The law is clear; any organisation maintaining land on which trees are located should have proactive systems in place. These systems should seek to appropriately cover issues as they relate to the organisations legal duties. The law seeks to protect all those who access your land, be they employees, tenants or members of the public. People and property should not be exposed to unreasonable risk. In the event a tree fails, a lack of appropriate systems could lead to prosecution.
The Health & Safety at Work Act 1974, Occupiers Liability Acts (1957 & 1984), Management of Health & Safety at Work Regulations (1999) and others all establish responsibilities in this area. In addition case law has helped define interpretation by the courts.
Appropriate policies on the management of trees are useful. They help to enshrine your organisations process. They provide a clear line of sight as to how you manage the issues, whilst demonstrating to stakeholders that your organisation understands their legal duties in this area. In general terms systems relating to issues of tree management should be proportionate, consistently applied, proactive, reasonable and comply with Health & Safety Executive SIM 01/2007/05 – Management of the risk from falling trees.
Utilising software systems to assist in the management of trees can deliver significant cost saving efficiencies. In addition this approach can ensure consistency of data handling ensuring accurate records and data control.
The level of data that should be collected on trees is not defined in law. Decisions can therefore be made regarding the level of data collected to ensure this is proportionate to any costs. However, what is clear is that you should proactively report on the condition of the tree. If there are no defects present this should be noted, if you have undertaken a tree survey and have not recorded when a tree is defect free how would you demonstrate that it had been subject to a thorough inspection in the event it subsequently failed? It should never be the case that you have tree records but no information on whether a defect is, or is not present. Furthermore, it is advised that a record is made of the risk associated with the trees. This approach ensures that re-inspections are appropriate to the risk ensuring that trees close to targets (roads, bus stops, children’s play areas, falling distance of tenant’s houses etc) are inspected more frequently than those located away from such targets. This approach is reasonable, aligned with the HSE SIM, and saves money. A proactive system can help quantify ongoing management and inspection budgets.
Case law has established that those who undertake safety inspections on trees and report upon their condition should be appropriately qualified. In the event that a tree failed and your organisation had used someone without appropriate experience or qualifications in this area, how would you defend basing decisions on their inspection? The level of experience and qualifications of anyone commenting on the safety of your tree stock is a fundamental consideration in managing exposure in this area.
Whilst statistically areas of public open space represent the greatest risk many Registered Social Landlords also maintain trees within tenant’s gardens. A different approach to managing this area may be implemented to develop an asset register of properties with, or without trees. Reviewing the particulars of tenancy agreements may be considered. Building in an appropriate assessment when properties are changing between tenants may also be appropriate. Publicising information on the management of trees through specific leaflets, or in the resident’s newsletter may also help to demonstrate that your organisation has an understanding of the issues involved. The key element is consistency, if work is undertaken for some tenants (sheltered units for example) but not others, is this approach defined within an appropriate policy?
Without doubt the greatest risk is from accidents whilst tree surgery works are being undertaken. Our research demonstrates that failure to have appropriate systems in place would not be defendable in the event an accident occurred. Having current insurance certificates would not constitute effective management in this area. There are extensive regulations relating to the qualifications that can be achieved, maintenance of appropriate tools and equipment etc. www.arbnet.co.uk allows you to outsource this exposure, deliver consistency and benefit from competitive tendering. Corporate Manslaughter & Corporate Homicide Act 2007 establishes that management failures that lead to death can result in significant fines of up to 10% of group turnover.
A proactive system delivers additional benefits. For example, you may be able to proactively manage your subsidence risk, deliver long term sustainability goals, enhance resident estates and take control of the long term financial implications of tree management. Managing your tree stock does not have to be a complicated process, but requires attention to detail to ensure that it is correctly set up and managed in this way you help limit your organisations exposure in law.
Keiron Hart (BSc Hons, C.Env, F.Arbor.A)
Head of Insurance Services, Marishal Thompson Group
08702 416 180