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. Professional legal advice should be sought in complex
issues relating to trees and the law.
FREQUENTLY ASKED QUESTIONS
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 providing the branches which overhang are interfering with the property and causing a nuisance, i.e. (a tort which involves an act or omission which amounts to unreasonable interference with, disturbance to, or annoyance to another person’s in the exercise of their rights).
It is not permitted to enter the neighbour’s property. This includes air space if using a mobile elevated work platform. It is not permitted to cut back branches beyond the boundary. Any works carried out must not render the tree unsafe, dangerous, prone to infection or to irreparably damage the tree.
As a good neighbour one should inform the adjoining landowner before carrying out works.
A landowner may not cut down the tree or enter on to the land of the tree owner without permission.
It is unlawful to ring bark (a process involving the complete removal of a strip of bark from around the entire circumference of either a branch or trunk of a tree) 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 does not 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 right to cut the roots of any tree which encroach from the land of a neighbour are the same as 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 or killed then the person using toxic substances may be liable and prosecuted under the Criminal Damage Act 1991.
If it is proven that the encroaching roots caused damage to a property, then an action may be brought against the owner of the tree. A neighbour has the right to abatement of the nuisance.
If the pruning works do not fall into the scenario as set out above and an adjoining neighbour is unwilling to allow, permit or facilitate the works, a building owner who is in dispute with an adjoining owner may apply to the court for an order authorising the carrying out of specified works. Section 45 Land Conveyancing, Law Reform Act 2009.
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 the Republic of Ireland to enforce a height restriction.
There is the opinion to seek a works order under Section 45, Land Conveyancing, Law Reform Act 2009, to reduce the height of the trees.
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 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. The duty of care of owners of roadside trees is set out in the Roads Act 1993.
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. This is known as a section 70 notice; it must be issued in a prescribed manner and can be appealed to the District Court if the tree owner feels the prescribed action is unnecessary or excessive.
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, 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.
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 forms for a Felling Licence are available from www.agriculture.gov.ie
The following are common scenarios where trees can be felled without the need
to submit a felling licence application:
(Note: It is the responsibility of the owner or the person felling the tree to ensure that they are
acting within the law. If in doubt, apply for a felling licence!)
A tree in an urban area. (An urban area is an area that is comprised of a city, town or borough specified in Part 2 of Schedule 5and in Schedule 6 of the Local Government Act 2001, before the enactment of the Local Government Reform Act 2014.
This act dissolved Town Councils, however the old boundaries of these areas are still considered as urban for the purpose of the Forestry Act 2014.
A tree within 30 metres of a building (other than a wall or temporary structure) but excluding any building built after the trees were planted.
A tree less than 5 years of age that came about through natural regeneration and removed from a field as part of the normal maintenance of agricultural land (but not where the tree is standing in a hedgerow).
A tree uprooted in a nursery for the purpose of transplantation.
A tree of the willow or poplar species planted and maintained solely for fuel under a short rotation coppice.
A tree outside a forest within 10 metres of a public road and which, in the opinion of the owner (being an opinion formed on reasonable grounds), is dangerous to persons using the public road on account of its age or condition.
A tree outside a forest, the removal of which is specified in a grant of planning permission, providing it was indicated on the lodged plans as being planned for removal as part of the application.
A tree outside a forest of the hawthorn or blackthorn species growing in a hedge.
A tree outside a forest in a hedgerow and felled for the purposes of its trimming the hedge providing that the tree does not exceed 20 centimetres diameter at 1.3 metres above ground level.
Agricultural holdings can fell a limited small number of trees not exceeding 3 cubic metres.
The maximum number of trees permitted to be felled under that exemption per year is 4 trees (12 cubic metres)
Outside a forest, apple, pear, plum, or damson species are exempt from the need for a felling license.
Removal of trees from grant-aided plantations:
All plantations are subject to the provisions of the Forestry Act, 2014. The purpose of the Act
is to protect the national and private forest estate by regulating tree felling with a view
to promoting sustainable forest management. With certain exceptions, a tree felling licence is needed before trees can be felled or otherwise removed.
Tree Preservation Orders (TPOs) may be made under Section 205 of the Planning & Development Act 2000.
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 e.g. retention of specific trees or planting of new trees.
The making of a tree preservation order is a function of the County Council. Orders are made when it is considered that the tree or trees are of amenity value and are under threat of being damaged or removed.
The preservation order brings the trees under the control of the planning and development acts. If the Council have granted planning permission that they will not make a Tree Preservation Order. If permission has been granted and the trees are scheduled to be removed it is difficult to prevent it. If on the other hand the planning application has only been lodged, then you can object on the grounds that the trees will be lost
Offences under the Act and the penalties that can be imposed by the Courts.
Penalties for illegal tree felling, breach of felling licence conditions or failure to reforest in accordance with a replanting order can be severe.
Illegal felling or removal of trees: (a) on summary conviction, to a fine not exceeding €200 for every tree in respect of which the offence was committed (but which total penalty shall not exceed €5,000) or imprisonment for a term not exceeding 6 months or both, or (b) on conviction on indictment, to a fine not exceeding €1,000,000 or imprisonment for a term not exceeding 5 years or both.
Breach of a felling licence condition: (a) on summary conviction, to a class A fine [i.e. a maximum fine of €5,000] or imprisonment for a term not exceeding 6 months or both, or (b) on conviction on indictment, to a fine not exceeding €25,000 or imprisonment for a term not exceeding 2 years or both.
Failing to comply with a replanting order made by the Minister: (a) on summary conviction, to a class D fine [i.e. a maximum fine of €1,000] or (b) on conviction on indictment, to a fine not exceeding €5,000, for every period of 30 days during which such failure continues.
Where an owner has been convicted [for failing to comply with a replanting order] and the failure to comply in respect of which he or she was convicted is continued after the conviction, the owner shall be guilty of a further offence on every day on which such failure continues and for each such offence the person shall be liable— (a) on summary conviction, to a class E fine [i.e. a maximum fine of €500], or (b) on conviction on indictment, to a fine not exceeding €2,500.
Wildlife Acts 1976-2018
The cutting or felling of trees is prohibited during the period 1st March to 31st August every year with limited exceptions.
The appeal relating to Felling Licences, construction of forest roads and Planting Licenses must be in writing, setting out the grounds and including a statement of the facts and contentions upon which the appellant intends to rely, along with any documentary evidence he/she wishes to submit in support of the appeal. The appeal must be sent to:
Forestry Appeals Committee,
Telephoning Lo Call (076) 1064415
If the applicant or third party is still dissatisfied following the decision of the Forestry Appeals Committee, he/she may seek a judicial review and/or contact the Office of the Ombudsman.
There is no appeals process in relation to Tree Preservation Orders.
The Forest Service, Department of Agriculture & Food, Agriculture House, Kildare Street, Dublin 2 is the authority responsible for
forest policy and the control of tree felling including the implementation of the Forestry Act.
lo-call 0761 064415
Amenity Trees & Woodlands; A Guide to their Management in Ireland (Chapter 12)
Authors: Kevin Collins (editor), Roy Goodwin, Dorothy Hayden, Helena McGorman, Joe McConville, Felim Sheridan, Gemma Carr (The Tree Council of Ireland, 2010)
Trees, Forests and the Law in Ireland Authors: Gerhardt Gallagher, Damian McHugh (Coford, 2004)