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<Dealga OCallaghan>
posted
I have a problem. A client had three mature poplars on his boundary topped by his neighbour without permission. The trees were 15 metres high and are now at 3.5 metres.

The lawyers want a valuation and as Helliwell would have us value the trees as a group, i.e. one unit the value comes to £26,000 ($43,000). However the trees were protected legally and the potential fine for destroying protected trees without prior consent of the Municipality, (yes I know this is a new one on most of you), is £20,000 per tree or twice the valu of the trees whichever the Court |Deems to be the greater.

So I have a problem - our valuation scheme puts the trees at £26K and the law puts the value at £60K.

I used the CTLA Trunk Replacement Method to calculate values based on replacement trees of 10-12 metres high and 45 cm caliper diameter that cost £7,500 each, supplied & planted. Based on the square cm costs, the value came out to £80,000 ($133,000 give or take a dollar or two).

Question: Was I correct in using the large transplantable tree as the valuation point? The trees are readily available at that size in the UK.

Additional: If we agree with the perpetrators to replace the three trees lost with four big trees (to restore the lost crown density) the costs, including 5 years maintenance and guarantees will come to £45k. This is £15 below the legal value and considerably less than the £160K the Court could impose if the judge went along the line of twice the value as a fine.

I'd really wel;come some input

Thanks

Dealga O'Callaghan
ECI International Ltd
Queens Dock Building
Norfolk Street
Liverpool, England
 
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<Kerry W Knorr>
posted
Reply to post by Dealga OCallaghan, on April 27, 1998 at 11:06:36:

I think two points are important here: reasonable test, and comodity being measured.

Your dilema speaks loudly to the necessity of the use of the reasonable test. What is reasonable? In my opinion, the court relies heavily upon the expert opinion to determine what is reasonable. As experts, we must agree on criteria for reasonableness, and rely on that criteria for our recommendations to the court.

The role of the plant appraiser is not to measure punitive or emotional values. The court has other input for those issues. The plant appraiser is responsible for measuring the commodity of the tree. The tree must provide some commodity which gives that individual plant a value that is seperable from that of the land. What is the commodity? Is it amenity value? Is it timber? Is it fuel? Is it animal habitat?

The ultimate value that an appraiser produces must be reasonable in relationship to what a reasonable man (not an eccentric) would pay to enjoy the commodity in an environment outside of a heated dispute.
 
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<Dealga OCallghan>
posted
Reply to post by Kerry W Knorr, on April 27, 1998 at 11:06:36:

Kerry - thanks for your thoughts. I agree one must be reasonable, but the English Courts are not as reliable upon experts as the US Courts seem to be. The test over here is 'what would a reasonable person think' i.e. Joe Public, the man on the Clapham Omnibus.

Judges in England tend to be more sanguine and although they listen to experts, they often set expert opinion aside and make common sense judgements. This is particularly the case where experts differ significantly one from the other.

This brings me to another point where we differ from the US in Expert Testimony. In England, the duty of an Expert Witness is to assist the Court, not necessarily to his/her client. One has to be totally objective as Lord Justice Woolfe put it in Chapter 13 of his Review of the Legal System 'Access to Justice'

"The role of an expert is to provide the Court with knowledge and data that it could not ordinarily get by common sense"

If an Expert in England biases testimony or omits any germane facts - they can be struck off. It's quite different to your system is it not?
 
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Reply to post by Dealga OCallghan, on April 27, 1998 at 12:59:36:

>>"The role of an expert is to provide the Court with knowledge and data that it could not
ordinarily get by common sense"

Not really all that different, at least in theory, Dealga. The concept here in the states is that one party can hire an expert witness whose job is ostensibly to provide fact to the court in an unbiased manner. In fact, ASCA's Code of Ethics and Standards of Professional Practice require that. In practice, many "expert witnesses" fail that duty and offer biased opinions.

Regarding your case of poplar trees, I think Kerry was correct in that you should arrive at the value of the trees independent of the other issues. It would seem to be for the court to decide which is the appropriate value to use in determining penalties. My question is whether the law has a priority to set the value as a minimum per tree.
Russ
 
Posts: 287 | Location: Bear, DE USA | Registered: Wednesday June 18, 2003Report This Post
<Kerry W Knorr>
posted
Reply to post by Dealga OCallghan, on April 27, 1998 at 12:59:36:

I agree with Russ. I'm not so sure there is a whole lot of difference in the role of the expert. Judges do as they please in the US too, and probably correctly so. As experts, we are contributing a mere piece of the puzzle that the judge is charged with sorting out. And, as Russ has pointed out, unethical bias does creep in to the mix. We seem to be "on the same page" in this thread of thought. (no pun intended)

The thing that has me concerned is; the wide disparity of conclusions that multiple experts can draw on the same case. (All of them giving honest opinions.) It seems to me that some guidelines can be offered for future editions of appraisal guides to help to resolve these issues.

Personally, I use a definition of "amenity" as it relates to human habitat, health and comfort; as a means to segregate amenity uses of trees from forestry uses. In justifying the use of the CTLA trunk formula, we show that the value we produce is a comparison to ornamental nursery stock, planting, etc.

I ask myself, would it be reasonable to expect that a non-eccentric would go down to a nursery, buy a flowering plum tree (or other ornamental), and plant it in this spot? If I can answer "yes", I feel that I can confidently defend an appraisal based on the trunk formula using ornamental pricing.

If my answer is "no", I must look to stumpage, difference in land value, or cost of cure / replacement based on forest nursery stock and planting methods.
 
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<Julian Dunster>
posted
Reply to post by Russ Carlson, on April 27, 1998 at 16:04:46:

Dealga:

I think we all agree that the appraiser should be objective, though is not always. Our role in any court system should be to assist the judge in his or her capacity as the "trier of fact". That is all the expert does. We provide the judge with technical expertise to assist the ultimate judgement as to whether ot not the evidence under discussion can be reasonably established as "facts" where these "facts" are then considered to be uncontestable. With regard to the actual value, I found in reviewing the Canadian case law that the courts regularly dismissed values that did not reflect a reasonable amount relative to the overall property value. That is, the value of the damaged tree(s) cannot be higher than the property value as a whole, and must be reasonable. I find that it is useful to find out the assessed value of the property for comparison purposes, because the market value with or without the tree can be a helpful guide.

Julian Dunster
Bowen Island, BC
Canada
 
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<Dealga OCallaghan>
posted
Reply to post by Julian Dunster, on April 27, 1998 at 16:39:08:

Julian

Thanks for the reply. Your Court system is moving towards our from what you say. However, in the UK there is no link between property value and tree value. We do not have a history of vaueing trees in relation to real estate. The Courts here must simply decide on the magnitude of the loss sustained and takes into account any mitigation. I do agree that the value has to be 'reasonable' and an awful lot of lawyers get rich debating waht is, or is not, reasonable.

Amenity valuie rates highly in the UK because of the Tree Preservation Order Legislation which is linked to amenity in general and visual amenity in particular.

I still feel that in selecting the large trees as replacements, I am being reasonable in this situation as the potential maximum fine is between £60K and £160K and the replacement costs are in the region of £40K. Remember that the Planning & Compensation Act of 1991 puts a £20k value on a tree.

Dealga O'Callaghan
Liverpool, England
 
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<Dealga OCallaghan>
posted
Reply to post by Russ Carlson, on April 27, 1998 at 16:04:46:

Russ

I agree with a lot of what you say, but - and there is always a but - in Britain the Planning & Compensation Act of 1991 places a monetary value of £20K (or twice the value of the tree), on a tree. We cannot change that, Parliament in its wisdom has decreed it to be so, by statute and we are stuck with it.

In the case I am dealing with, the perpetrators broke the law in two ways: -

1. They destroyed three trees which had the
benefit of Statutory Protection without
permission - this is a Criminal Offence
(Felony?)

2. They destroyed another party's trees without
permission and caused them a loss.

The first point is a straightforward legal matter - they can be prosecuted and take whatever fine the Court decides and have a criminal record.

The second point is the one I am dealing with and, my client wants restitution. He does not want cash, or damages, he wants his trees back or, failing that, replacements that provide the same level of screening as those destroyed.

If I have to give evidenc in Court on the second point, I am obliged by my Academy, (The Academy of Experts), to be objective and unbiased. It makes no difference who pays the fees - I have made this clear to all clients who seek my services in litigation. If I am shown to have been biased in any way, I can be reported to the Academy and struck off. So its a little more stringent than that which you describe.

It is true that some expert witnesses provide biased informaton, but these are invariably not members of the Academy. In Court, a Member of the Academy carries much more weight than a non-member.

Dealga
 
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<Dealga OCallaghan>
posted
Reply to post by Kerry W Knorr, on April 27, 1998 at 16:04:46:

Kerry

Thanks for both followups. As I explained to Russ, I am a member of the Academy of Experts and as such have to be unbiased and must make a legal declaration to that effect in each report for each case.

In the case I posted, again as I explained to Russ, my client has suffered a loss and wants restitution. He does not want cash, damages etc., he simply wants his screen replaced - now if possible. It is, in my opinion possible at a reasonable cost when compared to the Potential Maximum fines the Court can impose because the perpetrator destroyed protected trees, i.e. between £60K and £160K where £1 = $1.66.
The repacement cost is £40K and my appraised value is £80K without any compounded interest as the screen can be more or less replaced. So he is getting off relatively lightly.
No emotion, no bias, simply business!!

Dealga O'Callaghan
 
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<Kerry W Knorr>
posted
Reply to post by Dealga OCallaghan, on April 28, 1998 at 00:00:47:

The idea of tree values NOT being tied to land value is an interesting one. Very old laws tie trees to land in terms of ownership. I was under the impression, (may be wrongly) that US law had imitated European law with regard to tree ownership.

The tendancy to tie tree value to land value is a natural one, in that ownership changes simultaneously in almost all cases. Exceptions can be seen in tree fruit crops, Christmas trees, and some forest crop agreements that are built in to real estate sales contracts.

Hmmm, very interesting!
KWK
 
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<Scott Cullen>
posted
Reply to post by Dealga OCallaghan, on April 27, 1998 at 11:06:36:

Hello Dealga, having just gotten on line I'm slowly reviewing past discussions. Your original inquiry and the thread are interesting and I have a number of comments.

RE: role of expert witness. Your Academy of Expert rules seem very similar to ASCA's Standards of Professional Practice which is taught at ASCA's annual consulting academy (on the east coast in '99 by the way). The expert must be objective, who pays the fee has nothing to do with the opinion.

RE: varying opinions of value, various approaches and methods. There is no "correct value." The great Druid does not keep a book listing them ( I did a little research on this when I was at University College Dublin many years ago). Of course there are various alternatives. See my 10/17/98 response to Julien.

RE: Relationship to property value. This often applies but not always. (Never in UK apparently). There are US cases when it does not apply. See "value in use" in my 10/14 response to Kerry. Kerry is right, it's not the appraisers job to estimate punitive amounts, just the tree related estimate(s).
 
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<Brian Beilensohn>
posted
Reply to post by Scott Cullen, on April 27, 1998 at 11:06:36:

what would be the ruling if compensation was offered instead of replacement for a large conifer tree destroyed in a motoring accident
45ft tall golden castlewellan ,would it just be based on a CTLA figure for the tree with no allowance made for total lack of amenity , the tree would be difficult to replace even at smaller size because of other existing large trees in its suggested planting area
regards Brian Lancashire uk
 
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