“I have land which bounds forestry land. The boundary fence has fallen into disrepair but I have been told by the owning company that they are not prepared to make a contribution to the upkeep and repair of the fence. The branches are overhanging the fence and causing damage. Have they a duty to cut these branches and contribute to repairing the fence?”
At the outset, it is worth highlighting that the law imposes a duty of care on farmers to take such care as is reasonable to see that damage is not caused by an animal straying on to a public road. Thus if your land adjoins a public road it is in your interests to ensure that the fencing is adequate to keep those animals contained within your land.
If an accident is caused by straying animals, there is a presumption that the farmer was negligent and he must prove on the balance of probabilities that he had taken such care as was reasonable to see that damage was not caused by his animals escaping from his lands on to the public road.
So long as the farmer is able to show that he took reasonable care by having adequate fencing and a locked gate, he is not required to prove how the animal came to be on the road.
It can be seen from case law in the area that a farmer should ensure that fencing is maintained in a proper condition and is stock-proof. The condition of the fencing and gates leading into a farmer’s premises are carefully considered in any action in order to determine whether the farmer had exercised reasonable care in maintaining his fences in a stock-proof condition and had taken all reasonable steps to ensure that his stock did not stray on to the public road.
In any event, the terms and conditions of the Basic Payment Scheme (BPS) generally require land parcels to be appropriately fenced, which is defined as being stock-proof fencing that will control the applicant’s animals and also the neighbouring farmers’ animals.
Consequently, if a Department inspector determines that the parcel is not stock-proof on inspection, the parcel could be rejected with a resultant fine to your BPS payment, which again might not necessarily be a consideration for the owners of the adjoining forestry land.
It is also worth highlighting that Section 8 of the Animal Health and Welfare Act 2013 provides that all buildings, gates, fences, etc, used to contain the animal should be constructed and maintained in a manner that minimises the risk that the animal will stray. An offence under the Act is punishable by a fine not exceeding €5,000.
The Act specifically provides that in assessing whether gates, fences, etc, are sufficient to ensure that the animal is unable to stray from the land, the owner should have regard to the animal’s nature, type, species, breed, development and environment. Accordingly, the measures required to prevent a bull from straying will vary to those measures required to prevent a calf from straying for example.
Right to recover cost
The Land and Conveyancing Law Reform Act 2009 provides landowners with a right to carry out works on the boundaries between two neighbouring properties such as clearing or filling in ditches, cutting or replacing hedges or finding out the course of drains and clearing those drains, subject to certain conditions.
In practical terms, the person wishing to carry out the works should obtain the adjoining landowner’s consent in advance setting out what work is to be done, when it is intended to do the work and why it needs to be done.
However, in the event of a dispute in exercising those rights, the person wishing to carry out the works can apply to Court for an order under the Act authorising the carrying out of those works.
The Act provides that a person who wishes to carry out works to a party structure may do so for the purpose of:
Complying with statutory or planning requirements.For the preservation of his property, orAny other works which will not cause either substantial damage or inconvenience for the adjoining owner, orIf they will cause such damage or convenience, it is nevertheless reasonable to carry them out.The Act provides that the person who carries out the works can claim a reimbursement from the adjoining owner of such sum as will take into account the proportionate use or enjoyment which the adjoining owner will get from the works.
If the adjoining owner fails within a reasonable time to meet a claim to a contribution, the person carrying out the works can recover the contribution as a simple contract debt in court.
However, the Act also provides that the person carrying out the works shall also pay the adjoining owner the reasonable costs of obtaining professional advice about the likely consequences of the works (such as engineers fees, legal advice etc) as well as reasonable compensation for inconvenience (if there is any).
It is always in the best interests of all parties to achieve agreement where works are intended to be carried out. However, where agreement cannot be reached, the Act provides a welcome mechanism to resolve the matter based on defined legislative rules to give more certainty to parties who find themselves involved in such a dispute.
“I have land which bounds forestry land. The boundary fence has fallen into disrepair but I have been told by the owning company that they are not prepared to make a contribution to the upkeep and repair of the fence. The branches are overhanging the fence and causing damage. Have they a duty to cut these branches and contribute to repairing the fence?”
At the outset, it is worth highlighting that the law imposes a duty of care on farmers to take such care as is reasonable to see that damage is not caused by an animal straying on to a public road. Thus if your land adjoins a public road it is in your interests to ensure that the fencing is adequate to keep those animals contained within your land.
If an accident is caused by straying animals, there is a presumption that the farmer was negligent and he must prove on the balance of probabilities that he had taken such care as was reasonable to see that damage was not caused by his animals escaping from his lands on to the public road.
So long as the farmer is able to show that he took reasonable care by having adequate fencing and a locked gate, he is not required to prove how the animal came to be on the road.
It can be seen from case law in the area that a farmer should ensure that fencing is maintained in a proper condition and is stock-proof. The condition of the fencing and gates leading into a farmer’s premises are carefully considered in any action in order to determine whether the farmer had exercised reasonable care in maintaining his fences in a stock-proof condition and had taken all reasonable steps to ensure that his stock did not stray on to the public road.
In any event, the terms and conditions of the Basic Payment Scheme (BPS) generally require land parcels to be appropriately fenced, which is defined as being stock-proof fencing that will control the applicant’s animals and also the neighbouring farmers’ animals.
Consequently, if a Department inspector determines that the parcel is not stock-proof on inspection, the parcel could be rejected with a resultant fine to your BPS payment, which again might not necessarily be a consideration for the owners of the adjoining forestry land.
It is also worth highlighting that Section 8 of the Animal Health and Welfare Act 2013 provides that all buildings, gates, fences, etc, used to contain the animal should be constructed and maintained in a manner that minimises the risk that the animal will stray. An offence under the Act is punishable by a fine not exceeding €5,000.
The Act specifically provides that in assessing whether gates, fences, etc, are sufficient to ensure that the animal is unable to stray from the land, the owner should have regard to the animal’s nature, type, species, breed, development and environment. Accordingly, the measures required to prevent a bull from straying will vary to those measures required to prevent a calf from straying for example.
Right to recover cost
The Land and Conveyancing Law Reform Act 2009 provides landowners with a right to carry out works on the boundaries between two neighbouring properties such as clearing or filling in ditches, cutting or replacing hedges or finding out the course of drains and clearing those drains, subject to certain conditions.
In practical terms, the person wishing to carry out the works should obtain the adjoining landowner’s consent in advance setting out what work is to be done, when it is intended to do the work and why it needs to be done.
However, in the event of a dispute in exercising those rights, the person wishing to carry out the works can apply to Court for an order under the Act authorising the carrying out of those works.
The Act provides that a person who wishes to carry out works to a party structure may do so for the purpose of:
Complying with statutory or planning requirements.For the preservation of his property, orAny other works which will not cause either substantial damage or inconvenience for the adjoining owner, orIf they will cause such damage or convenience, it is nevertheless reasonable to carry them out.The Act provides that the person who carries out the works can claim a reimbursement from the adjoining owner of such sum as will take into account the proportionate use or enjoyment which the adjoining owner will get from the works.
If the adjoining owner fails within a reasonable time to meet a claim to a contribution, the person carrying out the works can recover the contribution as a simple contract debt in court.
However, the Act also provides that the person carrying out the works shall also pay the adjoining owner the reasonable costs of obtaining professional advice about the likely consequences of the works (such as engineers fees, legal advice etc) as well as reasonable compensation for inconvenience (if there is any).
It is always in the best interests of all parties to achieve agreement where works are intended to be carried out. However, where agreement cannot be reached, the Act provides a welcome mechanism to resolve the matter based on defined legislative rules to give more certainty to parties who find themselves involved in such a dispute.
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