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Waverley Borough Council Committee System - Committee Document

Meeting of the Executive held on 04/10/2004
TREE RISK MANAGEMENT – AN UPDATE



Summary & Purpose
This report provides an update of the current position in respect of tree risk management. It proposes an approach in respect of what responsibility the Council assumes on different types of landholding in order to limit and clarify liabilities. The report also introduces a Tree Risk Management Guide in Annexe A which, in line with good practice, sets out why and how this Authority deals with its duty of care as it relates to trees on land under its control. The Executive is requested to endorse the proposed approach on areas of responsibility as well as the approach set out in the Guide.

Quality of Life Implications
Natural Resource Use
Pollution Prevention and Control
Biodiversity and Nature
Local Environment
Social Inclusion
Safe Communities
Local Economy
Natural
Resource Use
Pollution
Prevention and Control
Biodiversity
and Nature
Local
Environment
Social
Inclusion
Safe, Healthy
and Active
Communities
Local
Economy
Positive
N/A
Positive
Positive
N/A
Positive
Positive


APPENDIX R
WAVERLEY BOROUGH COUNCIL

EXECUTIVE – 4TH OCTOBER 2004


Title:
TREE RISK MANAGEMENT – AN UPDATE
[Wards Affected: All]

Summary and purpose:

This report provides an update of the current position in respect of tree risk management. It proposes an approach in respect of what responsibility the Council assumes on different types of landholding in order to limit and clarify liabilities. The report also introduces a Tree Risk Management Guide in Annexe A which, in line with good practice, sets out why and how this Authority deals with its duty of care as it relates to trees on land under its control. The Executive is requested to endorse the proposed approach on areas of responsibility as well as the approach set out in the Guide.



Quality of life implications – social, environmental & economic (sustainable development):

Natural Resource Use
Pollution Prevention and Control
Biodiversity and Nature
Local Environment
Social Inclusion
Safe, Healthy and Active Communities
Local Economy
Positive
N/A
Positive
Positive
N/A
Positive
Positive

There are a range of positive environmental, social and economic benefits associated with this report. Appropriate management of potentially hazardous trees has positive environmental and social benefits. Local employment is created and there are secondary markets for some of the timber.

E-Government implications:

A database of tree locations, risk zones and inspection records will be held electronically.

Resource and legal implications:

The Executive has already approved a capital budget of 80,000 (General Fund) and 20,000 (HRA) for 2004/05 for tree risk management. There are no additional resource implications resulting from endorsement of this report and its Annexe. Endorsement will strengthen the Council’s legal position if its management of risk posed by trees were to be challenged or scrutinised.

Background

1. The issue of detection and management of hazards in general and specifically those posed by trees has been well rehearsed in reports to Members in recent years. It has been accepted that Waverley Borough Council (WBC), as the occupier of land, has a duty of care to prevent harm to people or property arising from, amongst other things, trees on that land. A policy for dealing with dangerous trees on Council owned land was agreed in January and February 2002.

2. The policy was developed to make provision for an established Tree Officer, who has now been appointed to assist WBC to minimise risks posed by trees. One of the first tasks for this officer was to assess the current status of tree risk management and to review the strategy on how to practically and reasonably tackle the task on a permanent basis. The strategy is incorporated in the ‘Tree Risk Management Guide’ attached to this report.

3. Although tree risk assessment has been carried out over the years, only since 2002 has a programmed approach been adopted. As a consequence, and because of the uncertainty of responsibility for certain land, whereas the majority of our land holding is clear, the precise total tree stock and its overall condition is unknown. It is likely to take several years of ongoing tree surveying before a clear picture emerges in respect of total numbers and precise condition of the Council’s trees.

4. The Council’s responsibility for tree risk management is affected by the legal nature of land ownership, management or other land involvement. In order, therefore, to ensure that the Council’s resources are spent prudently, it is important to identify which liabilities apply to what land.

5. Waverley has a duty of care to the Borough’s residents and visitors for land and trees within its charge. Litigation is increasing against Local Authorities and public expectation that councils will provide a safe environment is also high. Clearly, a properly constructed and managed approach is required to ensure that Waverley investigates the risks associated with hazardous trees as much as possible.

6. Although trees can pose a risk in other ways too, such as causing subsidence to properties or root damage, this report only deals with the risk posed by partial or entire collapse of trees (tree failure). Management of risk in this area helps to prioritise action which is essential given the scale of the Council’s responsibility and the limitations on resources. Risk management is about making “as reasonable as practicable” endeavours to identify and address observable hazards and to maintain good records of such management.

Areas of Responsibility

Land Owned and Managed by WBC (not leased to others)

7. The Council is responsible as owner and occupier for regular tree inspections and carrying out of identified works. This applies to the majority of WBC sites.

Land Leased from Others and Managed by WBC

8. The Council is responsible for any trees as lessee/occupier unless such responsibility is specifically excluded from the lease and worded as such in the document. The latter is rarely the case in most long leases and therefore, heavily used and wooded sites such as Frensham Common (385 ha) leased from the National Trust, Blackheath Common (100 ha) leased from a private owner and parts of the Downs Link (totalling about nine miles in length, both owned and leased) leased from Surrey County Council, are all Waverley Borough Council’s responsibility.

Land Leased from WBC to Others

9. In line with the above, in law, leaseholders obtain possession of the land and become occupiers and therefore take over the benefits as well as the responsibilities including a duty of care. Again, this liability can be specifically excluded in the terms of the lease and whether or not the leaseholder is responsible for trees on land included in a lease depends not only on the terms of the lease but also general law and case law. If the lease is silent on the subject, a duty of care will generally apply to the leaseholder.

10. There are a number of old style leases which make reference to “timber” indicating that leaseholders are not allowed to cut certain trees. Case law indicates that, where reference to “timber” is made, generally it is only related to oak, ash and elm and also indicates that reference to “timber” is made largely from an economic crop perspective, an issue which has not, nor does now, apply to Waverley’s land. It is likely, therefore, that such clauses in a lease do not actually take away the duty of care of leaseholders to ensure that trees do not cause damage or injury.

11. Lease arrangements exist between the Council and farmers, or others with an agricultural interest. There are leases with companies for several commercial and light industrial sites and sites such as the golf courses in Farnham Park and at Broadwater. Additionally, there are several Parish Councils who lease land from Waverley within their Parish.

12. In all the above cases, it is clear that the leaseholders are responsible for trees as occupiers of the land and should have funds set aside for dealing with these matters where trees are present. In the case of Parishes, they are able to raise the necessary money through their precept. Most Parishes have taken on this responsibility actively as far as it relates to their land, often using external consultants to assist. Several tens of hectares and extensive tree cover are involved and, as such, it is proposed to write to all Waverley leaseholders to point out the duty of care position.

13. Other leasehold arrangements exist between the Council and non-commercial organisations such as Cricket and Football Clubs, Scouts and suchlike. It is unlikely, in the majority of these cases, that these organisations would have either the expertise or the finances to deal with potentially dangerous trees on sites they lease from the Council. As such, it might be more realistic for the Council to take on this responsibility in these circumstances. However, some leases may require amendment if the Council were to formally take over this responsibility.

14. Secure tenants of the Council are under an obligation not to carry out works to trees in their gardens without consent and the Council is responsible for trees on communal housing land. Historically, the Council has taken on the, potentially expensive, responsibility of keeping trees safe in tenants’ gardens and it is proposed that this should continue. (N.B. this arrangement does not apply to Council houses on long-term leasehold under Right to Buy).


Land Managed by WBC, but Not Owned

15. A number of arrangements exist where WBC manages land for others, mainly by way of grasscutting as part of the Grounds Maintenance Contract. This applies mainly to land owned by Surrey County Council Highways Department and financial recharges for this work exist. However, as part of this management, no liabilities for trees in these areas have been formally passed to the Council.

16. It is proposed that tree risk management on sites which the Council manages, but does not own is clarified and remains the landowner’s responsibility.

Common Land without a Registered Owner (so called “Section 9 Land”)

17. Section 9 (S.9) of the Commons Registration Act 1965 gives Local Authorities the power to prevent encroachment or adverse possession of common land which has no registered owner (either under the Act or at Land Registry). The power is discretionary, can be taken by any Local Authority i.e. in Waverley, Parish, Borough or County and infers no liability, duty of care or management responsibility.

18. It may be possible for an authority to acquire ownership of S.9 common by adverse possession. This could happen if the Authority took complete control of the land and acted as if it were the owner and enjoyed exclusive occupation. The Council has an agreed policy in respect of Section 9 land which is primarily to deal with encroachments and only to consider other work when budgetary conditions allow. They are currently under pressure.

19. Generally, most Section 9 land throughout Waverley consists of narrow roadside strips, sometimes of several miles in length, and often containing much tree cover.

20. The County Council’s Highways Department has both the power and the duty under the Highways Act to ensure the safety of road users (including users of any Right of Way) and, where trees on Section 9 land are within falling distance of such Highways or Rights of Way, the County Council is required to act. It is considered appropriate that the Highway Authority takes any action considered necessary.

Land Affected by the Commons Regulation Scheme

21. In 1950, Hambledon Rural District Council, one of Waverley’s predecessor Authorities, entered into a Commons Regulation Scheme which applied to most pieces of common land in its area (mainly the eastern part of Waverley’s present area).

22. In broad terms, the scheme allowed the Authority (and its successors) to make byelaws mainly to “prevent nuisances and to preserve order on the commons” and for specific purposes such as regulating and controlling commoners’ rights (cutting/ digging etc), control of tipping, placing of posters and advertisements, erection of fences and controlling a whole range of other activities including use for sport and recreation.

23. The scheme applies to common land only, whether it be Waverley owned, privately owned or, indeed, be “Section 9 land” (see paragraphs 17 – 20 above).

24. Similarly, here it is proposed that whereas Waverley has a direct responsibility for its own owned common land, it does not have such a responsibility for Section 9 common land or privately owned common and in line with the Council’s policy, its primary activity should be to guard against encroachments. Other authorities, including the Highways Authority, may care to exercise their powers in respect of tree risk management. Where owners of privately owned “Regulated” common land can be identified, it is proposed they be written to, to explain the Council’s position.

Recommendation

It is recommended that the Executive endorses:-

1. the approach set out in this report in respect of the responsibility for tree risk management on different types of landholding; and

2. the approach set out in Annexe A, ‘Tree Risk Management Guide’, as a practical way of discharging the Council’s duty of care in relation to trees under its control.


CONTACT OFFICER:

Name: Mr A Spaarkogel Telephone: 01483 -523444

E-mail: aspaarkogel@waverley.gov.uk



comms/exec/04-05/077
39625