Denied Compensation, but Council Is Guilty

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.

  1. 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.
  2. 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."

Comments

  • +3

    but Council Is Guilty

    Can you prove it?

    • -2

      Firstly lets get the facts right.,.

      LEGALLY Councils cannot be held Guilty for anything.

      The law also exempts them from any liability claims

      That doesnt mean you cannot ask Council to put things right.

      Such as removing the tree if it is on council land and is causing damage to your property.

  • +2

    do you have a paper trail of the earlier communications?

    • +6

      Yes - Back in 2022, I asked them to provide me a report which I never got. Full documented in email.

      • +4

        Then reply with the details you have supplied with:
        a) Council replacing foot path
        b) email sent to council
        c) phone calls with approx dates.

  • +3

    Go through their process of reviews & then go to the ombudsman if no luck

  • +8

    TLDR but F*** the Council

  • +3

    Councils make me sick.
    Set up outside the council doors and chain yourself to a chair like Homer in the ballpark.

    • -5

      Councils make me sick.

      Yes, they stopped wearing face masks early last year.

  • A saying from the most litigious country in the world - You can't fight City Hall.

  • +2

    The gist of the council's memo is that they didn't drag their feet, they took action as soon as they were told there was a problem, so there's no grounds for a claim.

    If they were told about the problem earlier and ignored it you'd be able to claim compensation, according to their words.

    • +1

      Yes I did - And they only changed their footpath!

      • +2

        If you can prove that you made the call in 2022 then you have some proof, but otherwise it's your word versus theirs.

      • They changed the footpath around just that tree area?
        If so, they knew of the problem.
        Perhaps finding that work order would be a good lead…

        • +3

          Got the work orders from the council today. It coincides with the dates. I made the complaint, 3 months later, whole front walking path was changed.

  • +7

    If you are going to appeal, I would focus on the 'the tree should never have been planted' here aspect (ie. negligence from council in planting the tree in that location).

  • +2

    was it the same tree as this post

  • +6

    All communication with council's call centre should be logged against your property and/or resident details, if you provided this information to them at the time.

    Request a review, specifically mentioning the phone call and provide a general range of dates in which you believe the call was made.

    The fact that council contractors replaced concrete in front of your property will not be relevant as it is not specific to your situation, it's just incidental.

  • +2

    If you cannot dispute - with hard evidence - the claim by council of ignorance to the matter prior to March 2024, you have no case. You can pay for a lawyer to test this idea, but at this stage your claim doesn't pass the pub test.

  • -2

    Here OP, you dropped your tin foil hat….

  • Council has a lot more money to defend their position than I imagine you would to prove your point or that you're right.

    I know of a situation where a person contested a parking fine which went to court and appealed even further. Council's legal bill was $40,000 and I suspect the public members was also comparable. All this over a $90 parking fine.

    I don't know the full situation and/or history to say that you or Council are correct, but I simply know that if/when they decide to fight, then they've got loads more money, some of which is yours from your rates.

    However, some inexpensive things you could do to further review is submit a Freedom of Information (FOI) request regarding earlier assessments for the tree and/or at the time when the footpath works were done, including any reviews/responses made to your earlier enquiry. FYI - those footpath works could have been done for a completely different reason and was simply coincidental.

    • Council has a lot more money to defend their position

      Sounds like you've been watching too much TV. It costs $100 to go to small claims court and you don't need a lawyer.

      I know of a situation where a person contested a parking fine which went to court… appealed even further… legal bill was $40,000… All this over a $90 parking fine.

      That never happened. Feel free to post the court transcript though…

      • -1

        If you wish to appeal a parking fine, it's heard at the Magistrates Court (for Victoria). Within the example provided, the recipient of infringement appealed the Magistrate Court decision.

        You sound versed with legal proceedings such that you may be aware that the success at the higher court is generally improved with the engagement of barristers.

        When I heard that the legal fees for both Council and the appellant were in the order of $40,000 each, I was surprised at how much money both parties were willing to spend over a $90 infringement. Hence, within my earlier reply my mentioning that the decision was 'appealed', the monies mentioned were not paid at the lower/first court - you may or may not be aware of the costs for higher court hearings.

        How do I know all this? I worked at the Council at the time and provided an assessment of the engineering compliance as an expert witness/statement.

  • +2

    These c$&"s are a law unto themselves. There mower/slasher hit my back fence ripping off palings and snapping the crossrails.

    Firstly they said it wasn't them and it wasn't on there land, then other excuses, then i said I'll give them quotes from fencers, they said no they won't except them, then i noticed around 5 palings stuck to the fence. Cross members still broken.
    I had a tree cut down and the guy could see tractor marks and fresh cut lawn.

    I fell seriously ill shortly afterwards and yes it's my fault it's still like it. Well past anytime to do anything about it, essentially they've gotten away with it..
    Imagine if I'd damaged there property…

  • +1

    Have you advised the council you contacted them previously? The person writing the letter only has your most recent interactions to go on.

    You posted here saying you contacted them in 2021, which is pretty good evidence you made an earlier call:
    https://www.ozbargain.com.au/node/707698

  • +3

    Time to build your own killdozer.

    • +10 for KillDozer

  • What happened when you called them up to tell them what you told us?

    • I asked them to provide me a report on the tree and its surroundings. I also asked them to inspect the health of the tree. I never got anything. Documented in email.

      • +1

        They've already sent out an arborist and they're going to rip the tree out, what use is an inspection of the health of the tree?

        You're saying you informed them of the damage in 2022 and that they fixed the pavement in 2023. That's all you've got supporting your claim they already knew, why not ask about that?

  • +3

    Sounds like its a standard response. They probably saw the claim and yeeted out the email without any further investigation. You should go back to them with evidence that it had previously been reported. They aren't going to be proactive in finding themselves liable - why would they? Do the legwork and provide the evidence.

  • +1

    Submit your past Ozbargain post history and comments around this issue and I’m sure the council will rethink fighting this in court.

    It’s well know in these forums that the courts and car insurance companies hold Ozbargain forums and answers at an extremely high standard.

    • +3

      OPs KC: Your honor, I present to you exhibit A

      Judge (a few moments later): Well, we don't need to waste anyone's time further, I find {insert council here} guilty and the OP gets a new fence and a 4 pack of eneloops.

  • +1

    Council is not liable for tree root damage to property if it was not previously aware of the problem.

    So they are not liable… your phone call that no one will remember doesn't count.

    You need to inform the council via the proper channels for it to be 'aware' of the problem.

  • 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.

    Very much council 101, they will deny all claims for damage if they haven't been made aware of an issue. So not shocked by this.

    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)

    If you have a paper trail of these events, then provide them to the council and advise that they have been aware of the issue for the last few years and nothing was done about it to stop the damage to your fence.

    and it will be removed in 4-6 weeks as its a hazard

    Has it been removed? Notices sent out?

    • +1

      I called council today and they confirmed that the removal of the concrete was made 4 months after I complained in 2022. The council gave me all the details and dates. They even have photos of when the job was completed. I asked Why the concrete was removed - He said "Rooting, cracking, hazards"

      Tree not removed, notices have not been sent out yet I believe.

      • after I complained in 2022

        What was your complaint? The fence falling over or the footpath lifting?

  • Gather your paperwork and lodge an application at your local court. This is what it is for.

  • How damaged was your fence in 2022 and how damaged is it now?

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