NSW Court of Appeal decision Council control vs tree falls

derwoodii

A recent NSW Court of Appeal decision where a council was successful in defending a claim for injury caused by a falling tree branch in circumstances where council had earlier refused the property owner permission to cut down the tree.

The Court found that the council had not been negligent in their inspection of the tree and decision not to permit its removal as “…the risk was not shown to be such a risk that a reasonable person would have authorised removal of the tree. The risk of substantial damage to property or significant injury to person was not shown to have more than a relatively small probability, or to be any different from the risk posed by other trees of a similar type in positions in the vicinity of property and/or frequented by persons.”

Rhodes v Lake Macquarie City Council and another [2010] NSWCA 235

Eric Frei

That's a great find.

Two arborists reporting, a housing commission and a council.

If you read the whole case it's interesting to note some of the technicalities.

Not reporting and documenting each incident.

Not obtaining quotes and specs for a covered walkway.

Not having the piece that struck the lady, no-one knows what it was, how big it was etc.

It was interesting to note this:-
Does that give us a real court tested size for dead wooding? Appears so.

Also not this:-

Anyone who has lived with a euc knows of the continual shedding of minor parts like twigs, sticks, leaves etc.

http://maps.google.com.au/maps?q=12+Merriwa+St,+Booragul&oe=utf-8&client=firefox-a&ie=UTF8&hq=&hnear=12+Merriwa+St,+Booragul+New+South+Wales+2284&gl=au&ll=-32.979238,151.607702&spn=0.002651,0.008256&z=18&layer=c&cbll=-32.979312,151.607641&panoid=dfBEvd4xwPy_aXCKX7J-JA&cbp=12,26.96,,0,-21.43

Attached Files

Rhodes v Lake Macquarie City Council and another.pdf (93.7 KB, 291 views)

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Apocalypsse

Is that 2 trees or a bifurcation?

Eric Frei

http://maps.google.com.au/maps?q=12+Merriwa+St,+Booragul&oe=utf-8&client=firefox-a&ie=UTF8&hq=&hnear=12+Merriwa+St,+Booragul+New+South+Wales+2284&gl=au&layer=c&cbll=-32.979088,151.607619&panoid=hNn_9O46X1ueI13S-pq10Q&cbp=12,78.25,,0,-7.16&ll=-32.979112,151.607713&spn=0.002795,0.008256&z=18 to me.

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Darrell Mcleod

Me too

Very interesting indeed

And

Is this saying councils can be ‘motivated’ to listen – I doubt it

From time to time we hear of people being killed by trees or injured but obviously a lot of what takes place goes unreported

In urban environments the question is who / what is more important people, property, assets or trees

My experience is power companies get very concerned if their assets are in danger but sometimes councils do not appear to be that concerned about people

This monster in the hills east of Melbourne in the Dandenongs I have posted here before - it is a disaster waiting to happen

Attached Thumbnails

 

Eric Frei

Just yesterday I asked a customer to contact council and request dead wooding of the http://maps.google.com.au/maps?oe=utf-8&client=firefox-a&q=130+delancey+street&ie=UTF8&hq=&hnear=130+Delancey+St,+Ormiston+Queensland+4160&gl=au&ll=-27.518748,153.251939&spn=0.005909,0.016512&z=17&layer=c&cbll=-27.518735,153.251844&panoid=q6-albg_NOfT8YaiDtYqWA&cbp=12,270.62,,0,-15.29.

Maintenance around targets is required, but what when the trees are 150' regnans etc within 4m of a house? IMHO becomes common sense to not have certain trees in certain spots.

I think this case was lost on technicalities, it demonstrates the need for documented evidence, follow up and alternatives (covered walkway etc).

Also where mentioned that a 15mm dia piece of dead falling from 15m I must say often smaller pieces of dead wood that fall from high up in the canopy are either caught up or have their velocity dramatically reduced as it has to fall through lower branches and canopy. Wind seldom blows these pieces far either as they don't have leaves.

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Darrell Mcleod

Would appear although the householder had genuine concerns, issues and grievances; these were not presented correctly

Eric Frei

That's because they are a Tennant, reporting to a bureaucracy (Housing Commission) that couldn't really give a stuff who reported (or didn't report in removal request) to council.

The Tennant not being the owner couldn't go directly to council for the request. They relied on the Housing Commission. They relied a lot on telephone calls and did not document sufficiently each call and incident including the piece that injured the lady.

Had decent protocol been followed, warning of falling parts mentioning Duty of Care and Negligence, alternatives offered and then the Housing Commission failed to act they'd have won IMHO.

But do not forget, the tree is still there and can grow and live for many more years so is this the last incident?

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derwoodii

Thanks the google street link kinda puts it in a better perspective. Gee, I dunno would I save or sox with only the picture to go on I'm thinkin er um hmm?? Sox it, plant a few new suitable and move on. That tree is gunna drop more over time and while damage is insurable n injury is very unlikely perhaps best to save the fight for a more worthy tree loose the wronguns.

Eric Frei

Grey gums here are nowhere near as reliable as other species in storms.

Funny how neither arborist cared about the bifurcation, those trunks are growing at bad angles, I'd have investigated the hell out of that personally. Imagine if it fails you'd look like a real DH.

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derwoodii

Further about this

Australia, Insurance, Beware of falling branches : Rhodes v Lake Macquarie City Council & Anor [2010] NSWCA 235 - Curwoods Lawyers - 05/10/2010,

Eric Frei

Hmmm,

Now this is real ugly to read for the lay person. I have bolded the part I find interesting. That is about causation meaning that had the council arborist known of all the facts would he have come to a different decision? Seems that one was missed, a technicality.

So, what that means is had the council arborist known of all the facts then the same result would have occurred anyway.

Does that mean because councils come to the decision of retention regardless of evidence and injuries it gets them off the hook?

That is the golden question. It appears that a pro retention plan and consistency for such is their defence and for so called victims too bad.

Perhaps we expect to see more council trees strangely die then as the balance between peoples perceived safety and their rights to manage their own green environment is being removed. Even like here if things end up in court they lose then to hell with the system and courts many will say. Tree's dead, now it's a hazard, now you must act.

But if you are a Tennant then the owner is held responsible regardless of their knowledge of who poisoned the tree according to the courts.

Poisoned trees in Hume

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derwoodii

Soxin one NQR gum would'a saved $100,000 in wasted legal bills.
So where is the balance point to often missed in emotional tree TPo's
Savin one big old wrong gum kinda like savin old grandpa 1st, its not done on the high seas so why on land. Loose it keep the space plant new ones.
Cuz owners or fly by nite contractors will find a ways to make em die anyhoo.

Eric Frei

Lets stop for a second and change the tree over to a Bunya pine.

Lets apply this sentence:-

Using that concept then Horsnby Council could have dug in and refused to allow removal of the heritage Bunya pines because any risk posed by those Bunya pines is no different to any other Bunya pines in similar placed situations.

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Darrell Mcleod

Just did an expert witness case

Looked at a tree about 16 months back and it had been topped – really poor structure and form so I labelled it as such – I did say though probably it would live for a long time as it would

Trying to keep this simple!

Go to the hearing and the person representing the council who were opposing a development said what a miracle that in the last 16 months now this tree has real problems – fungus present etc and condemned that evidence even suggesting the tree may have been tampered with which is a nonsense

Reality is it did have fungal attack that was really happening and had developed over that period and is serious

The council representative had pictures of the tree from out in the street – it was in the front yard and it looked ok but up close my information was condemning and was true

Further issue was though – the same type of tree in the same street – a few of them were doing the same thing and frankly it frightened me a little as this may be a fungal outbreak of sorts

I suggested council should check there own street trees to make certain what I suggested was not happening

Point is that will not happen because this information will not even get back to council unless I push it which I must but in an alternative way

Fact is council only wanted to win this case

We will see

I cannot say too much more right now – but ................

I love trees and truth – in my view the system I have experienced in this case just does not give a hoot nor can it because of how it is structured