UKTC Archive

Re: RE: RE: Cavanagh appeal judgement

Subject: Re: RE: RE: Cavanagh appeal judgement
From: Julian Morris
Date: Nov 06 2018 09:31:15
Emm.... 'vests in' does mean 'is owned by',insofar as it means 'is 
transferrred to the ownership of'.

In the circumstances you describe,there's still no legal basis for the HA 
being liable, but the dissenting opinion of Lord Nicholls in Stovin v Wise 
expressed the sentiment that the law ought to hold a HA liable if it saw 
something could and should be done, but did nothing. But the decision stood 
that ther is no liability except perhaps maladministration. 

In the extreme circumstances of your example, the HA would be in the added 
difficult position of de facto knowing it could not recover the cost of 
intervention. It still has the discretion to intervene, but it's not a duty. 
As long as 'may' means 'may' and not 'must' or even 'should'. Or 'really 
ought to, eventually'. But I don't think anybody could predict what a 
maladministration-based action would throw up.

Anyway, the scanario presupposes tha the drisk is already discovered. I 
believe we were originally discussing the duty to discover. There is not a 
shred of evidence so far that such a duty exists, and much that it doesn't.   
  

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


Sent: Tuesday, November 06, 2018 at 7:44 AM
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 can see that 'joint and several' may not be the correct expression. But 
equally 'vests in' is not 'owned by'. 

I also still disagree. You seem to be saying that there is no circumstance 
where an HA can be found liable for harm caused by a neighbour's tree 
falling onto the highway. I am still not a lawyer, but what if the tree 
falls from neighbouring land of unknown ownership and the HA knew the tree 
posed an unacceptable risk, for example they inspected it, they tried to 
serve a notice but couldn’t find the owner?

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Julian Morris
Sent: 05 November 2018 22:36
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: RE: Cavanagh appeal judgement

s.263 of the 1980 Act "...every highway maintainable at the public expense, 
together with the materials and scrapings of it, vests in the authority who 
are for the time being the highway authority for the highway"

I see Mynors skirts around the issue of HA liability for private trees, but 
not in a desire to avoid the issue but because there is no apparent need to 
deal with it. His discussion of the House of Lords case Stovin v Wise leads 
on to a conclusion (p.202 of !st edition) that "...rather than waiting for 
the service of such a notice [s.154], owners should take action themselves 
to remove danger. If a tree does fall or shed a branch, and it is found 
that the cause was a defect that would have been apparent on reasonable 
inspection, it will not assist the owner to point to the failure of the 
authority to serve a notice." 

I rest his case. Not immunity, but since HA liability would first involve 
no liability by the owner, it's tantamount to immunity.

I don't think that joint responsibility comes into it, it would in any 
event be called 'contributory negligence' if a duty existed, which the 
courts and Mynors thinks doesn't. And several responsibility, the ability 
of someone to recover all losses from just one of either the owner or the 
HA, suggests a legal relationship between the HA and the owner, which 
cannot by any stretch of my imagination be construed from the Act. 

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


Sent: Monday, November 05, 2018 at 6:45 PM
From: "oisink@xxxxxxxxxxx.com" <uktc@xxxxxx.tree-care.info>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: Cavanagh appeal judgement

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.Microso
ft
Ed
ge
_8wekyb3d8bbwe/TempState/Downloads/original_version_well_maintai
ne
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/





--
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/