Councils’ Liability for Dangerous Trees

COUNCILS’ LIABILITY FOR DANGEROUS TREES

Large trees can be highly dangerous, especially when inappropriately located close to residential dwellings. This can be particularly so with endemic Australian trees and eucalypts (colloquially known as ‘widow makers’). In Victoria, the removal of such trees is usually subject to Local Laws or Tree Preservation Orders under the Local Government Act 1989 (Vic). However, Councils can often be reluctant to approve Local Law permits to remove such trees, given their aesthetic qualities. Significant matters can require consideration in relation to dangerous trees, including:

1. The position of the trees in relation to dwellings and reasonable land use in their vicinity.
2. The species of the trees and its propensity, when healthy, to drop large and dangerous limbs.
3. The common opinion of experts on whether such trees are suitable in urban areas.
4. The prior history of the actual trees in shedding large and dangerous limbs.

In Timbs v Shoalhaven City Council [2004] NSWCA 81 the NSW Court of Appeal considered a spotted gum tree (corymbia maculate). The Plaintiff in that case, Mr Timbs, a husband and father of two young children, spent several years petitioning his Council to remove a dangerous tree. A Council Officer’s visual inspection and reports deemed the tree ‘safe’ and removal was denied. A strong wind blew the tree over and killed Mr Timbs. The New South Wales Court of Appeal found Council negligent for its failure to identify the tree as posing an unacceptable risk and for failing to take appropriate action, including failing to adequately inspect the tree:

Having accepted the responsibility of advising on the safety of the tree, what was described as a routine visual inspection, was not a sufficient inspection, where the risk, if the inspection was insufficient and the opinion was wrong, was not only to property but also to life, if the tree were to fall[1].

Timbs applied the earlier High Court case of Brodie v Singleton Shire Council [2001] HCA 29, which found that Local Government legislation in NSW gave Councils functioning as road authorities in that State significant and exclusive control over the safety of the person and property of road users. This degree of control made it ‘incumbent upon the authority to exercise its powers, whether by averting the danger to safety or by bringing it to the notice of persons [exposed to such danger]’.[2] In Timbs, the Court of Appeal found that the existence of the factor of control was critical to Council’s liability towards Mr Timbs:

The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. In this case, the Council held a significant and special measure of control over the safety of homeowners who brought to the Council’s attention their fears that overhanging trees were dangerous. This was particularly so, as the Council opted to advise the particular homeowner about whether the trees in question were dangerous[3].

Legal advice may be helpful for residents with doubts about their rights and obligations with respect to trees under the Local Government Act and Local Laws. Samantha Thorogood Freeman Zhong 15 September 2017 [1] Timbs v Shoalhaven City Council [2004] NSWCA 81 p12 [2] Brodie v Singleton Shire Council [2001] HCA 29 p5 [3] Timbs v Shoalhaven City Council [2004] NSWCA 81 p11 Copyright © Kellehers Australia 2017 Liability limited by a scheme approved under Professional Standards Legislation This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.