Victorian Court finds Council liable for damage caused to dwelling by street tree – Livingstone v City of Melbourne [2020] VCC 1775

On 11 November 2020, His Honour Judge Lauritsen of the County Court of Victoria (Court) found the City of Melbourne (Council) had caused a nuisance to the Plaintiff by planting a white cedar street tree in front of her dwelling. The street tree had caused severe property damage, resulting in the need for demolition and rebuild of the dwelling. The Court awarded the Plaintiff $453,530.83 in damages. A South Australian court could make a similar finding against a Council if the same factual scenario was to be considered.

Background

The Plaintiff had owned the 130 year old dwelling since 1997 and had undertaken some dwelling alterations during ownership. Minor cracking appeared in the dwelling during 2006. In 2009 the Council planted a white cedar street tree on the front footpath, approximately three metres from the front of the dwelling. During 2011-2012 the cracking in the dwelling increased and the footpath began to heave around the street tree. The Plaintiff notified the Council of the damage in 2014 and the Council replaced the heaving footpath.

By 2015 the damage was so severe that the Plaintiff could not properly open or close the front door to the dwelling; the cracks were widening; and dwelling foundations were subsiding. In response to the Plaintiff’s notification of this damage, the Council installed a root barrier between the street tree and the dwelling.

The Plaintiff had the dwelling underpinned in 2015 and 2019 and eventually resorted to placing some of the contents of the dwelling into storage after fearing that the roof would collapse. The Plaintiff continued to notify the Council of damage and requested removal of the street tree, before resorting to the commencement of legal proceedings in 2018.

Hearing

During the hearing the Plaintiff pursued an action in nuisance and damages in the amount of $453,530.83 (which included the proposed demolition of the dwelling and its rebuild). The central issues were whether the street tree caused or materially caused the damage to the dwelling and, if so, whether this amounted to a substantial and unreasonable interference with the Plaintiff’s use and enjoyment of her dwelling. The Council denied the street tree had caused the damage to the dwelling and argued the dwelling had not been properly maintained, thus resulting in the heaving and damage to foundations.

Three expert engineers gave evidence on the moisture content of the highly reactive clay soil around the vicinity of the dwelling. The experts also considered other factors such as the: old inflexible original dwelling foundations; inflexible nature of the solid brick construction; inadequate stormwater drainage from the downpipes of the dwelling; extent of the root barrier installed by the Council; effect of climatic conditions; and impact from other vegetation situated on neighbouring land.

The Court found that the sole cause of damage to the dwelling was the street tree and that the root barrier installed by the Council had not been effective in preventing the street tree from causing damage to the dwelling. Other factors such as the neighbouring vegetation, the treatment of stormwater from downpipes, and a nearby Telstra pit (that collected water) were found to have contributed only marginally to the damage.

The Court found that the dwelling was in good condition prior to the planting of the street tree. The Plaintiff had sought to mitigate her loss as she had approached the Council on many occasions complaining about the street tree and the alleged damage it was causing to her dwelling. She had not failed to mitigate her loss by not connecting the downpipes to a legal point of discharge, as this did not materially contribute to the damage. She had acted reasonably and was not negligent in arranging the underpinning of the dwelling, regardless of whether this had actually been an effective measure.

The Court assumed the Council’s officers or employees knew of the existence of the clay in the area and its highly reactive nature; the moisture-seeking propensities of trees through their roots; and the characteristics of the white cedar and its potential for growth. The Court found that the Council ought to have known that damage would result from planting the street tree close to the dwelling where the soils were highly reactive clay. That damage was reasonably foreseeable and the Council was liable in damages. Ultimately, the Council planted the street tree. The street tree caused or materially contributed to the damage of the dwelling. Therefore, the Council was found guilty of the tort of nuisance as it had substantially interfered with the Plaintiff’s enjoyment of the dwelling and she suffered damage as a result.

It has been reported that the Council is considering whether to appeal the decision.

South Australian context

It is possible that if a similar case to Livingstone was heard by South Australian courts then the relevant Council may also be found to be liable in nuisance and or negligence.

Relevantly, section 245 of the Local Government Act 1999 (SA) provides a qualified immunity for Councils in respect of damage resulting from street trees. It provides that a Council is not liable for any damage to property which results from the planting of a tree in a road or the existence of a tree growing in a road (whether planted by the Council or not). However, if the owner or occupier of property adjacent to the road has made a written request to the Council to take reasonable action to avert a risk of damage to property of the owner or occupier from the tree, and the Council has failed to take reasonable action in response that that request, the Council may be liable for any damage to property that would have been averted if the Council had taken reasonable action in response to the request.

What will amount to “reasonable action” will depend upon the circumstances of each case. We recommend that a Council should obtain independent advice to assist it in determining what action it will take, and more particularly what action might be ‘reasonable’ in the particular circumstances. Other relevant factors for consideration may also include the probability and seriousness of damage to the property when weighed against the cost of avoiding the damage. Naturally, any individual claim for damages in relation to a Council street tree should be referred to the Mutual Liability Scheme for its consideration and action.

If you would like any assistance with matters concerning street trees, please contact Rebecca McAulay on +61 8 8210 1278 or rmcaulay@normans.com.au, or Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au.