State of SA v Simionato - [2005] SASC 412

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
STATE OF SA v SIMIONATO & ORS
Judgment of The Full Court
(The Honourable Justice Debelle, The Honourable Justice Nyland and The Honourable Justice Besanko)
2 November 2005
TORTS - NEGLIGENCE
TORTS - NUISANCE
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT
Appeal from District Court orders that appellant pay damages to respondents for damage to respondents’ dwellings – respondents’ dwellings adjoined park – appellant through its agents landscaped park with native plantings in 1988 or 1989 – park transferred to council in 1991 – respondents noticed cracking in dwellings in 1995 – cracking result of soil desiccation – respondents sued appellant and council – in preliminary judgment in District Court council held not liable by virtue of Local Government Act 1934 s 315 – no appeal against that judgment.
Questions on appeal: whether judge erred in finding that roots of plantings had penetrated soil beneath respondents’ dwellings and caused desiccation – whether judge erred in holding that appellant owed respondents duty of care in negligence – whether judge erred in finding that appellant had breached duty of care – whether judge’s orders could be upheld on alternative basis that appellant liable to respondents in nuisance – whether judge erred in relation to award of damages.
Held, dismissing appeal in case of first and second respondents, and allowing it for purposes of reducing award of damages in case of third respondent: finding that desiccation caused by encroaching roots open – no actionable nuisance established prior to transfer of land in 1991 – in those circumstances, appellant not liable in nuisance – finding that appellant owed respondents duty of care in negligence upheld – non-compliance with landscape plan – breach of duty of care – breach causative of desiccation and, therefore, of respondents’ loss and damage – first and second respondents’ award of damages for cost of remedial work and for diminution in value of dwelling upheld – third respondent's award of damages varied – investment property – remedial work would add no value to land – damages awarded for diminution in value and conveyancing costs only.
Local Government Act 1934 s 315, referred to.
Acton v Blundell (1843) 12 M & W 324; 152 ER 1223; Mayor of Bradford v Pickles [1895] AC 587; Popplewell v Hodkinson (1869) LR 4 Ex 248; Xuereb v Viola (1990) Aust Torts Reports 81-012; Chasemore v Richards (1859) 7 HL Cas 349; 11 ER 140; Butler v Standard Telephones and Cables Ltd [1940] 1 KB 399; McCombe v Read [1955] 2 QB 429; Davey v Harrow Corporation [1958] 1 QB 60; Peisley v Ashfield Municipal Council (1970) 21 LGRA 243; Barton v Chhibber (1988) Aust Torts Reports 80-185; White v Jameson (1874) LR 18 Eq 303; Richmond City Council v Scantelbury [1991] 2 VR 38; Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264; Roswell v Prior (1700) 12 Mod 635; 88 ER 1570; Thompson v Gibson (1841) 7 M & W 456; 151 ER 845; Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486; Sullivan v Moody (2001) 207 CLR 562; Hargrave v Goldman (1963) 110 CLR 40; Wilkins v Leighton [1932] 2 Ch 106; Sedleigh-Denfield v O'Callaghan [1940] AC 880; Goldman v Hargrave (1966) 115 CLR 458; Morgan v Khyatt [1964] 1 AC 475; Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR 549; Valherie v Strata Corporation No 1841 Inc (2003) 86 SASR 245; Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478; Jaensch v Coffey (1984) 155 CLR 549; Sutherland Shire Council v Heyman (1985) 157 CLR 424; Cook v Cook (1986) 162 CLR 376; San Sebastian Pty Ltd v Minister Administering the Environmental and Assessment Planning Act 1979 (1986) 162 CLR 340; Hawkins v Clayton (1988) 164 CLR 539; Gala v Preston (1991) 172 CLR 243; Perre v Apand Pty Ltd (1999) 198 CLR 180; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Bryan v Maloney (1995) 182 CLR 609; Johnson v Perez (1988) 166 CLR 351; Miliangos v George Frank (Textiles) Ltd [1976] AC 443; Dodd Properties Ltd v Canterbury City Council [1980] 1 WLR 433; Alcoa Minerals of Jamaica Inc v Broderick [2002] 1 AC 371; Jones v Gooday (1841) 8 M & W 146; 151 ER 985; Evans v Balog [1976] 1 NSWLR 36; Pantalone v Alaouie [1989] 18 NSWLR 119; Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14; Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361; Bunclark v Hertfordshire County Council & Anor (1977) 243 EG 381, considered.

STATE OF SA v SIMIONATO & ORS
[2005] SASC 412
Full Court: Debelle, Nyland and Besanko JJ

DEBELLE J: I have had the benefit of reading the draft reasons of Besanko J. I agree with his conclusions and with the substance of his reasons for those conclusions. It follows that I agree with the orders he proposes.
NYLAND J: I agree with the reasons of Besanko J and I agree with the orders proposed by him.
BESANKO J: This is an appeal by the State of South Australia from orders made by a judge of the District Court in an action in that Court. The appellant was one of two defendants to the action. The other defendant was the Corporation of the City of Tea Tree Gully (“the council”). The respondents are Mario Simionato, Mila Simionato and Liliano Simionato. Mario and Mila Simionato are husband and wife and Liliano Simionato is their daughter. They were the plaintiffs to the action. The appellant was ordered to pay the sum of $48,608 to the first and second respondents, Mario and Mila Simionato, and the sum of $318,693 to the third respondent, Liliano Simionato.
The first and second respondents own the land at No 8 Kevin Road, Modbury, in the State of South Australia, upon which there is a single storey, cream brick, double-fronted conventional style dwelling. I will refer to this land as No 8 Kevin Road. The dwelling was damaged as a result of the desiccation of the area beneath No 8 Kevin Road, which in turn was caused by the planting of trees and shrubs on the adjacent property to the south. The damages award of $48,608 in favour of the first and second respondents relates to that damage. The third respondent owns the land at No 7 Kevin Road, Modbury, upon which there is a single storey, cream brick, triple-fronted conventional style dwelling. I will refer to this land as No 7 Kevin Road. The dwelling was damaged as a result of the desiccation of the area beneath No 7 Kevin Road, which in turn was caused by the planting of trees and shrubs by the appellant on the adjacent property to the south. The damages award of $318,693 in favour of the third respondent relates to that damage. The adjacent property to the south of No 7 and No 8 Kevin Road was owned by the appellant from at least 1980 to July 1991 and thereafter by the council.
The respondents’ action in the District Court has a long history. It was commenced in 1996 and at that time the defendants were the appellant and the council. The council alleged that it was not liable to the respondents by reason of, among other things, the provisions of s 315 of the Local Government Act 1934. A master of the District Court ordered that the question whether the council was not liable by reason of that section be tried as a preliminary point. In October 2001 the point was tried by her Honour Judge Vanstone (as her Honour then was) in the District Court. On 9 November 2001 her Honour decided that the council was not liable for any damage to the respondents’ dwellings by virtue of s 315 of the Local Government Act 1934 and judgment was entered in favour of the council against the respondents.
In February 2004 the respondents’ action against the appellant proceeded to trial before his Honour Judge Herriman in the District Court.
The background facts
Kevin Road, Modbury, runs in a north/south direction. There is a cul-de-sac at the southern end. No 8 Kevin Road is at the southern end of the road on the eastern side. The dwelling faces in a westerly direction. No 7 Kevin Road is opposite No 8 and the dwelling faces in an easterly direction. The dwelling on No 8 was built in about 1976 and the dwelling on No 7 Kevin Road was built in the late 1960’s. The first and second respondents have lived at No 8 Kevin Road since it was constructed. The third respondent has never lived at No 7 Kevin Road. She purchased the property as an investment in about 1980 and she let it to tenants more or less continuously from 1980 to 1995. It has remained vacant since 1995. Both of the properties have fences on their southern boundary, and both have driveways to the north of the dwelling. In the case of No 8 Kevin Road, the distance between the southern fence and southern wall of the dwelling is about one metre, and in the case of No 7 the distance is about one-and-a-half metres.
Immediately to the south of the southern boundary of each property is the North-East Busway Reserve. In about 1980 the appellant, through one of its agencies, began to incorporate the reserve into what was then described as the North-East Busway Project (“the Project”), which involved the creation of a dedicated bus route to the north-eastern suburbs of Adelaide. The judge described the work involved as follows:
The plan involved the excavation of a substantial east‑west ditch, or valley, to the south of Kevin Road and the construction within it of a permanent way for the bus route. The earthworks were thus substantial and resulted in a land contour that was convex in shape and descended southwards from the southern fences of Nos 7 and 8, gradually, at first, over a lineal distance of about ten or eleven metres, but thereafter quite sharply over a similar distance to the busway platform. The upper level of the slope was separated by a wire fence from the steeper, lower section and was set aside for public use. It was designed and implemented as a meandering, undulating, paved bike and walking track (“the track”) within a planted, park‑like setting, the whole area being described as “the linear park”. It is accessible, inter alia, from a pathway at the cul‑de‑sac end of Kevin Road and, at one point just to the east of that point, the track separates into northern (upper) and southern (lower) arms. The linear park is thus a continuous stretch of public land fringing the bus route (itself now known as “the O’Bahn”).
The linear park was designed, constructed and landscaped by the appellant between about 1980 and 1989. The work was carried out by the appellant through its own agencies and by consultants or contractors engaged by the appellant. The planting of the vegetation in the park occurred in 1988 or 1989. In July 1991 the linear park in its completed state was transferred to the council. The appellant retained ownership of the O’Bahn route.
The paved bicycle and walking track, where it passes to the south of No 7 and No 8 Kevin Road, meanders in a roughly east-west direction and up to about 7.5 metres in distance from their southern fences. As I have said, that area of the park between the southern fence and the bicycle and walking track was landscaped and planted with various species of native trees and shrubs in 1988 or 1989. The planting in that area was undertaken for aesthetic purposes, for the purpose of screening the nearby residential areas from the park and bus route and for the purpose of providing those residential areas with some measure of noise protection. The judge referred to the native shrubs and trees planted in this area in 1988 or 1989 as the “plantings” and I will also use that term.
The respondents noticed cracking in their respective dwellings in November 1995, and correspondence with the then owner of land to the south, the council, thereafter ensued.
In about December 1996 the plantings were cut back to stumps, and in February or March 1997 the plantings were completely removed. The relevant spaces are now barren and mulched.
A number of agreed facts were put before the judge at the trial and the following are relevant:
3.As part of the project, [ie., the O-Bahn project] Australian native plants were planted to the south of the subject properties. Details of these plantings were provided in evidence to her Honour Judge Vanstone as she then was (in addition, the report of Helen Smythe to be tendered by agreement).
4.It was well known at the relevant time that the planting of trees, particularly Australian natives and particularly in clay soil, may result in soil desiccation. Soil desiccation did in fact occur as a direct result of the plantings.
5.The houses immediately to the north (No 7 and No 8) of these plantings sustained cracking (more so in the case of No 7 than No 8), subsequent to the plantings as a result of soil movement.
6.The desiccation by these plants of the soil to the south of these properties caused the structural damage to the buildings. Estimates vary as to contribution.
The respondents sought to go further than these agreed facts at the trial and prove that the roots of the plantings penetrated the area beneath No 7 and No 8 Kevin Road and desiccated that area.
I turn now to identify the key findings made by the judge.
Key findings of the judge
The judge noted that it was common ground that the plantings caused the desiccation of the area beneath the buildings on No 7 and No 8 Kevin Road and that the desiccation resulted in the subsidence of the footings and the cracking of the walls.
The judge found that the trees and shrubs comprising the plantings were planted in or after early to mid-1988 and that, once mature, the plantings were thick, dense and impenetrable. The distance between the southern fences of No 7 and No 8 Kevin Road respectively and the nearest plantings were in some cases less than a metre. The north-south width of the planting beds contiguous to each house, in the case of No 8, ranged between two-and-a-half and five metres, and in the case of No 7, ranged between five and seven metres. The judge found that the beds of the plantings contained mixed varieties of Australian native plants, shrubs and trees, and that the plantings did not correspond in all respects with the landscaping plan which had been prepared in 1988 by Mr John Dexter who is a landscape architect. In 1988 Mr Dexter was employed by Land Systems Pty Ltd, the company engaged by the appellant. In particular, the plantings contained specimens of the genera Grevillea, Eucalyptus, Acacia and Eremophilia, none of which were specified in the landscape plan. No detailed plan or catalogue of the actual varieties or plantings was produced, but the judge said that he was satisfied that amongst those identified were specimens capable of growing to heights of five metres (Melaleuca armillaris), three to four metres (Myoporum insulare and Hakea suaveolens) and one to two metres (Eremophilia maculata). The judge also appears to have accepted that the roots of Melaleuca armillaris are capable of spreading as much as six and a half metres and that the roots of shrubs can be as aggressive as tree roots.
The judge referred to a eucalypt tree planted one and a half metres to the south of the southern fence of No 8 Kevin Road. It was a “ceremonial tree” placed there by the then Premier of South Australia. The judge found that it grew to a substantial height, perhaps something in the order of six metres. The judge referred to it as an imprudent planting by any measure, and by that I think he was referring to the fact that it was planted so close to the southern boundary of No 8 Kevin Road.
The judge said that there was no evidence that the departures from the landscape plan prepared by Mr Dexter were the subject of horticultural or engineering advice and he said Mr Dexter “disowned” them. The judge said that, although there was no precise evidence, he found that, except for the six-metre eucalypt tree, the plantings reached heights of at least three metres. The foliage of some of the plantings touched the southern fence of both properties and in the case of No 7, and probably in the case of No 8, extended into each property above the fence line.
The plantings were heavily irrigated by the appellant after they were first planted. The judge was unable to be precise as to the period for which that continued. It was longer than three months and probably to a time close to when the linear park was transferred to the council in July 1991. The council did not irrigate the plantings and they were left to rely on natural water sources.
It was not in dispute that, over the several years after the plantings were placed in the ground and up until at least 1996, the roots of the trees and shrubs took up substantial moisture from the subsoil in the linear park and, in time, caused the desiccation of the area beneath No 7 and No 8 Kevin Road leading to the shrinkage of the volume of soil in that area and damage to the structures upon it. The judge found that that result was exacerbated by two factors. First, it was exacerbated by the propensity of some of the native varieties to more aggressively seek out subsoil moisture, notably the species of Grevillea, Hakea and Eucalyptus. Secondly, it was exacerbated by the fact that the properties, the linear park and the busway were all situated in an area where the soil profile is typically described as black earth overlying Hindmarsh clay. The judge found that such a soil profile was well known to be variable in depth and content over short distances, and highly reactive to changes in moisture content such that the addition of moisture will cause heaving of the soil mass and desiccation will result in shrinking and subsidence.
The judge found that the desiccation beneath No 7 and No 8 was caused by the transference of moisture from that area to the plantings and he turned to consider precisely how that occurred. He found that the transference of moisture occurred by direct transference of the moisture “via” (as he put it) tree and shrub roots penetrating beneath No 7 and No 8 Kevin Road. The judge said a finding that roots encroached into the subsoil beneath No 7 and No 8 did not of itself preclude a finding that the desiccation of the soil beneath No 7 and No 8 was also contributed to by the natural migration of moisture from an area of high moisture content to an area of low moisture content. However, the judge said that he was satisfied that the root penetration was the effective and commonsense cause of the desiccation of the subsoil underneath No 7 and No 8 Kevin Road. The judge said that on the evidence he could not be satisfied as to the point in time when roots encroached into the subsoil beneath No 7 and No 8 Kevin Road. More particularly, the judge said that he could not be satisfied that the tree and shrub roots penetrated the areas beneath No 7 and No 8 Kevin Road before the appellant transferred its land to the council in July 1991. Later he expressed the finding more positively by saying that he was satisfied the tree and shrub roots penetrated the areas beneath No 7 and No 8 Kevin Road some time after July 1991 but prior to late 1995.
The judge dismissed the respondents’ claim in nuisance because he held the appellant was not liable for simply desiccating its own land, namely the land beneath the plantings, even if that desiccation caused the migration of moisture from the areas beneath No 7 and No 8 Kevin Road resulting in soil subsidence and property damage. The judge held that the appellant was not liable for the desiccation resulting from the penetration of the roots of the plantings into the area beneath No 7 and No 8 Kevin Road because he could not be satisfied that that occurred while the appellant was the owner of the land upon which the plantings stood.

The judge turned to consider the claim in negligence. He made a number of factual findings relevant to that claim. He found that the desiccation of the areas under No 7 and No 8 Kevin Road caused distortion of the respective footing systems of the dwellings on the properties and consequential structural damage. He considered the condition of the dwellings on each property before the desiccation and then as a result of the desiccation. As to No 7 Kevin Road, he concluded that in May 1992, No 7 was suffering from no cracking, or no more than negligible or hairline cracking. As to No 8 Kevin Road, he concluded that up to, and as at, July 1988 the cracking to No 8 was no more serious than negligible or very slight. In relation to each property the respondents installed an irrigation system in early 1997 and carried out a rewetting programme for a period of nearly three years. The judge found that no further rewetting would have improved, or would now improve, the condition of the dwellings on No 7 and No 8 Kevin Road in terms of footing settlement and consequential cracking, and that there is unlikely to be any further improvement without mechanical intervention.
In relation to No 7 Kevin Road, the ultimate subsidence level between the high point at the north-eastern corner of bedroom 1 and the south-western corners of the property remained at close to 100 millimetres. The judge found that rewetting would not improve the condition much beyond that. In relation to No 8 Kevin Road, the desiccation caused by the plantings increased the cracking in the dwelling from negligible to very slight, to slight and moderate in at least two areas. The artificial watering of areas near the southern footings of the dwelling then produced partial recovery, more so in the north-south than the east-west walls, but the structure had not rebounded to its status prior to the plantings, nor was the judge satisfied that it ever would.
In considering the claim in negligence, the judge considered first whether the appellant owed the respondents a duty of care. The judge said that there was undoubtedly a relationship of proximity or neighbourhood between the appellant and the respondents, and that the appellant was under a duty in planting the trees and shrubs to avoid a foreseeable risk of injury to the respondents. The judge was satisfied that by 1988 the appellant knew or ought to have known of the risk posed in planting native species of trees or shrubs in the linear park in positions too close to nearby structures, and, in particular in this case, the structures on No 7 and No 8 Kevin Road, the more so in circumstances where it was aware (as it was found to be) that the linear park and adjoining dwellings were situated on black earth soil and that such soil was highly reactive to moisture change. The judge put the duty of care in another way by saying that it was reasonably foreseeable that if trees and shrubs were planted in the linear park and they were of inappropriate kinds, or were planted in inappropriate numbers, or at points too close to No 7 and No 8 Kevin Road, their roots might enter on to those properties and cause soil desiccation and structural damage. The appellant was under a duty of care to ensure that the plantings were of appropriate genera and species, were in appropriate numbers and were spaced at such intervals from each other and from the southern boundaries of No 7 and No 8 Kevin Road as to ensure that their roots were not likely to encroach upon No 7 or No 8 and cause desiccation beneath either property.
The judge found that that duty of care was not capable of being delegated and there is no challenge to that conclusion on appeal.
The judge found that the appellant had acted in breach of duty in a number of respects. The important findings of the judge in terms of breach were as follows:
1.In the areas immediately to the south of No 7 and No 8 Kevin Road, while there may have been trees and shrubs of the kind specified in Mr Dexter’s landscape plan, there were also species of Grevillea, Acacia, Eremophilia and Eucalypt planted which were not specified in the landscape plan, and those varieties were described in the evidence as thirsty. Such plantings were evidence of a failure by the appellant, through its servants or agents, to implement properly the recommendations in Mr Dexter’s landscape plan.
There was also the large “ceremonial” eucalypt tree planted immediately to the south of No 8 which was not part of Mr Dexter’s landscape plan. It was a very substantial tree and its roots were destined to penetrate beneath No 8 Kevin Road.
2.Mr Dexter’s landscape plan refers to the spacings for the shrubs to be planted south of No 7 Kevin Road at centres of one to one and a half metres depending on the variety. In fact, a number of specimens were planted closer to the fence than one metre. This came about because of poor contract administration by the appellant, and a failure to follow the specifications in Mr Dexter’s landscape plan.
The judge said that, although Mr Dexter’s landscape plan did not show spacings for the plantings to the south of No 8 Kevin Road, the spacing for the same species was shown elsewhere on the plan. The appellant should have followed those spacings but did not do so, and some species were planted within one metre of the southern fence.
3.In the case of the plantings immediately to the south of No 8 Kevin Road the appellant planted many more trees and shrubs than were shown on the landscape plan, namely, 90 trees and shrubs as against 69 shown on the landscape plan. The number of shrubs planted to the south of No 7 Kevin Road more closely approximated the number shown on the landscape plan. The judge said that, although he did not hear any evidence on the point, it appeared to him to be a matter of commonsense that the number of trees and shrubs planted adjacent to each property bears a direct relationship to their desiccating capacity.
4.The appellant stopped watering the plantings at some point prior to July 1991 and did not recommend or encourage the council to continue it. It was foreseeable that once watering ceased there was a substantiated risk the roots of the planted species would migrate in search of moisture sources.
The judge expressed his conclusion as follows:
On all the evidence, I am satisfied and find the State knew or ought to have known that the planting of shrubs or trees, of a kind known to be aggressive moisture seekers, in greater numbers than recommended, using varieties not recommended, and closer to the fence lines of Nos 7 and 8 than specified so that their canopies would likely overhang those properties, created a foreseeable risk of root trespass and damage to the plaintiffs’ properties. Nonetheless, by its servants or agents it proceeded with such planting.
The judge said that the fact that the roots may not have encroached into the subsoil of No 7 and No 8 Kevin Road until after July 1991 did not absolve the appellant because the breach of duty occurred at the time of planting and continued while the appellant remained the owner of the linear park and kept the plantings there.
The judge assessed damages by reference to the building estimates closest in time to the date of judgment. He said it would be unreliable to assess damages on the basis of aged building quotations which were well known to fluctuate in ways other than by ordinary inflation or deflation. He proceeded on the basis of the latest repair specifications and estimates provided by Mr Goldfinch, a civil structural and geotechnical engineer called by the respondents, and he assessed other continuing losses as of the date of his reasons for judgment.
In relation to No 8 Kevin Road, the judge rejected a claim for the cost of underpinning the dwelling. He allowed a claim for repairs to the dwelling at $20,108 and he allowed interest on that sum in the amount of $1,500. He also allowed a claim for diminution in the value of the dwelling, even with the repairs carried out, in the sum of $21,000. The judge allowed the sum of $6,000 for distress and inconvenience to the first and second respondents. The distress and inconvenience arose because of the first and second respondents’ awareness of the damage to the dwelling, the effort involved in watering the property over a period of nearly three years and the inconvenience of having boreholes out the front of the property.
In relation to No 7 Kevin Road, the judge allowed the claim for the cost of underpinning and then cosmetic repair in the sum of $133,923 and he allowed interest on that sum in the amount of $6,700. The judge allowed a claim for loss of rental from November 1995 to a date three months from the date of judgment in the sum of $62,070, and he allowed interest on that sum in the amount of $15,000. The judge also allowed a claim for diminution in value, even with the repairs carried out, of $98,000. He allowed a claim for distress and inconvenience in the sum of $3,000 which seems largely to have been for the voluntary assistance provided by the third respondent’s mother in carrying out the daily irrigation tasks. The judge rejected a submission by the appellant that the third respondent should have carried out the remedial works to No 7 earlier. He found that while the third respondent had the funds to do so, in all the circumstances it was reasonable for her to await the outcome of the litigation.
Issues on appeal
In broad terms, there are five issues on appeal. Four are raised by the appellant and one by the respondents.
First, the appellant submitted that the judge erred in holding that the appellant owed a duty of care to the respondents in relation to the damage to their respective dwellings. Secondly, the appellant submitted that the judge erred in finding that the roots of the plantings penetrated the subsoil under No 7 and No 8 and caused desiccation which in turn led to damage to the respective dwellings. Thirdly, assuming there was a duty of care, the appellant submitted that the judge erred in finding that the appellant acted in breach of that duty. Fourthly, the appellant submitted that the judge erred in a number of respects in relation to the damages which he awarded. As to No 7 Kevin Road, it was said the judge erred in the circumstances in awarding rectification costs. In the alternative, the judge erred in failing to find that the third respondent failed to mitigate her loss by carrying out the rectification work in 1998 and 1999. If that argument is accepted it would reduce the award for rectification costs and have a flow-on effect on the awards for loss of rent and distress and inconvenience. As to No 8 Kevin Road, it was said the judge erred in failing to find that the first and second respondents failed to mitigate their loss by carrying out the rectification work in 1998.
The respondents raised the fifth issue by their notice of alternative contentions. They asserted that the judge’s orders could be upheld on a basis which he rejected, namely, on the basis that the appellant was liable to the respondents in nuisance.
It is convenient to deal first with the appellant’s challenge to the judge’s finding that the roots of the plantings penetrated the subsoil under No 7 and No 8 Kevin Road and caused desiccation in that area.
The cause of the desiccation
The appellant submitted that, contrary to the judge’s conclusion, either the roots did not penetrate the subsoil under No 7 and No 8 Kevin Road or (and this was the primary argument), even if they did, they did not desiccate the soil, rather the desiccation came about as a result of the natural migration of moisture from an area of high moisture to an area of low moisture.
The appellant pointed to the results obtained from boreholes dug in the area of the plantings and on each of the two properties. The boreholes were dug on 8 February 1996 and the results form part of Mr John Woodburn’s report dated 29 February 1996. Mr Woodburn was a consulting engineer called by the respondents. The important boreholes for present purposes were boreholes 1 and 2, which were dug in the area of the plantings (borehole 2, just south of the southern fence of No 7 Kevin Road), borehole 9, which was dug under the southern side of the dwelling on No 7 Kevin Road and borehole 10, which was dug a little distance north of borehole 9. The results of the tests and the appellant’s assertions with respect to those results were summarised by the judge as follows:
2.3that the Woodburn borehole 1 showed fine tree roots in depths between 0.2 metres and 0.8, and what were more likely tap roots at depths of two to three metres, that borehole 2 indicated fine tree roots at depths of 0.2 to 1.2 metres and that both boreholes were amongst the plantings adjacent to No. 7; in other words, this was a typical root pattern for plants in that vicinity and there was little likelihood they had entered beneath either property;
2.4that borehole 9, beneath the house at No. 7, indicated fine tree roots at a depth of 1.5 to two metres but, significantly, too, there was a high soil moisture level and the soil suction factor was close to average. This indicated that the tree roots found at that location were not desiccating the local soil;
2.5there was no evidence of tree roots in Woodburn borehole 10, also taken under No. 7;
The appellant asserted that the finding at borehole 9 that the soil moisture was average was strong evidence that roots were not desiccating the subsoil under No 7 Kevin Road.
There was no dispute that desiccation caused structural damage to the dwellings on No 7 and No 8 Kevin Road. As I understand the evidence, that means that in one way or another the area beneath No 7 and No 8 Kevin Road became desiccated. Bearing that in mind, the fact that the soil moisture level around borehole 9 was close to average is of no great significance, and, if anything, the reference to the tree roots supports the respondents’ case that roots from the plantings had penetrated into the area beneath No 7 and No 8 Kevin Road. As the judge noted, it was enough for him to find that the roots had penetrated and had had a desiccating effect; it was not necessary for him to find that they had penetrated beneath the footings or superstructure of each dwelling. The finding of the judge was open to him having regard to these matters as well as the following matters. Two engineering experts appear to have accepted that the roots had penetrated the area under No 7 and No 8 and the other engineering expert accepted that it was at least a well-known phenomenon. It was clearly open to the judge to find, having regard to the evidence of the second and third respondents and the photographs tendered, that the canopies of the plantings overhung the southern fences of No 7 and No 8 Kevin Road and that there was evidence that roots would extend at least as far as the drip line of the plantings. That evidence, together with the judge’s conclusion that some of the plantings were within a metre of the southern fences, led the judge to conclude that the roots penetrated beneath No 7 and No 8 Kevin Road. It was open to the judge to reach that conclusion. It is also significant that borehole 2, which was very dry, was only half a metre south of the southern fence of No 7 Kevin Road.
The areas beneath No 7 and No 8 became desiccated, causing structural damage to the dwellings, and this desiccating effect was caused by the plantings. To this point there was no dispute between the parties. As I have said, it was open to the judge to find that the roots of the plantings penetrated into the areas beneath No 7 and No 8 Kevin Road. In fact I think that it can be said that that finding is inevitable in view of the judge’s finding as to proximity of the plantings to the southern fences of the two properties. The only question then is whether the desiccation was caused by the encroaching roots or by natural migration of moisture from an area of high moisture to an area of low moisture. The former is a well-known phenomenon and it was open to the judge to find that that is what occurred in this case.
I reject the appellant’s challenge to the judge’s conclusion that it was the encroaching roots of the plantings that caused the desiccation of the areas under No 7 and No 8 Kevin Road.
I turn now to consider the appellant’s challenge to the judge’s conclusion that it owed a duty of care to the respondents, and the respondents’ assertion by their notice of alternative contentions that the appellant was liable in nuisance.
Duty of care and liability in nuisance
As I have said, the land upon which the plantings stood was transferred by the appellant to the council in July 1991. The judge found that the roots of the plantings did not encroach beneath the areas of No 7 and No 8 Kevin Road before July 1991.
The judge was not able to make a finding as to whether, prior to July 1991, the plantings caused desiccation of the area beneath the plantings and then, by a process of natural migration from an area of high moisture content to an area of low moisture content, desiccation of the area beneath No 7 and No 8 Kevin Road. Even if that was the proper finding on the evidence, the judge held that it would not mean that the appellant was liable in nuisance. Subject to one exception, to remove water from beneath the surface of one’s own land, even if it causes damage to the plaintiff, does not give rise to liability to the plaintiff in nuisance (Acton v Blundell (1843) 12 M & W 324; 152 ER 1223; Mayor of Bradford v Pickles [1895] AC 587; Popplewell v Hodkinson (1869) LR 4 Ex 248; Xuereb v Viola (1990) Aust Torts Reports 81-012). The one exception is where the water is running in a known and defined subterranean channel (Chasemore v Richards (1859) 7 HL Cas 349; 11 ER 140). There is no evidence of that in this case.
The respondents do not challenge the conclusion that the appellant committed no actionable nuisance before July 1991.
As I have said, the roots of the plantings placed in the ground by the appellant as the owner and occupier of the land did not encroach into the area beneath No 7 and No 8 Kevin Road and cause desiccation of that area and consequent damage to the dwellings thereon until after the appellant had transferred the land to the council.
It is convenient to consider first the respondents’ contention that the judge erred in not holding the appellant liable in nuisance.
Encroaching tree roots give rise to a liability in nuisance in the same way as overhanging tree branches. An injunction may be granted to restrict the nuisance, and an action in damages lies if the roots encroach, extract moisture from the ground and thereby undermine the foundations of the buildings on the plaintiff’s land (Butler v Standard Telephones and Cables Ltd [1940] 1 KB 399; McCombe v Read [1955] 2 QB 429; Davey v Harrow Corporation [1958] 1 QB 60). This case would have been a relatively straightforward one had the appellant, who planted the trees and shrubs, remained the owner of the land at the time the damage occurred. In those circumstances, the appellant would have been liable in nuisance.
This case does not involve a claim for an injunction to remove or prevent a nuisance, or a claim for the costs of abating a nuisance. This case involves a claim for damages for damage caused by a nuisance. The cause of action in nuisance does not arise until the damage first occurs (McCombe v Read (supra); Peisley v Ashfield Municipal Council (1970) 21 LGRA 243; Barton v Chhibber (1988) Aust Torts Reports 80-185). When was that on the facts in this case? The damage was first noticed by the respondents in November 1995. The damage to the dwellings, although undetected, might have first occurred before that, but it is clear from the judge’s findings that it did not occur before July 1991 when the appellant transferred the land to the council. It is clear from the judge’s findings that the roots did not encroach onto No 7 and No 8 Kevin Road before the transfer, let alone cause damage which was actionable before that date. In other words, prior to the transfer of the land to the council, there was no nuisance, even though the state of affairs which led to the nuisance had been created by the appellant.

A person may be liable in nuisance if he creates the nuisance, or if, although he does not create the nuisance, he has knowledge or means of knowledge of it and he fails to take steps in a timely fashion to remove it.
In general terms it may be said that a person who creates a nuisance is liable for the damage caused by it and there is a sense in which his liability is a strict liability (White v Jameson (1874) LR 18 Eq 303; Richmond City Council v Scantelbury [1991] 2 VR 38). There is the control mechanism of reasonable user (which is not relevant in this case) and the damage which occurs must be reasonably foreseeable. However, this latter requirement relates to remoteness of damage, and the liability of the creator of a nuisance is not predicated on the criterion of liability in negligence, namely, that he is liable only if he fails to take reasonable care to eliminate a foreseeable risk of injury (Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264 per Lord Goff of Chiveley at 300). Furthermore, a person who creates a nuisance and who then disposes of the land cannot thereby avoid the consequences of the nuisance. He will remain liable for the damage caused by the nuisance after he has disposed of the land even though he has no ability to abate the nuisance. Professor Fleming in his book The Law of Torts (9^th ed, 1998), p 476, cites Roswell v Prior (1700) 12 Mod 635 at 639; 88 ER 1570 at 1572:
If a wrongdoer conveys his wrong over to another, whereby he puts it out of his power to redress it, he ought to answer for it.
Other authority to similar effect is Thompson v Gibson (1841) 7 M & W 456; 151 ER 845 and Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486. I refer also to the discussion in Balkan RP and Davis JLR, Law of Torts (2^nd ed, 1996), pp 466-467; Brazier M and Murphy J, Street on Torts (10^th ed, 1999), pp 378-379).
However, the question in this case is not whether the creator of a nuisance is to be held liable for damage caused by the nuisance after he has disposed of the land upon which the nuisance exists. The question here is whether a person who has created a state of affairs which ultimately leads to a nuisance is liable for damage caused by the nuisance which arises after he has disposed of the land. It is important to remember that in this case there was no nuisance before the appellant transferred the land in July 1991, because no actionable damage had been caused prior to that date and, indeed, the roots had not encroached onto No 7 and No 8 Kevin Road prior to that date. Tree roots are not per se a danger or a nuisance, and this is not a case of the appellant conveying its “wrong” over to the council. I do not think the law of nuisance provides a remedy in the particular circumstances of this case. Not only is there no authority to the effect that a person in the position of the appellant is liable in nuisance, but, more importantly, to hold the appellant liable in nuisance would raise a question as to the circumstances in which it would be held liable. Would the appellant be liable in nuisance on the same basis as the creator or would it be held liable only if, in creating the relevant state of affairs, he failed to exercise reasonable care to eliminate or prevent a foreseeable risk of injury? If the former, that may be extending liability in nuisance beyond its present boundaries and in a way which would impose an unreasonable and unduly burdensome obligation on a previous occupier who plants trees. If the previous occupier is liable only in the latter circumstances, then it would introduce elements of the tort of negligence into the law of nuisance where, in my view, it would be preferable to approach the appellant’s liability directly by reference to the tort of negligence. For these reasons, I do not think the appellant is liable in nuisance.
In determining whether the previous occupier who planted the trees owed a duty of care to the respondents, consideration must be given to the potential liability of the present occupier in nuisance. Of course, in this case the present occupier was not liable because of a statutory provision. This question must be addressed because the authorities indicate that consideration must be given to whether the imposition on the appellant of a duty of care and a liability in negligence would cut across other legal principles and impair their proper application, or resolve competing interests on an altogether different basis from how they are resolved at present by the law of nuisance (Sullivan v Moody (2001) 207 CLR 562 at 580 - 581). I start my discussion on this point by noting that in Hargrave v Goldman (1963) 110 CLR 40 the defendant was held liable in nuisance and in negligence (per Taylor and Owen JJ). Windeyer J held that the defendant was liable in negligence only.
A nuisance may be created by a previous owner or occupier or by a third party, such as an independent contractor or trespasser, or by natural causes. The present occupier may be held liable for the nuisance which exists on his land by reference to principles which bear a close, but not precise, analogy with the principles of the tort of negligence (Cambridge Water Co v Eastern Counties Leather Plc (supra) per Lord Goff of Chiveley at 300). The present occupier will be held liable if he has “continued or adopted” the nuisance, which means if he has knowledge, or ought to have knowledge, of the nuisance and fails in a timely fashion to take steps to abate it. It is sufficient for present purposes to refer to Wilkins v Leighton [1932] 2 Ch 106, Sedleigh-Denfield v O’Callaghan [1940] AC 880; Hargrave v Goldman (supra); Goldman v Hargrave (1966) 115 CLR 458; Morgan v Khyatt [1964] AC 475; Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR 549; Valherie v Strata Corporation No 1841 Inc (2003) 86 SASR 245.
There are many cases discussing the meaning of the requirement that the defendant adopt or continue the nuisance but it is not necessary for me to discuss them. Nor, it should be noted, am I discussing in this case the liability of the council in nuisance in the absence of the relevant statutory provision, because the action against the council was never tried. However, what can be said is that the encroaching of tree roots is difficult to detect and a present occupier who did not plant the trees is not liable until he has knowledge or means of knowledge of the encroachment and fails in a timely fashion to abate it (Richmond City Council v Scantelbury (supra); Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478). By that time the damage may have been done and, absent a duty of care on the previous occupier who planted the trees or shrubs, the innocent party may be left without a remedy (Proprietors of Strata Plan 14198 v Cowell (supra) per Hodgson J at 488). I cannot see that the law of negligence would leave the innocent party without a remedy in circumstances in which the previous occupier who planted the trees ought to have foreseen the risk of injury and failed to take reasonable care. For these reasons, I do not think that to impose a duty of care on the person who planted the trees in circumstances similar to those in this case would cut across other legal principles and impair their proper application.
I pause to summarise my conclusion to this point. In my opinion, the appellant is not liable in nuisance. Having regard to the potential liability of a present occupier, it will not cut across other legal principles and impair their proper application to hold that the appellant owed a duty of care in negligence in the circumstances of this case and in similar cases. That leaves for consideration whether, by reference to more general principles, it should be held that the appellant owed a duty of care to the respondents.
The judge said that there was undoubtedly a relationship of proximity or neighbourhood between the appellants and the respondents, and that in those circumstances the appellant was under a duty to take reasonable care to avoid a foreseeable risk of injury to the respondents in planting the trees and shrubs. It is not clear whether the judge used the word “proximity” in the sense in which it was used in cases such as Jaensch v Coffey (1984) 155 CLR 549 per Deane J at 581; Sutherland Shire Council v Heyman (1985) 157 CLR 424 per Deane J at 497-8; Cook v Cook (1986) 162 CLR 376; San Sebastian Pty Ltd v Minister Administering the Environmental and Assessment Planning Act 1979 (1986) 162 CLR 340; Hawkins v Clayton (1988) 164 CLR 539; Gala v Preston (1991) 172 CLR 243; namely, as the second necessary element (in addition to reasonable foreseeability) to found to a duty of care, or whether he is using it in a more general sense; namely, as indicating that the relationship was one which gave rise to a duty of care. I assume that he was using it in the more general sense because proximity is no longer the second necessary element to found a duty of care (Sullivan v Moody (supra) at 578 - 579).
The appellant submitted that we should approach this case on the basis that it is a novel case involving a claim for pure economic loss, and that we should apply the type of factors identified in recent High Court decisions dealing with novel cases (Perre v Apand Pty Ltd (1999) 198 CLR 180; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 (“Woolcock”)). The question whether it is appropriate in the context of a defective building to characterise the nature of the damage as damage to property or pure economic loss has in the past been one of difficulty. I am inclined to think that in this case the claim is not a claim for pure economic loss because it is not a case of the negligent construction of a building but rather is a case where encroaching tree roots have caused physical damage to a building. Nor am I inclined to see this as a novel case. The appellant and the respondents were adjoining owners of land at the time the trees and shrubs were planted. Had the appellant remained the owner of the land there is no doubt that it would have been held liable in nuisance. Even if this case involves a claim for pure economic loss and it is appropriate to view it as a novel case such that regard should be had to the type of considerations identified in the recent authorities of the High Court (Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Perre v Apand (supra); Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540), I am satisfied, for the reasons which follow, that the appellant owed the respondent a duty of care.
The appellant is the State of South Australia and it was undertaking a substantial planting programme. It was likely that for the foreseeable future the land would remain in the same condition and in public ownership. The appellant was aware of the nature of the soil in the area, being black earth soil over Hindmarsh clay, and it was aware of the propensity of such soil to be highly reactive to moisture change. It was well-known at the time that the planting of trees, particularly Australian natives, and particularly in clay soil, may result in soil desiccation. It is implicit in the fact that the judge did not criticise the landscape plan that the task could have been carried out in a way which achieved the appellant’s purposes and yet caused no damage to the respondents. The Court was asked to hold that the appellant owed a duty of care to its neighbours at the time of the plantings were placed in the ground and in those circumstances no question of indeterminacy of liability arises. The appellant had control in the sense that it could decide where and what it planted on its land and the respondents were vulnerable in that, in a practical sense, there was little they could do to prevent the encroachment of the roots. This case may be distinguished from Woolcock because the innocent party here is the original owner and the case is not complicated by a contract between the alleged tortfeasor and the original owner (see also Bryan v Maloney (1995) 182 CLR 609).
In terms of policy considerations, I do not think that there are compelling reasons not to impose a duty of care. I have already referred to circumstances in which an innocent party, absent the imposition of a duty of care, would be left without a remedy. The imposition of a duty of care may mean that a prior owner is held liable some years after the event, but he would only be held liable if, at the time of planting, there was a foreseeable risk of injury and he failed to act as a reasonable person would, bearing in mind that in our community the planting of trees and vegetation is generally considered both appropriate and desirable. Furthermore, in effect there will be a further control mechanism in that many years after the planting of the trees and shrubs the injured party is likely to experience considerable difficulty in proving that his damage was caused by the acts of the person who planted the trees and shrubs.
The judge was correct to hold that the appellant owed a duty of care of the nature he identified to the respondents.
I turn now to consider whether the appellant acted in breach of the duty of care it owed to the respondents.
Breach of duty
The judge defined the duty of care as a duty to take reasonable steps to ensure that the plantings were of appropriate genera and species, were in appropriate numbers and were spaced at such intervals from each other and from the southern boundaries of No 7 and No 8 as to ensure that their roots were not likely to encroach upon No 7 or No 8 and cause desiccation beneath either property.
The appellant was aware that the plantings and the dwellings were on black earth soil and that such soil is highly reactive to moisture change. It is prone to cracking and drying and gilgais, or natural depressions which collect water, can be present. The appellant was also aware, or ought to have been aware, at the time the plantings were put in the ground, of the risk posed in planting native trees or shrubs in the linear park in positions too close to structures. B C Tonkin and Associates, consulting engineers, wrote in July 1988:
In addition, during discussion with Mrs Simionato, mention was made of the intention of the Authority to plant trees in the vicinity of the southern boundary of their property. It is recommended that the selection of flora to be planted is made judiciously as the effect of trees dewatering soil is a major contributor to cracking in Adelaide houses. It is therefore important that should this course of action be pursued by the Authority responsible, it accounts for this fact in the determination of what is to be planted, and where it will be placed in relation to the Simionato’s [sic] residence.
Although it is not entirely clear, as I read the judge’s findings, he does not find any fault with the landscape plan prepared by Mr Dexter. Rather it is the departures from that landscape plan which constitute the breaches of duty. That observation is subject to one possible qualification. The judge criticises the appellant in relation to the watering of the plantings once they had been placed in the ground. The judge said that the appellant should have realised that there was a substantial risk that once watering ceased the roots of the planted species would migrate in search of moisture sources. It is not clear to me whether this comment is based on what was actually planted, including the departures from the landscape plan, or is a free-standing criticism that applies even if the landscape plan had been complied with in every respect. I propose to treat the criticism as in effect a statement by the judge that, having planted what was planted, the appellant could have prevented the damage by continuing to water the plantings and by advising the council to do the same.
The judge found that in three respects there was non-compliance with Mr Dexter’s landscape plan.
First, although some of the varieties specified in the landscape plan were planted, other varieties known to be “thirsty” and not specified in the plan were planted. This came about because there was a failure by the appellant, or by its servants and agents, to comply with the provisions of the plan. The appellant challenged the judge’s conclusion by submitting that the respondents had not proved that the plants inspected by Ms Helen Smyth, technical officer at the State Herbarium of South Australia, were plants taken from the area immediately adjacent to the southern fences of No 7 and No 8 Kevin Road and, even if they had, the identification by Ms Smyth of the plants produced to her was not sufficiently precise to enable the conclusion to be drawn that the plants not specified in the landscape plan were thirsty and more likely to cause a problem than the plants which were specified.
The first challenge involves a consideration of a passage of evidence given by the third respondent. It is in the following terms:
Q At around this time in 1996 did you take any samples of the plants.
AYes, I did. It was under instruction from my engineer to get some cuttings of the shrubs.
QWhere did you go to get the cuttings.
AI went to the O’Bahn Busway, the section that was adjacent my fence line.
QWhat did you do.
AI then took them to Lasscocks Garden Centre and saw one of the gentlemen there and asked him to please identify them for me and give them names.
QHe did identify plants for you.
AYes, he did.
QI think you subsequently also provided plant samples to the Botanic Gardens.
AThat’s correct. Further down the track I took the exact same samples I took to Lasscocks and took them to the Botanic Gardens to give them a more precise name and to describe the plants.
QIf you could just have a look at Exhibit P8, I would like you to look inside the manila folder. Can you indicate to his Honour what you have in there.
AYes, it is a piece of cardboard that I got that I stuck the clippings on. These were all the different types of bushes that were literally planted in a thick hedge along my property and my parents’ property.
The appellant’s submission was that “further down the track” in this passage meant not some time later but rather further down the track and away from the plantings adjacent to the southern fences of No 7 and No 8 Kevin Road. I reject this submission for a number of reasons. First, I would be slow to disagree with the judge’s interpretation of the evidence. He saw and heard the evidence being given and had a full appreciation of the context in which it was given. Secondly, in context the more natural interpretation of the evidence is that adopted by the judge, namely, that “further down the track” meant some time later. Thirdly, even if “further down the track” refers to a geographical area, the samples which were taken from the different geographical area were the “exact same samples” and therefore the point does not assist the appellant.
The second submission is not so easily disposed of. It is true that Ms Smyth was not able to identify some of the specimens to species level, and that there was evidence before the judge that different species of the same genus may vary considerably in terms of their growth rates and therefore their root spread. It is also true that it is not possible to link precisely the specimens identified by Ms Smyth with the trees identified in the evidence as trees likely to cause damage to footings and foundations. The evidence does support the conclusion that certain varieties of Acacia and Grevillea are likely to cause such damage. Nevertheless, I reject the appellant’s submission. There can be no doubt (once the appellant’s first submission is rejected) that varieties of trees and shrubs were planted in the areas immediately adjacent to the southern fences of No 7 and No 8 Kevin Road which were not specified in the landscape plan. The roots of the plantings spread to the areas beneath those properties and caused desiccation. Either the varieties specified in the landscape plan were carefully chosen and the other varieties caused the damage or the varieties specified on the landscape plan were not carefully chosen. Either way I think it was open to the judge to conclude that the particular varieties of plants planted were not appropriate and in that regard the appellant was in breach of its duty of care.

The judge also placed weight on the planting of the eucalypt tree so close to the southern boundary of No 8 Kevin Road and said that its roots were destined to penetrate the area beneath No 8. This tree is referred to in some of the experts’ reports, although at one point in the evidence counsel for the respondents seems to say that it is not part of the respondents’ case. It is difficult to see what prejudice the appellant would suffer if the respondents are able to rely on the planting of this tree, but as I am of the view that the judge’s conclusion that the appellant acted in breach of duty can be supported on other grounds, it is unnecessary for me to resolve the point.
The second area of non-compliance with Mr Dexter’s landscape plan found by the judge was that the plantings were placed too close to the southern fences of No 7 and No 8 Kevin Road. I mention one point at this stage although it has more relevance to the third area of non-compliance found by the judge. The judge appears to have misread the landscape plan in terms of identifying the plants to be placed to the south of No 8 Kevin Road. He has incorrectly identified those plants as a group of trees and shrubs which were in fact to be planted in a section marked “A” on the plan which is an area further to the south-west and not immediately south of No 8 Kevin Road. This had led him to say, incorrectly, that the plan does not identify any spacings for the plantings immediately to the south of No 8 Kevin Road. Nevertheless, the important point in terms of this alleged breach is the judge’s finding that a number of plants were placed within one metre of the southern fences of the properties. I have read the evidence of the second and third respondents and Mr Dexter on this point and I see no reason to interfere with the judge’s conclusion. It was a conclusion which was open to him on the evidence.
The third area of non-compliance with the landscape plan found by the judge was in the number of trees and shrubs planted. The judge said that it seemed to him that it was a matter of commonsense that the number of trees and shrubs planted bore a direct relationship to their desiccating capacity. It is not that conclusion which is challenged, but rather the conclusion that some ninety trees and shrubs were planted to the south of No 8 Kevin Road when the landscape plan made provision for some 66 trees to be planted in that area. The judge’s conclusion that 66 trees and shrubs were to be planted in that area results from his misreading of the plan to which I have previously referred. On the evidence it is not possible to be precise as to what the plan provides as to the number of shrubs to be planted in the area where the 90 stumps were found. I do not think the judge’s conclusion that greater numbers than that specified in the plan were planted should be upheld in relation to the area south of No 8 Kevin Road. There were slightly more shrubs planted to the south of No 7 Kevin Road than that specified in the landscape plan. There is no reason to interfere with that finding although the difference does not appear to be significant.
I would uphold the judge’s findings as to breach in relation to the varieties of trees and shrubs planted and in relation to their proximity to the southern fences of the two properties. I think that the judge erred in finding that there was a breach because greater numbers of trees and shrubs were planted than specified in the landscape plan. Nevertheless, I am satisfied that the breaches of duty which I have upheld were causative of the desiccation of the areas under No 7 and No 8 Kevin Road and, therefore, of the respondents’ loss and damage.
I turn now to consider the appellant’s challenge to the award of damages in favour of the first and second respondents and the award of damages in favour of the third respondents.
Damages
I start with the simpler of the two awards, namely, the award in relation to No 8 Kevin Road. The judge found that as a result of the appellant’s breach of duty, work in the nature of plastering and painting was required in relation to No 8 Kevin Road. That work had not been done as at the date of trial. The cost of the work if carried out in February 1998 was $10,910. The judge awarded the cost of the work if carried out in March 2003. The judge considered that he was entitled to do that having regard to certain observations of Mason CJ in Johnson v Perez (1988) 166 CLR 351 at 355, 358 and 360. The appellant submitted that the first and second respondents failed to mitigate their loss because they should have carried out the remedial work in February 1998. The second respondent was asked why she had not carried out the work earlier and she said:
Q     Why didn’t you go ahead and fix it.
A     Why didn’t we go ahead and fix it?
Q     Yes.
A     How would we prove it to you that the damages would have been there?
Q     Is that the reason why you didn’t do any repair work.
AOf course, because we can’t talk. We have to show you and we have been showing you since day one about the O’Bahn and we [are] still showing you and still not getting nowhere.
The appellant’s argument may be put in another way and that is that the judge erred in failing to apply the general rule that damages for tort are to be assessed at the date of breach (Johnson v Perez (supra); Miliangos v George Frank (Textiles) Ltd [1976] AC 443. In a number of cases, of which this is one, that is but another way of approaching the same issue and in that regard I refer to the observations of Donaldson LJ in Dodd Properties Ltd v Canterbury City Council [1980] 1 WLR 433 at 457 (see also Alcoa Minerals of Jamaica Inc v Broderick [2002] 1 AC 371).
The general rule is not an inflexible rule as the authorities in Australia and England make clear (Johnson v Perez (supra) per Mason CJ at 355 - 356; Wilson, Toohey and Gaudron JJ at 367; Deane J at 380; Dawson J at 386; Alcoa Minerals of Jamaica Inc v Broderick (supra) at 378; McGregor on Damages (17^th ed, 2003), [34 – 016] - [34 – 017]).
It seems that an important reason for not applying the general rule in this case, or for holding that the appellant has failed to discharge the onus of showing that the first and second respondents have not taken reasonable steps to mitigate, is the fact that throughout the relevant period the appellant denied liability. That is not to say that in every case where there is a denial of liability the cost of repairs as an item of loss will be assessed as at the date of trial. All the surrounding circumstances must be examined and in this case there were other considerations suggesting that an assessment of the cost at the later date was appropriate. First, this case raised difficult causation issues and a need to compare the damage to the dwelling in terms of cracking before the trees and shrubs were planted and the damage some years later. Secondly (although this point mainly relates to No 7 Kevin Road), it appears that the appellant was contending that the respondents should have undertaken a rewetting programme recommended by Dr Mitchell, a consulting engineer called by the appellant. In all the circumstance of this case it was not unreasonable for the first and second respondents not to carry out the remedial work at the earlier time.
In addition to the award for the cost of the remedial work, the judge awarded the first and second respondents’ damages for a diminution in the capital value of the dwelling even with the remedial work carried out. In doing so he relied on the evidence of a land valuer called by the respondents, Mr Paul Horner. Mr Horner in a written report valued the property, with no works to be carried out, in the sum of $210,000. He said that the diminution in capital value even with the repairs carried out was 10 per cent of this figure. The appellant submitted that Mr Horner’s figure of $210,000 was based on the assumption that no works were to be carried out whereas in fact the reports about the condition of the dwelling before the damage caused by the plantings showed that works would have been necessary irrespective of the damage caused by the plantings.
The judge’s conclusion was that up to and as at July 1988 the cracking to No 8 Kevin Road was negligible or very slight. The judge seems to have proceeded on the basis that the cracking before the plantings was not significant and that “no works to be carried out” meant works as a result of the damage caused by the plantings. I see no reason to interfere with that conclusion. I would not interfere with the judge’s award of damages in relation to No 8 Kevin Road.
I turn now to the award in relation to No 7 Kevin Road. The appellant accepted that the judge was right to award the diminution in the capital value of the property but submitted that he erred in awarding in addition thereto the rectification costs. I pause to make a point about terminology. What I will call rectification costs are what the judge called building costs and what are in effect the costs of repairing the dwelling at No 7 Kevin Road. They are to be distinguished from rebuilding costs which are the costs of demolishing the dwelling and building another dwelling in its place. The third respondent submitted that the judge was right to award the rectification costs, and that he was right to award in addition to that amount an amount for loss of capital value.
Before dealing with these submissions, it is appropriate to consider the evidence and the findings that were made in light of the evidence.
The judge found that the third respondent purchased No 7 Kevin Road in 1980 as an investment. She has never lived in the dwelling on the property and she let it out more or less continuously from 1980 to 1995. It has remained unoccupied since 1995. The judge found that the fact that the dwelling on the property was unoccupied from September 1995 to the date of judgment was due to the appellant’s tort and he awarded loss of rental for the relevant period. The third respondent said that had she been able to she would have continued to let out No 7 Kevin Road after 1995 and at the same time, for other reasons, she would have looked for another property in which to live. She gave evidence that she had obtained quotes for the rectification of the dwelling on No 7 Kevin Road and quotes for the rebuilding of a dwelling on No 7 Kevin Road. She made it clear in her evidence that No 7 Kevin Road was purchased as an investment, or as she stated in her evidence, as “a rental property”.
Mr Horner also prepared a report and gave evidence in relation to No 7 Kevin Road. In his opinion, in December 2003, the value of No 7 Kevin Road with no repairs to be carried out was $188,000. In his opinion, the land value of No 7 Kevin Road was $90,000. Those figures mean that his valuation of the improvements on the property was $98,000. Mr Horner appears to express the opinion that even with the repairs carried out, the value of No 7 Kevin Road will not exceed the land value of $90,000. The judge took the view that that was the effect of his evidence because, in addition to the rectification costs of $133,923, he awarded a loss of capital value of $98,000.
On the evidence, the effect of the judge’s award of rectification costs of $133,923 and the loss of capital value of $98,000 is that the third respondent is awarded damages on the basis that the rectification work will add no value to the property. In other words, on the basis of Mr Horner’s evidence the value of the property without the rectification work is land value only and the value of the property with the rectification work carried out is again land value only.
Leaving aside any other consideration, there is a real question as to whether rectification costs should be awarded where the carrying out of rectification work will add no value to the land. The Court was concerned with whether the parties had made all the submissions they wished to on this point and after we had reserved our decision on the appeal we invited the parties to make further written and then oral submissions on this point. We received further written submissions and heard further oral submissions from the parties. In the course of those submissions the third respondent made an application to call further evidence as to the rectification costs. In assessing rectification costs the judge had had regard to estimates prepared in 2003. The third respondent submitted that building costs had increased far more than the interest awarded by the judge and this Court should receive estimates as of today and award damages for rectification costs on the basis of those estimates. The Court reserved its decision on the third respondent’s application to call further evidence of the nature indicated.
I have reached the conclusion that the judge should have awarded damages on the basis of loss of capital value and that he should not have awarded rectification costs in addition to that sum. In those circumstances, the third respondent’s application to call further evidence must be dismissed. Before explaining my reasons for that conclusion, there is one other matter I should mention.
There was suggestion by the third respondent in her further written submissions but not pursued by her counsel in the further oral submissions that, in the alternative, the third respondent could be awarded the rebuilding costs. There was evidence before the judge of the cost of rebuilding a dwelling on No 7 Kevin Road. That evidence was that as at February 2003 the cost of rebuilding a dwelling was $187,520. The judge did not adopt the cost of rebuilding as the appropriate measure of damages and the third respondent did not challenge the judge’s conclusion in this respect in her notice of alternative contentions. Furthermore, two of the engineers who gave evidence at the trial expressed the opinion that it was not necessary to demolish the dwelling. The rebuilding costs are not the appropriate measure of damages in this case.
For a time it was said that the normal measure of damages for torts affecting land is the diminution in value of the land. Whilst in many cases the torts have been trespass and nuisance, there is no reason to draw a distinction between those torts and the tort of negligence in this respect. The rule as to the normal measure of damages was established in the old case of Jones v Gooday (1841) 8 M and W 146; 151 ER 985. Since that case there have been a number of cases where the court has adopted the costs of reinstatement rather than the diminution of value. The position has now been reached where the court will award the higher cost of the reinstatement of the property if the claimant’s intention to reinstate the property is reasonable in the circumstances. Relevant factors to the question of what is reasonable include the claimant’s desire to reinstate the property, the difference between the diminution in value and the cost of reinstating the property, any unique features of the property, and the availability of comparable properties (McGregor on Damages (17^th ed, 2003), [34 – 001] – [34 – 018]). The issue was discussed by the Court of Appeal in Evans v Balog [1976] 1 NSWLR 36. Samuels JA (with whom Moffitt P and Hutley JA agreed) said (at 39 – 40):
In a case such as the present, involving tortious damage to a building, it cannot be said that the normal measure of damages is the amount of diminution in the value of the land and improvements. I agree with the analysis of the cases contained in the 13^th edition of McGregor on Damages, pp 711-713, pars 1059-1062, and see Minter v Eacott (1952) 69 WN (NSW) 93. The view that an equally admissible measure is the cost of reinstatement and restoration is supported by Hollebone v Midhurst and Fernhurst Builders Ltd [1968] 1 L1 R 38 and Harbutt’s “Plasticine” Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447. Mr Toomey endeavoured to distinguish Harbutt’s case [1970] 1 QB 447 on the ground that there the building destroyed was a factory vital to the maintenance of the plaintiff’s business. But it is in truth the controlling importance attributed to that fact in that case which establishes the validity of the reinstatement principle where the necessity of the case requires its application. Reliance was also placed upon Hutchison v Davidson 1945 SC 395. But there is nothing in that case which makes against allowing the cost of reinstatement where the circumstances are such that it is only by that means that fair compensation may be made. There is much indeed in the opinions of Lord Russell 1945 SC 395 at 403 et seq and Lord Moncreiff 1945 SC 395 at 409 et seq which supports it. As the learned author of McGregor on Damages says at 713, the case sustains what I take to be the true criterion of the selection between diminution of value and the cost of reinstatement. What he says is this: “The test which appears to be the appropriate one is the reasonableness of the plaintiffs’ desire to reinstate the property; this will be judged in part by the advantages to him of reinstatement in relation to the extra cost to the defendant in having to pay damages for reinstatement rather than damages calculated by the diminution in value of the land.
Hence, it is sometimes said that a plaintiff may have the cost of restoration provided that it is not disproportionate to the diminution in value: cf Public Trustee v Hermann (1968) 88 WN (Pt 1) (NSW) 442. This is merely an alternative way of stating the principle expressed in McGregor on Damages.
In Pantalone v Alaouie [1989] 18 NSWLR 119 (“Pantalone”), the collapsed building had been wholly removed and the total cost of rebuilding was $172,000, whereas the difference between the value of the land as vacant land and the original building was $116,000. Giles J referred to the relevant cases and cited the passage from Evans v Balog (supra) set out above. The principle Giles J adopted was that a claimant was entitled to the cost of reinstatement only if it is reasonable to have the property reinstated and restored. In Pantalone, the claimants had purchased the property as an investment. Giles J made the point that, in calculating the diminution of value, regard should also be had to the conveyancing costs of selling the property and purchasing a replacement property. He found that the property of the claimants was of a normal type and that there was nothing to suggest that a replacement property could not be purchased. Giles J concluded that the claimant’s understandable desire to rebuild was not reasonable having regard to the “fairly large additional cost” of $45,000 being the difference between the diminution in value ($116,000) and conveyancing costs ($11,000) on the one hand and the cost of rebuilding ($172,000) on the other. He awarded damages on the basis of diminution of value.
In Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14, Ambrose J (with whom Shepherdson J agreed) referred to authorities which said that the overriding requirement was what was reasonable. In that case the restoration costs were in the region of $60,000, whereas the reduction in value was between $16,000 and $17,000. Ambrose J said that the question is whether in doing justice between the plaintiff and the defendant it can be said that the cost of reinstatement of $60,000 was altogether disproportionate to the reduction in value of the land to be reinstated which was between $16,000 and $17,000. Ambrose J said the reasonableness of the plaintiff’s intentions in wanting to have their land restored was only one of the factors to be taken into account. He said (at 30):
It could seldom be said that the owner of land would ever be unreasonable in harbouring the wish to have his land reinstated to its condition prior to its tortious damage. The question is whether a court which must do justice between the plaintiff and the defendant is persuaded on the facts of any particular case that it is reasonable to require a defendant to meet the cost of reinstatement when that cost is out of all proportion to the loss in market value of the land.
Ambrose J concluded that it was not reasonable to allow restoration costs of $60,000.

Applying these principles to the facts of this case leads to the conclusion that the third respondent should be allowed the diminution in value and not the rectification costs. The third respondent bought the property as an investment property. At no stage has she expressed a wish to live on the property. There is very little evidence from the third respondent as to her intentions with respect to the property. She did not give evidence that she wished to repair the property or of the reasons why she would wish to do that. She did not give evidence of a desire to retain the property or of the reasons why she would wish to do that. This Court on appeal should not draw inferences as to those matters. There is no evidence that the property is unique or that an adequate replacement property cannot be found. There was no evidence of conveyancing costs. However, there would no doubt be conveyancing costs including stamp duty and to do justice between the parties I am prepared to make an allowance for those costs. It will be what I suspect is a conservative allowance but that is justified in view of the lack of evidence on the point. I will allow $8,500 for conveyancing costs. Even allowing figure of $8,500 for conveyancing costs, the disparity between the diminution of value and the rectification costs is, when coupled with the other factors I have mentioned, such that it is not reasonable to award the higher figure for rectification costs.
Counsel for the third respondent submitted that the proximity of No 7 Kevin Road to No 8 Kevin Road was a unique feature of the property. In other words, the third respondent owned a property close to her parents’ property. I reject that submission. The third respondent did not give evidence that she wished to retain No 7 Kevin Road and she did not give evidence that she wished to retain No 7 Kevin Road because it was close to her parents’ property.
In my opinion, the judge should have awarded the loss of capital value of $98,000 and conveyancing costs, including stamp duty, of $8,500, but not the rectification costs of $133,923. That makes it unnecessary for me to consider a number of the alternative submissions put to us by the parties. However, for the sake of completeness I will deal briefly with those submissions.
Assuming contrary to my conclusion that the proper measure of damages was the rectification costs, the appellant submitted the third respondent failed to mitigate her damages by carrying out the rectification work in 1998 or 1999. The argument here was similar to the argument put in relation to the claim for rectification costs by the first and second respondent. The judge found that the third respondent had capital or access to capital at the earlier time but he rejected the appellant’s submission for the following reasons:
(1)her actions, both against the Council and subsequently against the State, had at all times been strongly defended and she had, indeed, failed against the Council because it successfully argued a statutory protection;
(2)there had been no ready consensus as to the appropriate method of rectification and, indeed, the difference of opinion between engineers as to the need for underpinning confronted her with difficult choices. It was reasonable, as I find it, for her to await the outcome of the litigation;
(3)she says, and I accept, that she has been reluctant to expend substantial capital sums in circumstances where the cost of this litigation and the litigation against the Council had been considerable, ongoing and not able to be properly estimated.
I have already referred to the relevant authorities. I think the judge was right and had it been necessary for me to decide the point I would not have interfered with his conclusion.
For its part, the third respondent submitted that she should be permitted to rely on fresh or further evidence of building costs as at today. The proposed further evidence seems to satisfy some of the requirements laid down in the cases for the admission on appeal of further evidence. However, it is open to argument as to whether it falsifies an assumption made by the trial judge in the relevant sense (Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361 per Doyle CJ and Perry J at 371 – 374) and the question raises issues as to the conduct of the parties to the action between the trial and the appeal. I prefer to express no opinion on the issue because it is not necessary for the decision in this case. The third respondent’s application to call further evidence must be dismissed because she is not entitled to an award for rectification costs.
Again, assuming my conclusion that the proper measure of damages is the diminution in value is wrong, the third respondent submitted that in addition to rectification costs she entitled to an award for diminution in value. As a matter of principle I see no reason why, depending on the circumstances of the particular case, a claimant cannot recover in addition to an award for rectification costs an allowance for diminution in value. Indeed the first and second respondents received an award for both and that conclusion is not challenged. There is little authority on the point. In Bunclark v Hertfordshire County Council (1977) 243 EG 381 an award for restoration costs was made and what appear to be small allowances for loss of value by reason of the fact that the building now had what the judge called a “bad reputation”. The difficulty in this case had it been necessary to decide the point is that there is no evidence upon which a loss of value could be determined. Mr Horner’s evidence is of no assistance in this regard because he seems to be saying the building would have no value whether it was repaired or not. If I were to award an allowance for loss of capital it would be no more than a guess and it would not be appropriate to proceed on that basis.
I would uphold the award of damages for loss of capital value of $98,000 and I would allow a sum of $8,500 for conveyancing costs, including stamp duty. I would disallow the award for building costs of $133,923 and the award of interest on this sum of $6,700.
There is no reason to interfere with the award for loss of rental. The award of general damages of $3,000 was challenged by the appellant on the basis that the rectification work should have been carried out earlier. In view of the approach I have taken to damages that challenge must fail.
Conclusions
The appeal by the State of South Australia in relation to the award made in favour of the first and second respondents must be dismissed. The appeal by the State of South Australia in relation to the award made in favour of the third respondent must be allowed and the judgment sum reduced from $318,693 to $186,570. The third respondent’s application to call further evidence must be dismissed. The parties should be heard on the question of costs.