Council Not Taking Responsibility for Storm Water Damage

markrule on 18/12/2022 - 08:11

I wrote in here a while back about some issues I was having with a tree root intrusion of the stormwater under the nature strip. At the time I was told by the council it was my responsibility to get it fixed.

I have since got plumbers out to do the fix and replace the terracotta pipes with PVC. It was then that they noticed a huge tree root from the council tree on the nature strip that had caused the issue. It looks pretty clear as the root is huge and goes straight through the pipe. The plumbers documented the issue.

Following the relatively expensive fix and finding it was a council tree root seemingly causing the problem I went through a compensation process I was suggested to do which appeared to be outsourced to a Claim Service place which appears to be a service to reduce as much payouts as possible.

I eventually received a letter which stated among many things:

  • In the matters of Strata Plan No. 14198 –vs. – Cowell and Owners Strata Plan No. 13128 –vs- Woollahra Municipal Council, the Court found that a Council could not be held liable for damage to property unless it had:- (a) prior notice of an issue,
    and (b) failed to take any action.

  • the presence of roots in a drain does not necessarily represent evidence that the tree damaged the pipe to gain access. Contrary to popular belief tree roots do not ‘search’ for water.

  • Ageing drains inevitably develop cracks and leaks over time, allowing water to escape into the surrounding soil. This moisture can encourage the growth a root material, which may eventually enter the cracked/deteriorated pipes and can cause blockages.

As per the above cases they have requested that I provide evidence that I had (A) notified the council of prior issue and (B) they had failed to take action. Outside of the phone calls asking the council the previous questions I don’t have any of this. I couldn’t even remember the names of the people I spoke to on the phone. I didn’t even think to collect any of this as I didn’t think I would be at this point where I would be talking about case precedence to seek compensation.

Now I’m at a point of whether I bother to even try to go any further. It sounds like the council have all the power.

TLDR: stormwater pipe broken by council tree root (IMO). I paid to fix. Council has compensation service which (IMO) has the aim to discourage people of pursuing compensation. Do I bother pursuing any further?

Home & Garden

Comments

  • Muzeeb on 18/12/2022 - 08:17
    -4

    In the matters of Strata Plan No. 14198 –vs. – Cowell and Owners Strata Plan No. 13128 –vs- Woollahra Municipal Council,

    I would delete this. Does it make your location identifiable?

    • SBOB on 18/12/2022 - 08:25
      +1

      No, that's existing case law from about 2 decades ago

      • Muzeeb on 18/12/2022 - 08:25
        +3

        That makes sense. Cheers

    • SnoozeAndLose on 18/12/2022 - 08:26

      It is just one of the court case,which should not directly related to the OP.

      • HardQuiz on 18/12/2022 - 10:39

        Why?

        Are you saying these legal precedents are not applicable to damage caused by tree roots ?

        • Ridiculous Panda on 21/12/2022 - 08:02

          ‘To not be directly related’ does not mean ‘irrelevant’.

  • Certified Angus on 18/12/2022 - 08:21
    +5

    Does your state's GIPA/FOI Act apply to local government? If so you could try requesting any records relating to phone calls on particular dates and times (from your call history), or from your number, or under your name/address. I doubt they'll have recordings but there may be notes.

    • markrule on 18/12/2022 - 21:54

      Thanks I’ll try. I read a thread on another site and it seems these claims teams do anything and everything not to process claims.

  • EightImmortals on 18/12/2022 - 09:09
    +8

    How would you be aware of prior damage until the pipe burst?

    "the presence of roots in a drain does not necessarily represent evidence that the tree damaged the pipe to gain access. "

    What utter crap. Did you put forth the argument that the tree was motivated to gain access to the pipe because it had cracks in it?
    All you have to show (in a sane world) was THAT the councils tree root busted the pipe. You said your plumbers documented that fact, did you send it in to the compensation gang when you put your claim in?

    Keep pushing them though.

    You might not win but at least you'll get an insight into how much of a criminal gang council/government really is.

    • elgrande on 18/12/2022 - 11:07
      +1

      All you have to show (in a sane world) was THAT the councils tree root busted the pipe.

      Thats exactly the point. How can OP prove that? The plummer can't even prove it, unless he had his camera underground monitoring it for a few years..

      • SBOB on 18/12/2022 - 11:25
        +1

        exactly.
        The issue is how do you definitively prove that the tree root caused the crack, and not that the crack already existed in the pipe and the resulting higher moisture content in the soil around the crack promoted the root growth towards/into the pipe.

        • markrule on 18/12/2022 - 21:59

          The onus of proof is on the home owner it seems. I read in another thread that a guy got an arborist to confirm that the root was from an aggressive tree species and likely to have caused the damage- still no compensation.

      • Tee Rex Arms on 18/12/2022 - 17:22

        Plummer…lol

    • markrule on 18/12/2022 - 21:57

      My thoughts too.

      I already gave all my evidence prior to this letter I received back. The photos show a huge tree root bursting through the pipe. The plumber confirms their suspicions of the tree root causing this too. But this is not enough for them as per their response,

      It appears this third party company is designed to pay out as little as possible on behalf of the Council.

  • Baysew on 18/12/2022 - 10:40
    +1

    As the Americans say - You can't fight City Hall.

  • John Kimble on 18/12/2022 - 11:17
    +3

    Contrary to popular belief tree roots do not ‘search’ for water.

    Surely this is wrong?

    • Seraphin7 on 18/12/2022 - 15:45
      +9

      Council … Contrary to popular belief tree roots do not ‘search’ for water.

      Also council … Ageing drains inevitably develop cracks and leaks over time, allowing water to escape into the surrounding soil. This moisture can encourage the growth a root material, which may eventually enter the cracked/deteriorated pipes and can cause blockages.

      • markrule on 18/12/2022 - 22:02
        +4

        Yep their exact words. I don’t even know how you respond to that nonsense. I’m sure they copy and paste for every claim response.

        • dtc on 18/12/2022 - 22:37

          Why is it nonsense? Trees do not seek out unbroken pipes and then force their way into the pipe. They find a crack or a break in the pipe and grow towards the water leak.

          Basic situation is

          1. there was a nuisance (the tree root) on the council's land
          2. you went onto their land and fixed the nuisance without telling them
          3. you now want the council to pay for it

          Lets put it in reverse - your neighbour has complained a few times about water coming down your driveway into his garage. One day he turns up, digs a trench and a drain across your driveway, and then sends you the bill. Or just sends you a bill for fixing a tree root that you didnt even know was an issue.

          Not surprisingly, the courts are not big fans of people taking action by entering the land of someone else to fix a problem. What the law does say is that if you inform the other person, point out the issue being caused, and give the other person a reasonable opportunity to fix the problem and they dont - then you can take steps (including entering onto their land) where its necessary to mitigate your damages.

          If you have a mobile phone, go back through your phone calls and find the calls to the council and tell the council you called on those days and those times and advised the council of the issue. Also that you told the council that you were going to repair the problem if it was not fixed. There are cases that say a response from the other party to the effect that 'you should just fix it yourself' is sufficient to justify you entering the other person's land and fixing it.

          • markrule on 19/12/2022 - 09:27

            @dtc: In one line they write that roots do not seek water. A few lines later they say that moisture encourages growth. Just found that funny. I get the subtle differences.

            I guess why it is also funny to me is that the root is not a little stray that has weaved through a crack- this is a fully fledged root that appears to have forged right through. But perhaps the pipe was brittle enough for it to go through. Either way I’ve sent them the photos and they obviously don’t agree and that’s all that matters.

            In regards to getting approval, I spoke with the planning and engineering department prior to the works. As part of the process they said my asset my responsibility and works were approved. This call would be on record as they asked for name and address before transferring through. I don’t think this is the smoking gun though as I was at this stage unaware of the tree root problem (just knew of ongoing blockages causing flooding). I was therefore unable to notify them of tree root issue that became more apparent in the works.

            I think I may have a decent amount of evidence but I read another thread on another website- propertychat. There are quite a few with the exact same problem who fought the fight getting arborists etc. as extra evidence. They all failed.

          • A-mak on 19/12/2022 - 18:45
            +1

            @dtc: Just in regards to your first sentence, can you explain how condensation works?

            @OP, get the council to explain it too. Tree roots can follow/break into pipes because of condensation.

            • dtc on 20/12/2022 - 11:01

              @A-mak: You are all reading the wording far far too literally/pedantically/out of context. Trees do not say 'there is a pipe, I am going to go over to that pipe and break through the pipe to get water'.

              Trees do identify water that has leaked from a pipe and grow towards it.

              That is what the council is saying; the council is saying 'the pipe broke first, the tree did not break the pipe'. It seems very clear to me, its honestly taken me multiple reads to try and figure out why everyone else is having problems with it.

    • ThithLord on 19/12/2022 - 09:16

      Contrary to council beliefs, they really are a bunch of morons

  • JimmyF on 18/12/2022 - 14:21

    At the time I was told by the council it was my responsibility to get it fixed.

    Cool, so you got it fixed then.

    I have since got plumbers out to do the fix and replace the terracotta pipes with PVC. It was then that they noticed a huge tree root from the council tree on the nature strip that had caused the issue. It looks pretty clear as the root is huge and goes straight through the pipe. The plumbers documented the issue.

    And now you know what cause was and it is fixed for a while at least.

  • Seraphin7 on 18/12/2022 - 15:44
    +9

    Councils will do absolutely anything and everything they can to avoid liability for absolutely anything and everything. Absolute inner circle of Hell dwellers.

  • 2esc on 19/12/2022 - 14:37

    Terracoota has more joins than pvc much easier to find access by tree roots.

    Unless you can dig up the root all the way to the tree theres no guarantee that it is that tree. Tree roots will often go in strange directions and not always take a direct path very hard to prove.

  • brandt on 20/12/2022 - 09:37
    +1

    This is a political issue not a legal one since the resource imbalance between you spending your own money fight it vs council spending your money to fight it.

    I would start by writing letters to the Council GM, Mayor and your ward councillor explaining how an external agency is being used to stonewall members' legitimate claims. Then use local facebook pages to start a campaign of informing people about how council trees could be damaging their pipes and they'd be up for repairs. Keep the pressure up, and they will hopefully resolve your issue to hush you up.. particularly if an election is on its way.

  • 4nehcemaj4 on 05/01/2024 - 01:07

    Not a lawyer, this is not legal advice and I'm late.

    I believe:
    1. They are wrong about the case, Yes the council was guilty in the first one however, the council was found guilty on appeal from the case line 144 "In the result, I am satisfied that the appellants have proved that the respondent was guilty of a breach of its duty and was negligent.". The first one: Owners Strata Plan No 13218 v Woollahra Municipal Council [2001] NSWSC 158 ended with Council winning. Appeal Case: Owners - Strata Plan No 13218 v Woollahra Municipal Council [2002] NSWCA 92 ended with Council guilty - not sure where the figures for the damages meant to be (again i'm not a lawyer so this is where my research hit a dead end).
    2. But unfortunately, I don't think the appeal case can help you because in that case they proved the Council should have known by the fact the Council repaved footpaths damaged by tree roots.
    3. If there is no reason they should have known, they're not liable.

    Silver lining, now that your council is aware, they have to take steps to prevent more damage and be aware of these trees can cause damage to pipes. As long as, the council does not change (no merges of council areas or switched councils because border changes etc), then you probably can win the next time the tree does damage to the pipes. So keep the response or whatever you got from the council. If your council changes because of border changes, probably telling the new council that trees can damage pipes is probably enough.

    Reminder not legal advice, so should go seek a lawyer for proper advice.

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