Reply interwoven with original for context.
On 20 March 2006 12:28, Fountain Paul (Environmental Services) wrote:
"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.
That would not be my interpretation. If you check for nests and find
none that is no longer an unacceptable risk. There may be a risk that
you missed one, but it is slight and not 'unacceptable'.
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.
If the whole tree is not readily visible then it hardly constitutes an
'obvious' risk. I would say 1) was more relevant. But if the climber
ascends with care and descends if they find a nest on the way, it can
hardly be said to be reckless. Are you trying to find an excuse to have
the summer off? Mmmm, no, I've changed my mind. It's far to risky to
have anything to do with trees during nesting season and we should all
go on a long and well deserved holiday :)
--
Chris Hastie
Strategy Officer (Arboriculture)
Warwick District Council
http://www.warwickdc.gov.uk/trees
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