If a street tree outside your house fell and took out your power line, who would you expect to pay the bills?
The local authority that looks after the trees? Insurers? The power company perhaps? Or you? In the last few months Bruce Crawford of Redan has found out the hard way.
It started on December 8 last year, during a spell of hot, blustery weather. Mr Crawford was out when his wife called with bad news. An elm tree, which stood beside the blue-stone gutter outside of Mr Crawford's house, had split into two and fallen on to power lines. It knocked out his electricity and took out his fuse box.
The repairs didn't come cheaply. Mr Crawford was swiftly hit with a hefty bill - $992 from the emergency electrician to fix the fuse box.
In view of the prevailing weather conditions on the date of the incident, we are of the view that the tree falling was due to natural causes and not due to any negligenceCity of Ballarat Council
Encouraged to try to claw back some funds, he filed a claim with the City of Ballarat Council. A short time later, it was knocked back, with correspondence citing the 2004 Road Management Act.
The letter, seen by The Courier, described the tree as part of the "roadside". "As Council is under no statutory or Common Law obligation to maintain the roadside, we must unfortunately deny liability for the claim," it read.
"In view of the prevailing weather conditions on the date of the incident, we are of the view that the tree falling was due to natural causes and not due to any negligence, or lack of care on the part of Council."
It also said that under the Road Management Act, the council would not be liable for anything under a threshold of $1,430.
After making the initial claim, Mr Crawford was hit with another bill, this time for $836.75 from Powercor, which took his total costs above that threshold.
The Courier has checked the billing with Powercor, who said they would not charge if the fault was on their network, but otherwise would charge to cover the cost of the work.
The offer (and non-disclosure agreement)
Mr Crawford re-submitted the claim to Council and was offered the difference between the threshold and the total - a sum of $398.95. However, he refused to accept it as he was asked to sign a deed of release that prevented him from discussing the matter further.
Still well out of pocket as a house insurance claim came with a hefty excess fee Mr Crawford decided to take the matter further. He was convinced the tree was in bad shape before it fell - and upset that something beyond his responsibility had cost him so much money.
I have not struck anyone who has said this is fair, and I've talked to people from all different walks of lifeBruce Crawford
"Anyone could see it was rotten. You didn't need to be an expert to see that," he said.
'Doesn't pass the fairness test'
Mr Crawford approached Wendouree State MP Juliana Addison, who wrote to the state minister for roads Jaala Pulford, referred him to legal aid, and suggested he contact his councillor. He did, and councillor Daniel Moloney went into bat for him with the council.
"It doesn't pass the fairness test," Cr Moloney told The Courier. But despite the councillor's efforts to encourage a more flexible approach, Mr Crawford's claim got no further.
"I have not struck anyone who has said this is fair, and I've talked to people from all different walks of life," he said.
The Freedom Of Information request
Taking advice from the Ballarat and Grampians Community Legal Service, he then made a discovery. Using Freedom of Information requests, he found that in an inspection in June 2014 the tree's structure was described as "poor" (although its health was billed as good).
That rating changed at a subsequent inspection in April last year when the structure was labelled as "fair", although the report also warned about cavities. "Knock test indicates trunk is hollow," the report read.
The Courier sought clarification from Council on how the tree's structure had improved between inspections, as well as at what stage trees would be removed. A Council spokesperson said they would not comment on individual cases apart from to say all obligations under the Road Management Act had been fulfilled in this instance.
If a road authority (such as a local council) is aware of trees on a roadside that are dangerous, it, like other landowners, has a duty to make it safe.VicRoads statement
The Courier checked the application of the act with VicRoads, who confirmed the road authority was not liable to pay the first $1,430 of any claim.
In a statement, it said: "If a road authority (such as a local council) is aware of trees on a roadside that are dangerous, it, like other landowners, has a duty to make it safe".
Mr Crawford says that staff at the Victorian Civil and Administrative Tribunal advised him they would not hear any appeal.
Now Mr Crawford believes he has explored every route open to him as he doesn't want the legal expense of taking the matter to a magistrate's court - but says he is open to further advice.
Does the average ratepayer know?
Although Mr Crawford would understandably still like to receive the money back, he is even more keen to make a wider audience aware of what happens in these circumstances.
I would like to make every Victorian ratepayer aware of how this can affect them. I'd also like to be able to challenge these rulings without having fear of more expenses. It's not worth my while to pay lawyers to do this, but it's still not rightBruce Crawford
He would also like to challenge the high threshold defined in the Road Management Act.
"I would like to make every Victorian ratepayer aware of how this can affect them," he told The Courier.
"I'd like for the council to explain why action wasn't taken on the tree earlier than it was and make ratepayers aware that if a tree is in poor condition, property owners nearby need to be alerted to that.
"I'd also like to be able to challenge these rulings without fearing more expenses.
"It's not worth my while to pay lawyers to do this, but it's still not right."
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