Advice: Are land owners liable for damaged caused by trees and hedges

Q I am a landowner and have an issue with mature deciduous trees which are located approximately six feet inside a ditch which adjoins a road. The trees are of great value to me as they are located on the boundary of my lands. I would be sorry to have to cut them back, but I am concerned about my liability if any part of the trees were to fall over the ditch onto the roadway or even into an adjoining landowner's property. I am also concerned about potential liability from overhanging trees and hedges in some of my fields.

A Liability for trees and their branches as well as over-hanging hedges are issues faced by almost all land owners 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 affect their neighbours' use of their land and also that trees are safe from falling branches.

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

While this may be advisable from a conservational perspective, the law permits the cutting or grubbing of isolated bushes and clumps of gorse (furze or whin), as well as the mowing or cutting of isolated growths of fern (bracken) in the ordinary course of agriculture at any time of the year.

You should also bear in mind that 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 deciduous trees which may overhang onto the roadway, local authorities and Electric Ireland have powers to deal with this type of dangerous tree. 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 these trees yourself, as you may need a licence to do so. You should check this out before taking any action.

Another common issue arises where a tree poses a risk of falling branches but may not be not located on your property.

The risk with cutting back such a tree is that 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 2014 is now in place and replaces the Forestry Act of 1946. The new legislation sets out the requirements in relation to tree felling licences. It allows for a single licence process for tree felling and allows for felling licences of up to 10 years in duration which may be extended for one or more periods of up to five years in total.

The Department will publish a notice of the application before making a decision on the matter. Further details are available on www.agriculture.gov.ie/forestservice/treefelling/

Views

If your land abuts a roadway, you should also be aware that you are responsible for ensuring that drivers' views are not negatively affected by the bushes or trees.

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.

If the trees or their branches are reaching near enough to the road to pose a possible risk of danger, you should take action by seeking a license to cut.

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. If the tree was old or dying, this 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.

In the case of trees and ditches forming part of the boundary with adjoining lands, the general rule is that the location of the root of the tree (or the majority of the root) is the guide as to who is the owner of the tree.

This article is intended as a general guide only and professional advice should always be sought for individual circumstances. No liability is accepted for errors.

Theresa Murphy is a barrister based in Ardrahan, Co Galway theresamurphy@lawlibrary.ie

Storms and acts of god

Tree damage during a storm is usually considered a 'natural' event or an '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.

These should be cut back or felled safely and in line with the law. Better safe than sorry in this case.