Robson v Leischke - [2008] NSWLEC 152

No judgment structure available for this case.

Reported Decision: (2008) 72 NSWLR 98; (2008) 159 LGERA 280

Land and Environment Court

of New South Wales

CITATION: Robson v Leischke [2008] NSWLEC 152

PARTIES:
Melanie Robson
APPLICANT
Kevin Leischke
RESPONDENT

FILE NUMBER(S): 20981 of 2007

CORAM: Preston CJ

KEY ISSUES: Trees (Neighbours) :- tree falling over in storm - damage to neighbour's house - tree cut to a stump by time of application to court - whether still a tree to which the Trees (Disputes Between Neighbours) Act 2006 applies - tree landowner not at fault for damage caused by tree - whether fault required before court has power to make order requiring tree landowner to pay compensation for damage caused by tree - whether fault is a matter that may be considered by court in determining application and exercising discretion to make any order - whether consequential economic loss is damage to property and hence compensable - discussion of statutory scheme under Trees (Disputes Between Neighbours) Act 2006 and extent to which it differs from common law

LEGISLATION CITED: Civil Liability Act 2002 s 5B
Conveyancing Act 1919 s 88K(2), s 179
Environmental Planning and Assessment Act 1979 s 124(1)
Land and Environment Court Act 1979 s 40(2)
Trees (Disputes Between Neighbours) Act 2006 s 3, s 4, s 5, s 7, s 8, s 9, s 10, s 12, s 13, s 23

CASES CITED: Aaron v Haynes [2007] NSWLEC 294 (25 May 2007)
Antipas v Kutcher (2006) 144 LGERA 289
Ashworth v Joyce [2007] NSWLEC 357 (15 June 2007)
Asman v MacLurcan (1985) 3 BPR 9592
Attorney-General v Doughty (1752) 2 Ves. Sen. 453, 28 ER 290
Bank of New Zealand v Greenwood [1984] 1 NZLR 525
Bainbridge v Chertsey Urban District Council (1914) 84 LJ Ch 626
Barker v Kyriakides [2007] NSWLEC 292 (24 May 2007)
Barton v Chhibber (1988) Aust Torts Reports 80-185
Bathurst City Council v Saban (1985) 2 NSWLR 704
Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201
Baulkham Hills Shire Council v A V Walsh Pty Limited [1968] 3 NSWR 138, (1968) 15 LGRA 338
Bayliss v Lea [1962] SR (NSW) 521
Bennetts v Honroth [1959] SASR 170 (7 September 1959)
Bernstein of Leigh (Baron) v SkyViews & General Ltd [1978] QB 479
British Road Services Ltd v Slater [1964] 1 All ER 816
Broadie v Singleton Shire Council (2001) 206 CLR 512
Brown v Harrison (1947) 204 The Law Times 24
Bruce v Caulfield (1918) 34 The Times Law Reports 204
Buckingham v Ryder [2007] NSWLEC 458 (25 July 2007)
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Butler v Standard Telephones & Cables Ltd [1940] 1 KB 399, [1940] 1 All ER 121
Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264
Caminer v Northern & London Investment Trust Ltd [1951] AC 88
Campbell v Paddington Corporation [1911] 1 KB 869
Cannon v Newberger (1954) 1 Utah 2d 296
Chastey v Ackland [1895] 2 Ch 389
City of Richmond v Scantelbury [1991] 2 VR 38
Cohen v City of Perth (2000) 112 LGERA 234
Coutts v Haydon [2007] NSWLEC 863 (20 December 2007)
Crowhurst v Amersham Burial Board (1878) 4 ExD 5
Crump v Lambert (1867) LR 3 Eq 409
Cunliffe v Bankes [1945] 1 All ER 459
Dalton v Angus (1881) 6 App Cas 740
Davey v Harrow Corporation [1958] 1 QB 60, [1957] 2 All ER 305
Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321
Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482
Dooley v Newell [2007] NSWLEC 715 (23 October 2007)
Dudley v Meadowbrook Inc (1961) 166 A 2d 743
Dungog Shire Council v Babbage (2004) 134 LGERA 349
Elliott v Islington London Borough Council [1991] 10 EG 145, 7-06-1990 Times 839
Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22
F Hannan v Electricity Commission of NSW [No 3] (1985) 66 LGERA 306
Fishmonger's Co v East India Co (1752) 1 Dick 163, 21 ER 232
French v Auckland City Corporation [1974] 1 NZLR 340
Fletcher v Bealey (1884) 28 ChD 688
Gartner v Kidman (1962) 108 CLR 12
Gazzard v Hutchesson (1995) Aust Torts Reports 81-337
Gibson v Denton (1896) 4 AD 198; 74 NY St Rep 197
Giles v Walker (1890) 24 QBD 656
Goldman v Hargrave [1967] 1 AC 645
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Grosvenor Hotel Co v Hamilton [1894] 2 QB 836
Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683, [1961] 2 All ER 145
Hill v Van Erp (1997) 188 CLR 159
Hoare & Co v McAlpine [1923] 1 Ch 167
Holder v Coates (1827) M. & M. 112, 173 ER 1099
Hooper v Rogers [1975] Ch 43
Horn & Anor v Latter [2007] NSWLEC 744 (23 October 2007)
Hunter v Canary Wharf Ltd [1997] AC 655
Hurst v Hampshire County Council (1997) 96 LGR 27
In re Christmas. Martin v Lacon (1886) 33 ChD 332
Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307
Kent v Johnson (1973) 21 FLR 177
Kidman v Page [1959] Qd R 53
King v Taylor (1976) 238 EG 265
Laws v Florinplace Ltd [1981] 1 All ER 659
Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485
Lemmon v Webb [1894] 3 Ch 1
Lemmon v Webb [1895] AC 1
Lister v Hong [2006] NSWSC 1135 (31 October 2006)
L J P Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490
Malliate v Sharpe [2001] NSWSC 1057 (13 December 2001)
Malone v Lasky [1907] 2 KB 141
Manchester Corp v Farnworth [1930] AC 171
Mandeno v Brown and Wilkie [1952] NZLR 447
March v E & M H Stramare Pty Limited (1991) 171 CLR 506
Masters v Brent London Borough Council [1978] QB 841
Matthews v Forgie [1917] NZLR 921
McCombe v Read [1955] 2 QB 429, (1955) 2 All ER 458
Mendez v Palazzi (1976) 68 DLR (3d) 582
Mills v Brooker [1919] 1 KB 555
Molloy v Drummond [1939] NZLR 499
Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 61 ALJR 282, (1986) 62 LGRA 46
Morgan v Khyatt [1964] 1 WLR 475
Newcastle-under-Lyme Corporation v Wolstanton Ltd [1947] Ch 92
Noble v Harrison [1926] 2 KB 332
Oldham v Lawson (No 1) [1976] VR 654
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617
Owners of Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117
P Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 (15 March 2007)
Peisley v Ashfield Municipal Council (1970) 21 LGRA 243; affirmed (1971) 23 LGRA 166
Pemberton v Bright [1960] 1 WLR 436
Perre v Apand Pty Ltd (1999) 198 CLR 180
Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478
Ponting v Noakes [1894] 2 QB 281
Pwllbach Colliery v Woodman [1915] AC 634
Quinn v Scott [1965] 2 All ER 588
Read v J Lyons & Co Ltd [1947] AC 156
Ridley v Gyler [2007] NSWLEC 220 (20 April 2007)
Rose v Equity Boot Co Ltd and Hannafin (1913) 32 NZLR 677
Roud v Vincent [1958] NZLR 794
Rylands v Fletcher (1868) LR 3 HL 330
Salvin v North Brancepeth Coal Co (1874) LR 9 Ch 705
Sedleigh-Denfield v O'Callaghan [1940] AC 880
Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287
Simbert Group Transport Pty Limited v Clifford [2005] SADC 80 (8 July 2005), 241 LSJS 1
Smith v Giddy [1904] 2 KB 448
Smith v Littlewoods Organisation Ltd [1987] AC 241
Solloway v Hampshire County Council (1981) 79 LGR 449
South Australia v Simionato (2005) 143 LGERA 128
Sparke v Osborne (1908) 7 CLR 51
Speed v Money & Musson (1904) 48 Sol Jo 674
Sterling v Weinstein (1950) 75 A2d 144
St Helens Smelting Co v Tipping (1865) 11 HLC 642
Sutherland Shire Council v Becker (2006) 150 LGERA 184
Tate & Lyle Food Distribution Ltd v Greater London Council [1983] 2 AC 509
Thompson v Sydney Municipal Council (1938) 14 LGR (NSW) 32
Thompson-Schwab v Costaki [1956] 1 WLR 335, [1956] 1 All ER 652
Todd v Flight (1860) 9 CB NS 377
Torette House Pty Ltd v Berkman (1940) 62 CLR 637
Turner v Ridley (1958) 144 A2d 269
Vairy v Wyong Shire Council (2005) 223 CLR 422
Valherie v Strata Corporation No 1841 and Ors (2004) 234 LSJS 134, [2004] SASC 170
Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108
Vella v The Owners of Strata Plan 8670 [2007] NSWLEC 365 (28 May 2007)
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
Vincent v Peacock [1973] 1 NSWLR 466
Walter v Selfe (1851) 4 De G & Sm 315, 64 ER 849
William Aldred's Case (1611) 9 Co Rep 57b, 77 ER 816
Woodnorth v Holdgate [1955] NZLR 552
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Wringe v Cohen [1940] 1 KB 229
Wyong Shire Council v Shirt (1980) 146 CLR 40
Young v Wheeler (1987) Aust Torts Reports 80-126

DATES OF HEARING: 20-21 December 2007, 4 February 2008

DATE OF JUDGMENT:
30 April 2008

LEGAL REPRESENTATIVES:
APPLICANT
Ms Melanie Robson (in person)
SOLICITORS
N/A
RESPONDENT
Mr M G Craig QC
with him Mr J Johnson (barrister)
SOLICITORS
McLachlan Chilton

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

1 MAY 2008

20981 OF 2007

ROBSON V LEISCHKE

JUDGMENT

Contents
Para No

A tree causes damage to neighbouring property
2

The tree and the cause of its failure
8

The conduct and knowledge of the tree landowner
20

The affected landowner applies for compensation
27

The tree landowner rejects compensation
33

The common law regime prior to the Trees (Disputes Between Neighbours) Act 2006
36

The causes of action at common law
36

Trespass
39

Private nuisance
42

Nature of nuisance
42

Requirement for fault
44

Nature of defendant’s conduct
47

Kinds of private nuisances
54

Causing an encroachment of neighbour’s land
55

Causing physical damage to neighbour’s land
67

Undue interference with use and enjoyment of neighbour’s land
84

Right to sue in nuisance
91

Negligence
93

The NSW Law Reform Commission review and report
107

The Trees (Disputes Between Neighbours) Bill
133

The statutory scheme under the Trees (Disputes Between Neighbours) Act 2006
136

“Tree”
137

Tree “is situated on” land
142

“Land” on which tree is situated
148

Identification of affected landowner and owner of adjoining land
150

Applicant must be affected landowner
158

Specified harm caused by the tree
161

Damage to “property on the land”
162

“Damage to property”
168

“Injury to any person”
174

Causation: Nexus between tree and specified harm
176

Preconditions to the Court making an order
190

Reasonable effort to reach agreement
191

Notice
197

Damage or injury
198

Matters to be considered in determining an application
200

Remedies in relation to specified harm
211

Limitation on action in nuisance
217

The application before the Court
220

Matters to be considered by the Court in determining this application
222

Exercise of power to make orders
223

Orders
230

1 HIS HONOUR: The Queen’s birthday weekend of 8-9 June 2007 was a weekend of wild, windy and wet weather. An east coast low pressure system brought gale force winds and flash flooding to Newcastle and the Central Coast of New South Wales. It was on this weekend that the 76,000 tonne bulk ore carrier Pasha Bulker grounded on Newcastle beach. Flooding and high winds caused loss of power to over 200,000 homes in the Sydney-Newcastle area. Wind gusts of up to 135 kilometres per hour were measured at Norah Head at 1.30am on the morning of 9 June 2007.

A tree causes damage to neighbouring property

2 Niagara Park, a residential suburb near Gosford on the Central Coast, was one of the areas affected by the stormy weather. On the evening of Friday, 8 June 2007, the gale winds blew a large, Grey Ironbark tree growing on Mr Leischke’s property at 54 Joppa Street, Niagara Park, crashing onto the dwelling on Mrs Robson’s neighbouring property at 56 Joppa Street. Significant physical damage was caused to the roof, ceilings, windows and other parts of the house and consequential water damage was caused to the interior of the house.

3 The wet weather had started on the preceding Thursday, 7 June 2007. 59 millimetres had fallen on that day. The rain escalated over the next two days. On Friday, 8 June 2007, 110 millimetres of rain fell and on Saturday, 9 June 2007, a further 229 millimetres fell. These three days were the days of highest rainfall in June 2007 on the Central Coast.

4 Mr Leischke was at home on the night of 8 June 2007. He said there had been a lot of rain. He could see water pooling on the ground in the backyard.

5 The tree fell in the evening, sometime before 10.00pm on 8 June 2007. The State Emergency Services (SES) attended, cut branches of the tree lying over the roof of Mrs Robson’s house and erected a tarpaulin across the roof to prevent further water incursion. The SES advised the then tenants of Mrs Robson residing at the house that it would be unsafe for them to stay in the house. The tenants moved out on 9 June 2007. They did not return.

6 Mrs Robson and her father carried out interim work to repair the roof, ceiling and windows to make safe and waterproof the house. Mrs Robson moved into the house, with her family, on 26 September 2007.

7 There was, therefore, a period of about 15 weeks where the house was not occupied by the tenants or Mrs Robson. This period is the subject of Mrs Robson’s claim for loss of rent.

The tree and the cause of its failure

8 An arborist called by Mr Leischke in the proceedings, Mr Freeman, inspected Mr Leischke’s property six months after the event, on Thursday, 13 December 2007. Mr Freeman inspected what remained of the tree (the stump and root ball and sawn sections of the trunk) and observed the growing environment of the tree. He studied photographs of the tree taken after it had fallen and before it was cut.

9 Mr Freeman identified the tree to be a Grey Ironbark, Eucalyptus paniculata, which is a native species indigenous to the area. Mr Freeman estimated the tree to be mature, about 80 years old. The overall height of the tree, based on the diameter of the trunk at breast height of 110 millimetres, was estimated to be 16 metres.

10 From the photographs taken at the time when the tree failed, Mr Freeman observed the tree to have a good percentage of foliage cover. The upper canopy did not appear to show any signs of reduction. It appeared to show no indications of poor health, epicormic growth, fungal infestation, borer or termite activity.

11 Based on the visual and physical assessment he undertook of the tree’s lower to mid trunk region, Mr Freeman saw no indications on the outer trunk, bark or remaining scaffold branches of borer or termite activity (past or present) or indications of open wounds, splitting or dead sections of bark or fungal infestation fruiting bodies.

12 The lower tree trunk was observed by Mr Freeman to have minor physical signs of fungal damage (which Mr Freeman thought might be Phytophthora), but they were located underground and were only visible after the tree had failed. Mr Freeman considered that the fungal damage would have had an adverse effect on the tree’s overall health and stability for its long-term management.

13 Mr Freeman stated that Phytophthora is spread through very moist and well aerated soil. He considered the construction of the sandstone retaining wall and subsequent drainage located around the tree’s anchorage root system (about 35%) could have contributed to the Phytophthora root rot damage on the anchorage root system closest to the wall.

14 However, Mr Freeman stated that:

15 Mr Freeman did not observe and had not been told by others that there was evidence or history of the individual tree being a problem tree. Furthermore, Mr Freeman stated that the tree species was not known to be a problem tree species.

16 Mr Freeman considered, based on the remaining trunk and limited scaffold branches observed, that the tree would not have shown any obvious visual signs of stress, poor structural stability or decline to the lay person.

17 As to the cause of failure of the tree, Mr Freeman stated:

18 In oral evidence, Mr Freeman repeated these three causes of failure:

19 Mr Freeman gave supplementary written evidence that an expert appraisal by a horticulturalist or arborist on the tree before it had failed, would have focused on its apparent health and growing conditions. Any further assessment, such as taking soil samples or digging around the tree’s lower trunk, would only be taken “if the tree was exhibiting signs that indicated the presence of a soil root pathogen”. To the horticulturalist or arborist, the signs of a root pathogen within the tree are “thinning or poor foliage cover and density, weeping foliage, yellow of the leaves, fruiting bodies from fungi within the tree’s lower trunk region or on the trunk”. However, “[i]f none of these indicators were observed and the tree appeared visually healthy i.e. looked good, good foliage colour, density, canopy shape, form, and sound within an ornamental garden and lawn setting it would be my position that no further investigation would have been undertaken and/or warranted”: Supplementary Report, dated 21 December 2007, p 2.

The conduct and knowledge of the tree landowner

20 Mr Leischke purchased the property and entered into occupation in 1997. The tree was already growing there at that time. Indeed, on Mr Freeman’s estimate that the tree is about 80 years old, the tree was already 70 years old when Mr Leischke entered occupation. The retaining wall adjoining the tree, which retained a vegetable garden uphill of the tree, and which Mr Freeman considered to be a contributing cause of the tree’s decline and overall health and stability, also had already been constructed when Mr Leischke entered into occupation. Mr Leischke took no positive action to alter the retaining wall or the vegetable garden retained by it, or the lawn area where the tree grew.

21 Mr Leischke said he looked at the tree from time to time, maybe once a year, checking for obvious signs of bark coming off, or white ant damage or “that sort of thing”. He never observed anything that he regarded as unusual with the tree. The tree appeared to him to be quite a healthy tree with lots of leaves and spreading branches. Occasionally, small dead branches, about 4-5 centimetres round, dropped off, but nothing greater. Mr Leischke had never received any complaints from the neighbour’s about the tree.

22 Mr Leischke said that the only time water would lie in the backyard was after very heavy rain. The water would come from the path from the back steps (near the vegetable garden uphill from the retaining wall) down towards the washing line which is at the back of the yard. This is in the middle of the lawn rather than near the tree.

23 The water would lie for, maybe, a day before it receded. Mr Leischke did not observe the area around the trunk of the tree and near the retaining wall to be any wetter in terms of water logging than any other part of the backyard.

24 Mr Leischke did not make any exploration by digging around the base of the tree. He mowed the lawn around the tree. He could not mow right up to the base of the tree but instead pulled the tops of the grass off to trim it. Mr Leischke had never observed any holes in the base of the tree when he pulled the grass.

25 On these facts, Mr Leischke did not plant the tree and did not take any positive action in relation to the tree or its growing environment. No positive action that Mr Leischke took in the 10 years he was in occupation was a cause of the tree’s failure.

26 Mr Leischke’s knowledge about the tree was that it appeared to be a healthy tree and he had not experienced any problems with it. He had no knowledge of any defect in the tree, such as root rot, or in the environment in which the tree grew, such as water logging. Furthermore, on Mr Freeman’s evidence, the tree would not have shown any obvious signs of stress, poor structural stability or decline to a lay person such as Mr Leischke. Mr Leischke would, therefore, not have constructive knowledge of any problems with the tree.

The affected landowner applies for compensation

27 On 4 October 2007, Mrs Robson made application to this Court under s 7 of the Trees (Disputes Between Neighbours) Act 2006 claiming an order under s 9 for the payment of compensation for the damage caused to Mrs Robson’s property by the tree.

28 At the time Mrs Robson made application to the Court, the Grey Ironbark tree had been cut so that only a base section of the trunk and the root ball remained, still situated in its original position wholly within Mr Leischke’s land. The base of the tree leant in the direction in which the tree had fallen. It remained attached to the ground through part of its root system on the underside of the root ball.

29 Mrs Robson gave written notice to Mr Leischke on the same day, 4 October 2007, and enclosed a copy of the application to the Court claiming compensation. Such notice is required by s 8(1) of the Trees (Disputes Between Neighbours) Act 2006.

30 On 15 October 2007, Mr Leischke’s insurer, AAMI, responded by denying liability on behalf of Mr Leischke. The insurer asserted “[t]here is no evidence to prove that our insured was negligent; the tree came down during severe storms”. The insurer gave notice that any claim by Mrs Robson for compensation would be “vigorously” defended.

31 In light of this response, any further efforts by Mrs Robson to try to reach agreement with Mr Leischke in relation to her claim for compensation would have been futile. The attempt that she had made is sufficient for the purposes of s 10(1)(a) of the Trees(Disputes Between Neighbours) Act 2006.

32 Mrs Robson’s claim for compensation falls into three categories:

(a) reimbursement of monies already expended by Mrs Robson in purchasing goods and materials used in undertaking the interim works to repair the damage to the house (such as tiles, gyprock and paint);

(b) damages for future works that need to be undertaken to complete repairing the damage to the house (various quotations from builders outlining the scope and cost of works required were provided by Mrs Robson); and

The tree landowner rejects compensation

33 Mr Leischke rejected Mrs Robson’s claim for compensation, denying liability at all or, in the alternative, in the amount claimed. Mr Leischke made the following submissions:

(a) The Court had no power to make an order requiring Mr Leischke to pay compensation because at the time Mrs Robson made application under the Trees (Disputes Between Neighbours) Act 2006 on 4 October 2007, the tree as such no longer existed, but rather only the stump and root ball remained. Hence, it could not be said, at the time of the application, that “a tree…is situated” on Mr Leischke’s land as required by s 7 of the Trees (Disputes Between Neighbours) Act 2006 .

(b) The Court had no power under s 9 of the Trees (Disputes Between Neighbours) Act 2006 to order Mr Leischke to pay compensation or, alternatively, the Court would not in the exercise of its discretion make such an order, where the tree’s failure and the consequential damage to Mrs Robson’s house were not the fault of Mr Leischke. The Trees (Disputes Between Neighbours) Act 2006 has continued the common law position that liability of an owner of land on which a tree that causes damage is situated, depends on proof of fault by that owner.

(c) An order for the payment of compensation for damage to property under s 9(1) and (2)(i) of the Trees (Disputes Between Neighbours) Act 2006 cannot include consequential economic loss, such as loss of rent.

34 The arguments of Mr Leischke require, first, an analysis of the position at common law before the introduction of the Trees (Disputes Between Neighbours) Act 2006 and, secondly, interpretation of the statutory scheme established under the Trees (Disputes Between Neighbours) Act 2006 to determine the extent to which the statutory scheme differs from the common law. In undertaking the second task, it is relevant to consider, insofar as is permissible under established principles of statutory interpretation, the extrinsic material of any relevant report of the New South Wales Law Reform Commission and the second reading speech made when the Bill was introduced to Parliament.

35 Although the Trees (Disputes Between Neighbours) Act 2006 commenced on 2 February 2007 and there have been many decisions of Commissioners of the Court determining applications made under the Act, this case is the first opportunity for judicial analysis of the Trees (Disputes Between Neighbours) Act 2006. A more comprehensive and detailed analysis of the Trees (Disputes Between Neighbours) Act 2006 and its history will be beneficial not only in determining the particular issues raised in this case but also in providing guidance in the future application of the Act. The analysis may also be beneficial in the review of the Trees (Disputes Between Neighbours) Act 2006 mandated by s 23(1) to be undertaken as soon as possible after the period of two years from the date of assent (4 December 2006).

The common law regime prior to the Trees (Disputes Between Neighbours) Act 2006

The causes of action at common law

36 Where a tree causes damage to property, under Australian common law, there are three causes of action in tort the affected land owner can bring against the owner of the land on which the tree that caused the damage grew: trespass, nuisance and negligence.

37 The first derives from the traditional form of action in trespass, the other two from action on the case. For an action in trespass, the injury must be caused by a direct, intentional act of the defendant. For an action on the case, the injury may be due to an omission or an act which is injurious to the plaintiff’s interests consequentially or indirectly: Halsbury’s Laws of Australia, Butterworths, Vol 26 [415-10], p 787,024.

38 Each of these three causes of action require fault by the defendant. Fault involves falling below a standard of behaviour required by law. Fault may be in the form of intentional conduct or negligent conduct: Halsbury’s Laws of Australia, Butterworths, Vol 26 [415-60], p 787,034. However, strict liability can be imposed by statute: Halsbury’s Laws of Australia, Butterworths, Vol 26 [415-75], p 787,036.

Trespass

39 An action of trespass to the plaintiff’s land (which includes improvements on it, such as a house) will lie against a defendant, who, without the plaintiff’s permission or licence, enters the plaintiff’s land, unless the defendant’s entry is justified in some way: Halsbury’s Laws of Australia, Butterworths, Vol 26 [415-325], p 787,123. Every unjustified entry directly by a person on land in possession of another, which is carried out either intentionally or negligently, is an actionable trespass, even though no damage is done thereby: Halsbury’s Laws of Australia, Butterworths, Vol 26 [415-480], p 787,144.

40 There must be physical intrusion onto the plaintiff’s land: Bathurst City Council v Saban (1985) 2 NSWLR 704 at 706. The intrusion must also be direct. Hence, for a defendant to cut off a part of a tree growing on the defendant’s land and drop it over the boundary directly into the plaintiff’s land is a trespass, but the intrusion of branches or roots of a tree into the plaintiff’s property due to the operation of natural forces is indirect and is treated as nuisance, not trespass: Lemmon v Webb [1894] 3 Ch 1 at 24 affirmed on other grounds in Lemmon v Webb [1895] AC 1; Bruce v Caulfield (1918) 34 TLR 204 at 205; Butler v Standard Telephones & Cables Ltd [1940] 1 All ER 121 at 131; Davey v Harrow Corporation [1958] 1 QB 60 at 70; Bernstein of Leigh (Baron) v SkyViews & General Ltd [1978] 1 QB 479 at 485; Young v Wheeler (1987) Aust Torts Reports ¶80-126 at p 68,969; L J P Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 at 496. Similarly, to enter a neighbour’s land to cut away branches or roots that encroach over the boundary is a trespass: Gazzard v Hutchesson (1995) Aust Torts Reports ¶81-337 at p 62,360.

41 In this case, the tree intruded into and caused physical damage to the applicant’s property by operation of natural forces (the storm). There was no direct action of the respondent that caused the tree to fall into the applicant’s property. An action in trespass, therefore, would not lie against the respondent.

Nature of nuisance

42 Private nuisance involves an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of his or her ownership or occupation of land or some easement, profit or right used in connection with the land: Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-01], p 1162 and Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903.

43 Showing its origins in action on the case, nuisance involves an infringement of the claimant’s interest in the property without direct entry by the defendant (in contrast to trespass which involves a direct entry onto the claimant’s land) and is actionable only on proof of special damage (in contrast to trespass which is actionable per se without proof of special damage): Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-02], p 1162.

Requirement for fault

44 The tort of nuisance involves fault of some kind or another: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 at 639; Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 61 ALJR 282 at 284, (1986) 62 LGRA 46 at 50-51; and Sutherland Shire Council v Becker (2006) 150 LGERA 184 at 225 [119].

45 Fault generally involves foreseeability: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 at 639-640; Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 at 522, 524; Solloway v Hampshire County Council (1981) 79 LGR 449 at 452, 457-458, 460 and 461; City of Richmond v Scantelbury [1991] 2 VR 38 at 45; Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994] 2 AC 264 at 300; Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 at 332 [29].

46 Liability for nuisance, therefore, is not a strict liability: Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 904.

Nature of defendant’s conduct

47 The type of fault required varies depending on whether the defendant created the nuisance or adopted or continued the nuisance.

48 Where the defendant created the nuisance, the fault element varies depending on the nature of the defendant’s conduct and his or her state of knowledge. Clerk & Lindsell on Torts identify three situations where the defendant has created the nuisance:

(a) “if the defendant deliberately or recklessly uses his land in a way which he knows will cause harm to his neighbour, and that harm is considered by a judge to be an unreasonable infringement of his neighbour’s interest in his property, and therefore an unreasonable user by the defendant of his property, the defendant is liable for the foreseeable consequences. This proposition covers all those cases of obvious or “patent” nuisances, and they are peculiarly the cases which call for prevention or prohibition by injunction. It is no defence that the defendant believed he was entitled to do as he did or that he took all possible steps to prevent his action amounting to a nuisance”: Clerk & Lindsell on Torts , 19th ed, Sweet & Maxwell, London, 2006, [20-39], p 1184;

(b) “if the defendant knew or ought to have known that in consequence of his conduct harm to his neighbour was reasonably foreseeable, he is under a duty of care to prevent such consequences as are reasonably foreseeable. In such case the defendant is liable because he is considered negligent in relation to his neighbour, and here nuisance and negligence coincide”: Clerk & Lindsell on Torts , 19th ed, Sweet & Maxwell, London, 2006, [20-40], p 1185; and

Rylands v Fletcher

Clerk & Lindsell on Torts

Rylands v Fletcher

Burnie Port Authority v General Jones Pty Ltd

49 Where the defendant continues or adopts a nuisance, different conduct is required before liability will be imposed on the defendant. An occupier of land “continues” a nuisance or a potential nuisance if, with actual or constructive knowledge of its existence, he or she fails, within a reasonable period of time, to take reasonable measures to bring it to an end: Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 894, 904-905, 913; Torette House Pty Ltd v Berkman (1940) 62 CLR 637 at 657-658; Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 62 ALJ 282 at 284, (1986) 62 LGRA 46 at 50; City of Richmond v Scantelbury [1991] 2 VR 38 at 41, 42; Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 at 484; Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 at 332 [29].

50 An occupier of land “adopts” a nuisance if he or she makes use of “the erection, building, bank or artificial contrivance” or the natural object (such as a tree) which constituted the nuisance: Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 894, 904, 913; Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 at 484.

51 An occupier of land who knows or ought to know of a nuisance, and the possibility of danger occurring in consequence is a real risk, must take such positive action as a reasonable person, in his position and circumstances, would consider necessary to eliminate the nuisance: Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-42], p 1185-1186; Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 894, 904-905, 913; Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 61 ALJ 282 at 284, (1986) 62 LGRA 46 at 50; City of Richmond v Scantelbury [1991] 2 VR 38 at 40, 42, 43, 45, 46; Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 at 332 [29], 333 [31]; and South Australia v Simionato (2005) 143 LGERA 128 at 141 [52]-[53], 142 [56].

52 Knowledge of the nuisance, actual or constructive, is insufficient by itself to render an owner or occupier liable for damage caused by it; arising out of such knowledge is a duty on the occupier to take steps to eliminate the risk of damage from the nuisance which is reasonably foreseeable: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 at 639; City of Richmond v Scantelbury [1991] 2 VR 38 at 45; Malliate v Sharpe [2001] NSWSC 1057 (13 December 2001) at [43], [44].

53 The defendant will be liable if, when the nuisance arose, the defendant did not take any reasonable means to bring it to an end when the defendant became aware, or ought to have been aware, of the existence of the nuisance, and damage results: Valherie v Strata Corporation No 1841 and Ors [2004] SASC 170 (9 June 2004); 234 LSJS 134 at 14 [33], [34], [36], 143 [44]; Sutherland Shire Council v Becker (2006) 150 LGERA 184 at 226 [121].

Kinds of private nuisances

54 Private nuisance involves balancing, on one hand, the right of one owner or occupier of land to do what he or she likes on their land with, on the other hand, a right of a neighbour not to have his or her use or enjoyment of their property interfered with: Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903. The tipping point in the balance is where the consequences of the use by the first person of his or her land unduly interferes, in ways recognised by the law as constituting a nuisance, with the use and enjoyment by the neighbour of his or her property. Three kinds of interference are recognised by the law as constituting a nuisance:

(a) causing encroachment on the neighbour’s land, short of trespass;

(b) causing physical damage to the neighbour’s land or any building, works or vegetation on it; and

(c) unduly interfering with a neighbour in the comfortable and convenient enjoyment of his or her land: Clerk & Lindsell on Torts , 19th ed, Sweet & Maxwell, London, 2006, [20-06], p 1165 cited with approval in Thompson-Schwab v Costaki [1956] 1 WLR 335 at 338, [1956] 1 All ER 652 at 653; Mendez v Palazzi (1976) 68 DLR(3d) 582 at 589; and Owners of Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117 at 135 [50]; and to similar effect in Hunter v Canary Wharf Ltd [1997] AC 655 at 695.

Causing an encroachment on neighbour’s land

55 Nuisances of the first kind, causing an encroachment, are exemplified by branches or roots of a tree growing on the defendant’s land, encroaching into the air above or the soil below the neighbour’s land: Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-07], p 1165.

56 Mere encroachment into the neighbour’s land is insufficient to complete a cause of action for nuisance; special damage must be suffered by the neighbour as a result of the encroachment to obtain the remedies of damages or injunction: Asman v MacLurcan (1985) 3 BPR 9592 at 9594. Damage ordinarily being the last element of the cause of action in nuisance to be satisfied, the cause of action will ordinarily accrue on proof of damage occurring: McCombe v Read [1955] 2 QB 429 at 435; Peisley v Ashfield Municipal Council (1970) 21 LGRA 243 at 248 (reversed on appeal but on a different point: Peisley v Ashfield Municipal Council (1971) 23 LGRA 166 at 169, 171-172); South Australia v Simionato (2005) 143 LGERA 128 at 141 [51]; and Lister v Hong [2006] NSWSC 1135 (31 October 2006) at [23], [30].

57 However, even though actual damage has not yet occurred, the neighbour has a right to abate by cutting away at the boundary so much of the branches and/or roots that encroach: Lemmon v Webb [1894] 3 Ch 1 at 13-14, 17-18, 24; Smith v Giddy [1904] 2 KB 448 at 451; Mills v Brooker [1919] 1 KB 555 at 557-558; Butler v Standard Telephones & Cables Limited [1940] 1 All ER 121 at 130; Mandeno v Brown and Wilkie [1952] NZLR 447 at 450-451; Young v Wheeler (1987) Aust Torts Reports ¶80-126, p 68,966 at 68,970. There is no right to cut away branches or roots growing between the tree and the boundary, for to do so would be a trespass: Gazzard v Hutchesson (1995) Aust Torts Reports ¶81-337, p 62,352 at 62,360. As the overhanging branches or encroaching roots are still part of the property of the owner of the land on which the tree grows, the neighbour who cuts away the branches or roots should return them to the tree owner to avoid liability for conversion of the tree owner’s property: Mills v Brooker [1919] 1 KB 555 at 558.

58 Furthermore, although actual damage is required to have a completed cause of action, a quia timet injunction might lie to restrain apprehended damage to the neighbour’s property by encroaching tree branches or roots, but only if there is proof that the apprehended damage, first, is imminent or likely to occur in the near future and, secondly, is very substantial or almost irreparable: Fletcher v Bealey (1885) 28 ChD 688 at 698; Hooper v Rogers [1975] Ch 43 at 49-50; Mendez v Palazzi (1976) 68 DLR(3d) 582 at 590 and Asman v MacLurcan (1985) 3 BPR 9592 at 9594. The requirement of imminence is to indicate that the injunction ought not to be granted prematurely: Hooper v Rogers [1975] Ch 43 at 49, 50. The degree of probability of future damage required has been said to be “a real appreciable probability of irreparable damage”: Asman v MacLurcan (1985) 3 BPR 9592 at 9594. However, it has also been noted that “the degree of probability of future injury is not an absolute standard: what is to be aimed at is justice between the parties, having regard to all the circumstances”: Hooper v Rogers [1975] Ch 43 at 50.

59 Examples of cases where overhanging branches have been held to constitute an actionable private nuisance include where:

(a) branches of a yew tree, the leaves and branches of which were poisonous to stock, projected over the neighbour’s land where they were eaten by the neighbour’s horse, which later died from poisoning: Crowhurst v Amersham Burial Board (1878) 4 ExD 5 (but there was no nuisance where the branches of a yew tree did not overhang the neighbour’s property and the neighbour’s horse instead gained access to the tree wholly on the defendant’s property and ate the leaves and died: Ponting v Noakes [1894] 2 QB 281 at 286, 288);

(b) branches of a tree overhanging the neighbour’s land interfered with the growth of fruit trees on the neighbour’s land, the injury being a natural consequence of the defendant’s trees being allowed to overhang: Smith v Giddy [1904] 2 KB 448 at 450, 451;

(c) branches of trees projected to such an extent over the neighbour’s land that they brushed against their house, so disturbing them in their sleep, and leaves from the overhanging branches blocked the downpipe on the house causing two rooms to be flooded: Rose v Equity Boot Co Ltd and Hannafin (1913) 32 NZLR 677; and

Mandeno v Brown and Wilkie

Woodnorth v Holdgate

60 Examples of cases where encroaching roots have been held to constitute an actionable nuisance include where:

(a) roots encroached into the neighbour’s property extracting moisture from the ground, causing shrinkage of the soil, undermining the foundations, and/or causing cracking or subsidence of the buildings on the neighbour’s land: Butler v Standard Telephones & Cables Limited [1940] 1 KB 399, [1940] 1 All ER 121; McCombe v Read [1955] 2 QB 429, [1955] 2 All ER 458; Davey v Harrow Corporation [1958] 1 QB 60, [1957] 2 All ER 305; King v Taylor (1976) 238 EG 265; Masters v Brent London Borough Council [1978] QB 841; Solloway v Hampshire County Council (1981) 79 LGR 449; Barton v Chhibber (1988) Aust Torts Reports ¶80-185, p 67,745; Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478; City of Richmond v Scantelbury [1991] 2 VR 38; Hurst v Hampshire County Council (1997) 96 LGR 27; Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321; Valherie v Strata Corporation No 1841 & Ors [2004] SASC 170 (9 June 2004), 234 LSJS 134; and South Australia v Simionato (2005) 143 LGERA 128.

(b) encroaching roots damaged storm water and sewerage drains: Morgan v Khyatt [1964] 1 WLR 475; Peisley v Ashfield Municipal Council (1970) 21 LGRA 243 (finding of actionable nuisance affirmed in Peisley v Ashfield (1971) 23 LGRA 166); King v Taylor (1976) 238 EG 265; and Young v Wheeler (1987) Aust Torts Reports ¶80-126, p 68,966 (potential threat of damage);

(c) encroaching roots damaged retaining walls: Elliot v Islington London Borough Council [1991] 10 EG 145, 7-06-1990 Times 839,417 (and even when the roots do not encroach, but exert pressure behind a retaining wall on the common boundary, a nuisance might be caused: Owners of Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117 at 129 [16], 132 [22] per Powell JA but contra at 135 [52], [53] per Young CJ in Eq);

(d) encroaching roots caused damage to a neighbour’s lawn and patio and interfered with their enjoyment of their land: Mendez v Palazzi (1976) 68 DLR(3d) 582;

Woodnorth v Holdgate

Roud v Vincent

61 As noted above, the liability of a defendant as occupier of land on which a tree grows, for nuisances of the first kind, namely causing an encroachment on the neighbour’s land, will vary depending on whether the defendant created the nuisance or continued or adopted the nuisance.

62 A defendant may create a nuisance by planting trees, of a kind or in a location or in a condition, which are likely to cause harm to his neighbour as they grow. It may be rare that planting a tree would fall within the category of unreasonable user (see paragraph 48(a) above).

63 One example was where the defendant planted a row of pine trees close to a neighbour’s boundary. The trees were of a nature where they could be expected to, and in fact did, grow to a height and have their branches overhang the neighbour’s property for various distances. The planting of trees of that nature, in a location proximate to the boundary, was held not to be a natural user of the land and constituted a nuisance: Mandeno v Brown and Wilkie [1952] NZLR 447 at 449-450.

64 However, in most other cases, the mere planting of a tree has not been held to be an unreasonable user: egs Lemmon v Webb [1894] 3 Ch 1 at 11; Matthews v Forgie [1917] NZLR 921 at 924-925; Noble v Harrison [1926] 2 KB 332 at 336, 342; Molloy v Drummond [1939] NZLR 499 at 503. Trees and tree roots per se are not a danger or a nuisance: City of Richmond v Scantelbury [1991] 2 VR 38 at 40 and South Australia v Simionato (2005) 143 LGERA 128 at 142 [54].

65 It is more likely that planting a tree may be negligent (see paragraph 48(b)). If a defendant planted a tree of a kind (such as a large and vigorously growing tree with invasive roots) or in a location (in close proximity to the neighbour’s property, house, works or other vegetation) or in a condition (such as being pot bound or with patent defects in the trunk and branches or the roots) and that tree in fact grows so as to encroach, such as by its branches overhanging or roots growing into the neighbour’s property, and damage is caused thereby, the defendant will be liable in nuisance: Matthews v Forgie [1917] NZLR 921 at 924; Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 904-905; City of Richmond v Scantelbury [1991] 2 VR 38 at 40.

66 If the defendant did not plant the tree which causes a nuisance, such as by encroaching branches or roots, but instead it was either planted by a third party or was self-sown, the defendant, as occupier of the land on which the tree grows, will not be liable unless and until the defendant had or ought to have had knowledge of the growth of the tree and the damage created by it, and fails to act without undue delay to remedy it upon becaming aware of it: Noble v Harrison [1926] 2 KB 332 at 338; Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 894, 904-905 and 913; Davey v Harrow Corporation [1958] 1 QB 60 at 73; Leakey v National Trust for Places of Historical Interest or Natural Beauty [1980] QB 485 at 522; Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 at 484; City of Richmond v Scantelbury [1991] 2 VR 38 at 40-41, 42; Valherie v Strata Corporation No 1841 & Ors [2004] SASC 170 (9 July 2004); 234 LSJS 134 at 139 [27], [28] and Sutherland Shire Council v Becker (2006) 150 LGERA 184 at 226 [121], 230 [136]. In this circumstance, the defendant’s liability is dependent on having adopted or continued the nuisance and being negligent in not abating it.

Causing physical damage to neighbour’s land

67 Nuisances of the second kind, causing physical damage to a neighbour’s land and buildings, works or vegetation on it, arise where the consequences of the defendant’s conduct extend onto the neighbour’s land causing physical damage. The cause of action for this kind of nuisance is, again, only complete when actual damage is caused. Until damage is caused, no nuisance exists, only the potentiality of the nuisance: Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 896, 919-920. However a quia timet injunction can be obtained to restrain impending damage, provided it is imminent or very likely to occur in the near future: Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-26], p 1177-1178.

68 Usually, nuisances of this second kind are caused by human activity, such as doing some act or neglecting to perform some duty. Examples are where:

(a) the defendant allows a drain on his land to become blocked or makes a concrete paved drive so that water overflows onto his neighbour’s land: Sedleigh-Denfield v O’Callaghan [1940] AC 880; Bennetts v Honroth [1959] SASR 170; Pemberton v Bright [1960] 1 WLR 436;

(b) allowing buildings on his land to become dilapidated so that they, or parts of them, fall upon his neighbour’s land: Todd v Flight (1860) 9 CB NS 377; Wringe v Cohen [1940] 1 KB 229; and

St Helen’s Smelting Co v Tipping

Salvin v North Brancepeth Coal Co

Manchester Corp v Farnworth

69 In relation to trees, it may involve the defendant, on whose land a tree grows, taking action which adversely affects the health and vigour of the tree or its structural stability, such as pruning, lopping or cutting braches or roots of the tree; excavating around the tree and its roots; altering the hydrological or nutrient conditions of the tree; poisoning the tree; ringbarking or damaging the trunk of the tree; or allowing a tree to become unsafe or unsound so that it, or parts of it, fall onto the neighbour’s land.

70 Nuisances of the second kind can also originate in some natural condition of the land. The duty of an occupier of land to take reasonable care to avoid causing harm to a neighbour’s property extends to nuisances caused by some natural condition of or natural event occurring on the land.

71 Thus, an occupier of land was held to be under a duty of care to abate a fire which had started by lightening striking a tree on his land and spreading to his neighbour’s land: Goldman v Hargrave [1967] 1 AC 645 at 661-662. An owner of a natural hill which was unstable and from which, by natural forces, soil fell causing damage to the neighbour’s land, was also held to be under a duty of care to the neighbour in relation to the hazard on his land: Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 at 514, 522.

72 This affirmative duty to take action arises where the defendant has, or ought to have had, knowledge of the existence of the defect in the land or something on it and the danger thereby created: Goldman v Hargrave [1967] 1 AC 645 at 663-664; Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 at 522; Smith v Littlewoods Organisation Ltd [1987] AC 241 at 279.

73 The scope of the duty is:

Leakey v National Trust for Places of Historic Interest or Natural Beauty

74 The duty of care is not that of the reasonable man in negligence, but rather it is measured by the reasonable capabilities and circumstances of the defendant: Goldman v Hargrave [1967] 1 AC 645 at 663; Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 at 526.

75 As noted above, the defendant’s liability for a nuisance of this second kind will depend on the defendant either having created the nuisance (such as by doing the acts which caused the defect and the danger) or by adopting or continuing the nuisance (which require the defendant to have actual or constructive knowledge of the defect and the danger thereby created). In Noble v Harrison [1926] 2 KB 332 at 338, Rowlatt J summarised the authorities as holding that:

Sedleigh-Denfield v O’Callaghan

Goldman v Hargrave

Leakey v National Trust for Places of Historic Interest or Natural Beauty

Cunliffe v Bankes

Torette House Pty Ltd v Berkman

76 The defendant may create a nuisance by planting a tree of a kind, or in a location or in a condition where it, or part of it, is likely, as it grows, to fall onto the neighbour’s property. The defendant may also create a nuisance by carrying out works to the tree (such as inappropriate lopping, pruning or cutting of branches from the roots of the tree) or to its surrounds (such as changing the soil levels or hydrological or nutrient conditions) or poisoning the tree. The defendant who has created the potentiality for the nuisance by such conduct would be liable:

(a) for the foreseeable consequences of the conduct, if the defendant’s conduct is an unreasonable user of the land (see paragraph 48(a) above); and

77 If the defendant did not create the nuisance (such as by planting the tree or carrying out works to or around the tree) he could still be liable if he adopted or continued the nuisance. If the defendant as occupier of the land in which the tree grew, knew or ought to have known of the unsuitability of the tree, such as because of the kind of tree or its location or condition or health or other reason, and the possibility of damage occurring in consequence is a real risk, the defendant would be under a duty to take such positive action as a reasonable person, in his position and circumstances, would consider necessary to eliminate the nuisance. The defendant would be liable for nuisance if he fails to do so and the tree causes damage.

78 Thus, a defendant was held liable in nuisance for the damage caused when a decayed tree was blown down in a heavy gale and damaged a neighbour’s house. The tree had been cut into near the ground; it had been blazed; about a third of the trunk and many of the limbs were decayed; and its unsound condition was apparent and had been for several years. It stood fully exposed to the wind. The defendant had knowledge of the defective state of the tree and the danger it posed. The neighbour had requested the defendant to remove the tree three times but the defendant, although promising to do so, never did remove it. The defendant was held to have “had no more right to keep, maintain or suffer to remain on her premises an unsound tree near the house of her neighbor, on which in any of the frequently occurring high winds it was liable to fall, than she would have had to keep a dilapidated and unsafe building in the same position. It was her duty to maintain her premises in such a condition as that they should not become a cause of injury to her neighbor’s property in a way that common prudence should foresee”: Gibson v Denton (1896) 4 AD 198 at 201; 74 NY St Rep 197.

79 Similarly, a landowner was held liable in nuisance and negligence where the whole of a beech tree growing on the defendant’s land bordering a busy main country road, split and fell onto the road, causing an accident between two vehicles. The landowner knew or ought to have that if the tree were to fail, it would fall on to the road, blocking it. The landowner, by its employees, knew that the tree was old, top-heavy, and showing an appearance of unhealthiness in the thinness of the foliage and indications of dieback, such signs being consistent with decay in the tree. A reasonable landowner apprised of these facts, would have cut the tree down and the failure of the landowner to do so was a breach of its duty of care: Quinn v Scott [1965] 2 All ER 588 at 593.

80 Where, however, the defendant has not created the danger posed by the tree and has no knowledge, actual or imputed, of it, the defendant would not be liable. Thus, where a branch of a tree growing on the defendant’s land, overhanging a highway, suddenly broke off in fine weather, falling on the plaintiff’s vehicle passing on the highway and damaging it, the defendant was held not to be liable because, although the branch proved to be a danger, the defendant had not created the danger and had no knowledge, actual or imputed, of its existence: Noble v Harrison [1926] 2 KB 332 at 338, 341.

81 Similarly, where an elm tree on the defendant’s land fell or was blown down on to a highway and the plaintiff’s husband riding a motorcycle collided with the tree and died, the defendant was held not to be liable as the defendant had not caused the tree to fall, had not omitted to remedy the nuisance within a reasonable time after the tree had fallen, and had not, by neglect of some duty, allowed it to arise because there was nothing to warn the defendant that the tree was diseased or that it had been attacked by honey fungus: Cunliffe v Bankes [1945] 1 All ER 459 at 465.

82 The defendant was also held not liable where an elm tree on the defendant’s land fell injuring persons passing along an adjoining highway. The tree had a large, but not abnormal crown. It was apparently sound and healthy. Although after the tree fell its roots were found to have root rot, this would have been undiscoverable by any reasonable examination: Caminer v Northern & London Investment Trust Ltd [1951] AC 88 at 94, 96, 99, 103, 104, 105-106, 107-108, 111-112.

83 A different factual situation arose where a branch of a tree growing on the defendant’s land had for many years intruded over a highway at a height of 16 feet. The intruding branch was plain for all to see. Prior to the accident, neither the defendants nor the highway authority regarded the branch as a traffic hazard. The plaintiff’s lorry carried a load of five packing cases in two tiers, the top of the load being 16 feet 4 inches from the ground. On passing under the overhanging branch, the top case was thrown to the ground and the plaintiff’s lorry, in trying to avoid it, had an accident. The defendants were held not liable as they had no knowledge, nor should be presumed to have knowledge, that the overhanging branch was a hazard: British Road Services Ltd v Slater [1964] 1 All ER 816 at 820.

Undue interference with use and enjoyment of neighbour’s land

84 Nuisances of the third kind arise where there is an excessive user by the defendant of his land resulting in an unreasonable interference with the enjoyment by the plaintiff of his land, having regard to the ordinary usages of humankind living in a particular society. In determining whether there has been such an unreasonable interference, a balance must be maintained between the right of the occupier to do what he or she likes with his or her own land and the right of the neighbour not to be interfered with: Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903; Bayliss v Lea [1962] SR (NSW) 521 at 529-530, 542. See also Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 at 486-488.

85 Nuisances of this third kind will generally arise from something emanating from the defendant’s land: Hunter v Canary Wharf Ltd [1997] AC 655 at 685. Examples of such emanations are:

(a) noise (egs Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 at 697-702; [1961] 2 All ER 145; Vincent v Peacock [1973] 1 NSWLR 466 and Cohen v City of Perth (2000) 112 LGERA 234);

(b) vibrations (egs Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287; and Hoare & Co v McAlpine [1923] 1 Ch 167);

(c) dust (egs Pwllbach Colliery v Woodman [1915] AC 634; Thompson v Sydney Municipal Council (1938) 14 LGR (NSW) 32; and Kidman v Page [1959] Qd R 53);

(d) sediment from soil erosion (eg Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108 at 126-127);

(e) noxious smuts and pollution (egs St Helen’s Smelting Co v Tipping (1865) 11 HLC 642, 11 ER 1483; Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683, [1961] 2 All ER 145);

(f) smoke (egs Crump v Lambert (1867) LR 3 Eq 409 and Manchester Corp v Farnworth [1930] AC 171); and

Walter v Selfe

Crump v Lambert

Bainbridge v Chertsey Urban District Council

Don Brass Foundry Pty Ltd v Stead

Halsey v Esso Petroleum Co Ltd

Baulkham Hills Shire Council v A V Walsh Pty Limited

86 The use of land by the defendant, which does not cause something to emanate from the defendant’s land, although it nevertheless in some way interferes with the use and enjoyment by the plaintiff of his or her land, will rarely constitute an actionable nuisance. Thus, a defendant may erect a building or other structure such as a fence, or plant a tree on his or her land which interferes with the neighbour’s enjoyment of their land. The building, structure or tree may:

(a) spoil the neighbour’s view ( William Aldred’s case (1611) 9 Co Rep 57b at 58b; 77 ER 816 at 820-821; Attorney General v Doughty (1752) 2 Ves. Sen. 453 at 453-454, 28 ER 290; Fishmonger’s Co v East India Co (1752) 1 Dick 163 at 165; 21 ER 232; Dalton v Angus (1881) 6 App Cas 740 at 823-824; Campbell v Paddington Corporation [1911] 1 KB 869 at 875-876; Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 494-495) Gartner v Kidman (1962) 108 CLR 12 at 46; Kent v Johnson (1973) 21 FLR 177 at 212-213; Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 at 205-206; Hunter v Canary Wharf Ltd [1997] AC 655 at 685, 699 and J Gillespie, “Private Nuisance As a Means of Protecting Views from Obstruction” (1989) 6 EPLJ 94);

(b) in the absence of an easement, restrict the flow of air onto the neighbour’s land ( Chastey v Ackland [1895] 2 Ch 389 at 402); or

(c) in the absence of an easement, take away light from the neighbour’s windows ( Dalton v Angus (1881) 6 App Case 740 at 794-795, 823-824 and see s 179 of Conveyancing Act 1919 (NSW)),

Hunter v Canary Wharf Ltd

87 Cases where an actionable nuisance has been held to exist where there has not been an emanation, such as a use of land that is morally offensive to neighbours (Thompson-Schwab v Costaki [1956] 1 WLR 335, [1956] 1 All ER 652 (prostitutes operating in the street) and Laws v Florinplace Ltd [1981] 1 All ER 659 (sex shop operating nearby)) or dazzling glare off a glass roof (Bank of New Zealand v Greenwood [1984] 1 NZLR 525), are special and may go to the limit of the law of nuisance: Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 at 208; Hunter v Canary Wharf Ltd [1997] AC 655 at 685-686, 700.

88 Leaves, nuts, twigs or bark of trees, or seeds of weeds, each growing on a defendant’s land, which are blown onto a neighbour’s property, could be considered a form of emanation from the defendant’s land. However, the defendant would only be liable in nuisance if, first, the growing of the trees or the weeds on the defendant’s land amounts to excessive user and, secondly, such excessive user causes unreasonable interference with the enjoyment by the neighbour of their land.

89 Thus, a defendant was held not liable for nuts, leaves and twigs that fell from a tree growing on the defendant’s land, the tree not projecting over the neighbour’s land, and which were blown onto the neighbour’s roof, making a noise and blocking the drain pipes. Planting the tree or allowing the tree, whether planted by others or self-sown, to grow on the land, the tree not being noxious, did not constitute an excessive or unreasonable user of the defendant’s land: Molloy v Drummond [1939] NZLR 439 at 503. See also Matthews v Forgie [1917] NZLR 921 at 924; Sterling v Weinstein (1950) 75 A2d 144 at 147; Cannon v Neuberger (1954) 1 Utah 2d 396 at 399; 268 P2d 425 at 427; Woodnorth v Holdgate [1955] NZLR 552 at 553, 554; Asman v MacLurcan (1985) 3 BPR 9592 at 9593.

90 In contrast, a defendant who allows noxious weeds to grow on his land, and to spread, by seed or otherwise, through natural agencies onto neighbouring properties and cause damage thereto, and does not take effective measures to counter them, may be liable in nuisance to the neighbours for the damage caused: French v Auckland City Corporation [1974] 1 NZLR 340 at 350 (variegated thistle and other weeds). Earlier decisions to the contrary in Giles v Walker (1890) 24 QBD 656 (thistles) and Sparke v Osborne (1908) 7 CLR 51 (prickly pear) are no longer good law: Davey v Harrow Corporation [1958] 1 QB 60 at 72; Goldman v Hargrave [1967] 1 AC 645 at 664; French v Auckland City Corporation [1974] 1 NZLR 340 at 346, 348, 349, 350.

Right to sue in nuisance

91 The essence of the tort of nuisance is that it is a tort against land or, more accurately, a tort directed against the plaintiff’s enjoyment of rights or interests in land: Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 902-903; Read v J Lyons & Co Ltd [1947] AC 156 at 183; Tate & Lyle Industries Ltd (formerly Tate & Lyle Food and Distribution Ltd) v Greater London Council [1983] 2 AC 509 at 536-537; Hunter v Canary Wharf Ltd [1997] AC 655 at 689, 692, 702-704, 707, 724, 726; F H Newark, “The Boundaries of Nuisance” (1949) 65 LQR 480 at 481, 482, 489. Furthermore:

Newcastle-under-Lyme Corporation v Wolstanton Ltd

per

Foster v Warblington Urban District Council

Hunter v Canary Wharf Ltd

92 Hence, the wife of the tenant of a house, as a mere licensee, had no right of action for injury caused by a tank falling on her owing to vibrations set up by the defendant (Malone v Lasky [1907] 2 KB 141 at 151, 153-154 and see also Oldham v Lawson (No 1) [1976] VR 654 at 657 to like effect) and residents of properties who were not householders were unable to sue for interference with the enjoyment of their homes caused by construction work (Hunter v Canary Wharf Ltd [1997] AC 655 at 692, 693-694, 695, 698-699, 707, 724, 726).

Negligence

93 The third cause of action at common law is in negligence. To succeed in a cause of action in negligence, the plaintiff must prove:

(a) the defendant owed the plaintiff a duty, recognised by law, requiring the defendant to adhere to a certain standard of conduct;

(b) the defendant breached that duty;

(c) the plaintiff suffered loss;

(d) the loss was caused by the defendant’s breach of duty; and

Kenny & Good Pty Ltd v MGICA (1992) Ltd

94 As to the first element, the existence of a duty of care, one unifying principle for determining when a duty of care will arise has not emerged: Perre v Apand Pty Ltd (1999) 198 CLR 180 at 210 [76], 217 [93]. At the minimum, there needs to be reasonable foreseeability: a defendant must know or ought reasonably to know that he or her conduct is likely to cause harm to the person or the tangible property of the plaintiff unless the defendant takes reasonable care to avoid that harm: Perre v Apand Pty Ltd (1999) 198 CLR 180 at 208 [70] and see also s 5B(1)(a) of the Civil Liability Act 2002 (NSW).

95 The difficulty that has arisen is ascertaining what, if any, further requirements need to be satisfied before the law will impose a duty of care. Proximity had been suggested as a determinant of a duty of care, but it has now been rejected: Hill v Van Erp (1997) 188 CLR 159 at 176-177, 210, 237-239; Perre v Apand Pty Ltd (1999) 198 CLR 180 at 198 [27], 209 [74], 283 [280], 301 [330]-[331]; and Vairy v Wyong Shire Council (2005) 223 CLR 422 at 433 [28] and 444-445 [66]. Other factors have been suggested (see Perre v Apand Pty Ltd (1999) 198 CLR 180 at 194 [10]-195 [15], 231 [133], 254 [201], 275 [259], 303 [335], 326 [406]) but no consensus has emerged.

96 Determining whether a duty of care arises is more straightforward where the relationship between the plaintiff and the defendant falls into one of the established categories of cases in which the common law imposes a duty of care on a person in the position of the defendant to take care of a person in the position of the plaintiff: Vairy v Wyong Shire Council (2005) 223 CLR 422 at 432 [27], 443 [63]. The relationship between the owners or occupiers of neighbouring properties is a familiar category where the common law imposes a duty of care on each neighbour in relation to the other neighbour.

97 As to the second element, breach of the duty, Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 said:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

98 This statement of principle has been repeatedly approved and applied: see, for example, Brodie v Singleton Shire Council (2001) 206 CLR 512 at 577 [151]; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 472 [39], 482 [72] and [74], 502 [138]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 585 [106]-[107], 612 [193]; Vairy v Wyong Shire Council (2005) 223 CLR 422 at 433 [27], 447 [72], 456 [105], 464 [134] and 466 [144]. A statement to similar effect is to be found in s 5B(2) of the Civil Liability Act 2002 (NSW).

99 One situation in which the owner or occupier of land may be liable in negligence is where a tree growing on the land, or a branch or part of the tree, falls and causes damage to a person and/or their property. An example is where a tree falls onto a public road, injuring a person using the road, either directly or indirectly, such as where the person’s car collides with the fallen tree: Brown v Harrison (1947) 204 LT 24 (tree fell injuring users of the highway); Quinn v Scott [1965] 2 All ER 588 (tree fell onto highway causing collision between two vehicles); Smibert Group Transport Pty Limited v Clifford [2005] SADC 80 (8 July 2005), 241 LSJS 1 (tree fell onto highway and user’s vehicle collided with fallen tree); and Turner v Ridley (1958) 144 A2d 269 (tree fell onto adjoining road striking a car parked at the curb). In each of these cases, the tree was apparently in a state of decay and the risk of causing damage to road users posed by the tree or parts of it falling was obvious, but the defendants failed to take steps to mitigate the risk of damage.

100 In contrast, no negligence was found where the tree was apparently sound and healthy and inspection would not have revealed that it was dangerous: Noble v Harrison [1926] 2 KB 332 at 336, 339; Caminer v Northern & London Investment Trust Ltd [1951] AC 88 at 96, 99, 103, 104 and Dungog Shire Council v Babbage (2004) 134 LGERA 349 at 377 [85].

101 Similarly, an owner or occupier of private land may be liable in negligence if a tree growing on the land falls onto and causes damage to adjoining private land or buildings, works or vegetation on it: Dudley v Meadowbrook Inc (1961) 166 A2d 743 at 744. There, although the defendant landowners did not have actual knowledge of the fact that the tree was full of decay, the defendant was aware that the tree had had surgery and there was a strip of cement extending from near the base of the tree to a height of about five feet. The court held that in the intervening years, the owners ought to have inspected the tree or had it examined by an expert to see whether it required further attention or whether it was safe to remain standing: at 744.

102 In contrast, where a defendant had no knowledge that a tree that subsequently failed was decayed, and there was no evidence of any decay, the defendant was held not liable in negligence: Bruce v Caulfield (1918) 34 TLR 204 at 205.

103 An owner or occupier of land on which a tree grows may be liable in negligence for damage caused by the tree’s roots to neighbouring property. Thus, an owner of a public park was held liable in negligence for the damage caused to neighbours’ dwellings on adjoining land by roots of the trees desiccating the soil, which resulted in cracking of the dwellings: South Australia v Simionato (2005) 143 LGERA 128.

104 A different situation is where the roots of a tree growing on a footpath belonging to a council exerted pressure on a retaining wall of the boundary with the plaintiff’s land, causing the wall to fail. The council was on notice that the roots of the tree, which was under its care, control and management, were causing damage in the area. Cracks in and lifting of the footpath in the area near the tree had been obvious over the years. The council had repaved the footpath where it had been lifting. The council was held to be under a duty to inspect and rectify the situation. The council failed to do so and the consequence was that the wall was damaged: Owners of Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117 at 149 [138], 150 [142], 151 [144] per Rolfe AJA but contra per Young CJ in Eq at 135 [155], 137-138 [74].

105 The doctrine of res ipsa loquitur (the thing speaks for itself) is potentially available to establish negligence. For example, if a tree were to fall down or be blown down by the ordinary force of the wind, it might be said that there was some evidence of unsoundness: Bruce v Caulfield (1918) 34 TLR 204 at 205. However, such a conclusion, by application of the doctrine of res ipsa loquitur, would not be drawn where the gale which blew down the tree was an exceptional one: Bruce v Caulfield (1918) 34 TLR 204 at 205.

106 An owner or occupier of lands can also be liable in negligence in relation to hazards on the land, whether natural or man made: Goldman v Hargrave [1967] 1 AC 645.

The NSW Law Reform Commission review and report

107 In a judgment delivered on 12 July 1985, Wood J called for law reform in the field of nuisance caused by encroaching roots and branches and, in particular, concerning what and when remedies of abatement, damages and injunction should be available:

Young v Wheeler

108 On 23 December 1987, the New South Wales Law Reform Commission received a reference from the Attorney-General to enquire into and report on “[t]he laws which define and regulate relationships between people who live on neighbouring land with particular reference to…(c) problems caused by trees”: New South Wales Law Reform Commission Report 88, Neighbour and Neighbour Relations, November 1988, p 2.

109 The Law Reform Commission first issued a discussion paper in 1991 on Neighbour and Neighbour Relations (Discussion Paper 22). That discussion paper, in chapter 3, dealt with the issue of neighbourhood disputes relating to trees. The discussion paper noted that “[p]roblems caused by trees are common throughout the community but the formal resolution of these disputes (especially if there is resort to the courts) is often very costly and unsatisfactory”: para 3.1. The problems caused by trees were identified as follows:

Damage or injury

198 The Court must be 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

199 The concepts of the specified harm and causation have been discussed above at paragraphs 161-175 and 176-189 respectively.

200 The requirement that the Court be satisfied that the tree has caused or is causing damage to the applicant’s property, accords with the requirement at common law that actual damage is required to complete a cause of action in nuisance. The requirement that, if damage has not yet occurred, the Court must be satisfied that “it is likely to occur in the near future” also accords with the requirement that a quia timet injunction should not issue unless the impending damage (which is required to be substantial or almost irreparable) is imminent or is likely to occur in the near future or, put another way, there is “a real, appreciable probability” of irreparable damage: see earlier discussion at paragraph 58 and Asman v MacLurcan (1985) 3 BPR 9592 at 9594.

Matters to be considered in determining an application

201 The Trees (Disputes Between Neighbours) Act 2006 specifies, in s 12, the matters which the Court is bound to consider before determining an application. A few of these matters accord with the matters or are similar to the matters which the New South Wales Law Reform Commission recommended a court ought to consider in making an order. However, s 12 includes a number of additional matters that the Law Reform Commission did not recommend and, conversely, does not include a number of matters that the Law Reform Commission did recommend that the court should consider.

202 The matters under s 12 fall into the following categories:

(a) the location of the tree in relation to the boundary of the land on which the tree is situated and any premises (s 12(a));

(b) whether interference with the tree would require any consent or 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 (s 12(b));

(c) the values of the tree, including any historical, cultural, social, scientific, landscape and scenic, and public amenity value (s 12(c), (e) and (f));

(d) the contribution of the tree to the local ecosystem and biodiversity (s 12(d));

(e) the impact of the tree on soil stability, the water table or other natural features of the land or locality concerned (s 12 (g));

(f) whether anything, other than the tree, has contributed to the damage or the likelihood of damage to the applicant’s property or the likelihood of injury to any person, including any act or omission by the applicant and the impact of any trees owned by the applicant (s 12(h) and (i)); and

203 The matters concerning the values of the tree and its environmental contribution are notable additions to the matters recommended by the Law Reform Commission in its report. The Law Reform Commission report was relatively quiet about environmental factors, in contrast to the earlier discussion paper which had emphasised the environmental values of trees. The legislature, however, took a different view and required the Court to consider environmental factors. This was a point specifically made in the second reading speech:

204 The matters in s 12(h) and (i) require the Court to consider whether there are any contributing causes of the damage or the likelihood of damage to property or the likelihood of injury to any person, other than the tree. The phrase “anything, other than the tree, that has contributed, or is contributing…” is wide.

205 It evidently includes “any act or omission by the applicant” and “the impact of any trees owned by the applicant” because both of these are specified to be included in the wider phrase. Thus, in Horn & Anor v Latter [2007] NSWLEC 744 (23 October 2007) (Moore C, Thyer AC) at [17], found that the reason why a tree required removal was because the applicants had poisoned the tree’s roots, killing part of the tree and rendering it “likely in the near future to cause damage” to the applicants’ property. As a consequence of this fact, although the Court ordered removal of the tree, it required the cost of removal to be borne by the applicants rather than the tree’s owner.

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.

209 The phrase “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 would also include any act of a person other than the applicant and the owner of land on which the tree is situated. If a trespasser poisoned or vandalised the tree, that person’s act could have contributed to the damage or the likelihood of damage to property or the likelihood of injury to any person.

210 The phrase would also allow consideration of extraordinary natural events, acts of God, and their contribution to the damage or the likelihood of damage to property or the likelihood of injury to any person.

Remedies in relation to specified harm

211 The Trees (Disputes Between Neighbours) Act 2006 grants the Court power to make a range of orders to remedy, restrain or prevent damage to property and to prevent injury to any person. Section 9, first, grants a general power in subs (1) and then, but not by way of limitation, specifies in subs (2), particular types of orders that the Court may make.

212 The grant of general power in s 9(1) is in these terms:

213 The phrase “may make such orders as it thinks fit” is a familiar phrase employed in legislation granting power to courts to remedy wrongs. The phrase is used in s 124(1) of the Environmental Planning and Assessment Act 1979 where this Court has power to make orders to remedy or restrain a breach of that Act. Street CJ in F Hannan v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 at 311 said of that power:

Re The Victorian Farmers' Loan and Agency Co Ltd

‘It must be remembered that under s 145 the Court may make such order as to it may seem fit, which means, as I understand it such an order as the Court thinks just.’

Queensland Estates Pty Ltd v Co-Ownership Land Development Pty Ltd

Trees (Disputes Between Neighbours) Act 2006

214 The specific powers in s 9(2) of the Trees (Disputes Between Neighbours) Act 2006 that the Court may employ are: powers of an injunctive nature, such as making a mandatory order to take specified action to remedy damage to property, or to restrain or prevent damage to property, or to prevent injury to any person (s 9(2)(a), (b), (c), (d)); powers authorising the applicant or other persons to take such specified action and be paid their costs associated with doing so (s 9(2)(e), (f), (g) and (h)); power to require payment of compensation for damage to property (s 9(2)(i)); and power to require the replacement of a tree that the Court orders to be removed (s 9(2)(j)). These specific powers are but some of the ways open to the Court to discharge its duty under ss (1) to make “such order as it thinks fit”.

215 There is, however, a limitation on the Court’s powers introduced by the orders being required to be directed either to “damage to property” or “injury to any person”. This is of particular relevance in this case to the power of the Court to remedy damage to property by requiring payment of compensation for damage to property.

216 At common law, the measure of damages for nuisance is the same as for tort generally. “The damages are whatever loss results to the injured party as a natural consequence of the wrongful act of the defendant”: Grosvenor Hotel Co v Hamilton [1894] 2 QB 836 at 840 and Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006 [20-28], p 1178. Damages may be not only for injury to the land but also for consequential loss, for example, loss of profits which are the result of an inability to use the land for the purposes of any business conducted on the land: Hunter v Canary Wharf Ltd [1937] AC 655 at 706.

217 The Trees (Disputes Between Neighbours) Act 2006, however, has a more limited focus. The Court may make an order to “remedy damage to property” (s 9(1)) and this may include making an order requiring the payment of compensation “for damage to property” (s 9(2)(i)). An order requiring payment of the compensation for economic loss that is consequential on damage to property is not an order requiring payment of compensation “for damage to property” and it does not remedy “damage to property”. To this extent, the remedies under the Trees (Disputes Between Neighbours) Act 2006 in relation to compensation for damage to property are more limited than damages that may be awarded in an action for nuisance.

Limitation on action in nuisance

218 Section 5 of the Trees (Disputes Between Neighbours) Act 2006 provides that “no action may be brought in nuisance as a result of damage caused by a tree to which this Act applies”. Hence, if damage is caused by a tree to which the Act applies, a person whose property is damaged by the tree cannot bring a common law action in nuisance but must instead make application under the Trees (Disputes Between Neighbours) Act 2006 to the Land and Environment Court. However, if the damage is caused by a tree to which the Trees (Disputes Between Neighbours) Act 2006 does not apply, such as a tree on land within zones not covered by s 4(1)(a) or on land vested in or managed by a council (s 4(2)(a)), a common law action in nuisance can still be brought.

219 The Trees (Disputes Between Neighbours) Act 2006 contains no limitation on bringing common law actions in trespass or negligence, regardless of whether the tree concerned is one to which the Trees (Disputes Between Neighbours) Act 2006 applies. The Land and Environment Court, however, has no original jurisdiction to hear and determine such common law actions, nor would such actions be ancillary to a matter that falls within jurisdiction such as an application under the Trees (Disputes Between Neighbours) Act 2006 but rather are separate causes of action: see National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 582; Mitchell v Waugh (1993) 82 LGERA 44 at 49; Nix and Dunn v Pittwater Council (1994) 84 LGERA 199 at 203-205.

The application before the Court

220 On the evidence in this case, I find:

(a) The Grey Ironbark that fell over in the storm event of 8-9 June 2007 was a tree within the meaning of that term in s 3(1) of the Trees (Disputes Between Neighbours) Act 2006 .

(b) At the time the tree fell over, it was situated wholly on Mr Leischke’s land at 54 Joppa Street, Niagara Park (s 4(3) and s 7).

(c) At the time Mrs Robson made application to the Court on 4 October 2007, the tree had been cut so that only a base section of the tree and root ball remained but it was still attached to the soil by part of the root system, and, thus, still constituted a tree that is situated wholly on Mr Leischke’s land (s 4(3) and s 7).

(d) Mr Leischke’s land is within a zone designated “residential” under an environmental planning instrument (s 4(1)) and is not land vested in or managed by a Council (s 4(2)).

(e) Mrs Robson is an owner of the land at 56 Joppa Street, Niagara Park (s 3(1) and s 7).

(f) Mrs Robson’s land immediately adjoins Mr Leischke’s land (s 7).

(g) The tree caused damage to Mrs Robson’s property on her land, namely to her dwelling house on her land (s 7 and s 10(2)(a)).

(h) Mrs Robson has made a reasonable effort to reach agreement with Mr Leischke as to payment for compensation for damage to her property (s 10(1)(a)).

221 As a consequence, there is an application that the Court may determine. The Court has power to make such orders as it thinks fit.

Matters to be considered by the Court in determining this application

222 Addressing the express matters in s 12 which the Court is required to consider:

(a) The location of the tree is sufficiently proximate to the houses on Mr Leischke’s land and Mrs Robson’s land that the tree, of the size it was before it was cut, could cause substantial damage to the houses if it were to fail and fall in their direction.

(b) Removal or cutting of the tree would require consent from the relevant local council, Gosford City Council, as the tree was protected by a tree preservation order; however, at the time of the tree’s failure, no application had been made for consent and no consent had been granted for the removal or cutting of the tree.

(c) The evidence does not establish that the tree had any historical, cultural, social or scientific value.

(d) The evidence of Mr Freeman does, however, establish that the tree contributed to the local ecosystem and biodiversity as it was a remnant tree with habitat potential for localised fauna (p 6, Arboricultural Assessment Report); was part of localised vegetation having high environmental significance to the broader district (p 6); had very high ecological value because it was an indigenous species being an integral part of a natural ecosystem (p 15); and had environmental significance as local habitat to flora species (p 20).

(e) The evidence of Mr Freeman also establishes that the tree contributed to the natural landscape and scenic value of the locality because it had medium visual amenity, being able to be seen by neighbourhood residents and passers-by (p 15, Arboricultural Assessment Report).

(f) By reason of the tree’s ecological value and its landscape and scenic value, the tree had value to public amenity.

(g) The evidence does not establish that the tree had impacted adversely on soil stability, the water table or other natural features of the land or the locality concerned.

(i) The evidence of Mr Freeman is that “the tree failed due to a combination of associated storm events, water logged localised soils and root damage from a root pathogen (Phytophthora), which can be attributed to the construction of a retaining wall and site modifications impacting upon the tree’s critical root zone”: Arboricultural Assessment Report, 17 December 2007, p 16, and see also transcript of 20 December 2007, p 19, lines 20-25.

(ii) However, the construction of the retaining wall and the site modifications were carried out by Mr Leischke’s predecessor in title prior to Mr Leischke’s ownership and occupation of the land. The evidence does not establish that any act or omission of Mr Leischke during his ownership and occupation of the land contributed to the damage caused by the tree failing.

(iii) The findings made earlier as to the tree and the cause of its failure and the conduct and knowledge of Mr Leischke establish that Mr Leischke did not create the nuisance constituted by the tree causing physical damage to Mrs Robson’s house. Mr Leischke did not plant the tree, did not take any positive action in relation to the tree or its growing environment that was a cause of the tree’s failure.

(iv) Mr Leischke also did not adopt or continue the nuisance. Mr Leischke had no actual knowledge of any defect in the tree, such as root rot, or in the environment in which the tree grew, such as waterlogged soils. To the contrary, Mr Leischke’s knowledge was that the tree appeared to be a healthy tree and he had not experienced any problems with it. On Mr Freeman’s evidence, the tree would not have shown any obvious signs of stress, poor structural stability or decline to a layperson such as Mr Leischke. Hence, Mr Leischke would not have any constructive knowledge of any problems with the tree.

(v) Having no actual or constructive knowledge of the problems with the tree, Mr Leischke could not be said to be under a duty to prevent or minimise any risk of damage or injury to Mrs Robson or her property. It cannot be said, therefore, that the omission to act by Mr Leischke contributed to the damage caused by the tree failing.

(vi) Equally, no act or omission of Mrs Robson contributed to the damage caused by the tree failing.

Exercise of power to make orders

223 I have found that damage has been caused to Mrs Robson’s property as a consequence of the tree situated on Mr Leischke’s land. The Court is obliged under s 9 of the Trees (Disputes Between Neighbours) Act 2006 to consider what order, if any, best meets the justice of the situation.

224 Mrs Robson has suffered damage to her property through no fault of hers. Unless the Court makes an order for payment to her of compensation for the damage, the loss will fall on her. An order requiring some person to pay compensation to Mrs Robson, would shift the incidence of loss to that person. However, as Salmond has observed, “reason demands that a loss shall lie where it falls, unless some good purpose is to be served by changing its incidence”: Salmond on Torts, 1st ed, 1907, p 9.

225 The only person whom it is suggested should pay compensation is Mr Leischke, being the owner of the land on which the tree that caused damage is situated. However, the mere fact that a tree is situated on a person’s land is insufficient reason by itself to justify making that person an insurer of other persons for any harm the tree may have caused to them or their property.

226 In the law of torts, fault provides a reason to shift the incidence of loss. A person who is at fault for the damage or injury to another person or their property is punished by being compelled to make pecuniary compensation to the person so injured. On the facts of this case, however, I have found that Mr Leischke is not at fault for the tree’s failure and the consequential damage to Mrs Robson’s house. Hence, fault cannot be a reason in this case justifying shifting the incidence of the loss from Mrs Robson to Mr Leischke.

227 There is no other reason in the circumstances of this case for shifting the incidence of the loss from Mrs Robson to Mr Leischke. None of the factors in s 12 of the Trees (Disputes Between Neighbours) Act 2006 provide justification to order that Mr Leischke pay compensation to Mrs Robson. The tree did not solely benefit Mr Leischke. The tree made a contribution to the local ecosystem and biodiversity, the natural landscape and scenic value of the locality, and public amenity. The tree was able to be seen and enjoyed not only from Mr Leischke’s land, but also from Mrs Robson’s land, as well as by residents and passers-by in the neighbourhood.

228 In these circumstances, the justice of the situation is to leave the loss where it falls, namely on Mrs Robson. An order shifting that loss to Mr Leischke by requiring him to pay compensation to her would not be fit or just.

229 Hence, the proper exercise of the duty under s 9(1) in this case is that there should be no order to remedy the damage by requiring payment of compensation.

Orders

230 The orders of the Court are as follows:

1. The application is dismissed.

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Citations

Robson v Leischke [2008] NSWLEC 152

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38

Statutory Material Cited

5

Darkingjung Pty Limited v Darkingjung Aboriginal Land Council [2006] NSWSC 42

McCartney v Orica Investments Pty Ltd [2011] NSWCA 337

Darkingjung Pty Limited v Darkingjung Aboriginal Land Council [2006] NSWSC 42

CITATION:	Robson v Leischke [2008] NSWLEC 152
PARTIES:	Melanie Robson APPLICANT Kevin Leischke RESPONDENT
FILE NUMBER(S):	20981 of 2007
CORAM:	Preston CJ
KEY ISSUES:	Trees (Neighbours) :- tree falling over in storm - damage to neighbour's house - tree cut to a stump by time of application to court - whether still a tree to which the Trees (Disputes Between Neighbours) Act 2006 applies - tree landowner not at fault for damage caused by tree - whether fault required before court has power to make order requiring tree landowner to pay compensation for damage caused by tree - whether fault is a matter that may be considered by court in determining application and exercising discretion to make any order - whether consequential economic loss is damage to property and hence compensable - discussion of statutory scheme under Trees (Disputes Between Neighbours) Act 2006 and extent to which it differs from common law
LEGISLATION CITED:	Civil Liability Act 2002 s 5B Conveyancing Act 1919 s 88K(2), s 179 Environmental Planning and Assessment Act 1979 s 124(1) Land and Environment Court Act 1979 s 40(2) Trees (Disputes Between Neighbours) Act 2006 s 3, s 4, s 5, s 7, s 8, s 9, s 10, s 12, s 13, s 23
CASES CITED:	Aaron v Haynes [2007] NSWLEC 294 (25 May 2007) Antipas v Kutcher (2006) 144 LGERA 289 Ashworth v Joyce [2007] NSWLEC 357 (15 June 2007) Asman v MacLurcan (1985) 3 BPR 9592 Attorney-General v Doughty (1752) 2 Ves. Sen. 453, 28 ER 290 Bank of New Zealand v Greenwood [1984] 1 NZLR 525 Bainbridge v Chertsey Urban District Council (1914) 84 LJ Ch 626 Barker v Kyriakides [2007] NSWLEC 292 (24 May 2007) Barton v Chhibber (1988) Aust Torts Reports 80-185 Bathurst City Council v Saban (1985) 2 NSWLR 704 Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 Baulkham Hills Shire Council v A V Walsh Pty Limited [1968] 3 NSWR 138, (1968) 15 LGRA 338 Bayliss v Lea [1962] SR (NSW) 521 Bennetts v Honroth [1959] SASR 170 (7 September 1959) Bernstein of Leigh (Baron) v SkyViews & General Ltd [1978] QB 479 British Road Services Ltd v Slater [1964] 1 All ER 816 Broadie v Singleton Shire Council (2001) 206 CLR 512 Brown v Harrison (1947) 204 The Law Times 24 Bruce v Caulfield (1918) 34 The Times Law Reports 204 Buckingham v Ryder [2007] NSWLEC 458 (25 July 2007) Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Butler v Standard Telephones & Cables Ltd [1940] 1 KB 399, [1940] 1 All ER 121 Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264 Caminer v Northern & London Investment Trust Ltd [1951] AC 88 Campbell v Paddington Corporation [1911] 1 KB 869 Cannon v Newberger (1954) 1 Utah 2d 296 Chastey v Ackland [1895] 2 Ch 389 City of Richmond v Scantelbury [1991] 2 VR 38 Cohen v City of Perth (2000) 112 LGERA 234 Coutts v Haydon [2007] NSWLEC 863 (20 December 2007) Crowhurst v Amersham Burial Board (1878) 4 ExD 5 Crump v Lambert (1867) LR 3 Eq 409 Cunliffe v Bankes [1945] 1 All ER 459 Dalton v Angus (1881) 6 App Cas 740 Davey v Harrow Corporation [1958] 1 QB 60, [1957] 2 All ER 305 Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 Dooley v Newell [2007] NSWLEC 715 (23 October 2007) Dudley v Meadowbrook Inc (1961) 166 A 2d 743 Dungog Shire Council v Babbage (2004) 134 LGERA 349 Elliott v Islington London Borough Council [1991] 10 EG 145, 7-06-1990 Times 839 Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 F Hannan v Electricity Commission of NSW [No 3] (1985) 66 LGERA 306 Fishmonger's Co v East India Co (1752) 1 Dick 163, 21 ER 232 French v Auckland City Corporation [1974] 1 NZLR 340 Fletcher v Bealey (1884) 28 ChD 688 Gartner v Kidman (1962) 108 CLR 12 Gazzard v Hutchesson (1995) Aust Torts Reports 81-337 Gibson v Denton (1896) 4 AD 198; 74 NY St Rep 197 Giles v Walker (1890) 24 QBD 656 Goldman v Hargrave [1967] 1 AC 645 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Grosvenor Hotel Co v Hamilton [1894] 2 QB 836 Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683, [1961] 2 All ER 145 Hill v Van Erp (1997) 188 CLR 159 Hoare & Co v McAlpine [1923] 1 Ch 167 Holder v Coates (1827) M. & M. 112, 173 ER 1099 Hooper v Rogers [1975] Ch 43 Horn & Anor v Latter [2007] NSWLEC 744 (23 October 2007) Hunter v Canary Wharf Ltd [1997] AC 655 Hurst v Hampshire County Council (1997) 96 LGR 27 In re Christmas. Martin v Lacon (1886) 33 ChD 332 Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 Kent v Johnson (1973) 21 FLR 177 Kidman v Page [1959] Qd R 53 King v Taylor (1976) 238 EG 265 Laws v Florinplace Ltd [1981] 1 All ER 659 Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 Lemmon v Webb [1894] 3 Ch 1 Lemmon v Webb [1895] AC 1 Lister v Hong [2006] NSWSC 1135 (31 October 2006) L J P Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 Malliate v Sharpe [2001] NSWSC 1057 (13 December 2001) Malone v Lasky [1907] 2 KB 141 Manchester Corp v Farnworth [1930] AC 171 Mandeno v Brown and Wilkie [1952] NZLR 447 March v E & M H Stramare Pty Limited (1991) 171 CLR 506 Masters v Brent London Borough Council [1978] QB 841 Matthews v Forgie [1917] NZLR 921 McCombe v Read [1955] 2 QB 429, (1955) 2 All ER 458 Mendez v Palazzi (1976) 68 DLR (3d) 582 Mills v Brooker [1919] 1 KB 555 Molloy v Drummond [1939] NZLR 499 Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 61 ALJR 282, (1986) 62 LGRA 46 Morgan v Khyatt [1964] 1 WLR 475 Newcastle-under-Lyme Corporation v Wolstanton Ltd [1947] Ch 92 Noble v Harrison [1926] 2 KB 332 Oldham v Lawson (No 1) [1976] VR 654 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 Owners of Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117 P Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 (15 March 2007) Peisley v Ashfield Municipal Council (1970) 21 LGRA 243; affirmed (1971) 23 LGRA 166 Pemberton v Bright [1960] 1 WLR 436 Perre v Apand Pty Ltd (1999) 198 CLR 180 Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 Ponting v Noakes [1894] 2 QB 281 Pwllbach Colliery v Woodman [1915] AC 634 Quinn v Scott [1965] 2 All ER 588 Read v J Lyons & Co Ltd [1947] AC 156 Ridley v Gyler [2007] NSWLEC 220 (20 April 2007) Rose v Equity Boot Co Ltd and Hannafin (1913) 32 NZLR 677 Roud v Vincent [1958] NZLR 794 Rylands v Fletcher (1868) LR 3 HL 330 Salvin v North Brancepeth Coal Co (1874) LR 9 Ch 705 Sedleigh-Denfield v O'Callaghan [1940] AC 880 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 Simbert Group Transport Pty Limited v Clifford [2005] SADC 80 (8 July 2005), 241 LSJS 1 Smith v Giddy [1904] 2 KB 448 Smith v Littlewoods Organisation Ltd [1987] AC 241 Solloway v Hampshire County Council (1981) 79 LGR 449 South Australia v Simionato (2005) 143 LGERA 128 Sparke v Osborne (1908) 7 CLR 51 Speed v Money & Musson (1904) 48 Sol Jo 674 Sterling v Weinstein (1950) 75 A2d 144 St Helens Smelting Co v Tipping (1865) 11 HLC 642 Sutherland Shire Council v Becker (2006) 150 LGERA 184 Tate & Lyle Food Distribution Ltd v Greater London Council [1983] 2 AC 509 Thompson v Sydney Municipal Council (1938) 14 LGR (NSW) 32 Thompson-Schwab v Costaki [1956] 1 WLR 335, [1956] 1 All ER 652 Todd v Flight (1860) 9 CB NS 377 Torette House Pty Ltd v Berkman (1940) 62 CLR 637 Turner v Ridley (1958) 144 A2d 269 Vairy v Wyong Shire Council (2005) 223 CLR 422 Valherie v Strata Corporation No 1841 and Ors (2004) 234 LSJS 134, [2004] SASC 170 Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108 Vella v The Owners of Strata Plan 8670 [2007] NSWLEC 365 (28 May 2007) Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 Vincent v Peacock [1973] 1 NSWLR 466 Walter v Selfe (1851) 4 De G & Sm 315, 64 ER 849 William Aldred's Case (1611) 9 Co Rep 57b, 77 ER 816 Woodnorth v Holdgate [1955] NZLR 552 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Wringe v Cohen [1940] 1 KB 229 Wyong Shire Council v Shirt (1980) 146 CLR 40 Young v Wheeler (1987) Aust Torts Reports 80-126
DATES OF HEARING:	20-21 December 2007, 4 February 2008
DATE OF JUDGMENT:	30 April 2008
LEGAL REPRESENTATIVES:	APPLICANT Ms Melanie Robson (in person) SOLICITORS N/A RESPONDENT Mr M G Craig QC with him Mr J Johnson (barrister) SOLICITORS McLachlan Chilton

Contents	Para No
A tree causes damage to neighbouring property	2
The tree and the cause of its failure	8
The conduct and knowledge of the tree landowner	20
The affected landowner applies for compensation	27
The tree landowner rejects compensation	33
The common law regime prior to the Trees (Disputes Between Neighbours) Act 2006	36
The causes of action at common law	36
Trespass	39
Private nuisance	42
Nature of nuisance	42
Requirement for fault	44
Nature of defendant’s conduct	47
Kinds of private nuisances	54
Causing an encroachment of neighbour’s land	55
Causing physical damage to neighbour’s land	67
Undue interference with use and enjoyment of neighbour’s land	84
Right to sue in nuisance	91
Negligence	93
The NSW Law Reform Commission review and report	107
The Trees (Disputes Between Neighbours) Bill	133
The statutory scheme under the Trees (Disputes Between Neighbours) Act 2006	136
“Tree”	137
Tree “is situated on” land	142
“Land” on which tree is situated	148
Identification of affected landowner and owner of adjoining land	150
Applicant must be affected landowner	158
Specified harm caused by the tree	161
Damage to “property on the land”	162
“Damage to property”	168
“Injury to any person”	174
Causation: Nexus between tree and specified harm	176
Preconditions to the Court making an order	190
Reasonable effort to reach agreement	191
Notice	197
Damage or injury	198
Matters to be considered in determining an application	200
Remedies in relation to specified harm	211
Limitation on action in nuisance	217
The application before the Court	220
Matters to be considered by the Court in determining this application	222
Exercise of power to make orders	223
Orders	230