Sephton v O'ROURKE & Anor (Civil Dispute)
[2021] ACAT 40
•19 May 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SEPHTON v O'ROURKE & ANOR (Civil Dispute) [2021] ACAT 40
XD 1140/2020
Catchwords: CIVIL DISPUTE – nuisance claim – damage caused by neighbour’s tree – limitation period expired – cause of damage inconclusive
Legislation cited: Limitations Act 1985 ss 11, Dictionary
Cases cited:Asman v MacLurcan (1985) 3 BPR 9592
Commonwealth of Australia v Cornwell (2007) 229 CLR 519
Directors of St Helen’s Smelting Co v Tipping (1865) 11 ER 1483
Grand Central Car Park Pty Ltd v Tivoli Freeholder [1969] VR 62
Guthrie v Spence [2009] NSWCA 369
Kusiak v Dallinger & Anor [2020] ACAT 28
Price, Higgins & Fidge v Drysdale [1996] 1 VR 346
Robson v Leischke [2008] NSWLEC 152
Thomson v Lord Clanmorris [1900] 1 Ch 718
Tipsy Bull Pty Ltd v Foundry Enterprises Pty Ltd trading as Hopscotch Bar [2019] ACAT 51
Tribunal: Senior Member K Katavic
Date of Orders: 19 May 2021
Date of Reasons for Decision: 19 May 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1140/2020
BETWEEN:
KAAREN ANNE SEPHTON
Applicant
AND:
DAVID O'ROURKE
First Respondent
SUE-ANN O'ROURKE
Second Respondent
TRIBUNAL: Senior Member K Katavic
DATE:19 May 2021
ORDER
The Tribunal orders that:
The application is dismissed.
………………………………..
Senior Member K Katavic
REASONS FOR DECISION
Introduction
The parties in this matter are neighbours. The issue in these proceedings relates to a tree that resides between the two properties adjacent to the common boundary, but on the respondents’ land. It is the location of the tree and its proximity to the applicant’s property, namely her fence and garage, that give rise to her claim before the Tribunal.
The applicant has lived in her property since April 1998. The respondents purchased the property in December 2008 and moved in on 2 February 2009. The tree existed in an advanced stage of growth at the time the respondents purchased the property.
The claim and the evidence before the Tribunal
The applicant made a claim in nuisance[1] and seeks an award of damages from the respondents for the cost of repairing damage to her garage, fence and what she describes as a retaining wall, which she claims has been caused by the tree. Consequentially, she also seeks an order for the removal of the tree on the basis that it will continue to cause ongoing damage if not removed.
[1] The applicant first lodged her claim on 9 November 2020 and relied upon a revised civil dispute application lodged 11 March 2021
In her revised civil dispute application, the applicant sought an order that the respondents pay $12,800 and an order for the removal of the tree. At the hearing she revised her claim to comprise $1,320[2] for the cost of removing the tree and $16,779.24[3] for rectification of the damage. She maintained she wanted an order for the removal of the tree.
[2] Exhibit A5, based on a quote from Jim’s Tree & Stump Removal dated 21 February 2021
[3] Exhibit A3, based on a quote from Consulting Building Scope dated 10 November 2020
The respondents deny the applicant’s claim on the basis that any damage caused by the tree occurred more than six years ago and the applicant’s claim is outside the relevant limitation period for seeking such an award. The resolution of this issue has the potential to dispose of the matter entirely. The respondents also dispute the amount claimed and despite obtaining approval for the removal of the tree, they say it can and should be retained. They had previously asked the applicant to contribute half the cost of removing the tree, but she declined.
The applicant bears the evidentiary burden of establishing that any damage to her property is caused by the tree. She relies upon the opinions expressed by a builder engaged by her insurance company to assess the cause and extent of damage. She accepts that the damage did not occur spontaneously and has gradually emerged over time. She says however that it was not until November 2018 that she had cause to believe the damage was caused by the tree.
The respondents rely upon the opinion of an arborist to explain the nature of the tree and its relationship to the damage the applicant attributes to it. They also rely upon the reports of two engineers in respect of the damage claimed by the applicant. These experts were not called to give oral evidence before the Tribunal nor did the applicant request they do so.
The applicant gave oral evidence at the hearing and was asked some questions by the respondents. Mr David O’Rourke also gave oral evidence at the hearing and was questioned by the applicant. Both parties relied upon documents in addition to the witness statements provided and the oral evidence given.
The law regarding nuisance claims
In Tipsy Bull Pty Ltd v Foundry Enterprises Pty Ltd trading as Hopscotch Bar (Tipsy Bull)[4] the tribunal summarised the law regarding nuisance claims as follows:
25. A private nuisance arises where there is a substantial and unreasonable interference with the private right to the use and enjoyment of land. The determination of such actions require a balancing, on one hand, of the rights of one owner or occupier to do as they like with their land, against the right of another not to have their enjoyment of their land interfered with.
26. The elements of the cause of action are well established, and I do not understand them to seriously be in dispute as they relate to this case:
(a)The applicant must have standing to bring the action;
(b)That there is a substantial interference in the applicant’s enjoyment of their land; and
(c)That the interference was unreasonable.
[4] [2019] ACAT 51 at [25]-[26], citing Grand Central Car Park Pty Ltd v Tivoli Freeholder [1969] VR 62, Robson v Leischke [2008] NSWLEC 152 at [49]
The tribunal also concluded in Tipsy Bull, that the party bringing the civil proceeding, the applicant, bears the onus of proving each element of its case, including that the interference was unreasonable.[5] The tribunal went on to identify the two types of nuisance cases: those involving physical damage and those involving interference with the use or enjoyment of property rights.[6] The tribunal went on to say that evidence of material damage may itself be considered evidence of a nuisance, but direct evidence of interference of some kind is required where the interference is less tangible.[7]
[5] Tipsy Bull at [27]
[6] Tipsy Bull at [29]
[7] Tipsy Bull at [29] referencing Directors of St Helen’s Smelting Co v Tipping (1865) 11 HLC 642; 11 ER 1483 Lord Westbury LC at 650-651
The claim before the Tribunal raises nuisance in the form of material damage caused rather than intangible interference. In Kusiak v Dallinger & Anor the tribunal said:
26. Unlike trespass, a cause of action in nuisance is only complete when damage is suffered. As Preston CJ observed:
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.[8]
[8] [2020] ACAT 28 at [26] citing Asman v MacLurcan (1985) 3 BPR 9592 at 9594
Such a cause of action arises when damage is first suffered. Section 11 of the Limitation Act 1985 (Limitation Act) provides:
11 General
(1)Subject to subsection (2), an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims.
(2) Subsection (1) does not apply to a cause of action in relation to which another limitation period is provided by this Act.
A ‘cause of action’ is defined in the Limitation Act’s Dictionary as, “the fact, or combination of facts, that gives rise to a right to bring a civil proceeding.”
It is well-established that a cause of action accrues when the necessary facts have occurred, and there is in existence a competent plaintiff who can sue and a competent defendant who can be sued.[9] For present purposes, damage is required to perfect the applicant’s cause of action and must be suffered before the limitation period commences.[10]
[9] Thomson v Lord Clanmorris [1900] 1 Ch 718 at 728-9 per Vaughan Williams LJ
[10] See Price, Higgins & Fidge v Drysdale [1996] 1 VR 346; Guthrie v Spence [2009] NSWCA 369 at [120] per Campbell JA; Commonwealth of Australia v Cornwell (2007) 229 CLR 519
The applicant must prove the damage claimed is attributable to the tree and that it did not first occur more than six years before she commenced these proceedings.
What is the damage?
The applicant concedes that the damage she says is caused by the tree did not happen overnight and has existed for some time. She says that she only became aware that the tree was causing the damage to her garage, fence and retaining wall in 2018 when she received advice from a builder.
The applicant made a claim against her home and contents insurance with QBE Insurance regarding the damage. As part of that claim QBE sent a builder to the site to assess the claim. The applicant’s premises were inspected on 18 April 2020. The applicant relies upon the findings of that inspection in support of her nuisance claim.
The builder reported the damage to comprise:
(a)the timber dividing fence being been displaced with approximately 3.5 lineal metres being affected;
(b)one Colorbond sheet of the garage wall bowing and one downpipe being affected; and
(c)the block retaining wall being displaced with approximately four lineal metres being affected.
The report from the inspection relevantly concludes the following:
In my opinion the damage has been caused by the leaning tree and root system over a long period of time and not by an insured event.
Our inspection of the garage wall &retaining wall found that the neighbours leaning paperback tree and root system is the actual cause of the resulting damage. Over a period of time, the tree has grown directly against the fence and retaining wall, causing the retaining wall to shift and become displaced, taking the dividing fence with it.
We believe the insured was reasonably aware of the issue, as a section of the fence has been removed to make way for the growing tre [sic].
…
The tree appears to have been in the leaning position for a long period of time ¬ been affected by the recent insured events.
…
We believe that the insured was reasonably aware of the issue. The evidence gathered during our inspection suggests that the insured only lodged this claim when the neighbour had asked the insured to pay for half of the removal of the tree.
…
In our opinion, the resulting damage being claimed is consistent with a tree on the neighbouring property applying pressure to the dividing fence and retaining wall aligning the insured’s property over a significant period of time.[11]
[11] Exhibit A2
The report goes on to say:
If needed a structural engineer report could be done to indicate if the retaining wall design and construction was not according to engineering criteria that applied at the time of construction and would therefore not have been approved by the relevant authorities.[12]
[12] Exhibit A2
The respondents rely upon a report from Mr Sam Tindal, civil engineer, dated 24 March 2021; Assessment by Matt O’Rourke, civil engineer, dated 24 March 2021; and a report from Christine Rampling, arborist, dated 18 March 2021.[13]
[13] Exhibit R1
Mr Tindal observed that the block wall (claimed by the applicant to be a retaining wall) does not form part of the fence and had been cut in to be entirely located within the 1.5m zone of the boundary line. He opined:
The block wall has been constructed for the purpose of allowing the garage to be recessed into the natural grade of the land. The wall is situated away from the fence line and is not considered a part of the fence body. Over the first 3.5m length, top of the block wall has laterally shifted towards the garage. The failure of the wall in this location is considered a result of numerous factors:
ØThe block wall is in poor condition with little to no evidence of maintenance by the owner.
ØThere was no evidence of any subsoil drainage or weep holes behind the wall to relieve water pore pressure.
ØThere was no evidence of any root control barrier or root prevention system in place in the construction of the wall.
ØVisual inspection access restriction meant that footing could not be inspected or assessed.
He further observed that the block wall was not touching the garage wall panels in any location along its length (excluding the gutter downpipe). He regarded the deformation of the shed wall in the location of the gutter downpipe to be due to the growth of the small plant which had been trimmed and left in place and that the failure of the block wall could not be determined without a full depth excavation to expose the wall in its entirety.
Mr Matt O’Rourke[14] attended the site on 14 March 2021 to inspect the retaining wall but was unable to properly access the property beyond the driveway leading to the garage. He provided an assessment by email of his observations based on his limited access. He noted there was a construction joint about halfway along the wall and that there was significant vertical movement at the construction joint to the front section of the wall. The vertical movement of 120mm is regarded as substantial and an indicator of structural failure. He considered that this type of vertical movement suggested that it has not transferred loading into the foundation being an indicator of adequate internal reinforcement steel which would have resisted the displacement at the construction joint. He noted that the rear section of the wall exhibited evidence of a different deformation to the front.
[14] Mr Matt O’Rourke is the elder brother of the first respondent
Mr Matt O’Rourke concluded:
It is evident that significant displacement of the wall has occurred in the vicinity of the large tree in the adjoining property and therefore the tree is a contributing factor to this displacement. Generally such large trees would not be planted so close to the rear of a retaining wall as they will inevitably impose additional loading on the wall as the tree grows. It is also noted that the pavers at the base of the tree in the ajoins property have been displaced by the tree root structure. This same root structure will be placing pressure behind the wall.
In conclusion there are a number of contributing factors to the current state of the wall. The wall does not appear to have been adequately constructed for its intended purpose. The extent of displacement of the wall indicates inadequate structural steel and drainage, both fundamental elements for a retaining wall. Similarly, the large tree in the close proximity to the front section of the retaining wall is imposing additional loading on the wall which it is incapable of carrying.
In her report dated 18 March 2021, Ms Christine Rampling noted that the retaining wall immediately adjacent to the tree appears to be displaced from its original position, however, the cause of the displacement was not able to be determined without proper exploration between the fence and the wall. She considered that the proximity of the tree to the wall meant it could be assumed, at a minimum, that soil heaving from root expansion is impacting the rear face of the wall. She concluded that although the tree was likely to have contributed to the displacement of the lightweight wall, the wall did not appear to be constructed to a standard suitable for this location or purpose. She said she did not observe any damage to the metal garage, fence or driveway during her inspection.
From the evidence above, the Tribunal can be comfortably satisfied on the balance of probabilities that some of the damage claimed by the applicant is attributable to the tree. The extent of that contribution is difficult to reconcile.
Based on the observations of Mr Tindal and Ms Rampling I am not satisfied the tree is contributing to any damage to the garage wall and downpipe. Ms Rampling says she did not observe any damage to the metal garage and Mr Tindal says the downpipe is affected by a separate plant which is the cause of the bow. The builder observed considerable debris and material built up against the garage wall indicating the problem had been occurring for a while. The evidence does not establish to the requisite standard that any damage to the garage and downpipe have been caused by the tree.
The builder observed that the leaning tree and root system, over a long period of time have caused the retaining wall and fence to shift and become displaced. Ms Rampling opines that while inconclusive, at a minimum the soil heaving from root expansion may be impacting the retaining wall. Mr Matt O’Rourke acknowledged that the proximity of the tree to the wall meant it was likely imposing an additional loading on the wall. Both Mr Matt O’Rourke and Mr Tindal suggest the retaining wall has not been optimally constructed to serve as a retaining wall. They say the inadequacy in construction explains its failure and displacement.
The evidence supports a conclusion that the tree is making some contribution to its displacement. The method and quality of construction of the retaining wall is another factor. If the wall had been constructed differently or better it may not have resulted in the current situation. There is to some extent interference by the tree. As the tribunal notes in Tipsy Bull, the applicant must also establish that the interference is unreasonable. I am satisfied the tree is not the sole cause of the damage, but at least some. The inadequacy of the wall is not to be ignored. The applicant has not established that on the balance of probabilities, the tree’s interference with the retaining wall is unreasonable in light of:
(a)Mr Matt O’Rourke’s evidence that the retaining wall does not appear to have been adequately constructed for its intended purpose; and
(b)Ms Rampling’s evidence that the cause of the displacement of the wall is inconclusive without proper exploration and it is an assumption that at a minimum soil heaving from root expansion from the tree may be impacting it.
The timber fence was replaced on or about 20 January 2013,[15] and was constructed in such a way to accommodate the tree leaning into the area along the common boundary. A section of the fence has been cut out to allow for the lean of the tree. This was done by the contractor engaged by both parties to erect the fence. The applicant has not sought any recourse until these proceedings in relation to the excised fence palings. The building report relied upon by the applicant suggests the fence has been displaced for a length of 3.5 lineal metres. Ms Rampling says she did not observe any damage to the fence. The evidence does not rise to a level upon which I can be comfortably satisfied there is in fact damage, and further it is caused by the tree.
[15] Exhibit R1, Witness Statement of David O’Rourke and One Way Fencing Invoice dated 20 January 2013
While I am not satisfied the tree has caused damage to the retaining wall and fence as claimed by the applicant, I will deal with the issue of the limitation period which ultimately disposes of the matter.
Is the claim statute barred?
It was conceded by the applicant that the damage she now attributes to the tree happened over a long period of time and has existed for some time. She said that it was not until 2018 that she came to realise the damage had been caused by the tree. This realisation came in the course of the applicant seeking an assessment on potentially replacing or improving her existing garage. I am satisfied the applicant has been aware of the existence of damage to the fence and retaining wall for some time, at least as far back as late 2012/early 2013 when the new fence was erected.
The building report relied upon by the applicant also states that the damage has occurred over a ‘significant period of time’ but does not (and possibly cannot) state when the damage first occurred.
The respondents rely upon a series of photographs taken in 2009 to establish that the damage was present then.[16] From those photographs, I am satisfied that the retaining wall was displaced and leaning towards the applicant’s garage at that time.
[16] Exhibit R1
On the balance of probabilities, I am satisfied that the damage to the retaining wall and fence claimed by the applicant in these proceedings has existed since at least 2009 and January 2013 respectively. The existence of such damage from these respective times places the applicant’s claim outside the limitation period. It is the existence of such damage which perfected any claim to be made by the applicant against the respondents regardless of when the applicant says she first became aware of the potential cause of the damage.
Conclusion
On the evidence before the Tribunal, I am not satisfied the tree has caused damage to the applicant’s garage wall and downpipe.
The applicant’s claim in relation to damage to her retaining wall and fence is outside the limitation period.
In any event, I am not satisfied the extent of any contribution by the tree to the displacement of the retaining wall is significant, but rather its displacement is more likely attributable to its construction. Further, the damage claimed in respect of the fence was the result of a contractor cutting a section of fence palings out to accommodate the lean of the tree, which since 2013, the applicant has not complained about until commencing these proceedings.
The application is dismissed.
………………………………..
Senior Member K Katavic
| Date(s) of hearing | 13 April 2021 |
| Applicant: | In person |
| Respondent: | In person |
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