Another Life: By all arboricultural standards, the spruce tree at the gate is a miserable-looking specimen: tall enough, yes, but gaunt and emaciated, its spindly branches twisted and bone-bare or ending in sparse sprays of needles, writes Michael Viney
Even the magpies that used to wedge a nest into its crown have deserted to a lusher shelter belt down the hill. On the other hand, the tree is a survivor, some 80 years old, a veteran of many great storms, to which it throws up its sinewy limbs and curves its trunk in T'ai Chi.
Would that be enough of a defence in law if, heaven forbid, it should, in some globally warmed, unnatural gust of Force 11, give up its grip on the soil and impale a passing minibus? Is my faith in its staunch rootedness, confirmed by long and admiring witness, the behaviour of "a reasonable and prudent landowner" or does it rather show the rashness of a "voluntary assumption of risk or non fit injuria volenti"? Might I, perhaps, plead an Act of God - or even, these days, an Act of Man?
The fact that I'm still not sure is no reflection at all on the authors of Trees, Forests and the Law in Ireland. Damian McHugh (an experienced libel lawyer) and Gerhardt Gallagher (a legally minded forestry expert) have done all they can to spell things out clearly. Their most readable book succeeds H.M. FitzPatrick's Trees and the Law, published a mere 20 years ago. Since then, trees, forestry, conservation and public liability law have all come to feature more boldly in Irish life.
Nothing marks more clearly the divorce from nature in the lives of most people than changing attitudes to risk. That holds for risk in general, as fate surrenders to blame, but especially for the risks of being alive in an uncemented landscape. People fall over cliffs and expect compensation for not being warned that cliffs are high. They stick their feet in holes in broken ground, and are outraged at twisting an ankle.
The new book describes a recent Irish case in which a 62-year-old woman found a tree had fallen across a track at a scenic waterfall in Leitrim. She stepped off on to a steep bank and injured her leg. The county council, which made the track, got one-third of the blame, for "altering her perception of the risk".
For all the appetite for litigation and the growth of the compensation culture, actions between neighbours over trees and hedges seem not to have been common. But this, as McHugh and Gallagher illustrate, could well change if Ireland follows England's lead in bringing the law to bear on people who let their conifer or laurel hedges grow tall enough to cut off the light, view and even heat from the sun from the next-door neighbours.
Part Eight of the UK's new Anti-Social Behaviour Act, 2003, due to take effect by the end of this year, is entirely devoted to "High Hedges", defined as a line of two or more evergreens rising more than two metres from the ground.
If neighbours can't settle their dispute amicably, then, on payment of a fee, a complaint may be taken to the local authority. Satisfied the complaint is not frivolous or vexatious, it may refund the fee, and investigate. If it decides the hedge is, indeed, causing problems, it can issue a remedial notice that could, if defied, prompt a fine of £1,000 and a continuing penalty of £50 a day.
Trees and forests are increasingly important to the aims of county development plans. Co Wicklow's draft plan, in the book's example, which takes effect next March, will demand a detailed tree and hedgerow survey of land considered for development and sets out a whole range of measures meant to safeguard mature trees of any quality whether or not they have a Tree Preservation Order. It warns that felling trees or hedgerows ahead of a planning application will "reflect negatively" on its chances of success.
McHugh and Gallagher consider the TPO "a powerful weapon in the armoury of local authorities" and while making the order is the function of the county manager, it can actually be proposed by anybody. But "a TPO cannot be made solely on the grounds of ecological value" - by which I take it that the tree or wood needs some human endorsement of its worth as an "amenity" or some such. The "duty of care" and good neighbourliness that runs through the law on trees must still go some way to extend to nature itself.
Trees, Forests and the Law in Ireland will be available from November 4th for 20 plus 4.50 postage and packaging from COFORD (National Council for Forest Research and Development), Arena House, Arena Road, Sandyford, Dublin 18.