Dimitrios Michos & Another v Council of the City of Botany Bay - [2012] NSWSC 625

Supreme Court

New South Wales

Medium Neutral Citation: Dimitrios Michos & Another v Council of the City of Botany Bay [2012] NSWSC 625
Hearing dates: 10,11,12, 13 April 2012
Decision date: 08 June 2012
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Mandatory injunction granted to remove fig tree roots and to prevent the penetration of roots from the defendant Council's nature strip into the plaintiffs' residential property. Compensation awarded for physical damage to gardens and structures on plaintiffs' property. Damages awarded for loss of amenity to plaintiffs' property. Directions given to facilitate determination of costs and other consequential orders.

Catchwords: NUISANCE - fig trees growing on defendant Council's land adjacent to plaintiffs' residential property - whether fig tree roots extend into plaintiffs' property - whether fig tree roots caused damage to lawns and structures on plaintiffs' property - whether the cost of repairing damage to structures on the plaintiffs' land should be apportioned - the extent of such apportionment - between any fig tree related damage and any deterioration due to environmental factors - whether plaintiffs have suffered any loss of amenity - whether the circumstances warrant the grant of a mandatory injunction to remove the fig tree roots and prevent further ingress of roots.
Legislation Cited: Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Asman v MaClurcan (1985) 3 BPR 9592
Baulkham Hills Shire Council v AV Walsh Pty Ltd [1968] 3 NSWR 138
Bennetts v Honroth [1959] SASR 170
Bone v Seale [1975] 1 WLR 797
Christie v Davey [1893] 1 Ch 316
Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482
Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128
Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683
Hargrave v Goldman (1963) 110 CLR 40
Hosie v De Ferro (1984) 3 BPR 9418
Khyatt v Morgan [1961] NZLR 1020 [1962] NZLR 791
Malliate v Sharpe [2001] NSWSC 1057
McCombe v Read [1955] 2 QB 429
Morgan v Khyatt [1962] NZLR 791
Morgan v Khyatt [1964] 1 WLR 475
Orr v Ford (1989) 167 CLR 316
Overseas Tankship (UK) Ltd v Miller Steamship Company Pty Ltd (Wagon Mound (No 2)) [1967] 1 AC 617
Oldham v Lawson (No 1) [1976] VR 654
Owners Strata Plan 4085 v Mallone (2006) 12 BPR 23,691
Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149
Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478
Redland Bricks Ltd v Morris [1970] AC 652
Robson v Leischke (2008) 72 NSWLR 98
Spencer v Silva [1942] SASR 213
Stockwell v Victoria [2001] VSC 497
Sturges v Bridgman (1879) 11 Ch D 852
Sutherland Shire Council v Becker [2006] NSWCA 344
Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108
Yared v Glenhurst Gardens Pty Ltd [2002] NSWSC 11
Category: Principal judgment
Parties: First Plaintiff:- Dimitrios Michos
Second Plaintiff:- Rene Michos
Defendant:- Council of the City of Botany Bay
Representation: Plaintiffs:- Ian E Davidson SC; Andrew Connolly
Defendant:- Paul S Jones
Plaintiffs:- Francis Farmakidis - JSM Lawyers
Defendant:- Gary Weetman - McCulloch & Buggy

File Number(s): 2009/290790
Publication restriction: No

Judgment

Introduction

A heritage order dating from 2000 preserves three native fig trees growing on the nature-strip at the southeastern corner of the intersection of Vernon and Florence Avenues, Eastlakes. The Council of the City of Botany Bay ("the defendant" or "the Council") is the registered proprietor of this nature-strip, which abuts the corner residential property of Dimitrios (Jim) Michos and Rene Michos ("the plaintiffs"). The plaintiffs purchased their home in about 1979 and have lived there continuously ever since. They claim the roots of these fig trees are damaging their property. In these proceedings they seek orders restraining the defendant from allowing the roots of the fig trees to encroach onto their land and cause a nuisance to them; they also claim damages and interest.

The defendant denies liability to the plaintiffs either in the nuisance or the negligence alleged. Moreover the defendant says if the three fig trees have caused damage to the plaintiffs' land and the structures built thereon, that such damage is minimal and injunctive relief is not warranted.

The improvements on the plaintiffs' land include a brick and tile residence dating from the 1920's, brick fences along the Florence Avenue and Vernon Avenue frontages, pathways and landscaped gardens. Three palm trees and various shrubs and bushes grow on the plaintiffs' property. No large trees grow on any of the neighbouring properties immediately to the south, to the east, and to the south east of the plaintiffs' property.

Two of the three fig trees are situated along the western boundary of the plaintiffs' land, growing in the Florence Avenue nature strip. The other fig tree is situated along the northern boundary, growing in the Vernon Avenue nature strip. All three trees are within about 10 metres of the corner. When the plaintiffs first purchased their land in 1979 five fig trees grew on the nature strip: three on the Vernon Avenue frontage and two on the western or Florence Avenue frontage. The easternmost fig tree of the three on Vernon Avenue died and the defendant removed what had been the middle fig tree.

The plaintiffs claim that the roots of the three remaining fig trees have grown beyond the boundaries of the defendant's nature strip and into the plaintiffs' land, causing damage to the land itself and to the improvements thereon. Specifically they complain of damage to: the garden path; the western brick boundary fence; the northern brick boundary fence; the lawn areas; the entrance way and steps of the residence; the veranda near the front steps of the residence; and, the subterranean pipes on the northern boundary. As well as the alleged physical damage the plaintiffs say that the fig tree roots have also caused them loss of amenity and loss of enjoyment of their land.

The case was completed within four hearing days, 10 to 13 April 2012, including an inspection of the plaintiffs' property at Eastlakes and final oral submissions. Mr Ian Davidson SC and Mr Andrew Connelly of counsel appeared for the plaintiffs and Mr Paul Jones of counsel for the defendants.

Only parts of the plaintiffs' lay evidence, presented through Mrs Michos, were contested. The case was principally a contest between three groups of experts: arborists, engineers and builders. Their evidence is analysed later in these reasons.

The matters in issue are best understood as the end point of a long history of communications between the plaintiffs and the Council about these trees. That history is set out below including findings on relevant contested issues of fact.

Chronology of the Dispute

From Purchase of the Plaintiffs' Property to the Heritage Order - 1979 to 1998

After the plaintiffs purchased their property in 1979, little of immediate relevance occurred for about ten years. Between 1989 and 2000, the plaintiffs did call plumbers to unblock sewage lines on the property on at least two occasions. Mrs Michos paid the costs of these plumbers and the defendant reimbursed the invoiced amount. There is no direct evidence of these payments. But I accept Mrs Michos' evidence that the Council reimbursed the plaintiffs for them. I infer from the defendant's conduct in making these payments that it accepted its fig tree roots had been responsible for blocking the plaintiffs' sewerage lines.

Another incident occurred in 1990, when the rear toilet line to the plaintiffs' property blocked. According to Mrs Michos, a plumber was called on this occasion and used an "electric eel" pipe-clearing device to remove the blockage. The plaintiffs allege that fig tree roots caused this blockage but the evidence is not sufficiently clear for the Court to infer that this incident was caused by fig tree roots, and it not necessary to determine precise issues of causation this early in the narrative. The defendant did not acknowledge responsibility for this blockage by the reimbursement of repair expenses.

Between 1989 and 2000 Mrs Michos had several conversations with council officers regarding the impact of the fig trees on the plaintiffs' land. She especially recalls a conversation before 2000 with Council officers at the time the middle tree on the Vernon Avenue side was removed. Throughout this period she says, and I accept, she had regular contact with a Council officer, Mr Terry Meader, who was in charge of the care and maintenance of these trees. I accept her evidence that Mr Meader said to her after she had complained of the earlier sewerage problems, "look if you like we can organise to have all of these trees removed. But the Council really does not want to [do this]". Mrs Michos responded to this, "It's up to the Council what they want to do. But I don't want the trees to damage my property. As long as the trees are maintained". She says, and I accept, that she and Mr Meader also discussed the Council putting in a root barrier. But one was not put in then. Mrs Michos says, and I also accept, that a few days later Council workers removed the middle tree on the Vernon Avenue frontage. Mrs Michos says she remembers new pipes being laid in the nature strip once the middle tree had been removed. But the precise extent to which this occurred appears to be controversial.

The Heritage Order Process - 1998 to 2000

In January 1998, Mrs Michos received notices from the defendant that it intended to make heritage orders over each of (1) the plaintiffs' property and (2) the streetscape at the Florence - Vernon Avenue corner. The heritage order over the plaintiffs' property was the end-product of a study the Council had commissioned, the Buildings and Other Works/Relics Botany Heritage Study, 1996, which was focused, in the plaintiffs' case, upon the preservation of a local residence built in the 1920's. The Florence-Vernon Avenues corner streetscape was also the subject of a similar notice which was the end-product of the Council's Botany Heritage Study 1996 - Landscape Items.

Mrs Michos opposed the making of both these heritage orders. She responded to the Council's notices by letter on 30 January 1998. She was concerned a heritage order over the property might inhibit the plaintiffs' ability (a) to develop the site, and (b) to extend the existing house. Mrs Michos' opposition was directed principally to the heritage order over her and her husband's property, especially because of its effect on its development potential. But the five fig trees were part of the streetscape proposed to be preserved by the other heritage notice.

Council responded to Mrs Michos' letter on 27 May 1998, indicating that Mrs Michos' submission was being reviewed by the Botany Historical Trust, the Council's Environmental Planning Department and the Council's Heritage Advisor. Council said in its letter to Mrs Michos:

"Council is appreciative of your response to notification of the Botany heritage study. Their submission is currently being carefully reviewed by the Botany historical trust, Council's environmental planning department and the Council heritage advisor."

Although Council's reply, signed by the Council's Manager - Environmental Planning, Mr Ian Dencker, did not undertake to respond further to Mrs Michos, it gave the general impression that further contact was likely before a determination about the heritage order.

According to Mrs Michos, and I accept, there was, in fact, no further correspondence from the defendant Council before the Botany Bay Local Environmental Plan 1995 Amendment No. 20 ("Amendment 20") became effective on 25 February 2000. The aim of Amendment 20 was relevantly to amend the Botany Bay Local Environmental Plan 1995 ("Botany LEP") to "protect the heritage significance of and heritage items on the land to which the Amendment 20 plan applies". Amendment 20 notified 177 new local heritage items, including hotels, a post office, a fire station, houses, a police station, commercial buildings, churches, parks, schools, shops, infrastructure and bridges. Amendment 20 added these items to the Botany LEP, Schedule 3, in substitution for certain existing items. Relevantly, item 79 was described as "mature ficus" for which the location was described as "corner of Florence Avenue and Vernon Street Eastlakes". In addition Amendment 20 inserted item 107, described as a "house" with the address of the plaintiffs' property "[address not published], Eastlakes". The plaintiffs had failed in their opposition to the imposition of heritage orders over either the streetscape or their property.

Surprisingly, it took 3 months for the Council to tell the plaintiffs about the Amendment 20's gazettal. Council wrote to the plaintiffs on 5 June 2000 informing them that Amendment 20 had become effective, over both the fig trees and over the plaintiffs' property. There was no subsequent correspondence between the plaintiffs and the Council about Amendment 20.

Council Installs a Root Barrier - April to August 2000

The period following the 2000 Gazettal of Amendment 20 became a time of intensified activity between the plaintiffs and the defendant. In early 2000 the plaintiffs requested something be done in relation to the fig tree roots. Council employees, Mr Roy Sutton and Mr Richard Bailey visited the plaintiffs' property in April 2000. I accept Mrs Michos' evidence that on this occasion she showed Mr Sutton and Mr Bailey the tree roots and Mr Bailey said to her, "you have a real problem Mrs Michos", and Mr Sutton agreed. Moreover, I accept that Mrs Michos said to them, "something has to be done about this. I am sick of complaining. The trees are not only damaging the fence they are damaging the pathway and the house".

Following this meeting Council arranged for an arborist, Mr Michael Lee, to inspect the plaintiffs' property. Mr Lee appears to have made specific recommendations to Council about installing a root barrier to prevent root ingress into the plaintiffs' property. The Council authorised the installation of a root barrier. At the hearing the Council seemed to have little present corporate memory of how this early root barrier was installed and exactly who, within Council, had been responsible for its installation. But the Court has no doubt the work was carried under Council's authorisation. I accept Mrs Michos' evidence it was done by Council workers on Council land. This would not have occurred without Council's authority.

The correspondence at the time gives clues as to how this came about. Mrs Michos wrote to Council on 11 May 2000. She did not even then have confirmation that the heritage order had been made. That was only confirmed about a month later in the Council's 5 June letter. Mrs Michos says in her 11 May letter "we now believe that the Council have put a heritage order on [the property] and that does not help matters". Mrs Michos' 11 May letter is an important record confirming her discussions with Mr Meader and the other Council officers at the time. This letter is one of the reasons that I accept her evidence about these early contacts. Mrs Michos also summarises the history to that point from her perspective as to what she asserts was tree-root related damage to the residence: the loosening of the brick fence, the lifting of the footpath, and other matters. She alleges "with a great deal of investigation of the Council's [part] they determined that the roots did cause the problems to our home, and we have photos in evidence of this fact". The principal purpose of her letter was to warn Council that she was obtaining a quotation from a tiler for the re-tiling of the return verandah at the front of the house, and would be looking to Council to pay for doing this work.

Under the hand of Council's Mayor, Mr Ron Hoeing, the Council wrote back to Mrs Michos on 25 May 2000. He informed Mrs Michos that he had issued instructions for the fig trees to be trimmed away from overhead wires and property and for a root barrier be installed along the fence line. The Mayor also indicated that the Council's Engineering Department was investigating Mrs Michos' claims that the tree roots had damaged the verandah of the plaintiffs' residence. He undertook to write again when the Council's Engineering Department had compiled a report in relation to that issue. The Mayor did not deny any of Mrs Michos' allegations, and that conduct, in my view, assists the inference that the Council was accepting responsibility for the tree root damage Mrs Michos had described. If there was any real issue about the damage caused by the Council's trees then, that was the time for the Mayor to say so. But in my view, the Council's then acceptance of responsibility does not extend to the residence's front verandah, which the Mayor foreshadowed was to be the subject of further investigation.

Although Mrs Michos' recollections are not precise about the dates, in what must have been very late May 2000, workers from the Council dug trenches on both the western and northern boundaries of the property about 30cm out from the boundary fence. I accept her account that they installed membranes vertically in these trenches, to about 1 metre in depth. When the trenches were filled in, only approximately 5cm of the membranes remained above ground level. No trench was dug in the space where the front gate is located, at the most north-westerly point of the plaintiffs' property.

When Mrs Michos received the 5 June 2000 letter of confirmation about Amendment 20, she pressed her concerns further both with Council officers and with the Mayor. Shortly afterwards, on 21 June 2000, Mrs Michos had a conversation with Mr Brian Bullock, the Council's Insurance Officer, following which workers from the Council attended the plaintiffs' property, and took photos of the fig trees and of the property generally. Mrs Michos says, and I accept, that Council workers also removed tree roots from alongside the boundary fence of the property on the street side of the fence. Council was giving the plaintiffs' property close attention.

On 22 June 2000 Mrs Michos sent another letter to the Mayor, a letter which, in my view, is a reliable contemporaneous record of what work Council had just recently undertaken to the plaintiffs' property: (1) the root barrier was installed; (2) some large roots had been removed from the Council's pathway along the fence; (3) the plaintiffs' front pathway had been lifted by tree roots, even though it had been restored some six years before. The rest of the letter is largely a request for further action and complaints about the conduct of Council officers.

The Council's two responses to Mrs Michos' 22 June letter involved implicit concessions as to the cause of the damage to Mrs Michos' property. The Mayor wrote back on both 28 June 2000 and 2 August 2000. In the first response on 28 June the Mayor explained to Mrs Michos he had directed the Council's General Manager to investigate the matters Mrs Michos had raised in her letter of 22 June 2000 and to present findings to Mr Hoeing. Mr Hoeing undertook to write to Mrs Michos when he received the report.

The Mayor's second response on 2 August at least assumes the existence of root penetration although not of any consequent damage. He opened his letter to Mrs Michos "I refer to recent communications concerning the alleged damage caused to your property as a result of the invasion of tree roots from the ficus var hillii trees adjacent to your premises at [the plaintiffs' address]". The Mayor explains that due to the nature of the plaintiffs' claim that he has sought a further report from the Council's Engineering Services staff. He foreshadowed that following the receipt of that report, and an additional report from Arborcraft, the Council and its insurers would be in a better position to assess Mrs Michos' claim.

In addition to her contact with the Mayor, in about June 2000 Mrs Michos pointed out to Mr Bailey that the boundary fence needed to be repaired. She volunteered to source a quote for its repair. I accept her evidence that Mr Bailey said to her that the defendant would "help" with the repair of the fence. After conversing with Mr Bailey, Mrs Michos obtained a quotation for $5,500 from Inside Out Building Services for fixing the boundary fence. Mrs Michos submitted that quote to Council on 11 July 2000. A Council officer, Mr Paul Shepherd, offered that Council would contribute $3,500 of the $5,500 quotation. Mrs Michos arranged for the repair of the boundary fence and in September 2000 Council sent her a cheque for the $3,500. The Council's conduct in paying for these repairs was, in my view, acknowledgment of some responsibility for the damage then being repaired.

From 2000 until the Commencement of Proceedings in 2009

No significant communications took place between the plaintiffs and defendant, nor were any substantial further works done to the plaintiffs' property, between late 2000 and early 2004. But from this point on what occurs takes on a different character. The plaintiffs commence proceedings six years later in October 2009. From October 2003 the plaintiffs' complaints of loss, damage, and loss of amenity are all part of their pleaded damages case.

January to December 2004. On 23 January 2004 Mrs Michos again complained to the defendant. The focus of her complaint this time was cracking in the concrete footpath. She spoke with Ms Susan Stratton and Mr Bullock about this. I accept Mrs Michos' account that they both attended and inspected the plaintiffs' property. Mrs Michos says, and I accept, that she pointed out to them the lifting pathway and Ms Stratton said, "you have a problem here. I feel sorry for you. We have to do something about this before it gets worse". Mrs Michos says, and I accept, that Ms Stratton and Mr Bullock indicated to her that a cement barrier would be put about a metre under the fence.

Nothing was done immediately. But on 30 April 2004 at the plaintiffs' request Mr William Osmo, a consulting engineer, of TOP Consulting attended their property to investigate the fig tree roots. He attended again on 7 June 2004. I accept that Mr Osmo's services were a reasonable and necessary investigation expense the plaintiffs have incurred.

In May 2004 Mrs Michos noticed further blockages in the property's sewerage system. She needed emergency assistance to clear the blockage, so she engaged Pagewood Plumbing & Waterproofing ("Pagewood Plumbing") to do the work, obtaining a primary quote from Pagewood Plumbing of $7,450.50 and an additional quote of $687.50 on 20 May 2004. On 29 June 2004 she obtained a further Pagewood Plumbing quote of $797.50. She forwarded all those quotes to the defendant.

Mrs Michos' request to have these invoices paid was considered by the Council's Mayor, Mr Hoeing, and referred to the Council's insurance officer, Mr Bullock, in late June 2004. The Mayor explained in a letter to the plaintiffs on 28 June 2004 that Mr Bullock was handling their claim for the attendance of a plumber at their residence. He said "any problems you may have with the plumbing in the future that can be clearly attributed to root damage from Council's trees, should be directed to Council's insurance officer, Mr Brian Bullock". It is not to be inferred that any payments made by Council of the plaintiffs' plumbing and other invoices was accidental. I infer from this correspondence that Council had a process in place for considering the plaintiffs' claims through Mr Bullock. That process did result in the Council later paying a number of the plaintiffs' invoices.

Pagewood Plumbing completed its repairs and sent on about 29 July 2004 Mrs Michos a tax invoice for the work previously quoted. Council paid this invoice. Mrs Michos received further tax invoices from Pagewood Plumbing for the work previously quoted on or about 11 September 2004 and 13 September 2004. Pagewood Plumbing's 11 and 13 September 2004 work was invoiced to Mrs Michos on 1 October 2004 and she paid the invoice on 13 December 2004. On paying she spoke to Mr Bullock and forwarded the invoice to Council by facsimile. Pagewood Plumbing's 1 October 2004 invoice records they were called out on an emergency basis to repair a blocked sewer line and ran an electric eel "up and down from inspection opening to boundary trap and to bathroom several times to clear". The Pagewood Plumbing tax invoice was admitted as a business record under Evidence Act, s 69. It contains the following statement, "found a lot of tree roots which were the cause of the blockage. Tree roots have come from the trees on Council path out front". I find that Pagewood Plumbing did have to clear tree roots from the sewer line. I also infer that they were fig tree roots from the defendant's tree. I infer that from the Pagewood Plumbing statement. But I also infer it from the fact that there are also no other trees of a substantial size on the Vernon Avenue frontage which were likely to be responsible for this root penetration into the plaintiffs' sewer in late 2004. It is not clear on the evidence whether the Council reimbursed the plaintiffs for their payment of these Pagewood Plumbing invoices.

The problems the plaintiffs perceived continued, still requiring attention and advice. On or about 20 December 2004, the consulting engineer, Mr Osmo again attended the plaintiffs' property, undertook an inspection and advised Mrs Michos. I accept that Mr Osmo's attendance on this occasion was to advise Mr and Mrs Michos about their tree root penetration problem. That takes the position to the end of 2004.

The House Extension - 2005. In late 2004 - early 2005 the plaintiffs commenced constructing an extension at the rear of their property and excavating a pool. Mrs Michos says that she observed in the course of these earth works that the roots had entered the property and grown along the eastern rear wall of the house and had surrounded the brick footings. Moreover I accept her evidence that these roots had disrupted the brickwork of the north-eastern corner of the house and in the eastern near wall. I accept her evidence of these observations. A pool and substantial extension were completed later in 2005. Since that time members of the plaintiffs' extended family have been living in this extension.

Communications 2006 to 2008. In mid June 2006 a more formal process commenced between the plaintiffs and Council to manage the plaintiffs various claims of tree root damage. In 14 June 2006 Mrs Michos received a letter from Claim Management Australasia Pty Ltd ("CMA"), the defendant's then claims manager. CMA explained to the plaintiffs that they needed to identify the precise areas they said had been damaged by tree roots and provide competitive quotes to rectify the damage together with any engineer's report on which they relied. Throughout June, July and August 2006 Mrs Michos proceeded to fax CMA invoices and quotations relating to repairs done or proposed to be done to the plaintiffs' property. In her first reply of 16 June 2006 Mrs Michos said that she had enclosed "all documents that you requested as per our conversation of yesterday". The precise material that Mrs Michos forwarded to the Council is not clear on the evidence but it does appear to have included many past quotations.

Council considered at some length what had been forwarded to it. Little other correspondence of present relevance took place between the parties for about another two years. The narrative then recommences just before mid 2008.

On 14 April 2008 Mrs Michos received a letter from the Mayor, Mr Hoeing, in relation to the plaintiffs' claims against the defendant. The Mayor's letter reported that he had asked Council's insurers to undertake a "full review of all matters outstanding" in relation to Mrs Michos' complaints that the fig trees had "caused considerable damage to your property". He recorded that "agreement has been reached to make the payment of $6,446 in respect of damage caused to the front sandstone path". And the Mayor invited further discussions about the plaintiffs' claims in respect of other parts of the property.

The Mayor and Mrs Michos exchanged further correspondence in November and December 2008. On 14 November 2008 Mrs Michos received a letter from Mr Hoeing in response to a call she had made to Mr Hoeing's office. In this letter Mr Hoeing conveys that he has instructed the Council to investigate Mrs Michos' claim that roots were growing under the foundations of the plaintiffs' house and were, according to her, causing major damage.

On 27 November 2008 Mrs Michos sent another letter to Mr Hoeing. The letter broadly sets out Mrs Michos' then grievances in relation to the Council's response to the fig tree issue and attached a report from, the consulting arborists, Jacksons Nature Works. The letter complains of damage to many areas of the plaintiffs' property: the foundations of the residence, the front and side fences, the pathway, the stairway and front verandah and the water pipes. The principal concern Mrs Michos expressed was that although in early years Ms Stratton had shown real interest in the plaintiffs' problem, by late 2008 no-one within Council seemed to be taking responsibility for rectifying fig tree root penetration to their property.

The Mayor responded on 8 December 2008. In that letter Mr Hoeing informs Mrs Michos that he forwarded her letter and the arborist's report to the Council's Insurance Officer, Mr Bullock. The Mayor emphasised the need to have the issue dealt with by Council's insurers.

Up to Proceedings - 2009. Mr and Mrs Michos commenced proceedings 10 months later in October 2009. The earlier part of 2009 involved more correspondence between Mrs Michos and the Mayor but the exchanges do not lead to any decisive action being taken in relation to the tree roots. The course of correspondence, about six months before the commencement of proceedings, is illuminating.

Perhaps in frustration at what she perceived as poor progress with her problem Mrs Michos appears to have approached one of the members of Council, Councillor Mark Castle, who made representations on her behalf to the Mayor. Then on 16 March 2009 Mrs Michos received a letter from Mr Hoeing, in which Mr Hoeing informs Mrs Michos that he has received representations on her behalf from Councillor Castle and that he is awaiting the finalisation of the report and determination from the Council's Insurance Company. The Mayor then says to Mrs Michos in this letter:-

"I am aware this has been ongoing issue and is subject to an insurance claim currently being dealt with by Council's Insurance Company. I am advised that this has been quite a lengthy process and that you have been very patient and helpful in trying to resolve the matter. I am also advised that the Insurance Company have almost finalised their reports and determination.

With respect to the exposed tree roots, I have instructed Council's Tree Preservation to inspect the trees and report to me. When I have received the report, I will be in touch with you again."

On 20 March 2009 Mrs Michos received a letter from Emerson Australia, the claims managers acting on behalf of Council. The Emerson Australia report of 20 March 2009 gave a clear response to each area of the plaintiffs' claim of tree root damage: (1) the front verandah - the view of Council's engineer was re-affirmed that any damage was not due to tree roots; (2) the stormwater/sewer lines - liability was denied on the basis that past loss had been compensated for and releases signed and there was no evidence of new damage; (3) the sandstone path - $6,446 for the replacement of the footpath was proffered; (4) the verandah steps and front fence - engineering advice was requested to confirm the extent of any tree root damage in these areas; and (5) removal of front yard tree roots - liability for removal was denied.

On 27 March 2009 the plaintiffs sent another letter to Mr Hoeing. In that letter the plaintiffs again set out their grievances in relation to the Council's response to the fig tree issue, threatening legal action and media exposure. The plaintiffs explain in this long letter that their patience is running out:-

"We are sure that you are aware that we have been rate payers at this council since the early 1960's. Our family are prominent members of the local community and we conduct several businesses within the municipal boundaries. During those years, we have enjoyed very cordial relations with both yourself and all the members and staff of the council and continue to do so.

On that basis we have been (and continue to be) very reticent to commence any legal action against the council because we value our relationship with its staff and members and want to avoid souring of that relationship.

But there reaches a point where ones patience simply runs out and the continued nuisance we are suffering along with the ever increasing damage to our property and the inconvenience of not being able to park our vehicles effectively on our property, becomes unbearable. Notwithstanding that, we have had several incidents where elderly people visiting our property have tripped over the broken path and roots. Thankfully we haven't been sued yet."

The plaintiffs' letter further expresses disappointment that the Council's recent offer to pay for the path ($6,446) represents a quotation dating back to 2004, which by early 2009 was over four years out-of-date. The letter also expresses concern that part of the plaintiffs' claim may be becoming statute barred. The letter involved a clear intimation that unless Council did something to rectify the root penetration that the plaintiffs contemplated legal action. Proceedings were commenced about six months later.

From the Commencement of Proceedings to Trial - October 2009 to April 2012

The plaintiffs filed their Statement of Claim commencing these proceedings on 7 October 2009. Ordinarily, the Limitation Act 1969 (NSW), if pleaded, would prevent damages being recovered for loss or damage incurred more than 6 years prior to the filing of the Statement of Claim, that is any loss or damage suffered prior to October 2003. It was accepted on both sides that the plaintiffs' claim for damages did not extend back beyond October 2003. But loss and damage since that date was claimed.

After commencement of proceedings, some other events occurred that the plaintiffs rely upon as part of their damages claim. After October 2009 the plaintiffs rely upon the following events: a further blocking of their sewerage system by what they say are fig tree roots in June 2010; Mrs Michos engaged MCP Plumbing to fix the sewerage system and was invoiced for that work on 26 June 2010; the plaintiffs have been unable to construct a double-carport and driveway and have suffered consequent damage to their vehicle, which has been parked on the street (from December 2010); and, a number of instances of Mrs Michos tripping over fig tree roots which she says were elevated out of the lawn (October 2011). These are all said to be part of the damage from the alleged nuisance.

The parties agreed that these proceedings will dispose of all the plaintiffs' claims for loss and damage occurring as a result of the alleged nuisance up until the date of hearing. Notwithstanding that the Statement of Claim would ordinarily only relate to loss and damage suffered prior to October 2009, in this case the Court's extended jurisdiction to deal with such loss and damage up to hearing was invoiced and accepted: Uniform Civil Procedure Rules 2005, r 30.3.

The Council undertook some repairs and work related to tree roots in the nature-strip area, after the commencement of proceedings in October 2009. In May 2010, Mrs Michos says, and I accept, that she observed workers from the Council removing sections of the nature-strip footpath, erecting temporary barricades, and placing safety ribbons where sections of the footpath had been removed, and at the front gate of the plaintiffs' property. The temporary barricades and ribbons remained in place for approximately 8 weeks. The removed sections of the footpath were filled with asphalt.

With this history the parties were in contest as to whether a nuisance was established, and if so, whether the Court should grant any mandatory injunctive relief to remove the fig trees or to install a root barrier, and as to whether or not the plaintiffs were entitled to damages.

The plaintiffs' property is quadrilateral shaped, except for the arc that joins the northern and western sides of the property. The northern (Vernon Street) side of the property is 32.112 meters and the western (Florence Street) side of the property is 20.295 meters. The arc that joins the northern and western sides of the property is 8.465 meters. There is a gate at the arc. Between the gate and the steps leading to the verandah of the house there is a serpentine path that is approximately 9.0 meters long and 1.2 meters wide.

Mrs Rene Michos

Mrs Michos gave evidence on behalf of both plaintiffs. The Council did not call any evidence from any of the council officers with whom she interacted over the years. Nevertheless the defendant mounted a case that the Court should discount her evidence that the tree roots had become a serious concern for her. Mrs Michos was cross-examined rather to portray her as a quarrelsome resident and to suggest she had given misleading evidence. But in my view the attack on her fails.

Mrs Michos was at times an argumentative witness who had very firm opinions that she had been done an injustice. But in my view she must be judged in light of the actual history of her dealings with the Council. Taking that history into account her attitude to the Council, as it came through her account, was understandable. I did not doubt the reliability and accuracy of her evidence. She was not someone who either consciously or unconsciously was exaggerating what she was saying. As the findings above show, the Court accepts the history of events recounted from her perspective. In summary, although argumentative, she was reliable.

The defendant made a suggestion at one stage that the plaintiffs had poisoned the eastern most fig tree on Vernon Avenue, the fig tree that died. But Mrs Michos denied this. The defendant had no evidence that any member of the Michos family was responsible for the tree's death. The Court cannot make any findings on this subject. I do not take that issue into account against either party.

Nuisance

The first question is whether the plaintiffs have made out their claim in nuisance. The defendant rightly conceded during opening and closing submissions that some roots from the fig trees have penetrated onto the plaintiffs' land. But the defendant says that ingress of roots is not sufficient to constitute actionable nuisance. It is first necessary to state the applicable law.

Nuisance - General Principles

The law of nuisance may be concisely stated. Nuisance is the unreasonable interference with the use and enjoyment of a person's land: Hargrave v Goldman (1963) 110 CLR 40 at 62 per Windeyer J; Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 at [295] per Bergin CJ in Eq. Whether there has been "unreasonable interference" is an objective test - whether a person of ordinary habits and sensibilities in the plaintiff's position and circumstance would regard the interference with the enjoyment of the land as unreasonable; some "reasonable give and take" is involved; and another way of stating the test is whether there has been "an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions" of the community: Jordan CJ in Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 at 486 and 487.

In determining whether there has been unreasonable interference, a court will take into account the locality in which the interference occurs: Sturges v Bridgman (1879) 11 Ch D 852 (CA) at 865 per Thesiger LJ; the duration, time of day, frequency and extent of the interference: Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683; and, any malice on the part of the person causing the interference: Christie v Davey [1893] 1 Ch 316.

Consistently with the notion of give and take, a neighbour may tolerate an interference with the enjoyment of the land for various reasons; but when the interference has reached the stage that the neighbour no longer feels obliged or willing to tolerate it, the neighbour will be entitled to claim that there is an unreasonable interference with the enjoyment of the land, notwithstanding earlier tolerance; but the neighbour will not be entitled to claim damages for the interference that was tolerated prior to the complaint being made: Orr v Ford (1989) 167 CLR 316 at 341 per Deane J.

Although there may be some exceptions, fault of some kind is now usually necessary for liability in nuisance: Sutherland Shire Council v Becker [2006] NSWCA 344 at [118] - [119] per Bryson JA; Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 at [296] per Bergin CJ in Eq.

Nuisance - The Plaintiffs' Claim

The plaintiffs have made out each of the elements in their claim in nuisance. The defendant concedes that the fig tree roots have penetrated the plaintiffs' property. But on several grounds it says that no nuisance is established. Those contentions fail for the reasons explained in this section.

Council contends that the plaintiffs have not established the fault element of nuisance. The contention is that there is no evidence that the root barrier put in during 2000 was appropriate and the plaintiffs have not adduced any evidence of fault. The problem with this submission is that I accept Mrs Michos' evidence of increasing problems since the root barrier was put in 2000, including further disturbances to the lawn, the path and the fences. I infer, consistently with the arborists' evidence, that the root barrier in 2000 was inadequate because it was insufficiently deep and it was not impermeable. There is evidence that the Council's attempts at constructing a root barrier in 2000 were inappropriate.

The defendant also contends that there has been no unreasonable interference with the plaintiffs' land. This submission is grounded upon contentions about (1) the defendant's use of its own land and also (2) the harm suffered by the plaintiffs. First the defendant says it is using its own land reasonably and that it is unreasonable to expect it to stop that use and for the trees to be removed. But that is not an answer to the plaintiffs' case. Based on Mr Jackson's evidence, a root barrier can be installed without endangering the remaining trees. Secondly, the defendant's contention that the plaintiffs have not responded reasonably to the impact to the tree roots is also unfounded. The course of correspondence shows that the plaintiffs have been patient with the continued presence of tree roots on their land and have attempted to resolve the problem with Council by negotiation. But the findings throughout this judgment show a serious and continuing problem which prevents the plaintiffs from using their front lawns because of a fear of injury and which is lifting fences, gates and path. Even if the foundations of the main residence are not interfered with, the interference with the use of the front of the premises is substantial and it is not reasonable for the plaintiffs to accept that on a continuing basis.

Negligence

The plaintiffs also plead their cause of action in negligence in the alternative. In Hargrave v Goldman (1963) 110 CLR 40 at 62, Windeyer J made the following distinction between nuisance and negligence:

"In nuisance liability is founded upon a state of affairs, created, adopted or continued by one person (otherwise than in the reasonable and convenient use by him of his own land) which, to a substantial degree, harms another person (an owner or occupier of land) in his enjoyment of his land. In negligence liability is founded upon the negligent conduct of one person causing, to any degree, foreseeable harm to the person or property of another person (not necessarily an owner or occupier of land) to whom a duty of care was owed".

The plaintiffs in nuisance cases not uncommonly also plead their claim in negligence, as occurred here. The common law readily imposes a duty of care on owners or occupiers of neighbouring properties in relation to one another: Robson v Leischke (2008) 72 NSWLR 98 at 120 (at [96]). An owner or occupier of may be held liable in negligence for damage to a neighbour's property caused by the action of tree roots: Robson v Leischke at 121 (at [103] - [104]). As in an ordinary action in negligence, in this area a plaintiff must prove that the defendant owed the plaintiff a duty of care to adhere to a certain standard of conduct, a breach of that duty, loss caused by the breach of duty and that their loss suffered was not too remote but was reasonably foreseeable as a result of the defendant's act or omission: Robson v Leischke at 120 ([93]).

The defendant says the plaintiffs' case in negligence does not satisfy the Civil Liability Act 2002. The plaintiffs say, and the defendant did not contest, that the Civil Liability Act does not apply to their claim in nuisance.

Civil Liability Act 2002, ss 5B and 5C

The Civil Liability Act 2002 commenced on 20 March 2002. It covers the whole of the period in issue in these proceedings. Civil Liability Act, Pt 1A applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise: s 5A. In Civil Liability Act, "negligence" means failure to exercise reasonable care and skill: s 5.

The plaintiffs say that the damages to their land and to the improvements upon their land are the result of nuisance caused by the defendant as well as the defendant's negligence. The Civil Liability Act, Pt 1A applies to the negligence claim but not the nuisance claim.

The defendant says that the plaintiffs have not satisfied Civil Liability Act, ss 5B and 5C, which provide:-

"5B General principles

(1)A person is not negligent in failing to take precautions against a risk of harm unless:

(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)the risk was not insignificant, and

(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)the probability that the harm would occur if care were not taken,

(b)the likely seriousness of the harm,

(c)the burden of taking precautions to avoid the risk of harm,

(d)the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence:

(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. "

Contrary to the defendant's submission I conclude that the plaintiffs do satisfy Civil Liability Act, ss 5B and 5C in this case. I will deal with each of these in turn.

Under Civil Liability Act, s 5B(1) the plaintiffs must prove the risk was: (a) foreseeable; (b) not insignificant; and (c) one in respect of which a reasonable person would have taken the identified precautions. The defendant placed particular emphasis on this case on Civil Liability Act, s 5B(1)(c) and s 5B(2). The principal precautions which the plaintiffs allege should have been taken, were putting in an effective root barrier or removing the trees.

The risk of root penetration was foreseeable: Civil Liability Act, s 5B(1)(a). In 2000 the Council had erected (ineffective as it turned out ) root barriers on the Vernon and Florence Avenue frontages. Mr Bullock and Ms Stratton admitted in January 2004 that the defendant needed to do something before the root problem further deteriorated on the plaintiffs' land. Moreover, the expert evidence in this case shows that the structural root zones for the Council's three fig trees extends inside the plaintiffs' property. So natural growth of fig tree roots into the plaintiffs' property is predicted by the arborists. The defendant's contention that the risk was not foreseeable is inconsistent with its case that erecting a root barrier would endanger the health of the trees.

The risk of harm from the tree roots was not insignificant: Civil Liability Act, s 5E(1)(b). The significance of the risk can be measured by a simple safety comparison. In 2010 the Council re-laid the path of the nature-strip with asphalt to prevent a tripping hazard arising on the public land of the nature-strip. This was a reasonable response to the effect of the same root action, but on its own land. I accept Mrs Michos' evidence that there are tripping hazards on the path and lawn from the same tree roots. The hazard so created is certainly not insignificant. The basis to take remedial action on the plaintiffs' land is at least as strong as it is on the defendant's land. Physical disturbance to the fence, particularly in the gate area, is quite visible and is also not insignificant.

A reasonable person would have taken precautions: Civil Liability Act, ss 5B(1)(c) and 5B(2). The defendant says the plaintiffs have not established that a reasonable person in the Council's position would have erected a root barrier or removed the trees. But the plaintiffs do satisfy these requirements and both of the defendant's points fail. First, the defendant emphasises the existing heritage order and the social utility of the trees; but that is not an answer to taking precautions such as the root barrier which would probably not destroy the trees. Secondly, the defendant emphasises the practical burden to it of taking precautions; but the defendant advances no evidence beyond the circumstances of this case to put that matter in issue. For example, there is no evidence of the numbers of other fig trees within the municipality, their locations or the proximity of residential homes to them. Thirdly, the defendant emphasises the financial burden of taking precautions to avoid the risk; but advances no evidence by which the cost of repairs could be measured against the Council's budgets.

The defendant makes the same points in respect of Civil Liability Act, s 5C. Its contentions fail for the same reasons.

In conclusion, negligence is made out. The defendant's trees pose a foreseeable risk of harm to the plaintiffs' property. The authorities recognise a duty to take reasonable steps to avoid that harm. The defendant breached that duty by failing to install an effective root barrier along the Florence and Vernon Avenue frontages. I accept the engineer's evidence that a root barrier can be effective here. The plaintiffs have suffered loss.

A Mandatory Injunction?

The plaintiffs have established their causes of action in nuisance and negligence. The defendant resisted the plaintiffs' claim for a mandatory injunction. The plaintiffs' case was the unless something was done to stop the progress of the tree roots that damage would continue to their property indefinitely.

Mandatory Injunctions in Nuisance Cases

The Court may grant an injunction to restrain an ongoing nuisance: Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 at [296] per Bergin CJ in Eq; McCombe v Read [1955] 2 QB 429 at 436 per Harman J; Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149 at 181 per Evershed MR and at 194 per Romer LJ. As Lord Evershed said in Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd at 181:

"If A proves that his proprietary rights are being wrongfully interfered with by B, and that B intends to continue his wrong, then A is prima facie entitled to an injunction, and he will be deprived of that remedy only if special circumstances exist"

The jurisdiction to order a mandatory injunction, an injunction to compel the performance of a particular act, is exercised cautiously: the particular act or acts the defendant is required to do should, if possible, be specified precisely, although in some nuisance cases orders have been made in more general terms. It is always a matter of discretion: Redland Bricks Ltd v Morris [1970] AC 652 at 657 - 658 per Lord Upjohn.

The general principles guiding the grant of a mandatory injunction can only be laid down in the most general terms; every case must depend upon its own particular circumstances; but in Redland Bricks Ltd v Morris Lord Upjohn stated the following principles at 665-666:

"1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future.

2. Damages will not be a sufficient or adequate remedy if such damage does happen.

3. The question of the cost to the defendant to do works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account:

(a) where the defendant has acted without regard to his neighbour's rights, or has tried to steal a march on him or has tried to evade the jurisdiction of the court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff.

(b) but where the defendant has acted reasonably, though in the event wrongly, the cost of remedying by positive action his earlier activities is most important for two reasons. First, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only upon a much smaller scale than anticipated. Secondly. because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for he has his action at law and all his consequential remedies in equity.

So the amount to be expended under a mandatory order by the defendant must be balanced with these considerations in mind against the anticipated possible damage to the plaintiff and if, on such balance, it seems unreasonable to inflict such expenditure upon one who for this purpose is no more than a potential wrongdoer then the court must exercise its jurisdiction accordingly. Of course, the court does not have to order such works as upon the evidence before it will remedy the wrong but may think it proper to impose upon the defendant the obligation of doing certain works which may upon expert opinion merely lessen the likelihood of any further injury to the plaintiff's land.

4. If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions".

The considerations guiding the grant of a mandatory injunction include: whether the nuisance is minor or trivial (Bennetts v Honroth [1959] SASR 170); whether the grant of the injunction will cause hardship to the defendant (Baulkham Hills Shire Council v AV Walsh Pty Ltd [1968] 3 NSWR 138); whether there has been delay or acquiescence on the part of the plaintiff in responding to the nuisance (Spencer v Silva [1942] SASR 213); and whether performance in accordance with the injunction is futile or impossible.

The exercise of the Court's power to grant a mandatory injunction in cases of nuisance has been considered by judges of this Division in Malliate v Sharpe [2001] NSWSC 1057; Yared v Glenhurst Gardens Pty Ltd [2002] NSWSC 11 and Asman v MaClurcan (1985) 3 BPR 9592. These three cases illustrate the range of considerations that assist the Court in moulding a remedy.

In Malliate v Sharpe, Campbell J was determining a dispute between two neighbours concerning a rubber tree that grew close to the common boundary. The plaintiff claimed that the roots from the rubber tree caused damage to the property and sought a mandatory injunction requiring the rubber tree to be killed by poisoning in such a way that the roots of the rubber tree also die. After considering the legal principles applicable to whether the rubber tree roots were causing a nuisance ([39]-[44]), Campbell J found that the continued presence of the rubber tree constituted a nuisance: [45]-[46]. Subsequently, Campbell J considered whether an injunction was an appropriate remedy and noted that even if the damage that had been caused by the rubber tree roots was repaired, so long as the rubber tree roots remained on the plaintiff's land and the rubber tree to which the roots were attached remained growing, there was a risk that the damage to the plaintiff's land would continually reoccur. That reason was sufficient for the issue of an injunction for the purpose of restraining the nuisance.

Campbell J then considered the form of the injunction. His Honour noted the traditional formulation in the case of tree roots order by Harman J in McCombe v Read at 437: "...to restrain the defendants by themselves, their servants or agents from causing or permitting the roots of trees growing on their property to encroach on the property of the plaintiff so as to cause a nuisance". But, in circumstances where the defendant clearly indicated a disposition to do nothing about tree roots that were causing a nuisance, a mandatory injunction requiring the removal of the tree has been granted: Morgan v Khyatt [1964] 1 WLR 475, Morgan v Khyatt [1962] NZLR 791 and Khyatt v Morgan [1961] NZLR 1020. Ultimately, Campbell J did not grant a mandatory injunction requiring the removal of the tree in that case but instead adopted "the traditional form of injunction to restrain a nuisance", being "that the defendants by themselves, their servants and agents be restrained from causing or permitting roots of the said ficus elastica tree to encroach on the property of the plaintiff so as to cause a nuisance": [64]-[65].

In Yared v Glenhurst Gardens Pty Ltd the nuisance was caused by the collapse of a retaining wall between neighbouring properties. Austin J noted that the granting of a mandatory injunction is always a discretionary matter: at [109]. His Honour relied on the fact that the making of a mandatory order to compel the defendant to carry out remedial work wholly at the defendant's expense would disproportionately enrich the plaintiff, such that His Honour declined to order the specific relief sought by the plaintiff.

Asman v MaClurcan, a decision of Young J (as his Honour then was) was another neighbourhood tree dispute - a dispute between two neighbours concerning two Jacaranda trees and a Mulberry tree that grew close to the common boundary. The plaintiff sought a mandatory injunction requiring the defendant to remove the three trees. In Asman v MaClurcan there was no damage to ground a cause of action. A quia timet mandatory injunction was not ordered because there was no real appreciable probability of irreparable damage being caused to the plaintiff because of the three trees. In so deciding, Young J noted that: because an injunction is a special remedy to be given when damages are inadequate and because much could happen in the future, equity would not grant a mandatory injunction where there were many things that could happen in the future.

The Injunctive Relief Contest

The defendant's opposition to any injunctive relief, mandatory or otherwise, rested on several grounds: the trees are now mature, unlikely to progress further in size or to cause any damage they have not already caused; and secondly, maintaining the trees, the subject of a heritage order is in the public interest and that they should neither be removed nor endangered by the Court's orders.

This contest really required the Court to resolve two issues: (1) whether injunctive relief should be granted; and (2) if so, in what form should it be granted and specifically should mandatory relief be granted.

(1) Injunctive Relief? The plaintiffs have made out their case for injunctive relief. The plaintiffs' problems of root penetration will continue, and the plaintiffs will continue to suffer damage to the lawns and structures on their property, if injunctive relief is not granted. Many considerations support the grant of the injunctive relief sought.

The continuing nuisance presents physical danger to the plaintiffs. I accept Mrs Michos' evidence that she and members of her family have tripped over the roots in the lawn in recent times and that the protruding roots represent a safety hazard. She and her husband are now effectively prevented from using their front lawns because they do not wish to risk another tripping accident on the path or the lawns. I accept Mrs Michos' evidence that family members have effectively been banned from the lawn and that Mr Jim Michos has had to barbeque on his own on the lawn without other family members being around for this very reason. This sterilises much of the front lawn area from use and is a genuine safety issue for the plaintiffs' family and guests, which should not be permitted to continue.

Significant root damage can be expected in the future. Without a mandatory injunction requiring either tree removal or a root barrier, future damage to structures on the plaintiffs' property is likely to be significant. I accept the arborists' evidence that despite the maturity of the trees they still have vigorous root systems that are likely to continue penetrating into the plaintiffs' property unless they are stopped. They have been active and destructive in the recent past as the extent of the damage to the north-western corner of the plaintiffs' property attests: cf the damage findings later in these reasons. The current vigour of the fig trees' roots is to be inferred both from the size of the root "jacking" that has occurred around the front gate, the garden path near the front gate, together with the location of active fig tree roots near the front steps to the verandah. Without an injunction the plaintiffs face the certain prospect of progressive destabilisation of these structures on their property. I accept Mrs Michos' evidence that this damage has progressed significantly since 2003.

The defendant's contention that an injunction is not appropriate depends in part upon acceptance of the contentions behind the defendant's damages case. The defendant says that because much of the damage to the plaintiffs' property can be accounted for by natural subsidence and other unrelated causes, that the extent of root damage is not great. But I do not accept that argument. The more detailed damages analysis below shows that the plaintiffs' actual tree-root related damage in these areas is greater than the defendant concedes.

The plaintiffs' losses cannot readily be compensated for in damages. The plaintiffs' loss of use of the front lawn and reduction in re-sale value of their property are not easy to assess, particularly as the plaintiff has no present intention to re-sell the property.

For all these reasons an injunction will be granted. The next question becomes whether the form of that injunction should be the traditional McCombe v Read negative restraint against "the defendants....from causing or permitting the roots of trees growing on their property to encroach on the property of the plaintiffs so as to cause a nuisance", or whether a mandatory injunction is appropriate.

This choice is best made when the Court has looked at the most likely form of mandatory injunction.

(2) The Form of Relief. The parties considered three possible forms of mandatory injunction: (1) removal of the three fig trees; (2) erection of a two metre deep root barrier immediately outside the western and northern boundaries of the property; and (3) erection of the two metre deep root barrier beneath, and integrated with, the boundary fences of the property on its northern and western sides.

The first and last of these forms of relief fell away for different reasons. The plaintiffs did not contend, in the end, that removal of the trees, option (1), was preferred. The plaintiffs were content to pursue a root barrier solution, either options (2) and (3); and they accepted that if, and only if, in the future a root barrier option proved unsuccessful would they have to address the removal of the trees. Moreover, the public interest in maintaining the subject matter of the Council's heritage order and the amenity of the streetscape meant that a mandatory injunction to remove the trees was not relief that should be readily granted.

Building a root barrier underneath the fence, option (3), emerged as a possible solution to perceived difficulties with option (2). But on closer consideration, it is not practical. Building a root barrier directly under the fence has limitations. It cannot be altered, inspected or maintained without major interference with the inside of the plaintiffs' property anyway. Option 3 represented a compromise: the root barrier would not encroach as far into the structural root zone as would a root barrier erected wholly on the defendant's land just outside the western and northern fences. But the arborists ultimately did not think that the marginal advantage of building the root barrier under the fence would significantly reduce the risk to the health of the fig trees.

Debate about option (2) represented the final choice in moulding mandatory injunctive relief. For the reasons which follow, this debate was sufficiently detailed and conclusive of the available options that this becomes a case where mandatory relief should be granted. Merely negative relief will continue to leave open debates about the form and placement of a root barrier, debates that have now been well dealt with in the expert evidence and from which the Court can choose the best option.

The plaintiffs' option (2) contention was that the root barrier should be on the defendant's land immediately outside the northern and western fences. The defendant's contention was that the root barrier should be placed on the plaintiffs' land immediately inside the northern and western fences. The placement of the two metre root barrier inside the fence would mean that the fig trees' structural root zone would be kept within the Australian standard for maintaining the integrity of this root zone. But for several reasons, in my view, the root barrier should be placed on the defendant's land immediately outside the plaintiffs' fences.

First, the plaintiffs' opposition to the construction of the root barrier inside their property is reasonable. Its placement there would make it a fixture to their land. Specific legal access arrangements would then need to be made for the defendant to enter the plaintiffs' land to maintain it. This implies a different form of future inconvenience and aggravation to the plaintiffs. Ordinarily the plaintiffs would be responsible for the maintenance of the structure on their own land unless the Court's orders or other contractual arrangements required the Council to take this responsibility. The complications of orders to provide a regime which the defendant would maintain part of the plaintiffs' land may impair the re-sale of the plaintiffs' property. The Court should mould relief to avoid these kinds of issues.

Secondly, a root barrier on the plaintiffs' property, on the inside of the fence, may be ineffective. The engineers' evidence, which I accept on this point, is that "there is still a potential [on this option] for more movement of the wall and root jacking because the roots can access the wall under the fence". A mandatory injunction that does not risk such failure is preferable.

Thirdly, I accept the plaintiffs' arborist Mr Jackson, that the root barrier can be installed just outside the fence without risking the survival of the fig trees. Ms Bennett, the defendant's arborist, was not prepared to tolerate any encroachment into the structural root zone which would be involved in building a root barrier outside the fence. But the encroachment onto the structural root zone would only be in the order of 100 to 150 millimetres. And the history of these trees is that a shallower root barrier was placed outside the fence sometime in about 2000, without any apparent adverse effect on the trees. Ultimately this is a matter for arborists' judgment. Both arborists were plainly competent. But I prefer Mr Jackson's evidence that a slight 100-150 millimetre encroachment on the structured root zone should not endanger the trees. No doubt too, any tree root damage can be minimised by the care in which the work is done, which will of course be a matter within the power of the Council if the work is done outside the fence.

This is an appropriate case for a mandatory injunction. The damage to the plaintiffs is not trivial. The defendant has done nothing to stop the progress of the roots into the plaintiffs' property for 12 years since 2000. The damage will continue unless restrained. Ordering installation of a root barrier is the only realistic course presented by the arborists, consistent with the survival and retention of the trees. Other than through the expenditure of money, a mandatory injunction would not cause special hardship to the defendant. The cost of such a root barrier is not unreasonably large to avoid the identified harm to the plaintiffs' property. The plaintiffs are not guilty of unreasonable delay as the correspondence between the parties shows.

Extent of the Root Barrier. The question arises whether the root barrier should follow the whole length of the Florence and Vernon Avenue fence lines or extend only over a shorter distance. I conclude that the mandatory injunction should require the root barrier to extend along the full length of the Florence Avenue fence line abutting as close as possible to the fence. There is cracking in several places along that fence and there are substantial fig tree roots discernible under the fence and in the lawn towards the southern side of the property near the proposed carport area. Moreover there are two fig trees on the Florence Avenue frontage. Shortening the root barrier on this side of the property risks fig tree roots finding their way around the barrier. Therefore the parties will be directed to bring in short minutes of order which will require the root barrier to extend along the fence line on the Florence Avenue frontage.

The northern or Vernon Avenue boundary is the longer of the two boundaries to the plaintiffs' property. It is not reasonable to require the root barrier to go the full length of the boundary. The evidence of root jacking and root penetration all along that boundary from the remaining tree on the Vernon Avenue nature-strip is not compelling. I accept Mrs Michos' evidence that she saw roots near the pool excavation, at the eastern end of the property, in early 2005. But those roots could and should most probably be accounted for by the two fig trees in Vernon Avenue which have now been removed. In my view the appropriate remedy is to require a root barrier to extend along that boundary, as far as the rear wall of the old residence, where the 2005 extension begins.

Damages

Introduction

Damages are recoverable in nuisance. Damages may be awarded for reasonably foreseeable harm caused by the defendant's activity that amounted to the nuisance: Overseas Tankship (UK) Ltd v Miller Steamship Company Pty Ltd (Wagon Mound (No 2)) [1967] 1 AC 617 at 639-640 per Lord Reid; Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 at [296] per Bergin CJ in Eq. The plaintiffs' damages claim is met with a response that much of the damage of which they complain is caused by natural forces. This raises the question of apportioning the plaintiffs' damages claim.

Apportionment of Damages between Nuisance and Non-Nuisance related causes

It is necessary in this case, to decide what part of the loss claimed was due to the fig tree roots and what part was caused by natural forces. Such an apportionment is permitted in the authorities. In another case about tree roots, Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 at 489, Hodgson J said:

"the evidence does not establish that all of the cracking in the concrete is due to the tree roots. In relation to the concrete at the rear of the property, there is cracking across the whole width of the property, and it is clear that cracking at the side of the property furthest from the defendants' trees was not caused by the tree roots. Furthermore, in my view, the evidence does suggest that there are drainage problems in the vicinity of the front entrance to the plaintiff's block of units, I am unable to find that the whole of the cracking to the driveway is caused by the tree roots, and not contributed to at all by such things as drainage problems. It is by no means clear that replacement of the concrete at the rear of the house and of the concrete in the driveway would have been necessary if the only problem had been the tree roots.

The evidence indicates that the cost of replacing the driveway concrete is in the order of $6,000, and the cost of replacing concrete at the rear of the premises in the vicinity of the trees is of the order of $2,600. In circumstances where I cannot find that the whole of this damage is due to the tree roots, the onus is on the plaintiff to show the appropriate amount of damage. I am left in a position where on material which is really inadequate, I have to make the best assessment that I can of the damage caused by the tree roots, either on the basis of diminution in value (if the damage by the tree roots alone would not have required replacement), or some proportion of the cost of replacement. Doing the best that I can, and having regard to the circumstance that the onus is on the plaintiff, I assess the damages in relation to these matters at $2,000".

The approach in this case should be the same. It is necessary to analyse each head of damages the plaintiff claims and to assess what proportion of it was caused by the fig tree roots and what proportion was caused by ordinary movement in the soil and sub-soil layers.

The Areas of Claimed Damage

The parties adduced evidence and advanced submissions in relation to various discrete locations of physical damage that the plaintiffs alleged the defendant caused to the plaintiffs' land and improvements. The plaintiffs also claim damages for loss of amenity. Those areas of alleged damage are:

(a) The Garden Path

(b) The Western (Florence Avenue) Brick Boundary Fence

(d) The Lawn Areas

(e) The Entrance Way and North-Western Corner Steps of the Residence

(f) The Veranda near the North-Western Corner Steps

(g) The Subterranean Pipes on the Northern (Vernon Avenue) Boundary

Each of these areas of damage will be considered in turn, dealing with questions of causation, of apportionment and of the assessment of the various quotations for the work.

In all these areas the Court was assisted by expert evidence. The first area of expertise was that of the arborists. Mr Jackson, the arborist called by the plaintiffs and Ms Bennett the arborist called by the defendant conferred before hearing and gave concurrent evidence.

Two engineers also gave concurrent evidence; Mr Young was called on behalf of the plaintiffs and Mr Baxendale on behalf of the defendant. Mr Young is a geotechnical engineer and Mr Baxendale a consulting structural engineer.

In addition to the arborists and the engineers, there was another area of expert contest in the assessment of damages. Two builders gave evidence on the last day of the hearing. Mr Salvatore Di Bartoli, a builder and director of Sydney Living Constructions Pty Ltd gave expert evidence for the plaintiff as to the cost of various items of building rectification and repair. He had sworn an affidavit on 25 February 2011 and provided a further report on 9 April 2012. His experience and expertise as a builder was not in challenge.

The defendant relied upon another licensed builder, Mr Mark Williamson, who had prepared a report of 17 November 2011 and further report on 12 April 2012.

Under the Court's directions both experts had an opportunity to confer and reached agreement about a number of issues. The record of their agreement became Exhibit 5 in the proceedings.

The plaintiff suggested that particular regard should be had to Mr Di Bartoli's evidence because the Council had awarded him tenders for undertaking of work within the Botany Municipality, work that included the removal of fig trees. In the end I did not find this earlier expertise particularly helpful. It was unclear whether the fig trees that Mr Di Bartolo had worked on in the Municipality were like the ones involved in this case. I found both of the experts to be plainly competent and expert in their field. Their observations about relevant building costs were helpful. In the end, they disagreed about less than had first appeared.

(a) The Garden Path

The garden path was the least controversial head of damage. The engineers, Mr Young and Mr Baxendale, agree that the garden path has been damaged by the fig tree roots and must now be completely replaced (Exhibit L). Their agreement is not surprising. The path leads from the front of the house out to the north-western corner of the plaintiffs' property, the part closest to the Council's three fig trees.

Council had offered to pay for rectification to the garden path for a long time. This apparently was not acted on because the amount offered was only paid long after it became an out of date quotation for the work and because the other parts of the plaintiffs' claim were not addressed. The builders agree that the present building and construction costs for replacing the garden path are $12,500. The plaintiffs may recover this amount in damages against the defendant.

(b) The Western Brick Boundary Fence

The arborists agree that the expected pattern of damage to masonry walls is that the damage occurs at a point of weakness such as a joint and that the damage be in the form of vertical cracking.

The arborist experts disagree in part in relation to the lean of the fence. Ms Bennett said that she would expect that the fence would lean away from the tree roots. Ms Bennett says that the inward lean of the fence at the southern end is explained by the fig tree roots on the outside of the fence but that the outward lean of the fence at the northern end is caused by factors other than the tree roots, which are present inside the fence at the northern end, but that the outward lean of the fence at the northern end is more likely caused by soil movement because of the sandy composition of the soil. I generally prefer Mr Jackson's evidence on this subject. It satisfactorily explains the lean on this fence.

The engineer experts measured the lean at the southern end of the fence as between 1 and 2 degrees. The engineer experts agree that some of the damage - the jagged and vertical cracking - to the southern end of the fence is caused by root jacking. Mr Baxendale says that the fig tree roots are not causing the lean along the entire length of the western fence, such that the lean of the western fence is caused by other factors. Mr Young says that the outward lean of the fence at the northern end is caused by the fig tree roots going underneath the footpath, which has titled the footpath, which has, in turn, caused the outward lean at the fence at the northern end. Mr Baxendale agrees with Mr Young in respect of the cause of the outward lean of the fence at the northern end. The engineers also note that it is possible that the lean in the western fence may have been caused by works to install a root barrier or works to repair the footpath (Exhibit L). In particular, Mr Baxendale says that the installation of a root barrier on the outside of the fence would caused the lean of the fence to be an outward lean. In my view the main instability in this fence has been triggered by the fig tree roots which have caused significant movement near the corner and roots have been found along this fence.

The building experts provide an estimate for the combined costs of repairing the damage to the both the western and the northern fences. But the building experts approach the question of the cost of repairing the damage to the western and northern fences from different perspectives. Mr Williamson used Cordell measurements in arriving at his estimate while Mr Di Bartolo used lineal meterage in arriving at his estimate. The estimate provided by Mr Di Bartolo is double the estimate of Mr Williamson. Mr Di Bartolo estimates the cost of the repair work as $60,032.50 while Mr Williamson estimates the cost of the repair work as $22,359.67. Mr Williamson says that his estimate of the costs of repair of the western fence is correct because the Cordell method is flexible enough to take into account complications such as the fence being heritage listed. Mr Di Bartolo says that his estimate is an inappropriate method taking into account the heritage listed status of the fence which requires that the existing brickwork be recycled in the repair of the fence and because the Cordell method does not include the cost of barricading and pedestrian access. Furthermore, the difference between the estimates by the building experts is accounted for by the following: that Mr Di Bartolo says that the repair of the fence requires a bricklayer who is paid between $70-$80 per hour while Mr Williamson says that the repair of the western fence requires a skilled labourer who is paid $50 per hour; and, that Mr Di Bartolo allows for a 500mm concrete foundation with reinforced steel, which Mr Williamson says is excessive and instead allows for a 400mm concrete foundation with reinforced steel. The costs of the western and northern fences can be considered together as the builder experts do.

(c) The Northern Brick Boundary Fence

The arborist experts agree that there is a lean in the northern fence. Mr Jackson says that the lean in the northern fence at the western end is caused by fig tree roots. Mr Jackson acknowledges that the lean in the northern fence at the eastern end might have been caused by the removal the root masses of shrubs that were inside the northern fence as well as excavations associated with the installation of the root barrier on the outside of the northern fence. Ms Bennett says that the lean in the northern fence was not caused by fig tree roots but that the lean in the northern fence was caused by the excavation associated with the installation of the root barrier outside the northern fence.

The engineer experts did not offer an explanation for the lean in the northern fence. But the lean in the northern fence was said to be the result of multiple factors. However, the engineers agreed that cracking at the western end of the northern fence was caused by fig tree roots (Engineers' Joint Report, p2) and Mr Young said there was also cracking at the eastern end of the northern fence caused by fig tree roots.

As noted in relation to the question of the cost of repairing the damage to the western fence, the building experts provided an estimate of the combined cost of repairing the damage to the northern fence and the western fence.

In my view the northern and western fences can be assessed together. The western fence should be fully replaced. But I am not prepared to allow the whole cost of the northern fence. Nor am I prepared to allow fence costings of the rate of $60,032.50 claimed by Mr Di Bartolo. Some reasonable figure must be reached discounting for the fact that the whole of the northern fence, near its eastern end, need not be replaced because of fig tree roots and because of the high cost of Mr Di Bartolo's quote. I will allow $40,000 for replacement of both fences.

(d) The Lawn Areas

The parties disagree about how much removal of roots from the lawn is necessary. They also disagree about the cost of removal. But the Court's decision about a root barrier assists in resolving the issues about the lawn.

The arborists, Ms Bennett and Mr Jackson, both agreed that if an effective root barrier is installed at the fence line that it will only be necessary to remove the top layer of roots close to the walking surface of the lawn and the rest of the roots below the top 300 millimetres of soil can be left to die over time. I accept this evidence and I accept that the main point of removing the residual roots in the top 300 millimetres is to ensure that the lawn is smoothed out. I do not regard merely top dressing the lawn with soil as appropriate as I accept the expert evidence that the top soil may readily wash away.

Assuming that the fig tree roots are severed through the installation of a root barrier, I accept that the removal of roots could be undertaken by someone without any particular skill apart from the exercise of reasonable care to ensure the roots of other surrounding vegetation is not also removed.

The builder experts, Mr Di Bartolo and Mr Williamson, agree that the cost of removal of roots from the whole of the lawn down to a depth of 300mm is $24,337.50; and down to a depth of 600mm they estimated a cost as approximately $31,000.

Mr Williamson, the defendant's building expert, estimated however that only 20-25 per cent of the 195 m² of the lawn was visibly affect by fig tree roots. The defendant therefore contends that as only 20-25 per cent of the area of the lawn appears to be root-affected, that the cost of removal of roots from the lawn should reflect that percentage.

I accept that the excavation should take place down to a depth of 300 millimetres and no more. But the visibly affected area of roots of 20-25 per cent is not the only area which should be repaired. Roots have been found all over the lawn and extend to the front stairs. In my view, two-thirds of the lawn area may need to be replaced at the plaintiffs' discretion. Thus, the appropriate quantum is $16,225.

(e) The Entrance Way and Steps

The entrance way, steps and surrounding balustrades are tilted forward, away from the abutting wall of the residence, at its north-western corner. Substantial gaps have opened up between the high end of the steps and the wall of the house at the point where the steps enter the verandah. The question is whether this movement is caused by tree roots or by natural subsidence.

Mr Jackson, the plaintiffs' arborist, says that both the steps and balustrades leading to the north-western corner verandah of the plaintiffs' residence have been affected by the fig tree roots. Mr Jackson's second report provides evidence of some substantial roots either going under the steps or entering the gap between the house wall and the northern brick balustrade. Ms Bennett, the defendant's arborist, disagrees with Mr Jackson and says that the movement of the steps away from the house was caused by subsidence and not by root damage because the gap between the steps and the house was wider at the top and narrower at the bottom.

Mr Young, the plaintiffs' engineer, says that if there were no fig tree roots in the area surrounding the balustrade, he would assume that the movement of the steps was caused by settlement. But he says as the fig tree roots are in the area surrounding the balustrade, that the movement of the steps was probably caused by a combination of settlement and root jacking. But Mr Baxendale, the defendant's engineer, disagrees. He says that there is no root jacking involved in the movement of the steps away from the house.

The engineer experts agree, assuming that the problem of the fig tree roots is fixed, that cosmetic work is sufficient to address the cracking of the steps because the steps remain functional notwithstanding the cracking between the steps and the house. The engineer experts note that the steps are not physically connected to the house, forming a basis on which Ms Bennett's evidence might be challenged and on which Mr Jackson's evidence, at least in relation to the damage to the entrance way and steps, might be preferred.

The builder experts agreed in respect of the cost of fixing the cracking between the steps and the house. The builder experts agree that the cost of replacement of the steps is $6,000 while the cost of repair of the steps is $1,086.25 (Exhibit 5).

In my view, the damage to the steps is equally contributed to by natural subsidence and by the fig tree roots. There is clearly some root penetration occurring by roots of some local power. On the other hand the pattern of movement is generally consistent with subsidence. But only cosmetic work is required, because a root barrier will be installed. In the circumstances I only allow $500 for this head of damage.

(f) The Verandah near the Steps

The damage the plaintiffs claim needs to be repaired is cracking damage to the tessellated tiles at the north-western corner of the verandah of their residence. The plaintiffs claim that the damage to the verandah is in such close proximity to the steps that it is reasonable to infer that the damage to the entrance way and steps is linked and that both areas of damage were caused by the fig tree roots. There was evidence from both the arborists and the engineers on this issue.

Mr Jackson, the plaintiffs' arborist, has observed the cracking of tessellated tiles on the verandah near the steps and that the fig tree roots are growing towards the general area of the verandah. But he acknowledges that the question whether the fig tree roots are causing the damage to the tessellated tiles and the north-western corner of the verandah is a question for the engineer experts. Ms Bennett, the defendant's arborist, says that there is no evidence that the fig tree roots have reached underneath the house and that there is no evidence that the fig tree roots are causing the damage. I find Ms Bennett's evidence more persuasive on this issue, partly because it is more consistent with the engineers' evidence and because of my earlier conclusion that the stairs are only partly root-affected.

The engineer experts assess the damage to the tessellated tiles on the north-western corner of the verandah in a similar way. Mr Young for the plaintiffs says that it is possible, but less than 50 per cent likely, that the damage was caused by root jacking. Mr Baxendale puts the likelihood that the verandah damage was caused by root jacking as zero. He instead says that the cracking of the tessellated tiles is caused by the slab setting over time, the cracking being a characteristics of old buildings. In my view, Mr Baxendale's evidence is the more persuasive, especially given the mass of the verandah compared to the strength of the roots at this point on the property.

The builder experts agree, if there is the necessary nexus between the fig tree roots and the damage to the tessellated tiles and the north-western corner of the verandah, that the cosmetic repair cost is $1,045 (Exhibit 5). But in my view there is no nexus. Nothing should be allowed on this head of damage.

(g) The Subterranean Pipes on the Northern Boundary

The plaintiffs complain of blockages to and tree roots in the terracotta pipes adjacent to the south-western corner of the house and leading to the street curb. The plaintiffs say this has been caused by fig tree roots. The defendant says that there is no evidence the fig tree roots have caused the damage.

A DVD exhibited to Mr Michos' affidavit of 25 February 2011 indicates that some tree roots had penetrated the terracotta pipes at a number of places. In my view it is probable on the history of this site and the proximity of this line to the three fig trees that the Council's fig tree roots are responsible.

The arborist experts agreed that, generally, PVC pipes were better than terracotta pipes in withstanding penetration by tree roots. The arborist experts also agree that the terracotta pipes are predisposed to tree root penetration because of an innate design feature, and that it is practically impossible to create a seal around sewer pipers to protect them from penetration by tree roots. These agreements are consistent with an inference that the existing terracotta line has already been penetrated by fig tree roots. The history is of persistent problems with the sewer line.

The engineer experts agree that as a matter of practicality it is necessary to replace the entirety of the terracotta sewer line, if it is found to be damaged by tree root penetration.

The builders agree that if only repair of the pipes from the junction is required, the cost is $8,000; while they agree that if complete replacement of the sewer pipes is requires the cost is $15,127 for 9.0m of 150mm sewer line (Exhibit 5).

A number of factors point to the Court allowing replacement of the entire sewer line of 9 metres, given the plaintiffs total compensation for this head of $15,127. The Court's grant of a mandatory injunction that a root barrier be installed means as a practical matter the sewer line will need to be moved. The standard contract between a consumer and Sydney Water means that the householder is responsible for maintaining all waste water pipes and fittings between the property and the connection to the waste water system. Moreover, as the old terracotta pipes now have been damaged, full replacement of those pipes with new PVC pipes is the only way to put the plaintiffs in a secure position, so they will not be likely to suffer blockages in the future.

(h) Loss of Enjoyment

The plaintiffs claim to have suffered loss of enjoyment of their land as a result of the nuisance from the fig tree roots. The plaintiffs say that: (a) they have been unable to proceed with the construction of a planned, and Council approved, carport in the south-western corner of their property, with the consequence that they and visitors to their property must park on the street, where vehicles are subject to vandalism and where there is no cover during inclement weather; (b) they have been unable to use the driveway because it is unpaved and sandy; (c) they experience difficulty gardening and find gardening less pleasurable; (d) they have been unable to use the garden path because it is raised, cracked and displaced and the front gate does not open, and they advise visitors not to use the garden path because of the tripping hazard it presents; (e) they have experienced difficultly moving bins across the lawn; (f) they cannot use the lawn areas because of the dangerous state of the lawn caused by the fig tree roots: (g) they have experienced inconvenience, stress and embarrassment due to blocked sewer pipes; and, (h) they cannot move out and rent the property (in order to reduce their ongoing loss of enjoyment) because of the potential risk of injury to any tenants.

I accept Mrs Michos' evidence as to all these matters. The realism of her account of the inconvenience and loss of enjoyment she has suffered was not displaced in cross-examination. The loss of amenity assessment must be undertaken on this basis.

The Court may order the payment of damages for loss of enjoyment caused by nuisance. In Bone v Seale [1975] 1 WLR 797 at 804-5 Scarman LJ said:

"Nuisance is a wrong to property, but it is well recognised that even when there is no physical damage to property it may cause annoyance, inconvenience and discomfort to the occupier of the property in his enjoyment of it. As Mr McGregor says in MacGregor on Damages, 13th ed (1972), para 1063, when there is a claim for damages in respect of non-pecuniary loss caused by nuisance, recovery of damages is allowable and may be regarded as part of the normal measure of damages".

This statement of Scarman LJ were applied in Oldham v Lawson (No 1) [1976] VR 654 at 658 per Harris J and Stockwell v Victoria [2001] VSC 497 at [482] per Gillard J. Awards of damages for loss of enjoyment have often been modest: Oldham v Lawson at 659. But this is sometimes because they relate to a nuisance for only a short period. In Hosie v De Ferro (1984) 3 BPR 9418 McClelland J awarded $5,000 for annoyance, anxiety, inconvenience and loss of amenity to the plaintiffs. In that case there was a collapse of land caused by excavations carried out on neighbouring land. As a result of the collapse of land, for a period of nine months the plaintiffs were deprived of the use of a substantial part of their backyard, a means of access between their property and a lane at the rear of their property and also lost some degree of security to their property which had previously been provided by the wall and a gate at the top of the steps. In current dollars $5,000 in 1985 dollars would worth $12,665. Here though the nuisance has lasted for over eight years, counted from January 2004.

In Oldham v Lawson the nuisance called was noise coming from a neighbouring property. Harris J commented, at 959: "What I have to do is to determine what is reasonable compensation, and I have got to bear in mind that in so doing there must be an element of moderation. It is an interference with the enjoyment of the premises that has to be compensated. There cannot, of course, be any exact equivalent for that discomfort, any more than there can be any exact equivalent in money for damages suffered for personal injuries or for injury to reputation. His Honour awarded $500 for the noise nuisance intermittently over 12 months.

In Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108 Cohen J awarded $3,000 damages for loss of a plaintiff's enjoyment and the use of her land. In that case the plaintiff was unable to pump water from nearby creek because of the pollution of the creek.

There are a number of special factors in this case that influence the assessment of the appropriate award of amenity. The nuisance has lasted for over eight years. The defendant has taken no physical action to prevent root ingress since January 2004. The result of the root penetration is that the plaintiffs have become reasonably fearful for their own safety on their front lawn area. The use of this part of their home has effectively been sterilised by the nuisance.

The plaintiffs asked for a sum of $60,000 under this head of damage in final submissions. But in my view, on the authorities this is too high. Although the loss of enjoyment has been suffered over eight years it is desirable that a single figure be given that also takes into account interest on past loss of enjoyment and does not require further analysis. In my view an appropriate figure in the circumstances is $40,000.

Conclusions and Orders

The mandatory injunction the plaintiffs seek will be granted. But not all the damages the plaintiffs claim are due to the fig tree roots. The plaintiffs have failed to prove any damage to the verandah, only part of the damage to the verandah steps. But they have proved most of the damages to the lawn, the path, the subterranean pipes and the fences. The parties should consider these reasons and bring in short minutes of order to give effect to them and deal with issues of costs.

I direct the parties to either agree upon short minutes or exchange and provide to the Court their short minutes of order by Friday, 15 June 2012. The proceedings will be listed at 9.30am on Wednesday, 20 June 2012.

**********

Decision last updated: 12 June 2012

Medium Neutral Citation:	Dimitrios Michos & Another v Council of the City of Botany Bay [2012] NSWSC 625
Hearing dates:	10,11,12, 13 April 2012
Decision date:	08 June 2012
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:	Mandatory injunction granted to remove fig tree roots and to prevent the penetration of roots from the defendant Council's nature strip into the plaintiffs' residential property. Compensation awarded for physical damage to gardens and structures on plaintiffs' property. Damages awarded for loss of amenity to plaintiffs' property. Directions given to facilitate determination of costs and other consequential orders.
Catchwords:	NUISANCE - fig trees growing on defendant Council's land adjacent to plaintiffs' residential property - whether fig tree roots extend into plaintiffs' property - whether fig tree roots caused damage to lawns and structures on plaintiffs' property - whether the cost of repairing damage to structures on the plaintiffs' land should be apportioned - the extent of such apportionment - between any fig tree related damage and any deterioration due to environmental factors - whether plaintiffs have suffered any loss of amenity - whether the circumstances warrant the grant of a mandatory injunction to remove the fig tree roots and prevent further ingress of roots.
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Limitation Act 1969 (NSW) Uniform Civil Procedure Rules 2005
Cases Cited:	Asman v MaClurcan (1985) 3 BPR 9592 Baulkham Hills Shire Council v AV Walsh Pty Ltd [1968] 3 NSWR 138 Bennetts v Honroth [1959] SASR 170 Bone v Seale [1975] 1 WLR 797 Christie v Davey [1893] 1 Ch 316 Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 Hargrave v Goldman (1963) 110 CLR 40 Hosie v De Ferro (1984) 3 BPR 9418 Khyatt v Morgan [1961] NZLR 1020 [1962] NZLR 791 Malliate v Sharpe [2001] NSWSC 1057 McCombe v Read [1955] 2 QB 429 Morgan v Khyatt [1962] NZLR 791 Morgan v Khyatt [1964] 1 WLR 475 Orr v Ford (1989) 167 CLR 316 Overseas Tankship (UK) Ltd v Miller Steamship Company Pty Ltd (Wagon Mound (No 2)) [1967] 1 AC 617 Oldham v Lawson (No 1) [1976] VR 654 Owners Strata Plan 4085 v Mallone (2006) 12 BPR 23,691 Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149 Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 Redland Bricks Ltd v Morris [1970] AC 652 Robson v Leischke (2008) 72 NSWLR 98 Spencer v Silva [1942] SASR 213 Stockwell v Victoria [2001] VSC 497 Sturges v Bridgman (1879) 11 Ch D 852 Sutherland Shire Council v Becker [2006] NSWCA 344 Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108 Yared v Glenhurst Gardens Pty Ltd [2002] NSWSC 11
Category:	Principal judgment
Parties:	First Plaintiff:- Dimitrios Michos Second Plaintiff:- Rene Michos Defendant:- Council of the City of Botany Bay
Representation:	Plaintiffs:- Ian E Davidson SC; Andrew Connolly Defendant:- Paul S Jones Plaintiffs:- Francis Farmakidis - JSM Lawyers Defendant:- Gary Weetman - McCulloch & Buggy
File Number(s):	2009/290790
Publication restriction:	No