2020-04-09
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Spotlight on …Trees!

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Posted by Jennie Wheildon on 09 April 2020

Jennie Wheildon - Agricultural Property Lawyer
Jennie Wheildon Senior Associate

Who is liable for a fallen tree?

The recent high winds have resulted in a large number of trees being blown down – and some with devastating consequences.  Events seem to suggest that the incidence of stormy weather may become an increasingly permanent feature of British meteorology so here is a guide to what to do and where liability lies if a tree on your land comes down or if tree debris causes damage, such as a drain blockage.

Who owns the tree?

Establishing ownership is the first step to determining responsibility. The answer is pretty obvious if the tree is standing well within the boundaries of your land. However, when it is growing within the roadside verge, establishing ownership becomes trickier. A search of your title deeds or Land Registry data may reveal the answer, alternatively a search with the highways authority will establish the full extent of the highway authority boundary.

If you are in doubt whether or not you own the tree, check the local highway authority’s website to see if they have a policy in place that governs the maintenance of trees abutting a highway.  Some authorities have a policy where they accept responsibility for maintaining those trees.  In the absence of clear guidance, it is worth clarifying the position with your local authority.

Making trees safe

If it transpires that you own the tree, you have a duty to ensure that the trees on your property are safe.  You will need to check the tree regularly for signs of damage or disease and carry out routine maintenance to remove dead branches and other hazards, which may require the advice and services of a specialist tree surgeon. It is important that you record the time and extent of your inspections and what, if any, maintenance you had to carry out as a result, bearing in mind that the purpose is to minimise the chances of passers by being hurt.

If your tree overhangs someone else’s property, they are entitled to remove the intruding branches back to the boundary line but should return the branches / wood / fruit back to you as the land owner. Your neighbour can only enter your land to cut back any branches with your consent. If, however, the tree is subject to a Tree Preservation Order (TPO), local authority permission must be sought before any work is carried out. Check with your local authority if you are concerned that any of the trees for which you are responsible are protected.

When it comes to tree debris i.e. leaves, twigs and sticks, there is no obligation to pick up leaves that blow on to someone else’s land.  However, tree debris could cause a drain blockage resulting in flood damage (for instance). Therefore, it would be prudent to check, as part of your regular inspection process, that tree debris is not causing, or likely to cause, any hazards.

Electricity wayleave

A number of our clients have been affected by an electricity wayleave running through their trees that lie within the roadside verge, making the maintenance and upkeep of the trees more difficult as they have had to comply with the terms of their agreement with the electricity provider.  Most of these agreements will prevent you from carrying out any works that may damage the electricity lines for very good, safety-related reasons. However, the electricity companies are usually very good at keeping on top of tree maintenance, not least as stray branches may interfere with their supply.  Contact the electricity provider if you are worried about the safety of a tree with an electricity wayleave. 

Liability

If someone is hurt by a falling tree or branch, the tree owner may face a negligence claim. This is why it is important to keep a record of your tree inspection and maintenance routine: if you can show you took the necessary steps to keep your trees safe it will be more difficult to prove negligence. By the same token it is important to check that any tree surgeon you use has appropriate public liability insurance in place. If you are found liable, the amount of any compensation you may need to pay will correlate with the extent of the damage caused by the tree and the seriousness of the accident. On a happier note, identifying liability for any damage caused by tree debris is considerably more difficult and any subsequent claim for negligence is unlikely to get very far.

Woodland Carbon Guarantee

When the UK decided to legislate for net zero greenhouse gas emissions by 2050, it was inevitable that carbon sequestration through tree planting would play an essential role. The Woodland Carbon Guarantee is designed to encourage more tree planting by allowing participants to sell “Woodland Carbon Units” to the government for an index-linked, guaranteed price every five or ten years until 2055/56. This regular income stream at viable rates is designed to encourage long-term investment in woodland which may otherwise be uneconomic. There is also the option of selling the carbon dioxide on the open market.

This will work through a series of reverse auctions, whereby the woodland owner needs to calculate the how much money is needed (per tonne of CO2) to make the project viable. If you are successful, the government then buys the carbon dioxide for the amount you bid.

To apply, register with the Woodland Carbon Code which has all the information you need to calculate the carbon that will be sequestered from your woodland. Auctions started at the beginning of 2020 and applications are open. You can find more information online from the Forestry Commission and GOV.UK.

HS2 Woodland Grant

If you are planning to plant woodland on your land that falls within 25 miles of the HS2 Phase One Route, you could be eligible to apply for HS2 funding to support the creation of native woodland or the restoration of Plantations on Ancient Woodland Sites. The scheme is open on a “first come, first serve” basis and there is approximately £5million available until 2023. Applications are assessed four times a year and the next deadline is 1 May 2020. 

You can continue to claim BPS but any newly created woodland must be protected from livestock grazing. The funding is not available if your land is under an Environmental Stewardship or Countryside Stewardship agreement, or the Woodland Carbon Fund.  The HS2 Woodland Fund Review Panel will review applications and allocate funding to successful bidders who will need to meet threshold criteria. You can find the details on line at gov.uk/guidance/hs2-woodland-fund.

Tags: Agriculture

About the author

Jennie Wheildon

Senior Associate

Jennie advises on commercial property including land acquisition and disposal, landlord and tenant, refinance and charging, residential development and site set up, overage and clawback agreements.

Jennie Wheildon

Jennie advises on commercial property including land acquisition and disposal, landlord and tenant, refinance and charging, residential development and site set up, overage and clawback agreements.

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