The Council of the City of Grafton v. Musall & Anor [2001] NSWCA 228

The Council of the City of Grafton v. Musall & Anor [2001] NSWCA 228 - NSWCA 2001 case summary — Zoe

[12]

Trees of this size (the species can grow to about 30 metres) and rapid growth rate are inappropriate for planting so close to footpaths or other similar public amenities. In this case, the trees are as close as 2 metres from the footpath. Under such circumstance the very real likelihood is that the aggressive root behaviour will result in damage to structures close to the trees and as a result public safety may be put at risk. This has clearly been the case in this instance. 8 Evidence was also given by Mr. Locksley, who had been manager of the shopping centre for some years, that in 1996 he observed Mexican Fern Trees lifting concrete slabs, albeit not in the area where the plaintiff was injured. He approached a Council officer to see whether the trees might be removed, but the officer said that they should not be removed but trimmed. The response is to some extent explicable in that the main concern of Mr. Locksley in approaching the Council at that time was the tendency of these trees to drop sticks on people and cars. 9 The primary judge found both the Council and McConaghey Developments liable in negligence. 10 As regards the Council, the primary judge found that the tree committee of the Council saw the trees, including the tree which caused the step over which the plaintiff fell, in position; that there was a final inspection on behalf of the Council at a time when the trees were in position; and that the Council had approved what had been done. The primary judge referred to s.310 of the Local Government Act 1919 (repealed during the 1990s), in the following terms: Buildings to conform to Act and ordinances. Subject to the provisions of this Act and of any ordinance, every building hereafter erected in the area shall be erected to the satisfaction of the Council (a) in conformity with the ordinances and (b) in conformity with the application, plan and specifications in respect of which the Council has given its approval for the erection of the building. 11 The primary judge held that the Council was negligent in permitting the trees, including the offending tree, to be planted and to remain in that position, so as to create the danger. 12 As regards McConaghey Developments, the primary judge found that they were negligent in planting the trees not in accordance with the landscape plan, and in allowing them to remain there, even though McConaghey Developments knew that the trees were likely to lift the slabs.

[29]

Q. When the final inspection was made were those trees in situ? A. Yes. 19 However, Mr. Maconachie pointed out that when it was put to Mr. Simons that the most relevant trees were planted otherwise than in conformity with the landscaping plans that the Council had approved, Mr. Simons accepted that the trees might have been planted at some later time, after the project had been completed. 20 Mr. Maconachie submitted that, although s.310 of the Local Government Act imposed a duty on Council to be satisfied that a development was to be in conformity with the approved plans, the manner in which the Council was satisfied and the level of satisfaction was a matter within the discretion of the Council: see Sutherland Shire Council v. Heyman (1984-5) 157 CLR 424 at 455-7. There was no liability in negligence for failure to exercise a power, except in circumstances where there was a duty to exercise the power: see Graham Barclay Oysters Pty. Limited v. Ryan [2000] FCA 1099 par.231. 21 Mr. Maconachie submitted it was mere speculation whether the offending trees were in position at the time of any Council inspection; and that in any event, there were hundreds of plants in the development, including fifty-eight Mexican Fern trees, each about one metre high; so that it could not be reasonable to expect the Council to have inspected and ensured that every one of the hundreds of small plants were precisely in conformity with the approved plan. 22 Mr. Maconachie submitted that the fact that Council had approved the planting of Mexican Fern Trees near paths within the development was irrelevant: it was up to the developer to ensure that those trees did not give rise to danger. The relevant concern of the Council would have been limited to ensuring that the trees did not cause a danger by affecting the public footpath. Furthermore, Mr. Maconachie submitted that any approval given by the Council was too remote from the event causing the plaintiff's injury: it was inappropriate to find negligence by using hindsight based on an accident occurring twelve years later. 23 In response to a suggestion that a Jones v. Dunkel inference was open because the Council did not call any evidence, Mr. Maconachie submitted that the consultant's report tendered by the plaintiff showed that the Council had no more material bearing on the question; so that no Jones v. Dunkel inference was open. 24 Mr. Maconachie submitted that there was no basis for finding any later negligence by the Council. No such later negligence was pleaded. There was no evidence that the existence of the danger giving rise to the accident was notified to the Council. There was no identification of any relevant power that the Council should have exercised, in relation to trees within the shopping centre property. There was no basis for finding a duty to exercise any such powers.

[30]

DECISION 25 In my opinion, as accepted by Mr. Murray QC for the plaintiff, the case against the Council must stand or fall on whether the Council was negligent as at the time of the carrying out of the development in 1987 to 1988. I accept Mr. Maconachie's submission that the primary judge's finding that in 1996 Mr. Locksley observed the step over which the plaintiff tripped was erroneous; but that error does not affect the case in relation to alleged negligence of the Council back in 1987 and 1988. 26 In my opinion, it was open to the primary judge to find that the Council did carry out a final inspection at the conclusion of the development. Such final inspections are usual, and Mr. Simons gave evidence that a final inspection was carried out. In addition, in my opinion the inference is open that there was an inspection by the tree committee of the Council in about July 1988, at a time when landscaping work was complete. 27 In my opinion also, it was open to the primary judge to find that the offending tree was in place at that time. I am doubtful if the evidence of Mr. Simons, on its own, could justify such a finding: although, in response to a leading question, he gave very general evidence that the trees had been planted at the time of the Council's final inspection, his lack of knowledge of the fact that the offending tree was not planted in accordance with the approved plans, and his acknowledgement that it may have been planted subsequently, means that little if any reliance can be placed on it. On the other hand, in my opinion there is a probability that the landscaping, which involved the planting of fifty-eight Mexican Tree Ferns, was carried out as substantially one project at the time of the development, and Mr. O'Neill, in his report, expressed the view that the offending tree had been planted at the time of the development. It is possible that not all the trees that were planted survived, and that there was some supplementary planting at a later date; but in my opinion it was open to find, on the balance of probabilities, that the offending tree was planted as part of the original landscaping project. 28 In my opinion also, there is not in this case, as in Heyman and the Oyster case, a question whether the Council should have bestirred itself to exercise powers. Rather, in this case the Council was actively involved in the formulation and supervision of a landscaping plan. Mr. Simons gave evidence that there was a Council requirement to have a fast-growing tree to blend with the high walls of the shopping centre, and that the Mexican Fern Trees were selected for that reason. In my opinion, in pursuing its active involvement with the formulation and supervision of the landscaping plan, the Council could not disregard questions of public safety. 29 In my opinion also, it was open to find that the Council's active involvement in the planting of some fifty-eight Mexican Fern Trees, some in the vicinity of concrete paths, was in a general sense negligent, having regard to the potentiality of these trees to cause paths to become dangerous, and that this meant the Council should have been particularly concerned to ensure that no such trees were placed in the vicinity of a public footpath where they could cause a public footpath to become dangerous. 30 In those circumstances, while there is some force in the submission that it is putting too high a standard to require a Council to ensure that no one metre high Mexican Fern Tree, out of a total of fifty-eight, was in the wrong place, and that a finding of negligence is really based on hindsight from an accident occurring twelve years later, I do not think an appealable error is shown in the finding of the primary judge that the Council breached a duty of care to the plaintiff in permitting the offending Mexican Fern Tree to be planted where it was. 31 For those reasons, in my opinion the appeal should be dismissed with costs. 32 DAVIES AJA: I agree with Hodgson JA. 33 GROVE AJA: I also agree with Hodgson JA. *********

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Judgment (31 paragraphs)

Cases Cited (5)