Two Kinvara farmers who were accused of wilfully killing protected birds when they felled a ‘dangerous’ roadside tree had all charges against them dismissed at Gort District Court.

Judge Alec Gabbett said he was not willing to criminalise the father and son for the destruction of a protected rookery when he heard the pair cut down the more than 100-year-old tree after discovering ash dieback was present.

Patrick Hogan, of Cahermore, Kinvara and his son, Donagh Hogan with the same address, were before the court charged with five offences each under the Wildlife Act 1976.

They were accused of wilfully killing one adult rook, a protected species under the Act, and up to four rook chicks when they felled an ash tree which was located at the roadside on their farm, on the Gort to Kinvara Road.

It was also alleged that they wilfully destroyed 17 rooks’ nests containing up to ten eggs and wilfully disturbed two nests that contained viable eggs.

Michael Clancy BL, prosecuting on behalf of the Minister for Housing, Local Government and Heritage, said the Hogans had felled the tree which was located around one metre in from their boundary wall with the road, causing the destruction of the rookery.

Sabrina Springer was called as a witness. Ms Springer said she was driving along the Gort to Kinvara Road on April 13, 2024, when she was stopped at a road block put in place while the tree was being felled.

She described getting out of her car to discover one dead adult bird, a number of dead fledglings and a series of destroyed nests.

Ms Springer described how the baby birds had “imploded on impact” with the ground.

“Their bodies were burst and their insides were out from the impact,” she said.

After taking a number of photos, Ms Springer reported the incident to the National Parks and Wildlife Service (NPWS) which dispatched rangers to examine the site.

Conservation Ranger Margaux Pierrel told the court that she and a colleague carried out an examination of the site. The felled tree was more than 110 years old, she said, and was one metre in diameter at its widest part.

As well as the destroyed nests, they discovered a dead adult rook; a number of dead chicks; jackdaw nests and broken eggs; and a destroyed beehive that had been in a cavity of the tree.

Ms Pierrel said she interviewed both Patrick and Donagh Hogan, under caution, in June and September respectively, and both had described the tree as rotten.

In evidence, Patrick Hogan said a branch from the tree had ‘come down on the road’ in the days before they felled it.

He said both he and his son had been concerned about the tree for two to three years because they noticed rot in some of the branches.

After a strong wind brought the branch down on the road, they acquired a cherry-picker from a neighbour to take down some branches. Upon examining the tree, he said they found it was “red rotten”.

“We said we would abandon that and cut the tree.

“I said if that wind comes again, it could do awful damage,” said Patrick Hogan.

He told the court they checked the three nests they could see and they were empty. Patrick Hogan said he “didn’t realise crows were protected” but added that “people’s lives were more important than a bird’s life”.

Ash dieback was a serious problem in the area, he said, and he was concerned about a branch falling and killing someone.

His son, Donagh Hogan, said a neighbour saw the branch falling in high winds and said it had nearly struck a car.

When asked if they saw the dead birds or damaged nests, Donagh Hogan said they discovered the beehive and “we weren’t long getting out of there”.

He said he organised for his cousin who keeps bees to come with a portable box to transfer the bees to his uncle’s farm.

Judge Gabbett commented that “you’d either be very brave or very stupid” to go at a tree if you knew there was a beehive present.

Health and safety for road users was the overriding concern, said Donagh Hogan.

If the tree had hit a car, “I’d be putting for sale signs up outside the door,” he added.

Defending counsel, Richella Carpenter, said her clients were acting in compliance with the Roads Act which permitted them to take reasonable action to fell a tree if it presented a risk to road users. The rangers’ reports detailed rot in the tree, she added.

Mr Clancy, prosecuting, contended that the accused could have contacted the NPWS to survey the tree before felling it, or they could have engaged a professional tree surgeon to remove dangerous branches without felling the entire, protecting the rookery.

Judge Gabbett said falling trees posed a significant risk to road users and farmers bore significant responsibility in this area.

“The farmers’ insurers will tell you that trees falling are a huge source of litigation each year,” he said. “You can’t take that risk as a farmer.”

Judge Gabbett said Ms Springer was correct to report this incident as “it’s quite important to maintain these habitats”. But he accepted the evidence that the Hogans were seeking to secure the road and their boundary – prosecuting them for that would “not be appropriate”, he said as he dismissed all charges.

He said the NPWS should advertise that it was available to provide guidance in these matters to farmers because if farmers knew that service was available, they would call on them for advice.