Obligations of land owners if their hedges or trees encroach

By Karen Walsh

It is common for farmers to plant trees, shrubs and hedging on the boundary of their lands.

It is important when doing so to ensure that they are not encroaching on the neighbouring land, and that they are not causing a hazard to your neighbour or the public.

Section 70 of the Roads Act 1993 (hereafter “the 1993 act”), provides that the owner or occupier of any structure and land must take reasonable steps to ensure that any structure on the land is not a hazard, or a potential hazard, to persons using the public road.

The obligations of land owners and occupiers are laid out in the 1993 Act.

Under Section 70(2) of the 1993 act, the owner or occupier of land is obliged to 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, and that it does not obstruct or interfere with the safe use of a public road or the maintenance of a public road.

The legislation then provides that the road authority, which would normally be the local council, can serve a notice in writing obliging the landowner to cut, trim or potentially remove the tree, shrub, or hedging, within a time period set out in the notice.

It is clear that the owner or occupier of land must take all reasonable steps to ensure that any such trees or shrubs do not interfere with the safe use of a public road. Accordingly, hedge growth maintenance along a public road is the responsibility of the owner or occupier of the land.

A relevant road authority can serve a notice on the relevant owner or occupier of the lands in question, where there has been an infringement of the foregoing sections.

If you are served with this, it is recommended you obtain legal advice.

If a landowner or occupier receives such a notice and is unhappy with his obligations under it, he can appeal this notice to the District Court within 14 days from the date of service, on any of the following grounds:

 - He or she is not the owner or occupier of the structure;

 - He or she is not the owner or occupier of the land on which the structure, tree, shrub, hedge or other vegetation is situated;

 - The structure, tree, shrub, hedge or other vegetation is not a hazard to persons using a public road or does not obstruct or interfere with the safety or maintenance of a public road;

 - Compliance with the requirements of the notice would involve unreasonable expense;

 - The notice specified an unreasonably short time for compliance.

It is important to highlight the fact that the road authority has to be put on notice of the appeal, as it is entitled to appear, and that any notice served by the road authority should also make it clear to the landowner or occupier that it is an offence not to comply with the notice.

Section 81 of the 1993 act states a person guilty of an offence shall be liable on summary conviction, to a fine not exceeding €1,238.70 or, at the discretion of the court, to imprisonment for a term not exceeding six months or to both such fine and imprisonment, or, on conviction on indictment, to a fine not exceeding €12,386.97 or, at the discretion of the court, to imprisonment, for a term not exceeding two years, or to both such fine and imprisonment.

According to Section 37 of 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 with the Garda Station situated nearest to the trees, at least 21 days before felling starts.

However there are exceptions to this.

Two further provisions worth noting are Section 44(1) of The Land and Conveyancing Law Reform Act, 2009 which provides landowners with a right to carry out works on boundaries between two neighbouring properties, such as clearing or filling in ditches or cutting or replacing hedges.

And Section 40 of the Wildlife Act 1976, as amended by Section 46 of the Wildlife (Amendment) Act, 2000, forbids cutting or removal of hedgerows or other vegetation during the bird nesting season from March 1 to August 31 each year.

If you are carrying out work to a boundary, it is highly recommended you seek consent from the neighbouring landowner.

Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.

Email: [email protected] 

Web: www.walshandpartners.ie

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