I am concerned about some older trees on my farm that line the road. They are lovely old trees and it’s a horrible thought to cut them down, but am I liable if a tree on my farm falls on the road? If that does happen who pays to clear it, who pays for damage caused and what is the role of the County Council?
There are various types of legal action that can be taken arising from damage caused by fallen trees. The law seems reasonably clear that in nuisance, the owner of a tree is not liable for damage caused by the tree provided the owner did not know the tree was dangerous or could not have discovered it was dangerous by inspecting the tree.
Another action which may be brought against a tree owner for damage caused by a tree is negligence. Liability for negligence depends on how foreseeable the risk was and whether proper steps had been taken to prevent the incident.
Did the tree owner fail to take reasonable care which led to the incident (for example, failing to fell a rotting tree) or did the tree owner do something which contributed to the incident (for example, cutting off large boughs or leaving secondary branches which were more susceptible to storm damage)? If so, liability may attach to the tree owner for damage caused by a falling tree.
Obligation to maintain trees and hedgerows along a public road
The Roads Act 1993 stipulates the owner or occupier of land shall take all reasonable steps to ensure that a tree, shrub, hedge or other vegetation on the land is not a hazard or potential hazard to persons using a public road; thus hedgerow maintenance along a road is the responsibility of the owner or occupier of the land.
Where a hedge is a hazard or potential hazard to persons using a public road, a road authority may serve a notice on the owner of the land requiring the felling, cutting or trimming of the hedge within a period stated in the notice.
Where the owner fails to comply with a notice, they shall be guilty of an offence. The road authority may take the action specified in the notice and recover any reasonable costs incurred from the owner of the land. The Wildlife Act 1976, as amended by the Wildlife (Amendment) Act 2000, provides it is forbidden to cut or remove hedgerows or destroy other vegetation during the bird nesting season (1 March to 31 August each year).
However, there are some exceptions to this law, including cutting of hedgerows during routine agriculture or forestry practices for public safety (such as roadside hedges), for the maintenance of watercourses (for fisheries) or for development of land (such as building houses).
Tree felling licence
It is worth noting that under the Forestry Act 2014 it is illegal to uproot any tree over 10 years old or cut down any tree of any age, including trees which form part of a hedgerow, without a tree felling licence. However, a licence is not required where the trees are within 10 metres of a public road and which, in the opinion of the owner (being an opinion formed on reasonable grounds), are dangerous to persons using the public road on account of their age or condition.
If you live in an urban area, you may need to contact your local authority to see if there is a Tree Preservation Order on the tree.
Trees and hedgerows along a
neighbouring farmer’s property
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 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 be done 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:
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 (engineer fees, legal advice, etc) as well as reasonable compensation for inconvenience (such as interference with the adjoining owner’s business).
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.
If the adjoining owner fails (within a reasonable time) to meet a claim to a contribution, the person carrying out the works can recover the contribution as a simple contract debt in court.
It is always in the best interests of all parties to achieve agreement where works are intended to be carried out to a party structure or boundary. However, where agreement cannot be reached, the Land and Conveyancing Law Reform Act 2009 provides a welcome mechanism to resolve the matter based on defined legislative rules.
Disposal of tree & hedge cuttings
The Waste Management (Prohibition of Waste Disposal by Burning) Regulations 2009 makes it an offence to dispose of waste by uncontrolled or unregulated burning.
Exemption is provided for certain agricultural practices, but only as a last resort and after specified steps are taken to reduce and recycle waste. Such steps could include allowing hedge and tree cuttings to compost naturally back into the existing hedgerow, mulching or shredding them on site or at the nearest recycling centre or storing them until dry and burning them in a domestic fire during calm conditions.
The Department has amended SI 286 of 2009 to extend until 1 January 2021, the exemption which exists to allow farmers to burn such waste as a last resort generated by agricultural practices (there is a possibility this may be extended again). These activities will require registration with the local authority. The burning of waste relates solely to material consisting of uncontaminated wood, trees, tree trimmings, or other similar waste generated by agriculture practices.
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 howsoever arising.