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Anyone successfully got council to pay for tree root damage to drains in NSW?

Discussion in 'Legal Issues' started by Propagate, 25th Jun, 2015.

  1. Propagate

    Propagate Well-Known Member

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    Following on from a thread I started on SS a while back...

    Short version - our IP borders a council reserve, on the reserve directly alongside our boundary is a line of tall trees. There are no trees on our property. Our drains were toast from root damage, we've excavated and replace 30 meters of drains as a direct result of infestation of roots from councils trees.

    I've spent the last two month sending details to Penrith council.

    I received their formal response today, admitting it's their trees and acknowledged some of them may be an issue so they will be removed but copping no liability AT ALL for the damage to our drains, stating it's our responsibility to keep the drains maintained.

    I've been reading the Trees Act, and buy the looks of things, if it was a private property next door, or "crown" land, then we'd have a good chance of a court order to pay some of the repair bill at least, but the Act specifically states that it does not apply to council land.

    Does anyone know if there is any precedent of a win against a council for root damage? Or if there is another Act that covers council trees?

    Seems a bit unfair that Joe Bloggs can get sued by their neighbor for tree damage but the council can do as they please?

    I don't want to start throwing good money after bad engaging a law firm if there's no chance at all, but if anyone knows of someone where council has paid that would give me some ammo, or if there is a separate act for damage by council property I can research that would be awesome.

    Here are some excerpts of their official response from today:-

    "we have been unable to identify any negligence by Council."

    "The investigation of your claim has revealed that the trees in the drainage reserve adjacent to your property are Casuarinas trees and are of fair to good health and condition. It is noted that these trees were planted by the developer of the Estate. A search of our records has revealed that Council had no prior knowledge or notifications that the drainage reserve trees roots were causing damage to your sewer pipes, prior to your notification and claim."

    "Trees cannot enter sewer pipes or any other underground pipe system unless there is a crack in the pipe or fault in the pipe system. Where pipes are cracked, tree roots can enter them and cause problems like those you have unfortunately experienced."

    "Regretfully, Council cannot be found liable for the damage to your sewer pipes as we were unaware of the damage being caused. We are responding to your recent notification and although the trees are of fair health, we have chosen to remove or trim several trees to prevent any further damage."



    Thanks.
     
  2. Propagate

    Propagate Well-Known Member

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    In addition, Sydney Water info sheet lists Casuarina trees as ones that should not be planted within 6 meters of drains due to their invasive nature. Council have noted that they did not plant the trees, (but they are now on council land). I have not measured the distance as I am in Melbourne, but they would be around the 6 meter mark, if not closer.

    https://www.sydneywater.com.au/web/...ments/document/zgrf/mdqz/~edisp/dd_043649.pdf
     
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  3. Pistonbroke

    Pistonbroke Well-Known Member

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    The act specific specifically exempts councils and crown land.
     
  4. Propagate

    Propagate Well-Known Member

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    Yes, like I said in my post, councils were specifically excluded in the act.

    My question is though, just because they're not in the act surely doesn't give them a get out of jail card if it can be proven that they've caused the damage?
     
  5. Perp

    Perp Well-Known Member

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    I am not a lawyer but believe that what you're proposing is an action in "private nuisance". There is precedent that councils can be held responsible for damage caused by their encroaching tree roots, refer Richmond City Council v Scantelbury [1991] 2 VR 38, the relevant bits of which I reproduce for you here:

    So you'd have to show that a reasonable person in the Council's position would have considered their tree roots had a reasonable risk of damaging your property, and thus should have done something about it. Given the advice of Sydney Water and that the trees are known to have invasive roots, that doesn't seem like it should be too much of a problem for you.

    I have skimmed the Trees (Disputes Between Neighbours) Act 2006 (NSW), and I don't believe anything in there bars you from pursuing a claim for damages in private nuisance, but I am not confident about that and - once again :) - not a lawyer.

    But that's definitely what you need to know: in NSW, is there any bar to an action in private nuisance against a council?
     
    Last edited: 25th Jun, 2015
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  6. Paul@PFI

    Paul@PFI Tax Accounting + SMSF Business Member

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    The Trees Act imposes very different liability than most people assume. Councils being one entity often excluded. The original time when trees are planted as a nuisance a issue capable of dispute.A matters for legal discussion. I took on a major land owner (Coles) and won 10 years later. Their trees affected our pool.
     
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  7. Propagate

    Propagate Well-Known Member

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    Awesome info, thanks a lot for that Perp.

    Wow Paul, 10 years!!
     
  8. Paul@PFI

    Paul@PFI Tax Accounting + SMSF Business Member

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    Catches to trees issues:
    1. I moved in 11 years ago
    2. Trees planted by Coles and I had pics and copy of letter warning them of border intrusion concern
    3. Pool excavation pics with no trees evident. Perfect rock hole.
    3. Neighbour was Coles
    4. Absolutely no other trees were the root problem
    5. Sample of tree roots was species in Coles site.

    So Local court was satisfied

    And worst of all was I cant count.
     
  9. bob shovel

    bob shovel Well-Known Member

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    did you get your plumbing fixed? was it a big job?
    is it worth the pain to chase council for money back?? I cant recall the exact details from SS but you've seen council being great at getting back to you, and no doubt it will drag on, and i doubt they are trying to deter you they are probably at full steam!
     
  10. Paul@PFI

    Paul@PFI Tax Accounting + SMSF Business Member

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    I went to Local Court who imposed orders on Coles to fix pool. Council wont pay a Trees Act claim as they are usually exempt. Court ordered all costs and Council paid. Council can be liable if they are knowledgable and it causes harm. ie overgrown or destroys driveway when informed. Hard to enforce.

    Forget plumbing. Zero chance unless you owned land then council plants a new tree and you tell them they caused damage and they ignore.
     
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  11. Propagate

    Propagate Well-Known Member

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    Hi Bob, I sent you a PM through SS yesterday, maybe they've been switched off now? Yes, I got it all sorted... $6.5k all up. Pipes were completely full/destroyed by those trees.

    I don't fancy my chances going up against council. I'll have one more crack, maybe via a solicitors letter and see how we go.

    The trees are an invasive species, on council land and within 2 meters of my drains. Sydney Water fact sheet lists that species as one that shouldn't be planted with 6 meters of drains. The trees may have been there before the house though? No idea.

    Cheers.
     
  12. Propagate

    Propagate Well-Known Member

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    Latest update. I wrote back to council and put forward, what I thought, was a very compelling case for why they should pay. I cited some of the case law from Perp's links, along with a time line and a few other little gems about a reasonable duty of care being they owned the trees and the trees were of a known invasive species, within 2 meters of my sewer pipes.

    They had already told me they were committed to the safety and maintenance of public areas, so I hung my hat on the fact they had a duty of care to ensure their trees were not causing damage and that their routine maintenance would have highlighted the potential for damage.

    I then made a without prejudice request for 50% of the costs to be covered.

    They replied to say they had forwarded the matter to an independent assessor.

    I got a reply form them this morning, basically another NO, but their only argument is that the council cannot be held responsible for any damages as they were not aware of the damage before it became too late and they cited the Court of Appeal decision in Owners Corporation 13218 v Woollahra Municipal Council

    Their closing statement being:-

    "Therefore as Council has no prior knowledge, they are unable to accept your claim and regret that they will not be able to provide any financial assistance to you on this occasion.

    We would also advise that if legal action is commenced against Council, the precedent matter mentioned above will be relied on in Council’s defence of this claim. Should that defence succeed as we expect it will, Council will pursue you for recovery of costs."


    Not sure what I want to do now, I was never expecting to get anywhere but the further Il;ve got with coresponding, the more annoyed I;m getting and the more I actually want to chase this, just not sure whether it's worth the hassle or the potential for not getting anything back plus having to pay costs.

    It would seem they only really have one argument, that being not knowing damage was being caused. My counter argument would only really be that that is not an excuse, and that their regular maintenance should have brought to their attention the potential for damage based on the type, size and location of those trees. I also know that the main Sydney Water pipes have been relined along the same area due to the same trees but I have no way of knowing whether council were made aware of that.

    Council did have time to act in that I made them aware of the damage once we knew the damage had occurred and I sent them several reminders to request they visit the sire before we started any work. They had a few weeks where they could easily have visited arranged their own workers to repair/replace our pipes but they did not and we had to ultimately carry on and have it all fixed.

    I might re-iterate that initial timeline, let them know about the Sydney Water pipe re-lining and try once more for a share of the costs. Maybe try and word something up about "not knowing" about the damage but knowing they have assets that have a high likely hood of causing that damage.

    Cheers.
     
  13. Darlinghurst Boy

    Darlinghurst Boy Well-Known Member

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    You dont need to engage a Law Firm.. You can take them to NCAT.. They cannot use a Lawyer there if you dont.
    They are bluffing you as far as im concerned.
    As for going for costs, they cant in NCAT.

    Dont let them bully and bluff you.

    Your not using a lawyer your representing yourself.. They will have to too.
    Look up the NCAT website fill out a online form...NCAT will then contact the Council.. They will either make you an offer or let you take them before the tribunal.
    Email the person responsible, explain to him the depression you are experiencing, the financial difficulties and its all because of the Council.

    Just let you know i used to work for a travel insurance Company, we hardly paid out claims because we bluffed our claimants threatening them they we would claimcourt costs if they pursued the matter, it was bluff but most dropped their claims.
     
    Last edited: 7th Jul, 2015
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  14. Propagate

    Propagate Well-Known Member

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    Thanks for the info. I figured it's a lot of bluffing, but just not sure if I want the hassle of persuing it. My main concern is costs if I was to lose, but NCAT sounds interesting.

    I just looked at NCAT website and couldn't see under what category I would be able to apply under for this scenario?

    Another option might be to go to small claims court, the amount is cost me was $6,500 so would be under the $10k limit. I had already made a without prejudice request to be reimbursed $3,350 which was what they declined in their letter this morning.

    Looking at the small claims info, it looks like the other sides costs are capped at up to $750 if I was to lose and be ordered to pay them. If that's the case, I think I'm willing to give it a shot.

    Might work out expensive for me if i have to fly from Melbourne to Sydney each time I need to attend or something though!

    I spoke to Sydney Water this morning, the sewer diagram shows they had their pipes relined, their pipes run parallel to mine. They were relined in 2001 but they were not able to tell me why, or if council were informed. They've raised a service request to see what info they can dig up. That will take 5 to 10 days. If I can show that Sydney water relined their sewer main in 2001 due to root damage, and that council were informed, that would help my case a lot.

    Cheers.
     
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  15. Perp

    Perp Well-Known Member

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    Does Council regularly mow the grass around or near the trees? Are there roots protruding above ground, or any disturbance in the soil that would indicate that there may be a problem?
     
  16. Propagate

    Propagate Well-Known Member

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    Good thinking. I've no way to check as I'm in Melbourne and have never seen the property.

    I know from speaking to the initially that they removed several trees further up the reserve, sounds like someone else had a moan a few years back, but from what I've seen on a few photo's they've never touch the trees near our place. It is the same reserve though.

    Looking at Google sat view, the grass seems to be maintained, and the tree line is very dense. I also have a couple of not great photo's that show how dense the trees are.

    I might call the plumber that did the work, see if he remembers what the ground was like with regard to breached roots.

    I'll call the parks department again too, see if i can "socially engineer" a bit more info out of them regarding the trees that were removed adjoining the property behind us.

    Cheers.
     
  17. Perp

    Perp Well-Known Member

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    A few things:

    1. NCAT is the small claims court in NSW. :)

    2. I think you shouldn't have asked them to cover only 50%; it makes it look like you're not confident of your standing.

    3. The good news is that to my non-lawyer's reading of the relevant cases - including Owners Corporation 13218 v Woollahra Municipal Council and the case it references regarding notice, Solloway v Hampshire County Council, and I think you're still on solid ground. There's nothing there that says that notice must be actual rather than based on constructive knowledge. (Actual notice means that, for example, you wrote to them 5 years ago telling them the tree roots were damaging your property; constructive knowledge means that one can string together assumptions to show that they must reasonably have known. e.g. They knew the trees were there, and it's widely known that Casuarinas have invasive roots, therefore they should have implemented regular inspections, should have known that it's too close to the drain, etc.)

    I'd go for $6,500 via NCAT.
     
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  18. Propagate

    Propagate Well-Known Member

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    Great info Perp, thanks.

    I agree, I didn't want to show a weakened hand by going for 50% but by the same account, I thought my rebuttal to their original knock back was awesome ;) - (thanks mainly to the case law links you gave me earlier in this thread). I half hoped they'd accept my offer and save me going further, which I didn't really intend to do anyway.

    Now knowing about NCAT though, as as long as I don't get stung for a gazillion dollars if I lose, I'm quite keen to peruse it, out of interest as much as anything else.

    One more question then, under what section of NCAT would I put an application in through? The closest one I thought was the consumer section, but it didn't really seem to fit?

    Next order of business:-

    1 - See if I can squeeze some info about the removal of the trees from the property behind, (on the same reserve), from council.
    2 - See if I can get some info from SW about why their pipes were relined (could be time consuming waiting for this one)
    3 - Get some info as to the ground conditions close to the trees from the plumber
    4 - Write up a response to the "independent" assessor from Claims Australasia noting all above plus an argument of actual v's constructive knowledge, plus hopeful being able to throw some info in as to why other trees were removed
    5 - Offer the same 50% without prejudice noting next stop is application to NCAT

    ....wait for reply

    6 - Spend some of the 50% refund on flowers to send to Perp, or start an NCAT application.

    Cheers.
     
  19. Perp

    Perp Well-Known Member

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    I'm not sure NCAT can deal with a nuisance claim, actually, which may mean you have to go to a court and risk an adverse costs order. Perhaps @Terry_w has some words of wisdom to offer at this point. :)
     
  20. Propagate

    Propagate Well-Known Member

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    Just got off the phone to the free Legal Aid helpline, I outlined the situation and I asked them about NCAT or Small Claims etc. They basically said trying to fight a council is VERY complicated.

    Their suggestions were:-

    1 - Continue to harass the council/Independent assessor
    2 - Contact the local Councillor/MP
    3 - Contact the NSW Ombudsman

    If all of the above fail, engage a private solicitor.

    Looks like I'll just have to keep up my hassle campaign a bit longer, see where that goes.

    Cheers.
     
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