UKTC Archive

Re: RE: RE: Cavanagh appeal judgement

Subject: Re: RE: RE: Cavanagh appeal judgement
From: Julian Morris
Date: Nov 06 2018 09:36:36
MY reading (and there's been a lot of it recently) of the law is that the 
question of who has responsibility for trees on adopted highway land is a 
separate one from liability for trees outwith the adopted extent. The former 
is complex, and Mynors covers it well.

If you vouch for a tree being safe and the HA serves a notice saying it 
isn't, the notice can and should be challenged. Who has inspected it more 
closely? Who will be liable if it fails? The owner, I believe. 

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


Sent: Tuesday, November 06, 2018 at 8:22 AM
From: "Rupert Baker" <rupert_baker@xxxxxxxx.co.uk>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: RE: Cavanagh appeal judgement

Hi All,
A few points 
The highway authority only has responsibility for the adopted highway; the 
land beneath belongs to the adjacent owner/s (or, in the case of a newer 
development, to the long-vanished developer, presumably). 
There are often bits of land purchased (CP'd) by highway authorities for 
road 'improvement' sometimes never implemented but bought in the belief 
that they'd have the money in future. These are part of the adopted highway 
 When I was a TO, and we became a unitary authority, we discovered that we 
had inherited quite literally hundreds of small parcels of land owned and 
effectively forgotten about by the highway authority - many with trees on 
that no-one had formally inspected for decades- kept us very busy for a 
season! 
Now I'm a self employed arb, I still come across areas where the highway 
owns or has adopted part of a hedgebank/verge, immediately adjacent to bits 
in client ownership, and often with little obvious reason for the 
difference in ownership. 

As to responsibility, I'd be interested to know if there is a definitive 
answer. I used to believe, based on our practice, and long-term liaison 
with our Highways Dept, that private trees were only a reactive 
responsibility of the HA; ie if an obvious defect was reported or spotted, 
then a notice would be served, and if not complied with the work carried 
out. if urgent - we'd get asked to go and look at trees the highway 
inspectors had concerns about, and advise whether action might be needed or 
not - then the tree would be made safe and the costs recharged or absorbed 
if no owner found.
Then there was a tragic accident at Dartington in Devon, where a young girl 
was killed by a falling limb from a private oak by the road side. 
Litigation ensued; I do not know the outcome of the damages claim in terms 
of where the responsibility lay, but following the case, the County Highway 
dept started actively assessing trees on highway edges/hedgebanks where 
these were in private use, using private consultants and their own highway 
inspectors.  This suggested to me that they had been advised that there was 
a duty on the Highways rather than just a right - Julian's point as to 
whether it is 'may' or 'must'.....

I'd be interested to know the answer, as would a fair number of my clients 
who have been pissed off, to find that, having paid a consultant - me - to 
assess their trees for safety, they get form letters informing them that 
they must deal with such-and-such a 'dangerous' tree within a given time 
frame.
Quite often the tree is not one I have highlighted as needing action, and, 
on going to look at it, does not pose sufficient risk to require remedial 
work. (the others are mostly elm regen, ~20cm dbh, which have died between 
inspections; and in my experience stand quite happily for 4-5 years after 
dying).......
I guess until we get a case going up to the high Court, we are not going to 
know definitively
All the best

Rupert


-----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




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