Belluco v Netting & Netting - [2010] SADC 12

District Court of South Australia
(Civil: Minor Civil Review)
BELLUCO v NETTING & NETTING
[2010] SADC 12
Judgment of His Honour Judge David Smith
1 February 2010
MAGISTRATES
Review of a minor civil decision pursuant to s 38 of Magistrates Court Act 1991 – discussion of the meaning of the statutory directive in sub-ss (1)(f) and (7)(e) of s 38 to the Court to “... act in accordance with equity, good conscience and the substantial merit of the case without regard to technicalities and legal forms ...” – discussion of whether principles generally applicable to the hearing of appeals have application to reviews under s 38 – Magistrate refused to order the removal of a gum tree alleged to constitute a nuisance – decision of Magistrate affirmed.
Magistrates Court Act 1991 s 38, referred to.
Miller v Jackson [1977] QB 966; Clerk & Lindall on Torts 17th ed at 18-26; House v The King (1936) 55 CLR 449; State Rail Authority of NSW v Earthline Constructions (1999) 73 ALJR 306; Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979-80) 142 CLR 531; Qantas Airlines Ltd v Gubbins (1992) 28 NSWLR 26; Ory and Ory v Betamore Pty Ltd (In Liq) (1993) 60 SASR 393; Law of Torts, Balkin & Davis 3rd ed at [14.1]; Painter v Reed [1930] SASR 295; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 ; Munroe v Southern Dairies Ltd [1955] VLR 332; Winfield Law of Tort 2nd ed at 512; Asman v MacLurcan (1985) BPR 9592; L’Estrange v The Brisbane Gas Company [1928] St R Qd 180, considered.

BELLUCO v NETTING & NETTING
[2010] SADC 12
Introduction

This is an Application pursuant to s 38 of the Magistrates Court Act 1991, to Review a decision of the Deputy Chief Magistrate refusing to order the removal of a tree.[1]
[1] The legislative trail by which the Magistrates Court derives jurisdiction is as follows:
·the action is characterised as a “neighbourhood dispute” as defined because it is “... a dispute between neighbours ... based on allegations of nuisance ...” (see s 3(1) of the Act);
·the action is a “minor civil action” as defined because it is “... a claim for relief in relation to a neighbourhood dispute ...” (see s 3(2) of the Act); and
·the Magistrates Court has jurisdiction “to grant any form of relief necessary to resolve a minor civil action ...” (see s 8(1)(d) of the Act).
·
The applicant Antonio Belluco and the respondents Megan and James Netting are neighbours. The applicant lives, with his wife, at number 13 Hawthorn Crescent, Campbelltown and the respondents live, next door, at number 11. In the rear yard of number 11, near to the boundary fence between the properties, are two large trees – a Red River Gum and a Spotted Gum. These two trees have been the subject of a neighbourhood dispute between the parties for over a decade. The focus of this action and application is the Spotted Gum tree.
On the 3^rd June 2008 the applicant instituted this Minor Civil Action against the respondents seeking “the total removal of the spotted gum tree ...”. Translated into legal terms, the applicant sought a mandatory injunction for the tort of nuisance. The nuisance claimed was that the tree had dropped limbs, leaves and gumnuts into the applicant’s property and was likely to continue to do so. Injunctive relief was the appropriate remedy.[2]
[2] Miller v Jackson [1977] QB 966 at 980; see also Clerk & Lindall on Torts 17^th ed at 18-26.
The action was tried in the minor claims civil jurisdiction of the Magistrates Court at Adelaide before Dr AJ Cannon DCM. After taking evidence on the 28^th January 2009, the Magistrate viewed the trees on the Netting property and made orders in respect of them. On a final viewing on the 4^th August 2009, he formally refused to order the removal of the Spotted Gum tree.
The applicant now applies to this Court, pursuant to s 38 of the Magistrates Court Act 1991, to review that final decision of the Magistrate refusing to order the removal of the tree.
Nature of Application for Review
The Court’s powers on Applications for Review are found in s 38 of the Magistrates Court Act 1991 (SA). In particular, on such an application this Court may inform itself, as it thinks fit, and is not bound by the rules of evidence (see s 38(7)(b)). Further, the Court is empowered to rehear evidence taken in the Magistrates Court (see s 38(7)(c)). Finally, in both the trial and the Review the “... court must act in accordance with equity, good conscience and with substantial merit of the case without regard to technicalities and legal forms” (see s 38(1)(f) and (7)(e)).
In determining this matter the courses open to this Court are, inter alia, to affirm the judgment or rescind it and substitute a judgment that it considers appropriate (see s 38(7)(d)(i) and (ii)).
The principles applicable to the role of appellate courts, such as the necessity to identify material error before interfering, have guiding application to Reviews under s 38.[3]
[3] See House v The King (1936) 55 CLR 449 at 504, 505; State Rail Authority of NSW v Earthline Constructions (1999) 73 ALJR 306; Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979‑80) 142 CLR 531 at 551.
Some Legal Principles
It is clear from the united force of the provisions dealing with Minor Civil Actions in Division 2 of the Magistrates Court Act 1991, that legal niceties are not to predominate. As indicated, both the Magistrates Court and this Court, on applications for review, are not to be constrained by “technicalities and legal forms”, but are to act “according to equity, good conscience and the substantial merits of the case ...” (see s 38(1)(f) and s 38(7)(e)). These are high-sounding phrases which are not easy to interpret. I consider that the provisions intend that the Court is to have regard to the substance of the claim as opposed to its form. They do not mean, however, that the Court is released from the obligation to apply principles of law in arriving at its decision.[4] For instance, there must be a cause of action recognised by the law which supports the form of relief granted. It does not matter that a party fails to use an appropriate legal formula of words in either the Court papers or in presenting his or her case. The principles of law relating to the appropriate cause of action apply. In this case the law relating to the tort of nuisance applies.
[4] See Qantas Airlines Ltd v Gubbins (1992) 28 NSWLR 26; see also Ory and Ory v Betamore Pty Ltd (In Liq) (1993) 60 SASR 393 per Duggan J at 414; see also Lunn Civil Procedure Vol 1 at 4436-4437.
The essence of the tort of nuisance is interference with the enjoyment of land.[5] The interference must be shown to be substantial.[6] Further, in determining whether the interference is substantial regard must be had to the character of the locality in which the alleged nuisance took place.[7] Finally, if a plaintiff proves that a substantial interference with enjoyment of the land has occurred, the defendant may, nonetheless, successfully resist the grant of an injunction by showing that he has successfully abated the nuisance.[8]
[5]    See Law of Torts, Balkin & Davis, 3^rd ed at [14.1].
[6]    See Painter v Reed [1930] SASR 295 at 301-2; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 per Jordan CJ at 486; Munroe v Southern Dairies Ltd [1955] VLR 332 at 335 per Sholl J.
[7]    see Winfield Law of Tort, 2^nd ed at 512; see also Asman v MacLurcan (1985) BPR 9592 at 5, 6 and 7.
[8]    See Law of Torts, Balkin & Davis, 3^rd ed at [14.51]; see also L’Estrange v The Brisbane Gas Company [1928] St R Qd 180 per Blair CJ at 189.
With those principles in mind I turn to the evidence before the Magistrate.
The Evidence - Facts
The following summary of facts is drawn from materials which were before the Magistrate in the form of oral testimony and documents including reports from Arboriculturists. There is very little conflict in the factual evidence and nothing hinged upon the credibility and reliability of the witnesses and in particular the parties.
The applicant is 64 years old. He has lived with his wife at 13 Hawthorn Crescent since 1974.
The respondents purchased and moved into the house at number 11 in 1999.
The house properties are adjacent to one another and so have a common boundary. They face approximately south. The respondents’ house looks directly across Hawthorn Crescent into a parkland setting, dominated by numerous large Eucalyptus trees, and through which runs a watercourse called Fourth Creek. The diagram set out below shows the location of the said properties and depicts the relevant trees.
Not only the nearby park but also this particular part of the suburb of Campbelltown abounds with large Eucalyptus trees, which are part of a “wildlife corridor of native vegetation” (see Report of Arborman Tree Solutions dated 15^th July 2006)
The Spotted Gum (Corymbia maculata) is approximately 20 metres high and 14 metres wide and is located in the rear yard of number 11 approximately 2 metres from the common boundary between the properties. It overhangs the rear yard of number 13 by some 6 metres. It is healthy and has a life expectancy of “greater than 20 years ...” (see Report of Arborman Tree Solutions dated 16^th April 2008 at 4).
The Red River Gum (Eucalyptus camaldulensis) is approximately 14 metres high and 16 metres wide and is also located in the rear yard of number 11 approximately 1½ metres from the shed of the applicant. The larger branches, which, at one time, overhung the boundary of number 13, have been removed. It is healthy and has a life expectancy of greater than 50 years.[9]
[9] See Report 15^th July 2006 (supra) at 4.
Both trees have a girth of more than 2 metres measured 1 metres from the ground and so are “significant trees” as defined in the Development Act 1993 and the Development Regulations 2008. Tree damaging action (ie arguably pruning but certainly removal), is a kind of development under the Act and cannot be undertaken without council approval.
I now set out a summary of the history of this dispute which was before the Magistrate mainly by way of an array of documents submitted by both parties.
The applicant raised concerns about the two trees with the respondents about the time they moved into number 11 in 1999. He had apparently expressed his displeasure about the trees to the previous owner of the property. By 2005, the applicant regarded them as dangerous and a nuisance, and wanted them removed. The respondents did not agree.
In early 2006 the respondents initiated a mediation concerning the trees. The applicant would not participate.
In about mid-2006 the respondents commissioned an arborist’s report. The report dated the 15^th July 2006, from Marcus Lodge of Arborman Tree Solutions, concluded that both trees should be retained but recommended pruning.
In about March of 2007 the applicant instituted the first Magistrates Court action in the Adelaide Court. He sought the removal of both trees because of falling leaves, intrusive roots and falling limbs. Another neighbour supported his case that limbs were dropping off the trees into his property.
For the purposes of the action the applicant engaged an arborist – Mr Kym Knight of Tree Environs Pty Ltd who, in broad terms, supported his case for the removal of the trees. The report is not amongst the material in the papers but is commented upon in other papers.
The respondents’ arborist, Marcus Lodge, took issue with Mr Knight’s conclusion about the extent of the risk of limb failure. Apparently the Campbelltown City Council were aware of the dispute but did not become involved.
This first Magistrates Court action concluded with the Magistrate Mr Gumpl SM declining to order the removal of either tree but requiring the thinning of the canopy of the Spotted Gum and the pruning back to the boundary of the Red River Gum. That work was completed by September 2007.
The respondents in court in that action had committed themselves to the ongoing monitoring and management of the trees.
The applicant did not accept the outcome.
The papers suggest that in about October 2007 he made application to the Council of the City of Campbelltown, for development approval for removal of both trees, but the applications were refused and on appeal the application for the removal of the Spotted Gum tree was approved. This information about the dual application, the appeal and the granting of one only of the applications, emerges from correspondence from the respondents. In the circumstances if I needed to rely on such evidence at least primary documents would be desirable. In any event, there is original documentary and oral evidence, that on the 6^th February 2008 the council gave development approval for the removal of the Spotted Gum tree. At about the time of the application to Council, the applicant engaged the services of an arborist, Mr Alan Cameron, of Tree Assessment Services. In his report of the 26^th November 2007, Mr Cameron recommended the removal of the Spotted Gum tree.
I should mention that the respondents claimed there were serious irregularities in the way in which the Council dealt with the applications. There was an appeal by them about this to the Environmental, Resources and Development Court. It was dismissed by that Court on the 8^th April 2008. Further elaboration is not necessary.
The development approval for the removal of the Spotted Gum tree, did not mean that the applicant could proceed to have the tree removed, from the respondents’ land, over their objection. A court order, arising from a substantive cause of action, was necessary.
In April 2008 the arborist, Marcus Lodge, conducted inspections of in particular the Spotted Gum tree and reported on the 16^th April 2008. Again, he recommended that the tree be retained and confirmed his view that there was a minimal risk of sizeable branch failure. The applicant claimed that in February 2008 the tree had dropped a branch on the roof of his tool shed which measured 3 metres by 75 mm. A neighbour, Mr Walshaw, confirmed he saw such a branch on the applicant’s shed roof
In June 2008, armed with council approval for the removal of the Spotted Gum, the applicant instituted this, the second Magistrates Court action seeking the removal of the Spotted Gum tree. I put aside consideration of whether or not this second action amounted to an appeal against Mr Gumpl’s orders. In the final view I take, this is not necessary.
Such were the background circumstances as at the time of instituting this action.
In the trial on the 28^th January 2009 before Dr AJ Cannon DCM there was oral evidence from:
·the applicant, Antonio Belluco;
·Lesley Walshaw, a neighbour;
·Giuseppina Palmieri, the applicant’s daughter;
·the respondents, Megan and James Netting; and
·Marcus Lodge, arborist.
The Magistrate specifically accepted in evidence the report of the applicant’s arborist, Mr Alan Cameron, dated 26^th November 2007. And further, the Magistrate had before him a number of other documents in the Court file. I have already referred to some of them. In his oral testimony the applicant told the Magistrate as follows:
·that there had been a previous case but he had not been allowed to re‑open it;
·that after all the pruning had been done in 2007, following the previous case, which pruning was designed to make the tree safe, in February 2008 a branch 3 metres by 75 mm fell off the tree onto his shed roof;
·that the tree, the focus of his action, was the Spotted Gum tree but that the other tree, he said, would be a major problem “... at a later stage ...” (3); and
·that the Council had approved the removal of the tree and that the approval had been extended to 2010.
In his argument to the Magistrate the applicant complained generally that the respondents’ trees were dangerous and were disrupting his enjoyment of his property.
Mr Walshaw, in his oral evidence, spoke of the tree shedding bark and said “... this is the only thing I’ve got against it ...”. He agreed that the tree overhung the applicant’s property by more than 2 metres. Notably, he did not say anything about a branch falling onto the applicant’s shed roof. However, there is a letter signed by him in the Court papers confirming that in February 2008 he saw such a branch. Accordingly, for my part, I do not place much store on the fact that Mr Walshaw omitted to say in court what he said in the letter.
Mrs Palmieri spoke generally of the known propensity of trees such as those in the backyard of the Netting property to drop limbs. She said that their close proximity to her father’s property was an undue interference with the use by him of his land. She said that over the years she had seen branches which had fallen and which were about to fall.
Megan Netting told the Court that she and her husband were concerned about the safety of his applicant and his family and had a tree management plan in place for all the trees to ensure that. She said that an arborist inspected the trees every six to 12 months and that regular pruning was carried out in accordance with the arborist’s recommendations. The last inspection had been on the 8^th January 2009. She said further that the tree in question did not have a history of branch failure.
In respect of the branch which fell on the shed roof she said that it was 45 mm in diameter and 2.7 metres long.
The evidence of the arborist, Marcus Lodge, effectively confirmed his reports.
He said he supervised the management of the trees on the Netting property and confirmed that the inspections were every six to 12 months. He spoke of both aerial and climbing inspections and said that the pruning work done on the tree minimised the propensity for branch failure. He said that the Spotted Gum tree was a healthy tree of a life expectancy of 20 years and was suitable for retention and management. He said it was a valuable part of the environment. He was referred to the report of the applicant’s arborist, Mr Alan Cameron, and disagreed with his recommendation of removal. In confirming his reports, Mr Lodge effectively disagreed that the tree in question had an unacceptable propensity to drop limbs.
After taking evidence on the 28^th January 2009, the Magistrate adjourned to view the subject tree and its environs. At the view, on the 6^th February 2009, he indicated that he would not order its removal, but rather, made a series of orders for its management. He did however order the removal of a nearby Melaleuca tree which was “... significantly intruding into the applicant’s property”. Then on the 4^th August 2009 he again attended at Hawthorn Crescent and, having satisfied himself that his early orders had been complied with, he confirmed his refusal to order the removal of the Spotted Gum tree.
Review – Decision
In this Review I confirm that I have taken into account not only the evidence before the Magistrate constituted by the oral testimony and documents submitted by the parties and in the Court file, but also I have had particular regard to the applicant’s Notice of Appeal document which is considerably more detailed than his evidence and raises matters which require consideration. I should mention also that I have not overlooked four separate affidavits filed in this Court by the applicant on respectively 17^th September 2009, 27^th November 2009 (2) and 14^th January 2010.
However, on such evidence and material, the Deputy Chief Magistrate was entitled to take the view that the interference constituted by the trees and their proximity to the applicant’s property was not substantial enough to call for the removal of, in particular, the Spotted Gum tree taking into account the arboreal nature of area. Further, or in the alternative, the regime of management of the trees, implemented by the Nettings and in place on an ongoing basis, has sufficiently abated any significant nuisance. There is no basis which would justify interfering with the Magistrate’s decision.

Accordingly, I affirm the decision of the Magistrate and effectively dismiss this Application for Review.