daltontrees

I agree and have agreed that (subject to the Vale of Glamorgan get-out) somebody has to get it. And yes it's a matter of apportionment of blame. The 'any person' can be several persons. We're only differning on whether a cotractor can take a client's word for it if the client presents writtee evidence to him of a negative disclosure.

I know, but like Kevin I am holding back 1.95% just in case.

Does anyone on Arbtalk have a practical or theoretical knowledge of the CTLA tree valuation system that I could discuss with or ask a couple of clarification points?

Last bit first. We don't know what happened. It seems likely there is a TPO. I didn't say the contractor has a duty to alert, I said that 'one might argue that...', I was more interested in whether taking a customer's written records of the same searches that a contractor would have made are sufficient to absolve the contractor. I think they are, but you say 'That doesn't mean taking the customers/clients word for it.' We'll just have to agree to disagree, since think that such due diligence as is required of a contractor is just to know that someone checked and that there is a record of the results. I believe the word 'Any' is to make it immaterial whether it is an owner, tenant or occupier, and to include a contractor if the contractor was the guiding force behind the removal. But it doesn't mean the groundie and the climber and the brash rat and the guy who sharpened the saw are guilty. That was what was so edifying about R v Davey, the court was clear that the intention in the Act is to fingd guilty the person that caused or knowingly permitted the felling. An extension of that interpretation would I believe find a contractor wholly or largely responsible if he led a customer to believe that there were no restrictions or that the contractor had checked on their behalf and pretended there were none. Or just as bad, said he would check, hadn't and pretended he had. The courts don't apply laws literally where the outcome would be to punish the innocent. Punishment is a deterrent to others, a public 'flogging', an atonement for conscious wrongdoing, an encouragement of improved behaviour. I do not see that soiciuety's needs would be better served by punishing someone for taking a customer's word and evidence of a negative TPO search. Me, I'd defend my reputation in court until my life savings were gone and I was living in a tent outside the court. But we don't know the facts, so all we can do is rehearse arguments about the generalities. No offence intended. We're allowed to disagree, and God forbid that it is ever tested in court for either of us. I don't even like camping.

I'm slightly relieved that that link didn't work. Sorbus are dirty stop-outs, there's that many freaky hybrids it's like a whole series of the Jeremy Kyle show.

No-one really knows now what they did or did not do... I am thoroughly confused as to who checked what . I will until otherwise persuaded take it that the law intends to punish the person who caused the unlawful work to be done. It is not necessarily the contractor who is to be prosecuted, just because he is the person who felled the tree. If he was instructed to do it, his is merely the tool, not the intent. So we have s210 of rthe 1990 Act - 210 Penalties for non-compliance with tree preservation order. (1) If any person, in contravention of a tree preservation order— (a) cuts down, uproots or wilfully destroys a tree, or (b) wilfully damages, tops or lops a tree in such a manner as to be likely to destroy it, he shall be guilty of an offence." And you might say the 'person' is he who wields the saw. Or is it the groundy that pulled it over, or the trainee who put in the sink cut before the boss did the back cut? Or the climber who stripped it before the groundies felled the pole. Or the boss who gave them the job sheet? No, it's the person who decided it should be done. We saw in the appeal R v Davey (Poole), the judge says "the appellant was convicted of causing or permitting the wilful destruction of the tree, contrary to section 21O(1) of the Town and Country Planning Act 1990". [My emphasis] The appellant was the customer. The eejit with the saw was indicted too because he knowingly aided and abetted, and lied to the court too and was busted for it. Point is (again) it's the person who causes it who is in the wrong. There then comes the question of whose duty it was to check if there was a TPO. In Poole there was no doubt, the appellant knew and got his man to do the deed while the tree's owners were away on holiday (yes, it wasn't even the appellant's tree). One might argue that it's for a professional tree person to alert a customer to the need to check, but I would personally stop short of saying that he is not allowed to take his customer's word for it that the customer has checked. The contractor may have a duty to alert, but he has no duty to police. Just as he doesn't have to order a copy of a customer's title deeds if the customer says he owns a tree. I've never been caught out myself, but then I have laminated copies of every CA and TPO for 50 miles around. I have had people never call me back when I have alaerted them to the likely existence of restrictions, and in the circumstances I was glad not to be drawn in to wilful disregard of restrictions.

Looks like Sorbus intermedia to me.

If there is a TPO you have either been set up (and you have acted in good faith and have been wifully mislead bya customer) or the Council has failed to disclose it after diligent search (and a prosecution would fail, see my earlier reference to Vale of Glamorgan BC v Palmer and Bowles). If there isn't a TPO there's no case to answer. Let's be absolutely clear. Although felling a TPO'd tree is an outright offence and you might only hope to get a way with an admonishment (or a caution if you don't go to court) there is a valid legal defence that it's not an offence if you couldn't have known there was a TPO. Tell your brief to have a look at the case. My favourite quote about the law is that "The law is best applied when it is subservient to the honesty of the case". If you have done nothing wrong and have done what any reasonable person would have done in the circumstances you have nothing to fear. I am reminded of when I sold a house 2 years ago, and due to a completely innocent oversight I stood to lose £7k on a badly documented Green Deal contract for solar panels that we had. Technically I was in the wrong but the other party was trying to take advantage of my mistake even though they had not actually suffered any loss and only stood to gain something tehy had not intended to get. My solicitor, who has been in business for 30 years and knows his stuff told me I had no choice but to pay up. But I told him to tell the other side that I would take it to the Court of Session on one basis alone, that the outcome would be unfair. He said I was on a hiding to nothing. I stood my ground. The other side backed down. The circumstances are nothing to do with trees or TPOs but they are to do with solicitors not always being right, for whatever reasons. The other side I believe to this day knew that they would not win a case against an honest person who had not intentionally done anything wrong. Obviously I am in total gung-ho mode, so what I would do is not for all to follow. I wouldn't even go go court, I'd tell the Council that it's for them to prove that the TPO was available for inspection and to explain why they answered in the negative when enquiries were made. Assuming Kevin's entirely plausible conspiracy theory isn't instead true.

Ahh, further to my rant a few moments ago, I see you said 'client' rather than 'customer'. That's a different relationship, and a different duty to check may arise, depending on terms of appointment.

Yeah definitely doesn't add up. I suppose it's possible that a TPO was made shortly before or after purchase but not conformed, and therefore didn't turn up in conveyancing searches or enquiries. But the new owner should have been notified. I woud accept a caution in this case over my own dead body. IF all we hav ebeen told is accurate, it's ridiculous to expect a tree contractor to take the blame. I don't agree with Edward C, there are situations where it is not necessary to check independently. My standard discussion with customers is 'it is an offence to work on trees in a CA or a TPO, I or you should check.' customer says 'But I have checked, and I've just bought, so a TPO or CA should have turned up in searches, but it didn't so I checked with the Council and they said no CA or TPO.' Me, ' do you have evidence of that?' Customer, 'Yes'. 'Can you send me it?' 'Yes'. Sends it. It's true, LPA says no TPO. End of story, the Planning Acts do not delegate policing of trees to contractors, they say what's an offence and they say that LPAs have to make TPOs known and available for checking. Everyone acted in good faith. It is a valid defence to show tha the Order was not disclosable. This is covered in Vale of Glamorgan v Palmer and Bowles 1983 if anyone wants to check. You'd better do, because you daren't take Dr Charles Mynors MRTPI FRICS IHBC word for it, pop off then and get a law degree before chopping any more trees anywhere. And while I have Mynors' book open, I see he covers who is liable, the contractor or the customer. Well, if nothing else the Aiders and Abettors Act 1980 would leave the customer holding the baby in the circumstances that have been related here, because the contractor would have to have been 'reckless' as to whether a TPO existed. If indeed an offence has been committed in the absence of a discoverable TPO. Caution, my a#%$. I'd take my reputation to hell and back first.

Another interesting option is Gingko biloba 'Autumn Gold'

I've just read from the States that LIquidambar and Pin Oak are susceptible to iron chlorosis, so not good choices for this site.

Sorry to disagree so bluntly but ... https://forestry.usu.edu/trees-cities-towns/tree-care/preventing-iron-chlorosis Acer saccharinum and Populus tremuloides are both referred to in this article an poor choices for iron deficient sites, if that deficiency is as a result of alkali conditions, but even if not because of alkalinity, both will suffer iron chlorosis. Not good choices. Pin Oka does not like wet ground, I have direct experience of this. Coming up with a better answer is tricky. My suggestion would be Claret Ash Fraxinus angustifolia subsp. oxycarpa. excelsior has a preference for chalky soils and is particularly good at dealing with low iron conditions, but I can't find any info on angustifolia's tolerance. Amazing autumn colour, though. Worth a look?

I hope he is at peace now. He had a rare talent for making sadness beautiful. I'll be listening to Midnight Organ Fight forever. Even the title is a brilliant funny bitter euphimism.

You're right. Opposite leaves. I can't believe I didn't get this myself. Thanks.

Thanks.

Can anyone help me identify this shrub? A dense evergreen jumble currently abuout 4m high.

What species is it?

What the f*** typical gung-ho Arbtalk advice that doesn't know the legal liabilities. I had a serous situation last year with a nesting bird preventing felling of a really big knackered tree, and we are talking killer 30m high mature tree over a hotel dining room. It was a TPO, and I notified immediate removal under exemption. but when I checked whether there was an exemption under Wildlife and Countryside Act the 'public safety' exemption didn't apply. SNH basically said that private safety did not trump WCA prohibitions. We waited till a scabby wood pigeon left of its own accord, then the tree was removed sharpish. Just be careful of Arbtalkers saying safety first, they won't be beside you in court giving evidence pleading in mitigation. Probably a good thing that they won't. There's such thing as an in-credibe witnessesi. 'specially internet ones.

It does answer it, it's just not that helpful. And I don't know why I didn't just look up Mynors book on tree law. I have now done so and it confirms my research. He adds "It is unlikely to be used much in practice, but it may provide a useful back-up for railway operators seeking to have trees removed by agreement, in their negotiations with intransigent owners of neighbouring land". There we have it. Cost and process are possible deterrents for NR. It levels the playing field substantially.

I'm relieved to see someone else notice a lot of conifer 'burn'. I've had two call-outs to report to existing clients on diagnosis and prognosis, as they are both worried that their ornamental conifers are dead. Both sites are exposed and rural. I think the damage was done, though, in early March and the gradual browning is showing badly now against the vivid colours of new growth.

Every time this comes up I end up reaching the same conclusion. Entertaining as the debate is about ladders and whether it's risky to do work over railside, the question hasn't been addressed. As far as I can tell, the only legal basis for NR to intervene and do the work is the Regulation of Railways Act 1868 which says that - "If any tree standing near to a railway shall be in danger of falling on the railway so as to obstruct the traffic, it shall be lawful for any two justices, on the complaint of the company which works such railway, to cause such tree to be removed or otherwise dealt with as such justices may order, and the justices making such order may award compensation to be paid by the company making such complaint to the owner of the tree so ordered to be removed or otherwise dealt with as such justices shall think proper, and the amount of such compensation shall be recoverable in like manner as compensation recoverable before justices under the Railways Clauses Consolidation Act 1845." The process has been streamlined with delegated powers, but that's basically the law. If you report it as dangerous, NR can force you to remove it. I've read the compensation provisions in the 1845 Act, and they don't amount to NR paying for the work. It's hard to see an argument succeed that the removal of a dangerous tree could result in compensation to the owner of the tree. And since neither the 1845 Act nor the 1868 Act allow the railway company to remcover the expense of removing a tree, the most likely outcome is that NR would neither pay out nor be paid. Many people on Arbtalk, including myself, have experience of NR being pretty foreceful in these situations, raising threats of negligence, death and destruction. That's their prerogative. They might lean heavily on the tree owner to remove the tree, and charge (as has been said here) for someone to watch it being done, plus life-sapping H&S procedures.

Poole is where another guy got fined £150k for illegal removal of TPO'd trees a few years ago.

Bow before the Queen, lowly subject. The assembly of her commoners have in her name decreed it thus. Her law is law even in your aspirationally distinct part of her realm.

I'd give you 'instigate a legal process whereby'. There's no-one more pedantic than the courts, and one doesn't want to go there on a vague misunderstanding, because someone there will be a professional pedant and might just edify you in a thoroughly humbling way.