO that had just subsequently been made but not yet served would certainly fail. If it's not in a CA and you didn't check before carrying out tree work but a TPO had existed for a while, prosecution should succeed. If, however, the TPO was made before the work was done but served after the work there might in theory be an offence committed. The first of two possibilities is that an enquiry was made and the Council said an Order was in the process of being made. The second is that no enquiry was made. In the first possibility, it is a sprint for the line and if caught in that situation and forced to play hardball I would be asking the Council to clarify at what date or meeting a decision on the making of the Order could be expected and I would hold that as definitive. Up to that given date I would expect immunity from prosecution. In the second possibility, I would expect prosecution for infringement of a brand new order to fali (after some argument) but for infringement of a longer-standing (confirmed and recorded) Order to succeed. Cracking question though...

Sorry, I didn't spot your last post. How is a moss bandage made and applied, and does it work? And how? Apologies if htis has been covered in another older post, please direct me there if it is easier.

I expect the Blue Book is best practice but not law, so the presumption initially would be that you had committed an offence. The Council would not have broken the law by not having a perfect on-line register, or even any on-line register. If it had been a really new TPO and the Council hand't quite added it to an existing list, would it really be a defence to say neither you nor the client were unaware of a brand-new Order? Older TPOs could be different. But the key wording in your question is the 'in reliance upon'. If the Council's website said something like 'if there are any TPOs in the area they are listed on this website' and you were checking if there were any older Orders, then plainly you have discharged your obligation by checking the website and the Council could not prosecute successfully. On the other hand, if the website said something like 'these are TPOs in the area that we have so far added to the website' you would not be on such solid ground. Ultimately a question of reasonability, and whether you had made all reasonable checks and if you had found what claimed to be a definitive source it would not be unreasonable to rely upon it.

Correction, I see from UKTC that you are still in Australia, hopefully we will hear from you in due course. For my part I only have one remaining question about QTRA which I will post when I get a little time.

That's a nice bit of research, thank you. But what hope up here when the fate of deciduous trees are not even in the hands of secondary legislation or guidance but are right royally f***ed by primary legislation? Apologies for the outburst.... but maybe her majesty will refuse to give assent and the poor broadleaved recipients of gormless MSP activity will be right royally unf***ed. Would get my vote against independence instantly. I tkae the point about death ensuing from excessive cutting. But the Act says nothing about that, it just gives a right to light. Again I fear for TOs that have to walk the fine line which willl be literally impossible for some broadleaf situations.

In the list of bands I would like to have seen live but never will, Alex Harvey is in top 5. As you might expect, ACDC with Bon Scott is also top 5. MAybe it's the SGs, maybe it's the attitude. Can't stand plastic modern pop personnel by comparison.

That Les Paul of mine, OK I know it's not an SG but it has a single coil option (it has 4 single coil options...) so you can get the thinner sound from it, but when it's not cranked up and you have it on humbuckers the combination of jazy mellow and sustain that lasts for about 5 minutes is a joy. I always fancied an SG though, but I think that's because I wish I could play like Agus Young. Even just a wee bit like him would do.

My Strat and Les Paul, the Stihl and Husky (in that order) of electric planks, don't you think?

I can't pretend to have any experience of the English system, but if there is any rule about not killing the trees it isn't in the Act it must be in guidance and a matter of sensible interpretation. Maybe you know how it is with conifers, though, you top a spruce and it gpoes into slow decline. Trees behind it lose companion shelter and are windthrown, domino effect follows and so forth. Not qute killing the trees due to High Hedge action, more like causing them to die. I expect then the TO will have to walk the fine line between allowing light in and not killing the tree. That wil be hard if the required height reduction is substantial.

My experience of how TOs up here feel is similar to yours. This new law is going to be hard to manage, especially on top of existing pressures and under-resourcing. There was some talk of the Scottish Goverment creating a Chief Tree Officer position in Edinburgh to try and produce better central guidance. Now, there's a pooisoned chalice, however well intended the idea is.

Well, funnily enough one of the concerns expressed by the Tree Officers Association was the situation where forestry-type shelter belts back onto houses and where a forced reduction could kill the trees by topping and destabilise the rest of the stand.

Next Royal Assent is needed. Yes, the braveheart independent scots must ask the Queen, 'scuse me ma'am but would it be alright if we have a law about high hedges? Then the Scottish Meenisters have to set a commencement date currently forecast as April 2014. Meantime guidance is to be drawn up for the poor reluctant Council Tree Officers who have to sort out the mess. The one glimmer of hope, being a surprisingly common phenomenon in my experience, is that the law will be so poorly understood that no-one will want to take it expensively to court and instead everyone will muck through and tiptoe around the difficulties. Ultimately the test is not so much about what a hedge is but whether and to what extent a group of boundary trees 'adversely affects the enjoyment of the... property... which an occupant could reasonably expect to have'. The lawyers are going to have a field-day with that. I think the wording differs a little from the English Act viz. 'height of the high hedge is adversely affecting the complainant’s reasonable enjoyment of the ... property'. Apart from teh grammar it is s slight improvement on the English wording because it relates to a hypothetical occupier rather than the actual occupier, thus leading to a more reasonable outcome, but nevertheless the measure of what an occupant 'could reasonably expect to have' is going to be very elusive and subjective.

Nicely said. If you have to lower bits you need CS41, if you are leaving any of the tree alive it is pruning, CS40 needed. If you can take it apart and throw or freefall every bit and if necessary fell the pole from the ground you just need CS39.

I am unashamed to be pedantic on this particular point. The Act says that it applies to hedges "which ... are formed wholly or mainly of a row of 2 or more trees or shrubs ..." So, firstly it has to be a hedge. Next for the Act to apply it has to meet the additional height, barrier to light and number of trees test. The dictionary definition of a hedge suggests a linear form or a boundary position. I think you can view the seemingly stupid opening wording of the Act as a relic of when it only applied to evergreen/semi-evergreens. Before being meddled with at the last stroke by MSPs who had no advice to guide them on the implications of the change because to that point they had accepted the advice not to make the change at all and so had not had to hear a full debate on what the knock-on effect of the change would be.

Very very helpful sir. This is the key though, the Parliament makes the law the courts decide it, in between the Tree Officer has to interpret it and get it right, if he gets it wrong and it is challenged in court the Council is to blame not the Government. I imagine it is tricky to get right with conifers but when you bring in broadleafs it has got to be almost impossible in some cases. The Government can produce all the guidelines it wants but they are not law. Once again, it is for Parliament to make law and for the courts to decide what it means. There are other examples in the Act where the language does not even make grammatical sense. How is the common man, the citizen of the land, to understand his rights and duties when the law is not even written clearly in his own native tongue? I find that quite depressing for the future of society.

Mr Av, I see you are back in the country as you have been posting about QTRA on UKTC. I would be interested to a completion of our education about QTRA here when you are fully unpacked and are taking a break from provoking your adversary on UKTC.

The fees are a bargain, even to the frugal scots. The people who will be using this law the most will consider the fees to be pocket money compared to the benefits and how mighty it will make them feel. There was quite a lot of debate about the fees. Even a suggestion that the hedge owner should pay the fees. The way I look at it is the applicant is gettting a right to light in perpetuity. Get two lawyers together to draft and agree a servitude right to light and record it in the public register and you won't get any change out of £1000. And why should the poor b***er who has to pay to have his hedge cut down for somebody else's benefit have also to pay for the legal process that protects that person's right in perpetuity? Thank goodness the suggestion of loser-pays fees was binned. Although without even this much quality of reasoning.

Ahh Mr Blair, the first to point out that it is bonanza time for tree cutters all over the country! I of course will try and get my fair share of that work. I am more disgusted witht teh lack of thought and the politicising that went in to this shabby law.

I believe the Council will be able to specify when the reduction is done, so nesting and breaches of the Wildlife & Countryside Act can be avoided. As a precaution I suppose Councils will always specify cutting out of nesting season for conifers.