Rhodes v Lake Macquarie City Council and another [2010] NSWCA 235

Rhodes v Lake Macquarie City Council and another [2010] NSWCA 235

The appeal failed because the Council's refusal to consent to removal of a healthy and stable native tree under DCP 43 was not shown to be unreasonable, still less so unreasonable that no council could consider it a reasonable exercise of its functions or powers. The Housing Corporation breached its duty of care by not providing the Council with information it had about previous damage and injury caused by the tree, but causation was not established because the evidence did not show that the Council would have made a different decision if told that history, and without Council consent the tree could not lawfully be removed.

Jurisdiction
Australia
Judgment Date
13 September 2010
Procedural Posture
Tort Negligence Personal Injury Appeal / Appeal From District Court Decision of Puckeridge DCJ Dated 8 May 2009 Giving Verdicts for the Respondents
Outcome
Appeal dismissed with costs.
Legal Topics
['injury From Falling Tree Branch' 'tree Preservation Consent' 'breach of Duty by Council' 'breach of Duty by Lessor' 'causation' 'civil Liability Act 2002 Ss 5 B, 5 D, 5 E, 43 and 43 A']
['tort' 'negligence' 'public Authority Liability' 'civil Liability' 'landlord and Tenant'] ['injury From Falling Tree Branch' 'tree Preservation Consent' 'breach of Duty by Council' 'breach of Duty by Lessor' 'causation' 'civil Liability Act 2002 Ss 5 B, 5 D, 5 E, 43 and 43 A']

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Procedural Posture

Tort Negligence Personal Injury Appeal / Appeal From District Court Decision of Puckeridge DCJ Dated 8 May 2009 Giving Verdicts for the Respondents

Legal Issues

  1. 1 ['Whether the Council breached a duty of care, or acted unreasonably within the meaning of ss 43 and 43A of the Civil Liability Act 2002, by adopting and applying its tree preservation policy and refusing consent to remove the tree.' 'Whether the Housing Corporation breached its duty of care as lessor by failing to inform the Council of the history of property damage and injury from the tree, by relying on instability as the reason for removal, by not seeking review or appeal of the refusal, or by not providing overhead protection.' 'Whether the appellant proved that any breach of duty caused her injury.' 'Whether the primary judge erred in findings about whether the appellant was struck by deadwood and whether the tree had been properly pruned.']

Ratio Decidendi

The appeal failed because the Council's refusal to consent to removal of a healthy and stable native tree under DCP 43 was not shown to be unreasonable, still less so unreasonable that no council could consider it a reasonable exercise of its functions or powers. The Housing Corporation breached its duty of care by not providing the Council with information it had about previous damage and injury caused by the tree, but causation was not established because the evidence did not show that the Council would have made a different decision if told that history, and without Council consent the tree could not lawfully be removed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']