Local Government Association Tree Inquiry

Transcription

1 Local Government Association Mutual Liability Scheme Local Government Association Tree Inquiry The LGAMLS Board agreed to fund the LGA (SA ) Independent Inquiry Into Management of Trees on Public Land, following a submission received from the LGA, in June The following information paper is provided in response to the Inquiry Board s request for the LGAMLS to provide comment to the Issues Paper from the LGAMLS perspective (as opposed to a Council s perspective). Background The LGA in conjunction with the LGA Mutual Liability Scheme (LGAMLS) proposes to conduct an independent review into the management of trees located on land under the care and control of Councils. The purpose of the inquiry is to provide independent advice to the LGA on the most appropriate future management regime for trees on public land taking into account current and possible future changes in climatic conditions. Councils (and the LGAMLS) have recently experienced a surge in the number, and associated costs, of incidents/claims where trees on public land have caused damage to property and people, including some with fatal consequences. The recent planning forum held by the LGAMLS Board identified trees and tree management as one of the most significant emerging risks for Councils and the MLS. It is suggested that the long period of severe drought conditions has increased the risk of tree damage and future predicted variations in climatic conditions will exacerbate this situation. However, trees are also an important, valued asset and trees on Council managed public land (especially footpaths and road verges) present a particular challenge to achieve a balance between environmental and public safety considerations. Proposed Scope of the Review The following dot points set out the proposed scope of the project, including the establishment of a panel of qualified persons to assist to undertake an independent review: Collate and prepare a background paper identifying the current issues associated with the management of trees on public land in urban, peri-urban and rural environments; Provide advice on the implications for tree health and future tree management based on relevant scientific analysis of the: actual experience of the recent drought conditions in SA; predicted future changes in climatic conditions. Provide comments on any implications for the owners of trees on private land arising from the scientific analysis within the current legislative framework relevant to tree management; Provide comment on the financial value of trees in context of Council assets. Identify (and where possible quantify) the liability issues for Local and State Governments arising from the scientific analysis; Provide advice on the range of community attitudes on the role of trees on public land, especially footpaths and roadsides, in terms of amenity, biodiversity, public safety and other relevant factors;

2 Review the current guidelines for tree selection, planting, location management and removal for Councils (and other public authorities where relevant) and make any recommendations for change taking into account the findings of the investigation; Make recommendations for legislative change required as a result of the investigations, Make recommendations of the development of a Trees in the Public Landscape policy for consideration by the LGA and possibly the State Government; Identify the possible resource implications for Councils arising out of any findings and recommendations; and Make recommendations on any public/community education and information that should be developed regarding trees on public (and private) land.

3 The LGAMLS Perspective In analysing the LGAMLS data for the past decade (June 2000 to June 2010), there has been a significant increase in (minor/severity type) claim numbers compared to the same period for the previous decade. This trend is expected to continue into the 2010/2011 financial year in keeping with previous trending. This noticeable increase is attributed to tree related claims. (**Note: the scale of the Y axis (number of claims) differs between each graph) M e tr o T r e e C la im s - ( ) $ 4 0 0, $ 3 5 0, $ 3 0 0, $ 2 5 0,0 0 0 Number $ 2 0 0,0 0 0 $ 1 5 0,0 0 0 Costs $ 1 0 0, $ 5 0, T r e e R o o ts T o t a l T r e e B r a n c h e s T o ta l O t h e r T r e e T o t a l $ - N o. C lm s C a u se C o s ts M e tro T re e C la im s - ( ) $ 1,6 0 0, $ 1,4 0 0,0 0 0 $ 1,2 0 0, $ 1,0 0 0,0 0 0 Number $ 8 0 0,0 0 0 Costs $ 6 0 0,0 0 0 $ 4 0 0, $ 2 0 0, Tre e Roots Tota l Tre e Bra nc he s Tota l Othe r Tre e Tota l $ - Ca u se No. Clm s Cos ts

4 The extreme weather patterns have had a significant effect on tree behaviour. There is a marked increase in claims resulting from random tree bough/branches falling mainly causing property damage (fences, parked cars, sheds, dwellings) but not forgetting the tragic death of a 20 year old motorist struck by a falling gum branch on Greenhill Road, January For the majority of these claims, Councils are able to rely on the immunity contained within S245 of the Local Government Act 1999, which states: LOCAL GOVERNMENT ACT SECT Liability for injury, damage or loss caused by certain trees (1) A council is not liable for any damage to property which results from (a) (b) 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). (2) However, if (a) 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 (b) the council has failed to take reasonable action in response to the 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 Added to this is an increase in trip/fall (minor personal injury) claims on footpaths due to aggressive and encroaching tree roots which impact on the footpath surface, causing unusual trip/fall hazards. For the majority of these type of claims, Councils are able to rely on the immunity contained within S42 of the Civil Liability Act 1936 (amended May 2004), which states CIVIL LIABILITY ACT SECT Liability of road authorities (1) A road authority is not liable in tort for a failure (a) to maintain, repair or renew a road; or (b) to take other action to avoid or reduce the risk of harm that results from a failure to maintain, repair or renew a road However, while the claims are capable of being managed economically, the extreme weather events are having a marked effect on Councils risk management programmes, budgets and availability/allocation of resources. This is consistent with reactive risk management as opposed to proactive risk management. In conjunction with the management of trees, Councils are relying more on rapid response units to attend damage sites. This has a flow-on effect on the overall management of maintenance programmes and budgets. The issues of programmes, budgets, resources, costs, staffing and OHS issues continue to be identified risks within the Climate Adaptation programme. The capacity for Councils to continue to deliver and manage statutory service and functions, in an evolving legislative framework is eroding. This has impacted on local government s risk profile despite the positive risk management culture that Councils continually commit to.

5 Extreme Weather Events: Bushfires, floods, increased periods of higher temperatures, extreme storm events while these events are naturally occurring, a Council s failure to properly prepare for and manage the implications of extreme weather events will continue to attract costly liability claims. With the emphasis on proactive risk management, the development of the Climate Adaptation and Risk programme has greatly assisted the LGAMLS approach to developing supporting guidelines and checklists. The Local Govt Act 1999 sets out a Council's duty of care toward public safety. In order to discharge this duty a Council has to take reasonable steps. When considering what is reasonable, factors such as available resources, costs, funding, governance, existing policy/management plans, other legislation has to be taken into account. While consistency is encouraged, every Council will develop its own risk management plan based on its own local resources. Asset & Infrastructure Management: Failure to properly manage and maintain current assets and/or develop appropriate infrastructure will be costly and impact on public safety, increasing liability risks. Again, the Adaptation programme has identified that the failure of vulnerable assets such as roads, footpaths, jetties, buildings, signage, trees, community halls, stormwater systems, etc due to extreme weather events will be significantly hastened by extreme weather events. Identification via a risk register for the purpose of future development, maintenance, resourcing, funding and public safety has been assisted via the Climate Adaptation programme. Treating trees as assets when does an asset become a liability with respect to trees? Tree Management: Tree management continues to be a complex and costly issue for Councils to deal with. The current change in climatic conditions has resulted in trees being aggressive in the pursuit of water, heat relief and good health. The implication of trees slumping into rivers and creeks, random shedding of large healthy boughs, aggressive and unusual root activity acting and (emotive) community expectations regarding tree management generally has already attracted large numbers of risk and claim related matters. Management of significant trees continues to be difficult, as emotive community issues play against Councils management of significant trees due to the Development Act. Coastal Management: Again, extreme weather events and natural erosion continue to deteriorate the stability and safety of coastal areas. In particular, Councils responsible for hundreds of kilometres of coastline (D/C Elliston, D/C Streaky Bay, City of Pt Lincoln, City of Onkaparinga) face huge costs in maintaining and managing the changing environment while balancing tourism, public safety, economic development, available funding, asset management, Natural Resource Management, Coastal Management plans, coastal protection, Native Vegetation Council. Coroner s Office On 10 January 2010, the LGAMLS was notified of a tragic incident that is likely to be the subject of a Coroner s Inquiry (dates to be notified). Ms Rebecca Jolly (dec) & City of Burnside 9/1/2010 Vehicle Struck by Falling Tree Branch, Greenhill Road, Driver sustained fatal injuries Council has been contacted by SAPOL and have been requested to provide specific information, pursuant to a Coroner s Direction, relevant to the area, cause and circumstances of the accident, in order that the Coroner s Office is able to make a determination as to whether or not an Inquest should be held. In this matter, the inquiries are directed primarily to tree maintenance programme, arborist reports and recent resident complaint specific to tree lopping issues.

6 Legal Framework for Public Authorities Trees on public land and roads are living organisms which exist either as a result of natural environmental causes or by human introduction. Common Law Public authorities are subject to the same laws as private bodies and individuals except where modified by legislation (see below). However, duties owed in relation to trees will vary significantly depending on the actual circumstances. There are clearly different circumstances impacting on a public authority (such as a Council) compared to a private person (such as a home owner) or a commercial entity. Negligence Councils owe a general duty of care to act reasonably to minimise, reduce, alleviate or warn of risk of harm or damage which is reasonably foreseeable. If an authority fails to act reasonably then it may well be in breach of duty. Acting Reasonably Australian courts have long applied and restated four factors directly relevant to whether there has been a breach of duty, summarised as follows: 1. the magnitude of the risk what is the nature and extent of the risk? Minor or substantial? property damage personal injury 2. the likelihood/probability of occurrence of the risk past incidence of risk incidence of risk at other similar locations 3. the expense, difficulty and inconvenience of taking alleviating action cost and effectiveness of available measures physical difficulty of performing works available human, financial, structural resources the scope of necessary action 4. any other conflicting responsibilities community expectations Council policy legislative limitations competing budgetary demands

7 Examples of Australian cases considering duties of public authorities in managing trees include: Plaintiff severely injured when vehicle collided with unstable tree which had fallen during windstorm from verge across (NSW) Council road; The scale of the task of identifying and removing trees at risk of falling was well beyond the resources of the Council, and reactive system of maintenance was sufficient. Claim against the Council dismissed. Dungog Shire Council v Baggage [2004] NSWCA 160 Plaintiff severely injured when (Vic Council) reserve tree fell onto Plaintiff camper and friend without warning; Danger of death or injury from falling trees or limbs in high winds is obvious and can occur randomly. Such risk is endemic of the Australian outdoors. Claim against the Council dismissed. Secretary to the Department of Natural Resources v Harper [2000] VSCA 36 LEGISLATION The legislative functions of South Australian Councils include environmental management which, in turn, includes management of public land and roads within the Council area. Council functions also include taking measures to protect and mitigate effects of natural and other hazards. Local Government Act 1999 Councils have broad legislative powers to perform statutory functions. Councils have no specific statutory obligation to manage trees on public land in any particular way with the exception of a requirement to consider whether proposed planting of vegetation on a road is appropriate to a proposed site.i Section 244 of the Local Government Act reflects the broad common law principles of negligence and nuisance in providing that: (1) A Council is only liable as an occupier of community land for injury, damage or loss that is a direct consequence of a wrongful act on the part of the Council.ii Section 245 of the Local Government Act expressly provides that: (1) A council is not liable for any damage to property which results from not). (a) (b) the planting of a tree in a road; or the existence of a tree growing in a road (whether planted by the council or (2) However, if (a) (b) 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 to the request,

8 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. Other Legislation Further statutory provisions impacting on the care and management of trees include: Development Act 1999 and Development Regulations a person (including Council) can only damage a "significant" or "regulated" tree (as defined in the legislation) with development approval under the Act.iii Electricity Act 1996 as to clearance around public powerlines (in limited circumstances).iv Natural Resource Management Act 2004 as to control of prescribed plants.v Native Vegetation Act 1991 limits clearance of "native vegetation" as defined in certain locations.vi Civil Liability Act 1936 reflects common law principals of negligence as outlined above. DEVELOPMENT ASSESSMENT Councils are not only statutory authorities vested with care, control of management of trees under the Local Government Act, councils are also development assessment Authorities under the Development Act In that role, councils assess the merits of applications to remove or "damage" (as defined) "significant trees". In doing so councils have a positive statutory obligation to strictly apply the criteria set out in the Development Act and Regulations and the Council's Development Plan. Councils are obliged to adhere to the statutory framework and to act reasonably in discharging the duty of care (as outlined above). i Local Government Act Section 232 ii Local Government Act Section 244, Subsection 2 limits the application of that Section in that it has no application to Council's liability as an occupier of a building or artificial structure on community land. iii Development Act 1993, Section 4, Regulation 6A iv Electricity Act 1996, Part 5 v Natural Resource Management Act 2004, Chapter 8 vi Native Vegetation Act 1991 September 2010