In this blog I will be discussing the management of trees from the context of social housing in Scotland although the general principals in this blog will be relevant to other areas. Trees have many social and environmental benefits but if left unmanaged can present a risk to people and property especially given the recent high winds and storms we have seen.
Both trees within tenant’s gardens and trees within communal areas will need to be considered. The legal commentary on paragraph 2.10 of the Scottish secure tenancy agreement states that in common law, the landlord is the owner of plants and trees growing on the landlord’s land and gardens even if the tenant planted them.
So taking this point to its logical conclusion it would seem the landlord has a responsibility to ensure the safety of all trees regardless of whether they are in communal land or tenants gardens.
There is also the Occupiers Liability Act (Scotland) 1960 which places a duty of care on the landlord to those who enter their land or its vicinity. The Forestry Commission’s practical guide ‘Hazards from trees’ states the following:
The Courts expect occupiers to make regular inspections of trees that, by reason of their position, could place people or property at risk. It is also expected that they should, if necessary, obtain specialist guidance on the interpretation of symptoms and assessment of tree safety and to take reasonable steps to reduce risk where appropriate. If specialist advice is sought, it should be followed: failure to do so could be interpreted as negligence.
I think this really spells out in perfect terms the expectation that trees must be managed. Ignorance will land you into trouble but having a specialist carry out a survey and then subsequently not following the recommendations will land you in far deeper trouble. Insurers will also expect a system of regular inspections to be in place and this could well be the first thing they ask when a claim arises.
Therefore if a landlord knows that they have a substantial amount of trees within their stock which have never been professionally surveyed, in my opinion the most sensible approach would be to conduct a phased survey as there is no point having a completed survey with no budget to complete the survey recommendations.
There is no such thing as a safe tree, in a severe weather event even the most stable of trees have the potential to come crashing down. With this being said, a risk assessment can still be conducted based on the visible hazards to allow the landlord to take all reasonable steps to reduce the risk.
Arboricultural reports can vary depending on the information you are looking for from simple reports to detailed plans with co-ordinates and CAD drawings. The purpose of the survey is to allow for the production of a prioritised work programme to manage trees based on a carefully assessed priority. The top priority would be trees that have a risk of causing harm to people or property and then lower priorities may include anything from trees causing a conflict with infrastructure to minor nuisances.
From a landlords position you want to be able to answer a tenant’s enquiry swiftly by checking the report, locating the tree in question and to quickly understand the trees condition to be able to give an immediate answer as a first line response. So the report needs to be laid out in such a way to facilitate this.
The most important part of a tree report will be the recommendations on what needs to be done to make the tree safe. Generally speaking the section containing the tree works recommendations will include the following:
- Tree location
- Tree ID (each tree can be tagged with a unique ref number)
- Tree type and size
- Tree maturity and condition class
- Tree quality rating (based on BS 5837)
- Work recommendations
- Urgency (when it should be done by)
- Tree work priority
Frequency of inspection is going to be based on the risk present but also after any severe weather events. When deciding whether to remove a tree it must first be considered whether the tree is subject to a tree preservation order or if it is in a conservation area. Cutting down trees within a conservation area can lead to fairly heavy fines if found guilty.
How do trees fail?
Some of the hazards which affect trees include:
- Abrupt bends in branches
- Tree leaning
- Fungi such as brown rot
- Decay at the stem base
- Excessive drooping of branches
- Top-heaviness due to excessive pruning of stem
- Exposure of previously sheltered trees
- Instability due to restricted rooting
- open cracks on stems
There are plenty of good sources of information out there on identifying tree defects, the forestry commissions practical guide would certainly be a good place to start if you are looking to find out more.