Mildred v Steinhauer

[2022] NSWLEC 88

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mildred v Steinhauer [2022] NSWLEC 88

Hearing dates:

23 June 2022

Date of orders:

19 July 2022

Decision date:

19 July 2022

Jurisdiction:

Class 2

Before:

Pain J

Decision:

The Court orders:

(1)   The summons commencing an appeal dated 21 April 2022 is upheld.

(2)   The proceedings are remitted to a commissioner other than Acting Commissioner Douglas for rehearing and determination.

(3)   Exhibits are returned.

Catchwords:

APPEAL – appeal from acting commissioner’s judgment in tree dispute under s 56A of the Land and Environment Court Act – acting commissioner made order for tree pruning not removal of neighbour’s tree as sought – failure to accord procedural fairness established – no error of law in dismissing claim – no error of law in ordering inappropriate remedy – no error of law in court order for pruning of tree to be paid for by appellant to large extent – appeal upheld – exclusionary remitter order made

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 5, 7, 9, 10, 12

Land and Environment Court Act 1979 (NSW), ss 38, 56A

Civil Procedure Act 2005 (NSW), s 56

Cases Cited:

Barker v Kryiakides [2007] NSWLEC 292

Black v Johnson (No 2) [2007] NSWLEC 513

Boral CementPty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203

Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147

Bradley v Federico & Anor [2016] NSWLEC 1381

Braun v Basser [2021] NSWLEC 1510

Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367

Burnham v Ross [2021] NSWLEC 1339

Cai v Fairfield City Council [2022] NSWLEC 58

Channon & anor v Norton & anor [2015] NSWLEC 1391

Comcare v Wuth (2018) 260 FCR 89; [2018] FCAFC 13

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fang v Li [2017] NSWLEC 1503

Hoy v Coffs Harbour City Council [2015] NSWLEC 128

Initial Action v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Kostas v HIA Insurance Service Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

Li v Fang [2018] NSWLEC 33

McPherson v Lake [2017] NSWLEC 1081

Mildred v Steinhauer [2022] NSWLEC 1148

Murlan Consulting Pty Limited v Ku-Ring-Gai Municipal Council and Anor [2008] NSWLEC 318

Page v Lang [2012] NSWLEC 1205

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47

Thronberry v Packer [2010] NSWLEC 1069

Turner v Bennett [2008] NSWLEC 1364

Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105

Wood v Sleeman [2020] NSWLEC 1513

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Class 2 ‘Tree Applications’ Practice Note dated 22 November 2018

M Aronson and M Groves, Judicial Review of Administrative Action and Government Liability, (7th ed, 2021, Thomson Reuters)

Category:

Principal judgment

Parties:

Giles Mildred (Appellant)
Erna Steinhauer (Respondent)

Representation:

Appellant (self-represented)
K Sosna, agent (Respondent)

File Number(s):

2022/114099

 Decision under appeal 

Court or tribunal:

Land and Environment Court of NSW

Jurisdiction:

Class 2

Citation:

[2022] NSWLEC 1148

Date of Decision:

28 March 2022

Before:

Douglas AC

File Number(s):

2021/249664

Judgment

1. The Appellant applied for an order for the removal of a tree located on his neighbour the Respondent’s land in Seaforth Avenue, Oatley a suburb of Sydney under the Trees (Disputes Between Neighbours) Act2006 (NSW) (Trees Act). The Appellant owns a property in Cromdale Street with his wife which shares a common boundary with the Respondent’s land. The Respondent opposed the removal of her tree. In Mildred v Steinhauer [2022] NSWLEC 1148 the Acting Commissioner ordered pruning of the tree with the Appellant to pay 70% of that cost inter alia. The Appellant has commenced an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act) in relation to the Acting Commissioner’s decision. The whole decision is appealed against other than a finding that the Court’s jurisdiction was enlivened under s 10(2)(b) of the Trees Act. The Appellant represented himself in the appeal. The Respondent who is 82 years old was represented by her carer Ms Sosna. Mr Lee another neighbour in Cromdale Street whose property also shares a common boundary with the Respondent’s land provided material to support the Appellant’s case which was referred to by the Acting Commissioner in the judgment. Mr Lee observed the s 56A appeal hearing.

2. An appeal under s 56A can be made against an order or a decision of the Court on a question of law. An appeal is not a rehearing of the original dispute heard by the Acting Commissioner.

3. In written submission the Appellant identified that the orders sought were:

3. The Appellant seeks an order from the Court:

a. For the removal of the tree in question (T1), alternatively a rehearing before a full Commissioner of the Land and Environment Court;

b. In any event, the Appellant requests an order that the Respondent should pay for any and all tree remediation work ordered by the Court.

c. For a continuation of the stay of the orders (granted by Justice T Moore on 6 May 2022) made by acting Commissioner Douglas in his decision of 28 March 2022, pending outcome of the appeal pursuant to s 56A of the Land and Environment Court Act 1979 (NSW).

4. As identified to the Appellant at the outset of the hearing the orders the Court can make in this appeal if the Appellant is successful is that the appeal is upheld and the matter is remitted for a rehearing by an acting commissioner or commissioner. The Court is not able to order the removal of the tree or vary the specific orders made by the Acting Commissioner.

5. The hearing before the Acting Commissioner was held on 1 December 2021 and a site visit was held on 14 December 2021. Judgment was delivered on 28 March 2022.

Trees (Disputes Between Neighbours) Act 2006 (NSW)

6. The following provisions of the Trees Act are relevant to this appeal:

Part 1 Preliminary

…

5   Action in nuisance

No action may be brought in nuisance as a result of damage caused by a tree to which Part 2 applies or as a result of an obstruction of sunlight to the window of a dwelling, or of a view from a dwelling, caused by trees to which Part 2A applies.

...

Part 2 Court orders—trees that cause or are likely to cause damage or injury

…

7   Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

…

9   Jurisdiction to make orders

(1)  The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.

(2)  Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may:

(a)  require the taking of specified action to remedy damage to property, or

(b)  require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property, or

(c)  require the taking of specified action to prevent injury to any person, or

(d) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), or

(e)  authorise the applicant concerned to take specified action to remedy, restrain or prevent damage or (if damage has already occurred) further damage to property, or

(f)  authorise the applicant concerned to take specified action to prevent injury to any person, or

(g)  authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), or

(h)  require the payment of costs associated with carrying out an order under this section, or

(i)  require the payment of compensation for damage to property, or

(j)  require the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth.

10   Matters of which Court must be satisfied before making an order

(1)  The Court must not make an order under this Part unless it is satisfied:

(a)  that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b)  if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2)  The Court must not make an order under this Part unless it is 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.

…

12   Matters to be considered by Court

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

(a)  the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,

(b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act,

(b2)  the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,

(b3)  any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated,

(c)  whether the tree has any historical, cultural, social or scientific value,

(d)  any contribution of the tree to the local ecosystem and biodiversity,

(e)  any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned,

(f)  the intrinsic value of the tree to public amenity,

(g)  any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned,

(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,

(i)  if the applicant alleges that the tree concerned is likely to cause injury to any person:

(i)  anything, other than the tree, that has contributed, or is contributing, to any such likelihood, 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 any such injury,

(j)  such other matters as the Court considers relevant in the circumstances of the case.

Appeal grounds

7. Four appeal grounds are identified in the summons commencing an appeal. These in summary are:

1. Ground 1 - failure to accord procedural fairness on the site visit and in the final hearing;

2. Ground 2 - error of law in dismissing the Appellant’s claim under s 10(2)(a) of the Trees Act;

3. Ground 3 - error of law in ordering an inappropriate remedy and denying the Appellant’s request to order removal of the tree;

4. Ground 4 - error of law in ordering the Appellant to pay 70% of costs of the tree remediation (pruning) work as the Respondent as owner of the tree should pay those costs.

Evidence on Appeal

8. A copy of the documents submitted to the Court in support of the application before the Acting Commissioner was Exhibit A (Ex A) on the appeal.

9. The Appellant referred to various parts of Ex A. A photograph in Mr Lee’s statement before the Acting Commissioner showing a branch purportedly from the tree collapsed on his shed was referred to. The Appellant further referred to his own statement in his supplementary bundle documents before the Acting Commissioner to the effect that branches continue to fall on the properties on Cromdale Street since 1 September 2021 (when the Class 2 application was filed with the Court), along with photographs annexed to that document showing branches that have fallen onto the properties in Cromdale Street since that date.

10. The Appellant additionally referred to the letter sent to him by the Court on 9 December 2021 entitled “onsite tree hearing”. The letter stated that the Acting Commissioner had organised a site visit for Tuesday 14 December 2021 and requested that both parties be there, stating that:

The purpose of the site visit is to allow the Commissioner to clarify evidence provided to and during last week's hearing. The Commissioner will not be accepting any additional submissions during the site visit. It is unnecessary, therefore, for the applicant's expert witness to attend, as the Commissioner has his report.

11. The Appellant sought leave to rely on new evidence not before the Acting Commissioner and leave was granted to rely on the following:

1. Emails sent between the Appellant, the Court’s tree disputes filings email address and Ms Sosna and the Court’s tree disputes filings email address (Ex B). The email between Ms Sosna and the Court in Ex B dated 16 November 2021 read as follows:

…

I am writing in regards to case number 2021/249664.

I would like to inform you that Mrs Erna Steinhauer has been taking care of the tree. She has been regularly pruning the tree and is a person who is fully responsible.

The tree has been pruned by an expert in March 2016, January 2017 and July 2019.

In response to the Statement of Albert Lee, Paragraph 6; Previous damage and Paragraph 10, 11 and 12; Future damage I would like the Court to designate an expert independent plumber who will investigate the pipes underneath the tree or any damage from the roots of the tree.

In response to the Advanced Arborist Reporting I would like the Court to designate an independent arborist to investigate the state of the tree.

In response to the Statement of Albert Lee Paragraph 4 Mrs Steinhauer is 82 years old and she has got an asthma [sic] and rheumatism. She will not be capable of cleaning the garden, the house and surrounding [sic] if the decision for tree will be cut [sic]. Mrs Steinhauer lives [sic] on [omitted], Oatley for over 40 years. For last 14 years she has been a widow. Mr Giles Mildred for sure is aware that Mrs Steinhauer lives by herself. For any jobs around the garden and her house she is employing help. Mrs Steinhauer’s rheumatism is stopping her from any labour jobs.

If the tree will be cut, the hiring a clean up for the garden, house and surroundings will be very expensive. I would like ask [sic] the Court who will be responsible for the cost?

…

2. Various photographs of the tree and its branches (Ex C). The Appellant was granted provisional leave to rely on Ex C as the purpose was to demonstrate errors of fact by the Acting Commissioner.

3. A photograph of an invoice issued by Advanced Locating Services plumbers to Mr Albert Lee dated 2 December 2021 for work done to a blocked sewer line indicating the job description included “blockage caused by tree roots…” (Ex D).

Acting Commissioner’s judgment

12. The Acting Commissioner’s judgment set out the background concerning the parties’ respective addresses, the tree’s location and the parties’ submissions summarised at [3]–[4]:

3 Mr Mildred seeks orders for the removal of the tree, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), as a consequence of damage he claims it is causing to sewer pipes which run near and/or under the tree, and on the basis of his concerns that its roots will cause future damage to sewer pipes. He also claims that the tree represents a genuine risk of injury to his tenants, to his family who plan to occupy his property in the future, and to his next-door neighbour, Mr Lee and his family, who occupy the property to the rear of Ms Steinhauer. Mr Mildred also seeks that the proposed tree removal be undertaken at Ms Steinhauer’s expense, but he stressed that he makes no claim for compensation for other expenses, such as those previously incurred for pruning of the tree.

4 Ms Steinhauer prefers that the tree be retained. She notes that the tree is precious and important to her and that it has been in situ since prior to her occupation in the 1970’s. In a letter to the Court dated 16 November 2021, Ms Sosna, the respondent’s agent, wrote that should the tree be removed, the cost of cleaning up the garden, house and surroundings will be expensive, and she queried who would bear such costs. She also submitted that Ms Steinhauer had pruning works undertaken on the tree on multiple occasions in recent years but supplied no corroborating evidence.

13. The hearing process summarised at [5]-[10] was undertaken by AVL on one day followed by a site visit on another day. The Acting Commissioner recorded his findings on the tree location and health at [7]-[9]. The Acting Commissioner stated at [9]:

9 In his Tree Dispute Claim Details - Form H (Exhibit B), Mr Mildred at least inferred that the Google Earth photograph (photo) on page four displayed the tree’s present canopy spread and his diagrams showing areas of likely injury appear to be based on this. Evidence adduced at the site visit, however, showed this to be a misrepresentation in that this Google Earth photo displayed the tree prior to major pruning by the applicant in 2019.

14. At [10] he stated that the tree canopy was well clear of the Appellant’s house. Observations about the state of the canopy on the north-western side are made at [10].

15. Jurisdictional requirements are considered as specified in s 10 of the Trees Act. In relation to whether a reasonable effort had been made to reach agreement with the Respondent required by s 10(1)(a), observations are made at [13]-[15]:

13 It is clear from the details in the application that Mr Mildred has pursued a quest to have his neighbour’s tree removed from soon after he purchased his property about two years ago. He notes that before settlement of this purchase, he requested that the prior owner obtain a permit from Georges River Council (Council) “with the respondent’s acquiescence” to prune the tree. Though this pruning in 2019 was extensive and reduced the canopy overhanging the applicant’s property to a significant extent, Mr Mildred claims that this “has not reduced the risk posed by the tree”.

14 Between 5 July and 4 August 2021, Mr Mildred sent Ms Steinhauer three letters, which requested removal of the tree at his and his neighbour’s expense. The applicant notes that his neighbour, Mr Lee, subsequently made numerous representations to Ms Steinhauer, during at least one of which she advised Mr Lee that “she did not want to speak to me (Mr Mildred) regarding this matter”. The applicant also says that he was advised by Mr Lee that during his most recent discussion on 14 August 2021, the respondent told Mr Lee to “get lost and stop harassing her”, and that since this time, “the respondent has not co-operated and has ignored any requests to sign the application” to Council for tree removal.

15 Considering the reported frequency and intensity of contact with the respondent by both the applicant and his neighbour, to persuade her to remove the tree regardless that she does not want to, it appears unsurprising that Ms Steinhauer, at 82 years old, might view these representations as harassment, and want them to cease. Both the applicant and Mr Lee (as displayed in his comments quoted within Mr Mildred’s Claim details - Exhibit B) interpreted Ms Steinhauer’s lack of capitulation to their request as non-co-operation.

16. The conclusion reached at [16] was that the Appellant had made reasonable efforts to reach agreement with the Respondent as required by s 10(1).

17. Concerning damage to the sewer pipe on the Appellant’s land and evidence of plumbers’ receipts for sewer pipe cleaning in 2009 and 2010 of the previous property owner, the Acting Commissioner held that this information was not material as s 7 requires that damage must have been to the property when the Appellant owned it at [18].

18. The Acting Commissioner held that the jurisdiction of the Court under s 10(2)(a) was not engaged by sewer pipe damage on the Appellant’s property at [20]:

20 The Court takes guidance from Yang v Scerri [2007] NSWLEC 592 (‘Yang’), cited by Mr Mildred to support his case. In Yang, the near future is defined, as “a rule of thumb”, to be a period of one year. While Mr Mildred included receipts for rectification of sewer pipe damage incurred about 12 years ago by his property’s prior owner, he has reported no damage during the (about) two years of his ownership, nor provided evidence to substantiate that sewer pipe damage is likely to occur over the coming year. Therefore, the applicant’s claim with respect to sewer pipe damage is dismissed.

19. Various cases submitted by the Appellant of Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Burnham v Ross [2021] NSWLEC 1339, Channon & anor v Norton & anor [2015] NSWLEC 1391, Li v Fang [2018] NSWLEC 33 (Li v Fang) were considered and distinguished by the Acting Commissioner due to their different facts, at [21]-[26].

20. A statement from Mr Lee neighbour refers to blockages of his sewer pipe allegedly caused by the tree inter alia. The Acting Commissioner identified that as Mr Lee was not a party to the application damage to his property was not relevant, at [29]. The Acting Commissioner holds at [30]-[31] that encroachment of a canopy does not engage the Trees Act citing Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson v Leischke) at [171]. Reference is made to the Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 (Barker) at [20], cited at [33].

21. The Acting Commissioner made the following observations at [34]:

34 The majority of branches referred to and shown in photographs in Exhibits B and C, and those which the Court inspected on site, were dead and were less than 20 mm diameter at the branch collar. Where orders are made by the Court for pruning of deadwood, 20 mm diameter at the branch collar is normally the minimum size specified. Therefore, branches below this size may be viewed as “small elements of deadwood”, in terms of the Tree Dispute Principle in Barker.

22. Risk of injury was considered at [35]-[46] in relation to the Appellant’s evidence including material from Mr Lee and submissions of the Appellant to the effect that the tree represented a serious risk of injury due to falling branches. Mr Lee stated that he suffered injury to his finger as a result of the tree in May 2021. Paragraph [175] of Robson v Leischke was cited by the Acting Commissioner at [36] stating that s 10(2)(b) of the Trees Act can apply when someone other than an applicant is injured and that the person can be injured on other than the applicant’s land. At [37] the Acting Commissioner cited McPherson v Lake [2017] NSWLEC 1081 (McPherson) at [10] where the test for what the Court must consider under s 10(2)(b) is discussed. The Acting Commissioner concluded that the tree was in good health and no indications suggested poor stability or anchorage at [38]. The facts of Braun v Basser [2021] NSWLEC 1510 (Braun) were distinguished at [39] and [40]. In that case the tree was of a different species and was determined to be structurally unstable whereas the tree in this case was not, and in any case the risk posed by the tree in this case could be managed by pruning unlike the tree in Braun.

23. The Acting Commissioner traversed Mr Lee’s evidence that deadwood was falling from the tree, that branches had fell and hit his shed and that a falling branch cut his finger in 2021 leaving him with permanent scarring at [41]. The Acting Commissioner noted that these events were not trivial but took the view that these were the only branch failures to have occurred in Mr Lee’s occupation of over 30 years and other failures related to only small elements of deadwood, at [42]. The Appellant’s submission that the tree was infested with a vine which would affect its vigour was considered, with the Acting Commissioner concluding that the vine and deadwood on the tree were not harmful and of a minor nature respectively at [43] and [44]. Considering the site apparent at the time of the hearing the Acting Commissioner concluded that the Appellant’s pruning of the tree in 2019 left the canopy well clear of the Appellant’s house and rear deck at [45]. The Acting Commissioner determined at [46] that it appears unlikely that branches will continue to fall on the Appellant’s house and rear yard. Other than one or two branches a few metres in length, only minor deadwood appeared likely to fall with an inherently low risk profile as outdoor occupancy is far less frequent during winds and storms than calm conditions.

24. The arborist’s evidence relied on by the Appellant was considered at [47]-[66].

25. The Acting Commissioner was highly critical of the arborist’s expertise and qualifications and their veracity at [64]-[66].

26. The Acting Commissioner also criticised the arborist’s failure to refer to the Expert Witness Code of Conduct and methodology including his application of the QTRA analysis leading to a conclusion of virtual fabrication. Most of these criticisms were summarised at [70(3)].

27. The Acting Commissioner concluded that a low - moderate risk of injury justifies intervention referring to McPherson at [67] and s 10(2)(b) was satisfied as the jurisdictional basis to order a remedy. Intervention to reduce the risk of injury was warranted so that s 9 could apply.

28. Section 12 factors relevant to making an order under the Trees Act were considered at [69].

29. The Acting Commissioner made the following findings at [70]:

70 I have examined the tree and the site and have reached the following conclusions:

(1) The tree is healthy and vigorous and appears to be structurally sound. No evidence of damage to the applicant’s sewer pipes have been proven in satisfaction of the requirements of the Trees Act, and nor has the likelihood of such damage occurring in the near future.

(2) The tree’s canopy is holding a level of hanging and dead branches, sufficiently numerous and large for tree risk to be deemed low-moderate. As a result, s 10(2) of the Trees Act is engaged, and orders for intervention contemplated.

(3) A report provided on behalf of the applicant by Dr Trevor Hawkeswood, dated 30 August 2021, failed to acknowledge adherence to the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedures Rules 2005. This report was characterised by unsubstantiated claims, inclusion of extraneous plumbing evidence, and a QTRA risk assessment that lacked foundation to an extent that it was virtually fabricated. This report provided no benefit to the Court.

(4) The tree provides a range of significant environmental services, but removal of larger deadwood will be ordered to lower risk associated with the tree, without compromising these attributes. Based on the judgment of ‘Black’, the applicant will be ordered to pay for the majority of the cost of such pruning works over his property. Should Mr Lee wish to undertake a similar arrangement with respect to deadwood overhanging his property, the orders will provide for him to do so.

30. The Acting Commissioner made the following orders at [71]:

71 The Court orders that:

(1) Within 30 days of the date of these orders, the applicant and the respondent shall each secure and exchange one quotation from an AQF level 3 arborist with all appropriate insurances, for pruning the respondent’s trumpet vine to a maximum height of 3 m above ground level, removing hanging branches and deadwood above 20 mm in diameter at the branch collar from the segment of the tree’s canopy overhanging the applicant’s property, and removing refuse from the works.

(2) To facilitate such quotation, the applicant shall grant access to the respondent’s chosen arborist for the purpose of organising such quote, pursuant to not less than 48 hours written notice from the respondent.

(3) Within 60 days of the date of these Orders, the respondent shall undertake the pruning works in Order 1, using the services of one of the AQF level 3 arborists with all appropriate insurances, from whom the quotations were procured. Should one of the parties not provide a quotation in accordance with Order 1, the respondent shall contract the arborist who provided a quotation to complete the works.

(4) Within 7 days after the completion of the works the respondent shall provide the applicant with a copy of an itemised paid invoice for the works.

(5) Within 7 days after receipt of the paid invoice in Order 4, the applicant shall reimburse the respondent for a quantum of 70% of the cheapest of the two quotations, regardless of whether the respondent chooses to proceed on the basis of the more expensive quotation.

(6) All works shall comply with AS4373-2007 Pruning of amenity trees and the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016.

(7) All works are to be completed during normal work hours. Should access be required into the applicant’s property to undertake these works, or for removal of refuse, such right to access shall be granted, subject to the respondent providing the applicant at least 72 hours’ written notice of the works.

(8) Should Mr Lee wish to have the segment of the tree overhanging his property similarly pruned, he shall advise the respondent in writing within three days of the date of these orders, and shall be subject to Orders 1-7, with “Mr Lee” being substituted for “the applicant” in each of Orders 1-7.

Transcript references

31. The Appellant relied on parts of the transcript of the hearing at Tcpt, 1 December 2021, p18(20-35):

"COMMISSIONER: No, I do accept that 10(a) is enlivened because based on the evidence we do have damage to the sewer pipe.

APPLICANT: Okay. Thank you.

COMMISSIONER: You have one or the other, which is sufficient.

APPLICANT: Correct..(not transcribable) ..

COMMISSIONER: Yes.

APPLICANT: All right. I will come back to some of my submissions in relation to injury 'cause for me it's highly relevant to the remedy.

COMMISSIONER: That's fine, yes.

APPLICANT· I don 't want to take up any more of your time unnecessarily. I'll just pull out the key points, if I may."

32. The Appellant stated he had not received any material from the Respondent, at Tcpt 1, December 2021, p1(46-50). The Acting Commissioner stated that the Respondent had not put forward any documents that the Applicant had not yet seen, and if there were any documents he had not seen, he would have time to look at them (at Tcpt, 1 December 2021, p2(1-9)). The Acting Commissioner stated he did not have any additional documents from the Respondent.

33. The Acting Commissioner asked the Appellant whether he thought the arborist’s conclusion that the crown spread was 12 metres was fairly accurate (at Tcpt, 1 December 2021, p7(18-26)). The Appellant replied that he was happy for that question to be directed to the arborist as he was not an expert, to which the Acting Commissioner replied “Okay. No that’s fine.”

34. The Acting Commissioner had the following further exchange with the Appellant (Tcpt, 1 December 2021, p19(13-22)):

COMMISSIONER: Can I just clarify, where is the source of the vine? Is that also in the respondent’s property or where are the roots of the vine?

APPLICANT: The entire tree – sorry. I’m not sure I’m qualified to answer that. I can show you a video or I can, I can refer you to Dr Hawkeswood. The vine starts pretty low and goes the whole way up, essentially. I’m not sure if I’m explaining it very well.

COMMISSIONER: No, that’s fine. It’s just the vine must be rooted in the ground somewhere. It won’t be epiphytic.

Appellant’s submission

35. The Appellant’s written submissions identify eighteen matters relevant to the appeal grounds. Some merits arguments were not pressed, appropriately given the nature of this appeal.

Ground 1 breach of right to fair hearing under Civil Procedure Act 2005 (NSW) (CP Act) s 56 and rules of natural justice

36. The principles contained in s 56 of the CP Act, par 4 of the Class 2 ‘Tree Applications’ Practice Note dated 22 November 2018 (the Practice Note) and the rules of natural justice provide the right to a fair hearing by a disinterested and unbiased adjudicator. The manner in which the Acting Commissioner conducted the hearing and made findings did not comply with these principles.

37. The Acting Commissioner made a determination that the Court had jurisdiction under s 10(2)(a) in the course of the hearing yet reversed this in his judgment at [20]. No opportunity for addressing this change of position was provided to the Appellant. The Appellant placed less focus on the risk of injury part of his claim as a result, see above in [31] (sub 1).

38. The Acting Commissioner failed to identify during the hearing any criticism of the arborist’s report as to his methodology and observations or his qualifications yet was highly critical of him in the judgment. The Acting Commissioner should have afforded a right to the arborist to address these criticisms including the criticism that he had not stated that he had complied with the Expert Witness Code of Conduct. In Wood v Sleeman [2020] NSWLEC 1513 (Sleeman) at [25] a commissioner handled this differently in stating that he did not consider the absence of reference to the Code of Conduct showed a failure to have in mind obligations to the Court, and this should have been done in this case. The Acting Commissioner stated at [3] that he had read all the documents and was therefore apprised of the arborist’s report (subs 2). Highly critical statements of unsubstantiated evidence and manipulation in the QTRA analysis resulted in the Acting Commissioner’s conclusion that the report was of little value at [59] of the judgment. None of these concerns were raised at the hearing or on the site visit.

39. Further on two occasions during the hearing when a question of expertise was raised and the Appellant sought to refer a question to the arborist the Acting Commissioner declined to do so (see above in [33]). A key part of the Appellant’s case was disregarded without notice to the Appellant to enable him to address it (sub 3). An extraordinary attack was made on the arborist’s qualifications at [66]. The Acting Commissioner would have been aware of the qualifications in the arborist’s report yet failed to raise any concerns about these during the hearing. This contributed to the decision of the Acting Commissioner to disregard a key part of the Appellant’s case (sub 4).

40. The Acting Commissioner excluded the expert arborist from the site visit in the letter sent by the Acting Commissioner dated 14 December 2021 (in Ex A) which meant the Applicant could not address any of the Acting Commissioner’s observations which disagreed with and criticised the arborist. For example, the Acting Commissioner stated at [55] that he was not taken during the site visit to any termite activity, nor saw any, nor was any evidence produced to substantiate past or present activity, yet this was repeated throughout the arborist report. That was a matter within the arborist’s expertise not the Appellant’s. The Acting Commissioner should have provided an opportunity to the Appellant and the arborist to address his concerns in the interests of fairness (sub 5).

41. The Acting Commissioner’s attack on the arborist without opportunities to respond shows that he failed to act impartially (sub 6).

42. Other unsubstantiated prejudicial comments were made during the hearing (sub 6). The Acting Commissioner acted as an advocate for the Respondent rather than as an impartial adjudicator as can be seen from prejudicial comments made throughout the judgment. In relation to a Google Earth photo included by the Appellant in the Tree Disputes Claim Details the Acting Commissioner commented at [9] that this misrepresented the canopy (par 30(a) of the Appellant’s submissions) which gives rise to the implication that the Appellant was misleading the Court. The Acting Commissioner’s ‘pursued a quest’ comment at [13] has no basis and was prejudicial (par 30(c)). Three letters to the Respondent in a two-month period as identified at [14] provides no basis for a finding of ‘harassing’ behaviour the Acting Commissioner stated (par 30(d)).

43. Further, an email dated 16 November 2021 (Ex B) was sent by the Respondent’s agent to the Court but not to the Appellant. The Appellant stated during the hearing that he did not receive any material before the hearing from the Respondent. He did not have the letter at the hearing. Nor did he receive the letter from the Court until 20 April 2022 despite several email requests. He was not aware of the letter’s existence until the judgment was received (referred to at [4] of the judgment). During the hearing the Appellant told the Acting Commissioner that he had not received any information from the Respondent (Tcpt, 1 December 2021 p1(46-50)) and the Acting Commissioner stated that the Respondent had not provided any documents that he had not seen, presumably unaware that the 16 November 2021 email had not been seen by the Appellant. This is another basis for finding that the hearing was unfair as the Appellant did not have the opportunity to address the content of this letter (par 30(f)).

Ground 2 incorrect dismissal of Appellant’s claim under s 10(2)(a) of Trees Act

44. Applying principles of statutory construction, being the meaning of the text of the statute considered in context and in light of the purposes of the statute, to s 7 and s 10(2)(a) requires inter alia finding that land has suffered damage caused by a tree situated on adjoining land in the past, present, or is likely to do so in the future. There is no requirement that the damage must have been incurred during an applicant’s ownership for the Court to have jurisdiction. There is no statutory requirement for damage relevant to s 10(2)(a) to be incurred during an applicant’s ownership of land.

45. The Acting Commissioner incorrectly dismissed the Appellant’s claim in relation to damage to the sewer pipe situated on his and Mr Lee’s properties as the Court’s jurisdiction should have been enlivened in relation to the Appellant’s claim for damage to his sewer pipes. The Appellant is the owner of the land and the tree had caused damage to the property of the Appellant in the past, present and is likely to do so in the future (sub 7). The necessary criteria under s 10(2)(a) have been met.

46. The Acting Commissioner correctly interpreted s 10(2)(a) of the Trees Act when he formed his preliminary view during the hearing (see above in [31]) (sub 8).

47. The Acting Commissioner’s finding to deny the Appellant the ability to claim under s 10(2)(a) for damage caused to the Appellant’s property prior to his ownership was perverse. The Court’s jurisdiction was enlivened under that subsection (sub 9).

48. Alternatively, the Acting Commissioner wrongly dismissed the Appellant’s claim that the Court’s jurisdiction was enlivened under s 10(2)(a) on the basis that no damage would occur in the near future applying Yang v Scerri [2007] NSWLEC 592 (sub 10). The Appellant asserted on appeal that damage would likely occur within one year and this was more probable than not to occur.

44. The Acting Commissioner should have found that s 10(2)(a) applied.

Ground 3 inappropriate remedy ordered by Acting Commissioner

50. In determining what remedy to order the Court must consider a range of matters set out in s 12. In relation to risk of injury McPherson at [10] states:

10 As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.

51. In Robson v Leischke at [175] Preston CJ stated that injury in s 10(2)(b) can be to any person.

52. In Turner v Bennett [2008] NSWLEC 1364 (Turner) at [19] Thyer AC held that injury in the future need only be likely.

53. Failure to consider damage to the sewer pipe on Mr Lee’s property (sub 11, 12) is linked to the failure of the Acting Commissioner to apply s 10(2)(a) (sub 7). That the same sewer pipe runs through the Appellant’s and Mr Lee’s properties is indicative that it is highly likely that damage will occur in the near future to that pipe on the Appellant’s property. The remedy sought must take into account the damage caused by the tree to Mr Lee regardless of whether Mr Lee is a party to the application.

54. The Acting Commissioner was wrong to dismiss damage to the sewer pipe on Mr Lee’s property (sub 12) and confused a claim for damages with considerations relating to prevention of damage, two distinct matters per Thronberry v Packer [2010] NSWLEC 1069 and Fang v Li [2017] NSWLEC 1503. No claim for compensation was made by the Appellant, the claim is for removal of a tree to prevent further damage and/or injury.

55. Submission 13 was not pressed as it was a merits matter.

56. Various significant errors of fact were made in the judgment as identified at submission 14(a)-(k) (par 52 of written submissions). The overarching submission was that the principles in McPherson were wrongly applied in determining the risk posed by the tree and in basing the decision on several factual inaccuracies. In summary those factual inaccuracies were as follows:

1. The Acting Commissioner’s finding at [34] that the majority of branches were less than 20 mm diameter at the branch collar was wrong as seven significant branches all measuring over 20mm in diameter fell from the tree onto the properties at Cromdale. The site visit and the Arborists’ report would have demonstrated that the branches were larger in diameter than that.

2. The Acting Commissioner’s discussion of Mr Lee’s evidence at [41] was inaccurate as the “other live branch that fell around the same time [mid-2019]” referred to fell in October 2021, not mid-2019.

3. The Acting Commissioner was wrong to find on the evidence that the tree canopy was well clear of the Appellant’s house and rear deck at [10] and [45].

4. The Acting Commissioner was wrong to find that the tree is located in the Respondent’s property within a few metres of the common side boundary, at [69], as the trunk of the tree is less than one metre from the boundary with the Appellant’s property and touches the border of Mr Lee’s property.

5. The Acting Commissioner’s finding at [42] that the branch failures referred to were the only such events in Mr Lee’s 30-year occupation of his property was inaccurate as the Acting Commissioner did not ask Mr Lee about this.

6. Contrary to the Acting Commissioner’s finding at [44], the trumpet vine is enveloping the tree’s canopy and adhering to branches.

7. On the evidence before him and available at the site visit, the Acting Commissioner had no basis for concluding at [46] that it appeared unlikely that branches will continue to fall on the Appellant’s house and rear yard.

8. The Acting Commissioner’s references to “small twigs and branches” at [51] was inaccurate based on the Arborists’ report.

9. The Acting Commissioner’s reference to “smaller branches” and “small twigs” at [61] was inaccurate as seven significant sized branches all measuring over 20 mm in diameter fell from the tree onto the properties on Cromdale Street from July to October 2021.

10. The Acting Commissioner’s reference to “tree debris” at [69] was inaccurate as it failed to consider the significant branches that fell from July to October 2021 and the finding is inconsistent with the Barker test.

11. The Acting Commissioner’s finding at [38] that the attachments of live branches generally appear strong and stable is inaccurate as it ignores the evidence of the significant live branch which fell in October 2021 which was in the evidence and was pointed out to the Acting Commissioner on site visit.

57. The Acting Commissioner failed to consider risk of injury to the Respondent (sub 15).

58. The Acting Commissioner failed to consider future injury to the Appellant and others given the evidence of branch failures causing significant branches to fall into the Appellant’s property, and the Appellant stated that he considered further branches are likely to fall and this was supported by the arborist’s report (sub 16).

59. Inappropriate weight or no weight was given under s 12 of the Trees Act to the failure of the Respondent to take any measures to prevent the tree causing damage to the Appellant’s property or Mr Lee’s property, or from causing injury to any person. There was no evidence of any attempts by the Respondent to prune the tree (sub 17).

60. The Acting Commissioner failed to give appropriate weight under s 12 of the Trees Act to steps taken by the Appellant to reduce the risk posed by the tree. The Acting Commissioner provided no evidence to support his assertion in the judgment at [69] that extensive pruning was excessive in terms of optimum tree health.

61. The Acting Commissioner failed to give appropriate weight to the location of the tree under s 12(a) based on a factually inaccurate finding at [69] of the judgment.

62. These errors cumulatively support a finding that the remedy proposed by the Acting Commissioner was inappropriate.

Ground 4 liability for payment of costs of remediation

63. The principle that the owner of the tree must pay for work ordered to be done is fairly well settled, as set out in the annotated guide to the Trees Act found on the Court’s website at p 17, see also Bradley v Federico & Anor [2016] NSWLEC 1381 (Bradley v Federico); Page v Lang [2012] NSWLEC 1205 (Page v Lang). In Page v Lang at [24], Galwey AC held that generally the cost of removing the tree falls to the owner unless in exceptional circumstances.

64. The Acting Commissioner at [69] incorrectly in light of these principles and case law ordered the Appellant to pay 70% of costs of the remedial tree works ordered when the Respondent owns the tree (sub 18). The Acting Commissioner incorrectly relied on Black v Johnson (No 2) [2007] NSWLEC 513 (Black v Johnson No 2) at [69]. That case deals with damage to property and remediating that damage, not the cost of pruning a tree. The Respondent should be responsible for any costs of pruning work.

Respondent’s submissions

65. The Respondent through her agent submitted that the tree was pruned on her behalf as identified in her letter to the Court dated 16 November 2021 (part of Ex A).

Consideration

66. The Appellant bears the onus of establishing his appeal grounds.

67. I outlined the principles to be applied in determining a s 56A appeal in Hoy v Coffs Harbour City Council [2015] NSWLEC 128 (Hoy) at [7]-[11] and it is useful to set these out as they are applicable to this appeal:

7... An appeal must identify a question of law explicitly or implicitly decided at first instance: Warkworth Mining Ltd v Bulga Mulbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 at [4]. That question must also be sufficiently material that a wrong answer vitiates the decision: Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [29], [133]-[136] and [191]. The question must also arise from a contest or dispute between the parties: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [147], [160] per Basten JA. The merits of a commissioner’s decision cannot be the subject of a s 56A appeal.

8 An appeal under s 56A is “on a question of law” not limited, however, to “an error of law”: ISPT Pty Ltd v Valuer General [2009] NSWCA 31 (2009) 165 LGERA 25 at [3] per Allsop P. In the absence of any statutory indication of the weight to be given to various considerations, an allegation that insufficient weight was given to particular evidence is generally insufficient as a ground of appeal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council [1999] NSWLEC 236 at [11]-[12].

9 A commissioner or judge of the Court is required to address relevant material issues by exposing his or her reasoning: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [43] per Tobias JA, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P, at 279 per McHugh JA. The Court at first instance is not required to “deal with every argument raised and every possibility that could be adverted to”: Comcare v Forbutt [2000] FCA 837 at [58] per Heerey J cited by Tobias JA in Segal at [71].

10 The judgment should be read on the basis that the Commissioner and the parties were present and understood the issues presented by them: see by analogy Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292; (2010) 181 LGERA 352 at [79].

11 An approach to finding error that is nit-picking with an eye to identifying error is not permissible, as identified in numerous authorities commencing from Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368. Very importantly, a judgment must be considered as a whole, not selecting parts of the judgment and reading them out of context: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291, O’ Donnell v Sutherland Shire Council [2011] NSWLEC 184 at [23].

68. The proceedings occurred in Class 2 of the Court’s jurisdiction. Such proceedings are conducted with as little formality and technicality and with as much expedition as the requirements of the LEC Act, other relevant Acts and the proper consideration of the matters before the Court permits: s 38(1) of the LEC Act. The hearing of the matter was held on 1 December 2021 via videoconference with the Appellant, the arborist and Ms Sosna attending. A site visit was conducted on 14 December 2021 with the Appellant and Ms Sosna present. No recording was made and no transcript of the site visit is available, as is usual in such circumstances: Li v Fang at [12]. Commissioners are given broad discretionary order-making powers under s 9 of the Trees Act: Li v Fang at [11]. A commissioner’s decision should not be read as if written by a lawyer in circumstances where Parliament has specifically envisaged a tribunal which included lay assessors/commissioners: Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368. In Li v Fang at [37] Moore J stated:

37 It is also appropriate to note, as is to be inferred from comments made by the Acting Commissioner at several points in his judgment (see [14], for example) and as is set out in the Acting Commissioner's biography on the Court's website, the Acting Commissioner is a qualified and highly experienced arborist who brings that arboricultural knowledge to bear in the hearing and determining of applications made pursuant to the Trees Act.

Ground 1 procedural fairness (submissions 1 – 6)

69. The Appellant identified that s 56 of the CP Act, the Practice Note and common law principles of natural justice require a fair hearing by an independent adjudicator. Certainly it may be accepted that the principles of procedural fairness as part of according natural justice applied to the hearing of the Appellant’s Class 2 application. Requirements of procedural fairness include the hearing rule and the bias rule: Aronson and Groves, Judicial Review of Administrative Action and Government Liability, (7^th ed, 2021, Thomson Reuters) (Aronson and Groves) at [8.20].

70. In Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [99]-[100], following the High Court of Australia’s decision in Kostas v HIA Insurance Service Pty Ltd (2010) 241 CLR 390; [2010] HCA 32, Preston CJ took the view that a failure to accord procedural fairness in the making of a decision disposing of proceedings in Class 1, 2 or 3 of the Court’s jurisdiction involves a decision on a question of law sufficient to found an appeal under s 56A of the LEC Act. That finding has been applied subsequently including by me in Boral CementPty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203 (Boral Cement) at [34]; The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47 at [22] inter alia.

71. In Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [38] the Court of Appeal emphasised that the requirement of informality mandated by s 38(1) of the LEC Act does not abrogate the requirements of procedural fairness in Class 1 proceedings, and by analogy, the same can be said for Class 2 proceedings given their substantial similarity in terms of procedure.

72. In relation to whether there is any obligation for judicial decision makers to disclose their thinking, in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [31] Gleeson CJ and Hayne J stated:

31 …The nature, and extent, of communication between applicant and decision-maker that is in contemplation, in such a general context, will vary. At one extreme, an application may be made to a judicial decision-maker, in a context in which curial standards of procedural fairness will apply to the fullest extent. Even in such a case, fairness does not require a judicial officer to make a running commentary upon an applicant's prospects of success, so that there is a forewarning of all possible reasons for failure…

73. The Court is not generally required to identify its deliberations: Comcare v Wuth (2018) 260 FCR 89; [2018] FCAFC 13 (Wuth) at [27]; Aronson and Groves at [9.180]. In Wuth, Flick J (with whom Siopis J agreed, Perry J concurring in the result but writing separately) stated at [27]-[28]:

27 So stated, the position in which Counsel for Comcare placed the Tribunal was very much in the position whereby the Tribunal was required to disclose its deliberative processes if it was to avoid being subject to a potential challenge founded upon an alleged denial of procedural fairness.  The absence of any general requirement to disclose the deliberative processes of an administrative decision-maker is, of course, well-established:  e.g., F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48], (2006) 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Any other approach would have the potential to lead to a never ending process of hearings, with each sequential hearing being potentially directed to a new and different issue.

28 On the facts of the present case, however, it is concluded that the Tribunal was required to disclose to the parties the prospect that submissions could helpfully be directed to Chapter 13 and Tables 13-2 and 13-3 and whether those Tables provided a basis upon which an assessment of impairment could be calculated. 

…

Although procedural fairness may not require a party to be provided with specific notice and an opportunity to address each and every issue of potential relevance to a decision, the more centrally relevant an issue becomes the greater is the need for a party to be put on notice of an emerging issue which is assuming an importance it may not have assumed at the outset of a hearing.  The more so is that the case where it is the decision-maker who seeks to attribute significance to an issue not previously addressed by the parties.  One factor tempering the extent to which a decision-maker need avert a party’s attention to a particular matter of significance in order for the party to be given a “fair indication” of the potential relevance of that matter is whether the party is represented:  cf. NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39 at [145], (2014) 220 FCR 44 at 80 per Buchanan J. On the facts of the present case, the parties were represented by Counsel – but, on the facts, no indication at all was given as to the potential significance of Chapter 13.

74. There may be tension between the absence of obligation of a judicial officer to divulge their thinking about the issues in dispute with the obligation to accord procedural fairness in ensuring that a party has the opportunity to present their case and address all matters in issue.

Submission 1

75. The Acting Commissioner indicated during the hearing that s 10(2)(a) was a basis to found the Court’s jurisdiction. The transcript for this part of the hearing is extracted above in [31]. He then found that s 10(2)(a) was not enlivened, a change in position on an important matter the Appellant should have been able to address and did not have the opportunity to do. Application of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 at 145-146 suggests this represents a failure on the Acting Commissioner’s part to ensure the Appellant was able to address a key matter relevant to his appeal. This observation is subject to the next paragraph however.

76. The Appellant also submitted that as consequence of what the Acting Commissioner said at the hearing he placed less focus in his submissions on the risk of injury aspects of his claim under s 10(2)(b). In the transcript extracted above at [31] the Appellant stated that he would focus on the key points. Apart from making this submission at the appeal hearing, no evidence was provided or reference made to how the Appellant would have done things differently before the Acting Commissioner. There was clearly evidence and submissions made by him in relation to risk of injury under s 10(2)(b) as that topic is dealt with expressly in the judgment at [35]-[40], and the Acting Commissioner found jurisdiction under s 10(2)(b) existed, which required that orders for prevention of risk of injury be made. In these circumstances the Appellant has not established that a failure to accord procedural fairness arises in relation to the application of s 10(2)(b) by the Acting Commissioner.

77. Given that the Acting Commissioner determined that he had jurisdiction under s 10(2), that he did not ultimately conclude that he had it under s 10(2)(a) is not material to the overall result.

78. Submissions 2-5 all concern the treatment of the Appellant’s arborist by the Acting Commissioner.

Submissions 2 and 3

79. The Appellant submitted that none of the substantial criticisms of the arborist set out in the judgment including his failure to comply with the Expert Witness Code of Conduct were identified by the Acting Commissioner during the hearing, as indeed is clear from the transcript of the hearing on 1 December 2021.

80. How a commissioner approaches the absence of reference to the Expert Witness Code of Conduct by someone purporting to be an expert is a matter for a commissioner. Given that the obligation falls on an expert witness to apply the Code and state that they are doing so there was no unfairness in the Acting Commissioner not identifying to the arborist that there was a failure to refer to the Code during the course of the hearing. That another commissioner has dealt with that issue differently in Sleeman does not require that such a course must be adopted. Had that been the only criticism made the Appellant would not be successful on this ground. That the Acting Commissioner was also extremely critical of the arborist’s qualifications and methodology in the judgment at [47]-[66] as summarised at [70(3)], without any notice to the arborist or the Appellant, does need to be considered in the context of these proceedings and the parties before him, as I discuss below.

Submission 4

81. The Appellant has not demonstrated as material to any matter in issue that on two occasions during the hearing (see above in [33]-[34]) no reference of matters about the crown spread of the tree or the vine growing on the tree to the arborist was considered necessary by the Acting Commissioner (subs 4).

Submission 5

82. The arborist was told not to attend the site hearing by the Acting Commissioner in his letter to the parties extracted at [10] and consequently the arborist was not on site to identify important matters in the Appellant’s case such as the presence of termite activity if any. This is a matter expressly referred to by the Acting Commissioner at [55] where he notes the absence of termite activity and that no-one pointed it out to him. I accept the Appellant’s submission that this was a matter squarely within the expertise of the arborist he relied on and the arborist’s absence at the site visit meant that this was not able to be addressed adequately. This was a material failure of the Acting Commissioner in enabling the Appellant to present his case to the Court.

Submission 6 (allegation that Acting Commissioner not impartial)

83. Submission 6 identified several issues. The Appellant submitted that the Acting Commissioner acted as the Respondent’s advocate given his attack without notice on the arborist.

84. The Appellant also alleged that the Acting Commissioner made prejudicial comments in the judgment, referring to the google earth photo (par 30(a)(b)), “pursued a quest” (par 30(c)), “harassment” (par 30(d)). While not expressed in terms of the Acting Commissioner’s behaviour giving rise to an apprehension of bias (no criticism of the Appellant is intended by this observation) the cases which consider the principles in that context are useful to consider.

85. The question is generally considered by reference to the Ebner test as identified by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that…a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.  That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.  It is convenient to refer to it as the apprehension of bias principle.

86. The High Court continued at [8]:

The apprehension of bias principle admits of the possibility of human frailty.  Its application is as diverse as human frailty.  Its application requires two steps.  First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits.  The second step is no less important.  There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.  The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.  Only then can the reasonableness of the asserted apprehension of bias be assessed.

87. In Murlan Consulting Pty Limited v Ku-Ring-Gai Municipal Council and Anor [2008] NSWLEC 318 at [51]-[54] I found that the Ebner test was applicable to commissioners, albeit differences between court proceedings and other decision-making must sometimes be recognised and accommodated (Ebner at [4]) which finding was not disturbed on appeal. The main categories in which impartiality of a judge or commissioner may arise include if they have an interest in the proceedings, their conduct in the course of or outside the proceedings, direct or indirect association with a party or taking into account extraneous information. None of these categories apply in relation to the statements in the judgment referred to by the Appellant. The judgment must be read as a whole and fairly.

88. Concerning the specific matters raised, in the interaction between the parties summarised at [13]-[16] the Acting Commissioner is largely setting out the parties’ submissions which apparently included the view of the Respondent that she was being harassed by the Appellant in relation to his multiple requests that the tree be removed. The Acting Commissioner does so in order to decide whether a reasonable effort had been made by the Appellant to reach agreement with the Respondent, concluding that it was made. Further there is nothing untoward or lacking in impartiality in how the Acting Commissioner characterised the Appellant’s behaviour as ‘pursuing a quest’ at [13] as the events he sets out suggest that is a reasonable characterisation of what took place.

89. The reference to ‘misrepresentation’ at [9] needs to be viewed in the context of the paragraph as a whole and [10]. No adverse connotation arises when this is done.

Submission 6 par (f)

90. Another matter of concern from a procedural fairness perspective is that the Appellant was not provided by the Respondent with her email dated 16 November 2021 before the hearing and was not aware that it had been received by the Court until the delivery of judgment. The Acting Commissioner should have ensured that the Appellant had all the material before the Court including any material from the Respondent. The email’s contents were not known to the Appellant and therefore the Appellant was not able to address them during the hearing. The transcript of the Acting Commissioner’s reference to material from the Respondent is summarised in [32] above. The Acting Commissioner does refer to the letter at [4] of the judgment.

Conclusion on Ground 1

91. In the hearing before the Acting Commissioner the Appellant represented himself, was not legally qualified and was not a qualified arborist. A non-legally qualified agent her carer represented the Respondent. The only reference in the judgment to material provided by the Respondent is the email dated 16 November 2021. There was no effective contradictor to the Appellant’s case, including an absence of critical assessment from the Respondent of the sole arborist’s report.

92. In Boral Cement at [37], I stated (noting that the equivalent reference in Aronson and Groves 7^th ed is [9.180]):

As a rule of thumb parties receiving a judgment should not be surprised by the basis (as opposed to the outcome) on which a decision is reached by a court. Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, 5th ed (2013) Thomson Reuters, state at [8.230]:

Decision-makers in adversarial proceedings are required to advise the parties of...proposed conclusions that are surprising or made by reasoning that could not be easily anticipated.

93. Rules of procedural fairness suggest that the Acting Commissioner should have expressed his substantial concerns to the arborist so that he had the opportunity to address these and should have provided the opportunity for the arborist to attend the site visit given the conclusions the Acting Commissioner drew after his attendance at the site in the absence of the arborist. The Acting Commissioner told the parties at the outset of the hearing that he had read all the material provided which included the arborist’s report. In the absence of identifying any concerns to the Appellant, I accept that the Appellant did not have the opportunity to present to the Acting Commissioner matters highly relevant to his case about which he had no notice.

94. I should stress that the fact of criticism of the arborist in strenuous terms does not give rise to procedural unfairness as the view of the Acting Commissioner about the very poor quality of the report clearly comes within his field of expertise.

95. Considered cumulatively the matters identified in relation to submissions 2, 3, 5 and 6(f) establish a failure to accord procedural fairness to the Appellant sufficiently serious that the decision is vitiated, meaning that if procedural fairness had been accorded the result might have been different.

96. Having found in favour of the Appellant on Ground 1 and that the error is vitiating it is strictly unnecessary to consider the remaining grounds. I will do so briefly.

Ground 2 incorrect dismissal (submissions 7, 9, 10)

Submissions 7, 9, 10

97. Various submissions were made on the basis that, firstly, the Acting Commissioner incorrectly failed to have regard to the damage to the Appellant’s property before he owned it, as a relevant matter under ss 7, 10(2)(a). The Acting Commissioner did make that finding at [18]. The terms of s 7 do not expressly limit the consideration of injury to a property to the period in which an applicant has owned that property. As identified in Robson v Leischke s 7 grants the right for someone to make an application under the Trees Act to an “owner of land”. At [162] Preston CJ stated:

In relation to the first type of harm, damage to property, the Trees (Disputes Between Neighbours) Act 2006 restricts the scope of its application to damage to the applicant’s property on the land of which the applicant is the owner or occupier. Section 7 entitles an applicant, who is “an owner of land” to apply for an order to remedy, restrain or prevent “damage to property on the land” as a consequence of a tree situated on adjoining land. “The land” in the phrase “damage to property on the land” in s 7 is the land of which the applicant is the owner or occupier (in the extended sense of “owner of land” in s 3(1)).

98. The Acting Commissioner’s observation at [18] therefore appears to be incorrect. The judgment must be read fairly as a whole. While the Acting Commissioner stated that under s 7 damage not caused during the Appellant’s ownership is not material he goes on to consider that damage from 2009 and 2012 in the course of his reasoning at [19]-[21] when considering the application of s 10(2)(a). No error of law is demonstrated in relation to the Acting Commissioner’s conclusion on s 10(2)(a).

99. Additionally the Appellant alleged that the Acting Commissioner failed to consider the likely future risk of injury (sub 10). Viewing the judgment as a whole the Acting Commissioner extracts McPherson at [37] which refers to future risk. The discussion of risk is clearly with a view to future risk (sub 7). The Appellant’s submission that injury was likely in the future was an assertion of his opinion about a merit matter and is not able to be considered on this appeal. No error of law is identified by this submission and it is at heart a complaint about the merits assessment undertaken by the Acting Commissioner.

100. I note that submission 8 asserts that the Acting Commissioner was correct in his preliminary conclusion that s 10(2)(a) applied in the course of the hearing. Given my conclusions on submissions 7, 9 and 10 I do not need to refer further to that.

101. No error of law is established in relation to Ground 2.

Ground 3 (submissions 11, 12, (13) not pressed, 14 (errors of fact) 15, 16, 17)

102. Ground 3 is couched in terms of the remedy proposed by the Acting Commissioner being inappropriate, which on its face does not suggest a decision on a question of law but rather a matter of merit calling for the exercise of judgment falling within the discretionary powers the Acting Commissioner was exercising. I infer that the Appellant is essentially submitting that the remedy he sought of tree removal should have been imposed because of the matters raised in this ground.

Submissions 11, 12

103. The matters supporting the ground were the alleged failure of the Acting Commissioner to consider the damage to the sewer pipe on Mr Lee’s property linked to the failure to apply s 10(2)(a), further linked to a failure of the Acting Commissioner to conclude that damage to the sewer pipe on the Appellant’s land was therefore likely in the near future. My conclusions on submissions 7 and 9 above address submissions 11 and 12.

Submission 14

104. A number of errors said to be of fact are alleged in subs 14 as summarised above in [56], with eleven matters identified. As Preston CJ stated recently in Cai v Fairfield City Council [2022] NSWLEC 58 at [38]:

A commissioner does not make an error of law in preferring the evidence of one witness over that of another or in making findings of fact or drawing inferences of fact based on some evidence rather than other evidence. If there is evidence of a fact, the question whether that evidence ought to be accepted in whole or part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Council of the City of Sydney v Vision Land Glebe Pty Ltd (2019) 243 LGERA 25; [2019] NSWLEC 60 at [84]. Similarly, to make a finding of fact that is against the weight of the evidence is also to make an error of fact not law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. Even if the finding of fact were to be perverse or unreasonable or the reasoning whereby the finding of fact was reached was demonstrably unsound, there still would not be an error on a question of law: Azzopardi v Tasman UEB Industries Ltd 155-156; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333-334; Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 at [197]-[201]; RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 at [73].

105. Several of the matters raised are essentially impermissible matters of merit where the Appellant disagrees with the Acting Commissioner’s conclusions, see above in [56(3), (6), (7), (11)].

106. The presentation of a party’s case is up to them and no obligation arose for the Acting Commissioner to ask questions of Mr Lee contrary to the submission above in [56(5)].

107. I note that insufficient weight being given to particular evidence is not a ground of appeal, Hoy at [8].

108. The balance of the alleged errors of fact above in [56(1), (2), (4), (8), (9), (10)], about which I make no finding, cannot be raised in this appeal.

Submission 15

109. In relation to the alleged failure to consider injury to the Respondent the Acting Commissioner cites Robson v Leischke and Turner and is clearly aware of the capacity to do so. The Acting Commissioner did not have to consider the damage to Mr Lee’s property in considering whether damage was likely to occur to the Appellant’s property as Mr Lee was not a party. The focus of the jurisdiction of the Court to consider the land owned by an applicant is emphasised in Robson v Leischke at [162], extracted above in [97].

110. The Respondent made no complaint about risk of injury. The Acting Commissioner is not bound to consider injury in the manner contended for by the Appellant. The Acting Commissioner may do so if he considers the circumstances warrant it. No error on a question of law is demonstrated.

Submission 16

111. The Appellant alleges a failure to consider future risk of injury to the Appellant and Mr Lee’s family. The judgment when read as a whole does not fail to consider future injury. That the Appellant considers branches are likely to fall is a statement of opinion which in no way bound the Acting Commissioner in making a finding. No error on a question of law arises.

Submission 17

112. In relation to the absence of evidence of the Respondent taking steps to deal with the tree, the judgment refers to the letter dated 16 November 2021 from the Respondent’s agent, and at [4] to the submission of pruning of the tree by the Respondent’s agent noting that no evidence of this was provided. That there was no evidence of attempts by the Respondent to prune the tree is correct. The Respondent did apparently make submissions about what she had caused to be done.

113. As noted previously, a failure to give appropriate weight to a matter in the view of the Appellant is not an erroneous decision on a question of law.

114. No error on a question of law is identified in ground 3.

Ground 4 (submission 18)

115. The Appellant submits that he should not have been ordered to pay 70% of the costs of pruning the tree. Those costs relate to the remedial works identified in the Acting Commissioner’s orders. The Appellant refers to the annotated guide to the Trees Act on the Court website and cases Bradley v Federico and Page v Lang where a possible approach canvassed is that a tree owner is responsible for paying for the work required on their tree. Nor was there error in the Acting Commissioner’s general reference to Black v Johnson No 2 in light of the matters he considered relevant in relation to s 12 of the Trees Act. The Acting Commissioner had broad discretion to determine the appropriate remedy given the wide terms of the order power in s 9(h). A commissioner is not constrained by what is on the Court website or what has been stated in other cases considering different facts in the making of orders responding to particular circumstances.

116. No error on a question of law is identified in ground 4.

Appropriate orders

117. I have determined to uphold the appeal in relation to Ground 1 and consider that ground justifies setting aside the decision of the Acting Commissioner and the matter being remitted to be reheard. On the assumption that the Appellant continues with this matter, I am acutely aware that in so deciding I am also subjecting the elderly Respondent to another hearing should she choose to participate through her carer to continue opposing the removal of the tree, and have not made my decision lightly.

118. The Appellant seeks that the matter be returned to a different commissioner. I discussed applicable considerations in the making of an exclusionary remitter order in these circumstances in Boral Cement at [134]-[136]. Chief Justice Preston did so more recently in Initial Action v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [135]-[141]. The observations in both matters concerning a remitter order where the error upheld concerns a failure to accord procedural fairness arise here. I consider an exclusionary remitter order is warranted and will so order.

Order

119. The Court orders:

1. The summons commencing an appeal dated 21 April 2022 is upheld.

2. The proceedings are remitted to a commissioner other than Acting Commissioner Douglas for rehearing and determination.

3. Exhibits are returned.

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Decision last updated: 20 July 2022