Who is liable for these fallen trees...

Gautama

I've read a number of posts on this site and others regarding the responsibility/liability for fallen trees. The general consensus is that it's the owner/landowner, which is understandable.

However, what happens in the case where there is a ban on the owner from cutting or felling the tree? I can think of tree (pun intended) cases where this is possible:

1. TPO
2. Felling licence pending
3. Felling licence refusal

In these cases, and possibly more, the owner is prohibited by law from cutting the trees. In some cases it is punishable by imprisonment. If such a tree falls on a road, car, house, etc., who is responsible and who is liable?

ford2600

Section 37 of the Forestry Act, 1946.

Section 37 of the Forestry Act, 1946 states that it is illegal to uproot any tree over ten years old or to cut down any tree, unless notice of the intention to do so has been given in accordance with the Act.

Notice of intention to fell or uproot trees must be given in writing on a form known as a Felling Notice which may be obtained from any Garda Station or directly from the Felling Section of the Forest Service. On receipt of a completed Felling Notice, an Order prohibiting the felling of the trees is issued. This protects the trees in question while consideration is given to the issuing of a felling licence.

The prohibition on the uprooting or cutting down of trees does not apply where:

Arrow it is a hazel, apple, plum, damson, pear or cherry tree grown for the value of its fruit or any osier ( Note - this refers to any one of several willow species especially where grown for their rods for basket-weaving etc.).

Arrow the activity is covered by a limited or general felling licence and during the period during which such authority is exercisable.

Arrow it is less than 100 feet from a dwelling other than a wall or temporary structure;

Arrow it is standing in a County or other Borough or an urban district.

Arrow The tree is standing on land held by the Minister for the purposes of this Act

Arrow Other exceptions apply in the case of road construction, road safety and Such as the case where a tree is uprooted or cut down by direction of the Minister for Posts and Telegraphs on the ground that it is a danger or obstruction to telegraph or telephone wires. Another case could be where the tree is certified by a local authority as dangerous to road traffic on account of age/condition or in connection with road widening or improvement schemes or, building or constructional work

Gautama

Thanks for the comprehensive reply.

I posted it for the benefit of my neighbour. She's got a few large trees at the front of her garden, by the roadside.
She was worried about them during the storms last month so had a tree surgeon take a look.
Apparently most of the trees are a potential danger and would only get more dangerous over time.
Also, there appears to be TPOs on them. He quoted her €3,500, thought she's confident of getting it rounded down to €3k.

Based on your reply, her options/possibilities are:

• Get the trees felled, chopped and shredded. She is responsible and liable. No fine/imprisonment as the trees are a road safety risk. This will cost €3,000.
  
• Don't get the trees felled. She is responsible and liable. The trees fall on the road. Either she or the council will get a tree surgeon to chop and shred the trees, no felling. It is reasonable to assume this will cost less than €3,000 (though inflation may increase this cost over time).
• Don't get the trees felled. She is responsible and liable. The trees do not fall on the road. This will cost €0.

I'll let her know.

Thanks.

Oldtree

I would not be confident of a tree surgeons opinion on the retention of trees unless they are a qualified arborist, on the other hand anyone can say remove a tree and charge for it. What kind of examinations were carried out?

If an arborist has an opinion that the tree is dangerous and needs to be removed as it is creating a immediate hazard to the public then it may be removed (see exceptions). If an arborist says the trees can be retained then they have suitable insurance for saying so.

If there is a TPO it would be wise to work with your council on this and you would need an arborists opinion on removal. I would doubt that anyone on the council has the necessary credentials to make an informed judgement on the removal/retention of a tree. It may be that the council would not accept a tree surgeons opinion to remove a tree and need an arborists opinion.

These can tell you your local arborist:
http://www.goodwin-arborist.com/

sandydan

sorry for butting in as i know little of regs, however a tree fell on a van which was shown in paper and tv coverage,during storm and an interesting scenario is in process, on Rte Joe Duffy programme driver/owner was interviewed, suffered serious injuries from which he will need a lot of recovery time and for which it appears he will get no compensation,as it was termed as an Act of God and no one is liable as result, I think his van is covered by his own insurance but im open to correction.Just thought it would be of interest.

Oldtree

sandydan wrote: »

sorry for butting in as i know little of regs, however a tree fell on a van which was shown in paper and tv coverage,during storm and an interesting scenario is in process, on Rte Joe Duffy programme driver/owner was interviewed, suffered serious injuries from which he will need a lot of recovery time and for which it appears he will get no compensation,as it was termed as an Act of God and no one is liable as result, I think his van is covered by his own insurance but im open to correction.Just thought it would be of interest.

Not butting in at all, that is very interesting.

A lot of irish law and decisions are based on English common law.

If the tree was sound (and possibly the owner had the trees surveyed) then that may well be the case, but if the tree was unsound and un-surveyed then there is a case for negligence (reckless disregard) on the part of the tree owner as it was an avoidable accident. ie there is a duty of care for one's neighbour, a standard of care (which may differ from site to site) you have to take care as a reasonable and prudent landowner. but each case is decided on its own merits.

Lynch v Hetherton 1991
the onus of proof wil be discharged if the plaintiff can show that a proper inspection of the tree at reasonable intervals would have forewarned........
Prove that the landowner was aware or should have been aware of the danger......

worth reading as it has loads in it that is too much for me to type:
Trees, forests and the law in Ireland (2005) Coford Chapter 7
http://www.coford.ie/publications/books/

ford2600

Oldtree wrote: »

Not butting in at all, that is very interesting.

A lot of irish law and decisions are based on English common law.

If the tree was sound (and possibly the owner had the trees surveyed) then that may well be the case, but if the tree was unsound and un-surveyed then there is a case for negligence (reckless disregard) on the part of the tree owner as it was an avoidable accident. ie there is a duty of care for one's neighbour, a standard of care (which may differ from site to site) you have to take care as a reasonable and prudent landowner. but each case is decided on its own merits.

Lynch v Hetherton 1991
the onus of proof wil be discharged if the plaintiff can show that a proper inspection of the tree at reasonable intervals would have forewarned........
Prove that the landowner was aware or should have been aware of the danger......

worth reading as it has loads in it that is too much for me to type:
Trees, forests and the law in Ireland (2005) Coford Chapter 7
http://www.coford.ie/publications/books/

My understanding, having read a book entilted Trees and the Law, was a landowner wasn't liable if the tree that caused damaged had disease or defects that weren't obvious to a layman.

Requiring an inspection by an expert of every tree that could cause damage sounds mental.

More reading here

http://www.flac.uk.com/wp-content/uploads/2009/12/Liability-for-death-or-injury-from-falling-trees-and-branches.pdf

Oldtree

ford2600 wrote: »

My understanding, having read a book entilted Trees and the Law, was a landowner wasn't liable if the tree that caused damaged had disease or defects that weren't obvious to a layman.

Requiring an inspection by an expert of every tree that could cause damage sounds mental.

More reading here

http://www.flac.uk.com/wp-content/uploads/2009/12/Liability-for-death-or-injury-from-falling-trees-and-branches.pdf

That is another very interesting read, thank you. I don't think it is about inspecting every tree in the landscape, only those where there is a potential hazard, such as roadside trees.

From the conclusions:

From this review, it is concluded that only in cases where trees are remote from public access is an absence of some form of safety inspection likely to be defensible, should an accident occur. In all other circumstances, the law appears likely to require that occupiers be aware of the condition of their trees and manage them accordingly.

Of particular note is that the courts appear to consider regular ad hoc inspection by untrained persons acceptable in some circumstances, providing that the people concerned have a good working knowledge of trees generally and also are familiar with the trees in question. Where there is significant public access, formal tree inspection by trained specialists appears to be warranted, as is generally considered to be the case by the arboricultural profession.

...common law provides reassurance that the law tolerates an acceptable level of risk pertaining to trees, providing, in most cases, that this is kept under review by some form of inspection.

I would interpret that to mean that roadside trees require specialist knowledge, but either way I would not like to leave myself open the whims of litigation and the courts deciding if an owner was competent to do an assessment of roadside trees or not should an accident occur.

ford2600

Oldtree wrote: »

That is another very interesting read, thank you. I don't think it is about inspecting every tree in the landscape, only those where there is a potential hazard, such as roadside trees.

From the conclusions:

From this review, it is concluded that only in cases where trees are remote from public access is an absence of some form of safety inspection likely to be defensible, should an accident occur. In all other circumstances, the law appears likely to require that occupiers be aware of the condition of their trees and manage them accordingly.

Of particular note is that the courts appear to consider regular ad hoc inspection by untrained persons acceptable in some circumstances, providing that the people concerned have a good working knowledge of trees generally and also are familiar with the trees in question. Where there is significant public access, formal tree inspection by trained specialists appears to be warranted, as is generally considered to be the case by the arboricultural profession.

...common law provides reassurance that the law tolerates an acceptable level of risk pertaining to trees, providing, in most cases, that this is kept under review by some form of inspection.

I would interpret that to mean that roadside trees require specialist knowledge, but either way I would not like to leave myself open the whims of litigation and the courts deciding if an owner was competent to do an assessment of roadside trees or not should an accident occur.

I have over a mile of road frontage so I don't take responsiblity lightly.

I knock if there is any suggestion or hint of danger.

Should have added I read book in 1998, lot of decisions since

Oldtree

ford2600 wrote: »

I have over a mile of road frontage so I don't take responsiblity lightly.

I knock if there is any suggestion or hint of danger.

Should have added I read book in 1998, lot of decisions since

I am delighted to hear it, so do I.

The other side of that is you would need a felling licence to knock a tree, unless you could take photos of a huge cavity to prove that it was dangerous or had a professional opinion that it was dangerous and needed immediate felling, otherwise you could face a fine, court costs, etc.. So a hint or suggestion of danger is a variable that could not be relied on in this situation, actual proof would be required.

There is a body language to trees that can be read by an arborist, that can also indicate problems.

The book you read should have given an indication of the level of owner responsibility and that hasn't change much over the intervening years.

The Coford book really is a must read for tree owners.

Oldtree

Good books for the tree owner to start with:

Principles of Tree Hazard Assessment
http://www.treesource.co.uk/acatalog/info_226.html

Diagnosis of Ill Health in Trees
http://www.treesource.co.uk/acatalog/info_104.html

sandydan

my head is spinning, good for me that I don't have big trees near to road, i'm one of those who believe roadsides should be tree free for a distance of fifty feet back from roadside, not referring to bush or hedging,with none of above at bends , crossroads or entrances. as well as banning solid frame objects (poles etc,) unprotected by a crash barrier,i owe my life to one i guess

My Potatoes

sandydan wrote: »

my head is spinning....

When did life get so complicated, eh?

Oldtree

My Potatoes wrote: »

When did life get so complicated, eh?

It is complicated, and even then you cannot be assured of a positive outcome in the courts. Ireland is a very litigious country and ignorance of the law is not accepted as an excuse.

A simple rule is if you have roadside trees or trees that have any traffic (car/foot) look at them regularly and learn about them, notice the differences between visits. A rule of thumb would to get them professionally assessed every 3 years and that would cover you should something happen.

Oldtree

sandydan wrote: »

my head is spinning, good for me that I don't have big trees near to road, i'm one of those who believe roadsides should be tree free for a distance of fifty feet back from roadside, not referring to bush or hedging,with none of above at bends , crossroads or entrances. as well as banning solid frame objects (poles etc,) unprotected by a crash barrier,i owe my life to one i guess

A 3 yearly assessment would potentially negate any liability for the owner for existing trees. We would be too safe with a scorched earth policy.

I would agree with you that planting trees in a situation where they can become a hazard in the future is not a good idea, The right tree for the right place just about covers it. A little bit of thinking before planting is what is called for.

zetecescort

Oldtree wrote: »

It is complicated, and even then you cannot be assured of a positive outcome in the courts. Ireland is a very litigious country and ignorance of the law is not accepted as an excuse.

A simple rule is if you have roadside trees or trees that have any traffic (car/foot) look at them regularly and learn about them, notice the differences between visits. A rule of thumb would to get them professionally assessed every 3 years and that would cover you should something happen.

Would an arborist give a written report and would it be worth anything in court

Oldtree

zetecescort wrote: »

Would an arborist give a written report and would it be worth anything in court

Only an arborist would be suitably qualified and insured to give a written assessment that would have any value in a court.

These guys can point you in the right direction of your local arborist (needless to say they are not me:D)
http://www.goodwin-arborist.com/

Moocifer

If theres a TPO on the trees the local authority that put it on is responsible for them. Here's a link to the section of it that states that http://www.irishstatutebook.ie/1946/en/act/pub/0013/sec0044.html#sec44.

Only the local authority that imposed the TPO can give permission for anything to be done with them. A TPO supersedes the 100 feet of a permanent building rule in the act.

Also if a tree is a danger to road traffic under the 1993 Roads Act gives the Local Authority the right to remove the offending trees or order the person who's property they stand on to remove them.

sandydan

My Potatoes wrote: »

When did life get so complicated, eh?

The day your mama said go to school and learn some thing ,:) long may it continue:D

Oldtree

Moocifer wrote: »

If theres a TPO on the trees the local authority that put it on is responsible for them. Here's a link to the section of it that states that http://www.irishstatutebook.ie/1946/en/act/pub/0013/sec0044.html#sec44..

I am not sure that is what that section means. It seems to be about if a felling licence is applied for, is refused and they take decide to take over ownership of the tree and the site of said tree to preserve the amenity of the tree. Thus as owners they would be liable for the tree. They mention a protected tree in a different way to a TPO.

When you apply for a felling licence the trees are automatically protected until the licence Is granted.

Moocifer wrote: »

Only the local authority that imposed the TPO can give permission for anything to be done with them. .

That is true up to a point. The council do not own the trees with a TPO on them. A TPO is no longer valid if a tree dies, is dying or becomes dangerous and The TPO should be revoked, but this could take some time as an application is needed along with a professional arborists opinion. But if you as a tree owner (TPO in this case) and you get your trees assessed by an arborist and the arborist says that this tree is in imminent danger of collapse (say) onto a local road then the works are urgent and need to be expedited. A courtesy phone call to your council tree person to inform the council of the imminent danger to the public as assessed by an arborist should be adequate to allow works to commence.

Moocifer wrote: »

IfAlso if a tree is a danger to road traffic under the 1993 Roads Act gives the Local Authority the right to remove the offending trees or order the person who's property they stand on to remove them.

You should have sorted out those dangerous trees before the local authority becomes involved, as a prudent tree owner

Tree council advice:
http://www.treecouncil.ie/initiatives/treeinformation/treesandlaw.html

Oldtree

sandydan wrote: »

The day your mama said go to school and learn some thing ,:) long may it continue:D

I'm not finished yet

TomOnBoard

If you own land, its very simple: You own everything that

a) grows on it
b) flows from it
c) is endangered by it.

Basically, when it comes to trees, if you own it- you own ANY downstream problems that emanate from it.

THEREFORE, If you have ever had a missive from

i) the county council;
ii) neighbours;
iii) state agencies;
iv) professional advisors;
v) your own judgement

that says you have a dangerous tree on your property:

I'd arrange to have it professionally removed, UNLESS your own assessment, based on GOOD SCIENCE is that the tree should stay.. Simples. But don;t forget the need for the Felling Licence..

My Potatoes

TomOnBoard wrote: »

But don;t forget the need for the Felling Licence..

What happens if the felling licence is refused?

sandydan

Oldtree wrote: »

I am not sure that is what that section means. It seems to be about if a felling licence is applied for, is refused and they take decide to take over ownership of the tree and the site of said tree to preserve the amenity of the tree. Thus as owners they would be liable for the tree. They mention a protected tree in a different way to a TPO.

When you apply for a felling licence the trees are automatically protected until the licence Is granted.



That is true up to a point. The council do not own the trees with a TPO on them. A TPO is no longer valid if a tree dies, is dying or becomes dangerous and The TPO should be revoked, but this could take some time as an application is needed along with a professional arborists opinion. But if you as a tree owner (TPO in this case) and you get your trees assessed by an arborist and the arborist says that this tree is in imminent danger of collapse (say) onto a local road then the works are urgent and need to be expedited. A courtesy phone call to your council tree person to inform the council of the imminent danger to the public as assessed by an arborist should be adequate to allow works to commence.
A courtesy call is useless to any official in any state dept , a letter goes on record

Oldtree

sandydan wrote: »

A courtesy call is useless to any official in any state dept , a letter goes on record

Good point, but contacting the council is a courtesy only. Once a TPO tree is adjudged to be an imminent danger to the public by an arborist then it comes down asap, council permission or no. The council cannot take the issue any further, it is unlikely that they have an arborist on staff. it would be usual to have an arborist in house on a UK council. our law is based is on common sense (mostly)

sandydan

i like the way you insert the in the appropriate place good as any Oxford dictionary me thinks for giving the correct emphasis , id still send them a note especially in current environment. I did a haz -chem course and Rule No 1 was and is CYAAT ( cover your ass at all times), same rule for State Depts :

Oldtree

sandydan wrote: »

i like the way you insert the in the appropriate place good as any Oxford dictionary me thinks for giving the correct emphasis , id still send them a note especially in current environment. I did a haz -chem course and Rule No 1 was and is CYAAT ) cover your ass at all times), same rule for State Depts :

Absolutly CYAAT, but the tree would be down before they get the letter anyway and they would have to employ an arborist to get a second opinion as there would be no one suitably qualified on staff Cant see it happening really.

My Potatoes

http://www.irishexaminer.com/ireland/farmer-in-hot-water-for-obeying-felling-order-259860.html

Oldtree

My Potatoes wrote: »

http://www.irishexaminer.com/ireland/farmer-in-hot-water-for-obeying-felling-order-259860.html

4 questions spring to mind immediately:

1. Were the trees an immediate danger to the public?
2. Was there time to apply for the necessary felling licence?
3. Did the council's removal letter indicated the need for a felling licence or the need for an assessment by an arborist.
4. Are the Cork County Council engineers qualified arborists.

If the Forestry department say no to 1 and yes to 2 then the farmer will be prosecuted.

If the answer to no 3 is no, then if the farmer is taken to court the council could also be held jointly liable.

If the answer to no 4 is no then they should have indicated in their letter the need for an assessment by an arborist and the need for a felling licence.

The farmer wouldn't have had an issue if an arborist had assessed the trees and indicated their immediate removal on public safety grounds.

Contacting the Department by phone (and letter ) to inform them prior to works would be appropriate and a forestry inspector could be on site very quickly if required. The department is not unreasonable and understands the need for public safety. If the situation arose that the Department prevented felling of assessed dangerous trees then the liability would rest with them should an accident occur and that is again something they would be unlikely to undertake.

It would be appropriate for councils to employ a full time arborist to manage the tree population.

http://www.agriculture.gov.ie/contact/

My Potatoes

Oldtree wrote: »

It would be appropriate for councils to employ a full time arborist to manage the tree population.

34 full-time arborists nationwide? If the Irish Water teething problems have taught us anything, there are far more specialists being employed by the councils than are required on a national level.

Oldtree

My Potatoes wrote: »

34 full-time arborists nationwide? If the Irish Water teething problems have taught us anything, there are far more specialists being employed by the councils than are required on a national level.

Currently there are no arborists (no specialists) that I know of on any council here. A general cert in horticulture does not qualify a person to comment on the safety of a road side tree. Where do you suggest we start to manage the safety of our trees?
I am not sure how you can link the water issue with the tree issue, and feel that comparison is barking up the wrong tree .