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Friday 24 November 2017

Advice: Contact your local authority or the ESB to deal with dangerous trees

The ESB can remove potentially dangerous trees or compel landowners to do so
The ESB can remove potentially dangerous trees or compel landowners to do so

Theresa Murphy

Q Last week's storm uprooted some trees on the border between my land and my neighbour. Although still standing I am concerned that it will fall and bring down the power lines along side and if that happened I would likely lose power to the milking parlour and other facilities. I have told my neighbour that he needs to have the tree removed and made safe, but I don't think he has done anything about this. Where do I stand if the tree causes damage to my property?

A. As Storm Ophelia has highlighted the issue of liability for trees both fallen and overhanging.

Although it can be a sensitive issue between neighbours, 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/trees do not encroach and affect their neighbours' use of their land. They must also ensure that trees are safe from falling branches.

In relation to trees which may overhang onto the roadway or near power lines, local authorities and the ESB 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.

The best solution may be to contact the ESB if you are concerned that a tree poses a potential risk to the power line near your home. These reports will be taken very seriously and the ESB can choose to remove it themselves or compel your neighbour to do so.

If the ESB/local authority decide to direct the owner to remove the tree and the owner fails to comply, they have authority to carry out the work and charge the owner.

As the tree seems to be on your neighbours land and not your own you should not cut the tree yourself as this could raise liability issues for you.

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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.

Also, the cutting of certain trees are subject to the need for a licence to do so.

You should check this out before taking any action.

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 biggest changes to the new Act include an expanded list of exempted trees to allow felling without a tree felling licence for trees outside of the forest in certain circumstances. The Felling section of the Department of Agriculture can be contacted at felling.forestservice@agriculture.gov.ie

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.

Standard of Care

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.

Restrictions

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 PaymentScheme, you may be restricted in taking actions to cut/burn hedges.

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

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