Thousands of trees have toppled onto other people’s property this winter as storm after storm ravaged the countryside.

This has left some neighbour relations fraught, as these trees most often crash on top of march fences which will need replaced. More fences have been damaged this winter than for generations, as record numbers of trees fell to the wind.

To try shed some light on the situation, The Scottish Farmer spoke to Adèle Nicol, partner at Anderson Strathern to better understand the legal situation around fallen trees on other people’s fences – but, Ms Nicol stressed, it is not a straightforward matter.

"The occupier of the land on which a tree stands is normally liable for any harm or injury if the tree or part of the tree fails, under the Occupiers’ Liability Act (Scotland) 1960.

But she stressed: "Owners don’t have an obligation to ensure that all trees are always absolutely safe. Landowners need to take reasonable care generally to make sure the trees on their land are generally safe, which will involve risk assessments depending on the nature of the land – if a tree is looking sick/ dead/ dangerous/ imminently likely to be blown over, that may fail the reasonable duty of care test.

"But I suppose the point is that not everything bad which happens is always someone’s fault," said Ms Nicol. "There are situations where strict liability applies under civil and criminal law but a falling tree, particularly where this is caused by abnormal storm conditions, is not in that category

"The simplest answer in many cases may well be to claim on your own insurance – after all that’s what it’s there for. Yes, that may increase premiums going forward but that has to be against the time, worry and expense of pursuing a neighbour, possibly not proving there had been a failure of a duty of care or finding the neighbour hasn’t the means to pay or souring future relations with the neighbour," she said.

"Fences are likely as per title deeds to be a mutual obligation between the owner on other side. One owner may well seek to blame the other owner on whose land the tree is located but again the simplest solution may well be for both to claim on insurance. There may be practical solutions as to who gets the benefit of the fallen timber."

Rural insurer NFU Mutual commented: "Most farm insurance policies do not generally cover storm damage by trees to fences and the owner of the tree will usually have a duty to remove the tree at their own expense.

“However each situation will be different and if for instance the claimant feels there is negligence on the part of the owner of the tree, there may be a public liability claim or the damage could extend to posing a threat to human life or damaging property. It’s therefore important to check your policy wording, contact your insurer and to ask your neighbour to do the same.”

One final point to note is where trees close to a public road are considered dangerous, or impede sight lines, the roads authority can serve a notice under the Roads Scotland Act 1984 on the owner to have the tree dealt with. If the owner fails to comply the roads authority will carry out the work and seek to recover the cost. An owner with trees close to the public road would be expected therefore to be more diligent in assessing risk.