In the course of beautification works around Melbourne, many local city Councils have planted and continue to plant trees on Council property. In some circumstances tree roots from these trees can cause significant damage to property. This is because Council tree roots can extract huge volumes of moisture from private soils under private property including under front fences, paving, footings, homes and structures generally. Large cracks can appear in homes as a result of instability to the foundations and footings and the cost of repairs can be significant.

However, as the invasion of Council tree roots onto private property and their extraction of moisture causing damage can be deemed at law to be an actionable “nuisance”, you may be entitled to compensation if you have suffered loss from Council tree roots.

Nuisance can be briefly described as a civil wrong whereby one person (or entity) has interfered with your enjoyment and use of your land or has interfered with its physical condition.

As your local Council owns the trees on Council property, it has a duty to take steps to eliminate the risk of damage caused by Council tree roots which is reasonably foreseeable.

While Victorian Councils may have some defences to a tree root claim, we are not aware of any Victorian Council case which has relied on these defences in any Victorian Court. Indeed it appears that Victorian Councils have attempted to settle these claims based on a 1998 Supreme Court decision which we believe is very claimant friendly.

What should you do?

If you have a large tree that is near your property that you think may cause, or has caused, damage, we suggest that you contact the writer for an introductory consultation concerning your legal rights against Council.

Depending on the information you provide us, you may have a right to commence legal proceedings to recover the costs of rectifying the damage and to compel your local Council to abate the nuisance, either by removing the tree or by installing a root barrier.

This article provides information that is general in nature and not a substitute for legal advice. Please contact RKL on (03) 9519 9888 if you wish to obtain legal advice for your personal situation.