30 July, 2020
At this time of year many of us enjoy and use our Council run green spaces, whether they might be city parks, suburban recreational areas or larger green areas further out from the centre of our Towns and Cities. These green spaces come in many different shapes, sizes and location types but ordinarily they have a number of common points, in that they usually have an abundance of flora and fauna. In particular, they often contain large and mature trees. Ordinarily, trees are the gentle giants of Local Authority parks and open spaces which provide habitats for numerous species and sanctuary for both wildlife and humans alike, from the more urbanised areas of human conurbations. However, as we move through the Summer months and out of lockdown, and ordinarily into the more weather volatile (not always the case) seasons of Autumn and Winter, it is worth reviewing and considering the steps and policies the Council has in place to ensure, so far as is reasonable, that members of the public and other users of green spaces are kept reasonably safe and any risk of harm or injury, particularly from falling tree branches, is minimalised.
In the Court of Appeal case of Cavanagh -v- Whitley Parish Council (2018), a bus driver was injured when a tree fell after a storm. The Court found that a 2 year inspection of the particular tree should have taken place, rather than 3 yearly, under the regime the Council had in place. Understandably Local Authorities, in their role as landowners, raised a number of concerns regarding the prospect of being faced with a similar claim. In particular the risk of an adverse finding by a Court in relation to the perceived lack of tree inspections or excessive time period between inspections. However, this case in fact highlighted the importance of assessing tree risk based on different factors, i.e. location, size and proximity to trafficked areas such as road and pavements, and did not seek to apply the "one size fits all" approach to frequency of tree inspections and tree management. It also raised a number of points regarding the instruction of external Consultants to inspect trees and the importance of agreeing with them the nature of their instructions but also acting on their advice, if/when provided. In essence, if a Council instructs an external Consultant to provide a service of tree inspection, as if often the case, then they should be prepared to act on the advice given, or provide documented reasons and rationale for failing to act in accordance with the advice provided.
In addition, running alongside a civil claim there is also the potential risk of a Health and Safety prosecution. Fines are often significant as can be seen in relation to Wirral Borough Council who were fined £100 000 and ordered to pay costs of almost £50 000 after a pregnant woman lost her baby when a tree branch fell and hit her moving car. She was 36 weeks pregnant when she was driving her other 2 children to school when the branch fell from a tree and broke through her windscreen hitting her stomach. Despite her baby being delivered at hospital by emergency caesarean section, the baby sadly died within hours.
The HSE found that the Council had failed to properly manage the risks from falling trees and branches and had not properly inspected despite a previous similar incident. The Council have since reviewed and improved its tree management and inspections.