Abandoned land: duty to maintain?

“A farmer owns the field next to our house and site. He doesn’t maintain the field or hedging. He used to put cattle in it a couple of times a year to graze and that was how he maintained it. He is no longer allowed to keep animals, I believe, and so he has just left the field and hedging to overgrow and turn to scutch for the last two years. It is extremely unsightly and the tall grass has started to encroach through our fencing. He is not the type of person who you could negotiate with or approach, so I’m wondering is there any legal obligation for him to maintain it?”

Aisling replies

Unfortunately, trees and hedges can often become a source of friction between neighbours. It would not be the norm that land would be left idle by farmers, as they are obliged to either farm it or maintain it in good agricultural and environmental condition in order to claim entitlements/subsidies. If a landowner is not in a position to farm the land or claim entitlements on it, they normally rent or lease it out to another farmer in order to do so, especially in recent times – given the demand for land and the high rents being paid.

Right to remove vegetation

In relation to any of the tall grass which is encroaching through your fence, you have a right to remove this. You can cut any of the grass, hedge and/or trees which are overhanging into your property, provided you can access it from your own property. It is important to note that you may not enter onto your neighbour’s property without their permission to do so. You should cut only branches/grass, etc, on your side of the fence up to the property boundary line.

In practice, the boundary will be found in the middle of the hedgerow because the practice of the Ordnance Survey is to place the boundary in the middle of the hedge, and Ordnance Survey maps were adopted when the Folio plans were created by the Land Registry.

You cannot do anything which would render either the overhanging tree or hedge dangerous and you similarly cannot do anything which would cause the offending tree/hedge to die. Any work to the hedge should be done in the dormant season, between the start of September and the end of February. Section 40 of the Wildlife Act 1976 as amended by the Wildlife (Amendment) Act 2000 prohibits the cutting of any vegetation on uncultivated land between 1 March and 31 August in any year, except on the grounds of health and safety.

Legal mechanism to resolve disputes

In the event of a dispute in relation to the right to cut or maintain hedges or trees lying on a boundary between two adjoining landowners, the Land and Conveyancing Law Reform Act 2009 provides landowners with a mechanism to carry out the works.

In practical terms, the person wishing to carry out the works should obtain the adjoining landowner’s consent in advance – setting out what work is to be done, when it is intended to do the work and why it needs to be done. However, in the event of a dispute in exercising those rights, the person wishing to carry out the works can apply to court for an order authorising the carrying out of those works. The Act provides that a person who wishes to carry out works to a party structure may do so for the purpose of:

or, if they will cause such damage or convenience, it is nevertheless reasonable to carry them out.

The legislation provides that the person carrying out the works shall pay the adjoining owner the reasonable costs of obtaining professional advice about the likely consequences of the works (such as engineer’s fees, legal advice, etc), as well as reasonable compensation for inconvenience (such as where the works will interfere with the adjoining owner’s business).

However, the person who carries out the works can claim a reimbursement from the adjoining owner of such sum as will take into account the proportionate use or enjoyment which the adjoining owner will get from the works.

Hedges adjoining public road

If the hedgerow borders a public road, under the Terms of the Roads Act 1993, landowners and occupiers of land are obliged to take all reasonable care to ensure that the trees, ditches, hedges and other vegetation growing on their land are not or could not become a danger to people using or working on a public road.

Your neighbour, as landowner, is required to fell, cut, log, trim or remove a hedge to prevent it from becoming a hazard to persons or property in the area if, for example, the hedge is interfering with traffic, blocking footpaths or road signs or obscuring a clear view of the road ahead.

You can contact your local county council to advise them of any hedge adjoining a public road which is dangerous.

Derelict sites register

Depending on the location of the field in question, you may have some recourse under the Derelict Sites Act. The Derelict Sites Act defines a derelict site as any land that “detracts, or is likely to detract, to a material degree from the amenity, character or appearance of land in the neighbourhood of the site in question because of:

You can report the field in question to your local authority/county council, who can decide if the field in question should be added to their derelict sites register. Any sites added to the register are subject to a derelict sites levy and they can be compulsorily purchased.

The local authority can also issue statutory notices to the landowner telling them what they want the landowner to do to clean up the site. The local authority can also recover the cost of any necessary work from the landowner in question.

Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors does not accept responsibility for errors or omissions. E-mail aisling@agrisolicitors.ie

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