Highway Tree Inspection - What is the standard duty of care?
Tree next to the road with significant damage
Insights

Published on

October 18 2019

When it comes to understanding where responsibilities lie for the management of trees on our highways, the following, adapted from an article by Jeremy Barrell (first published in ARB Magazine Autumn 2018) provides some sobering insights. 

Working on the UK’s network highway, confusion over the safety and responsibility of trees on our roadways can often arise. A local tree risk management plan (TRMP) and regular inspection regime are usually implemented, but with highway operatives periodically working on sites for set periods of time - the provision for training to identify and record hazardous trees for site safety should be available.

A photo of Jeremy Barrell next to a tree

A series of recent legal cases and inquest verdicts has highlighted that some historic training provision for inspecting highway trees was not fit for purpose. During the past decade, Jeremy Barrell has been involved as an expert witness in 62 cases (civil, criminal, and inquests). In this article, he explains why avoidable harm arising from highway tree failures is forcing tree inspections to the top of the national training agenda.

The scale of harm arising from tree failures

A small UK research study commissioned by the National Tree Safety Group (NTSG) in 2010, reports that there were about six fatalities a year from tree failures, with extrapolations indicating that there may have been a further 55 annual serious injuries. The reliability of this research is limited by the vagaries of accident recording and the lack of funds to carry out sufficient investigations, suggesting that these figures should be treated with caution. However, it does confirm that harm arises, and probably enough to be a material consideration in managing tree risk.

What proportion of harm arises from highway tree failures?

The NTSG research identified 64 deaths over 10 years, but a review of the data indicates that about 49 (77%) were highway incidents. From my own records of both deaths and injuries during the last 10 years, 37 (60%) of my 62 cases relate to highway trees. Despite the absence of detailed research into the proportion of highway trees causing deaths and injuries, these figures indicate that it is likely to be more than 50%. If that is accepted, then a loose extrapolation of the NTSG findings indicates that highway tree failures account for an average of at least 3 deaths and 26 injuries each year.

Inquests are driving the evolution of highway tree inspection guidance

An inquest is a fact-finding enquiry to establish who has died, and how, when, and where the death occurred. It is a form of public enquiry to determine the truth and is intended to be inquisitorial.  Within the inquest process, through the Coroners and Justice Act 2009, a coroner can issue a Regulation 28 Report to Prevent Future Deaths (PFD).  It is the stated intention of the Chief Coroner that PFD reports encourage change for the better, with a presumption in favour of publication on the judiciary website. PFD reports are deemed to be important instruments of change, and they can be applied to deaths associated with tree failures.

Trees by a road in Autumn

On 5th October 2012, a large branch fell from a mature oak tree adjacent to the A332 near Windsor, Berkshire, and caused the death of a motorist, Mr Michael Warren. An inquest held in July 2014 resulted in a PFD Report where the Coroner recorded concerns raised during the hearing. That report highlighted several concerns with Bracknell Forest’s tree inspection regime, including a lack of guidance for highway inspectors, the limited training provided for those inspectors, and the need for a series of inspections limited only to trees. Taking a broader perspective, it also identified that there was: “very little by way of clear, detailed guidance available to Local Authorities as regards the appropriate systems of highway inspection of trees abutting the highway. There is a potential need for clear direction from a suitably qualified source to assist Local Authorities in this crucial role.”

After the inquest, the PFD report was sent to the Chartered Institution of Highways and Transportation, who forwarded it in September 2014 to the UK Roads Liaison Group (UKRLG) (the organisation publishing government endorsed Codes of Practice for highway management). The relevant Code of Practice in force in 2014, Well-maintained Highways, was superseded by Well-managed Highway Infrastructure, in October 2016, and the PFD concerns were considered for that update. Highway authorities were given a 2-year period of grace to transition from the old to the new, so the new guidance became fully operational in October 2018.

Well-managed Highway Infrastructure, sets out strategic guidance on tree inspections and training, as follows:

  • A.9.9.3: “… Authorities should develop a policy for the installation, subsequent condition inspection and maintenance of highway trees. …”
  • 9.6.1: “Trees are important for amenity and nature conservation reasons and should be preserved but they can present risks to highway users and adjoining land users if they are allowed to become unstable.  In England and Wales the highway authority is also responsible for ensuring that trees outside the highway boundary, but within falling distance, are safe. …”
  • 9.6.2: “Safety inspections should incorporate highway trees, including those outside but within falling distance of the highway.  Inspectors should take note of any encroachment or visibility obstruction and any obvious damage, ill health or trip hazards.  A separate programme of tree inspections, however, should be undertaken by arboricultural advisors.”
  • 9.6.3: “Authorities should include some basic arboricultural guidance in training for inspectors but it is important that arboricultural advice is obtained to advise on the appropriate frequency of inspections and works required for each individual street or mature tree, based on assessment of respective risks.”

Infant death in Wirral - PFD Report 

Person with hard hat

Despite the Warren PFD Report, training still remains an issue of national concern as highlighted in a more recent PFD Report issued last month to Wirral Borough Council following the death of an infant, resulting from a roadside tree failure in November 2016. The Jury highlighted as series of concerns, including:

“There was a complete failure to have a policy in place for tree management in Parks and Countryside, and a complete lack of risk management for trees at risk of falling onto highways. There had been no formal inspection of trees in Arrowe Park for 13 years previously.”

“There was inadequate training of Parks and Countryside staff with regard to tree management and identifying tree hazards.  There was no programme of mandatory, ongoing training …”

These important Inquest PFDs have identified an obvious training gap relating to highway tree inspections, which makes the latest Lantra course a timely addition to its training portfolio. Now that Autumn has arrived and the leaves have begun to fall, it’s the perfect time of the year to get out there and take stock of the trees on your work site.