A recent ruling that the City of White Rock was "indifferent and negligent" in the cutting of a tree on private property is "likely a landmark decision" for all municipalities, says the lawyer who argued the case.
"I think this decision is going to force the City of White Rock to rethink how they're mapping trees throughout the region," Raj Nagra said Monday (Aug. 26).
Nagra represented Victoria Avenue resident Nancy Webb in the civil suit, which was heard in Surrey Provincial Court over four days in April and June, with a judgment handed down Aug. 16.
The suit was filed in connection with a walnut tree in Webb's backyard that was cut down in July 2022. The tree, planted in memory of her husband, was around 30 years old.
According to the judgment, Webb alleged the city committed a trespass when an employee of a tree-care company it hired came into her yard and cut the tree. In addition, she claimed the worker 鈥� employed by Urban Grove Tree Care and Consulting Ltd., named as a third-party in the suit 鈥� also damaged the retaining wall at the back of the property.
The city admitted liability in trespass, the judgment notes, but only to the point that it was either technical or inadvertent 鈥� rather than the more serious level of "wrongful" 鈥� and argued Webb was entitled to "at best, nominal damages."
After hearing all the evidence, however, Judge Jodie Harris found the trespass was indeed "wrongful," and a result of the city's haste to respond to a neighbour who had threatened to sue if the city didn't deal with a tree that was leaning over a lane.
Wrongful trespass, the judgment notes, "occurs when a boundary line is crossed because of indifference or negligence in determining where it is located."
The court heard that the city had sent Webb a letter in July 2021 asking her to trim or remove by month's end vegetation on her property that was "encroaching on the City roadway and or sidewalk."
Based on photographic evidence, Harris concluded around 60 per cent of the tree was encroaching and "at least" 40 per cent was on Webb's property.
She also concluded, however, that nothing was done to either address the problem or follow up with Webb until a July 2022 complaint.
"The City鈥� clearly did not deem it a hazard or public safety issue at that time, and the appearance of the Tree had not substantially changed in the year that passed," Harris stated.
"What did change was a neighbour called in a complaint and threatened to sue the City if the Tree caused any damage."
A staff inspection that followed found it was leaning "heavily" across city property, touching a building on the other side of the lane and causing obstruction issues, the court heard.
At that time, Urban Grove was contacted and there was a determination that the tree was at a high risk of falling, the judgment continues.
While Harris found the portion of the tree that hung over the alley had posed a hazard, she concluded there was no evidence of an urgency to cutting it down, "other than appeasing the anonymous complainant."
She added that while the city had a right to cut or trim the part of the tree that was encroaching, they were not entitled to cut the portion that was in Webb's backyard.
The judge also criticized the city for relying solely on their GIS (geographic information system) mapping in determining that the tree was on city property, knowing it was not as accurate as a legal survey.
The city's director of engineering and municipal operations Jim Gordon "was candid in his evidence that the GIS system is not overly accurate and that if you want an accurate measurement, you can't rely on it; you have to hire a surveyor," Harris stated.
The city's behaviour as a whole, she concluded, was "reckless."
"I find that in their hurry to placate the anonymous complainant across the lane, the City rushed to judgment about the Tree and cut it down and has not provided any evidence that this was necessary."
Webb said Tuesday (Sept. 3) that she was not surprised by the outcome of the case 鈥� "this was out-and-out trespass," she said 鈥� but was disappointed in the judge's decision on compensation, noting she spent more on the claim than was recouped.
Harris awarded the senior a total of $12,500, including $6,000 in compensatory damages (the estimated cost of replacing the tree); $4,000 for loss of amenity as a result of her portion of the tree being cut down; and $2,500 in punitive damages, for the city's "reckless and highhanded" conduct.
The judge found neither the city nor Urban Grove damaged the retaining wall; and, that Urban Grove was acting as the city's agent when it cut the tree, and therefore was not liable to Webb for related damages. She also dismissed the city's third-party claim against Urban Grove.
White Rock communications manager Robyn Barra said Tuesday (Sept. 3) the city has no comment at this time, "as this matter is before the courts."
