Farm Ireland

Thursday 27 October 2016

Sorting out a thorny question

Published 16/09/2015 | 02:30

Tree damage during a storm is usually considered an 'act of God' and landowners have no liability for potential damages.
Tree damage during a storm is usually considered an 'act of God' and landowners have no liability for potential damages.

Our barrister gives advice on liability for trees and their branches.

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Question: My farm adjoins two others. In a number of my fields I have white thorn and ash trees which have grown up through the ditches and I am concerned about my responsibility in the case of these trees and bushes. Also, one of my neighbours has an old beech tree which overhangs onto the roadway. I have heard about accidents where large branches have caused serious injuries to passers-by and I would like to cut it back, however, the landowner does not want to cut the old tree. Is there anything I can do to prevent accidents?

Answer: Liability for trees and their branches, as well as over-hanging hedges, are issues faced by almost all farmers at some point. The law is quite clear on this subject in that the land owner or occupier, that includes farmers renting land, are responsible for ensuring that hedges do not encroach and effect their neighbours; they must also ensure that falling branches from trees don't pose dangers.

In relation to the cutting back of ditches and trees, Birdwatch Ireland recommend that hedges should not be cut back any later than March 1 due to birds nesting and also there are a number of species that nest well into August.

But it is lawful to cut or grub isolated bushes or clumps of gorse, or to mow or cut isolated growths of fern in the ordinary course of agriculture at any time.

However, if you are an applicant to schemes like the Basic Payment Scheme you may be restricted in taking actions to cut/burn hedges.

In relation to your neighbour's tree which overhangs onto the roadway, local authorities and Electric Ireland have powers to deal with this. They can give notice to the owner requiring them to cut or prune the tree. If the owner fails to comply, they have authority to carry out the work and charge the owner.

You should not cut the tree yourself as first, you may need a licence to do so, and second, it is not on your property and third, if you interfered with the tree and it fell or caused damage as a result, you may be responsible for this damage.

The Forestry Act, 1946, contains the main provisions for the felling of trees. Under this Act, it is an offence for anyone to uproot or cut down any tree unless the owner has obtained permission in the form of a felling licence from the forestry service.

An application for a licence is made on the felling notice available from any Garda station. As a general rule, you will need a licence if a tree is more than 10 years old.

If your land abuts a roadway you are responsible for ensuring that motorists' views are not negatively affected by the bushes or trees. So cutting back hedges may be essential in this case. Bear in mind walkers and cyclists are also road users and may come much closer to the ditch than cars.

Like many other areas of law, the standard that a land owner or occupier will be held to by the Court is the standard of 'reasonable care'. This means that the Court will consider what is reasonable in the circumstances when it comes to maintaining hedges and trees.

Factors like whether the tree was old or dying would increase the likelihood of a land owner being considered liable. It is advisable to put a plan in place for regular checking of the condition of older trees on your farm.

Another factor to bear in mind in relation to ditches and trees located on the boundary of adjoining lands. As a general rule, the location of the root of the tree, or the majority of the root, should give guidance as to who is the owner of the tree.

Theresa Murphy is a Barrister at Law email:

Storms and  acts of God

Tree damage during a storm is usually considered a "natural" event or "act of God" that is nobody's fault.

However, if a tree or limb falls on a sunny day and damages property or causes injury, then the land owner can and likely would be held responsible.

In circumstances where liability for damage caused by trees and bushes is decided on a case by case basis it is prudent to ensure that all bushes and trees are regularly checked for encroachment and potential risks and cut back or felled safely and in line with the law. Better safe than sorry in this case!

Indo Farming