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If a tree falls ...


old man emu
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Eucalyptus and peppercorn trees are notorious for dropping limbs unexpectedly. A bough will fall from an apparently healthy looking tree on the calmest of days, and examination will suggest that the cause wasn't weakening from insect damage. If you have such a tree on your property, and a bough falls from it onto a neighbour's property, you are responsible for any damaged caused, even for the cost of removal. But what happens if the tree is on community land, such as a park or other lands managed by Local Government?

 

Recently I was on the receiving end of such an incident. I live adjoining a large Reserve whose lower levels serve as part of the flood mitigation system of the suburb. That part is an excavated bowl with banks rising to the level of the surrounding landscape. It's a big area - a couple of football fields at least. Towards one side, adjacent to the road, the Council has installed playground equipment. 99.9% of the time, the area is a dry space. I've only seen it gather water a couple of times after severe summer thunderstorms, and that water soon drains away. Although the majority of the area is simply covered in grass, there are a few trees around the edges. Some were planted by at the direction of Council, and some are natural. There are two of these naturally located trees beside my property.

 

One  windless afternoon, I was outside when I heard a creaking sound, followed by the crash of a very large bough falling to the ground. The bough fell onto the property fence and onto my garden shed as well. Apart from destroying about 5 metres of fence, the bough crushed the roof of the shed down onto motor scooter parts I was storing in the shed, breaking  a few plastic panels and a windshield. Since I am renting the property, the damage to the fence and shed are the concern of the landlord. However, The replacement cost of my property was close on $1000, and I had to pay $200 to my insurer to make a claim. It's fair, I think, that the Council reimburse me the $200. After all, the tree was on land administered by Council.

 

Council arranged removal of the bough, but not temporary repairs to the fence. Later I received a letter from Council saying that they were having their contracted arborists coming to trim the offending tree. Earlier this year another bough had fallen from the opposite side of the same tree, but it fell into the park and only caused a potential danger to people walking in the park. The Council got the same arborists to remove it, but no inspection of the tree was made.

 

What has Council said about reimbursing me, or my landlord? It denies liability. It says that it is not liable for such occurrences, claiming that since the area it administers contains thousands of trees on public land, it cannot bear the liability for damage. I can appreciate that the Council cannot inspect every tree along a public road, but those within its parks and reserves can surely be observed, especially when the Council is aware that a tree has previously lost a bough. The irony is that, if I cut down a native tree without having obtained a permit from Council, they will fine me for breaching their tree preservation rules.

 

I've got a whole roll of film showing the damage and the arborists trimming the tree after the event. Let's see what happens when I drop a Small Debt summons on the Council. If I fail there, its' off to the local - independent - media with my story.

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Ask your solicitor. They will tell you whether its likely that forther action is worth the effort.

But I guess you already know that.

I agree with your analysis, but I know that most councils will try to brush off any liability. As you are no doubt aware, bluff is a common ploy.

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Local Government elections are coming up soon. Instead of candidates concerned with local matters and standing as Independents, we are now getting the slick campaigning of the major parties. One of my current councillors for my Ward is an independent. He's not recontesting as he says that the politicking in Council meetings results in nothing getting done. If the Council is dominated by the same Party that is in control of the State, then whatever the State wants, happens.

 

NSW is controlled by the Conservatives (read Big Business), so in the past ten years we have seen thousands of acres of previously rural land deforested and denuded of soil so that the housing developers can plonk their little boxes made of ticky-tacky cheek by jowl over it. It's OK if Mother nature creates  a landscape of nulla arbor , but the wholesale destruction of an established environment (after 200 years of European rural land management, and who knows how long of Aboriginal practice) is making this area of Sydney an ecological wasteland.

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OME, good luck with your claim. The largest number of businesses, councils and Govt depts will ignore claims such as yours, because they know it's a sum barely worth pursuing, because of the costs involved in chasing it up and collecting it.

 

I entered into an agreement with a mining entrepreneur once to sell a mining lease to him. But he didn't even have the money to put down a deposit on the deal. So in the contract I gave him three weeks to come up with the deposit.

Four weeks went past, and there was still no deposit lodged. So I sent him a notice of default on the contract (which was duly recorded as being delivered to him) and went and sold the lease to another mining company.

 

At that point, the entrepreneur lodged a court claim to block the sale of the lease, claiming that I'd sold HIS lease, and that he actually owned the lease, because he had a contract to purchase it - and I had sold it without his authority or permission.

This involved a major delay to the sale process, whereby a court date had to be assigned and his claim examined. It took months, but the judge threw out his claim as having not a shred of merit. So the sale to the mining company went ahead. 

 

I got an award of $7000 in costs against the entrepreneur - whereby he promptly skipped Australia (leaving behind millions in debt claims against him, after his company went into liquidation), and went to America for about 5 years.

After that period of time he returned to Australia, and started up in mining entrepreneurial work again - and ended up selling a mining lease for the sum of $93M! But do you think I have ever seen, or will ever see, that $7000 he owes me? Not a snowflakes chance in Hell.

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Many years ago in Brisbane my wife was riding her bike along designated bike path ,said path had ruts big enough to trap a wheel and she came off smashing and breaking bones in 2 fingers (at the time was a word processor operator ) so needed finger to type , informed council and put in a claim for 2 weeks pay, they denied liability , she went to her boss (she worked for one of the biggest solicitors/lawyers in Brisbane , took action against council still denied liability, FOi found that council engineers 18 months prior warned about possible accidents on said bikeway, arrived on footsteps on court day promptly offered a settlement her brief said no and wnt to court, we paid our morgage off with the settlement,and no fees were paid to her solicitors, fringe benifits ,the could have paid about 1000$ but were greedy, ended up getting 60k, moral of story go for the jugular

 

Edited by gareth lacey
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6 hours ago, onetrack said:

 

After that period of time he returned to Australia, and started up in mining entrepreneurial work again - and ended up selling a mining lease for the sum of $93M! But do you think I have ever seen, or will ever see, that $7000 he owes me? Not a snowflakes chance in Hell.

I have dealt with many turkeys like that. The Perth junior market seems to attract and encourage them.

 

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