By Gordon Deegan

A judge has cleared two south Galway farmers of injuring an adult rook and up to four rook chicks along with destroying 10 eggs in up to 17 nests when felling a "very rotten" 110-year old ash tree near Kinvara in April 2024.

At Gort District Court, Judge Alec Gabbett dismissed the Wildlife Act prosecution brought by the Department of Housing, Local Government and Heritage against father and son, Patrick Hogan and Donagh Hogan both of Cahermore, Kinvara over the felling by the Hogans of the tree on April 13, 2024 at Gort Road outside Kinvara.

Counsel for the Department of Housing, barrister Michael Clancy (instructed by sate solicitor for Galway, Rachel Joyce) told the court that as a result of the tree being felled, up to 17 birds nests were destroyed.

He added that one dead rook was recovered along with the remains of at least four chicks and about about five or seven eggs.

Eye witness to the felling of the tree by chainsaw on April 13, 2024, Sabine Springer told the court that she saw birds “imploding” on impact with the ground after falling from the tree.

However, farmer, Patrick Hogan who felled the tree with a chainsaw said that he had knocked down the tree as it was rotten and a danger to the public as the tree was located only 1m from the local road.

He told the court: “If wind comes it could do awful lot of damage and kill someone.” He said that a person’s life is more important.

Patrick Hogan said that the tree was “dangerous to the public” adding “I said to Donagh my son ‘this tree has to come down'".

The farmer said that there was ash dieback disease in the area.

Donagh Hogan also gave evidence and told the court that his over-riding concern was "health and safety".

He added that they had used a cherry picker to investigate the level of damage in the tree but it would only go to a certain height.

Donagh Hogan told the court that if tree came down during a storm it would do a lot more serious damage and “there would be ‘for sale’ signs outside the door and we didn’t want that”.

Counsel for the Hogans, barrister Richella Carpenter told the court that the tree was taken down due to the Hogans’ fear that it injure someone if it fell on to the road.

Case dismissed

In dismissing the state case against the Hogans, Judge Gabbett said: “This tree was very rotten and I am not an expert on trees and the likelihood is that the next storm would have taken this tree out along with the road, the wall and everything there."

Judge Gabbett described the tree as "a crucial habitat" and that it was for appropriate for the department to bring the prosecution.

However, he said: “I have to be satisfied that these men are guilty of an offence beyond reasonable doubt and I am not satisfied that they knew what they were doing and can be convicted of a criminal offence.

“The farmers will tell you that trees falling are a huge source of litigation for farmers in Ireland and result in lots of litigation particularly where they damage walls and damage hedging.

“The difficulty I have with a prosecution like this is that we expect an awful lot from our farmers," the judge added.

He explained to the court: “One of the key aspects of this which gives me great concern is criminalising someone when they were acting having inspected tree and seeing that it was extensively rotten and feeling that it needed to be taken down gives me great concern."

Judge Gabbett said that he was “taken” with the defence barrister's argument of the roadside defence.

He said: “They have to protect a situation where the tree will come down onto a road. Storms come very often and you can’t take that risk as a farmer.

“I am not at all satisfied that there was a criminal offence committed based on the road traffic argument put forward by Ms. Carpenter. I do think the Hogans were securing the road and the wall.”