Trees and the Law
Trees and hedges are one of the most common causes of neighbour disputes. A tree that is one person's pride and joy can sometimes be a source of worry and frustration to their neighbours. The rights and responsibilities of tree ownership are complex. The owner of land on which a tree is growing is responsible for its safety and maintenance. The best way to resolve problems with trees or hedges growing in adjacent properties is to talk to your neighbours. Try to keep the discussion friendly and come to an amicable agreement. If this fails you may have to resort to arbitration or litigation, both of which could prove costly. The following provides a general overview of some of the most frequently asked questions. Professional legal advice should be sought in complex issues relating to trees and the law.
My neighbour’s tree is overhanging into my garden. Do I have the right to prune back the branches?
A landowner may cut off any tree branches which over-hangs his/her property without giving notice to the owner of the tree, but may not cut down the tree or enter on to the land of the tree owner without permission. In so doing, the landowner must take care not to render the tree dangerous and may only cut on the side of and up to his/her boundary line. It is unlawful to ring bark or otherwise injure trees in such a manner as to cause them to die or decay. All cuttings must be given back to the owner of the tree, or at least offered back. If the owner of the tree doesn’t want the cuttings, they must be disposed of in a responsible way and should not be left in the tree owner’s property without permission.
What can I do about roots encroaching from a tree growing in an adjoining property?
The rights to cut the roots of any tree which encroach from the land of a neighbour are similar to those governing the cutting of branches. Great care is needed to avoid rendering the tree unstable and liable to windblow. There is no legal right to poison encroaching roots. If the roots are damaged, and the tree injured then the person using toxic substances may be liable. If it is proven that the encroaching roots caused damage to a property, then an action may be brought against the owner. Neighbour has the right to abatement.
My neighbour's tree/hedge is far too high – what can I do?
There are no height limits for either hedges or trees and there is no legislation currently available in Ireland to enforce a height restriction.
A tree outside my house blocks the light in my garden, do I have a right to light?
Right to light is a specific and complex legal matter and you should seek independent advice on this. A right to light exists only if the owner of a house can satisfy a court that he or she has enjoyed the uninterrupted use of that light for a period of greater than 20 years, before any legal action is brought about the light. This however, only applies to the windows of a property and not to a garden.
What is a Tree Preservation Order?
Tree Preservation Orders (TPOs) may be made under Section 45 of the Local Government (Planning & Development) Act 1963 and subsequent acts. Part Xlll of the Planning and Development Act 2000 sets out the provisions for TPOs. A TPO can be made if it appears to the planning authority to be desirable and appropriate in the interest of amenity or the environment. A TPO can apply to a tree, trees, group of trees or woodland. The principle effect of a TPO is to prohibit the cutting down, topping, lopping or wilful destruction of trees without the planning authority’s consent. The order can also require the owner and occupier of the land subject to the order to enter into an agreement with the planning authority to ensure the proper management of the tree, trees or woodland.
Other legal frameworks for the protection of trees include Development Plans and Planning Controls. Under the Planning Acts, the Local Authority must produce a development plan for its area. This can include objectives for preserving, improving and extending amenities. These objectives can include the preservation of trees and woodland. Preservation is achieved by the operation of planning controls and tree preservation orders. Planning permission can be refused, if the proposed development would result in the destruction of trees whose preservation is considered to be essential in the interests of amenity or can be granted subject to conditions eg. retention of specific trees or planting of new trees.
What procedures apply to the felling of trees?
The Forestry Act 1946 contains the main provisions for the felling of trees. Under this Act, it is an offence for any person to uproot or cut down any tree, unless the owner has obtained permission in the form of a felling licence from the Forest Service. Application for a Felling Licence is made on a Felling Notice form, available from Garda Stations.
A Felling Licence is not required in any of the following circumstances:
- Trees in a city, borough or town council area (contact the Forest Service for a current list)
- Any trees including hazel, apple, plum, damson, pear or cherry tree grown for the value of their fruit and also salix spp.
- Trees within 30.5m (100ft) of a building or permanent structure
- Trees excluded by Local Government legislation and utilities legislation
A Limited Felling Licence allows the applicant to fell the trees approved by the Minister and can be exercised over a period of two years. Conditions such as replanting to replace the trees are often attached. A Prohibition Order may prohibit the felling of all or any of the trees specified in the felling notice. The Forest Service, Department of Agriculture and Food, Agriculture House, Kildare Street, Dublin 2 is the forest authority responsible for forest policy and the control of tree felling including the implementation of the Forestry Act.
What can I do if I think my neighbour's tree is dangerous?
The owner of a tree which is a danger to the occupiers of adjoining land, or to people lawfully using a public way, is liable for any damage that it causes providing that negligence is proved against the owner. Owners should inspect their trees regularly, calling in professionals if necessary. The Local Authority may notify the owner in writing if the tree is or likely to be a hazard and require him/her to take appropriate action. If the owner does not comply, the Local Authority may take the necessary action required and the owner is then liable for any costs incurred by the Local Authority resulting from the action.
Whilst a tree can never be regarded as completely safe, at the same time it cannot be regarded as dangerous simply because of its size. Sometimes there are other signs that a tree may not be safe, in which case you should approach your neighbour to discuss your concerns. If you are worried about underground damage by roots, or subsidence, you will need to provide your neighbours with evidence that it is their tree that is causing the problem. You may need to employ a surveyor and /or tree professional for this purpose. It may also be prudent to discuss the matter with your property insurers.
Further Reading on Trees and the Law
Trees, Forests and the Law in Ireland. Damian McHugh and Gerhardt Gallagher (Coford, 2004).
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