Your essential guide to making sense of trees and the law

CHARLES Mynors is famous for being the original author of his weighty book, The Law of Trees, Forests and Hedges. Elizabeth Nicholls is co-author of the recently published (2023) third edition alongside Stephanie Hall. The book costs about £180 and has a small section on Scottish law.

However, opening his seminar on trees and the law in Scotland, Charles was quick to point out that the law relating to trees is pretty much the same UK wide – and most case law around trees and hedges happens in England, where 60 million people live and thus there is a higher chance of disputes arising in one of the most densely populated countries in the world.

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Another interesting aspect of trees and people is that very few people are killed by trees, usually only two or three annually in the UK, whereas about 1,500 are killed annually in motor traffic accidents.  Of course, there is a much larger number of people injured by trees – for example, motorists crashing into fallen trees, or getting injured by working with trees in both the arboriculture and forestry industries. 

Apart from death and injury, many tree-related legal issues occur when people cut trees down without permission, where they have become a shade and screening nuisance, and when trees cause damage to property. Trees are often under threat to make way for new buildings and transport networks.

Climate change and international trade have seen trees suffer from an ever-widening array of pests and diseases, together with more stormy, hotter, colder and wetter weather periods. This has highlighted the risk of trees failing and causing physical injury or even a perceived view that the risk of damage from trees has increased. Certainly, the current outbreak of ash dieback disease has increased the reality of the hazard from trees in poor condition progressing to decay and collapse. Also, many trees were planted in the early to mid 1800s and are thus reaching maturity or veteran status, which means they are often more likely to have decay issues.

It’s always a tricky business when trees with a preservation order on them are chopped down without permission. (Image: EA)

Charles also pointed out all the benefits trees provide to society and why there are now many laws to protect them and to protect the general public from them. Trees and the law is a wide subject taking in various pieces of legislation and case law relating to forestry, urban trees with tree preservation orders (TPOs) and conservation areas, and hedgerow laws now too.

The primary legislation north of the Border comprises the Plant Health Act 1967, Occupier’s Liability (Scotland) Acts 1960 and 1984, Roads (Scotland) Act 1997, High Hedges (Scotland) Act 2013, and the more recent Forestry and Land Management (Scotland) Act 2018. In Scotland this replaced the Forestry Act 1967 which still exists in England but was conceived in Scotland, and thus why there is still a Forestry Commission in England but not one in either Scotland or Wales.

TPOs and conservation areas are known as secondary legislation. In England you still get felling licences, but in Scotland felling permissions (still much the same). Case law comes from court decisions of course, and mostly from England. Most case law decisions are available at www.bailii.org.

Another interesting point raised by Charles is that tree roots are owned by the tree owner in the same way as tree branches are. The main duty of the owner of a tree and occupier of land is to act in a reasonable manner in minimising the known risk of damage or injury to one’s neighbour and the general public. ‘Reasonably foreseeable’ is the oft-used phrase when considering the failure of a tree, especially if it has caused harm to person or property. 

The level of tree surveys and frequency is a much-considered topic and of course the location of the tree is crucial when considering a tree-inspection regime.

All these topics were expanded upon by both Charles and Elizabeth, often reviewing relevant case law. All very interesting and relevant to the attendees of the seminar. Charles also made the point that incidents of trees falling onto buildings and cars etc often appeared in the press for the simple reason it does not happen very often and so is very newsworthy and photogenic.

According to Charles, it’s rare for trees to cause damage to property, but they often make headlines when they do. (Image: EA)

The point was made that in Scotland, environmental impact legislation means that even though forestry and the creation of new woodlands does not require planning permission it comes under the Environmental Impact Assessment (EIA) regulations, whereby any new woodland creation over 20 ha requires that the owner contacts Scottish Forestry for an EIA determination. The minimum area thresholds are less in sensitive areas and do not exist in national parks, where all new planting requires a determination. In reality only a tiny number of woodland creation schemes ever require an EIA.

All in all, it was a very useful seminar, both for the delegates hearing the speakers for the first time and as a refresher for those who had heard the speakers before. Taking reasonable care to ensure that people are reasonably safe seems the underlying theme of the law.

To avoid litigation, Charles highlighted the need to assess risk and inspect with appropriate care with a programme for re-inspections which prioritises those trees in areas where the risk is greatest, taking action as required while keeping good records. 

I enjoyed the seminar and thanks to Matt Cooper for organising it.