Witley Parish Council v Cavanagh (2018) – a legal perspective

The result of Witley Parish Council v Cavanagh has caused understandable concern that we have reverted back to a time when ownership of a tree brings such onerous obligations that early felling is seen as a reasonable mode of risk avoidance. Is that concern really justified?

THE EFFECT OF THE COURT OF APPEAL JUDGMENT IN
WITLEY PARISH COUNCIL V CAVANAGH [2018] EWCA Civ 2232
A LEGAL PERSPECTIVE

Richard Stead – Barrister (St John’s Chambers, Bristol)

1. The result of Witley Parish Council v Cavanagh has caused understandable concern that we have reverted back to a time when ownership of a tree brings such onerous obligations that early felling is seen as a reasonable mode of risk avoidance. Is that concern really justified?
2. The tree
   The tree was a mature lime tree approximately 20 to 30m in height. The judge at first instance (Sir Alistair Macduff, Deputy High Court Judge) described it as being “part way to being a ‘high risk category tree’. It was large. It was mature on the cusp of being old. It was heavy. It was leaning in the wrong direction. True, it appeared healthy to all but a detailed visual inspection; there was no excessive deadwood or lack of foliage. But it was clearly a higher risk than a smaller tree; than a younger tree; than a lighter tree; than a tree leaning the other way.”
3. The location
   The tree grew on land owned by Witley Parish Council (“Witley”) which adjoined the A283 Petworth Road, Surrey. The road, a bus stop, a bus shelter and a dwelling house were within falling range of the tree. “It was obvious to even the non-expert eye that should it fail, it would fall into and across the road”. It was considered to be a “high risk location”.
4. The accident
   On 3 January 2012, after a stormy night, the tree fell across the road when a bus was passing. The cab of the bus was crushed and the driver suffered severe personal injuries. The tree also caused damage to the dwelling house on the far side of the road.
5. The cause of the tree failure
   The tree failed due to severe and extensive decay in the root system extending into the base of the trunk. The high wind was the trigger for the failure.
6. The observable condition of the tree in 2012 prior to failure
   The Judge at first instance stated that the tree leant towards the road and was “to a cursory observation, in healthy condition”. He recorded that: “It is also common ground that there was no obvious signs of ill health to a ‘drive past’ inspection; nothing to alert a competent arboricultural inspector that the tree was or might be unhealthy. However, a proper and competent ground level survey, of the sort …… contracted in 2006 and 2009 would have detected a well-advanced fungal bracket”. The bracket was 300mm above ground level and there were some fruiting bodies clearly visible at the rear of the tree.
7. The inspections in 2006 and 2009
   Witley operated a three yearly inspection of its trees. In 2006 works of removing deadwood and thinning of the Lime tree were recommended and carried out. The 2006 survey was stated to be “for 24 months”. The tree was inspected again in 2009 at a time when no fungal bracket would have been apparent on a full and proper inspection. The bracket was just beginning to form in the late summer of 2009.
8. The inspection regime – should the tree have been inspected every 2 years rather than every 3 years?
   The Judge stated: “Like all trees it could be struck with disease at any time. Latent root rot might be developing but not showing. A three year period of neglect could be crucial; - as it turned out to be”. He relied on the Forestry Commission Guide “Hazards from Trees” (2000) which states:
   
   “A third zone, representing a need for inspection to be carried out more frequently as well as after severe storms, may be appropriate for the strip along the public road. The need for such a zone applies especially if the road is busy and if the trees are large or old enough to represent a significant potential hazard. The same category of zoning for inspection may also be satisfactory for the amenity and car-parking area, where people and property are close to trees for much or all of the time. However, this area will probably need to be placed in a somewhat higher category, to take account of the need for inspections to be done with especial rigour. Also, the usage of this zone may be more conducive to trees becoming hazardous, for example due to vehicle impacts and soil compaction.”
9. The Court of Appeal at para. 36 appear to have misinterpreted the Guidance when stating that “there is no answer to the force of the point being made in this passage about the need for particular ‘rigour’ in inspecting large trees which are adjacent to a main road and which represent a significant potential hazard”. The passage in the Guidance only requires “especial rigour” in inspecting trees adjacent to amenity and car parking areas. Furthermore, the Guidance does not specify a period for inspection save for “large old trees” when “an inspection frequency of one year or more is generally advisable where such trees occur on high-usage sites”.
10. Apart from the Forestry Commission Guidance the trial judge relied on the following factors:
    1. Witley had asked in 2009 for an individual report on the tree which suggested that the tree had been singled out because of its position and potential for harm, which recognised a need for especial care.
    2. Witley had been advised in 2006 that the inspection period should be 2 years, and knew that the Borough Council inspected trees in high risk locations every year.
    3. Witley had inspected all of its trees on a three year cycle without distinguishing between its trees or the areas in which the trees were located. Following the accident it implemented a zoning policy with more frequent inspection of trees in high risk locations, and less frequent inspection of trees in areas of little or no risk.
11. The facts of the Witley case do, however, demonstrate that a mature Lime tree can develop critical decay within a 3 year period, such that the tree became a “high risk tree” in a “high risk location”.
12. The HSE SIM
    The Judge at first instance adopted a restrictive approach to the HSE SIM on the grounds that it “sets standards which a land owner must meet in order to avoid prosecution. It does not claim to set the levels of a duty of care required by the prudent land owner within the civil jurisdiction. If it pretended to do so, it would be significantly at odds with that which the FC Guide recommends; and it would contradict many a decision of the courts”. The Court of Appeal adopted the view that the SIM was out of line with the FC Guidance, and that it may be because the HSE was setting out a less stringent inspection regime because it was concerned with criminal liability rather than civil liability, and because it was only an example of when a tree required inspection.
13. The courts’ approach to the SIM does not take account of the circumstances in which the SIM was written following the case of Poll v Viscount Asquith of Morley (11.5.06). It would be very interesting to obtain the view of the HSE as to what it intended when drafting the SIM, which was issued after extensive consultation and in response to the uncertainty following Poll. The SIM is in line with the NTSG guidance, and may well, therefore, reflect a more considered approach to the actual risks caused by falling trees and branches. Coulson J. (as he then was) took the guidance and the approach advanced in the SIM and the NTSG guidance into account when formulating the legal principles he set out in Stagecoach South Western Trains v Hind [2014] EWHC 1891 (TCC). Those principles were approved by the Court of Appeal in Witley at paragraph 26.
14. The guidance considered by the court
    The court in Witley primarily relied upon the Forestry Commission Practice Guide (2000) Hazards from Trees. The court did not consider the NTSG guidance Common Sense Risk Management of Trees (2011) which was also published by the Forestry Commission (written by the National Tree Safety Group which included the Forestry Commission as a stakeholder). It is not clear whether such guidance was referred to in the expert reports or whether the court was aware of the existence of the guidance. The court may have simply taken the view that such guidance was not relevant since it was not published until after the accident, and that liability should be assessed against standards current at the time of the accident. However, reference to the NTSG guidance, together with the HSE SIM, would have demonstrated the thinking that was apparent at the time of the accident and which led to the publication of the NTSG guidance in September 2011. Given that the standards advanced in the later documents were less stringent than the earlier document, it would have been perfectly reasonable for the court to have considered the later documents. It would have been wrong to consider the later documents if they had been more stringent than the earlier documents which could reasonably have been considered by a land owner to set the standards for land owners at the time of the accident, since they would have imposed a higher duty than the landowner would reasonably have been aware of at the time of the accident.
15. As a result of the court not giving consideration to the HSE SIM and the NTSG guidance, it did not give consideration to the risk analysis that was addressed in those documents. That is unfortunate because the risk analysis underpins the approach taken by the HSE SIM and the NTSG guidance, when highlighting the benefits of trees compared to the limited risk of injury caused by trees. This was recognised by Coulson J. in Stagecoach v Hind when he described the SIM: “This document is principally aimed at local authorities and those dealing with trees on a regular basis. It sets out to balance, on the one hand, the benefit and value of trees, with the “limited” risk that they pose”.
16. The Court of Appeal judgment
    The Court of Appeal (“CA”) in Witley emphasised that the appeal was only concerned with “a challenge to the judge’s findings of fact and his evaluation of the evidence”. The CA found that “the judge’s reasoning in relation to the need for inspection at least every two years and his conclusion as to the liability of the Council are unimpeachable”. The CA was assessing the first instance judgment on the basis of the evidence in that particular case. It is not of universal application. At most, the case gives guidance that a mature tree in a high risk location should be inspected every two years, particularly if it receives no other reasonably informed inspection in that period. A similar case decided now by reference to the HSE SIM and the NTSG Guidance might well reach a different outcome. If the Judge had not preferred the evidence of one expert to that of another, the outcome might well have been different.
17. No challenge was made in the CA to the legal principles applied in the case and summarised in Stagecoach South Western Trains v Hind [2014] EWHC 1891 (TCC) at para. 68:
    
    “[68] Accordingly, I consider that the principles relating to a landowner's duty in respect of trees can be summarised as follows:
    1. The owner of a tree owes a duty to act as a reasonable and prudent landowner (Caminer);
    2. Such a duty must not amount to an unreasonable burden (Lambourn) or force the landowner to act as the insurer of nature (Noble). But he has a duty to act where there is a danger which is apparent to him and which he can see with his own eyes (Brown);
    3. A reasonable and prudent landowner should carry out preliminary/informal inspections or observations on a regular basis (Micklewright and the first instance cases noted in para 66 above);
    4. In certain circumstances, the landowner should arrange for fuller inspections by arboriculturalists (Caminer, Quinn). This will usually be because preliminary/informal inspections or observations have revealed a potential problem (Micklewright, Charlesworth and Percy), although it could also arise because of a lack of knowledge or capacity on the part of the landowner to carry out preliminary/informal inspections (Caminer). A general approach that requires a close/formal inspection only if there is some form of “trigger” is also in accordance with the published guidance referred to in paras 53-55 above.
    5. The resources available to the householder may have a relevance (Leakey) to the way in which the duty is discharged”.
18. Discussion
    Stagecoach concerned a landowner who was a dwelling house owner with a garden in which a tree grew adjacent to a railway line. A distinction can be drawn between a householder and a public body, such as Witley. However, both entities have an obligation to inspect. In the cases of Stagecoach, Corker v Wilson and Selwyn-Smith v Gompels the householder was considered to have satisfied the duty of care by ongoing informal and regular inspections. In the case of Atkins v Scott, an estate owner was found to have satisfied the duty of care by informal and regular inspections by estate staff during their normal duties. In Micklewright v Surrey County Council [2011] EWCA Civ 922 the Court of Appeal did not challenge the findings of the trial judge, in relation to a roadside tree, that the County Council should have carried out “a quick visual inspection carried out by a person with a working knowledge of trees as defined by the HSE” (see para. 9 of the Court of Appeal judgement) and, if a defect had been identified, a second inspection by an arboriculturalist. The expert evidence in Micklewright was that the preliminary inspections should have been carried out every two years. It is notable that Micklewright was not referred to in the judgments in Witley, at first instance or in the Court of Appeal. We are now in a position where the Court of Appeal did not question the court’s reliance upon the HSE SIM in 2011 in Micklewright, but has done so in 2018 in Witley.
19. There is a common denominator between all of these cases; namely, that there should be an inspection by a person with a working knowledge of trees on a regular basis, which should be followed by a more detailed inspection by a suitably qualified expert in the event of a visual defect being observed which may be indicative of failure.
20. In Witley there was no evidence of an employee or agent of the Parish Council carrying out informal visual inspections between 2009 and 2012. If such inspections had been carried out, then the fungal bracket may have been identified and an expert inspection may well have followed. If an organisation leaves formal inspections to be carried out at three yearly intervals, without any intervening informal inspections, then they run the risk of mature trees developing visible signs of decay and failing as occurred in Witley. If annual informal inspections (by either close observation of trees in the course of carrying out other tasks or individual inspections with the sole object of assessing whether there is any defect to be seen) had been combined with an expert inspection every three years, then such a regime might well be seen as reasonable for a mature tree in a high risk location. The regime should pick up on observable defects during the 3 year period, whilst the risk of a non-observable defect occurring and leading to the failure of the tree within the period is potentially reasonable given the very low level of such a risk.
21. Witley was a case decided on its own facts. It does not change the legal principles applicable to such cases. The task of an appellant in overturning a decision made on the facts by a judge who had the benefit of hearing the evidence is always difficult. In this case the trial judge preferred the evidence of one expert, whose position changed, rather than that of the other expert who was consistent in his opinion.
22. The manner in which the court treated the HSE SIM is open to debate. The SIM was written with regard to the Health and Safety at Work Act 1974 (“HSWA”) which requires that reasonably practicable steps are taken to ensure safety. Paragraph 6 of the SIM also refers to other legislation such as the Occupiers’ Liability Act 1957. Paragraph 7 states: “This SIM provides guidance on handling these issues and approaching enforcement decision for HSE Inspectors and LA Enforcement Officers. Stakeholders, including LAs (as duty holders), major landowners and arboriculturalists are being encouraged to agree a simple tree management standard. Given the large number of trees in public spaces across the country, control measures that involve inspecting and recording every tree would appear to be grossly disproportionate to the risk. Individual tree inspection should only be necessary in specific circumstances, for example where a particular tree is in a place frequently visited by the public, has been identified as having structural faults that are likely to make it unstable, but a decision has been made to retain it with these faults”.
    
    Paragraph 8 of the SIM states: “HSE believes that public safety aspects can be addressed as part of the approach to managing tree health and tree owners should be consider public safety as part of their overall approach to tree management. A sensible approach will ensure the maintenance of a healthy tree stock, the sound management of the environment and will usually satisfy health and safety requirements.”
    
    The background to the creation of the SIM was a state of uncertainty following the case of Poll v Viscount Asquith of Morley in 2006. The SIM was issued on 3 July 2007. The Forestry Commission then published, in conjunction with the National Tree Safety Group, “Common Sense Risk Management of Trees” in December 2011. The title page recorded that “The Health and Safety Executive was consulted in the production of this publication. It endorses the sensible, proportionate, reasonable and balanced advice to owners on managing the risk from trees set out in the guidance.”
23. In Witley, neither the trial judge nor the CA had the benefit of the background to the SIM, and did not take note of the breadth of the advice that was given in the SIM. The effect of the first instance judgment is to expose all tree owners to two different standards, that of the criminal law and that of the law of tort. It is singularly unhelpful to duty holders to have to seek to distinguish between the two different standards. In the field of employer’s liability law reference is frequently made to the guidance issued by the HSE in respect of manual handling and other risks. The guidance is used as a benchmark against which alleged negligence is judged as much as breach of statutory duty under the regulations pursuant to the HSWA. This approach was not questioned by the Court of Appeal in Micklewright or by Coulson J. in Stagecoach v Hind.
24. Conclusion
    Witley should not be seen as a radical departure from standard industry guidance. It is a case on its own facts. It does, however, highlight that zoning is still a material safeguard against the risk to the public, and that individual mature trees in high risk locations will need individual assessment.

Richard Stead
28.11.18

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