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

Irish Independent - Farming - - FINANCE FARMING - THERESA MUR­PHY

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?

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.

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

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

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