Can I be sued if they damage a vehicle or person? And if I decide to cut them down, do I need a licence?
by Deirdre Flynn for independent.ie
September 29 2020
Dear Deirdre,
I’m a small beef farmer in the midlands and I have an outfarm that’s about 10km from my main farm, so I’m not there that often.
There’s not much land in it, only about 20 acres as I’ve sold a few sites over the years. The land has lovely old trees behind a stone wall and is quite close to the local town, which made it quite popular with people looking to build.
In total there’s around 15 houses on the road, not all on my land, but within about a four-mile stretch, so it’s become fairly busy with traffic.
The trees are now becoming a bit of a problem and over the past number of years some of them have fallen on the road. Storm Ellen the other week brought down a couple of the trees, and one fell onto the road and I’m worried about something worse happening with the rest of them.
Can I just get someone to cut them down? They’re quite big and old but not near enough any of the houses that if they fell they’d land on them.
I’m more concerned about my liability and if they fall on the road. Am I liable to be sued if they fell and did damage to a passing car or person?
And, do I have to apply for a licence to cut them down, as they are on my land?
The issue of trees and overhanging branches is unfortunately a common one, particularly during storms.
There are few issues arising in your query but we will deal with your biggest concern first: liability.
If one of the trees on your land were to fall and either cause damage to property or a person, then the rules of negligence would apply.
This means that in determining whether or not you would be liable, the courts would adopt the approach of reasonableness – what would a reasonable, prudent landowner have done or be expected to have known and done about the dangerous trees that have fallen?
You say the land is quite close to a local town and built-up area, the road is busy with traffic and the trees are “old”; so in this instance, the law requires that you exercise greater degree of care in checking the trees for defects.
Accordingly, you should check the trees and have a system of regularly checking them for any defects. If in doubt about their condition, engage an expert to advise you.
If you fail to exercise this degree of reasonable care, and damages result from your failure, then you could be sued.
A plaintiff (person taking the case) would have to prove that you should have been aware of the dangerous condition of the tree and would have been, had you carried out reasonable inspections.
You would need to show that you exercised the degree of care that would be reasonable and prudent in the circumstances by satisfying yourself that the tree was not a danger.
As the trees are beside the road, you should also be aware of overhanging branches that may interfere with cyclists and walkers or any nearby electricity wires, or obstruct the view of drivers.
If the trees obstruct views of road users or interfere with power lines, the local authority or the ESB may serve you with a notice directing you to cut them back and if you fail to do so, they may do it and charge you.
You should also be mindful of loose branches of these trees that may fall on someone. If tree branches are overhanging or loose, then you may need to cut them back, but you should get an expert to do so – do not cut them back yourself.
The reason for this is firstly, you may need a licence and secondly, if you interfere with the trees and they subsequently fall or cause damage, then you could be held responsible.
With regard to licences, the Forestry Act 2014 sets out the requirements for tree felling licences but also provides a list of trees that can be felled without a licence.
For example, you may fell a tree in an urban area (within a certain definition), but not if it is over 150 years old or within a landscape conservation area.
The Felling section of the Department of Agriculture website provides further details on the list of exemptions and you should consult this and/or the Department prior to taking any action.
Before you cut/fell the trees, you may also need to check if the tree is subject to a Tree Preservation Order. Certain trees may add character to a town, and you say these are located behind a stone wall close to the local town, so you would need to check this out.
If the trees on your land are falling onto the road, then you should act quickly to have them checked to protect your position.
Deirdre Flynn is from a farming background and practices as a solicitor at Deirdre Flynn Solicitors, 4 Ivy Terrace, Tralee, Co Kerry
The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information provided, Deirdre Flynn does not accept responsibility for errors or omissions howsoever arising. You should seek legal advice in relation to your particular circumstances at the earliest possible time.