Council Duty To Minimise Hazards On Land

Keith Catran

Consultants

Consultant

Phone: +64 7 927 0524
Email: kcatran@clmlaw.co.nz

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Master of Arts (Hons), Bachelor of Law (Hons), University of Auckland

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A recent High Court case has re-visited the potential liability of local bodies for damage caused by hazards on Council land to other property. The case involved a very old large Lombardy poplar in a Queenstown park, which suddenly fell in high winds onto a nearby motel.

The District Court had found the local body owed a duty only to act as a reasonable local body would, bearing in mind its resources and knowledge. In this case the court found it had done so.

The High Court disagreed. It said that, as with any other landowner, where there was a known hazard, Council owed a duty to take reasonable care to prevent or minimise damage to neighbours from that known hazard. Merely being a ‘reasonable Council’ is not the test. It had to manage its known hazard to avoid or reduce damage to others.

Here, there was a known risk with aged Lombardy poplars (they rot internally) and Council had experienced prior poplar falls (including one fatal one). It had received arborist advice over the years to monitor these trees closely, including internal testing, and had a recommendation to undertake a poplar felling and replacement plan. It had done some monitoring, including visual inspections, but it was found to be not commensurate with the type and extent of known risk. Following Council’s own Tree Policy was not much help, because it addressed tree maintenance, not risk management.

The duty of care applied by the court, to avoid known risks causing damage to neighbours, is a general duty and not limited to trees. It applies to all foreseeable risks arising on Council land. A similar outcome occurred within the past 2 years with long grass on Council land. The land was along a railway corridor and children set fire to the grass (which was seen as reasonably foreseeable). Council’s failure to minimise the fire hazard by cutting the grass led to it being liable when a nearby timber yard burned down.

There are limits on a Council’s civil liability to citizens when the Council is carrying out a statutory function as a public body which involves a policy or quasi-judicial element. But that is not the case when the Council is sued just as a landowner. Then, the message is, its potential liability for damage caused by negligence or nuisance is the same as any other landowner. Council’s neighbours are entitled to rely on Council to be a ‘good neighbour’.