Storm Éowyn blows in a reminder of landowner obligations

Scotland recently experienced the wrath of Storm Éowyn, issuing its first red weather warning since Storm Arwen in 2021.[1] In the aftermath, newsfeeds were inundated with images of fallen trees across roads and rail tracks. Network Rail Scotland reported more than 120 trees on tracks, causing major disruptions until the following Tuesday.[2] With such events becoming more frequent, it is crucial to remind landowners of their legal obligations.

Statutory provisions

The Land Reform (Scotland) Act 2016 introduced the land rights and responsibilities statement. Principle Four provides that landowners should exercise these rights to meet high standards of land ownership, management and use.[3]

Under Section 3 of the Health and Safety at Work Act 1974, landowners have duties to manage the health and safety on their land.[4] These duties include:

• Co-ordinate the activities of the overall forest environment for health and safety purposes.
• Identify and communicate hazards.
• Ensure the work carried out on the land does endanger others.
• Take advice from a competent specialist or agent on any aspect where they are not sufficiently knowledgeable.[5]

The Land Reform (Scotland) Act 2003 created a right of responsible public access to most land in Scotland, and a duty on landowners to manage land responsibly.[6] The legal definition of responsible means to use, manage and own the land in a way that does not cause unreasonable interference with the right to roam.[7] The Scottish Outdoor Access Code guides landowners to assess the level and nature of public use of forests and woods and develop a plan to help manage for access.[8]

Common law duty of care

The owner of land on which a tree stands has a duty of care under common law to all people who might be injured by the tree. The duty of care requires taking reasonable care to avoid acts or omissions that cause a reasonably foreseeable risk of injury to persons or property. Failure to uphold this duty can result in financial penalties, and in some circumstances prosecution.

Risk management of trees

Trees within falling distance of roads, railways and pathways carry a risk. Landowners should ensure they carry out inspections. There are three categories of inspection:

• Informal observations: Daily checks for structural weaknesses.
• Formal inspections: Conducted by a qualified arborist.
• Detailed inspections: In-depth assessment when risks are identified.[9]

Felling regulations

Where a tree poses an immediate danger to persons or property, felling permission is not required.[10] However, the default position for felling in Scotland is that it is an offence unless permission is obtained.[11] This includes windblown trees; in this instance an application for permission must include a restocking proposal.[12] Where a landowner has a Long-Term Forest Plan or Land Management Plan and the application is for an additional area to an existing coupe, the landowner must amend the plan to account for the felling.

Conclusion

Storm Éowyn reinforces the legal responsibilities landowners have. Regular inspections and proactive risk management of trees are essential to reduce hazards and ensure safety.

[1] https://www.bbc.co.uk/news/articles/cm23l8x85ndo

[2] https://www.bbc.co.uk/news/articles/c9d501g15v3o

[3] https://www.gov.scot/publications/scottish-land-rights-responsibilities-statement-2022/

[4] Health and Safety at Work Act 1974 section 3

[5] https://ukfisa.com/Safety/Safety-Guides/fisa-guidance-on-managing-health-and-safety-in-forestry

[6] Land Reform (Scotland) Act 2003 section 1

[7] Land Reform (Scotland) Act 2003 section 2

[8] https://www.outdooraccess-scotland.scot/act-and-access-code/land-reform-act/land-reform-act-legal

[9]https://www.forestresearch.gov.uk/publications/common-sense-risk-management-of-trees-landowner-summary/

[10] The Forestry (Exemptions) (Scotland) Regulations 2019 Regulation 4 (d)

[11] Forestry and Land Management (Scotland) Act 2018 section 23

[12]https://www.forestry.gov.scot/support-regulations/felling-permissions/felling-permission-for-wind-blow