New South Wales Court of Appeal CITATION : The Council of the City of Grafton v. Musall & Anor [2001] NSWCA 228 FILE NUMBER(S) : CA 40776/00 HEARING DATE(S) : 23 June 2001 JUDGMENT DATE : 12 July 2001 The Council of the City of Grafton - appellant PARTIES : Betty Evelyn Musall - 1st respondent McConaghey Developments Pty. Ltd. - 2nd respondent JUDGMENT OF : Hodgson JA at 1; Davies AJA at 32; Grove AJA at 33 LOWER COURT JURISDICTION : District Court LOWER COURT 42/99 FILE NUMBER(S) : LOWER COURT Herron DCJ JUDICIAL OFFICER : Mr. J. Machonachie QC with Mr. H. Marshall for appellant COUNSEL : Mr. B. Murray QC with Mr. G. Petty SC for 1st respondent Mr. G. Parker for 2nd respondent Crameri Lawyers, Newcastle for appellant SOLICITORS : Pollack Greening & Hampshire, Grafton for 1st respondent Thompson Wheelahan & Hampshire, Grafton for 2nd respondent CATCHWORDS : LOCAL GOVERNMENT - Shopping centre development - Landscaping plan - Involvement of Council - Tree with aggressive roots liable to damage footpath - Whether Council responsible - TORTS - Negligence - Plaintiff trips on damaged footpath - Whether Council liable. ND LEGISLATION CITED : Local Government Act 1919 s.310 (since repealed) CASES CITED: Sutherland Shire Council v. Heyman (1984-5) 157 CLR 424 at 455-7 Greham Barclay Oysters Pty. Ltd. v. Ryan [2000] FCA 1099 par.231 DECISION : Appeal dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40776/00 DC 42/99 HODGSON JA DAVIES AJA GROVE AJA Thursday 12 July 2001 COUNCIL OF THE CITY OF GRAFTON V. MUSALL & ANOR. JUDGMENT 1 HODGSON JA: On 11th February 1999, the plaintiff tripped and fell on or near a footpath not far from an entrance to Grafton Shopping World, then owned and occupied by the second defendant (McConaghey Developments). The plaintiff brought proceedings claiming damages for injury caused by the fall against the first defendant (the Council) and McConaghey Developments. 2 On 1st September 2000, Herron DCJ found that the plaintiff's injury had been caused by the negligence of each defendant, and he gave judgment in favour of the plaintiff against each defendant in the sum of $268,233.40. The Council has appealed to this Court from that judgment. BACKGROUND 3 The plaintiff was born on 23rd March 1922, and thus was 76 at the time of the accident. Prior to the accident, she was walking along a concrete footpath in Duke Street, Grafton, adjacent to the Grafton Shopping World complex. The plaintiff attempted to walk on to a sloping concrete path leading from the footpath towards the shopping centre. It is clear that the plaintiff tripped over a small step that had developed between the footpath and the sloping concrete path, shown in a photograph taken just under a fortnight after the accident, and estimated in the evidence as being between 20 millimetres and 40 millimetres high. 4 The primary judge made no finding as to the height of the step, but he did find that it was a danger to persons using the path in the way the plaintiff used it, and indeed noted that the contrary had not been suggested to him. It was clear also that the step had been caused to develop by the roots of a Mexican Fern Tree planted in the shopping centre property a little over two metres away from the spot where the plaintiff tripped. 5 A report by a consultant engaged by the Council, but tendered at the trial by the plaintiff, provided the following history concerning the development and the planting of trees: In responding to this request, we provide the following history of approval: 1. Following the rezoning of the site, Council accepted lodgement of an application for a shopping centre, to be known as Grafton Shopping World, on the subject site at the corner of Fitzroy and Villiers Street, in early 1986. 2. The matter was reported to Council on 12 May 1986. The Chief Town Planner's report assessed that a total of 48 trees would be removed as a result of the project, but that significant replanting would be provided on site. It noted that the developer would be engaging a landscape architect, with the objective of integrating the complex with the surrounding area, and to effectively reduce the general impact of the development. 3. Development Consent No.86/25 was issued as a result of that meeting, with Condition 11 requiring the applicant to "provide detailed plans of landscaping of the development to be approved by Council, prior to the commencement of any landscaping". 4. A concept landscaping plan was submitted to Council on 1 May 1987 for approval. This concept plan was submitted to Council's Tree Committee on 27 May 1987. The minutes of that meeting indicate the plan was closely considered and a number of comments were offered on species and location. No comments were offered relative to Schizolobium parahybum (commonly known as the Mexican Fern Tree), which is the subject of the current investigation. The Tree Committee endorsed the concept plan with some changes. 5. The detailed landscaping plan was lodged with Council in October 1987, and reported to the Ordinary Council Meeting on 19 October 1987, by Council's Chief Town Planner. This report recommended approval of the detailed landscaping plan, subject to two conditions unrelated to the current enquiry. 6. Ongoing negotiations ensued between a committee comprising Councillors and Council staff, and the landscape architect, regarding planting of trees in the upper car park. The plan was amended and approved in November 1987. This amendment has no impact on the current issue. 7. The minutes of the Tree Committee Meeting of 2 December 1987 provide a recommendation that an inspection be made by the Tree Committee early in the New Year and that further inspections be carried out on a regular basis, of the tree plantings. At the Tree Committee meeting of 20 January 1988, each member of the Committee indicated that they had observed the landscaping at Grafton Shopping World. A recommendation was made that a further inspection of the site's tree plantings be carried out when the development was complete. 8. It would appear from the file that the Tree Committee meeting of 25 July 1988 assessed the development and recommended the forwarding of a congratulatory letter to the Shopping World complex regarding the landscaping maintenance programme at the centre. 9. The file for the building application for the overall development, which should have given details of the final landscaping inspection, is not available from Council. We have consequently been unable to determine whether a final inspection of landscaping was undertaken. 6 The report went on to state that the concept plan approved by the Council showed no trees to be planted in the vicinity of the place where the plaintiff fell; but that the final approved landscape plan showed eight Mexican Fern Trees near a ramp in the general vicinity of the place where the plaintiff fell, although none in the position of the tree which actually caused the development of the step over which the plaintiff tripped. 7 There was in evidence also a report by a Mr. O'Neill, described as Principal Consultant with Northern New South Wales Forestry Services, which expressed the following opinion concerning Mexican Fern Trees: By virtue of their fast growing nature these trees have an aggressive root development. It is my professional opinion that the root development of the trees, and particularly of the tree or trees closest to the accident site, is the cause of the distortion and raising of the concrete slabs that form the footpath at the accident site. The same evidence can be found on other sections of the footpath and the concrete borders between the trees and the footpath that runs parallel to Duke Street. 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. GOUNDS OF APPEAL 13 As noted earlier, the Council has appealed from that decision, but McConaghey Developments has not. The grounds in the Council's Amended Notice of Appeal are as follows: 1. His Honour erred in concluding that Council must be taken to have approved what had been done, in the context of the landscaping and planting of trees not in accordance with the approved plans, by virtue of the fact that the Council had conducted a final inspection. 2. His Honour misdirected himself concerning the application of s.310 of the Local Government Act 1919. 3. His Honour erred in concluding that there existed a positive legislative duty, or failing that, a common law duty, upon Council to satisfy itself that the landscaping upon another's land was carried out appropriately or in accordance with plans formerly approved. 4. His Honour misdirected himself as to the significance of Mr Locksley's evidence. 5. His Honour erred in the manner of his application of Wyong Shire Council -v- Shirt (1980) 146 CLR 40 (at page 47-8) to this case. 6. His Honour erred in that he ought to have found that in this case there was no duty, either created by statute or recognised at common law, upon the Council to interfere with another person's land in the context of dealing with tress (sic) planted by that person. 7. His Honour erred in finding that: (a) the Council had statutory duties, and (b) had failed to carry them out, in respect to allowing the trees to remain or effecting the removal of them. 8. His Honour erred in failing to accord Council the protection of "immunity from suit" as a highway authority in respect to non feasance. 9. His Honour erred in finding that there was misfeasance on the part of Council in that it was "active" in allowing the trees to remain where they were originally planted. 10. His Honour erred in that he considered that, in allowing the trees to remain, Council was engaged in a commercial activity. 11. His Honour erred in his application of Woollahra Council -v- Moody (1913) 16 CLR 353 to the facts of this case. 12. His Honour erred in concluding, as he did, that Council knew that a danger existed (more than just a potential danger) and with that actual knowledge, permitted the danger to remain. 13. That His Honour erred in making the following finds (sic) of fact which were either contrary to the evidence or unsupported by the evidence: (a) "The Council owned the land upon which the ramp rested." (b) "The tree ferns were planted in circumstances which included Council's involvement in the construction of the premises and indeed the arrangement of the trees." (c) "Mr Locksley, had actually observed, in 1996, the ramp, at the point where the Plaintiff had tripped and that it had risen." (d) "The fact of the matter is that despite the danger which was obvious, certainly to Mr Locksley." (e) "Council... brought an artificial structure under the path." (f) At page 4 of the judgment His Honour, in referring to Ms Smith's report, notes the Minutes of the Tree Committee on 20 January 1988 indicating that they had observed the landscaping and recommended that a further inspection of the site tree plantings be carried out when the development was completed. His Honour concluded "it is obvious that the Tree Committee representing the Council would have seen the tress (sic)which were planted adjacent to the footpath." 14. That His Honour erred in determining that there was sufficient proximity between Council, as an approval authority for development of the Second Respondent's building, application, and the First Respondent. 15. That His Honour erred in determining that there was a sufficient causative link between Council's approval of the development application and the First Respondent's injury. 14 During the hearing of the appeal, the Council sought to advance an argument to the effect that the primary judge was in error in finding the step to be a danger, in reliance on what was said by Callinan J, with the concurrence of other High Court judges, in Ghantous v. Hawkesbury City Council [2001] HCA 29. The Court ruled that this could not be done without amending the grounds of appeal, and the Council applied to add a ground of appeal to the effect that the primary judge was in error in finding the step to be a danger. That application was refused, on grounds given at the time, including the ground that the contention that the step was not a danger had not seriously been raised before the primary judge. Indeed, although there were some questions in cross-examination which would have been relevant to such a submission, the primary judge noted that no suggestion was made that the step was not a danger. This was a matter which could have been the subject of serious contest at the trial, but it was not; and it was too late to attempt to raise it on appeal. submissions 15 Mr. Maconachie QC for the Council submitted first that the primary judge had made a number of errors of fact. He particularly referred to the following three findings. 16 First, he referred to a finding that the Council was involved in the construction of the premises and the arrangement of the trees. Mr. Maconachie submitted that the Council was no more than the approval authority in relation to the development. 17 Second, he referred to a finding that "Mr. Locksley had actually observed in 1996 the ramp at the point where the plaintiff had tripped and that it had risen". Mr. Maconachie submitted that Mr. Locksley had plainly said that he did not observe any lifting of the concrete at the point where the plaintiff tripped. 18 Third, he referred to a finding that the Council's tree committee would have seen the trees, including the offending tree, planted. Mr. Maconachie submitted that this was mere speculation. He noted that Mr. Simons, the Project Manager for the development, was asked the following questions: Q. On completion of the project was there an inspection by Council or not? A. Yes. 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. 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. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.