Page 6 - ALG Issue 3 2020

legal matters
Trees and responsibilities for self-managed sites
Many allotments have trees within the site or mature trees in the boundaries. This is an important consideration when associations are entering into leases.
Tree owners have a legal duty of
care; there are slight differences how these are interpreted in Scotland and Northern Ireland. Under English law there is a huge amount of case law and the information given in this article is based on past court decisions.
Under case law, a duty holder is a person or persons who have control of the tree’s management; this can be as owner, or lessee, licensee or occupier of the land on which the tree stands. The Highways Department also has a responsibility for any trees forming part of a highway.
Responsibilities on the landowner fall under both Civil and Criminal law. An owner of land on which a tree stands has potential liabilities arising from
a falling tree branch and health and safety responsibilities to those on or near the land. Where there are any breaches of those duties then through Civil law, damages may be payable. The Criminal law gives rise to prosecution in an event where there has been an infringement of Criminal law.
Under Civil law, the owner, together with any party who has control over the tree’s management, owes a duty of care at common law to all people who might be injured by the tree. Where a person is injured by a fallen tree or falling branch, this can give rise to an action, under the Occupiers Liability Acts 1957 and 1984. This is one of the reasons
for the requirement of Public Liability Insurance within self-management leases.
The duty owed is a duty to take ‘reasonable care’ for the safety of those who may come within the vicinity of a tree. Over the years the courts
have provided a definition
of what amounts to
reasonable care in the context of tree safety, that the standard of care is
that of “the reasonable and prudent landowner”. Under this definition, the tree owner is not expected to guarantee the safety of the tree; the owner has only to take reasonable care, such as could be expected of the reasonable and prudent landowner.
The courts have not, however, defined the standard of inspection required, so case law indicates that a landowner must identify those trees which might, if they fell, pose a risk to people or to property. In this case the trees should be inspected to identify any obvious defects. If the landowner does not have sufficient knowledge then someone with the appropriate expertise should assess the risks.
Tree owners should take a balanced and proportionate approach to tree management with a suitable and sufficient risk assessment. It is difficult within a short article to outline all the issues that may be encountered but it is important to outline the key steps to take for tree safety management.
THE ESSENTIALS
There should be a reasonable balanced approach with a tree strategy for sensible tree management, which forms a plan that guides management decisions and practice in a reasonable and cost-effective way covering:
• Appreciatingtreestockonsitein relation to people or property
• Carryingouttreeinspections
assessing any defects
• Managingtheriskatanacceptable
level, identifying, prioritising and undertaking safety work according to the level of risk.
To help further with your management of trees on site, the National Tree Safety Group published by the Forestry Commission, have produced an excellent booklet “Common Sense Risk Management of Trees” which takes you through the following:
• TheObjectivesofTreeManagement • UnderstandingtheRisksfromTrees • WhattheLawSays
• ReasonableBalancedTree
Management
• HowthisGuidanceCouldBeApplied
I would strongly recommend this
The duty owed is
a duty to take ‘reasonable care’ for the safety of those who may come within the vicinity of a tree
document to all self-managed sites. This can be found at ntsgroup.org.uk.
Also, as a member of NAS, you may be interested in “England Tree Strategy Consultation” which was launched by DEFRA on the 19th June 2020 for 12 weeks ending on the 11th September 2020.
https://www.gov.uk/government/news/ consultation-launched-on-the-england- tree-strategy
The NAS will be making a response so, if you have any comments, these should be sent to natsoc@nsalg.org.uk for
the attention of Liz Bunting, Legal and Operations Manager.
Liz Bunting,
Legal and Operations Manager
6 Allotment and Leisure Gardener
General Insurance Scheme
In relation to recent changes to the General Insurance Scheme, details are outlined opposite. Shield have acted as the broker for any policies taken out by our members. NAS had discussions with Shield in mid-January as they were about to re-structure their business and re-locate from Brentwood to Redditch. As a consequence of these changes, Shield (as broker) have passed our scheme along with several others to Chris Knott (broker); details are given opposite.
This in no way impacts on the insurance policies offered to our membership via Vantage; it
is an identical insurance policy at the same rates, via the same underwriter. It is purely the customer service element that has changed, so, for the future, Chris Knott are the brokers to contact with any queries or renewals. The only difference our members will experience is that you will be speaking to a different customer service team, based in Hastings rather than Brentwood. Also, this has all been carried out with the full knowledge of NAS and, although due to lockdown we have not been able to meet the new team in person, we have had numerous zoom meetings to ensure a smooth transfer. We also communicated with the membership via our NAS newsletter as soon as this happened. Shield have subsequently sent out a letter to all policy holders.
Snippet from Liz Bunting, Legal and Operations Manager