As part of my property work, I have recently needed to research the law relating to trees.  A small registered company owned by residents of a “country house development” of about 15 properties has extensive grounds which are laid out to parkland.  Within this area, there are individual specimen trees, small copses of woodland and there are trees that run along the side of an adjacent highway.  The directors were anxious as to the company’s potential liabilities for any loss or damage arising if a tree was to fall over or shed a substantial bough.  They had commissioned a tree expert who had recommended work costing over £35,000 and which would involve the destruction of a lot of trees.

When conducting my research, I noticed that the Court of Appeal had recently (and very  conveniently) considered this very issue.  In the case of Witley Parish Council -v- Andrew Cavanagh [2017] EWHC 278 (QB), the facts were that after a stormy night in January 2012, a mature lime tree about 30 metres high fell across the A283 Petworth Road and crushed a bus that was passing underneath.  The bus was damaged and the driver suffered personal injuries.  The tree had been growing on land owned by the council.  In 2006, a tree surgeon had recommended removing deadwood and thinning of the lime tree, and that work was done.  In 2009 there had been another professional inspection, but it was fairly cursory.  The issue in the case at the Court of Appeal related to the position of the Council.  Had it done enough to avoid liability?
The relevant legal principles were identified as follows:

(a) The owner of a tree owes a duty to act as a reasonable and prudent landowner;
(b)    Such a duty must not amount to an unreasonable burden or force the landowner to act as the insurer of nature. But he has a duty to act where there is a danger which is apparent to him and which he can see with his own eyes;
(c)   A reasonable and prudent landowner should carry out preliminary/informal inspections or observations on a regular basis;
(d)   In certain circumstances, the landowner should arrange for fuller inspections by arboriculturalists. This will usually be because preliminary/informal inspections or observations have revealed a potential problem, although it could also arise because of a lack of knowledge or capacity on the part of the landowner to carry out preliminary/informal inspections. A general approach is that there is a requirement for a close/formal inspection only if there is some form of “trigger” that puts the landowner on notice that there is potential problem;
(e)    The resources available to the householder may have a relevance to the way in which the duty is discharged.
The trigger that requires a more detailed enquiry by professional contractors can include such factors as the size of the tree, the proximity to a highway / bus stop /area frequented by pedestrians, whether it leans or shows any other signs of weakness.   In the reported case, the Council had not done enough as it had been put on notice as to the vulnerability of the lime tree and not inspected it for over 3 years, and had not commissioned a contractor in that period.

In the circumstances of my case, there was a professional opinion that suggested substantial work was required.  I recommended that a second opinion be sought as the work suggested by the company’s expert seemed far more than really necessary and more than the company could realistically afford.  The area adjacent to the highway (which also included a bus stop) was obviously at higher risk than the rest of the parkland, and it would be right to concentrate on that.   With a second opinion, it was possible to reduce the extent of the necessary work, and a different contractor was found who was able to carry out the work at a much lower cost.  I also recommended that there should be a proper system of review of all the remaining trees, and a pro-active regime for individual trees that could be identified as deserving of regular inspections.  I am confident that the new system will demonstrate an appropriate and proportionate approach to the management of the parkland.

Giles Gunstone