Ash dieback is a highly destructive fungal disease which was first officially recorded in the UK in 2012 and is now widespread. The disease can cause tress to drop branches and over time most infected trees will die. Ash trees are one of the most common species in the UK and are vital for the operation of many of our ecosystems but it is estimated that the majority of them in the UK will eventually be infected.

This is an important issue for landowners and occupiers because they can be liable if people are injured by falling trees and branches. However, although safety is a significant concern, there are other important considerations; felling of diseased trees can have a negative effect on the natural environment, removing homes for animals and impacting the growing conditions for plant life. It is also believed that leaving diseased trees in place may increase future natural resistance to Ash Dieback.

Balancing these issues can be difficult. Recently, officials at the Loder Valley Nature Reserve opted to close the 60 hectare reserve to carry out a major felling operation to remove unsafe trees, in contrast, the Woodlands Trust has permanently closed its Avoncliffe Woodland near Bath to allow diseased trees to remain in place and to limit the impact of the disease on the natural environment.

Given public access rights to land in Scotland differ to those in England is stopping public access to woodland possible here, and, if not, what should be done to manage the risks created by Ash dieback?

Is closing an entire woodland area possible in Scotland?

Mirroring the approach taken in England and preventing or even restricting access may not always be possible in Scotland due to the access rights provided by the Land Reform (Scotland) Act 2003.

Section 1 of the Act gives every person in Scotland at statutory right to access land for recreational purposes, for the purposes of carrying out a "relevant educational activity" or for carrying on, commercially or for profit, an activity which the person could carry on otherwise than commercially or for profit. These rights are limited to pedestrian access only with a specific exception for users of disability vehicles.

There is a duty on the land owner to manage the land in a way which respects the access rights and which does not cause unreasonable interference to people seeking to exercise them. The Scottish Outdoor Access Code, which was published by Scottish Natural Heritage (now NatureScot) in 2005 provides detailed guidance on the practical operation of the 2003 Act.

The duties don't mean that land managers are entirely prohibited from preventing access over their land, and the Outdoor Access Code recognises that access can be restricted when certain works are being carried out, including necessary tree felling. The access can be restricted in different ways, for example exclusion from particular routes or exclusion at particular times of day. However, any restrictions must be "reasonable and practicable" which the Outdoor Access Code defines as being for the minimum area and period involved restrictions to access must be appropriate to the work being carried out.

It is unlikely that permanent exclusion of the public from an entire woodland area could be justified and considered consistent with the rights conferred by the 2003 Act given that diseased trees can be removed. It may however be possible to allow certain areas of woodland to decay naturally. Accordingly, while it may not be possible to take the same approach as the Forestry Commission at Avoncliff where the whole wood has been permanently closed to the public, it might be that access to certain zones can be restricted if other routes through the woodland remain open.

What do I need to do to manage the risk of injury?

The obligation to manage the land in a way which respects and does not interfere with the rights, includes an obligation to take reasonable care to avoid members of the public being injured by trees. Land owners also have obligations arising from the Occupiers Liability (Scotland) Act 1960. Accordingly, it is necessary to assess the risks posed by trees and to take steps to manage those risks by way of pruning and felling where necessary.

There is no requirement to ensure that trees are entirely safe and land owners are not obliged to carry out regular surveys of every tree. The decision whether or not to pro-actively survey should be made with reference to the likelihood of people accessing the nearby area. Remote sections of woodland which are not generally accessed by the public are unlikely to require a pro-active inspection regime, in contrast, heavily used paths and routes are likely to require regular inspection of nearby trees. It is necessary to consider the full woodland area and to identify which approach is appropriate with reference to patterns of use.

What should be done if damaged trees are identified will also depend on the area in which the trees are located. In high traffic areas, where no alternative routes are available, the only option may be to fell or prune the tree. Where either an alternative route can be provided or public access does not occur, steps could be taken to restrict access and redirect walkers with reference to the hazards posed by the trees. This could be justified by the environmental benefits of allowing trees to decay naturally.

This is an important issue for land owners, there are unlikely to be easy answers and a balance will need to be struck. The Tree Council's observation is perhaps a useful summation; "A sense of proportion is vital. This can be achieved only be considering the tree's place in a wider management context and people's relationship to that context locally."

This article first appeared in the Forestry and Timber News.


Kate Donachie

Legal Director

Emma Dyson


Simon Boendermaker

Senior Solicitor