UKTC Archive

RE: Cavanagh appeal judgement

Subject: RE: Cavanagh appeal judgement
From: oisink@xxxxxxxxxxx.com
Date: Nov 05 2018 18:46:05
Do HAs own all highways they maintain? I don't think so. Isn't it control, 
rather than ownership that matters in this instance?
I disagree, in that I think there is a duty. But I suspect what saves HAs 
from being sued in many instances is the lower standard of care expected of 
them for trees not in their control. But that does not make them immune.

<<What a repugnant, dangerous and unthinkable lacuna in the law it would be 
for a tree owner to think that he need do nothing and only wait for the HA to 
inspect his tree and tell him what he must do.>> That is really not what I 
have said or suggested. Joint and several responsibility is a common 
situation. But hey ho. 

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
On Behalf Of Julian Morris
Sent: 05 November 2018 18:26
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: Cavanagh appeal judgement

The important point I think is ownership. The highway vests in the highways 
authority, regardless of who holds title to the land beneath it. I think it 
is right that the duty to keep it in good shape is with its owner, namely the 
highways authority. But it is a very different thing for the HA to be 
repsonsible for someone else's property and negligence. For, is it not 
clearly the case that all other things being equal the responsibility for 
harm or damage lies with the tree owner? What a repugnant, dangerous and 
unthinkable lacuna in the law it would be for a tree owner to think that he 
need do nothing and only wait for the HA to inspect his tree and tell him 
what he must do.

Before a case can turn on the facts, there must be a principle of legal duty 
and neglect of it. If what you are suggesting is true, surely there would be 
guidance somewhere, anywhere, that HAs should systematically inspect trees on 
private land neighbouring the highway. Step ladders and X ray specs would be 
issued.

In context, I don't think the Parish Council would have got very far with 
that defense.

As ever, if anyone wants to put me right please do. It's a dreadful prospect 
in any walk of life to be responsible for the negligence of others with no 
right of inspection and no mechanism of apportionment. I think that some 
responsibility like that would be explicit in statute, not obliquely 
inferrable (if that's even a word). 

Julian A. Morris - Professional Tree Services jamtrees.co.uk  and  
highhedgesscotland.com
0778 XXX XXXX - 0141 XXX XXXX


Sent: Monday, November 05, 2018 at 5:45 PM
From: "oisink@xxxxxxxxxxx.com" <uktc@xxxxxx.tree-care.info>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: RE: RE: Cavanagh appeal judgement

I think the duty derives from section 41: duty to maintain highways 
maintainable at public expense. I do not agree is it only reactive: a 
danger is a risk and taking action to avoid harm is preventative. For 
instance, in respect of trips and slips it is my experience of several 
cases that a failure to inspect periodically, at suitable intervals, is 
considered negligent (whether or not that is causative is of course another 
matter). That is not to say HAs are liable if a tree falls from 
neighbouring land and causes harm. That would turn on the facts of that 
case, which are likely to cover whether the HA could reasonably have 
foreseen, particularly given the degree of their control over the land etc. 

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Julian Morris
Sent: 05 November 2018 17:22
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: RE: RE: Cavanagh appeal judgement

Yes there is a duty to assert the public's right to use the road (or words 
to that effect) but it is more reactive (clearing obstructions). No matter 
how I read it, it is less than a duty to ensure safety by actively looking 
for and assessing risks. Notice can be served on 3rd parties where 'it 
appears to the [highways authority]' that there is a danger. That sounds 
reactive.

I'm happy to be corrected by anyone who knows of te secret section in the 
Act that imposes a duty of care in respect of off-highway trees. I'm pretty 
sure there's been all sorts of case law where it was found that Councils 
don't have tu guarantee the roads, never mind the safety of 3rd party trees.

Julian A. Morris - Professional Tree Services jamtrees.co.uk  and  
highhedgesscotland.com
0778 XXX XXXX - 0141 XXX XXXX


Sent: Monday, November 05, 2018 at 5:00 PM
From: "oisink@xxxxxxxxxxx.com" <uktc@xxxxxx.tree-care.info>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: RE: Cavanagh appeal judgement

I haven't checked but isn't the duty to keep an unobstructed highway?

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Julian Morris
Sent: 05 November 2018 15:53
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: RE: Cavanagh appeal judgement

The legislation says 'may, serve notice, not 'must'. It's questionable 
whether it's a 'duty'.

Julian A. Morris - Professional Tree Services jamtrees.co.uk  and 
highhedgesscotland.com
0778 XXX XXXX - 0141 XXX XXXX


Sent: Monday, November 05, 2018 at 12:27 PM
From: "Alastair Durkin" <ADurkin@xxxxxxxxxx.gov.uk>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: Cavanagh appeal judgement

Hi Phillip, I'm pretty sure it's 2016 as I described 
http://www.ukroadsliaisongroup.org/en/codes/ . The 2016 document 
supersedes three previous codes: 'Well-maintained Highways', 'Well-lit 
Highways' and 'Management of Highway Structures'.

On your question, I think that’s probably right, yes. The owner has 
their duty of care, but if the Authority see a tree from their own land 
growing on third party land (they are not expected to enter private 
property) that is obviously unsafe then they are duty bound to serve 
notice on the owner and if necessary make the tree safe and charge it 
back to the owner. That’s my understanding anyway. 

Alastair

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Philip 
Wilson
Sent: 05 November 2018 12:07
To: UK Tree Care
Subject: RE: Cavanagh appeal judgement

Alistair,

I believe that the extant edition is 2014, and that the change in 
guidance was from 2013 to 2014.

file:///C:/Users/Philip/AppData/Local/Packages/Microsoft.Microsoft
Ed
ge
_8wekyb3d8bbwe/TempState/Downloads/original_version_well_maintaine
d_
hi
ghways_85645%20(1).pdf

On a slightly different matter you might be able to comment on Section 
9.6.1 of the guidance:
'In England and Wales the highway authority is also responsible for 
ensuring that trees outside the highway boundary, but within falling 
distance, are safe.'
This seems to suggest that, for such trees, the duty of care is shared 
with the neighbouring landowner. Can that possibly be correct? The 
highway authority often cuts back overhanging branches, of course, but 
the guidance says 'safe'! 

Philip



-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Alastair 
Durkin
Sent: 05 November 2018 11:08
To: UK Tree Care
Subject: RE: Cavanagh appeal judgement

Back to this - On the weekend I listened to Jeremy's 2012 ISA 
conference talk on the ISA podcast. A good listen by all accounts as 
one might expect. Within Jeremy's talk he refers to the COP for Well 
Managed Highways and the stipulation of a 5 yearly inspection of 
highway trees being a useful reference. Now when I looked it up I soon 
realised that the COP was updated in 2016 and any reference to 5 yearly 
inspections of highway trees has been removed. So the COP has basically 
washed its hands of offering any advice on this important point to 
Highway Authorities. What a cop out!

Alastair



-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Julian 
Morris
Sent: 25 October 2018 09:45
To: UK Tree Care
Cc: UK Tree Care
Subject: Cavanagh appeal judgement

Availabel for download

https://www.barrelltreecare.co.uk/resources/useful-documents/

Julian A. Morris - Professional Tree Services jamtrees.co.uk  and 
highhedgesscotland.com
0778 XXX XXXX - 0141 XXX XXXX




--
The UK Tree Care mailing list
To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy 
http://www.boskytrees.co.uk/


Please don't print this e-mail unless you really need to. Save paper.

Visit http://www.tandridge.gov.uk for information about services, 
online forms, payments and much more.

________________________________
IMPORTANT: The contents of this email and any attachments are 
confidential. They are intended for the named recipient(s) only. If you 
have received this email in error, please inform the sender immediately 
and do not disclose the contents to anyone or make copies thereof.

This message has been scanned for viruses.



--
The UK Tree Care mailing list
To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy 
http://www.boskytrees.co.uk/




--
The UK Tree Care mailing list
To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy 
http://www.boskytrees.co.uk/



--
The UK Tree Care mailing list
To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy 
http://www.boskytrees.co.uk/





--
The UK Tree Care mailing list
To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy 
http://www.boskytrees.co.uk/




--
The UK Tree Care mailing list
To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy 
http://www.boskytrees.co.uk/





--
The UK Tree Care mailing list
To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy 
http://www.boskytrees.co.uk/




--
The UK Tree Care mailing list
To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy 
http://www.boskytrees.co.uk/





--
The UK Tree Care mailing list
To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy 
http://www.boskytrees.co.uk/




-- 
The UK Tree Care mailing list
To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy
http://www.boskytrees.co.uk/