Thanks for the responses so far, hopefully more will come. I'm
particularly interested to know if anyone stops work for the breeding
season.
At this authority, we undertake an average of 40 maintenance operations
per work day (10,000pa) plus several hectares of woodland maintenance,
and I know others do far more, so if the work was to be restricted into
a 4 to 5 month window there will huge logistical problems, as well as
the loss of goodwill from neighbours who could have to wait many months
for the most simple of work to be carried out.
Below is an extract from Tree craft email of 7 Mar 02 in the archive
"The legal definition of 'reckless' is derived from a case heard in
1982 called R v Caldwell. This states that the prosecution will have to
show one of two options;
1 that a person deliberately took an unacceptable risk (recognised
the risk but took it anyway) or,
2 that they failed to notice or consider an obvious risk (did not
consider whether there was a risk)"
Given the legal definition of reckless above. Is it acceptable to
undertake work through the breeding season, as it could be deemed to
fail the test of one or both of the above, even if the contractor or
client undertook prestart assessments for birds, bats etc using a
suitably experienced person.
1 above could be deemed to come into play if acknowledge a risk (which I
think we all do) but then continue to schedule work and give the
contractor completion dates within the breeding season.
2 above could be deemed to occur if the whole tree is not readily
visible from an inspection point that does not cause disturbance
(obscured by: foliage, size, 360 access). If the climber enters the tree
then finds a nest the disturbance has occurred and so the offence has
been committed.
The implications of this are quite profound if it is deemed that the
risk is not acceptable, as it basically makes tree and woodland
management a seasonal industry! Given the nature of nature, even a
careful assessment from the ground is not a guarantee that all nests
will be identifiable, but have reasonable precautions been taken by
carrying out a ground based assessment, as it will in the vast majority
of circumstances identify any nests.
Whilst most of this is focussed on the legal situation there is also the
ethical issue, of whether the law goes far enough and whether we should
be taking responsibility for further protection, particularly for those
of us who manage local authority assets.
Paul
-----Original Message-----
From: Edmund Hopkins [mailto:Edmund.Hopkins@xxxxxxxxxxxxxxx.gov.uk]
Sent: 20 March 2006 10:59
To: UK Tree Care
Subject: Re: Tree Work and Wildlife
I agree with this, and we shouldn't neglect ground nesting birds in the
appraisal. Still, many many trees are not good nesting sites and have no
nests, it seems pointless to suspend all work regardless.
Quoting Jonathan Warren <jonathan.warren@xxxxxxxx.gov.uk>:
I think it is reckless not to check individual trees or areas to be
worked on for nests or signs of nesting, then carry out the work only
to realise that you have damaged, destroyed etc a nest or anything
else the Act states.
I think the emphasis is on checking before carrying out work, similar
to the situation with bats or any other protected species.
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