UK Tree Care - http://www.oak-wood.co.uk/uktc/
Mr May
Thank you for your comments. Seems like I have stirred up some feelings
which was the main intention. Let me address your points in some sort of
sequence.
The Opening Gambit:-
Not bluster, shear frustration with watching TPO Violators get off on
Technicalities.
And, more importantly, watching the TPO System become threatened by sloppy
administration - irrespective of who in an LPA is actually responsible. I
am not trying
to impress anyone and people who judge others by reputation alone are doing
themselves
and the reputee a dis-service.
Richard Perrins
How am I, or anone else on the forum to know his whereabouts? That's
irrellevant to any argument. I am sure he will defend his posting admirably
when he returns. I have read it several times and I feel is wrong as there
is no saving of space if, as he correctly states, the originals must be kept
on file. Digital data may make day to day admin easier, but it will not
save
space as correspondence has to be filed in hard copy - until that changes
he is in error, (in my view).
His comments about the difficulty with 'Old Orders' was patronising in my
opinion - I am sure he will defend this and issue a reply in his defence if
he feels I have wronged him.
Comments of a Personal Nature
None of my commenst were personal. If they have been so interpreted, then
I apologise unreservedly. MY comments were generic and intended to be so.
I do not understand the reference to Tony Ash.
In Courts of Law, Witnesses do not present arguments, they present
evidence. The arguments are advanced by the Advocates.
No comment on ht e'Clever Man' statement I cannot follow the trend of
thought
as the way its written could lead to three or four interpretations of what
you
mean - clarify this if you wish and I will comment.
The TPO Issue
I understand all of what you say. I agree with a lot. However, the key
point
I want to get across is that the way TPOs are sometimes administered within
LPAs, whether by Planners or Arborists or both, (as this is an
arboricultural
forum I did not address planners but agree they have a lot to answer for),
threatens the whole system's credibility. In my experience, Judges are
dispassionate they assess a case in relation to evidence, argument and
the Law - their duty is to the Law. Sloppy administration leads to
dismissals
or aquittals that should not occur.
I agree with what Mike said - but I would give you an analogy on this,
a gun is a great weapon with which to kill something, but it is usless
if it is not loaded with live rounds, aimed, and shot. All elements are
essential for the kill, loose one and you've lost. (I agree there could be
a better analogy but its late).
The Moral Issue
I see no moral conflict. If I, or Mike, or any other consultant is
appointed
to act as an Expert Witness in a case, we are bound by a number of ethical
principles. First, I am Independent; Second, my over-riding duty is to
assist
the Court - not to any party instructing me; Third, I am subject to Part 35
of the
Civil Procedure Rules (CPR) and have to sign a Declaration of Independence
which forms part of my sworn evidence, i.e. under oath. As an independent
expert I am ethically, morally and duty bound to assess a case as I see it
having
undertaken whatever investigations are needed and to examine every issue,
including any that would be detrimental to my argument and to present it
in the Court / Academy of Experts approved format.
Perhaps if the "wounded beasts" undertook some CPD in the area of the
Expert Witness through the Law Society or the Academy of Experts, and
agreed to the ethical code required, then their understanding of what
happens
and why and "unlawfully defended" tree is just that in the eyes of the
Court, however
we, as arborists may wish it to be otherwise. And that, Mr May is the key
point I have
been trying to make - TPOs are created under an Act of Parliament, they are
Legal
Instruments and as such fall within the jurisdiction of the Law and are
subject to all
the rigours the Law requires. If they fail in any criteria - what is the
point of using
them? It brings the system into disrepute.
On that same subject, what SOME authorities do is tantamount to
Maladministration
and this should not be allowed. Sure, mistakes occur and if admitted and
rectified
the nothing lost and everything gained. But with fines of £20K and more
now, LPAs
are, through this maldministration opening themselves up to question and
scrutiny and
could, face suits from persons who feel they have been denied 'Natural
Justice'
Concluding Points
I am neither a powerful or clever bussinessman.
I do not see myself in any corner on the 'Trees -V-Profits' issue
please see my recent replies to Colin Bashford and Dorothy Hartshorn.
Regards
Dealga P O'Callaghan
----- Original Message -----
From: Ian May <MayI@xxxxxxxxxx.gov.uk>
To: 'UK Tree Care' <uktc@xxxxxxxx.com>
Sent: Wednesday, January 05, 2000 6:05 PM
Subject: RE: Original TPOs
UK Tree Care - http://www.oak-wood.co.uk/uktc/
Dealga .....
(I wish to respond to several of your postings collectively.)
Welcome to this forum , I feel that you will make a valuable
contribution and I entirely understand the bluster of your opening
gambit , but please don't feel that you need to impress us ---- your
reputation precedes you !!
For the record , Richard Perrins is unable to reply at present as he is
away and therefore cannot defend his posting . Please read it again to
see that he is not "wrong" and as his colleague I can confirm that it is
not patronising either .
Derisory comments of a personal nature , such as these and those
directed at Tony Ash , are ungracious and not welcome in this forum .
They wouldn't win an argument in a court of law and won't win you any
friends here . I understand that you feel passionately about this
subject but a clever man will win on the merit of his argument while
abrasive rhetoric suggests otherwise .
That said , I am grateful for the wealth of your knowledge on this issue
and for the way in which your organisation has helped this industry to
review it's thinking .
I cannot deny that LAs are guilty of some major cockups and sometimes
there are political pressures bought to bear that override the TOs pleas
for restraint or common sense , sometimes it may be a case of too many
cooks ( officers ) getting involved or where trees are only part of a
secondary agenda , and yes , sometimes the TO may have failed to base
his judgement on sound and defensible reasoning . This of course is
unprofessional and inexcusable , however one must keep perspective to
avoid tarring all with the same brush .
To back track a little , the question was raised as to why TPO
information wasn't more readily available , Richard gave his reasons and
I have no argument with them , but I am minded to quote Michael Lawson
when he said " A TPO is the best weapon in the Tree Officers' armoury ,
and we shouldn't be afraid to use it to mitigate against imminent threat
, even if we have no intention to confirm " ( or words to that effect ).
LAs have an inherent weakness -- that of not being omnipresent , and we
must rely heavily on public reportage and inquiries from Tree Surgeons
to alert us to threat . I don't deny that LAs may use "subterfuge" to
buy time enough to serve a TPO where appropriate , (and in haste
mistakes can be made) but fortunately most Tree Surgeons I know operate
on values higher than purely financial , and having been there myself ,
it is a paradox I lived with , preferring moral high ground to healthy
profits . Dealga , you are a powerful businessman , and you must use or
abuse your position as you see fit . If in the course of fair business ,
you overturn an invalid order , then you must deal with the moral issue,
while its also true that LAs must put their house in order . The archaic
LA machinery is badly flawed and if I ruled the roost , I would put a
team onto it right away , but I don't and I don't have delegated
authority nor do I make policy and so I must absorb the extra workload
within my existing overburden .I suggest that most TOs without the
necessary additional resources are in a similar situation . Having the
will to defend against you is not enough , but without a QA review we
have precious else , except perhaps the trees that we have "unlawfully"
defended to date . Its not going to happen by itself ---- perhaps you
should direct your scorn at the Planning Departments that administer the
TPO records. .
But then you already knew all of this , so why tease the wounded beast ,
do we all not want the same thing , or is it really just a matter of
profit ? I have no doubt you are a clever and gifted businessman ,
however , I do not envy your position , it must be hard to maintain a
balance .
Having backed yourself into a corner over profit versus trees , can I
suggest that we shake hands and start again ?
Regards ...... Ian May
-----Original Message-----
From: Dealga OCallaghan [SMTP:dealga@xxxxxxxxxxxxx.fsnet.co.uk]
Sent: 02 January 2000 20:35
To: UK Tree Care
Subject: Re: Original TPOs
UK Tree Care - http://www.oak-wood.co.uk/uktc/
I acccept all that, but his tone was completely patronising
i.e. that many are 'Old Orders' including Areas and Woodlands.
Please spare me this sort of crap - most LPAs do not maintain anything
like an ordered TPO system and try to cover up with patronising
BullS**t.
I am dealing with a case at the moment where an Area order dates from
1968.
The Original is not on file, not anywhere, yet the LPA is threatning
prosecution for
felling 10 Leyalnd Cypress from a hedge planted six years ago - yes A
HEDGE,
SIX YEARS OLD. Also for damaging a 20-year old Oak in a manner likely
to
destroy 20-years old on a 31-year old Area Order, the Original of
which is
not
available. And this is a very frequent occurrence, not a 'one off'
Oh Yes please digitise all this and solve the problem for me!! The
plaintiff cry of the
Arborist at the LPA who simply cannot admit that his Authority might
have
made a mistake!!
Yes free the space - what space? if you still have to maintain the
original
files
Mr Perrins has missed the point. I do not care what system he uses as
long
as it is a QA system.
Second, the Court requires the Original, and as Simon Pryce stated,
all of
it, not just the Map
an Schedule 1. Also, the map should be sealed also, but how many are?
When, oh when, will the Local Authority Petty Beurocrats realise that
all
their posturing
an stamping of feet in rightous indignation is really putting the
whole TPO
sytstem in jeopardy?
Same goes for Central Government Wallahs - witness the New TPO
Regulations
and the
anomolies contained therein.
Richrad Perrins was / is in error, if only for being a Patronising
person.
Dealga O'Callaghan
----- Original Message -----
From: Chris Hastie <c.hastie@xxxxxxxxx.co.uk>
To: <uktc@xxxxxxxxx.co.uk>
Sent: Sunday, January 02, 2000 2:20 PM
Subject: Re: Original TPOs
UK Tree Care - http://www.oak-wood.co.uk/uktc/
On Thu, 30 Dec 1999 Dealga OCallaghan
<dealga@xxxxxxxxxxxxx.fsnet.co.uk>
wrote
Richard Perrins is in error - serious error.
A digital copy of a TPO is NOT acceptable in Court. The Original,
signed and sealed order is the Legal Document and if this cannot
be
produced in Court, then it does not exist.
I don't think Richard is in error at all. He originally wrote on Tue,
14
Dec 1999:
My Planning Department is looking at copying all of its TPO files
(orders & correspondence) to CD-ROM, freeing up much needed space and
facilitating networking of the information.
I understand that legally this is not an issue, provided the original
Order is retained should a prosecution ensue and so you can prove its
existence.
note the "provided the original Order is retained..."
--
Chris Hastie
OakWood Arboricultural Consultancy
http://www.oak-wood.co.uk
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