Sarah Macky, PARTNER, HEANEY & PARTNERS. firstname.lastname@example.org
The case of the council tree that fell onto private property.
In the decision of Plaza Investments Limited v Queenstown Lakes District Council  NZHC 1925, the High Court reversed the District Court’s decision which found the council not liable for loss resulting from a poplar tree growing on the council’s park land falling into the plaintiff’s property.
In January 2014, high winds caused the over-mature poplar tree to snap from its root crown falling across the road and into Plaza Investment’s motel.
The council was sued in negligence as the poplar tree was on the council’s land and was under the council’s control.
In the District Court, the judge formulated the council’s duty to be one of inspecting and maintaining its trees.
Instead the High Court concluded that the duty should be one of the need to take reasonable steps to prevent or minimise known hazards on its land from causing damage to its proximate neighbours.
The High Court concluded that it was foreseeable that internal decay was a major risk for over-mature poplars in the park and it was probable a tree could fall, causing damage to neighbouring property.
This was because over-mature poplar trees on council land had fallen in previous years. In 2004 a tree had fallen in a park onto a parked car. In September and November 2009, two trees fell, one killing a person.
THE COUNCIL DID NOT FOLLOW ALL OF THE RECOMMENDATIONS.
The council had engaged experts to provide advice to it and make recommendations as to how the council should monitor the poplar trees in its control.
Three forms of testing were recommended. They were as follows:
• Visual tree assessment and hammer testing for sound;
• Picus Tomograph testing which is mechanical intrusion through the bark using sonic sensors which detects decay damage and cavities;
• Resistograph testing which is mechanical intrusion driving fine needles into the heart wood which measures drill resistance.
In January 2005 the council’s expert undertook Picus Tomograph testing of the trees in the park concluding that the trees appeared to be about 100 years old and were coming to the end of their lives. The recommendations in the expert’s report were that the council should regularly inspect the trees every six to nine months and should have an arborist inspect every 12 to 18 months and it should instigate a phased felling plan.
The council did not follow all of the recommendations in that it removed four trees but did not implement the phased felling plan.
The evidence revealed that between 2007 and when the tree fell onto the motel property in 2014, only visual inspection had been done by the council with no further Picus Tomograph testing or Resistograph testing or the phased felling plan being implemented.
The High Court was satisfied on the balance of probabilities that, but for the council’s omission to take the recommended steps of monitoring its aged poplar trees for decay or decline since 2007, the tree’s fall could have been prevented because Picus Tomograph testing or Resistograph testing would likely have found decay and the tree would have been removed.
The moral of this case is that councils should be careful to ensure that if they have adopted a policy of taking action in relation to performing any of their functions, they implement that action. If not, any claim made may be easier for a claimant to prove.
This article was first published in the November 2018 issue of NZ Local Government Magazine.