Legal requirements for felling trees with ash dieback
Ash dieback (Hymenoscyphus fraxineus) is now widespread throughout the countryside and woodlands. It is estimated that up to 90% of ash trees will succumb to the disease, resulting in a major change to our landscape and woodland structure. This will have serious implications not only for timber production but also for amenity, biodiversity, carbon sequestration, landscape and culture. Fortunately all is not lost, there are a number of Ash trees showing natural tolerance to the disease. These trees are presenting minor symptoms with no noticeable impact to their growth or health. Teagasc has developed two research projects to identify these trees and to build up a gene bank of tolerant Ash trees.
One concern as the disease spreads is the risk of accidents occurring due to trees falling or branches dropping. The danger will increase as older trees become infected. This will have serious implications for forest owners, particularly if the trees are growing close to public roadways. Normally when trees are planted there is a setback distance of 10 metres from public roads. However if the trees have been planted for a number of years, they may have grown to a height that should the fall, they will reach the road. Equally when planting an owner is obliged to retain existing hedgerows. If there are old ash trees in the hedgerow situated close to a public road, there may be a risk of these trees falling onto the road. Forest owners should also assess the risk of Ash trees falling onto internal forest roads, pathways, structures, etc.
If a tree or branch falls onto a road or on to adjoining land and as a consequence causes injury or damage to an individual or property, the general rule is that the owner of the tree will be liable only it can be established that he/she has been negligent. If it can be shown that the owner of the tree knew or ought to have known that the tree was dangerous and that he/she took no action to deal with it, he/she will be guilty of negligence and therefore liable for the injury or damage that may result.
The Roads Act 1993 (Section 70) places a statutory obligation on all landowners/occupiers of land or structures to ensure that roadside structures, trees, shrubs or other vegetation do not present a danger to those using and working on public roads.
All landowners/occupiers of land or structures are required to take all reasonable care to ensure that roadside structures, trees, hedges, shrubs and other vegetation growing on their land is not or could not become a danger to those using or working on the public roads
The Local Government (Sanitary Services) Act 1964 is the legislation that covers dangerous structures away from roads and not posing a danger to road users.
Under these Acts, the Local authority can arrange inspection and issue instructions to owners requiring them to make a structure safe. The Local Authority can in cases of immediate danger, take the necessary action required without giving notice to make a property safe. This is known as a section 70 notice.
The owner/occupier of the land also has obligations under the Safety Health and Welfare Act 2005.
Assessing the risk
Forest owners should walk their property and assess the level of infection in all their Ash trees, those planted and in the hedgerows. On younger planted trees (≤ 30 years), symptoms of the disease include dieback in the crown, diamond shaped lesions on the stem, coppice regrowth both on the stem and in the crown and basal lesions. Not all these symptoms may be present at the one time. On older trees the main symptom of the disease will be crown dieback. Older trees although infected tend to be more resilient and they should be closely monitored. Take photos of the crowns and compare the degree of dieback over time. Examine the butts and root buttresses of these older trees for signs of secondary infections by other fungi. Fungi such as Armillaria (Honey fungus) species will cause butt and root rot, resulting in the tree falling. Seek professional advice if necessary.
If older trees need to be felled, the operation should be carried out by reputable operators who have experience in felling roadside trees. Care should be taken as severely infected trees can drop branches or shatter due to the vibration of the saw. It might be safer in some situations to fell the trees mechanically using an excavator base with a shear head rather than using chain saws.
Under the Forestry Act 2014, it is an offence for any person to up root or cut down any tree unless the owner has obtained permission in the form of a felling licence from Department of Agriculture, Food and Marine (DAFM), Forestry Division. There are exemptions to this requirement for a felling licence. It is the responsibility of the owner or the person cutting the trees to ensure that they are acting within the law.
A felling licence is not required for 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. The local Authority should be informed, advising them of the danger, the exact location of the tree and its proximity to the roadside. Service suppliers, like ESB Networks should also be informed.
Remember, under the Wildlife Acts 1976 – 2018, the cutting or felling of trees is prohibited during the period 1 March to 31 August.
- Trees, Forests and the Law in Ireland; Damian McHugh and Gerhardt Gallagher, COFORD, Dublin