Rhodes v Lake Macquarie City Council & Anor  NSWCA 235
The plaintiff alleged that at all material times Council had the responsibility for the care, control and management of processing tree reservation order applications and / or applications for trees to be removed or made safe in the Lake Macquarie City Council area. The matter involved a tree located on private land in the ownership of the second defendant, the NSW Land and Housing Corporation. This property was next door to the plaintiff's premises which were also leased from the second defendant. The plaintiff alleged the second defendant failed to apply to Council for the removal of the tree on the correct basis and failed to provide Council with full particulars of the history of the tree.
Evidence was given in the plaintiff's case that the tree had a history of dropping branches over a number of years causing damage to person and property. Further, the plaintiff's neighbour gave evidence that she had made repeated complaints to the second defendant concerning these incidents and had requested the trees removal on multiple occasions.
Council had a tree preservation policy in place ('DCP43') wherein approval was required for the removal of certain trees. This policy specified certain criteria which were to be taken into account when assessing individual applications. Given the species of tree, and its location, Council approval was required before it could be removed. By application dated 28 February 2005, the second defendant sought approval to remove the tree on the basis it was "unstable". No other information was provided. Importantly, the application made no mention of the history of the tree dropping branches causing injury to person and property, nor did it refer to the history of complaints made to the second defendant.
A council officer inspected the tree on 18 April 2005 and declined removal on the basis the tree was both healthy and stable. Approval was given for the canopy to be thinned by 15% and for all deadwood to be removed. The second defendant was informed of an appeal process should it wish to pursue the application for removal. No appeal was ever lodged.
On 22 June 2005, a qualified arborist attended the premises on the second defendant's behalf and removed all deadwood and thinned the tree's canopy by 15%. On 24 December 2005, during a particularly windy day, the plaintiff suffered injury when a branch fell from the tree striking her in the head as she was attempting to enter her motor vehicle located in her driveway.
At first instance, Judge Puckeridge found in favour of both defendants on the issue of liability. The plaintiff appealed. The matter came before their Honours Hodgson JA, McFarlan JA and Handley AJA who unanimously dismissed the appeal with costs.
His Honour Mr Justice Hodgson noted, contrary to the second defendant's application, there was consensus on the expert evidence the tree was indeed healthy and stable. The appellant's case was pressed on the basis the species of tree had a propensity to drop branches and therefore, given its height, should be removed from residential areas where those falling branches could cause injury to person and property. Mr Justice Hodgson accepted Council's evidence the tree posed a risk of damage to property or injury to persons from twigs and branches dropping from it, which could be considered "a not insignificant risk". However, the risk was not shown to be such that a reasonable person would have authorised removal of the tree.
The risk of substantial damage to property or significant injury to a person was not shown to have been more than a "relatively small probability", or to be any different from the risk posed by other trees of a similar type in positions in the vicinity of property and / or frequented by persons.
Reference was made to s5B(2)(d) of the Civil Liability Act (CLA) and it was noted that in circumstances where the maintenance of trees was considered to have social utility, it was not shown to be unreasonable for the Council to have adopted DCP43. Further, it was not shown that the decision by Mr Khemananta in his application of DCP43, not to authorise removal of the tree, was unreasonable. Therefore, Mr Justice Hodgson concluded that Council was not shown to have done anything that "no council could consider to be a reasonable exercise of its functions or powers, within the meaning of sections 43 and 43A of the CLA."
His Honour Mr Justice Hodgson was satisfied the second defendant owed to the appellant a duty of care as explained by the High Court in Jones v Bartlett  HCA 56. Further, the second defendant had notice that the tree on its land posed some risk to its lessees and it did not itself have the expertise to assess the degree of that risk. It was clear the second defendant was relying solely on Council to make an appropriate determination as to whether the tree ought to be removed. In all of the above circumstances, a reasonable lessor in the position of the second defendant would have used reasonable care to ensure that the Council had all relevant information in its possession to assess whether consent should be given. Mr Justice Hodgson concluded the second defendant breached its duty of care in not conveying to the Council the history of the tree including the earlier incidents.
Mr Justice Hodgson noted, however, that it was never put to the Council officer responsible for refusing the application for removal whether his decision would have been any different if he had been informed of the history of the tree. In any event, his Honour Mr Justice Hodgson was satisfied, given the tenor of the Council officer's evidence, his decision would not have been any different.
The Council officer had permitted pruning of all deadwood and thinning of the canopy which indicated he gave consideration to tree's surrounding environment. Accordingly, whilst the second defendant was found to have breached its duty of care to the appellant, this was not found to have been causative of the plaintiff's injury.
This decision stresses the importance of local authorities adopting well considered policies when considering the balancing exercise commonly involved in decisions with environmental impacts. It reinforces the importance of the individual officers following those policies with due diligence. Finally, the importance of "causation" in the negligence matrix, noting the second defendant was found to have breached its duty of care to the appellant.
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