This question comes from a correspondent on the NSW Central Coast:
i would like to find out the responsibility of councils regarding trees that cannot be removed but poses a danger to people or properties. Can council be sued if a tree say destroys property. If not why should council have the power to punish those who cut trees yet they cannot be liable for damage caused by the same trees.
Local governments are indeed governments; they are not the same as individuals Graham Barclay Oysters v Ryan (2002) 211 CLR 540). Councils have the power to make tree preservation orders under various Local Environment Plans under the Environment Planning and Assessment Act 1979 (NSW). They have the power to do that as the preservation of trees may be in the public interest even if they are not in a person’s individual interest.
The real issue in this question is, I would suggest, a dispute as to whether or not the trees are dangerous? Another critical question is ‘who owns the tree?’
If the tree is a council tree and the risk is to a neighbouring property, then council would be liable, like anyone, if it failed to take reasonable care of its trees. That does not mean council has to know the up-to-the-minute state of every tree, but it would, ideally, have some sort of inspection program and a policy regarding tree replacement given the type of trees and their expected life span.
If a neighbour thinks the tree is unsafe they should let council know which would put them on notice of a problem and would, one might expect, cause them to at least arrange an inspection.
If the tree is a private tree and the person wants to remove it but is prohibited, the question is ‘are they really prohibited?’ If there is a tree preservation order in place it will provide a means to apply for permission to remove the tree. If one were to make an application one would need to support it with evidence, ideally from an arborist, that the tree is indeed, unsafe.
In Timbs v Shoalhaven City Council  NSWCA 81 a council was liable for failing to properly consider a request to remove trees that were dangerous. The issue arose because a council employee, when asked if trees could be removed, did not advise the homeowner to make an application, rather he said that the trees could not be removed without permission (which was true). By not giving correct advice or taking steps to inspect the trees the employee was negligent. If, however an application had been made, the trees had been competently inspected and a decision made, in good faith, not to allow the removal of the trees there would have been no liability even if the tree had fallen in the wind.
Liability does not arise because of bad consequences but because of a failure to take reasonable care. One might assess a risk as very low and not take action, but even a low risk can occur so the fact that it does occur does not show that the assessment was wrong, or that other action should have been taken.
A case that is scarily relevant to the current situation is Babbage v Dungog Shire Council  NSWSC 536 (20 June 2003) which was then reversed by the Court of Appeal Dungog Shire Council v Babbage  NSWCA 160 (20 May 2004) and special leave to appeal rejected by the High Court HCA Trans 98 (4 March 2005).
Indeed that case is very relevant. As Santow J (with whom Handley JA and Stein AJA agreed) said:
In the circumstances the Court of Appeal found that any finding of negligence could not be supported on the evidence, even though the tree did in fact fall on the road and the plaintiff did in fact collide with it.
This was a sad case where the Timbs had allegedly asked the Shoalhaven Council in 1996 and 1998 to remove the tree.
It fell in mid 1998 and killed mr Timbs.
A recent case in Victoria as well – http://www.theage.com.au/victoria/deadly-tree-that-killed-eli-marnock-was-the-responsibility-of-yarra-ranges-council-20150302-13smxt.html
It will be interesting to see the outcome of this tragic event.
It should be noted that the mere fact that the tree was a council tree and that it fell with tragic consequences does not mean the council will be liable. As the article says ‘The Yarra Ranges Council “actively manages” more than 5 million trees within the municipality, with an annual budget of about $3.5 million’. One can’t sue a council for not having a budget other than it has, ie they could have done more with more but allocating more to trees would have meant allocating less to something else and that allocation of resources is not justiciable. So the question will be, given the resources they had, was their inspection and maintenance policy ‘reasonable’. If it was there will be no liability even though the outcome is tragic beyond belief.
This question from an SES volunteer comes in response to this post. I am asked:
Exactly what is the SES’s responsibility is not clear. The Act says (s 8) that the SES is to “protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis” and to “act as the combat agency for damage control for storms and to co-ordinate the evacuation and welfare of affected communities” but whether that extends to assisting with trees that may, or may not fall over is a matter for ther service to determine.
Putting that aside, the service can only do what is reasonable with the resources it has.
First it should be noted that there will NEVER be personal liability on the SES volunteer. SES volunteers are not turning out on their own behalf, they represent the SES. It is not Bill Smith that is attending but the SES. If there is any liability it will fall to the State of NSW, not a volunteer (State Emergency Service Act 1989 (NSW) s 25; Civil Liability Act 2002 (NSW) s 61).
So where would “liability would lie if Option 1 was taken and the team leader was incorrect in their assessment of the tree and it fell causing injury, death or property damage?” If there was any liability it would fall on the State of NSW but there would be no liability if the decision was made reasonably that is, given the officers level of training which is not that of a qualified arborist, the decision was ‘reasoned’. As noted, regardless of whether or not the conclusion is correct, the SES member will never be liable.
It should be noted that the outcome of an event in no way determines the actual risk. If risk is “probability of event occurring x possible consequences”, an assessment that a tree is unlikely to fall is not wrong just because it does fall. There is very little chance any individual will win the lottery; the fact that someone does win it does not change the fact that the chance of them winning was very small. An assessment that a tree is unlikely to fall is not wrong just because it does. Of course the assessment may be wrong, in that an assessment that the tree is unlikely to fall may be wrong, its fall may be inevitable, but that does not make the conclusion unreasonable given an SES member’s training and experience. The most important thing is that you give it your honest thought and don’t say, for example, ‘it’s safe, call an arborist if you’re worried’ because you’d rather knock off or go to a more interesting job elsewhere.
If “a resident calls the SES and a job is entered and a tree falls and injures someone before the SES arrives, can the NSW SES be held liable?” No, first the issue would be whether the SES owes a duty of care. This blog has had this discussion in great detail for fire brigades and I suggest the same principles apply. The SES is there to respond to community demands and have to allocate their resources accordingly. They cannot protect everyone so have to make decisions. It would hamper that decision-making if they actually owed a duty to attend whenever anyone called even if they were aware of some greater threat somewhere else. Even if there was a duty it would be a duty to act reasonably, which again requires decisions about how to allocate resources. If a person calls 132 500 they are not guaranteed a response in any given time. The SES cannot know if this tree, as compared to the others the subjects of requests for assistance will fall. If it falls before they can get there, so be it.
The SES and the state government do not promise and under no duty to save everyone. The obligation is to act reasonably and that includes facing a massive event where demand exceeds resources.
A council tree branch fell on my car writing it off. I had to pay $750 excess and hire a car while insurance dealt with case. Council said that they were the 3rd party in the matter when I called; but when I applied to have the excess and hire refunded council said that they were not liable as I had not put in writing a complaint about the tree previously. How does this work? I’m very confused so any help will be much appreciated! Thanks
It’s true that in one context council are the third party. The two parties to the insurance contract are you and the insurance company, the council is the third party vis-à-vis that contract. Your insurer could try to recover from the Council the value of the money it paid you. It could sue the council in your name. If it was planning to do that it may also agree to try and recover the excess for you. Presumably they’re not doing that because it’s probably not worth their time and money.
Presumably, your insurance covers your loss less the excess and presumably didn’t cover hire car. So you are still out of pocket. You can, as you say you have, go to council and ask them to pay for those losses. They say they are ‘not liable as I had not put in writing a complaint about the tree previously’. That’s a rubbish answer. They’re liable if they were negligent in how they managed their trees. But you don’t get paid by just saying ‘you owe me’. If you want someone to pay, you have to take legal action to get a tribunal to resolve it. For small claims there will be an informal small claims tribunal but can you prove they were negligent? Sometimes trees fall down and it’s no-one’s fault.
The answer is you don’t have to take their ‘we’re not liable’ answer as the end of the matter, but if you want to take it further you’ll need to get legal advice from a solicitor who can consider the actual circumstances of what happened.
My home is on a small reserve and under Strata but where the local council claim ownership of the trees. I have recently had a very large limb come tumbling down onto my driveway where it just missed me as reversed in to my drive, turned the engine off & “boom” it fell down in front of us!
I reported this with photos to the council & they sent a team out to clear the mess up &. I raised my concerns for public safety & my family safety to them as I have quite a number of very high trees close & overhanging my property.
The reason for writing this is, it happened again today where another very large & heavy limb fell onto my property & boundary hedge & across the public footpath. I again reported it with photos but fear the normal response from council would be to seek their authorization, pay a fee & get the pruning done yourself!
My question is, the council have twice replied to me that they are the responsible manager of the trees but are not accepting the duty of care to a plea of my family, property & public safety matter to several high overhanging trees I believe pose a hazardous threat?
Awaiting a response from council on today’s incident but would appreciate some feedback/ response from the knowledge base within this site?
This blog cannot give specific advice. There are however some key issues. First negligence is only established when there is damage, so the fact that trees have fallen does not give rise to a claim in negligence. There is a tort of nuisance that can be used to restrain behaviour that interferes with the enjoyment of land and that could be relevant but of course that is also time consuming and expensive.
I think you are probably right that the answer will be ‘seek their authorization, pay a fee & get the pruning done yourself’. Even if you want to force them to take action that would cost. At the least you’d probably need an arborist’s report as to the state of the trees.
The law is not self-executing. No matter what the law says most people discover that the law is a tool you can use, but you have to fund that yourself. Legal aid funding is very limited and usually not available for claims such as this.
I am a Victorian resident.I have three very large gums in close proximity of my back yard. Two and a half years ago I notified the school that the trees ,are imposing, and require trimming back, as they continue to drop bark, seeds that have very pointed sides to them, (that catch under my shoes and pierce my skin), leaves and branches onto my property. The school replied with council’s advice informing me that the trees were in their legal width and height from my property. Despite the mess they made, they would dangerously bend into my property when winds picked up. Eventually the principal of the school told me that, “in good will”, they will trim them down. The arborists came and trimmed only one tree and left the other two untouched, making no difference to the amount of rubbish falling into my property. Yesterday when I stepped outside a very large branch had snapped off and fallen onto my property.
What are my rights as a tenant to get council to trim these trees further back from my property, as they are still over hanging onto my property? It’s very laborious and distressing, not to mention time consuming, cleaning and tidying up a yard that I’ve tried to make nice. I have severe osteoarthritis and it makes the whole matter physically challenging.
Joy, this. blog is not a place for specific advice which depends on who owns the trees, local government by-laws and state government planning laws. For specific advice you need to contact a solicitor in your state or territory. There will be places for free legal advice, your nearest legal aid office, community legal centre or community justice centre will be able to point you in the right direction.
A friends elderly had a council tree branch fall on the power lines and ripped the power connection box and spouting and gutting from from off her house, her insurance company advised that she has to pay the $600 excess. And as the power had to be disconnected from Street power pole she has to pay for $500-$600 for the power to be reconnected. Can we get compensation from council liable to pay for insurance excess and the power reconnection.
Every case turns on its facts; and proof of damage does not prove negligence by the council. Your friend would need to get independent legal advice from a solicitor in your state or territory. A first point of call would be your local community legal centre – see http://www.naclc.org.au/
If I make an application to remove trees from my property, the council rejects it, and then I suffer health and financial damages – am I able to sue the council for loss and distress?
The answer is in the post you have commented on. Provided the council staff who makes the decision considered all the things required by the policy the answer will be ‘no’
I have just had a tree (massive) land on my car. This tree had been reported to Council in writing and with photographic evidence (the resident has supplied evidence, which I have forward to my insurer) and had been reported by phone to Transport for NSW on the same day. Council did not bother to send the email to TfNSW or action it. Council says they are not responsible as it is a State Road. TfNSW say it is council’s responsibility as it was on Council land. It is with insurance company now, but I am arguing that as the tree had been reported to Council and TfNSW one of them is responsible. I am hoping Insurer will follow up, but wondering what action I take if they ask me to pay excess? I feel Local and State Governments rely on the community not having the funds to pursue legal action.
If a tree fell and damaged neighbour’s property after the tree removal application has been submitted but has yet got a result from the council (ie the owner has not got the permitt to remove the tree thus cannot remove it), and there is obvious system and internal process delay on the council side (with supporting record of delay council response, complaint email from the applicant to the council, Application Fee paid reciept), should the council responsible for the loss caused by accidental tree fall?
I have previously written about dangerous trees – see https://australianemergencylaw.com/2022/04/12/if-a-tree-falls-in-a-garden-who-pays-for-the-damage/ and the posts referred to there. The question is always whether the conduct complained of was or was not ‘reasonable’. Things take time so without specific details one cannot know the answer to a question about legal responsibility.