In a timely response to the Ash Dieback advice being provided by Natural England to landowners and farmers with Environmental Stewardship and SSSIs, PLC has published its comments today on landowners’ responsibilities for trees overhanging the public highway (set out below). This is clearly information that our farming clients, estate owners, equestrian land owners and other private property owners should digest and particular care should be taken at this moment in time with Ash trees adjacent to the public highway in light of the spread of Ash Dieback disease.
The owner of land adjacent to a highway owes a common law duty to take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure his neighbour. The same duty applies regardless of whether a tree is adjacent to a public highway or any other land.
The tree owner may be liable in negligence, nuisance (or both negligence and nuisance) if damage or injury is caused to a motorist or pedestrian by a tree encroaching onto the highway from private land.
There are several cases where a claim was made against the tree owner:
- Noble v Harrison  2 KB 332: a tree on the defendant’s land overhung the highway. A branch fell on the claimant’s vehicle, which was passing on the highway. The tree owner was not liable as he had not created the danger and had no knowledge of its existence.
- Caminer v Northern & London Investment Trust Ltd  AC 88: a tree on the defendants’ land fell on the claimants’ vehicle and injured them. The tree had suffered from a disease, although this was not obvious. The House of Lords held that the tree owner had adhered to the standard of conduct to be expected from a reasonable and prudent landowner and it was not liable.
- Quinn v Scott  All ER 588: a beech tree fell across the highway and caused a vehicle to go out of control. The vehicle struck the claimant’s car and caused him injuries. A forestry adviser had been employed by the tree owner and the tree was not felled despite signs of disease. The tree owner was liable in negligence.
To avoid the risk of litigation, it is advisable to have trees that are close to highways regularly inspected. The textbooks suggest that the frequency and detail of inspection should depend on how heavily a particular highway is used.
You should also be aware of the statutory powers of the highway authority, which are set out below. It is sensible for tree owners to undertake necessary works to trees, to remove a possible obstruction before action is taken by the highway authority.
Duty and discretionary power of the highway authority
In general, where tree branches or roots encroach onto neighbouring land, the owner of the neighbouring land has the right to cut back the encroaching branches to the boundary. This is known as the common law right of abatement (Lemmon v Webb  AC 1 HL). Where tree branches overhang a public highway, the highway authority does not have an absolute right of abatement (see Wandsworth Board of Works v United Telephone Company  13 QBD 904, which established that the highway authority’s ownership of the airspace above the highway extends only to the area of user).
A highway authority will normally rely on its statutory power to act, which arises where a tree, hedge or other vegetation is causing an obstruction of the highway.
Section 130 of the Highways Act 1980 (HA 1980) places a duty on a highway authority to prevent obstruction of the highway. Highway authorities have the right to remove trees obstructing the highway (Stillwell v New Windsor Corp  2 Ch 155). The duty applies regardless of ownership of the tree.
In addition, section 154 of HA 1980 grants the highway authority a discretionary power to serve notice on the owners of hedges, trees or shrubs which overhang a highway. A section 154(1) notice requires the vegetation to the lopped or cut to remove the obstruction or interference. The cost of the works will be borne by the owner of the vegetation.
There is also a distinct power under section 79 of the HA 1980 where the view of drivers and pedestrians is obstructed by vegetation on land or near any corner or bend in the highway/ junction of the highway with a road. Section 79 can apply to vegetation that is not overhanging the highway and can require specific works to be carried out to that vegetation