It has not happened often in recent years that naturalists, the State Forests and the ruling coalition have completely agreed on the direction of some changes in the forests. However, such is the case with the project that the Ministry of Climate and Environment is currently working on. The change in the law, which may come into effect next year, is intended to save trees from unnecessary cutting, while at the same time helping foresters.
It concerns the issue of liability for accidents that occur in the forest (and also in parks or cemeteries, because the change to the act prepared by the ministry will not be limited to the State Forests). Now, the administrator of the area – in the park it is the city officials, in the forest – the forester, etc. – can be held liable for an unfortunate accident in this area. When a falling branch or a fallen tree, for example, destroys car or harms someone, you can demand not only compensation from the forest district, but even criminal consequences.
However, it is impossible to constantly examine every tree in a forest or even a park and check whether it is not diseased and should not be cut down. And the fear of liability – especially criminal liability – leads to a situation where officials or foresters decide “safer” to cut down trees than to leave them. Trees are sometimes cut down unnecessarily even in national parks.
– In this situation, managers of greenery – in the forest, park, cemetery – have the feeling that if they keep a given tree, it may threaten to be held liable in the event of a potential accident, or at least so-called dragging in court. And there will be no negative consequences for removing it. For many, the choice becomes clear, from the psychological side it is understandable. And we have a massacre of trees along the roads, in cemeteries (except perhaps historic ones) there will soon be no trees at all – says to us the director of the Department of Forestry and Hunting in the Ministry of Climate, Aleksander Jakubowski.
A very unfortunate accident
Jakubowski points out that the scale of such accidents – even in heavily frequented urban forests – is not large, and when they do occur, the result is usually property damage, and not a threat to health or even life.
– Tragic accidents do happen, like a few years ago in the Praga Park in Warsaw, but they are absolutely rare. Besides, the officials were acquitted in this case too – he points out. This is about an accident from 2018, when a falling branch seriously injured a woman and killed a child. Although there was no indication that the tree was sick, the prosecutor's office accused three officials of failing to fulfill their duties and demanded prison sentences. Ultimately, the court acquitted them, finding that it was a “very unfortunate accident” without anyone's fault. At the same time, in the civil trial, the Greenery Board was found liable and had to pay compensation.
Jakubowski says that in practice, in the light of the law, the probability of such liability, especially criminal liability, is very small. – But individual cases of court proceedings in these matters that are widely reported in the media give rise to different impressions from foresters or city gardeners. And the scale of fear of liability for a potential accident is much greater. Both civil and criminal – he emphasizes.
This fear can lead to felling when there is no need for it at all – and in extreme cases, to the “massacre” of trees, for example along roads.
Can every tree be examined?
– These concerns of foresters have grown especially after judgment Supreme Court of 12 January 2018, in which the Court, in order to help the injured family, indicated the responsibility of forest inspectors, who should be required to exercise increased diligence – says Jakubowski. The verdict concerned another tragic accident from 2008. During a storm, a spruce growing in the State Forests, 9 meters from the road, fell on a car. The driver died and his wife was injured. The investigation showed that the tree was attacked by a disease, but one that does not show any visible symptoms.
The verdict suggests that every tree – even without visible signs that it may be diseased – should be tested. This is impossible from a practical point of view, and not necessarily advisable from a natural perspective, because the test itself can weaken the tree.
– says Jakubowski. Examining every tree is impossible, if only because of the scale. There are seven million trees in Warsaw alone, not to mention the forests. Cost examination of one tree by specialists costs from a few to a dozen thousand złoty. A single examination of each tree would cost the capital almost half of its annual budget.
According to the director, this verdict “confirms the accuracy of the Anglo-Saxon saying that difficult cases give birth to bad law”. – A single equitable verdict, and a legally controversial one at that, has raised concerns that determine the real actions of foresters, i.e. not refraining from cutting trees out of fear of a court mishap or having to explain oneself to a prosecutor. The consequence of such verdicts are thousands of trees unnecessarily cut down out of caution – he assesses.
Naturalists and foresters with one voice
The State Council for Nature Conservation has reached similar conclusions and has issued its own opinion on the need for changes, independently of the ministry's work. It points out that “expectations that a forest manager is able to effectively prevent the possibility of a tree falling or fragments falling through a mass assessment of trees are also inconsistent with knowledge of tree biology”. On the one hand, some risk factors are not visible, on the other – symptoms such as hollowing or a hollow trunk do not always mean that a tree is dangerous.
The opinion was created on the initiative of the General Directorate of State Forests and directors of national parks, who also see the need for changes in these regulations. Also because, for environmental reasons, they try to leave more dead trees in the forests. – Ancient trees and dead wood are an essential element of every healthy forest ecosystem and affect the preservation of biodiversity – comments Prof. Bogdan Jaroszewicz, deputy director of the State Forests.
Naturalists point out that removing trees along trails not only harms nature, but also reduces their attractiveness for visitors.
– It is a challenge to construct the regulations in such a way that on the one hand they meet the intended purpose and on the other hand there are no constitutional doubts. We are pleased with the positions of PROP, trade unions and social organizations, they confirm the existence of the problem and the justification of the course of action chosen by the Minister of Climate and Environment – says Jakubowski.
To the forest at your own risk
To change this, the Ministry of Climate wants to “simply restore common sense to these regulations”. – People should be treated seriously, so there is no need to explain what should be obvious, that a tree may break, that a branch may fall, because that is the nature of a tree. We assume that if someone willingly enters a forest, park, reserve or cemetery, they do so at their own risk and with this awareness – he says.
Another assumption of the changes in the act will be the exclusion of liability of managers of green areas for the effects of force majeure. – The decision to cut down or preserve a tree should be based on a substantive assessment conducted without considering whether its result may lead the assessor to justice – says an employee of the ministry.
Both the ministry and the Nature Conservation Council are convinced that changing the regulations will not lead to neglect in the matter of safety in the forests. As Jakubowski says:
The change does not mean that some trees should not be examined, or that foresters should not exercise due diligence. They are already doing a great job of that. But one cannot demand the impossible, such as examining every tree in the forest or predicting the effects of future weather. Foresters, arborists are specialists with many years of training and can be trusted to know when a tree really needs to be removed for safety reasons and when it should not.
The change in the law will not mean complete exemption from liability. – But this should only apply to cases where there has been actual conscious negligence, and the scope of obligations is clearly defined and possible to fulfill. However, one cannot expose to liability for the fact that someone decided to protect greenery when the risk of an accident was not obvious – says the director.
At the moment, the regulations are at the stage of internal work in the ministry. The ministry wants them to be submitted for consultation and opinion in the autumn of this year, and the act could come into force in the first half of next year. – Foresters, naturalists are waiting for this regulation, nature is waiting for it – emphasizes Jakubowski.