Councils' liability for street trees

Since the abolition of the non-feasance immunity by the High Court in May 2001, a Council's responsibility and liability for street trees has been in a state of uncertainty.  The non-feasance immunity introduced with section 45 of the Civil Liability Act 2002 (NSW) may not provide relief for Councils in many tree or tree root claims.

There are a number of relevant decisions that assist in determining a Council's liability and obligations for management of its trees.

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Shoalhaven City Council ats Timbs [2004] NSWCA 81

Mr Timbs was killed when a tree growing on his property fell onto the roof of his residence causing the roof to collapse onto him. His widow sued the Council in negligence for property damage and for damages for the death of her husband. It was claimed that, at the property owner's request, Council officers attended the property on two occasions to inspect the trees. The property owners were advised by those officers that the trees on the property (including the one that fell) were safe and sound and could not be removed as they were the subject of a Tree Preservation Order (TPO).

The Court of Appeal unanimously held that Council was not bound to express any opinion about whether the tree was dangerous. However, the Court held once the Council did embark upon the exercise of expressing an opinion, it was required to provide the opinion with care.

The Court found the Council held a significant and special measure of control over the safety of the Timbs in circumstances where they had brought to the Council's attention their fears, and the Council then chose to advise about whether the trees in question were dangerous. When the council officer took it upon himself to express a positive view as to the safety of the tree, he was representing a capacity to do so based upon his experience and expertise. In those circumstances, the requisite standard of care was higher than that of a layperson. The Court decided that the inference was open, and should be drawn, that a reasonably informed diagnosis would have revealed that the decayed structural roots and the trees were dangerous.

Dungog Shire Council v Erin Babbage [2004] NSWCA 160

The New South Wales Court of Appeal held this Council not liable for consequences of a car colliding with a tree that had fallen across the road in gale force winds. Erin Babbage had sued the Council alleging it was negligent for failing to remove the tree which had fallen across the road or, alternatively, failing to have in place an adequate system of inspection that would have identified the tree as sickly, prior to its falling, and removed the tree.

The question for the Court was whether the Council, as the roadway authority, failed to take reasonable steps by the exercise of it powers within a reasonable time to address the relevant risk. The Court’s task was to balance the probability of risk to the resources required to alleviate or reduce that risk.  In finding the Council had not breached any duty the Court stated:

'The danger or risk of a tree falling upon the road and causing injury could never be eliminated, more especially with the prevalence of windstorms. No Council could practicably inspect 760 kilometres of local roads within the Shire nor even roads like Alison in relative proximity to the township of Dungog, in order to identify every tree that might fall upon the road.'

The Court did not think that an arborist should be hired either to train workers to look out for sick trees on an ad hoc basis, or as part of an inspection system.  Taking into account the budgetary constraints and limited resources available to the Council, the Court held that there was no scope to expand the modest ‘reactive’ inspection programme.

Woollahra Municipal Council v The Owners of Strata Plan 13218 [NSWCA 92]

The Owners sought an injunction and damages against the Council for nuisance and negligence in failing to remove tree roots that caused pressure on a retaining wall situated on the Owner's property.

The majority of the Court of Appeal held that liability for failing to take any action in relation to tree damage did not arise until the Council was actually aware of the damage being caused by the tree roots but failed to do anything about it.

Barker v Kyriakides [2007] LEC 292

This judgment was a determination under the recently introduced Trees (Dispute Between Neighbours) Act 2006 (NSW) (Tree Act).

Section 4(2)(a) of the Tree Act specifically excludes the application of the Act to any trees vested in or managed by a Council. However, the judgment in this case does contain a useful statement of the common law position applicable also to trees under a Council's management, namely:

'For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.'

In other words, there is a reasonable expectation for people living in urban areas that there will be some amount of debris from street trees. In addition, there is also a reasonable expectation that property owners will maintain their own gutters and property to accommodate that reasonable debris. However, this principle only relates to ordinary and anticipated debris from trees (such as flowers and fruit) and in reasonable quantities.

The principle does not exempt a Council from its obligation to maintain vegetation under its management, particularly where it is on notice of it causing actual damage to private property. Further, the principle would not extend to unreasonable tree debris or actual damage to the gutters or residence or, for example, falling tree branches or limbs.

What do the decisions tell us?

The cases discussed above illustrate a number of points about the liability of a Council for trees. The common themes in each of the cases are the level of Council control and knowledge, and what should be a reasonable response.

Whether a Council is under a duty of care and whether that duty has been breached requires a two step inquiry: first, whether reasonable steps would have revealed a danger and second, whether reasonable steps would have required the removal of the danger.

The Courts have provided guidance to what constitutes reasonable steps in Hawkesbury Shire Council ats Ghantous (2001) 206 CLR 512. Whether a response is required by a Council requires:

'… a consideration of various matters: in particular the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn on the facts and circumstances disclosed by the evidence in each particular case.'

Where a danger is latent or has not been brought to a Council's attention:

'Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty where an authority fails to take reasonable steps to inspect for such dangers as might be expected or known to arise, or of which the authority has been informed or made aware and, if they are found, fails to take reasonable steps to correct them.'

What should Councils do?

Tree Preservation Orders

If a Council exercises its powers and enacts a TPO, preventing persons from taking steps to remove any risk of harm from trees, a Council must take reasonable steps in response to all notifications for trees covered by the TPO, such as:

• Develop a comprehensive system for the public to lodge applications and requests.
• Only inspect upon receipt of an application/request in proper form.
• If an inspection is undertaken, ensuring the inspection is carried out by a suitably qualified person.
• If a Council does not employ a suitably qualified person or does not wish to undertake its own inspection, to invite the applicant to submit a report from an arborist in support of the application. (A Council may also wish to provide details of some matters it would require to be addressed in the independent report to allow it to properly consider the request.)
• If a Council does carry out an inspection, that inspection should be a thorough inspection and adequately documented (including matters such as date and time of inspection, persons present, location of trees on property, the investigations undertaken and the result of those investigations).
• Unless a Council resolves to only undertake, for example, visual inspections. If that is the case, the application would need to be fully informed of the limited scope of the inspection and, if the applicant required a more detailed inspection, to invite the applicant to submit a report from an arborist in support of the application.
• Ensure any communications with applicants/complainants are in writing and comprehensively explain the options available should they be dissatisfied with the Council's decision in response to the application.
• Ensure an accurate record keeping system is maintained for complaints or requests received by the Council and the responses to those requests.
• Ensure the officers employed to inspect and determine claims are adequately trained and kept informed of changes in the law and the areas of specialisation.

Trees on the road reserve/public areas

The Courts recognise Councils do not have the resources to inspect every tree within the Council area on a regular basis. Some Councils struggle to implement any proactive system of inspection as the handling of the current number of requests or complaints from the public take up any available resources.

Although the decision in Babbage removes the burden of inspecting every roadside tree, it does not alleviate a Council's responsibilities for all roadside vegetation. Based on the reasoning of the Court of Appeal, a Council would more than likely be found liable in circumstances where it was actually aware of the existence of a dangerous tree (by reason of complaint or otherwise) and without justification, failed to take any steps concerning the tree. In addition, it does not remove a Council's responsibility to maintain vegetation in areas where the Council knows it may provide a danger to road users and where the Council has a sufficient degree of control (such as in the vicinity of schools or shopping centres) as was seen in Blue Mountains City Council ats Ryan (2005) 62 NSWLR 609.

Since the decision in Ghantous and the more recent decisions of the Court of Appeal dealing with obvious trip hazards, there has been a dramatic decrease in 'trip and fall' claims on public footpaths due to tree roots. Section 45 of the Civil Liability Act may provide relief in circumstances where the Council did not have actual knowledge of the particular risk.

Council should maintain a comprehensive system for the taking of complaints and/or requests regarding any trees in the public areas and carefully document any response to the requests received. Information such as the date, time and mode of request, the officer(s) who responded to the request, and the date, time and mode of response, should be readily available at a later date should any question arise in relation to the request.

For any proactive system of maintenance of roadside vegetation, consideration needs to be given to what locations within a Council's area require regular inspection and maintenance in priority of other areas. For example, trees in parks or reserves growing in the vicinity of picnic tables or swings or walking tracks, where members of the public are 'encouraged' to visit, would require more frequent inspection than trees growing in less publicly accessed areas and left in their natural state. Similarly, vegetation in areas near schools, shopping centres, playgrounds and car parks should also be regularly maintained.

Tree root claims

A claim in nuisance caused by tree roots is based on an actual incursion by branches or tree roots across a property boundary into private property. It is not necessary for the owner of private property to establish the actual physical incursion by the roots to establish nuisance. However, the property owner is required to prove that the trees caused the nuisance and it was not, for example, building techniques or other factors, such as decaying infrastructure, which caused the property damage.

Once it can be established the tree roots caused or materially contributed to the alleged damage, the property owner must then show the following elements to succeed in any action in nuisance against the Council:

• The trees were planted by the Council and were not planted in accordance with the appropriate standards of the day (that is, at the time of planting).
• That the Council failed to take reasonable means to bring the cause of the damage to an end, once it became aware the tree roots were causing damage.
• Reasonable action by the Council would have led to the damage being avoided.

In a negligence action, the Court is again required to assess what is reasonable in all the circumstances. This means determining when the Council became aware that the roots of the tree were causing damage to private property, whether the steps taken by the Council in response were reasonable, considering the magnitude of the risk of damage, the expense, difficulty and inconvenience in undertaking repair. It might also take into consideration the competing responsibilities and commitments of the Council.

Once again, the record keeping system maintained by the Council plays a vital role. If a Council can prove the date a request and/or complaint was made and the response by the Council to that notification was reasonable, bearing in mind the competing responsibilities of the Council, the Council should have an adequate defence to any claim for property damage at a later time. However, once the Council is aware the roots of a particular tree are causing damage to private property and fails to do anything to alleviate the damage without any justification, it is highly likely the Council will be found liable to the property owner by a Court. Therefore, any steps taken by a Council in response to such complaints and/or requests should be carefully and thoroughly documented.

Trees on private property

The Tree Act commenced operation on 2 February 2006. Before the Tree Act there was no practical way to resolve disputes between neighbours who could not agree about the benefits of, or danger posed by, particular trees. However, as stated above, the provisions of the Tree Act do not apply to trees managed by a Council.

The Tree Act provides for proceedings in the Land and Environment Court to resolve some disputes between neighbours in urban areas concerning trees causing damage or posing a danger. It also allows the Court to order compensation for damage already caused by a tree situated on adjoining land. The Tree Act does not apply to disputes concerning trees which block sunlight or views.

The effect of the Tree Act is that it allows for a Council to remove itself from 'tree disputes' between private property owners. However, it is important to note that this will not avoid a Council's obligations to take steps regarding trees on private property that pose a risk to land under a Council's management. This includes the risks associated with a rotting branch falling from a tree located onto private property or a public footpath. In such circumstances, assuming the Council had actual knowledge of the risk posed by the tree branch, Council would be required to take reasonable steps in response to that risk (for example ordering the private property owner to remove the offending tree and/or branch or exercising the powers available to it under section 124 of the Local Government Act 1993 (NSW)).

For more information please contact:

Michael Down, Partner
+61 2 9286 8287
michael.down@dlaphillipsfox.com