Ash Dieback - What are my Responsibilities as a Landowner?
- AuthorJCP Solicitors
Landowners across Wales are becoming concerned about the potential dangers of diseased trees on their land – particularly with Ash Dieback cutting a swathe across the landscape.
Ash Dieback, also called Chalara Ash Dieback, is a fungal disease which originated in Asia, and its introduction to Europe has devastated the European ash, which has no natural defence against it. It is estimated that 95 percent of the UK ash tree population will be affected by the disease and, despite ongoing scientific research, there is currently no cure or treatment.
Clearly, farmers are concerned about trees on their own land, but they have responsibilities to deal with trees which straddle the highway, footpaths or other public areas.
The legal position is that the owner of the land where a tree stands is responsible for the health and safety of those who could be affected by that tree. Liabilities can arise if trees or branches fall. So, it is important that landowners can recognise the symptoms of Ash Dieback, and other diseases, so they can deal with trees which pose a risk.
There are a number of online resources to help identify Ash Dieback symptoms, including on Natural Resources Wales, the Forestry Commission, and the Woodland Trust websites. However, for those unsure of the risks their trees may pose, it is important to consult a fully insured tree management professional, particularly in light of case law.
In one case, decided in 2006, it was held that landowners whose trees abutted the highway were in breach of their duty of care when a tree had fallen into the road. It was found that the tree was undermined by a combination of a visible structural defect and a fungal infestation that had not been spotted by a forestry inspector. In that case, The Court decided that a forestry inspector was not sufficiently qualified to detect Ash Dieback, and if a competent inspector had carried out a reasonable and proper examination, the fungal defect would probably have been spotted.
Landowners must consider public safety and monitor their trees, particularly in areas with high levels of public access. It is the landowner’s responsibility to take steps to reduce any risks, even on private land, where a duty is owed to trespassers.
Reducing risks by cutting back branches or felling a tree and carrying out risk assessments will provide some defence if an incident occurs. Landowners should remember that felling trees, even those with a disease, is likely to require a felling licence from the Forestry Commission. Failure to obtain a licence will be an offence. There are certain exemptions within the Forestry Act 1967, including where trees are felled to prevent danger or have a diameter not exceeding 8cm, or not exceeding 15cm, in the case of coppiced underwood.
The danger exemption applies only where there is a real, rather than perceived, danger. Credible evidence can support a landowner’s decision, and photographic records, site surveys or reports, and inspection checklists should be kept.
For further advice, please contact our specialist Rural Practice Solicitors in:
- Swansea: 01792 773773
- Cardiff: 02920 225472
- Carmarthen: 01267 234022
- Caerphilly: 02920 860628
- Cowbridge: 01446 771742
- Haverfordwest: 01437 764723
- Fishguard: 01348 873671