Monday, December 17, 2012

Winter winds bring considerations for landowners

Brought to you by our friends at Stephens Scown

With winter now upon us the chances of plummeting temperatures and windy conditions inevitably increase, bringing the possible legal issues surrounding fallen trees to the fore says litigation solicitor Catherine Brealey.

The topic is a personal one for Catherine, who last year came home to find a large tree had fallen into her garden from developer-owned woodland causing significant damage. 

A person responsible for trees owes a duty of care to those passing nearby to take the steps of a “reasonable and prudent landowner.” The Occupiers’ Liability Acts of 1957 and 1984 also outline that an occupier with control over premises is liable to take reasonable care, ensuring visitors or even trespassers are kept reasonably safe, with even higher standards required for children.

The measures required to prevent falling trees can depend on many factors such as location, species, age/condition and any previous damage.  Greater care would be required for trees overhanging paths/roads and in gardens/parks.  Regular inspections by appropriate specialists may be necessary, records kept and remedial action taken when required. 

The consequences of falling trees can sometimes be tragic - a recent 2011 case Harry Bowen & Others v The National Trust [2001] (Felbrigg Hall) saw a falling branch kill a child and injure three others.  In this case the Court found the work the National Trust had done to assess the risk posed by trees on the property was sufficiently robust to discharge their duty of care.

Felbrigg Woods contained over 2500 trees, which were reviewed and zoned into three risk categories, determined by how many people passed a particular tree.  The tree in question was deemed “mid risk” and had been inspected by qualified professionals twice in the 6 months prior. 

In another 2011 case (Joanne Micklewright –v- Surrey County Council), Mr Imison was fatally struck by a falling tree on a public highway with no steps having been taken by the Council to inspect the offending tree.  The Court found, however, that it would not have been possible for a reasonable inspection to determine a problem or that a branch was likely to fall, so had the Council taken steps to discharge their duty, the accident would not have been prevented. 

It is perhaps reassuring to landowners that even when an inspection has not been carried out, the Court will consider the tree itself and whether a defect would be visible upon a reasonable inspection by an appropriate expert. 

Although criminal liability has not been discussed, simply attempting to avert liability by chopping a tree down could leave you open to criminal liability; it could be protected or a licence required.  Always take advice first before doing so and this may be from a tree specialist, the local authority and/or the Forestry Commission.  It is worth remembering health and safety legislation also places duties on employers to ensure employees and the public are not at risk by falling trees.

Stephens Scown has a team of Solicitors in Exeter that can assist with business, financial or family related legal issues.

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