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Landowners’ Duties and Highway Visibility – Court of Appeal Test Case

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

If landowners allow vegetation to grow so that it affects visibility on adjacent highways, should they be held liable if accidents occur? In a decision that broke new legal ground, the Court of Appeal has answered that question with a resounding ‘no’.

The case concerned an accident in which a cyclist who was riding on a trunk road collided with a car that had emerged from a minor road. The badly injured cyclist’s damages claim against the driver has yet to be tried, but the driver’s insurers launched pre-emptive contribution proceedings against a local authority and the Welsh Ministers, who bore responsibility for the roads as highway authorities.

It was argued that vegetation that had been allowed to grow up on a plot of land that had been acquired by the Welsh Ministers in order to perform drainage improvement works had obscured visibility at the junction and was the reasonably foreseeable cause of the accident. The contribution proceedings were, however, struck out by a judge on the basis that neither public authority owed a relevant duty of care to the injured cyclist.

He reached that conclusion on the basis that only a small part of the vegetation had grown on or over the highway. To impose a duty of care in such circumstances would be excessively burdensome on owners of land adjacent to highways and would substantially affect the uses to which they could put their holdings.

The insurers argued that it was artificial to draw a distinction between hazards on the highway itself and conditions on land adjacent to the highway that affect road safety.

In dismissing the insurers’ appeal, however, the Court noted that no decided case had been identified where an owner of land adjoining a highway had been held to owe a duty of care to road users in respect of vegetation on that land, or indeed of any comparable obstruction.

There were very powerful policy reasons militating against the imposition of such a duty of care. Farmers would need to consider highway visibility when deciding when to plant crops, hedges and trees and when to harvest, prune or fell them. Similar issues would arise in relation to the planting of suburban gardens and the erection of buildings, fences or other structures next to roads. Planning controls and the powers of highway authorities provide a range of public law options for dealing with road visibility issues, and it is not for the Court to supplement them by imposing an onerous duty of care on landowners.

This decision will come as a considerable relief to owners of property that adjoins the public highway.

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