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NT Is Council Liable Under Tort of Public Nuisance?

Discussion in 'Property Law Forum' started by SDSPerth, 23 May 2016.

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  1. SDSPerth

    SDSPerth Member

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    There are already answers concerning damage from a neighbour's tree.

    My question relates to damage from the roots of a council tree (on the road verge). They are within inches of my foundations.

    Council say they do not own the tree, it merely grows on land under their control.

    I am not sure the question of tree ownership is relevant. If the land in under their control, are they liable under the tort of public nuisance?

    Many thanks

    PS. I am in Western Australia.
     
  2. Rod

    Rod Well-Known Member

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    Me thinks your cause of action is as a private nuisance, not a public nuisance. You are concerned about damage to your private land and property, not your right to use or enjoy public land.

    The fact they didn't plant the tree is not relevant. Helps your case if you send a letter to the council pointing out the potential problem before damage occurs. And keep the letter somewhere safe, you might need it in 10 years time.
     
  3. Sophea

    Sophea Well-Known Member

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    Hi SDS Perth,

    You can take remedial action yourself and dig up the roots back to the boundary or fence line of your land. You just can't dig it up on the other side of your fence or poison the roots. However, you should send the council a letter setting out what the costs of root removal are, giving them copies of quotes for the work and give them an opportunity to fix the problem before you incur this cost and bill it to them. And, of course, keep a copy of the letter. Once they know of the problem they have responsibility for damage that results.

    There is not much info available in WA, however in know that in QLD, in cases where trees on council land are at risk of causing structural damage to a neighbouring house, and where there is a continuing nuisance of which the council knew, then it is reasonable for the landowner to recover remedial expenditure to remove the roots.

    However, you cannot carry out the remedial work without first giving council notice of the damage and an opportunity to avoid further damage by removing the trees. Under common law council can be liable for damage caused by intrusive trees growing on council land if they had knowledge of the problem tree for some time and failed to do anything. This is a matter of negligence more than nuisance and councils may be liable for damage or harm if found to be negligent in addressing it.

    I would send a letter of demand to the council outlining the above facts and providing a quote for the removal of the roots and see where you get.
     
  4. SDSPerth

    SDSPerth Member

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    Thank you guys so much. Yes I should have said private nuisance; not public....and certainly not pubic :).
     

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