Council Refusing to Pay Damages Caused by Fallen Council Tree

pagemaster145 on 07/11/2023 - 19:06

Recently, a council tree fell on the back of my property, causing significant damage to the fence, clothesline, and a swing set. To my dismay, the council has refused to cover the repair costs, citing statutory immunity under Section 245 of the Local Government Act 1999.

Upon further investigation, it appears that Section 245 grants the council immunity in cases of damage caused by street trees, stating that the council is not liable for any losses resulting from such incidents. This legal protection seems to leave affected property owners like me in a challenging and unjust situation, despite the tree being the responsibility of the council.

This has left me wondering about the fairness of such provisions and how they impact individuals who bear the brunt of the damage. While I understand the need for certain legal protections for local authorities, it feels unjust that homeowners are left with no recourse when faced with damages caused by council trees.

I'm reaching out to this forum in the hopes of finding others who may have faced similar situations or have insights into potential solutions. Has anyone successfully navigated a similar issue, or are there legal avenues that could be explored?

Any guidance or shared experiences would be greatly appreciated.

Email from the Claims Consultant:

"We advise that the <REDACTED NAME> (the Council) is a member of the Local Government Association Mutual Liability Scheme (the LGAMLS). The LGAMLS provides the Council with civil liability protection in accord with its obligations pursuant to s142 of the Local Government Act 1999 (Duty to Insure for Civil Liability).

Further to our letter of <REDACTED DATE>, we advise that our investigations are now complete.

You advise that on or about <REDACTED DATE>, a tree failure resulted in damage to the fence, clothesline and swing set at <REDACTED ADDRESS>. You seek compensation from Council for this damage.

We advise that prior to the subject incident, Council had received no reports or complaints in relation to the subject tree. Council advise that it was notified of the subject tree failure on <REDACTED DATE>. In response to notification of this incident, Council attended site to clear the failure.

Whilst Council acts as caretaker of street trees, it is not responsible for the naturally occurring behaviour of trees.

Unfortunately trees will often fail, with little or no warning, this is a naturally occurring behaviour of trees which Council is unable to prevent. Trees can also fail at times of distress, such as during strong winds or high temperatures.

Council is afforded a statutory immunity in relation to damage caused by street trees, pursuant to Section 245 of the Local Government Act 1999, which provides that Council is not liable for any loss caused by street trees.

On this occasion we do not consider that Council has been negligent and liability for this claim cannot therefore be accepted."

Home & Garden

Comments

    • ihbh on 08/11/2023 - 07:39
      +2

      ask them when did they last inspect or maintain the tree

      Be reasonable. In my LGA of Ku-ring-gai, there are many, many trees. To hire enough council workers to do this would probably double our rates. No thanks.

      • hudrob on 08/11/2023 - 07:59
        +1

        They don't need to inspect every tree - just the ones that can be reasonably considered to have potential for property damage (or injury when close to places where people regularly gather, like childrens' playgrounds, day-care centres, sporting fields, etc).

        Regarding impact on rates - if you want to live in a leafy suburb, fantastic. There's a cost associated with doing so in a way that is safe for the community.

        • ihbh on 08/11/2023 - 08:14
          +1

          I'm happy to live in a leafy suburb, with reasonable expectations of people that live there, which is the case.

      • inherentchoice on 08/11/2023 - 08:38

        They do need to do an assessment on where are the higher risk trees which would need inspection more often. For example, around busy pedestrian areas, children's playgrounds or along busy roads. People do die from falling trees and criminal negligence is a thing. Arguably most trees or street trees may need inspecting only every few years. But dead trees may need inspecting quarterly for example. Trees in a nature reserve or bushland without roads or trails may never need inspection.

        That said, their civil liability to pay compensation in this case is apparently zero due to the statutory immunity. Unless perhaps the previous property owner did complain about the tree?

        No harm in at least asking the question though. Do you think asking the question is going to make them launch a new comprehensive program of tree inspection that will boost everyone's rates? Even if they hire one extra employee who does full time pre-emptive inspections that is barely a few dollars each per rateable property and may save the Council's bosses from jail time in the event of a tree death.

        • Protractor on 08/11/2023 - 11:17
          -2

          Either you inspect properly or not at all.Why would a sloth body like local govt employ a real 'worker' when the CEO needs a 3rd or 4th PA, or the admin needs a photocopy technician? While they have immunity they'll just keep fobbng off ratepayers. Besides you need to properly inspect a tree not half arse the process. Local govt is built on HA. They have powers even state govts salivate for.

          • inherentchoice on 08/11/2023 - 11:26

            @Protractor: The immunity is for civil liability (i.e. compensation) but they would not have immunity for criminal negligence, such as if someone dies. But that would just be difficult to prove and get through the court system, and it may be unprecedented in Australia where a Council boss was sentenced for a tree death?

  • hudrob on 08/11/2023 - 07:58
    +1

    It's the same with potholes on council-maintained roads. Unless council had prior knowledge of the issue, they'll wipe their hands of any damage that it causes. The trick with a pothole is that if it's been repaired previously, you've got them - as the repair has failed, and that's work they absolutely know about and are responsible for.

    We reported a tree (30m+ ironbark) at an old residence to council as dangerous (it was dropping VERY large "healthy" branches regularly onto the footpath) and requested approval to remove it. They responded saying "nah, it's fine, if you disagree, get an arborist report".

    So we got an arborist report. The tree was splitting up the middle, rotten in the core, and the dropping of branches is typical for trees with that sort of damage. Arborist recommendation was to remove it. We sent that in with a comment that we were concerned that now we knew of the danger, we were morally and legally obligated to act to protect life and property.

    Council said no again, and that although they were saying no to removing it, they also rejected the notion that they had any responsibility for events after their determination.

    So we wrote back to them roughly as follows: "Thanks for your time. Here's a photo of a ~20cm diameter branch that recently fell on the footpath, you can see where it's crushed the concrete footpath where it fell. We'll be sure to provide a copy of all of our correspondence to any person who is hit by a falling branch or suffers property damage as a result of a falling branch, their lawyers can decide if they wish to pursue action against you or if they agree that you hold no responsibility."

    Two weeks later, we received approval to remove the tree. We removed it (and a liquid amber that was < 5m from our house), replacing the ironbark with a (smaller) native tree, because we absolutely were not anti-tree, just anti dangerous tree (they asked us to consider planting another ironbark, but that was stupid given the size they grow to and the proximity to our house).

    • JafferMoney on 08/11/2023 - 15:01
      +2

      They are terrible, so many idiots at council level, lazy idiots…they asked you to plant another ironbark LOL…what absolute fools!

    • ihbh on 08/11/2023 - 20:45
      -1

      There are many eucalyptus in my LGA. They're called widow makers for good reason.

  • 82norm on 08/11/2023 - 08:36

    Get a barrister to argue the God case and have council prove there is one.

    • Protractor on 08/11/2023 - 10:57
      +2

      Call him/her as the key witness

  • 2esc on 08/11/2023 - 09:18

    Councils use to just concentrate on the basics roads, pools, libraries etc but with ratepayers wanting councils to much more the money they do have is spread thinner.

    Most councils now provide over a 100 different services so they look for ways to get out of some of he costs and with many ratepayers now running out screaming when a chainsaw is started to do minor pruning its a good excuse not to maintain trees.

    Look up many residential streets and garbage trucks and delivery trucks have to weave in and out just driving up the road because of the trees (regional Victoria).

    • Protractor on 08/11/2023 - 10:55
      -1

      If we had any less trees the roads would melt in summer. The rubbish is being driven by the human plague as is every other negative impact. Never ever figured out what planet tree haters come from. Whinge about the admin staff and costs, that is where all the waste is.

  • eftpos on 08/11/2023 - 09:48
    +3

    It's not just councils, if your neighbour's tree damages your property (assuming there was no indication it was dangerous) then you need to use your own insurance to rectify it. I only know this because one of our trees came down in a storm and damaged our neighbour's house so badly the whole roof had to be replaced. I assumed it would be done through our insurance but that wasn't the case - their insurance had to cover it.

    • JimmyF on 10/11/2023 - 20:39

      insurance stops at the fence line.

  • Protractor on 08/11/2023 - 11:47
    -1

    Willing to bet if this happened to a property of a councillor or employee, they would pay the damages.

  • burningrage on 08/11/2023 - 11:54

    Would you like to run for a candidate that would change this so Councils are responsible for falling trees IF owners are not allowed to cut them down?

    Tbh, this has always been a problem hence why lots of vigilantes. LGAs do need to be rid of.

  • SydBoy on 08/11/2023 - 17:23

    i complained to council every six/nine month for more than 7 years about branches falling in my property from tree in front of my house. council every time came and trim the tree so i let it grow and complain again and in every complain i say that i am warning you that you are leaving dangerous tree that can even kill a kid if big branch fall on it.

    though council has immunity but failure to act due to continuous complain will make my case so eventually after 7 year they cut down the tree as they found some issue in the tree and it no longer healthy in their technical inspection.. !

    basically, council cut down the tree not because of my complain only but they noticed an issue which then combined with my complained made a strong case for them to remove it.

    now, i have 5 other tree on neighbour property sending their leaf on my property as previous tree no longer stopping them flying .. lol 😂

    in your case, council is correct. you have not complained and asked them to check so they take no responsibility.

    • Protractor on 08/11/2023 - 17:32
      +1

      So pick a tree and start complaining 7 years before you want it gone?

      Do you seriously expect leaves blowing on your property to be tackled by any body, let alone the local govt.
      Apart from a minor % of real tree health issues, there is a plague of tree haters in Australia

      • SydBoy on 08/11/2023 - 18:32

        leaf blowing was just to say removing tree won't get away with all the issue with the trees but for me real issue was big branches falling anytime of the day inside my front yard where kids normally ply tree height was roughly 30m to 40m so yes, in my opinion depending upon angle it fall it can cause serious injury to someone and fatality to the kid without a doubt.

        the council removed it due to some issue they found in the tree (disease) as they have few inspector visiting tree after they discovered the issue to verify and endorse removal but that together with my complain make them work to make sure it is safe to leave the tree there …. and finally the decided to remove as it wasn't safe to keep it there … (my guess)… without complain they won't be bother to check trees as they got probably few thousands around the suburb.

        • Protractor on 08/11/2023 - 19:17

          Like I said there's a small % of legitimate issues.Yours may have been one. Leaves just aint. But the majority of issues around trees are driven by whingers who hate trees. They should move to the middle east and feel right at home.

  • Devastator0 on 08/11/2023 - 18:31

    Something very similar happened to a friend of mine a couple of years back. He and his wife did actually formally (in writing) notify their local council of a tree that was extremely dangerous and had been checked by an arborist who confirmed it was at severe risk of collapse. Council did nothing about this and the tree came down about a month or two later due to high winds and split my mate's car in 1/2 and damaged a portion of his house. Council wanted nothing to do with it (they did get the tree removed) but even though my mate had documented evidence that had previously been provided to the council, they said they will not pay any damages.

    So, since councils are garbage, just severely trim back or destroy any offending trees near your property.

    • Protractor on 08/11/2023 - 19:12

      Ppl should stop rolling over and work on a long term plan to abolish local govt, or turn it into a productive model run by state govt using a local elected citizens jury to guide community actions. The roads,rubbish etc, can easily be run away from local govt.In fact that key function has faded away to collect tax and engage contractors.If saving money and efficiency while delivering local community services is the role, local govt has failed dismally for decades. They are a bottomless trough accessed by the swill, itself.

      • SydBoy on 08/11/2023 - 19:46

        I agree with you that we don't need more than one council whether it is Sydney or Melbourne or any other city.

        Council are the breeding grounds for corruption as demonstrated in number of cases across country.

        Council should be managed and reporting under the state government so no need to do council elections which saves lot of money that can be used for local community.

        Also, we need elections every 5 years not 3 like what we have and complete abolition of preferential voting .

        • Protractor on 08/11/2023 - 20:03

          In the interim there should be a blanket rule that says you must have resigned from local govt 12 months ago, before becoming eligible to become a state /fed candidate or nominee.
          Real estate agents /developers and anyone else involved in land ,developing etc, should never be eligible.They could scrap plenty of councils by amalgamating them now, and making state Minister oversee all councils directly. Abolition should be the main game

          • SydBoy on 08/11/2023 - 20:11

            @Protractor: i am in Sydney and it is massive issue here so many small councils… i was hoping that Gladys would succeed in abolishing them but she couldn't due to wasted interest by community who thought it is important to have someone we know in the local government so they can change development applications, build skate park where there is no need for one . .! preferential voting stopping clear majority in all states and without clear majority cleaning up council is big task and no one will probably do that .. !

            • Protractor on 08/11/2023 - 20:21

              @SydBoy: "wasted interest by community"
              Useless, apathetic and misery enabling.The new Aussie ethos

              • SydBoy on 08/11/2023 - 20:57

                @Protractor: missed the word "Community developer" … ! most corruption in council is related development and then related to tendering work but tendering can be an issue even at state level but having with one agency provides more consistency and it will be easy for ICAC to catch the if it is run by one agency … lol 😂

  • Azzy on 08/11/2023 - 19:46
    +1

    I’d be pursuing exactly what is a street tree.

    Yiu said at the backoif your property? Is there a street there or council property?

  • Protractor on 08/11/2023 - 20:07

    OP did you ever consider the tree to be an issue ( any type of issue) before it fell?
    Which direction is it in relation to your backyard. N E S or W?

  • ribze1 on 08/11/2023 - 21:00

    force majeure

  • Davo1111 on 08/11/2023 - 23:37

    Unless you reported the tree as unsafe, and they ignored it, id say you're SOL

  • a-friend on 09/11/2023 - 00:37

    Tree fell on my car, council told me to f*****f, sold the car for cheap. Later that year noticed a tree outside my house leaning towards the house. Got it removed by council and requested to not plant another one. That room will be quite hot this summer, but will have a roof. Moral is always keep an eye on trees around you ;)

  • Euphemistic on 09/11/2023 - 07:48

    Unless council have been made aware of danger posed by something AND had sufficient time to mitigate the risk they cannot be liable.

    That is, if no one has reported a dangerous tree, no dice. Or if you report it this morning, it falls over tonight and their documented response time is 3 business days, no dice. If it was reported by several different people 3 months ago, 1 month ago and yesterday and their response time is 3 days you might get them to cough up - IF they haven’t assessed the tree. If they assessed it as safe a month ago, maybe not.

    • Protractor on 09/11/2023 - 17:45

      and this, among the plague of ppl deliberately drilling into trees to poison them.

      I asked a similar question as you,of OP as well. "Were there previous issues of complaints of any kind about the tree."
      No response

      • pagemaster145 on 09/11/2023 - 20:20

        I’m not aware of any previous complaints. The tree was behind the property. The entire tree fell over. I’ve learnt my lesson, before all this I was under the impression the tree owner would be responsible for damages. The kicker was the council initially advising me to obtain quotes for the damages and emailing it to them. There was no indication they weren’t going to cover the repairs, until that email.

  • Punda on 09/11/2023 - 09:20

    Ok an old man I served coffee everyday had this exact same scenario. South Perth council WA. He is quite eloquent and retired so he took them to the small claims court. You know what? The judge sided with him! Give it a go if you can, it doesn’t cost much.

  • Typical16-bitEnjoyer on 09/11/2023 - 10:55

    Sue God.

  • LRS on 09/11/2023 - 11:51

    I lived in a townhouse rental last year and a council tree fell on the townhouse, fence plus on another tree for it to fall on a busy road (luckily no one was driving or walking by)
    The townhouse was situated in a very busy area and clean up and removal was promptly dealt with.
    Council paid them out.

  • rbr85 on 09/11/2023 - 12:17

    Happened to me - I sent a couple of nasty emails and they offered $250. I asked my friendly Councillor and they upped it to $400 which I gladly accepted.

    • Protractor on 09/11/2023 - 21:38

      Sell the draft of the nasty emails to OP.Copyright it first so other victims can benefit…as you rent it out

  • Assburg on 09/11/2023 - 15:41

    https://www.alrc.gov.au/wp-content/uploads/2019/08/ir_127ch_…

    Interesting read, i think you've got a case but you'll have to go to the high court. The immunity provision must be construed narrowly, and when you say "Section 245 grants the council immunity in cases of damage caused by street trees" I would have to construe this as to say, the damage caused by the trees is one thing, but the damage caused by the council's negligence in maintaining is another. To think of damage caused "by the tree", perhaps if lightning struck it and a fire started, the tree is the cause of any damage.

    In tort you'd consider this under the 'but for' test, "the damage wouldn't have occurred, but for the council's failure to maintain the tree." This would rely on the tree actually being poorly maintained. Both in common law and within each state's civil liability act will be a provision for land owners being responsible for their land, though to what degree is a question of circumstance. In terms of trip hazards, someone is less responsible for a divot in their 100 acre crop than they are for a divot in the paved path leading to their front door.

    • Protractor on 09/11/2023 - 21:41
      +1

      Would love to see this issue turn into The Castle case in the High Court. What an erotic thought, local govt actually being held to account.BUT! This would need to happen before the federal govt passes the upcoming law to validate local govt in the constitution. That is one referendum that should be 100% NO

  • Protractor on 09/11/2023 - 17:21

    Move to QLD there's no trees to worry about>
    https://www.news.com.au/finance/real-estate/aerial-map-of-ho…

    NSW doesn't seem much better.Or WA,now. Yay, more migrants please. We need the waste land.

  • [Deactivated] on 09/11/2023 - 21:47

    It is okay if 10,000,000 babies die, as long as it is a council tree. Wtf you on about m8.

  • PAPower on 09/11/2023 - 22:26

    Can someone help with my ignorance ?
    What would happen if I stopped paying council rates and my rates debts pile up for years ?

    F* these clowns I want a revolution. Charles Sturt council SA.

    • Brick50 on 10/11/2023 - 03:48

      I’ll buy your house for cheap when the sheriff auctions it off

    • Protractor on 10/11/2023 - 09:44

      google it.Bottom line you'll probs lose your property. This from a layer of govt that has no right to exist

      • PAPower on 12/11/2023 - 23:12

        "Under the Local Government Act, any council can sell properties when the rates have been in arrear for greater than three years"

        Well this is the shittiest piece of crap I ever heard. You think you own a piece of land in Australia ? Never.

        Really f* the bull* laws that European settlement established about land titles.

        • Protractor on 12/11/2023 - 23:34

          They are swill. Imagine being able to steal land for a filthy tax like rates where THEY get to choose what and how they deliver essential services.Local govt needs to go.They have more massive powers than that, as well. Only the public can make abolishing LG happen. Will they ? Hardly. WE walk the plank with our eyes wide open.

  • wallet72 on 10/11/2023 - 08:52

    and prepare for extra pain if it's a native tree in question.

  • Toiletpaper1 on 10/11/2023 - 11:35

    I had similar experience a council verge tree landed on my investment property, causing significant damage adding to a total of $50k.

    As I did not have home insurance at that time, it was clearly the councils liability to compensate.

    I contacted an arborist to do a report on the fallen tree and identified the tree was rotten from the inside out hence the incident. The arborist then advice me to take heaps of pictures of the fallen tree as well as the stump for future evidence if needed. This report, including a building site inspecting report was then lodge onto my council website under "incidents" and this was enough to be compensated in repairing the damages. The council will negotiate for lower pay out in compensation, however attempt to get more to cover your inconveniences and stress.

    Hope this helps

  • Toph Beifong on 10/11/2023 - 12:46

    It's what councils do best. Plant a tree Infront of your property and expect you to maintain it. When it falls down they don't wanna know about it

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