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Damage from Council tree

Discussion in 'Real Estate' started by tony, 23rd Jul, 2007.

  1. tony

    tony Well-Known Member

    Joined:
    20th Jul, 2007
    Posts:
    46
    Location:
    sydney
    Hi

    I recently had a Council tree fall onto my house - the damage was extensive.

    The facts are not disputed by Council - it was their (Council habitat) tree, the tree was blown over in a recent storm, and that damage was done to my property.

    However they say they were not negligent.

    My understanding is that this is an issue of nonfeasance in that Council failed to performance their statutory duty in not identifying the risk that this (habitat) tree posed to my property.

    Unfortunately I did not have building insurance (albeit regardless, I maintain that Council have been negligent).

    The issue however is that I don't have the financial resources to fight Council on this matter.

    Any suggestions - all comments appreciated - including any web references to similar types instances.

    Many thanks

    Tony
     
  2. Simon Hampel

    Simon Hampel Co-founder Staff Member

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    Location:
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    I'm not an expert in this area ... but isn't the issue of a tree falling as a result of a storm considered to be a force of nature ?

    I'm not sure how you conclude that the council has failed in their duty when it was a storm that caused the problem ? Could the council (or anyone) have reasonably predicted that this would be a problem ? Had you previously complained that the three poses a thread and asked for it to be removed or trimmed ?

    Not trying to be difficult - just trying to understand where you are coming from (like I said - I'm not an expert).
     
  3. tony

    tony Well-Known Member

    Joined:
    20th Jul, 2007
    Posts:
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    Location:
    sydney
    Hi

    Thanks Sim for a prompt response.

    Imagine if the tree outside your home (hypothetically speaking) was (a) in a dangerous condition, and (b) it was on Council land (therefore not your responsibility but Council's responsibility), then in that simplistic scenario Council would be liable because (c) they had not been proactive in removing a (d) potential risk = nonfeasance.

    The issue of the storm could be argued to be irrelevant.

    My problem is that item (a) to (c) are there but I need to show that Council knew or should have known that the tree was a potential risk.

    It's an interesting area of law see Wyong Council case which sets the parameters or criteria of liability in such matters.

    As usual each case is judged on its merits, and that involves lawyers and that involves large sums of money, particularly if one loses then you end up paying the other side's costs.

    Comments invited (particularly from Council officers typically involved in such matters).

    Thanks

    Tony
     
  4. Simon Hampel

    Simon Hampel Co-founder Staff Member

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    Location:
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    I think that is the key to the whole issue - could they have reasonably known that it was a risk unless someone told them ? Is it reasonable to expect that the council will inspect every single tree in their jurisdiction ?

    If you had documentation of previous complaints about the tree I think you would have a good case, but without it - I'm simply not sure how you would prove that they had been negligent ??

    Perhaps someone else here has more experience with these matters ?
     
  5. handyandy

    handyandy Well-Known Member

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    6th Jun, 2006
    Posts:
    312
    Location:
    Sydney Nsw
    Sorry Tony, but why didn't you have insurance?:eek: :confused: Moreso are you sure that you didn't have insurance as part of your mortgage insurance is normally that you must have building insurance and that your morgagor will renew the insurance (at your expense) if you don't.

    I am not suggesting that your bank is responsible because you don't have insurance as in the end you need to carry some responsibility yourself

    Cheers