A Council's Duty of Care for Known Hazards


Introduction

Plaza Investments Ltd v Queenstown Lakes District Council is a High Court decision regarding a tree that fell in St Omer Park 2014 (the Park), causing extensive damage to a motel property located across the road. Justice Cull held that the Queenstown Lakes District Council (the Council) had breached its duty of care to Plaza Investments Ltd by failing to prevent a rotting Lombardy poplar tree (the Tree) falling onto their motel. The High Court ultimately held the Council liable in negligence for the sum required to repair the motel property.

The Council had known the Tree and others in the Park were a risk since 2005, when a report recommended that inspections on further decay, including internal testing, would need to occur regularly and a felling programme implemented. Despite these recommendations and subsequent reports in 2007 and 2009, the Council only carried out visual inspections. When the Tree fell, it was found that there was significant white rot damage to its roots and base, making the wood soft and vulnerable to bad weather.

The High Court clarifies a council’s duty of care for known hazards on its land and highlights that careful consideration should be given to steps to prevent or minimise damage to proximate neighbours from known hazards on land controlled by councils.


Defining the Duty of Care

Justice Cull held that a council, as a landowner, has a duty to take reasonable steps to prevent and mitigate against known hazards on its land.

In the District Court, Judge Hansen restricted the duty of care on the Council to inspecting and maintaining trees in the Park, on the basis of the Council’s District Tree Policy (the Policy). However, Justice Cull held that council policies cannot limit a council’s duty. Rather, the question is whether abiding by the Policy meant the Council had discharged its duty of care.

That was not the case here. The Policy’s purpose was to maintain trees generally, with a particular focus on heritage. When a tree becomes a risk, the Policy recommended it be taken down. Other than this, the Policy did not address health and safety issues for the public or property and further, did not focus on how to prevent or minimise danger in the Council’s retention of mature poplar trees on its land. Therefore, simply following the Policy and maintaining trees was not sufficient for the Council to discharge its duty to control risks associated with veteran poplar trees.


Standard of Care

The High Court also held that there were problems with the District Court Judge’s reasoning and findings on the applicable standard of care. Justice Cull found that that the Judge had failed to apply the standard of care required by a reasonable Council with similar risks and had failed to apply an objective standard of reasonableness on the Council.

In the District Court, the arborist giving evidence for the Council attested that what he experienced the Council doing was consistent with what he saw other authorities do and that in his experience visual assessments were the most commonly relied on practices of all councils for assessing large tree populations under their care. Judge Hansen accepted this evidence. However Justice Cull found that there was no evidence that the other councils referred to by the Council’s expert had to manage over-mature poplars, with known potential defects and risks. Therefore, Justice Cull found that the other councils’ standard was not the applicable standard of a reasonable local authority in the Council’s position.

The Court held that objectively, the standard of care on the Council is to take such steps, that a reasonable authority with similar hazards, powers and resources, should have taken in the circumstances.


Breaching the Duty of Care

Of particular relevance to Justice Cull’s finding, that the Council had breached its duty of care in relation to known hazards on its land, were the following facts:

  • In 2005, the Council was alerted to the fact that overly mature Lombardy poplar trees were at risk of basal decay, and trees in the area had found to have decay already.
  • Based on these findings, a report recommended to the Council that they regularly carry out internal inspections on these trees (including the Tree) and implement a felling programme. Despite these recommendations, the Council only undertook visual assessments of poplar trees in the Park from 2007 onwards.
  • The Council knew that visual assessments could show significantly different results to internal testing as, in 2007, both assessments were undertaken on poplar trees in another area and proved how different results could be produced by different tests.
  • Three other Lombardy poplar trees had fallen since 2004, one causing a fatality.
  • The Tree was old, shown to have signs of decay and given its exposed position, would be vulnerable to strong winds and stormy weather.
  • When the Tree fell, it was clear that internal testing would have more than likely have identified the extent of the white rot damage.

In the decision Justice Cull also noted that councils can be constrained by their budgets. In some circumstances, only undertaking visual testing may have discharged the duty if it was clear that it was the best use of a strained resource. However in this case, there was no indication from the Council that they had financial constraints that did not allow them to undertake more extensive testing.


Considerations for Councils

The High Court decision highlights the particular care councils should take when dealing with any form of known hazards on land they control, to ensure that they do not breach their duty of care. In particular;

  • Council policies cannot change the duty a council has to take reasonable steps to prevent and mitigate damage to proximate neighbours from hazards on their land. Therefore, it is important for councils to properly consider whether following council policies will be sufficient to discharge this duty where there is a known hazard, or if more care needs to be taken.
  • Where possible, councils should follow their own report recommendations as to what is required to manage a hazard or risk on their land, as these recommendations can provide the court with the basis of what a council needs to do to discharge its duty in relation to known hazards.
  • Following the example of other councils in respect of action to be taken will not necessarily satisfy the “reasonable authority” standard. The standard of other councils will only be relevant if those councils have the same or similar known risks.

Adderley Head advises and assists local government clients with issues relating to a council's duty of care. 


Disclaimer: This is a brief summary for information purposes only and is not legal advice

 

Posted on Wednesday 22nd August, 2018 at 10:36 am