Council Refusing to Pay Damages Caused by Fallen Council Tree

pagemaster145 on 07/11/2023 - 19:06

Recently, a council tree fell on the back of my property, causing significant damage to the fence, clothesline, and a swing set. To my dismay, the council has refused to cover the repair costs, citing statutory immunity under Section 245 of the Local Government Act 1999.

Upon further investigation, it appears that Section 245 grants the council immunity in cases of damage caused by street trees, stating that the council is not liable for any losses resulting from such incidents. This legal protection seems to leave affected property owners like me in a challenging and unjust situation, despite the tree being the responsibility of the council.

This has left me wondering about the fairness of such provisions and how they impact individuals who bear the brunt of the damage. While I understand the need for certain legal protections for local authorities, it feels unjust that homeowners are left with no recourse when faced with damages caused by council trees.

I'm reaching out to this forum in the hopes of finding others who may have faced similar situations or have insights into potential solutions. Has anyone successfully navigated a similar issue, or are there legal avenues that could be explored?

Any guidance or shared experiences would be greatly appreciated.

Email from the Claims Consultant:

"We advise that the <REDACTED NAME> (the Council) is a member of the Local Government Association Mutual Liability Scheme (the LGAMLS). The LGAMLS provides the Council with civil liability protection in accord with its obligations pursuant to s142 of the Local Government Act 1999 (Duty to Insure for Civil Liability).

Further to our letter of <REDACTED DATE>, we advise that our investigations are now complete.

You advise that on or about <REDACTED DATE>, a tree failure resulted in damage to the fence, clothesline and swing set at <REDACTED ADDRESS>. You seek compensation from Council for this damage.

We advise that prior to the subject incident, Council had received no reports or complaints in relation to the subject tree. Council advise that it was notified of the subject tree failure on <REDACTED DATE>. In response to notification of this incident, Council attended site to clear the failure.

Whilst Council acts as caretaker of street trees, it is not responsible for the naturally occurring behaviour of trees.

Unfortunately trees will often fail, with little or no warning, this is a naturally occurring behaviour of trees which Council is unable to prevent. Trees can also fail at times of distress, such as during strong winds or high temperatures.

Council is afforded a statutory immunity in relation to damage caused by street trees, pursuant to Section 245 of the Local Government Act 1999, which provides that Council is not liable for any loss caused by street trees.

On this occasion we do not consider that Council has been negligent and liability for this claim cannot therefore be accepted."

Home & Garden

Comments

  • tsunamisurfer on 07/11/2023 - 19:10
    +62

    Isn't the mitigant for such risks things like…..you know……home……and contents……ummmm….insurance?

    How can the council be responsible for every tree falling?

    • USER DC on 07/11/2023 - 20:11
      +50

      how can council not allow someone to NOT allow to cut a tree ?

      and then the tree turns out to fall, and council dont want to compensate for damage caused because it didn't allow that tree to be cut safely beforehand (unless like paying them another stupid fees, over life risk)?

      • KBZ on 07/11/2023 - 20:19
        +56

        Right you are.
        We had a level 5 arborist advise council to approve a tree removal in the backyard (as the base had rotted), they rejected it. Tree falls on house and damages it; had to claim on our home insurance when it could have been prevented.
        Idiots the lot of them.

        • RockyRaccoon on 07/11/2023 - 20:54
          +3

          In that case the tree isnt on their land (you say backyard which probably means your backyard), so the issue is different, but still galling.

          • KBZ on 07/11/2023 - 21:16
            +9

            @RockyRaccoon: Huh doesn't absolve them of being idiots for not listening to an expert regardless if the tree was on my property. Lucky no one got injured due to their poor decision.

            • USER DC on 07/11/2023 - 21:25
              +2

              @KBZ: Exactly why i personally wont plant any tree in my future home.

        • DarwinBoy on 08/11/2023 - 20:02
          +5

          Wouldnt the fact you made them aware change the situation?
          The above letter to the OP makes it quite clear they had no previous reports regatding that tree.

        • ChickenTalon on 08/11/2023 - 20:08
          +8

          Council doesn’t have immunity from claims if they’ve been notified about an issue with a tree on public land and have taken reasonable steps to resolve it.

          Probably easier to claim on your home insurance tho.

        • DoctorCalculon on 08/11/2023 - 21:25
          +1

          they rejected it

          WTF! I cut down all the rotten trees before landscaping the backyard.

          Is this a protected / heritage tree we are speaking of?

          • KBZ on 09/11/2023 - 15:59
            +1

            @DoctorCalculon: Nah just a jacaranda but a certain council up north rarely approves any tree trimming/removals.

        • Sammyboy on 09/11/2023 - 13:48

          I wonder in regards to the reverse, if the council arborist says its safe and within weeks it falls and damages property. Can you make a claim against the arborist if the council has these legal protections

        • PAPower on 09/11/2023 - 22:20
          +1

          next time/house just remove it no need any approval. you need to ask yourself 'so what' question every time.

          OK I don't have approval to remove the tree. So what ?

          • KBZ on 09/11/2023 - 23:59

            @PAPower: Neighbours report you/council finds out, you pay a hefty fine and you have to replant tree.

      • AustriaBargain on 08/11/2023 - 10:10
        +6

        My neighbour just cuts it himself. He retired and spends a lot of time trying to sort things like this out, but gave up and just does it himself.

      • TheRealCher on 09/11/2023 - 21:38
        +1

        If a tree doesn't fall when it's not cut by the council, does an ozbargainer get a discount on home insurance?

    • dogboy on 08/11/2023 - 12:13

      So if you have a $1000 excess to claim H&C insurance, the homeowner is just supposed to wear that? Wtf?!

    • juki on 09/11/2023 - 08:15

      well in other countries i have lived they were, on the basis they are responsible for the timely and proper upkeep and maintenance of the trees. The councils should have insurance for this, it doesnt mean they dont try to wriggle out of not paying but the judge will say they are responsible

    • Assburg on 09/11/2023 - 15:28

      If the council want to own the land they are responsible for it.

    • Nillionaire on 10/11/2023 - 12:03

      How can the council be responsible for every tree falling?

      Then take away their right to prevent me and my neighbors from cutting down a problematic tree in front of our houses. We were down to completely do it at our cost and council still refused to give us permission and threatened us if we proceeded anyway.

  • Muzeeb on 07/11/2023 - 19:13
    +12

    Imagine your local council rates premium if council were paying out for every act of God damages claim.

    • Thaal Sinestro on 08/11/2023 - 10:30
      +12

      Councils charge a fortune for what little services they provide, and every year keep increasing rates and other charges by 5%. Refuse to pay their extortionate fees and they seize your property. Cashed up councils can afford to pay for tree removal and cleanup. I tried contacted a councillor recently by email and never got a response. Useless, lazy, good for nothings.

      • Myone888 on 08/11/2023 - 18:35
        +4

        Not only that, whilst taxing residents council pay their CEOS’ $750k-1 million$ /yr and gives themselves handsome increments every yr!

        • dwarves on 10/11/2023 - 20:17

          Can you provide a few evidence-based examples of council CEOs earning $750k-$1m, please?

      • CocaKoala on 08/11/2023 - 19:37
        +15

        Councils are just bloody leeches that generally employ bloated useless nincompoops who sit around all day eating chips. Our council says they "aspire to" respond to an email within 12 working days. I bet an amoeba could respond in 10 days.

    • Zondor on 08/11/2023 - 11:38

      Welp considering surging house prices we sure get nothing extra from the higher rates already!

    • juki on 09/11/2023 - 08:16

      plot twist it isnt always an act of god if maintenance isnt done for example

      • onetwothreefour on 09/11/2023 - 14:16

        Plot twist, everything is an act of god.

        • juki on 09/11/2023 - 21:16

          true i suppose but not necessarily under a legal perspective

        • TheRealCher on 09/11/2023 - 21:40

          Only if they're omnipotent and not just impotent

    • smartazz104 on 10/11/2023 - 08:08

      Like councils need a reason to increase rates…

  • brendanm on 07/11/2023 - 19:18
    +2

    Just pay your insurance excess and move on.

    • Gnostikos on 07/11/2023 - 19:45
      +7

      A tree normally doesn't fall down for no reason

      You ever been to a swamp, marshland or any flooded area with vegetation? Trees keel over every single day in environments like that due to the loose, muddy soil causing the roots to break free.

      Trees can also suffer from numerous pests/parasites that will destroy the structural integrity of the tree to the point that it falls.

      • geek001 on 07/11/2023 - 20:19
        +3

        I hear what you are saying, hence the word "normally". But I would imagine OP doesn't live in a swamp, I could be wrong.

        Anyway, it just doesn't seem right to me that council doesn't allow people to touch the trees, but when the trees grow too big and becomes a hazard, the council has immunity.

      • CommuterPolluter on 08/11/2023 - 14:53
        +2

        I didn’t realise that OP is Shrek, living in a swamp.

        • Gnostikos on 08/11/2023 - 15:22
          -1

          Oversaturated or loose soil exists in a lot of areas adjacent to large bodies of water like rivers/lakes.

          You guys really don't know how water tables work do you?

          • Randolph Duke on 08/11/2023 - 17:01

            @Gnostikos: Do you typically build housing & infrastructure on soil/ground like that?

          • CommuterPolluter on 08/11/2023 - 17:33
            +4

            @Gnostikos: You’re right, I’m the idiot for believing that “swamp, marshland or any flooded area” meant “swamp, marshland or any flooded area” and not “a lot of areas adjacent to large bodies of water”. I’m sorry for all the hassle caused by my stupidity.

  • ihfree on 07/11/2023 - 19:23
    +29

    You could move out to one of those new suburbs with no trees. I hear they'll be great in summer.

  • Hellfire on 07/11/2023 - 19:25
    +4

    You are going to be in for a shock when you find out about your neighbours trees…

    • JimmyF on 07/11/2023 - 19:59
      -1

      This one is a big shock to lots of people!!!

  • simplystu on 07/11/2023 - 19:31
    +3

    Short answer - go through house/home insurance … as others have said.

    Unsure which state (or even council you are in) … my local council in WA is legally required to trim back trees near/along fenceline - with they generally do twice a year, EVERY year (my house backs onto council held land).

    IF (and only IF) your council/shire was legally required to do this and it didn't happen … then you may possibly have a leg to stand on … but would then need to fight it out in court.

    Not worth your time/money/lawyers … Go through house insurance.

  • franco cozzo on 07/11/2023 - 19:32
    +5

    ….i honestly cant beleaf their response!

    • juki on 09/11/2023 - 08:18
      +1

      i'm stumped aussie law seems so retarded

  • thatonethere on 07/11/2023 - 19:33
    +6

    Falling trees are auto exempt as acts of god. Unless you can prove the council knew the tree was dangerous, the council knew (and did not rectify) and it was deemed so by a professional.

    • RockyRaccoon on 07/11/2023 - 20:56

      Which is what the council letter seems to indicate with this para

      We advise that prior to the subject incident, Council had received no reports or complaints in relation to the subject tree. Council advise that it was notified of the subject tree failure on <REDACTED DATE>. In response to notification of this incident, Council attended site to clear the failure.

      • Thrift on 08/11/2023 - 11:11
        +3

        The letter indicates the council did not know about the tree until after it had squashed OP's clothesline and upon being told, sent a crew to clean up the tree mess.
        [Edit: maybe we are in agreement about this.]

      • Pootie Tang on 09/11/2023 - 18:51

        This is a common response when denying a claim. Don't know about it, didn't know it was an issue

    • logistics on 08/11/2023 - 21:28

      Pretty much this.

    • imurgod on 09/11/2023 - 10:34
      +3

      I spoke to God earlier. He said he wasn't event here!

      • Eeples on 10/11/2023 - 12:53

        He was too busy watching the sparrow falling; crushed by the tree.

  • iNeed2Pee on 07/11/2023 - 19:50
    +6

    Even if council were liable, lets be real…They would still find a loophole regardless lol

  • JimmyF on 07/11/2023 - 19:57
    +1

    Recently, a council tree fell on the back of my property, causing significant damage to the fence, clothesline, and a swing set. To my dismay, the council has refused to cover the repair costs, citing statutory immunity under Section 245 of the Local Government Act 1999.

    That sounds correct. Insurance stops at the fenceline.

    So if your neighbours tree falls into your property on its own for example (as in not being cut down), then their insurance won't cover you, as their insurance stops at their fenceline, and yours takes over.

    This has left me wondering about the fairness of such provisions and how they impact individuals who bear the brunt of the damage

    Council should be covering 50% of the fence repairs. Your own insurance will cover the other 50% and any other damange.

    • DoctorCalculon on 08/11/2023 - 21:32

      Council should be covering 50% of the fence repairs.

      Not sure if that holds true for a front fence?

      Furthermore, they are claiming statutory immunity for all damages.

      • JimmyF on 08/11/2023 - 21:57

        Not sure if that holds true for a front fence?

        Front fence is all yours to pay for… but OP said rear fence.

        Furthermore, they are claiming statutory immunity for all damages.

        Correct, but this isn't for 'damages', it is a 'repair' cost to repair the damage from a fallen tree.

        Bit like if the fence was old and blew over in the storm and needed a new one, the council is on the hook for a 'share' of the replacement.

        • dwarves on 10/11/2023 - 20:28

          Stop with the bush lawyering, Jimmy. You are wrong about council having any liability for construction of a fence bordering your property and a road, by reason of s20(2)(b) Fences Act 1975 (SA).

  • ihbh on 07/11/2023 - 19:59
    +1

    Unfortunately, this is called an act of God and council is not responsible, unless the tree was dead and it was brought to their attention, etc.

    What if the tree was on your neighbour's property? Guess what?

    PS: Happened to me due to a storm, when the tree fell on the roof, with tonnes of other claims during Covid. The first contractor screwed up and I had to ride the insurer to get it rectified pronto. The second contractor offered me ($10k less the excess) to fix it myself - no thanks. Tenant almost left - they were that pissed off at the delays.

    PSS: Fence, clothesline, swing set - that's nothing - thank your lucky stars mate. Also, unlikely the tree fell parallel to the fence and took out the whole back fence. If like me, you have a high excess, you'd probably be up for all of that cost.

  • pollopollo on 07/11/2023 - 20:08
    -4

    Council is afforded a statutory immunity in relation to damage caused by street trees, pursuant to Section 245 of the Local Government Act 1999, which provides that Council is not liable for any loss caused by street trees.

    Thats not what s 245 says. Read for yourself

    It says council is not liable for damage to property caused by the planting or existence of a tree planted on a road (which presumably includes the footpath).

    Your damage was caused by the tree falling, not by it being planted or its existence.

    • jjjaar on 08/11/2023 - 07:49
      +1

      If a tree falls in the woods and no one is around to see it, did the tree ever exist?

  • AndyC1 on 07/11/2023 - 20:25
    +2

    Council is only liable if you inform them that the tree is dangerous and is not sound and as it is on council land that any damage the tree causes will be the responsibility of the council to rectify. Make sure this is sent via multiple ways, email & snail mail.

    Did this for a gum tree one year and 6 months later a 30cm limb demolished about 3 meters of colorbond fence. Rang council and quoted that I had already informed the council that the tree was dangerous etc etc and they tried to dismiss it and I said okay I will speak to my lawyer and they were out to look at it at 7am the next day. They removed the tree and fixed the fence all within 2 weeks, but only because I sent the letter and effectively threatened them with a court case.

    • ar7ist on 08/11/2023 - 09:53

      Did you use a lawyer to draft the letter? Or just draft it yourself and mail it to the council address?

      • AndyC1 on 08/11/2023 - 19:55

        Sounds like you need a lawyer to get it right. In my post I said "Make sure this is sent via multiple ways, email & snail mail." so not I did not mail it only.

    • nige0090 on 08/11/2023 - 11:02
      +3

      I think that AndyC1 is correct here.
      Council only becomes liable once informed that a council tree is dangerous.

      I once emailed my council to request an inspection of a potentially dangerous tree, on the nature strip outside my house.
      I did mention that I understand that nature strip trees are the responsibility of council.

      Based on my photographs, they determined that the tree was near the end of its "useful lifespan", and it was removed about 2 weeks later.

      • AndyC1 on 08/11/2023 - 19:56

        100% agree about liability.

      • juki on 09/11/2023 - 08:21

        arent there routine inspections or scheduled upkeep. I live next to a one tree nature reserve, and the council is meant to come and clear the place up check the tree which hasnt happened since pre covid (now and then i take the weed whacker to clear up some of the weeds and pick up trash)

  • WreckTangle on 07/11/2023 - 20:40

    That’s a lot of specific info about tree health. Eg Unfortunately trees will often fail, with little or no warning…

    But a lawyer is writing this, not a tree expert. You should ask them to get a tree expert to write it.

  • JIMB0 on 07/11/2023 - 20:43
    +4

    Your only option is to sue God. It worked for a guy who lost his boat.

  • Tee Rex Arms on 07/11/2023 - 21:02

    My local council spent close to 20 grand engaging solicitors to prosecute a dog off lead infringement ticket. They’re not gonna pay for your things.

    • AngoraFish on 07/11/2023 - 21:33
      +7

      If authorities didn't pursue people who refuse to pay fines nobody would ever pay them.

      Councils literally have a legal obligation to pursue nuisance domestic animals. (In Victoria, for example, see the Domestic Animals Act 1994.) It's a core local government responsibility.

      You could make the exact same argument about legal costs every single time someone decides to contest a speeding fine, or gets taken to court for stealing a bag of chips, or any one of thousands of other relatively minor matters. Pursuing something through the legal system can be an expensive exercise. Thankfully most people just pay the fine.

      Your annoyance would be better directed to the dog owner who took the matter to court on a "matter of principle" instead of just paying their fine, not council.

      • Tee Rex Arms on 07/11/2023 - 21:40
        +1

        It’s council local laws, not any other legislation.

        I understand the need to pursue the matter but it comes to a point when it’s not in the public interest to proceed at an exorbitant cost to rate payers.

        • AngoraFish on 07/11/2023 - 21:55
          +2

          Councils are legally required to have and to enforce domestic animal management regulations, including the management of nuisance dogs off leash. Councillors didn't just wake up one morning and decide that introducing animal management regulation was a good idea. It is in other legislation, it's a legislative requirement that councils do this, an example of which legislation I have quoted for you from Victoria. The principles are broadly consistent across the entire local government sector.

          • bobbified on 08/11/2023 - 00:30
            +1

            @AngoraFish: Councils do have a level of discretion around the enforcement of fines They are not legally required to pursue every single fine to the ends of the earth.

            • AngoraFish on 08/11/2023 - 06:59
              -1

              @bobbified: Obviously, and mostly they don't.

              In my experience, councils are very reluctant to pursue this kind of thing except in the most extreme examples, after someone has been given multiple warnings and simply refuses to do the right thing.

              Click-bait angertainment headlines taking a cheap shot at local government over a single anecdote don't help anyone other than media company profit margins.

              If councils didn't pursue these kind of things sometimes, however, they wouldn't be doing their job.

              Queue next thread about how council are useless because they never do anything about off leash dogs.

        • jjjaar on 08/11/2023 - 07:51

          not in the public interest to proceed at an exorbitant cost to rate payers.

          Let’s see how you feel about that after your on lead dog is mauled by an off lead dog in the street. I can’t even imagine the damage it would have caused had it attacked a small child instead. It absolutely is in the public interest.

          • Protractor on 08/11/2023 - 11:21

            @jjjaar: Then this policy should apply to cats.

            • jjjaar on 08/11/2023 - 16:39

              @Protractor: Absolutely agree. Roaming cats are awful for wildlife and when they’re not desexed, they get strays pregnant, creating an endless cycle of new strays, causing shelters to be at capacity and unable to take any more in.

              • Protractor on 08/11/2023 - 17:30

                @jjjaar: Yep, and local govt does more about controlling dogs and trees than they do when it comes to the filthy destructive wildlife exterminators

            • AngoraFish on 08/11/2023 - 19:19

              @Protractor: It often does.

              Roughly 27 Victorian councils have 24 hour or dusk to dawn cat curfews. The ACT is currently in a transition phase for 24 hour cat curfews across the territory. There is a cat curfew in the Adelaide Hills, and several Perth area councils are currently debating cat curfew regulations subject to changes to the state authorising legislation.

              Currently in other states the relevant legislation does not allow for cat confinement, however several councils in those states have been lobbying the state government for that to change.

              • Protractor on 08/11/2023 - 19:26
                +3

                @AngoraFish: It's a simple prospect politicians don't have the balls to enact. Ban cats completely is say 10 years. Any cat alive at that stage can live out it;s natural life. Every cat must be registered,sterilised and confined to an owners property, if caught off the property the owner get's a hefty fine. If it happens again it is considered a feral cat and would be euthenised.
                But extinctions aren't going to wait for gutless elected members to step up.Nor should we.

  • Pcosmic on 07/11/2023 - 21:23
    -4

    Don't claim insurance. It'll cost more for your premium in the future. If possible, pay out of pocket

    • miwahni on 07/11/2023 - 23:48
      +6

      Then what is the point of insurance?
      How many years of increased premiums would it take to break even with the cost of repairing from own pocket?
      Just make the claim and move on.

      • mskeggs on 10/11/2023 - 03:48

        The point of insurance is for a group to band together to cover the costs of an expense the group members can’t cover alone. Like a house burning down or a car being totaled.
        If a fence and swing costs $800 to repair, and the excess is $600, I would not lodge a claim.
        If it was $8000 to repair and $600 excess I would.

        I’m not an insurer, but I can’t imagine they ignore small claims when calculating premiums, and if you make them, you will see higher premiums.

  • Drakesy on 07/11/2023 - 22:47

    Our council had to do a tree audit of all verge trees (which the insurance required i believe) and partly due to maintaining tree coverage.

    Anyway long story short, if the council acts out of negligence then yes you'd have a case, say if you forewarned them about the danger and they refused to do anything then yes. The loophole to remove trees is largely safety due to poor health, otherwise then yes, the council is covered by this law.

  • blaze45 on 08/11/2023 - 00:05
    -1

    councils never admit responsibility even if they are blantly in the wrong.they think they are above the law.i suggest find a lawyer that deals with councils and take them to court.they probably wont go all the way to court and offer you a settlement.thats been my experience
    good luck.

    • Protractor on 08/11/2023 - 11:18
      +4

      They literally ARE above the law. Councillors can use YOUR money to engage a councillor lawyer to sue you for having an opinion on them on social media, if you 'hurt their feelings'.

  • mitt on 08/11/2023 - 00:06
    +3

    Councils make stupid decisions by default & are protected from the consequences by design. Welcome to local government.

    Dont worry, as you go up, it gets worse.

  • altomic on 08/11/2023 - 00:29

    'Won't someone think of the children?'

    • john_conner on 08/11/2023 - 13:09

      Or at least their swing sets!

  • inherentchoice on 08/11/2023 - 05:56

    You could ask them when did they last inspect or maintain the tree and can you see their records about it. Maybe this would allow you to make a case that their tree inspection program was deficient.

    But that statutory immunity looks pretty solid. And there's no obvious case law about that section on austlii.

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