Witley Parish Council v Cavanagh

A landowner’s duty in relation to trees is that of a reasonable and prudent landowner. The duty does not make the landowner an insurer of nature, but requires reasonable inspection and action where danger is apparent or should reasonably be identified. Regular informal observations may be required, together with fuller arboricultural inspections where circumstances warrant them.

Inspection frequency is a fact-sensitive question. It must reflect both the likelihood of tree failure and the potential seriousness of injury or damage, including the tree’s size, maturity, weight, direction of lean and location. A uniform inspection cycle may be inadequate where a particular tree presents a significant potential hazard. An appellate court should not interfere with a trial judge’s evaluation of the evidence without a proper basis.

A mature lime tree on land owned by the appellant fell onto a road as the respondent was driving a bus, causing serious personal injury. The appellant had operated a three-year inspection regime for its trees. The trial judge found that the tree had been inspected in 2009, but that it should have been inspected more frequently because of its size, maturity and location beside a busy road, and entered judgment for the respondent on liability: [2017] EWHC 278 (QB).

The appellant challenged the judge’s assessment of the expert evidence and published guidance, including the relevance of the tree’s size, maturity and lean, and contended that the three-year regime was reasonable. The central issue was whether the judge was entitled to find, on the evidence, that this tree required inspection at least every two years.

1. Appeal dismissed. The trial judge’s findings and evaluation of the evidence were open to him and disclosed no ground for appellate interference.
2. The applicable principles, accepted by the parties as correctly stated in Stagecoach South Western Trains v Hind [2014] EWHC 1891 (TCC), were that a tree owner must act as a reasonable and prudent landowner. The duty must not impose an unreasonable burden or make the owner an insurer of nature. A reasonable owner should make regular preliminary or informal inspections, and arrange fuller arboricultural inspections where circumstances warrant them. Available resources may be relevant to how the duty is discharged.
3. The question of inspection frequency was one of fact and evaluation. The judge was entitled to consider the combined risk of failure and the consequences of failure. The tree’s maturity, size, weight, lean towards the road and position beside a relatively busy public road supported the conclusion that it presented a higher risk than smaller, younger or differently situated trees, even though it appeared healthy and no defect was apparent on a detailed visual inspection.
4. The Forestry Commission guidance supported a more rigorous inspection regime for large trees beside a busy public road which represented a significant potential hazard. The Court of Appeal agreed that the HSE Sector Information Minute did not assist in determining the appropriate frequency of inspection. Its example appeared to suggest a less stringent regime and was directed, at least potentially, to criminal enforcement rather than civil liability.
5. The trial judge was entitled to prefer Dr O’Callaghan’s evidence, viewed as a whole, to Mr Barrell’s evidence. Other evidence, including the possibility that mature trees with internal decay could fail within two years, supported the judge’s conclusion. The Council was negligent in failing to inspect the tree at least every two years, and the appeal was dismissed.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the order entering judgment for the respondent on liability, with damages to be assessed.
• High Court of Justice, Queen’s Bench Division: Sir Alistair Macduff, sitting as a deputy High Court Judge, entered judgment for the respondent on liability: [2017] EWHC 278 (QB).