Agriculture Monthly Review: January 2011

Over the past 2 months most of us will have seen fallen branches, whilst driving or walking in the countryside. Unusually, most of these incidents have been caused by the weight of snow and ice rather than wind, as is usually the case. It is, nevertheless, a timely reminder of the duty of care owed by landowners with trees to members of the public and others. It is an issue which has been visited by the Courts on several occasions during the past few years and, it is understood, is the subject of yet another claim (against the National Trust, this time) following an incident in Norfolk when a falling branch killed a visiting schoolboy.

 

A case in 2009 called Selwyn-Smith –v- Gompels set out varying standards of care on the part of landowners. Clearly, if you invite the public onto your property and employ people to manage your woodland, there is a high standard of care and the Health and Safety Executive provide specific guidelines. At the least, there is a requirement to make periodic inspections to ensure that all is well and, of course, to take action if this is not the case. Moreover, such inspections must be carried out by someone who is suitably proficient although not necessarily a trained arboriculturalist. For the private landowner, the problem is usually confined to trees which are likely to fall on roads or paths in the event that they become unstable. Although the law is not precise, it is difficult to see how a landowner can be expected to predict instability. However, once a tree shows signs of a problem then undoubtedly the duty of care is escalated and the wise landowner will take preventative action. A similar situation arises if an inspection by an expert reveals potential defects. Once again, having been put on notice of a problem, the prudent landowner has no alternative but to take action in order to avoid future accidents. As we move into the second half of the winter it is to be hoped that any problems in this respect are confined solely to winds rather than the weight of snow and ice!

 

Farms that abut main roads are very visible places and it is natural that the advertising industry should seek to make the most of such opportunities. We are all familiar with the trailers and portable hoardings that appear in fields alongside our major roads. It would appear that most of these “mobile” advertising sites seek to take advantage of the exemption from the regulations which allow for advertisements placed on vehicles which are normally employed as a moving vehicle providing that the vehicle is not normally used for the display of advertisements. It will be quickly seen that this represents a fine line! The practice is governed by local authorities who often have a slightly different approach to the problem. Judging from the time that some of these mobile hoardings have been in place, there are many local authorities who are very relaxed about the practice. Others may not be so tolerant and in a case last year, South Somerset District Council prosecuted one particular advertiser. The case received a comprehensive hearing in the Queen’s Bench Division of the High Court following a conviction of the advertiser in the Magistrates Court and an unsuccessful appeal to the Crown Court. The High Court upheld the conviction and made it clear that mobile advertising hoardings will not normally fall within the exception and, in the case in question, this was the case. It will, of course, always be a matter of degree and each case will turn on its merits but landowners who endeavour to take advantage of this exception will need to be mindful of the potential consequences and take appropriate advice to ensure that they do not fall foul of the regulations and earn a conviction which is both unwanted and unnecessary. This is, perhaps, an exception to the much vaunted principle that all publicity is good publicity!