Can’t see the wood for the trees – part 2

In our March 2018 newsletter we discussed the District Court case where the Queenstown Lakes District Council was found not responsible for damage to motel units caused by a falling tree located on a council reserve.  The motel owner has now successfully appealed that decision to the High Court, which found the council liable for the damage the tree caused (Plaza Investments Ltd v Queenstown Lakes District Council).  Stand by for part 3 as we understand the council is currently considering an appeal.  Read on for important learnings from this decision.

This is a tough decision for councils.  It is hot on the heels of another tough decision where the Gisborne District Council was found responsible to a landowner in relation to a fire that started in pampas grass on the council’s land (deliberately started by an unknown third party) and then spread to the plaintiff’s land causing widespread damage.


Summary of the District and High Courts’ findings

The District Court had found no liability for the Queenstown Lakes District Council for the damage to the motel units, concluding that the council owed a duty of care to undertake inspection and maintenance of the trees on the council’s reserve, but that it had not breached its duty as the steps it had taken were reasonable.

The case was successfully appealed to the High Court, which found the council responsible for the damage that the 30 metre tall 120 year old Lombardy poplar tree (the Tree) had caused to the motel units.  The council’s duty of care was stated by the High Court as a duty to take “reasonable steps” to prevent or minimise known hazards on council’s land from causing damage to its proximate neighbours.  The Court said this is an objective test – the question is whether the council took the same steps that a reasonable local authority with similar hazards, powers and resources would have taken in the circumstances.


The facts

A quick reminder of the important facts of this case – important because the facts determined for the High Court whether the council had acted “reasonably” to prevent or minimise known hazards on council’s land from causing damage to its proximate neighbours and whether the council’s actions/omissions caused the Tree to fall.

During high winds on 17 January 2014 the Tree snapped just above its root crown.  The Tree landed partly on the road and partly on the plaintiff’s motel, damaging the eastern end of the motel units, its signage, a garden and some cars.  It was accepted that the total cost to repair the damage was $63,577.72.

The Tree was one of a group of tall Lombardy poplars in the reserve, scheduled as heritage trees in the District Plan in view of their historic significance and contribution to the amenity values of the reserve.  In 2004, a similar tree fell in the reserve, landing on an abandoned car.  Other trees had been felled by the council on advice of arborists, due to their poor state and the potential safety hazard they posed.  In 2009 two trees fell on Queenstown’s Lower Shotover Road, one of which killed a person.

After the Tree fell on the motel in 2014, inspection of the Tree revealed its heart was significantly compromised by white rot in the vicinity of the break.  A central matter of dispute concerned whether the council employed an appropriate method of inspection and testing of the Tree prior to its fall.

The different methods of testing discussed in the case were:

  1. Visual tree assessment, which does not involve intrusion into the tree trunk. This involves visual examination by a trained arborist for any relevant visually evident changes that could be an indicator of the tree’s health and condition; and
  2. Internal methods of testing that, if used, would be typically used in conjunction with visual testing such as “a picus tomograph” involving mechanical intrusion through the bark to test the relevant part of the heart wood or “resistograph” involving driving fine needles into the heart wood to locate and graph areas of decay, hollows, cracks, ring structure and other possible structural integrity issues.

In 2005 and 2007 the council’s contractors undertook internal testing of the trees in the Park.  The 2007 tests identified that the Tree had “dozy timber” but the report writer did not recommend any of the trees in the reserve be felled.  Following the 2007 testing, the council decided that it would carry out regular visual only inspections of the trees in the reserve as part of its regular tree maintenance programme.

No further internal testing was carried out between 2007 and when the Tree fell.  However the last arborist’s visual inspection was four months before the Tree fell on the plaintiff’s motel.  The council’s record of this last inspection recorded the Tree as presenting to the council’s contractor as one of the better specimens in the reserve.


What is the council’s duty of care?

The Court considered that the District Court had incorrectly “narrowed” the council’s duty of care to inspection and maintenance of trees only.  The High Court expanded the duty to include taking reasonable steps to prevent or minimise known hazards on council’s land from causing damage to its proximate neighbours.

The High Court accepted the District Court was correct in defining the standard of care the council should have met as objective, being what a reasonable local authority in the council’s position in 2014 would have done.  But “the reasonable local authority” against which the council ought to be measured had to have similar hazards (i.e. veteran trees with known defects and risk), powers and resources.

The Court said that the council would have satisfied its duty of care to manage risks on its own land had it annually monitored its aged poplar trees for decay or decline including internal testing from time to time.


Did the council breach its duty of care?

The key consideration for the High Court in deciding this question was whether the adherence by the council to its District Tree Policy was reasonable when managing “high risk trees”.

The Court accepted that adherence to the District Tree Policy may be suitable for the care and control of trees generally.  However aged poplars were a known hazard to the council.  Despite this the District Tree Policy did not address how the council ought to prevent or minimise the risk such trees posed.

Adherence to its own District Tree Policy without doing more to manage trees that were a known risk was a not a “get out of jail free” card for the council.

What should the council have done to properly manage the risks arising from the veteran Poplar trees?

The High Court criticised the District Court’s approach to both the factual and expert evidence and disagreed with the conclusions reached.

The High Court after reviewing the evidence concluded that there was only one detailed record (from 2010) of visual inspections for each tree carried out after 2007.  Without more the Court said that the visual inspections were inadequate to test for decay and fell short of meeting the council’s duty to assess real risk.  In reaching this conclusion the Court said that the 2007 testing and report recommended annual monitoring and identified that the Tree was “dozy” (i.e. had early decay).  Importantly, the council was also well aware of the risks these types of trees posed in its area.

The Court pointed out that the council had carried out internal testing in 2009 to similar trees in another area and this exercise should have demonstrated to the council the probative value of internal testing vs. visual inspections.

The Court said that, had the council taken reasonable steps to minimise the risks associated with the aged Poplar trees (including the Tree), the Tree’s decay most likely would have been detected and its fall prevented.


The learnings – key points to note

If there are trees with known defects on council land that could cause damage to neighbouring properties, those known hazards need to be managed commensurate with the relevant council’s powers and resources.  Adherence to any particular council policy (in this case the District Tree Policy) alone will not be enough where the policy is drafted in general terms and focuses on general maintenance and inspection but does not specifically manage known hazards (here, trees with known defects).

What are your known risks on council land?  Pampas grass?  Veteran poplars?  Something else entirely?  This decision is a reminder that the High Court will likely find the council responsible if it does not proactively manage known risks on its land, including to ensure that the known risks do not cause damage to adjoining land.

If the council is relying on existing policies to manage known risks, we recommend that the council reviews its policies to confirm they are up-to-date and expressly set out how known risks are to be actively managed.  Policies should not be generic.  They need to recognise and address specific known hazards and risks.  Once councils have confirmed their policies are robust, then they need to ensure that the policies are adhered to and that their adherence is well documented and accessible for others to check.

If you have any concerns about your policies, give us a call – we are experienced in assessing councils’ regulatory compliance and will be able to assist to ensure your council is in the best possible position if the worst should happen to show it acted reasonably in the circumstances.

Related news

Rice Speir Radio

Kia ora everyone and welcome to episode 16 of Rice Speir Radio, coming to you live from day 1 of Level 3 here in Tamaki Makaurau. For anyone new to the show, we are a Podcast that focuses on all things local government. I’m your host, Nathan Speir, and I am Managing Partner of Rice Speir, a…

Mental health and the work place – Tales & Tools workshop

The recent Covid outbreak is taking a toll on all of us – on top of the demands we’re already facing. For many of you, working in local government has never been tougher. Email has meant that everyone is accessible 24/7.  Social media allows ratepayers to send their criticism directly – and without filters. In…

Is the Council once again the last party standing? Maybe not, says the High Court

The High Court has allowed more time for parties involved with defective buildings to be joined into claims – even after the expiry of the 10 year limit. It is a helpful decision for councils, which often find themselves to be the “last party standing” in defective building claims. Background The BNZ building in Wellington…