Had tree professionally cut but did not know it had a TPO

Had tree professionally cut but did not know it had a TPO

Postby starwarsclark » Mon Mar 03, 2014 11:55 am

Hello to everyone, first time post in this forum. I was advised to join and post here as the advice given by you all is excellent, so here goes. Sorry if the post is a bot long.

I hope someone can offer some advise please. Basically we had the height of a tree in our garden reduced as it was overhanging the garden, which left us with little light in the garden, the tree also overhung a road at the rear of the garden. The tree was professionally cut and a few months later we found out that there was a TPO on it. This was discovered after the council came round to look at a neighbours tree, who was going to cut her tree when her other neighbour told her about the TPO (she did not know there was one or was not aware of one being in place) and they noticed we had had the work done. We then received a letter advising us that we had committed an offence. So we wrote to council who have written back to say that they wish to review more evidence prior to any criminal proceedings taking place! We wrote back explaining that it was done in error and that our neighbours tree has now been cut, after her getting approval, and it looks almost identical to ours. The council has now replied with a letter that says that they need more info all "under caution" and that we have committed a criminal act.

My wife is distraught and is now worried about getting a criminal record and the unlimited fine they are referring to. We have spoken to a solicitor who has advised us to go and see the council to discuss it further, we will do this as soon as we receive the "under caution" letter.

The council said to my wife when she first called "We will continue to look into this matter and may prosecute if it is in the public's interest to do so" I fail to see how what we have had done is in the public's interest, surely the council spends money sorting this out, so do we, and no-one really gets anything out of it in the end. I can't sellotape the bits of tree back on!

Does anyone have any advise as to what may/may not happen please? I know ignorance is not a defence but we did not know there was a TPO on the tree.
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Re: Had tree professionally cut but did not know it had a TP

Postby arborlad » Mon Mar 03, 2014 12:38 pm

starwarsclark wrote: The tree was professionally cut and a few months later we found out that there was a TPO on it..



If he was local and well established, they generally know what trees or areas are likely to be covered by TPOs or Conservation Area status, any doubt and they usually have the relevant TOs number on speed-dial.




My wife is distraught...........The council said to my wife when she first called "We will continue to look into this matter and may prosecute if it is in the public's interest to do so"



The response from the council is fairly standard in these circumstances, when a developer deliberately flouts TPOs, they are quite correctly prosecuted to the fullest extent of the law, I don't think your situation merits that. The public interest element will be partly about any future deterrant aspect but also how seriously the actions impact, not just on the individual tree but also the street scene and the overall skyline.
Last edited by arborlad on Mon Mar 03, 2014 1:16 pm, edited 2 times in total.
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Re: Had tree professionally cut but did not know it had a TP

Postby MacadamB53 » Mon Mar 03, 2014 2:38 pm

Hi starwarsclark,

"We will continue to look into this matter and may prosecute if it is in the public's interest to do so"
they may decide it would not be in the public's interest to spend public money on prosecuting an individual homeowner who has made a genuine mistake, rather than spending it prosecuting an individual/group who have knowingly committed the same offence for personal gain or to the detriment of the locale.

That is what I think they mean with this stock response.

I'd just try and forget about it - they would have been far more specific if they were certain about the prospects of a prosecution.

All my non-expert, unqualified opinions.

Kind regards, Mac
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Re: Had tree professionally cut but did not know it had a TP

Postby starwarsclark » Mon Mar 03, 2014 3:11 pm

Thanks for everyone's reply, I would have thought that people cutting trees and forgetting they had, or even knew they had, a TPO on it was fairly common.
It was a genuine mistake but it seems so heavy handed of the council to use words such as "under caution / criminal act" etc.
I believe the maximum fine for lopping, not killing, a tree without consent is £2500 - Does that seem correct please?
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Re: Had tree professionally cut but did not know it had a TP

Postby TO » Mon Mar 03, 2014 3:19 pm

Hi

The first thing I will say is that the work was not done professionally if the contractor didn't check to see if the tree was protected.

There are two offences. Destruction of the tree, and damage to the tree. The first can carry an unlimited fine, the latter a fine of up to £2,500.00.

What the Council have to prove is that the tree was protected at the time of the offence, works were carried out to the tree, and the works were carried out or permitted by the defendant. Ignorance of the existance of the TPO is not a defence. The OP appears to have confessed all in their corespondance. So far so bad.

Your best chance is to make the case that had you applied to do the work consent would have been forthcomming. If the Council argue that consent would not have been forthcoming then you need to make the case for the lesser offence, that is damage.

On the bright side it is unlikely that the Council would pursue a prosecution in the Crown Court. In the Magistrates Court the maximum fine is just £20,000.00

TO
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Re: Had tree professionally cut but did not know it had a TP

Postby TO » Mon Mar 03, 2014 3:27 pm

Hi

starwarsclark wrote:I believe the maximum fine for lopping, not killing, a tree without consent is £2500 - Does that seem correct please
It's not about killing the tree, it's about desruction. If the lopping is so extensive that the result is a stump, the tree will have been destroyed as it is no longer a visual amenity, but in all liklihood it won't be dead. Whether or not the works are so extensive to result in destruction is a matter of judgement for the Council.

As I say there are two offences, damage, and destruction. For damage the maximum fine is £2,500.

If your instructions to the tree surgeon were lop, I suspect you are looking at destruction. Any pictures.

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Re: Had tree professionally cut but did not know it had a TP

Postby starwarsclark » Mon Mar 03, 2014 4:01 pm

Thanks for the replies.

I will see if I can post some pictures later as they are at home on my PC.

To me the tree looks almost identical to the one that was cut, but with council permission, next door to us. I can't believe that we have killed/destroyed the tree in any way.
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Re: Had tree professionally cut but did not know it had a TP

Postby MacadamB53 » Mon Mar 03, 2014 4:24 pm

Hi starwarsclark,

This info will help when it comes to sharing images:

http://www.gardenlaw.co.uk/phpBB2/viewtopic.php?f=9&t=2738

Kind regards, Mac
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Re: Had tree professionally cut but did not know it had a TP

Postby starwarsclark » Mon Mar 03, 2014 7:31 pm

Hopefully with pictures, if you can follow this link that is: http://1drv.ms/1dhirYy

OK not the greatest photos in the world, however please note that you can see a large tree behind my neighbours tree, this is not in her garden and was not cut when she had her tree cut. My tree is the one with the basketball ring in front. You can see that mine has been reduced in height and so has my neighbours. It is not easy to show the trees clearly due to the tree being behind my neighbours.

I hope the pictures make sense, please let me know if you have any questions.

Andy.
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Re: Had tree professionally cut but did not know it had a TP

Postby cobdale » Mon Mar 03, 2014 7:41 pm

I think if anything they would want to know who the tree surgeon was that ,by the sound of it pruned the tree,and like everyone has said that will be their standard letter,I would ,ent imagine a prosecution taking place
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Re: Had tree professionally cut but did not know it had a TP

Postby starwarsclark » Mon Mar 03, 2014 8:03 pm

cobdale wrote:I think if anything they would want to know who the tree surgeon was that ,by the sound of it pruned the tree,and like everyone has said that will be their standard letter,I would ,ent imagine a prosecution taking place


Thanks for that, they already have that information and have written to him as well. The letter he has is identical to ours, in as much as it mentions under caution etc etc.
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Re: Had tree professionally cut but did not know it had a TP

Postby COGGY » Mon Mar 03, 2014 9:57 pm

Hi Starwarsclark

I am not an expert but it would appear that the "professional" who did the work should have enquired whether the tree had a TPO. He is dealing with trees every day so it is fair to think he should know the rules and pitfalls. Did he ask you about a TPO?

Kind regards
Coggy
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Re: Had tree professionally cut but did not know it had a TP

Postby TO » Tue Mar 04, 2014 10:06 am

Hi

Thanks for the pictures.

You'll almost certainly be looking at the offence of destruction.

Clearly not a professional, and with such poor quality work I think you'll do well to avoid prosecution. You could try arguing that the tree surgeon wasn't instructed to do what they did. It would help if you have proof, written specification for the job for example.

TO
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Re: Had tree professionally cut but did not know it had a TP

Postby arborlad » Tue Mar 04, 2014 10:59 am

arborlad wrote:when a developer deliberately flouts TPOs, they are quite correctly prosecuted to the fullest extent of the law, I don't think your situation merits that. .



Seeing the photos, I am now less certain of that.
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Re: Had tree professionally cut but did not know it had a TP

Postby MacadamB53 » Tue Mar 04, 2014 11:41 am

MacadamB53 wrote:Hi starwarsclark,

"We will continue to look into this matter and may prosecute if it is in the public's interest to do so"
they may decide it would not be in the public's interest to spend public money on prosecuting an individual homeowner who has made a genuine mistake, rather than spending it prosecuting an individual/group who have knowingly committed the same offence for personal gain or to the detriment of the locale.

That is what I think they mean with this stock response.

I'd just try and forget about it - they would have been far more specific if they were certain about the prospects of a prosecution.

All my non-expert, unqualified opinions.

Kind regards, Mac

Hi starwarsclark,

The non-expert, unqualified opinion I expressed (see above) doesn't match up with the expert, qualified opinion of TO:

TO wrote:You'll almost certainly be looking at the offence of destruction.

Clearly not a professional, and with such poor quality work I think you'll do well to avoid prosecution. You could try arguing that the tree surgeon wasn't instructed to do what they did. It would help if you have proof, written specification for the job for example.


Kind regards, Mac
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