QUESTION: I’m making contact in relation to a situation that occurred during Storm Kathleen a few weeks ago. Some rotting trees fell onto my garden and one narrowly missed the gable wall of my garage; thankfully no one was injured. The issue I have now is that the remaining trees – which are also rotting and bordering my property – now pose a risk to both our property and the safety of our young family.
I spoke with the landowner asking her permission to remove the high risk and she refused to allow me to do anything with the trees.
Any advice or assistance would be greatly appreciated.
AISLING ANSWERS: There are various types of legal action that can be taken arising from damage caused by fallen trees.
The first is that the owner of the tree may be liable for damage caused by it, provided they knew it was dangerous or could have discovered the danger by inspecting the tree.
Another action which may be brought against a tree owner for damages 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 lead 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 by cutting off large boughs, leaving secondary branches which were more susceptible to storm damage? If so, they may be liable for damage caused by the falling tree.
Legal Liability for Fallen Trees
The fact that you have flagged the issue now with the owner puts an onus on her to make enquiries as to the health or otherwise of the trees. That said, you do not want to wait for an accident to happen, especially if you have a young family.
Accordingly, you could seek to make your own enquiries by engaging a forester to check the trees, if your neighbour refuses to do so. If there are issues with the trees, I would recommend that you get the forester to
document them and list recommendations to deal with the issue. You should then share the report with your neighbour and if she still refuses to act, there may be scope to apply to the district court for a works order.
Trees/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 a mechanism to carry out the works.
In practical terms, the person wishing to carry out the works should obtain their neightbour’s consent beforehand – setting out what work is to be done; when they intend to do it; and why it needs to be done.
However, in the event of a dispute to carry out those works, it is possible to apply for a court order.
The act provides that you may carry out works to a party structure for a variety of reasons. These include: complying with statutory or planning requirements; for the preservation of your property; or any other works which will not cause either substantial damage or inconvenience to your neighbour. If it does cause damage or inconvenience, it should be deemed reasonable.
The legislation also provides that you shall pay your neighbour the reasonable costs of obtaining professional advice about the likely consequences of the works (such as engineers fees, legal advice etc) as well as reasonable compensation for inconvenience (such as where the works will interfere with their business).
However, you can claim a reimbursement from your neighbour of such sum that will take into account the proportionate use or enjoyment which the adjoining owner will get from the works.
If your neighbour fails within a reasonable time to meet a claim to a contribution, you can recover it as a simple contract debt in court.
Tree Felling Licence
It is also worth noting that under the Forestry Act, 1946 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, unless a felling notice has been lodged to the Garda station nearest to the trees at least 21 days before felling commences.
A felling notice may be obtained from any Garda station or directly from the felling section of the Forest Service of the Department. There are limited specified exceptions where a felling notice is not required such as where the tree is less than 100 feet from a dwelling other than a wall or temporary structure. Other exceptions apply in the case of local authority road construction, road safety and electricity supply operations.
Conclusion
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, these acts provide a welcome mechanism to resolve the matter based on defined legislative rules.
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. Email info@agrisolicitors.ie