Donnelly v Hunter's Hill Council

[2020] NSWDC 76

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Donnelly v Hunter’s Hill Council [2020] NSWDC 76
Hearing dates:	3-6 February 2020; 20 March 2020
Date of orders:	01 April 2020
Decision date:	01 April 2020
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff in the sum of $35,470.33. (2) The parties are to bring in short minutes of order within 14 days to reflect the reasons of the court. (3) Liberty to the parties to approach the Associate to Dicker DCJ to relist the matter if necessary for further argument about the costs of the proceedings and the precise form of the injunctive order to be made.
Catchwords:	Torts – private nuisance – large camphor laurel tree located on the defendant council’s land – alleged damage to the plaintiff's front fence, gate structures and front paving – whether elements of private nuisance have been established – extent of damages suffered – whether injunction should be ordered – form of injunctive relief appropriate   Jurisdiction – jurisdiction of District Court to grant ancillary injunctive relief
Legislation Cited:	District Court Act 1973 (NSW) Local Government Act 1993 (NSW) Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Care Park Pty Ltd v Universal One Communication Pty Ltd [2019] NSWSC 1405 Fearn v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104 (Court of Appeal) Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 Hargrave v Goldman (1963) 110 CLR 40 Kraemers v Attorney-General for Tasmania [1966] Tas St Rep 15 Lawrence v Fen Tigers Ltd [2014] AC 822 Malliate v Sharpe [2001] NSWSC 1057 Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169 Michos v Council of the City of Botany Bay [2012] NSWSC 625 Morgan v Khyatt [1964] 1 WLR 475 Owners - Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Semple v Wilson [2018] NZHC 992 Torette House Pty Ltd v Berkman (1940) 62 CLR 637 Valherie v Strata Corp No 1841 [2004] SASC 170 Young v Wheeler (1987) Aust Torts Reports 80-126
Category:	Principal judgment
Parties:	Peter Edward Donnelly (Plaintiff) Hunter's Hill Council (Defendant)
Representation:	Counsel: B C Kasep (Plaintiff) D Kelly (Defendant)   Solicitors: Pikes & Verekers Lawyers (Plaintiff) Gillis Delaney Lawyers (Defendant)
File Number(s):	2019/00078124

Judgment

1. In these proceedings, the plaintiff, Dr Peter Donnelly, brings a claim against the defendant, Hunter’s Hill Council, in the tort of nuisance seeking damages and related injunctive relief. The proceedings relate to a large camphor laurel tree which is growing on the nature strip owned by the defendant council immediately in front of the plaintiff's house in Futuna Street, Hunters Hill in Sydney. The plaintiff asserts that the roots of the camphor laurel tree are pushing against the front sandstone fence and gate of his property, causing the fence and gate to be forced out of alignment and other roots have raised pavers in the front footpath to the plaintiff's house creating a trip hazard and substantially damaging as a whole the plaintiff’s property.

2. The defendant accepts, despite its Defence, that the roots of the camphor laurel tree growing on the defendant's nature strip have caused the damage to the fence, gate and the pavers but submits that the tort of nuisance has not been established and that the damages sought are excessive and that the injunctive relief sought should not be granted.

3. A substantial number of experts’ reports have been relied upon by the parties for the purposes of the proceedings.

4. The case is solely brought in private nuisance. Such a claim against a council in relation to a tree on its land is permitted under the Trees (Disputes Between Neighbours) Act 2006 (NSW): see s 4(2)(a).

The pleadings

5. Proceedings were commenced by the plaintiff by a Statement of Claim filed on 5 March 2019. An Amended Statement of Claim was filed with leave on 6 February 2020. It is unnecessary having regard to a number of matters which were agreed, for the court to consider the Amended Statement of Claim in detail (except as to the form of any injunctive relief). The plaintiff asserts that at all material times roots of the camphor laurel tree in question have penetrated and encroached on the plaintiff's land, exerted pressure on the front fence and the entrance gate and/or its sandstone piers and have caused damage to the plaintiff’s improvements on his property and a sewer pipe on the property. Particulars of the damage are given in paragraph 8 of the Amended Statement of Claim. It is also pleaded that as a result of the matters set out, the plaintiff has suffered loss and enjoyment of his land, inconvenience, stress and embarrassment for which damages are sought. It is particularised that the damage caused by the roots of the camphor laurel tree to the plaintiff’s path within his property has caused a tripping hazard which requires the plaintiff, his family and visitors to exercise care and they remain at risk of tripping and falling. Also it is particularised that damage has been caused to the fence, the entrance gate and/or its sandstone piers. It is particularised that the roots of the camphor laurel tree have blocked the sewer pipe to the property causing problems with the plaintiff’s toilet facilities within his property. The plaintiff pleads that he has requested the defendant on a number of occasions in the period from 2017 to 2018 to remove the camphor laurel tree but the defendant has refused to take action.

6. It is pleaded in paragraph 11 of the Amended Statement of Claim that the roots of the camphor laurel tree constitute and continue to constitute a nuisance that the defendant has continued or adopted by permitting the growth of the camphor laurel tree with notice of its effect and by neglecting and refusing to take any action to abate the nuisance.

7. Further and better particulars were sought of the original Statement of Claim by the solicitors for the council from the solicitors for the plaintiff by letter dated 2 April 2019 (Exhibit A page 10). In the further and better particulars provided dated 15 April 2019 (Exhibit A page 12), it is asserted that the plaintiff first became aware of the encroachment of roots of the camphor laurel tree and that the roots were exerting pressure on the fence, entrance gate and sandstone piers in November 2017 or shortly thereafter. The correspondence between the plaintiff and his wife, Mrs Donnelly, and the defendant council was provided with the further and better particulars. I will consider this correspondence in more detail further below. Photographs of the alleged damage to the plaintiff's front fence and property were also provided.

8. In its Defence filed 10 April 2019, the defendant denies the nuisance. It admits the plaintiff has requested the defendant to remove the camphor laurel tree but denies that the roots of the camphor laurel tree constitute a nuisance or that the plaintiff is entitled to the relief sought.

Matters admitted on the pleadings

9. The defendant has admitted a number of matters in its Defence filed 10 April 2019 which was in response to the Statement of Claim. Those matters, in summary, are as follows:

1. The plaintiff is and was at all material times the registered proprietor of the land comprised in Certificate of Title Folio Identifier B/XXXX and known as X Futuna Street Hunters Hill;

2. The defendant is a council duly constituted under the Local Government Act 1993 (NSW) and is liable to be sued in the name of “Hunter’s Hill Council”;

3. The defendant is and was at all material times the owner of a nature strip (or road reserve) adjacent to the plaintiff's land;

4. There were at all material times improvements on the plaintiff's land that consisted of a metal and sandstone fence along the front boundary of the plaintiff's land;

5. A metal pedestrian front entrance gate with sandstone piers adjoined the fence;

6. There was a path from the front entrance gate made of paving stones with mortar joints;

7. There is and at all material times was a sewer pipe on the plaintiff's land;

8. There is and was at all material times growing on the defendant's land a camphor laurel tree in close vicinity to the front boundary of the plaintiff's land;

9. The plaintiff has requested the defendant to remove the camphor laurel tree.

Issues to be determined

10. On 3 February 2020, the plaintiff’s solicitor provided to the court a schedule of issues indicating the matters admitted by the defendant in its Defence and the issues for determination in the proceedings.

11. The plaintiff submits that the issues for determination are as follows:

1. Whether the roots of the camphor laurel tree are an actionable nuisance that the council has continued. This issue requires a determination that the roots of the defendant’s camphor laurel tree have invaded the plaintiff's land and create an actionable nuisance;

2. Whether the plaintiff is entitled to recover damages for the cost of repair of his fence, entrance gate and path, loss of enjoyment of his land, stress, inconvenience and embarrassment and out-of-pocket expenses incurred prior to the commencement of the proceedings;

3. If the roots of the camphor laurel tree are an actionable nuisance, whether there are any special circumstances which warrant the plaintiff Dr Donnelly being denied injunctive relief. It is accepted that injunctive relief is a discretionary remedy. It is asserted that Dr Donnelly is prima facie entitled to an injunction and he will be deprived of that only if special circumstances exist; and

4. If there are no special circumstances indicating that injunctive relief should not be granted, what is the form of the injunctive relief and whether it should amount merely to a negative restraint against the defendant from causing or permitting roots of the camphor laurel tree to cause a nuisance or be in mandatory terms requiring the council to remove the camphor laurel tree. It is noted that three alternative forms of injunctive relief are set out in the Amended Statement of Claim.

Summary of the evidence

12. The plaintiff, Dr Donnelly, did not give oral evidence. It was stated from the bar table by counsel for Dr Donnelly that he has existing commitments to patients in his practice as a specialist endocrinologist which he felt duty-bound to maintain. Oral evidence was given by Mrs Donnelly, who, although not a registered proprietor of the property in Futuna Street in Hunters Hill, is the wife of Dr Donnelly, resided at the property and has factual knowledge of the issues and background to the dispute including the correspondence. There was also tendered a folder of documents which became Exhibit A in the proceedings. This included correspondence, photographs and expert evidence in a number of reports. Concurrent expert evidence was given also orally by two arborist experts retained to provide reports to each of the parties.

Background factual matters

13. It is important to set out some background factual matters. Unless it is indicated to the contrary, these constitute my findings of fact in the matter based on the evidence before the court.

14. Hunters Hill is a suburb in Sydney which contains numerous buildings of heritage significance and has many large trees in it. On the plaintiff's property at X Futuna Street Hunters Hill is constructed an old house. It is asserted in the plaintiff's chronology (which was adopted by Mrs Donnelly as correct) that the house, which is of sandstone, was constructed in 1889 but there was no direct evidence before the court of the age of the house. However, the house in question has been constructed on the property for many decades and appears to be represented in a photograph which was in one of the experts’ reports from about 1943. It is also asserted in experts’ reports that the house at X Futuna Street is a heritage item.

15. On 1 April 1980, title to the house at X Futuna Street, Hunters Hill, was transferred from the previous registered proprietor to the plaintiff, Dr Donnelly. The transfer (Exhibit A page 108) suggests that the transfer was registered. It is not disputed that Dr Donnelly is the registered proprietor.

16. On 26 September 1989, the defendant council granted building approval to the plaintiff for the construction of a sandstone and wrought iron fence at X Futuna Street. There is nothing to indicate that the fence was not constructed soon after approval was given. Accordingly, the fence in question in the present case has been in place for about 30 years. This was confirmed by Mrs Donnelly. The plans for the fence (Exhibit A page 112) show that the fence was to be constructed in a Victorian heritage style for “Mr & Mrs P Donnely” [sic]. Photographs in evidence show that the fence was in due course constructed in the style as appears in the plans (Exhibit A page 142).

17. Between 25 November 2017 and the end of 2018, there was extensive correspondence between Dr and Mrs Donnelly and the defendant Council in relation to the camphor laurel tree and alleged damage which the tree roots were causing to the property of the plaintiff. It seems that earlier in November 2017, the plaintiff had work completed to his verandah at X Futuna Street by a carpenter, Mr McCartan. Mr McCartan apparently alerted Dr and Mrs Donnelly to the alleged damage to the front fence and gate (Exhibit A page 122). There is no evidence Dr Donnelly (or Mrs Donnelly) should have been aware of the alleged damage prior to being so alerted. It seems that Dr and Mrs Donnelly had a builder inspect the fence and he advised to contact the Council seeking the immediate removal of the camphor laurel tree due to alleged damage which had occurred which was described as “significant”. On 25 November 2017, Dr and Mrs Donnelly wrote to the Council alerting them to the damage to the front fence including the sandstone base, and asking for the tree to be removed.

18. On 30 November 2017, there was a telephone conversation between one or both of Dr Donnelly and Mrs Donnelly and a Council officer Ms Tracy Ivin, the Parks and Landscape Coordinator, in which Ms Ivan apparently stated that the camphor laurel tree would be removed early in 2018 following notices to neighbours. This was confirmed in a letter to Ms Ivin by Dr and Mrs Donnelly dated 8 November 2017 (Exhibit A page 114). By letter dated 23 January 2018, Ms Ivin stated that the defendant was proposing to remove the camphor laurel tree located in front of X Futuna Street: “The tree has grown quite large for its location and has the potential to damage the sandstone fence located adjacent to it as it increases in girth. A surface root can be seen growing parallel to the fence.” This letter was sent to apparently a number of residents in Woolwich (the peninsula part of the suburb of Hunters Hill).

19. By letter dated 30 January 2018, the defendant Council wrote to Dr and Mrs Donnelly stating that the Council had inspected the tree and found the tree to be in good health at the time of inspection. It was recorded that the Council had received many responses in relation to the request for the tree’s removal with a number of residents wishing the tree to remain. An engineering report from Dr and Mrs Donnelly from a qualified structural engineer was requested (Exhibit A page 116).

20. An email was sent by Dr and Mrs Donnelly to Ms Ivin on 31 January 2018 forwarding photographs in relation to the alleged damaged caused with a reference to stone pavers in the footpath from the plaintiff’s gate to his front door being raised (Exhibit A page 117).

21. From this time, the Council appeared to be of the view that having regard to the opposition from a number of residents, the tree should be maintained and that there were possibilities for the plaintiff to alter the fence to allow the spread of the roots of the camphor laurel tree without distorting the fence.

22. Dr and Mrs Donnelly requested a meeting on site with Council officers on 21 February 2018 (Exhibit A pages 119-120). It seems that by this time a report from an engineer had been provided to Council. The Council Group Manager agreed to an on-site meeting (Exhibit A page 121) by letter dated 22 February 2018.

23. In an email from Dr and Mrs Donnelly dated 9 March 2018, there was a reference to damage to the pavers of the plaintiff inside the front gate from the roots of the camphor laurel tree with elderly persons having tripped on the plaintiff’s pavers and on the public footpath (Exhibit A page 123). It seems that a site meeting occurred in early March 2018 (Exhibit A page 124). Dr Donnelly pressed for the Council to urgently remove the camphor laurel tree and to pay for the restoration of the plaintiff’s front fence and path due to the roots creating a tripping hazard (Exhibit A page 124). In due course, a letter was sent to the Mayor of Hunter’s Hill Council by Dr Donnelly dated 15 April 2018 raising issues relating to the tree (Exhibit A pages 125-126).

24. By letter dated 23 April 2018 to Dr and Mrs Donnelly from the Council, the Council referred to investigations it had made “to ensure the best outcome for all involved”. Receipt of a structural engineer's report from the plaintiff was noted. As a result of advice from an arborist and an engineer from the Council, the Council informed Dr and Mrs Donnelly that the tree would be retained with some action being taken to alleviate structural pressure on the front fence. This included alteration to the front fence to the plaintiff's property. The Council refused to pay for the cost of the engineer's report commissioned by the plaintiff at the request of the Council.

25. Dr Donnelly, by letter dated 26 April 2018, requested a copy of the reports referred to in the Council's 23 April 2018 letter (Exhibit A page 132) and these reports were in due course provided.

26. In a letter from Dr Donnelly dated 3 May 2018 to the Council, Dr Donnelly referred to the history of the matter including the review of Ms Ivin and noted: “The roots continue to advance in size on the pavement and the roots continue to further encroach on our property and push our Palisade fence including one pier both vertically and horizontally” (Exhibit A page 134). In due course, the plaintiff retained solicitors and wrote to the Council foreshadowing a claim in nuisance for the damage allegedly caused by the camphor laurel tree to the plaintiff's property and stating that it was clear that a landowner could be liable in nuisance for the encroachment of tree roots onto a neighbouring property which caused damage to that property. Relevant authorities were referred to in the solicitor’s letter and various experts’ reports were provided. The solicitors for the plaintiff sought an undertaking for the Council to cease the nuisance constituted by the invasion of the tree roots from the camphor laurel tree by the removal of the tree, the payment for repairs to the plaintiff’s front fence and footpath and to pay reasonable legal and expert expenses involved in the making of the claim. Proceedings were foreshadowed if the Council did not take action.

27. By email dated 22 August 2018 from Mr Tony Hatgis from Claims Management Australasia who asserted to be acting on behalf of the Council in relation to the claim, Mr Hatgis stated: “Council concedes the Camphor Laurel tree has contributed to the damage sustained to the fence. Council does not concede the entire fence is damaged and therefore only a part of the fence requires repair”. A contribution of 40% of the cost of the repairs as set out in the plaintiff’s expert report was offered.

28. The plaintiff’s solicitors by letter dated 20 September 2018 confirmed the plaintiff’s claim and sought the undertaking for the removal of the tree with related expenses. A report was provided from a landscapist asserting that the tree’s roots were damaging the fence.

29. By letter dated 30 November 2018 from the plaintiff's solicitors to Claims Management Australia, it was asserted that the problems caused by the tree within the plaintiff’s property had become more serious. Again legal proceedings were threatened. This letter confirmed issues relating to the blockage of a sewer pipe. By email dated 10 December 2018, Mr Hatgis confirmed that the tree would not be removed, apparently because of 21 submissions from surrounding neighbours all expressing a desire for the tree to be retained (Exhibit A page 145).

13. As a result of the Council's refusal to take action as requested by the plaintiff through his solicitors, the plaintiff filed the Statement of Claim referred to above on 5 March 2019.

14. I will make further findings in relation to the matter later in these reasons in the light of the oral and expert evidence which I will set out below.

15. It is fair to say that the parties’ positions have become somewhat entrenched. The plaintiff wants the tree removed. The defendant wants to retain the tree if at all possible, including with any necessary alterations to the existing fence, having regard, inter alia, to the representations it has received from a number of ratepayers and a desire to retain the tree due to its age and tree canopy.

Oral evidence of Mrs Donnelly

33. Oral evidence was given by Mrs Judith Donnelly, the wife of the plaintiff Dr Donnelly. As stated above, Dr Donnelly was not called to give evidence in the proceedings. The defendant took no Jones v Dunkel point in relation to Dr Donnelly's failure to give oral evidence.

34. In her oral evidence, Mrs Donnelly confirmed as true and correct, a chronology which became Exhibit B in the proceedings. The chronology included a reference to a friend of Dr Donnelly and Mrs Donnelly, Mrs Carolyn Mulqueeney, tripping and falling on the path between the plaintiff’s front gate and his house in April 2018. Mrs Mulqueeney was an elderly lady who passed away on 19 March 2019 aged 77 years. Mrs Donnelly said that Mrs Mulqueeney left the house walking towards the gate where there was a “very large root…from the camphor laurel tree” and she saw her tripping and falling but was fortunately caught by Dr Donnelly: T38.8; .28. Mrs Donnelly confirmed she saw Mrs Mulqueeney trip on the tree root. I accept this evidence.

35. In relation to the plan for the plaintiff's front fence, which is at page 112 of Exhibit A, Mrs Donnelly confirmed that this was the plan of the palisade fence which was built at the front of the house about 30 years ago. She gave evidence that the neighbours in No X Futuna Street had located a fence at a heritage house in Richmond and had built a similar fence at their property. Mrs Donnelly said that as Dr Donnelly's house was the same as the house at No X, they asked their neighbours whether they could copy the fence and they agreed. When asked about the cost of construction of the fence and the gate which was built 30 years ago, Mrs Donnelly said that the cost may have been around $100,000 but she was not sure: T39.21. She said that all the stone necessary for the fence had been carved on site: T39.22.

36. Mrs Donnelly confirmed that the letters from her and Dr Donnelly to the Council had been prepared by both Dr Donnelly and herself. In relation to the first letter dated 25 November 2017 (Exhibit A page 113), Mrs Donnelly confirmed that what prompted the letter was a comment from a builder who was repairing their verandah who indicated that the camphor laurel tree was pushing the fence over and recommended that they contact the Council to have the tree removed otherwise there would be a lot of damage caused in the future: T39.35. Later Mrs Donnelly confirmed that she had not been aware of the damage being caused by the tree until it was pointed out to her. When asked about the proposal of the Council in its letter dated 23 April 2018 for alterations to their fence at the front of their property Mrs Donnelly said the proposal was “totally unacceptable”: T41.26.

37. Mrs Donnelly was asked about the incident on 3 November 2018 at her property referred to in the chronology. Mrs Donnelly said that the dog barked at about 3am and the next morning they got up and she noted that the small entry gate was wide open and a pair of dark glasses had been left on the pathway. She said that this raised security concerns to her, including that their dog could get out of the gate: T41.44. Mrs Donnelly said that the gate was a security gate and was between about 1.5m and possibly 2m in height: T42.14. She said it had a security lock on the gate which required a tongue on the gate to be inserted into the stone pier to lock the gate. She said that as the stone pier had been moved by the camphor laurel roots, the distance between the metal tongue on the gate and the stone pier had widened, making it more difficult to lock the gate. After some visits by a locksmith, the gate mechanism could not be extended any further and with a bit of force it could be pushed open. Since that time, a chain and padlock had been used by Dr and Mrs Donnelly to secure the gate. With that addition, the gate could not be pushed open. In relation to paragraph 26(a) of the joint arborist expert report, Mrs Donnelly said that the gate was always able to be closed but the problem was that the gate could be pushed open with some force with the security lock not working as the tongue of the gate was too far from the moved stone pier. Mrs Donnelly importantly said that prior to 25 November 2017 there had never been any issues in relation to the gate: T43.44.

38. In relation to the March 2019 entry in the chronology, Mrs Donnelly confirmed that her 27 year old son Peter had tripped on the path between the gate and the house on the root of the tree pushing up in the pavers. She said he was a 27 year old man and able-bodied: T44. I accept that evidence.

39. In cross-examination, Mrs Donnelly was somewhat vague about the height of the gate but said it was at a height that a young person could climb over and she had noted that parcels had been left at the front door of their property.

40. Mrs Donnelly agreed in cross-examination that until November 2017 she had no reason to raise any concerns with the Council in relation to the effect of the roots on her land: T45.41. She said she had not noticed the fence leaning over and it was the builder who had noticed it and brought it to their attention. She said that the lean was not bad (“gross”) then: T45.23-.44.

41. Mrs Donnelly was asked whether 30 years ago when the fence was constructed, a number of roots had been severed from the camphor laurel for the fence to be built. She said she was not aware of that: T51.21. She agreed that the only solution for the problem as far as she was concerned was to remove the camphor laurel tree. When she was asked whether she was not prepared to consider any solution which would involve the retention of the tree even if the fence was repaired and reinstated, Mrs Donnelly said that the fence could not be put back in position properly due to the large root of the tree pushing the fence.

42. Overall, Mrs Donnelly impressed the court as making every effort to give accurate evidence and I accept her evidence. However, she appeared firmly to want the defendant Council to remove the camphor laurel tree.

Photographic evidence

43. As stated above, before the court were a number of photographs of the tree in question and the front fence and paving stone path at the plaintiff's house.

44. Included in evidence were aerial photographs taken of the relevant area in 2009 and in about 1943 showing the large tree canopy of the tree in question (Exhibit A page 160). The tree is located on the nature strip in front of the plaintiff's house and between the house and the road (see Exhibit A page 157). The tree occupies a prominent position in front of the plaintiff's house and has a number of large branches growing from its central trunk (see Exhibit A page 161). It appears that the tree provides significant shade and visual amenity near the plaintiff's house and nearby houses (Exhibit A page 162). The photographs show roots apparently emanating from the tree near the base of the plaintiff’s fence (Exhibit A pages 164 and 165). Photographs taken in mid-2019 show a large root pushing against the stone plinth of the plaintiff’s fence, a paver inside the plaintiff’s front gate being raised what appears to be a number of centimetres, part of a paver being cracked, and the base of the stone fence bowing near the root and there being a vertical rise in the fence. Roots from the tree can clearly be seen at the entrance gate to the plaintiff's property. The roots have also caused significant displacement to the sandstone kerbing in front of the plaintiff’s house on the road as well as cracking in the street outside the plaintiff’s house. In the light of the expert evidence which I will shortly set out in summary, it seems clear that the roots from the camphor laurel tree in question have caused the damage to the plaintiff’s fence, gate and the pavers within the plaintiff’s property as well as the damage to the council owned kerb and road (Exhibit A pages 77-82).

Evidence relating to out-of-pocket expenses claimed

45. The plaintiff makes a claim in damages in nuisance for the costs of repairing the fence, entrance gate and path, pre-proceeding out-of-pocket expenses and a lump sum of $25,000 for loss of enjoyment of his land, stress and inconvenience and embarrassment (Exhibit A pages 83-84 and 103-104). In support of the claim relating to the repairs, the plaintiff has tendered a report from Mr B Delprado, Project Manager and Structural Consulting Engineer, dated 17 June 2019 (Exhibit A page 61) and a statement by Mr D Grujovic, Structural Landscaper, dated 24 June 2019 annexing a quotation for the repair of the fence and front path (Exhibit A pages 69-76).

46. Mr Delprado states in paragraph 1 of his report that he was instructed to provide a report regarding possible damage to the plaintiff's property by the tree and any remedial actions that would be appropriate. Mr Delprado conducted site inspections on 3 April 2019 and 16 June 2019. He sets out the damage to the plaintiff’s front fence and path. Mr Delprado concluded in paragraphs 5 and 6 of his report that the damage to the fence and gate and the plaintiff’s path was caused by roots from the camphor laurel tree. He referred to the conclusion of Mr Paroissien, arborist, dated 6 June 2019 that the tree, although mature, was still growing. In paragraph 10 of his report Mr Delprado states as follows:

“From the observations of the nature of the damage to the fence it is clear that it has been adversely affected by the roots of the tree. From the arborist's conclusion that the tree is still growing the current damage to the fence would be exacerbated over time. This would be especially so as there would be more moisture available on the property side of the tree rather than the street side where there are predominantly sealed surfaces. Also it is not possible to install a root barrier next to the fence as this would disrupt many and significant roots within the Structural Root Zone.”

47. Mr Delprado states that in his view the only way that ongoing damage to the fence could be avoided would be to remove the tree. He then notes that to rectify the existing damage to the fence it would be necessary to demolish the wrought steel fencing and the sandstone base.

48. In his attached report, Mr Grujovic provides a quotation to repair the front fence and front path and sets out the work required. His quotation was $28,765.33.

49. Mr Delprado and Mr Grujovic were not required for cross-examination.

50. There is some suggestion in the evidence that some damage to the fence may also be caused by other trees on the plaintiff’s property. However, having regard to the photographic evidence, the report of Mr Delprado and the location of the bowing in the fence and the damage to the footpath compared to the location of the tree in question, I am satisfied that the damage referred to has been caused by the camphor laurel tree roots. This is also apparently the conclusion of the arborist experts: joint report paragraph 26 (cf paragraph 12h of the joint report where a view is expressed as to the cheese tree on the plaintiff’s property but expertise on the issue is disavowed). In submissions, the defendant did not appear to take any issue that the camphor laurel tree had caused the damage complained of.

51. In paragraphs 19-20 of his submissions dated 20 March 2020, counsel for the defendant submits, relying on two authorities including Valherie v Strata Corp No 1841 [2004] SASC 170, that precisely the same work was required to undertake repairs before the Council was notified of the damage in 2017 as was required after it was notified, therefore the plaintiff was not able to establish any entitlement for repair costs even if successful in its claim. In other words, the Council did not continue the offending conduct causing more damage.

52. The plaintiff submits this is incorrect. It was submitted that the damage must be perceptible to the plaintiff. Mrs Donnelly should be accepted that the first they became aware of the damage was in November 2017; there is no evidence they should reasonably have been aware of any damage before this time; it was speculative as to what damage to the plaintiff’s property had occurred prior to this time; the experts did not give definitive evidence about the period over which the tree root growth had occurred (T82.33-83.16) and no proper inference could be drawn against the plaintiff.

53. I accept the plaintiff’s submissions on this point. First, there was no evidence that the damage could reasonably have been perceived by Dr Donnelly prior to being informed in November 2017. Secondly, the expert evidence at T82-83 does not permit a finding to be made as to when certain alleged prior growth in the roots occurred. There is no clear evidence as to the precise extent of any prior growth causing damage as at November 2017. Thirdly, the trips of Mrs Mulqueeney and the plaintiff’s son on the root near the front path occurred in 2018 and 2019, after the defendant became aware of the problem, suggesting significant relevant growth after November 2017. Fourthly, Mr Paroissien found the fence had bowed further by 5mm between May 2018 and April 2019: Exhibit A page 46. There was thus further damage in the relevant period. Fifthly, the relevant damage to the gate appeared to occur after November 2017: T43.44. Sixthly, the size of the tree, its location and the damage to the kerb suggests the council must or should have been aware of the likely risks posed by the tree as at November 2017: see Robson v Leischke (2008) 72 NSWLR 98 at [77]. As a result, the finding urged by the defendant cannot in my view be made. The case is different having regard to the findings made by Perry J in Valherie: see [33]-[40]. I am satisfied that the plaintiff has established significant relevant damage. No obvious damage was reasonably clear to the plaintiff as at November 2017.

54. Accordingly, in the event that a nuisance is established by the plaintiff, I would allow the cost of repairs of $28,765.33.

55. An amount of $6,641.22 is claimed in relation to an engineering report sought by the Council from the plaintiff, an initial arborist report from Mr Paroissien dated 2 August 2018 and pre-proceeding legal costs. Both of the report expenses are established by the evidence (Exhibit A pages 85-86). I allow the claimed amounts in the event that nuisance is established of $825 for the report from Mr Ghosn and $880 for the report of Mr Paroissien dated 2 August 2018.

56. An amount of $4,936.22 is sought in relation to legal fees charged by the plaintiff's solicitors to advise and prepare correspondence with the Council. It appears from the evidence that the plaintiff's solicitors were only retained by him following the Council's decision not to remove the tree. There was also no suggestion by the Council of a willingness to insert a root barrier. In my view, the amount sought of $4,936.22 is an amount relating to costs incurred in relation to the proceedings and not an amount which falls within the concept of damages. I accept the defendant’s oral submissions on this issue.

57. I will consider the claim for loss of enjoyment and inconvenience further below.

The arborist expert evidence

58. There are a number of reports in evidence from arborist experts:

1. Report of Ms Anna Hopwood dated 7 February 2018 suggesting alterations to the fence to accommodate the roots of the tree and expressing the view that the pruning of larger roots of the tree cannot be undertaken to prevent further displacement of the wall;

2. Report of Mr Paroissien dated 6 June 2019;

3. Report of Mr Hare dated 23 April 2019;

4. Report of Mr Hare dated 12 September 2019; and

5. Joint report filed 21 January 2020 of Mr Paroissien and Mr Hare.

59. In his first report dated 23 April 2019, Mr Hare, who is clearly an expert arborist, expresses the following opinions:

1. The relevant tree is a mature camphor laurel tree of high landscape significance with valuable visual amenity;

2. The tree was of good vigour and structural condition, likely to be between 90 and 100 years old, with a medium useful life expectancy of 15 to 40 years;

3. The damage to the plaintiff's property from his inspection and the photographs appeared “relatively minor at this stage” and did not in his opinion warrant the removal of such a significant tree;

4. Root pruning was unlikely to destabilise the tree but would impose negative impacts upon tree health and may reduce the lifespan of the tree. There were potential solutions available which would not require the tree to be removed;

5. Engineering advice should be sought on the most appropriate course of action. The tree should be retained and protected throughout any rectification works.

60. Mr Hare noted that all his observations were made from the ground only and no subsurface root testing or soil testing had been completed by him. He noted that while the tree’s overall vigour was considered as good, considering its age, there were some signs of minor reduction in vigour possibly related to the constriction of the root system of the northern side of the tree from the conflict with the plaintiff’s fence. He noted that having regard to the tree’s significant age, its growth rate would have slowed significantly meaning that any further damage to the plaintiff's structure was likely to be reduced “and may take many years to eventuate if at all”. This should be contrasted with later evidence on this issue. He accepted that removal of the tree would stop further damage from occurring to the fence structure (page 11) but was of the view that action to remove the tree was excessive considering the loss of visual amenity and the “relatively minor damage to the structure at this stage”. He was of the view that the fence was within the structural root zone of the tree. While accepting that camphor laurel trees were known to be relatively tolerant of root damage, he was of the view that removal of such a large root near the fence would “undoubtedly impose negative impacts upon tree health”, although he was of the view that pruning the roots would be unlikely to destabilise the tree, although that was not the most suitable course of action. He was of the view that the preferred option would be to carry out modification upon the fence to protect the tree and the fence.

61. In his report, Mr Paroissien, also clearly an arborist expert, noted that he inspected the tree on 31 May 2018. Like Mr Hare, Mr Paroissien did not undertake any woody tissue testing or subterranean root investigation. Mr Paroissien confirmed that the tree in question was a camphor laurel tree of significant height and canopy size. He was of the view that at the time of inspection the tree was of good health but of reduced and fair vigour and exhibited moderate to high levels of dieback in the upper crown areas. He referred to fair to poor branch attachment for the tree.

62. Mr Paroissien in paragraph 14 of his report was of the view that the damage to the sandstone kerb and gutter, road surface, the entrance gate to the plaintiff's property, fence and pathway was due to roots from the camphor laurel tree. In paragraph 15 of his report, Mr Paroissien expressed the opinion that given the size and proximity of the roots to the damaged areas, the roots from the camphor laurel tree are the primary cause of the damage. Having regard to the tree’s declining vigour, he estimated that the tree had a short useful life expectancy of 5 to 15 years (paragraph 16). He agreed that in the structural root zone, disturbance of any sort of the tree should be avoided if possible. While expressing the opinion that pruning of the roots would likely result in adverse impact to the tree’s stability in the short term and health in the long term as it was within the structural root zone of the tree, he disagreed with the opinion that the tree was in the latter stages of growth and that further damage from expansion of the tree’s root system was unlikely. He was of the view that further root growth was likely (paragraph 31) and it would more likely occur in the front garden of the plaintiff's property due to its more favourable soil environment.

60. While accepting that camphor laurel trees were known to be relatively tolerant of root damage, Mr Paroissien was of the view that removal of a large root near the fence would undoubtedly impose negative impacts upon the tree’s health. He did not agree that there was sufficient evidence to support the statement that pruning the tree would be unlikely to destabilise the tree. In the light of the various matters he considered, Mr Paroissien was of the view that the removal of the root near the wall, and possibly other roots, may impact the tree’s stability particularly during adverse environmental conditions such as winds or following rain. Having regard to his view as to the tree's life expectancy when taking into account the tree’s declining vigour and the damage caused, he recommended that the tree be removed and a suitable replacement tree be planted.

61. Mr Paroissien further inspected the tree on 3 April 2019 when a further displacement of the fence by an additional 5mm was noted. He was of the view that this supported his opinion that further root growth from the tree was anticipated. He also noted that one exposed root from the camphor laurel tree was observed in the front garden of the plaintiff's property including in the pathway (Exhibit A page 56). Extensive photos were taken by Mr Paroissien in support of his opinion.

62. In his second report dated 12 September 2019, Mr Hare expressed similar views in his first report. He was of the view that root pruning of the visible surface roots was unlikely to destabilise the tree but further investigation would be required to assess whether there are other roots which would need to be pruned that may make root pruning unsuitable. He said the root pruning would impose negative impacts upon the health of the tree and may reduce the lifespan of the tree. He referred to potential engineering solutions available to rebuild the wall which would not require the tree to be removed and was of the view that these had not been sufficiently explored. He recommended that the tree should be retained and alternative approaches considered. He did not appear to dispute that the roots from the camphor laurel tree had caused the damage to the plaintiff’s fence and the path flag stones although he was of the view that the damage was relatively minor (paragraphs 29-30).

63. In paragraph 33 of his report he referred to the other smaller woody roots near the wall and expressed the opinion that some of the damage being attributed to the camphor laurel tree “may in fact be related to other trees on the property” (emphasis added). He said the alleged tree root ingress to the plaintiff’s sewer system could not be fully assessed as there was no evidence of it and detailed investigation would be required (paragraphs 31-32).

64. Mr Paroissien and Mr Hare prepared a joint expert report dated 21 January 2020 in which there was substantial agreement between them. Curriculum vitae from both arborist experts were attached to the joint report clearly establishing their expertise in this area. Also included were photographs showing the tree and exposed roots near the fence and the entrance.

65. Mr Hare and Mr Paroissien prepared their joint report as an outcome of a joint conference held between them on site on 14 January 2020 and subsequent phone calls and email correspondence.

66. In relation to the tree, both experts agreed that the tree was a mature camphor laurel tree, around 90 to 100 years old, of good health but reduced vigour and of high landscape significance in the streetscape and immediate surrounds due to its canopy dimensions. It is noted that there were two other significant mature trees in the vicinity and that there had been previous substantial pruning of the camphor laurel tree. It was accepted that if the tree was removed the loss of the tree would be partially offset by the adjacent mature trees.

67. There was disagreement in relation to the tree's life expectancy with Mr Hare considering the tree had a medium estimated life expectancy of 15 to 40 years, while Mr Paroissien considered the tree had a short useful life expectancy of 5 to 15 years. Mr Hare's life expectancy estimate did not take into account the location of the tree and damage to adjacent structures. Mr Paroissien’s estimate took this into account including its proximity and damage to adjacent infrastructure. He stated that in his experience trees in situations of conflict with adjacent infrastructure generally had a shorter useful life expectancy due to a combination of root damage impacts on the tree's health and pressure for removal to alleviate the need for ongoing repair works. It is noted that if repairs were undertaken to the plaintiff's property that it would have some negative effect upon the tree. Mr Hare was also of this view.

68. In relation to the issue of the damage caused by the tree, both experts agreed that the roots from the tree had caused displacement to public infrastructure including the sandstone block kerb, road surface and public footpath. Importantly, both experts also agreed that damage had been caused by the roots to the plaintiff’s property including lifting and tilting of the sandstone gate pier, the metal support rail from the gate pier to the gate, the sandstone block base course of the fence opposite the tree which had been displaced and bowed, the upper horizontal metal railing of the fence had been pushed offset by 55mm, the entire fence structure had been lifted opposite the tree and the internal sandstone pathway leading from the front gate to the dwelling had been lifted/displaced. As to the last matter, the experts agreed that the roots from the tree were at least partially responsible but other factors “could be contributing to the displacement”. The experts could not express an opinion that it was likely that blockage of the sewer pipeline adjacent to the dwelling resulted from roots from the camphor laurel tree as opposed to other plants and trees. Crucially, there were no areas of disagreement between the experts in respect to damage caused or likely to be caused by the tree.

69. The experts then considered options to resolve the issue. In relation to a “do nothing” option, both experts stated that although the current displacement of the fence was largely aesthetic at this stage, attention would be required at some stage and that repairs to the upright gate pier for security and to the footpath were important.

70. Both experts agreed in relation to the option of undertaking repairs and retaining the tree, that further investigations would be required to determine if a redesign of the fence was physically possible to enable the tree’s retention. It was agreed that the area of the fence opposite the tree was the area of most concern in relation to impediments to undertaking repairs without damage to roots or removal of roots. The experts disagreed with the option of repairs. Mr Hare was of the view that there were options for rebuilding the wall in its current location without requiring the removal of the tree whereas Mr Paroissien was concerned that repairs would result in removal of or damage to the existing exposed roots and other roots which may impact upon the tree’s vigour and structural support. He also importantly noted that there was the potential for future impacts on the new wall from existing roots that may increase in girth and potentially damage the replacement structure.

71. In relation to the option of undertaking repairs and removing the tree, the experts agreed that further investigations would be required to determine if a redesign that enabled retention of the tree was physically possible and such investigations could not be satisfactorily undertaken until the existing structure had been carefully removed. They agreed that the results of investigations may identify that the removal of the tree would be required to reconstruct the fence due to the extent of root loss that would occur during works. Mr Hare considered it unlikely that there would be a need to remove the tree while Mr Paroissien considered it a real possibility based on the known location of the roots exposed at the surface and the likelihood of further roots under the surface. Mr Hare referred to the camphor laurel is being “very tolerant of root damage” whereas Mr Paroissien referred to the potential damage to the roots with repairs which would have an impact on the tree’s vigour and potential structural support.

Oral evidence of the arborist experts

75. The two arborist experts, Mr Hare and Mr Paroissien, gave oral conclave expert evidence.

76. Counsel for the plaintiff asked questions of Mr Hare in relation to the disagreement between Mr Hare and Mr Paroissien about the life expectancy of the camphor laurel tree. Mr Hare agreed that he had used the concept of a medium estimated life expectancy which he estimated as 15 to 40 years whereas Mr Paroissien used the concept of a useful life expectancy which he estimated as being 5 to 15 years. Mr Hare accepted that the critical difference between them was that Mr Paroissien’s assessment took into account the location of the tree and damage to adjacent structures. Mr Hare described his assessment as a “purely tree-based assessment” (Exhibit A page 209 paragraph 19(b)). Mr Hare accepted as set out in paragraph 21(c) of the joint report, that Mr Paroissien took into account the proximity of the tree and damage to adjacent infrastructure including the footpath, roadway and fence and the likelihood of root damage arising from ongoing repairs to infrastructure. Mr Hare said that the different methodology used by him was the one he preferred but did not accept that it ignored the location of the tree and damage to infrastructure. Mr Hare was of the view that damage to adjacent structures was not really a relevant consideration particularly in the light of the apparent vigour of the tree.

77. Mr Paroissien expressed the view that the context of the tree was important in estimating its life expectancy. The location of the tree meant there was likely to be repairs to the infrastructure which was also likely to restrict its growth.

78. When Mr Hare was asked by counsel for the plaintiff whether if the useful life expectancy test as used by Mr Paroissien was used by him, he would need to reconsider his opinions, he stated that there had been clear damage to the structure of the fence. If this was taken into account, he said that this may affect his views slightly but he said the damage on his assessment was minor and there was no great hazard or threat as far as he could determine to the stability of the wall. In relation to paragraphs 18 to 19 to his report dated 12 September 2019, Mr Hare confirmed that there were two surface roots of the tree which were “clearly impacting the sandstone portion of the fence” with the greatest influence being the 25cm diameter root. After further cross-examination, Mr Hare accepted that the roots had caused damage to the fence and had the potential to cause further damage to the fence in the future over time. How significant that damage would be was unknown and he expressed the view as an arborist that he was not qualified to give an opinion as he was not sure of the growth beneath the surface and under the fence. Mr Paroissien agreed with these views. Mr Paroissien said that if nothing was done, the roots would continue to cause damage to the fence. He also expressed the view that if nothing was done, the damage to the gate would continue to be caused by the roots which he described as “inevitable” having regard to the damage which had already occurred to the gate. Mr Paroissien had similar views in relation to the path of the plaintiff's house. If nothing was done about the roots damage would continue to be caused to the path. Similar views were also expressed by Mr Hare in relation to the gate and the path.

79. Mr Hare was asked about paragraph 21 of his 12 September 2019 report where he said that the removal of the large root near the fence of a tree of its age “would undoubtedly impose negative impacts upon tree health.” Mr Hare indicated that large roots are relevant to the health and vigour of a tree as they assist in the uptake of water and nutrients. However, his view was only formed on what could be seen. He accepted that in relation to the pressure on the fence that something needed to be done to deal with it. However, he said it was highly unlikely that the removal of the relevant roots would make the tree unstable although more information was needed. He accepted that the Council could sever and remove the relevant roots but it may have a negative impact on the health of the tree even though camphor laurel trees were very tolerant to root removal. He said that the health of the tree could be protected with clearing vegetation around the tree, allowing for irrigation and providing nutrients to the tree.

80. Mr Paroissien said that the two roots referred to by Mr Hare were part of the structural support zone of the tree and in the absence of knowing more information about the roots he would not recommend severing them.

81. Mr Hare was asked about a root barrier as an option and he said that he could not assess whether it was a viable option as he did not know what was under the fence and more information was needed. Mr Paroissien noted that a root barrier had not been contemplated so far but these were significant roots which were likely to be underneath the fence which was why he recommended removal. Having regard for the potential to affect the tree, he would be reluctant to recommend a root barrier and certainly would not recommend it without further investigation. Mr Paroissien said that he believed that the roots were under the fence and the creation of a root barrier was not a viable option.

82. Mr Hare was asked questions by counsel for the plaintiff in relation to his proposal for a redesign of the fence (Exhibit A page 211 paragraph 45). Mr Hare accepted that this involved a redesign of the fence with a similar structure while accommodating the roots of the tree. He said this would potentially involve a redesign below ground but replacing the above ground fence as it is. When he was asked about the effect of a redesign on the surface roots of the tree he said that the presence of roots was unknown until the wall was removed. When investigations were made there was a possibility that surface roots of the tree could be removed. In relation to the options in paragraph 26 of his 12 September 2019 report for alterations to the fence, Mr Hare agreed that it depended on the view of the structural engineer. When Mr Hare was taken to Mr Paroissien’s view in the joint report at paragraph 50 that the growth of the tree could potentially damage the replacement structure, he said in his view there would first need to be an investigation of the below ground root position and a determination whether there may be a means to work around the roots to allow them to expand as part of the rebuilding process. When Mr Hare was pressed that if the tree roots remained there could continue to be caused damage to the structure on the plaintiff's property, he disagreed with this and said that they first needed to see what was there and to determine if there were ways of making sure that would not happen. On this issue Mr Paroissien said that it may not be possible to change the fence to a pier structure. That was why he used the term carefully in paragraph 50 of the joint report that with a replacement structure the existing roots “may” increase in girth and “potentially” damage the replacement structure. He believed the roots would continue to grow in size having regard to the increase in the deviation of the fence in the time he examined it from 50 to 55mm.

83. Counsel for the plaintiff put to Mr Hare that while further investigations could occur the only way of delivering certainty and eliminating future potential damage was the removal of the tree now. Mr Paroissien agreed that if certainty was required that was the position. Mr Hare also agreed with this but said it was reasonable not to remove the tree whilst further investigations were undertaken. He accepted that it was possible after further investigations were undertaken that the view could be formed that the tree must be removed. Mr Paroissien also agreed with this.

84. The experts were then asked questions by counsel for the defendant. Mr Paroissien and Mr Hare agreed that the life expectancy of the tree was one based on the visual inspection of the tree against set criteria: T72.21-.31. They also agreed that the various options available involved “educated guess work” until further investigations were undertaken: T72.33-.42. The two experts stated that these investigations involved removal of the affected fence and the involvement of an arborist and an engineer. They both agreed that an air spade should be used to vacuum out the soil around the roots. They both were of the opinion that the information required could be ascertained with the use of an air spade as opposed to a high pressure water hose which could damage the roots to the tree. They agreed that it was desirable for an arborist to be there when the excavation took place following the removal of the fence. This would allow a visual inspection and an assessment by the arborist including a mapping of the root system: T74. An engineer could identify whether and if so what roots needed to be removed for the replacement of the structure. Both experts agreed that a pier and lintel base to the fence could allow the roots of the tree to pass between the piers. Mr Paroissien agreed that until further investigations took place the desirable solution could not be determined. Mr Paroissien said that they were in a “grey area” in relation to the roots. They knew that there were roots pushing against the fence and in the plaintiff's property and he believed that the roots were likely to be underneath the fence. However, he agreed that he could not say that it was impossible to reinstate the fence in the same position without making further investigations. Mr Hare said that there were two other large trees on the property and Mr Paroissien accepted that there were two large trees in other locations on the property: T76.

85. It was put to the experts that having regard to the 5mm additional deflection in the fence over a period of about ten months in 2018-19, the camphor laurel tree roots had continued to grow. Mr Paroissien accepted that. He said he could not say that the tree would continue to grow until its death as other factors came into play. He noted that the tree was a mature tree, surrounded by paths, a road and a fence, there had been dieback in the upper crown of the tree and it had reduced vigour. He only said it was possible that roots of the tree had been severed when the fence was installed. He said the roots of the tree had continued to expand despite there being dieback in the growth. He accepted that root growth of the tree would slow at the end of its life. Importantly, Mr Paroissien gave evidence that the additional wood on the tree was a result of the tree attempting to expand further where it was up against the fence. Mr Hare agreed with this: T80.1-.21. Both experts agree that the possibility of additional damage to the structures was subject to further growth of the roots of the tree: T80.23-.33.

86. Questions were asked in relation to the structural root zone of the tree being the area in the immediate vicinity of the tree trunk. Mr Hare agreed that this was the area and Mr Paroissien identified Australian Standard AS4970 which identified the tree protection zone. Mr Hare was of the view that while recommendations were in the Australian Standards this was subject to expert arborist consideration. Mr Paroissien agreed with this in principle but said that the Standard had been prepared after careful consideration and he would be wary to go against it.

Injunctive relief

118. The various forms of injunctive relief sought by the plaintiff are set out in the Amended Statement of Claim leave to file which was granted on 6 February 2020. In my view, the evidence, particularly the joint report of the arborists and their oral conclave evidence, does not justify injunctive relief requiring the defendant forthwith or within a stated short period to remove and destroy the camphor laurel tree. Both experts said they would want or prefer more information before they would recommend this.

119. In coming to this view, I take into account my finding as to the tree’s likely life expectancy.

120. I accept the authorities referred to above that where a plaintiff has established that the defendant’s activities constitute a private nuisance, prima facie the remedy to which the plaintiff is entitled is an injunction to restrain the defendant from committing such nuisance in the future, particularly where the nuisance is more than modest: Lawrence v FenTigers Ltd, above, at 851; Malliate, above at [49]. That is because there damages are not an adequate remedy. However, the facts of each case must be considered. I particularly note paragraph 80 of Michos. Even if the damage is repaired in the present case, as in Malliate, as long as the roots remain pushing against the fence and encroaching under the path, there is a real risk that the damage to the structures will continually recur. Whilst the tree is of an advanced stage, I accept the evidence of Mr Paroissien that it appears likely that it will continue to grow but at a slower speed. In my view, for these reasons damages alone are not an adequate remedy in the present case. See also the discussion in Michos at [78]-[81]. In my view, there is no suggestion that an injunction will cause hardship to the defendant. There has also not been delay or acquiescence on the part of the plaintiff in responding to the nuisance. They have constantly pressed for action to be taken on becoming aware of the damage. In my opinion, the nuisance is not minor or trivial. I take into account the discussion in relation to injunctions in both Malliate and Michos. See in particular Malliate at [55]. The expert evidence satisfies me that there is some prospect of the tree being saved following further investigation. Both Mr Hare and Mr Paroissien recommended that further investigation be undertaken to ascertain the facts although both also accepted that removal of the tree would prevent the nuisance as a matter of certainty.

121. The defendant seeks, if, contrary to its submissions, a nuisance is found and the court believes injunctive relief is required, an amendment to paragraph 2B(c) of the relief in the Amended Statement of Claim in the following form: “The arborist, if necessary, in consultation with the engineer, is to prepare a plan, identifying any modifications of the palisade fence and entrance gate as originally constructed and located, to enable retention of the camphor laurel tree.” It says that this reasonably contemplates the need for potentially minor above ground alterations to the plaintiff’s fence.

122. The plaintiff opposes this: he says the defendant’s proposal places retention of the camphor laurel tree above the plaintiff’s rights, it avoids finality and it will likely cause further extensive dispute.

123. In my view, there is force in the plaintiff’s submissions. First, in my opinion it is important to obtain some finality and certainty in the litigation. Secondly, it is likely the suggested change will give rise to further dispute as to the need for changes to the fence and in what degree. Thirdly, it is relevant that I have found that the tree has only about a 15 year life expectancy. It is not as if a tree with a 50 year likely life may be removed. Fourthly, the proposal does seem to place the tree and its roots above the plaintiff’s private rights to seek to avoid further unreasonable physical damage to his property. Fifthly, while community assets and amenity are important, the plaintiff’s property rights must be balanced in the relief granted.

124. In my view, paragraphs 2A-2C in the injunctive relief sought in the Amended Statement of Claim are appropriate subject to the following changes. Paragraphs 1 and 2 do not, in my view, take into account the possibility of saving the tree following further investigations. The size of the tree, its prominence and its canopy support this conclusion. The term TRAQ in paragraph 2B(b) should be defined in paragraph 2B(b). In 2C(c) the wording should be changed to avoid double compensation to: “(c) costs of reconstructing the palisade fence, entrance gate and the path being costs in excess of the amount for damages awarded for these items.” Having regard to the amount of work to be undertaken and the current COVID-19 public health issues, the period in paragraph 2A should in my view be changed to four months from three months and the right to apply to extend the four month period should be incorporated.

125. The parties should bring in short minutes of order within 14 days to reflect these reasons.

126. In my view, the court has power to grant an injunction in these terms where there is an action for common law damages in tort before the court: ss 44 and 46 of the District Court Act 1973 (NSW) and Care Park Pty Ltd v Universal One Communication Pty Ltd [2009] NSWSC 1405 at [46]. Having regard to the wide terms of s 46(1), I do not believe the heading to the section which refers to "ancillary equitable relief” would prevent an injunction as ancillary in common law proceedings for damages. An injunction is in general terms equitable in nature although common law courts in New South Wales have for some considerable time been able to grant injunctive relief.

127. I thank counsel for their submissions which were helpful and comprehensive.

128. As the plaintiff has been substantially successful, my preliminary view is that the plaintiff is entitled to his costs of the proceedings subject to further submissions and evidence.

Determination

129. For the above reasons, I make the following orders:

1. Judgment for the plaintiff in the sum of $35,470.33.

2. The parties are to bring in short minutes of order within 14 days to reflect the reasons of the court.

3. Liberty to the parties to approach the Associate to Dicker DCJ to relist the matter if necessary for further argument about the costs of the proceedings and the precise form of the injunctive order to be made.

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Amendments

07 April 2020 - 1. Paragraph 100: deleted "Campbell JA"; inserted "Campbell J".

2. Paragraph 117: second last line, deleted "loss and enjoyment"; inserted "loss of enjoyment".

3. Paragraph 126: deleted "(46)(1); inserted "46(1)".

Decision last updated: 07 April 2020