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Trees on the line

There was an old lady of Staines
Who’s ash tree fell on some trains
The train company sued her
But the judge said “that’s nature”
And we think the court’s lost its brains

Next time you are wondering why your season ticket price has gone up, or why you are sat in a darkened railway carriage in the middle of the English countryside, you might want to ask what the court was thinking in this recent case.

A home owner’s garden backed onto a railway. There was a large (20 metre) ash tree at the end of the garden. The home owner knew the tree was a potential risk and had it trimmed twice during her ownership, but had not had it been looked at for five years, claiming that she could not get to it because of nettles and ivy. (Her nettles! Her ivy!).

One autumn the tree (or a substantial part of it) fell on to the railway tracks and caused one third of a million pounds of damage to track and train.

The railway company sued, but despite the court agreeing that a landowner had a duty to their neighbours and should carry out regular inspection and take preventative action, the court exonerated her from liability. The train company was left to pick up the bill for a tree over which they had no control. The “Act of God” defence seems to survive.

But it is a curious decision and not one which, we suggest, you stake your house on. One feels a little sorry for the railway company and its passengers, who found themselves stranded in a siding in Surrey on windy night due to someone’s tree ending up on the line. If the landowner wasn’t responsible for the tree, who was? Is it up to the railway company to send uninvited gangs with chainsaws onto private property to hack away at homeowner’s herbage?

There is a long line of cases, starting with Rylands v Fletcher, which says that a landowner is liable to his neighbours if he allows something to escape from his land onto neighbouring property where it causes damage. The property owner in Staines had a remarkably lucky escape from liability. The tree was on her land, she had allowed it to grow to a height of 20 metres, she was the only person who had the power to cut it back at relatively modest cost and she failed to do so with the result that enormous damage was done and hundreds of people inconvenienced.

This doesn’t sit comfortably with other instances (for example in relation to National Trust properties) where landowners are strictly liable (and sometimes criminally liable) for damage caused by falling trees. Admittedly the NT cases relate to a landowner with the technical knowledge and resources to recognise and remedy the problem, but our advice would be not to gamble on finding a sympathetic court. Rather assume that you are strictly liable for anything on your land which causes damage to a neighbour and to take preventative measures to prevent the damage, or face the consequences of compensation. More work for tree surgeons, less for the courts.

This article is for information purposes only and is not legal advice. It should not be acted or relied upon and legal advice should be sought before applying any of the information in this article to any facts or circumstances.

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