Hale v McAlpin

[2020] NSWLEC 1176

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hale v McAlpin [2020] NSWLEC 1176
Hearing dates:	28 February 2020
Date of orders:	20 March 2020
Decision date:	20 March 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1)   Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the elm tree in her rear garden to no more than one metre above ground level. (2)   These works must be carried out in accordance with the 2016 Safe Work Australia “Guide to managing risks of tree trimming and removal work”. (3)   The respondent is to give the applicant two days’ notice of the works in (1). (4)   The applicant is to allow any access required to complete the works in (1) during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property by tree roots – respondent has agreed to remove the tree – applicant seeks compensation for damage – whether the respondent could have prevented damage – whether the respondent should pay compensation
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Donnelly v Hunter’s Hill Council [2020] NSWDC 76 Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152
Texts Cited:	Safe Work Australia 2016 “Guide to managing risks of tree trimming and removal work”
Category:	Principal judgment
Parties:	Pamela Hale (Applicant) Susan McAlpin (Respondent)
Representation:	Counsel: P Hale (Litigant in person) (Applicant) O Yeatman (Solicitor) (Respondent)   Solicitors: RMB Lawyers (Respondent)
File Number(s):	2019/362096
Publication restriction:	No

Judgment

Background to the application

1. For around 53 years an elm tree has grown in the rear garden of a residential property in Wagga Wagga. Apparently others in its vicinity were removed when they were young, but this Silver Elm (Ulmus minor ‘’Variegata’) (‘the tree’) has grown well in its five decades to reach an impressive height of approximately 25 metres with a stem diameter of 1.2 metres.

2. The property on which the tree grows belongs to Susan McAlpin (‘the respondent’). After her neighbour Pamela Hale (‘the applicant’) approached her in early 2018 about tree roots blocking a stormwater pipe, the two neighbours shared the cost of replacing the pipe. Subsequently, Mrs Hale experienced further property damage.

3. In January 2019 Mrs Hale spoke with Ms McAlpin, telling her the damage to Mrs Hale’s property was worth over $40,000. In July 2019 Mrs Hale, via her legal representative, wrote to Ms McAlpin asking for compensation of $40,000. Via her own solicitor, Ms McAlpin asked for further details regarding the claim.

4. In November 2019 Mrs Hale filed her application with the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours Act) 2006 (NSW) (‘the Trees Act’), seeking orders for the elm tree to be removed and for Ms McAlpin to pay compensation of $62,949.24. This amount is the total for invoices already paid for repair works and quotes for further works required to repair areas of Mrs Hale’s property. The damage includes blocked pipes, shifted foundations to the dwelling, internal damage including cracked plaster, external damage including lifted paving, damage to pool surrounds and a cracked boundary wall. Mrs Hale ascribes all of this damage to roots of Ms McAlpin’s tree. She obtained reports from consulting engineer Philip Xeros and arborist Wade Ryan supporting her claim.

5. Ms McAlpin refutes that her tree has been responsible for the totality of the damage. Prior to the hearing, she offered Mrs Hale a lesser amount of compensation. She agreed that the tree should be removed to prevent further damage. Ms McAlpin obtained reports from structural engineer Saddam Ankaa and landscape architect Mark McCrone.

Framework for this decision

6. The issues to be considered and decided in determining this matter are set out below.

7. The tree must be situated on land adjoining the applicant’s land (s 7 of the Trees Act). This is the situation in this matter, a fact not in dispute.

8. The applicant must give at least 21 days’ notice of the application (s 8 of the Trees Act). Ms Yeatman explained at the hearing that Ms McAlpin did not press any dispute on this issue.

9. The applicant must have made reasonable effort to reach agreement with the tree’s owner (s 10(1)(a) of the Trees Act). Ms McAlpin disputes that Mrs Hale made reasonable effort, so this is the first issue I must determine.

10. Pursuant to s 10(2) of the Trees Act, I can only make orders if I am satisfied “…that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or (b) is likely to cause injury to any person.” Ms McAlpin refutes that her tree has caused all of the damage claimed by Mrs Hale, so this is the second issue I must determine.

11. If I am satisfied that those two jurisdictional tests described above are met, I must consider a range of matters set out at s 12 of the Trees Act. The relevant matters here will include, but are not limited to: the proximity of the tree to Mrs Hale’s dwelling; whether a permit would normally be required to remove the tree; the benefits of the tree to Ms McAlpin, to the public, and to the environment; other factors that have contributed to property damage; and any actions taken, or omissions, by each party.

12. In making this decision, apart from relying on the expert evidence and submissions, I also bring my own arboricultural expertise and experience.

Onsite hearing

13. The hearing took place onsite on 28 February 2020. Mrs Hale was self-represented, while Ms Yeatman represented Ms McAlpin. Also in attendance were Mr Xeros and Mr Ankaa, the two engineers, the arborist Mr Ryan and the landscape architect Mr McCrone. All four experts had prepared written reports, and each gave further evidence during the hearing.

Reasonable effort

14. Ms McAlpin is of the view that Mrs Hale’s claim made prior to the application lacked the evidence required for her to assess the claim, and her request for further information was unfulfilled. I accept Ms McAlpin’s expectation of further information before paying out a significant sum of money was reasonable. However, I also accept Mrs Hale’s explanation of her own position, being that her access to legal advice was limited by her financial resources, so she has acted as best she can within her limited knowledge of the jurisdiction of the Trees Act. Mrs Hale had no legal representation at the hearing. Considering the actions she has taken as a self-represented litigant, I find her efforts have been reasonable.

The claim for property damage

15. The damage described in Mrs Hale’s application, and to which she took me during the onsite hearing, I summarise as follows:

• Movement and cracking of her dwelling’s front verandah;

• Movement of the dwelling’s foundations resulting in her chimney moving;

• Damage to her stormwater pipes and downpipes at the side of her dwelling;

• Damage to the roof between her dwelling and the common boundary;

• Damage to the roof over her back porch;

• Damage to the boundary block wall;

• Uneven paving in her back porch;

• Damage to the hard surfaces and edging of her swimming pool;

• Potential damage to the sewer pipe in the rear easement; and

• Cracking of her internal plaster walls.

16. Costs already incurred by Mrs Hale, for which she provided invoices, are:

• Plumbing costs of $1,316.00;

• Ground engineering works worth $14,382.50; and

• Construction works to a wall, costing $3,612.84.

17. Mrs Hale also provided quotes for further works as follows:

• Plastering repairs costing $3,630.00;

• Painting repairs at $3,500.00;

• Concrete repairs costing $26,070.00;

• Further plumbing work at $1,087.90; and

• Repairs to the pool and surrounds, costing $9,350.00

18. The total cost of the invoices and quotes above is $62,949.24.

19. According to Mrs Hale, most of the damage results from soil movement, which in turn is a direct result of changes in soil moisture levels following blockage of her pipes by roots of the elm tree. The exception is the damaged paving at her rear porch, which is a direct result of tree roots growing beneath, and then lifting, the pavers.

Has the tree caused structural damage by blocking pipes?

20. In early 2018 Mrs Hale noticed the sudden appearance of large cracks throughout the internal plaster walls at the northern end of her dwelling, nearest to Ms McAlpin’s property. Also in early 2018 a stormwater pipe shared by the parties became blocked. The plumber engaged to rectify the problem found a mass of roots inside the pipe, entirely blocking the pipe for a length of several metres. The plumber replaced this section of pipe with new PVC pipe. Mrs Hale and Ms McAlpin shared the costs equally.

21. Mrs Hale claims that, prior to 2018 and most likely during the wet period of 2016, the tree’s roots blocked the stormwater pipe. This led to saturation of the soil around the foundation at the northern end of her dwelling. This in turn led to swelling of the soil, followed by shrinking of the soil as it dried, causing foundation movement and extensive damage to her dwelling. Mrs Hale relies heavily on the reports and evidence of Mr Xeros to support her claim.

Did the tree’s roots block the pipe?

22. Photos show the mass of roots found inside the stormwater pipe in early 2108. This root mass extended for several metres inside the pipe. There is no doubt that tree roots blocked the pipe. It follows that most of the rainwater flowing into this pipe must have gone into the surrounding soil. The first question then, is: were the roots from Ms McAlpin’s elm tree?

23. Mr McCrone correctly identified Ms McAlpin’s tree as a Silver Elm (Ulmus minor ‘Variegata’). Mrs Hale has found numerous suckers growing throughout her garden, alongside her dwelling and around her pool. Both Mr Ryan and Mr McCrone identified these as elm suckers. Both Mr Ryan and Mr McCrone were of the view that these suckers grow from roots of Ms McAlpin’s tree, so its roots spread widely, and well into Mrs Hale’s property. They were both confident that the tree’s roots would be in the area where the stormwater pipe was blocked. Mr Ryan thought that roots in the pipe might be from Ms McAlpin’s tree, although when questioned he conceded that no root samples had been tested or identified, so this opinion had not been confirmed. Ms Yeatman pointed out that there were other trees in the area: a flowering gum in Mrs Hale’s front garden, another elm in a garden across the street, and other more distant trees. She suggested that roots of these trees may also spread widely, and the possibility of their roots growing into the damaged pipe had not been ruled out.

24. Ms McAlpin’s tree is the largest tree in the vicinity of the blocked pipe. The only other elm in the vicinity is smaller and more distant. The suckers alongside the northern part of Mrs Hale’s dwelling are identical in nature to others in Mrs Hale’s back garden. Suckers in her back garden are close to Ms McAlpin’s tree. It is most unlikely that suckers in the back garden are from roots of a tree that is across the street from Mrs Hale’s front garden. Therefore I accept that suckers and roots to the north of Mrs Hale’s dwelling, in the area of the blocked pipe, are part of Ms McAlpin’s tree. The mass of roots in the pipe was disproportionate to the size of other trees in Mrs Hale’s garden, such as the flowering gum.

25. In her submissions, Mrs Hale referred to her now-late husband’s repeated use of a borrowed ‘electric eel’ to clear this pipe every two years, a matter of further relevance later in this judgment. At the onsite hearing both Mr McCrone and Mr Ryan noted that the dimensions of Ms McAlpin’s tree were greater than might be expected for its age. I concur with this observation, which suggests its roots had good access to water, possibly within broken pipes.

26. On the balance of probabilities, I find that the roots which filled and blocked the stormwater pipe were those of Ms McAlpin’s Silver Elm.

Did the pipe blockage result in further damage to Mrs Hale’s property?

27. Were this claim limited to the damaged pipe, the finding above would satisfy the jurisdictional test at s 10(2) of the Trees Act, allowing me to consider what orders would be appropriate to deal with that damage. However, this claim extends to numerous other elements of damage arising from the pipe blockage, and they too require consideration. The second question then is: did the blocked pipe lead to structural damage of Mrs Hale’s dwelling and other property on her land?

28. I accept Mrs Hale’s timeline: most of the damage to her property appeared relatively recently, from early 2018 onwards. In an earlier ‘Scope of Works’ by Mr Xeros, he identified works to be done including, but not limited to: renewal of the stormwater lines from the rear yard to the street; reconstruction of the roof over the covered area to the north of the dwelling; and injection of foam beneath the northern end of the dwelling to support and lift it. Mr Xeros identified a “…large rotation of the north wall where there is an old chimney…”

29. Mr Xeros wrote on page 16:

“There is no doubt that the storm water failures have caused general saturations along the north-side of the house, causing the settlement and rotation, that can now be seen. This situation would have been exacerbated in 2016, when the district had a historically high wet season and this was followed by a significantly hot and dryer [sic] summer. This seasonal extreme is enough to have caused and accelerated the general movements and there is [sic] now large cracks and significant floor deformations. This cracking and deformation is indeed consistent with the failures in the storm water system.”

30. Mr Xeros noted that minor movement and cracks at the southern end of the dwelling “…are normal in a building of this age and type of construction.” He concluded that this “…confirms the conclusion that the leaking storm water is a main cause of the damage.”

31. Mr Xeros also noted that some external damage to the dwelling resulted from “…moisture damage from long-term leaks to the roof drainage system.”

32. In his ‘Supplementary Report’ of 10 January 2020, Mr Xeros repeated these findings and conclusions, adding also that based on “…the significant size of the roots exposed under the floor of the rear patio area, the roots could also put a strain on any sub-surface infrastructure and cause damage.” He noted that the “…building is located in a clay area and has some pre-existing damage as a result of this.”

33. Mr Xeros’ evidence at the hearing reflected his conclusions in his report. He said that, if damage was due to seasonal change only, the whole house would be affected, not just the northern part.

34. Mr Ankaa described a combination of factors that led to the damage: excess soil moisture changes due to seasonal change (wet 2016 followed by a dry period); the age and construction type of the dwelling; and the mixed construction ages and types of separate parts of the damaged property. Mr Ankaa pointed out that the covered areas to the north and west of the dwelling were added at different times, and they have separate footings to the dwelling, making them more prone to movement. He said current standards would preclude this, although Mr Xeros disagreed with this because they included covering of outdoor areas. Mr Ankaa acknowledged that roots had blocked the pipe and increased soil moisture levels at the northern end of the dwelling, but did not identify this as the primary cause of the damage.

35. I accept that the age of Mrs Hale’s dwelling is a contributing factor to the damage. I also accept that the clay soils on which the dwelling is constructed are reactive, swelling and shrinking with soil moisture changes. Soil moisture levels changed significantly from the wet period during 2016 to the ensuing dry period, and this would lead to foundation movement and structural damage where foundations were inadequate for these conditions. Mr Ankaa is not wrong to identify these factors as contributing to the damage. However this does not explain the significant difference in the extent of damage between the southern part of Mrs Hale’s dwelling, where cracking and movement are minor, and its northern part where cracking and movement are more substantial. It is apparent that soil moisture changes have been greater in this part of Mrs Hale’s property.

36. There is little doubt in my mind that the blocked stormwater pipe caused higher soil moisture levels at the northern end of Mrs Hale’s dwelling, but I also noted other contributing factors during the onsite hearing. A roof covering the area between the dwelling and the northern boundary had no downpipe. Mrs Hale explained that a new one was to be fitted, as the old one had been leaking for some time. Water damage to external surfaces, as described in Mr Xeros’ report, indicated that not all rainfall falling here was being directed to the stormwater pipe. I therefore do not accept that the blocked stormwater pipe was the only cause of higher soil moisture levels in this area.

37. Considering the above, I find that the blocked pipe contributed to more exaggerated soil moisture changes and so to structural damage of Mrs Hale’s property, but this was not the only cause. This is sufficient to satisfy the jurisdictional test at s 10(2) of the Trees Act, so I can make orders to remedy or restrain the damage and to prevent further damage.

The tree has damaged paving

38. In the covered porch at the back of Mrs Hale’s dwelling, pavers were removed to show a root approximately 5 cm in diameter, heading away from the common boundary. The root was sufficiently large, and the paving light enough, that the root’s growth has lifted pavers, resulting in an uneven surface for parts of the paved area. Having observed the root, and suckers growing from it, Mr McCrone and Mr Ryan agreed that the root was from Ms McAlpin’s Silver Elm. I accept that the tree has damaged Mrs Hale’s paving.

Stormwater pipes

39. Mr Xeros recommended replacement of Mrs Hale’s stormwater pipes from her rear yard through to the street. This is separate from shared stormwater pipes running across the common boundary and into Ms McAlpin’s property, those being pipes that were repaired earlier. Mrs Hale’s compensation claim includes plumbing costs quoted as $1,087.90. She explained that these pipes had been cleared previously. Considering the reported condition of these pipes and the proximity of elm suckers, I accept that roots of the tree are likely to have grown through cracks in the pipe. The need for further pipe replacement is a combination of the pipe’s age and growth of the tree’s roots.

Swimming pool

40. Mrs Hale’s swimming pool and its surrounds show signs of deterioration – cracked and uneven surfaces. The pool is relatively close to Ms McAlpin’s tree. Although some elm suckers around the pool indicated that the tree’s roots grow here, there was no evidence that roots had caused the damage any more than the construction standard and age of the pool and paving. I cannot be satisfied that tree roots have caused damage to Mrs Hale’s swimming pool.

Sewer easement

41. Mrs Hale expressed her concern that the tree’s roots were in the sewer pipe in the easement along the back of her property. No evidence was provided to demonstrate this was the case. The Court cannot make orders on the basis only that damage might be occurring where there is no knowledge or evidence of that damage.

Consideration of matters at s 12

42. Having established the Court’s jurisdiction to make orders regarding some of the elements of Mrs Hale’s application, below I set out the relevant matters at s 12 of the Trees Act, and how they might affect the orders to be made.

43. The tree is in Ms McAlpin’s back garden, a few metres from the common boundary. It is closer to Mrs Hale’s swimming pool than her garden. Being a large mature tree, its roots spread for a considerable distance, encroaching well into Mrs Hale’s property. The presence of elm suckers throughout the northern part of Mrs Hale’s property indicates the extent of this encroachment.

42. A permit would normally be required from Wagga Wagga City Council (‘Council’) to remove the tree. Ms McAlpin has applied for permission to remove the tree. Council has granted permission to remove the tree.

43. Ms McAlpin’s Silver Elm contributes significantly to the landscape value of her property, to public amenity and to the broader landscape, and has done so for several decades.

Actions and omissions

46. Ms McAlpin has been a responsible tree owner. She has maintained the tree appropriately and taken action when needed. In the past, when Mrs Hale has raised concerns regarding overhanging branches, Ms McAlpin engaged arborists to prune the tree. When Mrs Hale brought the issue of a damaged stormwater pipe to her attention, Ms McAlpin contributed equally to the engagement of, and payment for, a contractor to carry out repairs.

47. When Mrs Hale first noticed structural damage to her property, she did not immediately raise it with Ms McAlpin. Rather, Mrs Hale first went to her insurer with a claim for the damage. When the insurer rejected her claim, Mrs Hale appealed this decision to the relevant ombudsman, who found that the insurer’s rejection of the claim was reasonable. It was only then that Mrs Hale first mentioned the damage to Ms McAlpin, who says that Mrs Hale asked her to pay $40,000 in compensation. Mrs Hale disagrees, saying she simply told Ms McAlpin that repairing the damage would cost about $40,000. In July 2019 Ms McAlpin received a letter from Mrs Hale’s solicitor with a claim for $40,000 to rectify property damage. Ms McAlpin’s request for further information regarding the claim went unanswered. Ms McAlpin only received more detailed information regarding the claim when she received Mrs Hale’s application.

48. The Trees Act provides a clear efficient process for neighbours to resolve tree disputes, replacing the tort of nuisance for those that can, according to the limitations of the Trees Act, apply for orders pursuant to this act.

49. The wording of s 12 of the Trees Act begins with: “Before determining an application made under this Part, the Court is to consider the following matters…”. This is followed by subsections (a) to (j). Therefore, at subsection 12(h):

Before determining an application made under this Part, the Court is to consider the following matters:

…

(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:

(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

…

50. The Trees Act does not specify how these matters are to be considered, but the Trees Act was not enacted in a vacuum: it follows years of caselaw under the tort of nuisance. Preston CJ reviewed this history in Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152, with relevance to s 12(h) at [204]–[217]. While his Honour pointed out the Trees Act’s more limited jurisdiction (for instance compensation being limited to damage to property and not loss of profits), his Honour also recognised the relevant considerations that might continue into the Trees Act, at [206]–[208]:

“206 The phrase also would include any act or omission by the owner of the land on which the tree is situated, which has contributed or is contributing to the damage or the likelihood of injury to any person.

207 The considerations that arise in the tort of nuisance concerning fault, the nature of the conduct and the state of knowledge of a person on whose land a tree which causes a nuisance is situated (see discussion above at paragraphs 44-90), would be relevant in ascertaining whether any act or omission of that person has contributed or is contributing to the damage or injury. Thus, it would be relevant to consider whether the person created the nuisance constituted by the tree having caused, causing, or being likely to cause damage, or whether the person adopted or continued that nuisance. Such conduct could be said to be “anything, other than the tree, that has contributed, or is contributing to any such damage”.

208 Acts of the owner of the land on which the tree is situated, of the kind given by the Law Reform Commission in its Report 88, Neighbour and Neighbour Relations, would also fall within the phrase. The Law Reform Commission recommended that the Court should consider whether the tree landowner created the nuisance by planting the trees, whether there was malice involved in planting the trees, whether the trees were planted in accordance with a local council’s tree planting policy, whether the tree was planted with the intention of causing loss of enjoyment to the neighbour and the reasonableness or otherwise of the behaviour of the tree landowner: see paras 2.47, 2.48 and 2.51, pp 34-35, quoted above in paragraphs 127 and 129. Although these matters have not been included as express matters in the Trees (Disputes Between Neighbours) Act 2006, they may fall within the ambit of “anything, other than the tree, that has contributed, or is contributing to” the damage or the likelihood of damage to property or the likelihood of injury to any person.”

51. Recently, in Donnelly v Hunter’s Hill Council [2020] NSWDC 76, Dicker SC DCJ, contemplating the tort of nuisance in relation to tree damage, wrote at [42]:

“In the situation where a defendant has not itself created the situation which results in the plaintiff sustaining damage, liability in nuisance is established only if the defendant has adopted or continues the nuisance with knowledge of its effect. Kaye J explained this concept in City of Richmond v Scantelbury [1991] 2 VR 38, at 40-41, as follows:

“There is a line of authority preceding and including the Privy Council's decision in Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258 whereby it is now settled law that an occupier is liable for the continuance of a nuisance provided that he has knowledge of its existence or he ought to have had knowledge of it. In Montana v Fasson, at p261-p262, Lord Ackner, delivering the judgment of the Board, described the following passage from the speech of Lord Wright in Sedleigh-Denfield v O'Callaghan [1940] AC 880, at p904 as the locus classicus (of the law on this subject):

'Though the rule has not been laid down by this House, it has I think been rightly established in the Court of Appeal that an occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise. But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience. The responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if, with knowledge, he leaves the nuisance on his land. The same is true if the nuisance was such that with ordinary care in the management of his property he should have realised the risk of its existence.'

In Sedleigh-Denfield v O'Callaghan, Viscount Maugham, at p894, expressed the principle that “an occupier of land 'continues' a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so”.

Lord Romer, at p913, said of the matter then before the House: 'The respondents did not themselves create this potential nuisance, and cannot therefore be held liable for its creation. But an occupier of land upon which a nuisance has been created by another person is liable if he 'continues' the nuisance. What acts or omissions on his part are sufficient to constitute continuance of the nuisance is a question that probably does not admit of a comprehensive answer. But I agree with my noble and learned friend upon the woolsack, whose opinion I have had the privilege of reading, that the occupier 'continues' a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so.'”

52. It is reasonable then, under s 12(h), to consider the behaviour of the tree owner (for instance, was there any malice intended in planting or maintaining the tree?), the tree owner’s knowledge of the situation and whether they knowingly continued a nuisance. It is also reasonable to consider what actions were omitted, or not taken, by either party to prevent a nuisance being continued.

53. As described above, Ms McAlpin has acted responsibly, responding promptly when issues regarding her tree were brought to her attention. She did not plant the tree, but has maintained it well during her ownership of the property and the tree.

54. Ms McAlpin was unaware of any damage the roots of her tree might be causing to Mrs Hale’s property at the time that damage occurred and up until Mrs Hale informed her in 2018. Ms McAlpin did not knowingly cause the damage. When asked to pay $40,000 compensation, she acted reasonably in asking for further information regarding the damage and its cause. It would not have been reasonable to remove the tree at significant cost, or pay the requested compensation, without substantial evidence to demonstrate causation of the damage. I therefore find that Ms McAlpin did not contribute to Mrs Hale’s property damage through her own actions or omissions.

55. On the other hand, Mrs Hale had some knowledge of the damage, and believed Ms McAlpin’s tree was the cause of this damage, for some time before she informed Ms McAlpin. Then, when she first claimed compensation, she included insufficient supporting evidence for Ms McAlpin to properly assess the claim. Her own acts or omissions prevented Ms McAlpin taking action earlier to prevent any further damage.

56. Mrs Hale also admitted during her own submissions that her now-late husband, who died approximately seven years ago, had cleared stormwater pipes with a borrowed ‘electric eel’ every two years or so. That is, Mrs Hale (and her late husband) had knowledge that roots were repeatedly blocking pipes. Mrs Hale did not suggest in her submissions that Ms McAlpin had knowledge of this at the time. After 2013, the pipes were no longer cleared, despite Mrs Hale being aware of the issue. If, as I have found earlier, blocked stormwater pipes contributed to Mrs Hale’s property damage, this is something she may have foreseen and therefore prevented, but not something Ms McAlpin could have foreseen.

57. Ms McAlpin also had no opportunity to prevent roots lifting the paving at the rear of Mrs Hale’s dwelling, the other element of Ms Hale’s claim where I found causation by Ms McAlpin’s tree.

Conclusions

58. I have found that Ms McAlpin’s tree contributed to some elements of Mrs Hale’s property damage, being structural damage to her dwelling and attached structures, and to paving in her back porch. Other factors including the age and quality of structures, seasonal soil moisture changes and soil type have also contributed. Because I have found that the tree contributed to damage, I can make orders for tree removal and compensation.

59. Both Mr McCrone and Mr Ryan agreed that installing a root barrier to prevent further damage being caused by Ms McAlpin’s tree would be impractical. Installing a root barrier would result in the loss of a large portion of the tree’s roots; it would only provide a temporary solution. They agreed that tree removal was the most appropriate action for preventing further damage. I concur with this conclusion. Ms McAlpin has already determined to remove the tree and obtained Council permission to do so. The tree has contributed benefits beyond Ms McAlpin’s own property. She has paid for its maintenance and must now also pay for its removal.

60. Ms McAlpin did not cause damage to Mrs Hale’s property through her own actions or omissions. She had no reasonable opportunity to prevent the damage. On the other hand, Mrs Hale’s own omissions have contributed to the damage. Therefore none of the cost of rectification works will fall to Ms McAlpin. Mrs Hale shall bear the costs of any repair works she carries out to her property.

Orders

61. As a result of the foregoing, the Court orders:

1. Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the elm tree in her rear garden to no more than one metre above ground level.

2. These works must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

3. The respondent is to give the applicant two days’ notice of the works in (1).

4. The applicant is to allow any access required to complete the works in (1) during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Amendments

09 April 2020 - Correction to typographical errors at [55] and [59] - 'property' to 'properly' and 'Mr Wade' to 'Mr Ryan' (respectively).

Decision last updated: 09 April 2020