UKTC Archive

Re: RE: RE: RE: Cavanagh appeal judgement

Subject: Re: RE: RE: RE: Cavanagh appeal judgement
From: Julian Morris
Date: Nov 06 2018 10:53:01
Shorthand for "that the tree is not by reason of its condition, likely to 
cause danger by falling on the highway, road or footpath"


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


Sent: Tuesday, November 06, 2018 at 10:32 AM
From: Steve <arbor@xxxxxxxxxx.co.uk>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: RE: RE: Cavanagh appeal judgement

If you vouch for a tree being "safe" you are surely on thin ice as there is 
no such thing.

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Julian Morris
Sent: 06 November 2018 09:36
To: UK Tree Care
Subject: Re: RE: RE: Cavanagh appeal judgement

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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