COMHAIRLE CONTAE ÁTHA CLIATH THEAS
SOUTH DUBLIN COUNTY COUNCIL

MEETING OF CLONDALKIN AREA COMMITTEE

Wednesday, October 18, 2017

MOTION NO. 17

MOTION: Councillor T. Gilligan

"Currently if a tree or branch is hanging over an adjacent property the owness is on the neighbour to cut / remove the branch and place it back in the yard of the tree? How would this committee go about passing a law / bye-law / legislation etc that it is the responsibility of the owner of the tree / branch to maintain their own property?"

REPORT:

Within the framework of existing legislation, managers and owners of land have a statutory duty to take reasonable care under the Occupiers Liability Acts 1995 to ensure that trees situated on their land remain in a safe condition as far as is reasonably practicable so that they do not pose a threat to the public.  However, there is no legislation in Ireland regulating the height of trees or hedges and there is no right to sunlight or natural light to a garden.

Under common law, a person may cut any branch or root from a neighbour's tree that overhangs or encroaches onto their property back to the boundary line.  In cutting back any overhanging branches or encroaching roots, the permission of the tree owner is not required provided it can be done without going onto the owner's property.  Care must be taken to avoid damaging property or carrying out work that would leave the tree unsafe or dangerous.  However, as with all such matters, it would be preferable for adjoining property owners to discuss and agree what action was required before resorting to mediation or civil procedures.

Where co-operation is not forthcoming, Section 45 of the Land and Conveyancing Law Reform Act 2009 provides a mechanism for property owners to apply to the courts for a Works Order to deal with boundary-related problems arising from neighbouring properties.  These are orders that allow the property owner to carry out works on a party structure to prevent adverse effects to their property in situations where they have been unable to agree such works with the adjoining landowners.  The definition of a party structure includes a tree situated at or close to the boundary line. 

Part 19 (S. 199 (1) ) of the Local Government Act 2001 bestows power on local authorities to make bye-law for,  or in relation to the use, operation, protection, regulation or management of any land, services, or any other matter provided by or under the control or management of the local authority,

However S 199 (2) (b) states that a bye-law may not be made for a purpose as respects which provision for that particular purpose is already made by or under any other enactment.

Therefore given the foregoing, it is not within the remit of the Council to initiate a process in relation to the matter of conveying responsibility in such a matter.