Update: agriculture

Last week's news that a mother is to sue the National Trust for £300,000 following the death of her son from a falling tree branch has once again brought the management of potentially dangerous trees to the fore. Daniel Mullinger was killed when a 160-year-old beech tree at Felbrigg Hall in Norfolk shed a branch which landed on him and three of his schoolmates.

The 2009 county court case of Selwyn-Smith v Gompels (unreported) sets out a 'sliding duty of care' imposed upon landowners whose trees cause damage to people or property. In this case, a 28-metre-tall Austrian pine tree belonging to Mr Gompels fell onto Mr Smith's shed causing him severe injuries, as well as extensive damage to the building and contents. Smith's claim came under two limbs: the first was a failure on the part of Gompels to have the tree inspected, and the second was that, having already lost two similar specimens, Gompels ought to have been aware that it could only have been a matter of time for the third tree to become unstable and/or fall. In fact, Gompels only occasionally looked at the tree, and 'observed it standing up to winds, seemingly without trouble'.

Giving judgment for the defendant, the judge set out the relevant standards of care applicable to the 'reasonable prudent landowner'. He stated that there was 'no ground for holding that the owner is to become an insurer of nature, or that default is to be imputed to him until it appears or would appear upon proper inspection that nature can no longer be relied upon', adding: 'He is not bound to call in an expert to examine the trees unless he has reason to believe that they may be unsafe.'

The next 'grade' of owner is the reasonable and prudent landlord, whose degree of knowledge must 'necessarily fall short of the knowledge possessed by scientific arboriculturalists but which must surely be greater than the knowledge possessed by the ordinary urban observer of trees'.

In the case of owners of private country estates who employ staff to manage the woodland, the standard of care appears to be scarcely higher than that imposed on the householder/landlord. In the cases of Corker v Wilson [2006] and Atkins v Scott [2008], the county court judges endorsed an informal system of inspection which, while incremental to the duty imposed on householders, does not amount to a requirement rigorously to inspect individual specimens unless there is genuine cause for concern.

Public bodies and landowners '“ arguably including bodies such as the National Trust '“ that open their property to the public are under a greater duty of care than householders and private estate owners/landlords, and such bodies should observe the Health and Safety Executive document: 'Management of the Risk from Falling Trees'. The guidance suggests 'periodic, proactive checks for obvious signs that a tree is likely to be unstable to be carried out by a person with a working knowledge of trees and their defects but who need not be an arboricultural specialist. Only if the tree is found to be weak are further professional inspections necessary.'

Dung '“ forewarned is forearmed

The Nitrate Pollution Prevention Regulations (SI 2008/2349) are not yet fully in force, with more in store for the beginning of 2012. Section 32 of the regulations will impose limitations on where 'temporary field sites' can be located on a farm. The guidelines are that a temporary field site muck heap must not be: in a field liable to flooding or becoming waterlogged; or within 50m of a spring, well or borehole or within 10m of surface water or land drain (other than a sealed impermeable pipe).

Temporary field sites are also not to be located in any single position for more than 12 consecutive months and, as a parking sign would say, 'no return within two years'. The risk to landowners and farmers is that a breach of these regulations would be very easily identifiable. The Environment Agency officer can first work this out by looking at the farmer's risk map. If he then has to go out to the farm, a breach would be easily identifiable and easily measurable. The range of sanctions varies from restoration, compliance or stop notices through to fines. The Environmental Civil Sanctions (England) Order 2010 states that the level of the fine is £100 for an individual and £300 for a body corporate. Presumably, this will be per muck heap.

Marine and Coastal Access Act lets poachers slip through the net

Fishing during the close season has always been frowned upon, and section 19 of the Salmon and Freshwater Fisheries 1975 provided the statutory basis for prosecution. However, the repeals contained within the Marine and Coastal Access Act 2009 removed the entirety of section 19 without providing any form of replacement, effectively abolishing the offence of fishing during the close season. The Environment Agency has had to let more than 100 poachers off the hook as a result of this oversight. Rapid steps are being taken to remedy the situation and the draft byelaw can be inspected on the Environment Agency's website.

The new Act has also deleted section 35(2) of the 1975 Act, which allowed a person holding a fishing licence 'on production of his licence [to] require any person who is fishing in that area to produce his licence or other authority to fish and to state his name and address'. This 'stop and search' power is now only within the gift of the Environment Agency and police officers. Somehow, this seems to sit rather uneasily with the concept of a 'Big Society'.

Furry things in English law Part 1 (or how the badgers' skins were saved)

Farmers in Wales have suffered a major setback as Welsh ministers ponder how to move forward in delivering on their commitment to reduce bovine tuberculosis in Wales. It follows the Court of Appeal's decision to reverse the High Court decision not to quash the TB eradication (Wales) Order 2009, handing the welsh badger population a stay of execution.

The figures which motivated the ministers to make the order are significant: 11,530 head of cattle slaughtered in 2008 because of Bovine TB '“ 68 per cent of these slaughters occurred within the 'intensive action pilot area' (IAPA) in north Pembrokeshire.

The Animal Health Act 1981 by sections 1 and 21 gives powers to minsters to 'make'¦ orders'¦ for the purpose of in any manner preventing the spreading of disease' if 'the minister is satisfied in the case of any area'¦ that destruction of [badgers] is necessary in order to eliminate or substantially reduce the incidence of that disease in animals of any kind in the area'. Under the 1981 Act, the order needed to specify (among other things) the area, disease and species to which it applies.

The 2009 order stated that it applied to Wales, tuberculosis and badgers, and sanctioned the destruction of badgers by a wide class of duly authorised personnel in all places except dwelling houses. It also provided for badgers to be vaccinated as an alternative to death.

Bringing the appeal, the Badger Trust contested the High Court's refusal to quash the 2009 order on three grounds, the third being added by one of the appeal judges during the appeal hearing:

1. that the judge had erred in holding that to 'substantially reduce' meant effecting a reduction more than merely minor or trivial;

2. that it was wrong to hold that the ministers' discretion to make the 2009 order could lawfully be exercised without carrying out an analysis of the benefits of killing badgers against the cost in lives to the badger population; and

3. that the ministers had erred in law by making an order covering the whole of Wales when they had only consulted on the basis of an IAPA in north Pembrokeshire.

There was a degree of judicial criticism of the ministers' interpretation of 'substantial', namely that a reduction of nine per cent in the incidences of bovine TB in the IAPA could be called 'substantial'. 'I would call it modest,' said Lady Justice Smith, giving judgment.

But, for Stanley Burnton LJ, raising the third ground in the appeal hearing, the appeal would almost certainly have failed on the first two grounds alone, with Pill LJ concluding that 'while powers under section 21 of the 1981 Act were certainly required to cull within the IAPA, it was not correct to say that the powers provided by the [2009] order, which covered the whole of Wales, were essential for that purpose'. However, the failure of the ministers to tie the area of land covered by the 2009 order in with the area on which they consulted was fatal to their case.

What will prove most troublesome for the Welsh ministers in the coming months is Pill LJ's statement: 'It is not open to the Welsh Assembly government immediately to make a fresh order in the same terms but covering only the IAPA.' There were even suggestions that the Protection of Badgers Act 1992 could be under threat.In the meantime, neither party is giving up '“ watch this space.

Furry things in English law Part 2 (or how to get fined for killing a squirrel)

Those who remember the government offer in 1953 of a shilling for each grey squirrel tail (payable on certification by the local pest officer '“ more than 360,000 caught in the first year) will doubtless be aghast at the second most significant 'cuddly animal' case to be decided in the English courts this year.

On 19 July, Raymond Elliot was ordered to pay £1,547 costs and given a six-month conditional discharge by magistrates for drowning a grey squirrel, following a private prosecution brought by the RSPCA under the Animal Welfare Act 2006. Section 4(1) states: 'A person commits an offence if an act of his'¦ causes an animal to suffer [when] he knew or ought reasonably to have known that the act'¦ would have that effect or be likely to do so, the animal is a protected animal and the suffering is unnecessary.'

Veterinary evidence confirmed that the suffering induced by drowning could have lasted up to three minutes, which constitutes 'unnecessary suffering' under section 4(1)(d) of the Act and the squirrel was a 'protected animal' by virtue of it being 'under the control of man on'¦ a temporary basis' (section 2(b)). This leaves us in a very confusing situation. Under the Grey Squirrels (Prohibition of Importation and Keeping) Order 1937, it is illegal to keep grey squirrels in captivity. Pursuant to section 14 of and schedule 9 to the Wildlife and Countryside Act 1981, it is illegal then to release them; and now, if the RSPCA is to be believed, anything short of taking your captured squirrel to the vet for a lethal injection at your own cost constitutes an offence under the Animal Welfare Act. Farmers licensed to use firearms may be able to kill squirrels humanely, but '“ for the public at least '“ the legal position is worryingly vague. A guide to the humane killing of grey squirrels can be found on www.saveoursquirrels.org.

It is interesting that it was Mr Elliot's neighbour who apparently informed the RSPCA of the drowning '“ perhaps the 'Big Society' does exist?