Ask a solicitor: My neighbour's tree looks like it could fall on to my property

Where a hedge is a hazard or potential hazard to persons using a public road, the Road Authority may serve a notice on the owner or occupier of the land requiring the felling, cutting or trimming of the hedge.

Dear Karen,

There are large, beautiful old trees that line the road up to a row of houses, one of which is mine. However, I am concerned about one particular large tree which is located on my neighbour’s property near the road. 

After the recent storms, it looks like it’s damaged and I worry it could fall over at any stage. There is a danger it could fall into my garden. What do you think I should do?

Dear Reader,

Section 72 of the Roads Act 1993 provides that the owner or occupier 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. An 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.

In an agricultural environment, overgrown shrubs and trees can sometimes infringe on public roads and regular maintenance must be carried out in order to ensure that they do not pose a hazard to road safety.

Under the 1993 Act where a tree, hedge or other vegetation is a hazard or a potential hazard to persons using a public road, or where it obstructs or interferes with the safe use of a public road, or with the maintenance of a public road, a Road Authority may serve a notice in writing on the owner or occupier of the land on which such tree, shrub, hedge or other vegetation is situated requiring the preservation, felling, cutting, lopping, trimming or removal of such tree, shrub, hedge or other vegetation within the period stated in the notice.

It is worth noting that 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 hedge growth without a licence. A felling licence must be obtained. The licence may contain conditions which can include environmental and replanting conditions.

A felling licence does not apply in some circumstances, for example where the tree is less than five years of age and came about through natural regeneration and removed from a field as part of the normal maintenance of agricultural land, or is within 30m of a building (other than a wall or temporary structure but excluding any building built after the trees were planted). 

The Section 44(1) of the Land and Conveyancing Law Reform Act 2009 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.

In practical terms, the person wishing to carry out the work should obtain, in advance, the consent of the adjoining landowners setting out what work is to be done, when it is intended to do the work and why it needs to be done. 

In the event of a dispute, the 2009 Act states that the person wishing to carry out the works can apply to court for an order authorising the carrying out of these works.

Where a hedge is a hazard or potential hazard to persons using a public road, the Road Authority may serve a notice on the owner or occupier of the land requiring the felling, cutting or trimming of the hedge within a period stated in the notice.

Where the owner or occupier of the land fails to comply with such a notice, he or she will be guilty of an offence. The Road Authority may take the action specified in the notice and then recover any reasonable costs incurred by it from the owner or occupier of the land.

A relevant Road Authority may serve a notice on the relevant owner or occupier of the lands in question where there has been an infringement of the foregoing sections.

It is clear that all owners or occupiers of land must and should take all reasonable steps to ensure that any trees or shrubs in their lands do not interfere adversely with users of a public road and that they are not a potential hazard or become a hazard. 

All owners and occupiers of land should inspect their land regularly to ensure that overgrowing shrubs, trees and hedges and drainage do not pose a hazard to road safety.