Philip Wilson Arboriculture

Trees and the law

Common legal problems relate to ownership and boundaries, hedgerows, the right to light, safety and liability for damage, highway trees and consents for carrying out tree works. Tree owners have a duty of care under the Occupiers' Liability Act (1984), but quite how far this duty extends is often unclear. For instance, liability for damage or injury might be determined on grounds of what the reasonably prudent landowner could have reasonably foreseen.

Example of summary report

The Irish Yew under consideration for planting in a public place is a female cultivar and will therefore bear fruit. The fruit (as well as the foliage) is poisonous, and children have died from eating them.

There has been little litigation in this area, apart from cases relating to trees near boundaries and the poisoning of animals (Mynors, 2002). In one old case, children playing in a public park were held to be entitled to protection from poisonous plants (Glasgow Corporation v Taylor, 1922). On the other hand, there are countless (poisonous) yews, laburnums, privets, cherry laurels and rhododendrons in salient places like churchyards, school grounds and parks, as well as in private ownership overhanging the public way.

The Occupiers' Liability Act (1984), by which tree owners have a duty of care to others, distinguishes between hazards that are self-evident and those that are not. There is an expectation that the latter should be pointed out or otherwise mitigated. In the present case this distinction is not clear-cut: the public has some familiarity with poisonous plants but this knowledge has probably decreased in recent times. Nevertheless, poisoning is still extremely rare or unknown.

Definitive guidance through legal precedent is lacking. Countless individual owners of poisonous trees are consistent in not mitigating the risk of poisoning. However, it is appropriate for an organization [such as yours] to recognise risk and to discuss practical means of mitigation (if any) in a policy document. 

 Mynors, C. (2002). The law of trees, forests and hedgerows. Sweet & Maxwell, London. ISBN 0-421-590 408.