Hi All,
I lodged a claim back in early March and asked for a "Council" arborist / specialist to come out and see if the council tree has done any damage to my leaning brick fence.
Below is everything at a high level
- Council Specialist came out and said the "The tree is causing damage to your fence" - He told me to lodge a compensation claim and it will come to his desk and send off the details to whom ever the council uses
- About 1 week later I received an acknowledgement notice from the claims service
- 6 weeks later, council comes to inspect the tree. The gentleman said "The tree should never have been planted here, its also causing damage to your fence and it will be removed in 4-6 weeks as its a hazard, and we need to advise the residents in the street and block the road off"
- 1 weeks later, I receive a denied notice from the claims service for compensation as the council was "not aware before March 2024" (when the claim was made) that the tree was causing damage to my brick fence.
However, I believe they "knew" somewhat the tree was causing some damage.
- In late 2022, I called the council and said to them that the tree in front of my house is causing a problem to the front foot path and my fence - They didn't do anything about it, so I called my insurance company to see if theres anything I can do.
- In very early 2023, whole bunch of tradies come out and removed concrete footpath in front of my house where the tree is and laid new concrete. (13 Metres)
Do I bother to get this further reviewed? Who has been in a similar situation. Surely, the council is negligent here. Should I go through my insurance company and advise what happened?
Below is the letter.
"We understand that you are seeking compensation for tree root damage to your property which you
allege has been caused by Council tree roots at bla bla street.
Our investigations reveal that Council was not aware of the alleged tree root damage to your fence prior
to receiving your notification on xxxx March 2024. Upon becoming aware of the issue, Council have
attended the location, and the tree will be removed in the coming weeks. The fact that Council will
remove the tree must not be seen as an admission of liability, rather it demonstrates that Council is
reacting to the best of their abilities to concerns raised by you and as a gesture of goodwill.
We now draw your attention to the decision of the NSW Court of Appeal in The Owners of Strata Plan
13218 v Woollahra Municipal Council [2002] NSWCA 92 92 (which cites with approval the decision of
Solloway v Hampshire CC (1081) 79 LRG 449) stands for the proposition/legal principle that a Council is
not liable for tree root damage to property if it was not previously aware of the problem. Upon being
aware of it, Council took reasonable action to abate it and, as a consequence, it is not liable for the
damage caused up to that date. Root growth is a natural occurrence associated with all trees and Council
cannot be reasonably expected to foresee and/or monitor underground root activities.
Finally, we refer you to Section 52 of the Wrongs Act 1958 (Vic) which provides that the person making
any allegation bears the burden of proof. In the event that you are unsatisfied with our decision, you will
be required to provide new information relevant to the circumstances of this claim and why the above
Woollahra case does not apply to your claim. In order for us to reconsider our assessment we require
any response to be in writing with supporting documentation."
Can you prove it?