YOUNG & HAMMOND (Civil Dispute)

[2012] ACAT 30

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

YOUNG and HAMMOND  (Civil Dispute) [2012] ACAT 30

XD 11/1804

Catchwords:             CIVIL DISPUTE – whether Territory law applies to a tree on a Crown lease – absence of legislative power to order the removal of a dangerous tree –injunction (quia timet) to abate private nuisance – trespass to land – rule in Rylands v Fletcher – tort of negligence – Tribunal’s power to issue an injunction for the removal of tree

List of legislation:     ACT Civil and Administrative Tribunal Act 2008, ss 15, 22

A.C.T. (Planning and Land Management) Act 1988, ss 29 and 30, and Part V
Australian Capital Territory (Self-Government) Act1988 (Cth), ss 7,27, 28 , 34 and 36

Australian Constitution, ss 111, 122 and 125

City Area Leases Ordinance 1924

Civil Law (Property) Act 2005

Civil Wrongs Act 2002, s 43

Lands Acquisition Act 1906 (Cth)

Land (Planning and Environment) Act 1991 (Repealed)

Lease Act 1918

Leases (Special Purposes) Act 1925

Magistrates Court Act 1930, s 260

Planning and Development Act 2007, ss 10, 359, and Part 4.3

Real Property Act 1925 (Repealed)

Seat of Government Acceptance Act 1909, ss 6 and 7

Seat of Government (Administration) Act 1910, ss 4, 9 and 11

Seat of Government (Administration) Act 1910, s 5

Real Property Act 1900 (NSW)

Tree Protection Act 2005

List of regulations:    Utility Networks (Public Safety) Regulation 2001 (ACT), s 25

List of cases: Burnie Port Authority v General Jones Pty Ltd
 (1994) 179 CLR 520

Burton v Winters [1993] 1 WLR 1077

Canberra Drag Racers Club Incorporated v Australian Capital Territory and Commonwealth of Australia [2000] ACTSC 61

Classic Constructions (Aust) Pty Ltd v Conservator of Flora and Fauna [2006] ACTSC3 (30 January 2006)
Creamers v Attorney-General (Tas) [1966] Tas SR 113 (FC)

Donoghue v Stevenson [1932] UKHL 100

Farley & Lewers Ltd v Attorney General (NSW) (1962) 63 SR (NSW) 814; 80 WN (NSW) 1693; [1963] NSWR 1624

Jaensch v Coffee 1984] HCA 52

Kelsh v Imperial Tobacco Co [1957] 2 QB 334

L’Estrange v Brisbane Gas Co [1928] St R Qd 180

Lemmon v Webb (1894) 3 Ch 1

Madden v Coy [1944] VLR 88

Mendez v Palazzi (1976) 68 DLR 582

Munro v Southern Dairies Ltd [1955] VLR 332

Plenty v Dillon (1991) 171 CLR 635

Rylands v Fletcher (1868) LR 3 HL 330

Shelfer v City of London Electric Lighting Co [1895] 1 Ch 283

Young v Wheeler [1987] Aust Torts Reports 80-126

Wheery v KB Hutcherson Pty Ltd [1987] Aust Torts Reports 80-107; 919860 4 BCL 164 (NSWSC)

List of Texts:            McGlone and Stickley Australian Tort Law 2^nd Ed, 2009 Lexis

Tribunal:                  Mr A. Anforth,  Senior Member

Date of Orders:  9 May 2012
Date of Reasons for Decision:         9 May 2012

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 1804 of 2011

BETWEEN:

WILLIAM YOUNG & MARIA YOUNG

Applicants

AND:

PAT HAMMOND & BRIAN HAMMOND

Respondents

TRIBUNAL:            Mr A. Anforth, Part-time Senior Member

DATE:  9 May 2012

ORDER

1.The Respondents are ordered to permit the Applicants and the Applicants’ contractors to access their property for the purpose of removing the tree.

2.       

The Respondents are to pay the invoice for the removal of the tree, provided by

     

the Applicants, within 28 days of receipt.

3.If there are any issues arising out of these orders, whether before, during or after the removal of the tree, either party may relist for further directions.

………………………………..

Mr A. Anforth

Senior Member

REASONS FOR DECISION

Overview

1.This case concerns a large diseased tree (Eucalyptus bicost) located in a suburban block in Canberra that is in danger of falling. The tree partly overhangs the neighbours’ land and should it fall there is a real and immediate risk that it will fall on the neighbours’ house and otherwise endanger the occupants and visitors to the neighbours’ house.

2.The Applicants in these proceedings are the neighbours, and the Respondents are the registered proprietors of the block upon which the tree is located.

3.The Applicants wish the tree removed. Permission for its removal has been obtained from the ACT Conservator of Flora and Fauna (the Conservator) under the Tree Protection Act 2005. The Respondents have no issue with the removal of the tree per se but decline to fund the cost of the removal. The Respondents assert that the tree is a Commonwealth asset and, therefore, the Commonwealth or ACT government should bear that cost. The Respondents further contend that there is a Constitutional barrier precluding the Tribunal making orders in relation to the tree.

4.Whilst the Tree Protection Act 2005 provides permission for the removal of a dangerous tree it does not provide any power to compel the removal of a dangerous tree. Thus, so long as the Respondents decline to act upon the permission by the Conservator to remove the tree, the danger to the Applicants remains.

5.The Applicants have commenced the present proceedings before the Tribunal, seeking orders for the removal of the tree at the Respondents’ cost.

6.The parties are both unrepresented.

The history of the proceedings:

7.On 28 November 2011, Bill and Maria Young (“the Applicants”) lodged an application with the Tribunal that set out at length the history of the dispute and the orders sought. There were various documents annexed to the application including:

(a)    

a copy of the decision of the Conservator giving permission for the removal

 

of the tree;

(b)     

copies of various legal advice obtained by the Applicants to the effect that

  

the tree constitutes a ‘nuisance’ at common law;

(c)      quotes for the removal of the tree;

(d)       correspondence between the parties; and

(e)       photographs of the site, including the houses and the tree.

8.The tree is located in the North/West corner of the Respondents’ property (Block 12, section 3, Hughes), with its trunk approximately 30cm from the Applicants’ property (Block 11, Section 3).

9.The Applicants claim that one of the tree’s large branches also overhangs ActewAGL power lines.  The Utility Networks (Public Safety) Regulation 2001 (ACT), (section 25), specifies that a tree must have a minimum clearance of 1.5m from an aerial conductor.

10.

The ACT Tree Advisory Panel reports of 28 July 2011 and 26 March 2010, and the decision of the ACT Conservator of Flora and Fauna (“Conservator”) of

6 April 2010, recommended that the tree be removed because it posed an ‘unacceptable risk to public or private safety and the location of the tree is inappropriate given its potential size and growth habitat’.

11.The Conservator has not granted approval for major pruning of the tree as it would not reduce the existing ‘unacceptable risk’.

12.In May 2011, the Respondents wrote to the Applicants’ solicitors acknowledging that the tree posed a risk. However, the Respondents asserted that they were not responsible for its removal because it was a ‘Commonwealth asset’.

13.The Applicants defined their cause of action in their application in the following manner:

(i)that the Applicants are constantly concerned about the likely risk of branch failure and possibility that such failure may cause substantial damage to the Applicants’ property and/or injury to the Applicants’ family or visitors to the property;

(ii)that the Applicants are regularly required to clear an excessive amount of debris from the tree off his property;

(iii)that the Applicants cannot complete their northern yard landscaping given the likely risk of damage to the landscaping caused by tree failure; and

(iv)that the Applicants cannot mitigate the nuisance caused by the tree.

14.The Applicants sought the following orders:

(i)The Respondents give the Applicants, and ACTEW Accredited tree removal contractors (“Contractors”) engaged by the Applicants, permission to access its property at 39 Glasgow Street, Hughes, for the purpose of removing the tree.

(ii)The Respondents reimburse the Applicants for the cost of removing the tree within 28 days of receiving the invoice from the Applicants.

15.On 3 January 2012, the Respondents filed a short Response to the Application in which they asserted that the tree was the property of the Commonwealth and, therefore, its removal was an issue for the Commonwealth. The Respondents contended that the Crown Lease issued to them in 1964 specifically precluded any interference by them with the trees on the block and that the Tribunal lacks Constitutional power to deal with the matter.

16.The dispute was not resolved via the Tribunal’s conferencing processes and was listed for hearing on 7 March 2012.

17.On 21 February 2012, the Respondents filed with the Tribunal a transcript of the Auction Notice of December 1964 advertising the Respondents’ block for sale (of the Crown Lease). The Notice relevantly read:

Each lease will at all times be subject to the laws in force in the Territory and special attention is invited to the City Area Leases Ordinance 1936-1964…

The National Capital Development Commission is desirous that where practical standing trees be preserved. Officers of the Parks and Gardens Section of the Department of the Interior will be prepared to advise lessees in this regard and particularly how trees to be retained can, if necessary, be trimmed to accommodate building plans.

18.On 7 March 2012, both parties appeared in person, unrepresented. The parties each outlined the nature of their case. It was common ground that the tree was dangerous and needed to be removed. It was not common ground who should meet the cost of that exercise.

19.The Respondents raised the issue of the jurisdiction of the Tribunal to hear the dispute about on the removal of the tree in question because the tree was said to be a Commonwealth asset and the Tribunal lacked the jurisdiction to make any order against the Commonwealth and lacked the jurisdiction to order the Respondents to unlawfully interfere with a Commonwealth asset.

20.The Tribunal identified to the parties the lack of any power in the Tree Protection Act 2005 to compel the removal of a dangerous tree, and indicated that its researches had failed to identify any other statutory power to compel the removal of the tree. If this were the case, then the matter may turn entirely on such common law rights as the Applicants possessed.

21.It was agreed between the parties and the Tribunal that an approach be made to the ACT Government Solicitor to invite its appearance, amicus curie, to assist with identifying any relevant statutory power. The proceedings were adjourned and the Tribunal wrote to the ACT Government Solicitor in these terms.

22.The ACT Government Solicitor responded and declined the invitation to assist the Tribunal.

23.The hearing was reconvened on 23 March 2012 at which time the parties both appeared. Neither party had anything more to add to their previous written submissions.

Issues

24.The issues are whether:

(i)the Tribunal has the power under any relevant statute or at common law, to order the Respondents as Crown Lessee to remove the dangerous tree; and

(ii)the Respondents can be compelled to remove the tree at their own expense.

25.These issues raise the sub-issues of whether:

(a)     there is any substance to the Respondents’ contention that there is a Constitutional barrier to the Tribunal making orders in relation to the tree; and

(b)     the Tribunal has jurisdiction in tort to hear an action in tort (nuisance) for the removal of the tree.

The land tenure system in the ACT

26.In order to address the Respondents’ contention that the Tribunal lacks of the Constitutional capacity to deal with the tree, it is necessary to briefly consider the Constitutional nature of the land tenure system in the ACT.

27.Section 125 of the Australian Constitution provides for the setting up of the ACT as the seat of federal government.

28.Section 111 of the Constitution provides that a state may surrender land to the Commonwealth after which the land is subject to the exclusive jurisdiction of the Commonwealth. Then section 122 provides for the Commonwealth to make laws for the government of a Commonwealth territory.

29.The ACT was established in 1911 by the Seat of Government Acceptance
Act 1909 (SGA Act) which came into force by proclamation on 22 January 1910. This Act set out the boundaries of the land comprising the ACT (911 sq miles) and recorded the agreement between the Commonwealth and NSW for the ceding of the land to the Commonwealth.

30.Section 6 of the SGA Act provided for the continuation of NSW laws in the ACT until further statutory provision was made by the Commonwealth.

31.At the time the ACT was created out of NSW, it not only inherited prevailing NSW statutes, but it also inherited the NSW common law as it then stood.

32.Section 7 of the SGA Act provided that all interests in land in the ACT at the time of ceding of the land to the Commonwealth are to be held from the Commonwealth i.e. the lands become crown grants from the Commonwealth.

33.Section 9 of the Seat of Government (Administration) Act 1910 precluded any further grants of freehold in the ACT.

34.

Sections 4 and 12 of the Seats of Government (Administration) Act 1910 provided for the Governor General to make Ordinance for the governance of the ACT. This power was in addition to the power of the Commonwealth Parliament to legislate directly for the ACT. These statutes were referred to as Ordinances until

11 May 1989 (until self government), whereafter they are referred to as Acts. The transition in terminology was effected via section 5 of the Self Government (Citation of Laws) Act 1989 (Cth).

35.When the ACT was ceded to the Commonwealth, much of the land now forming part of the ACT was already held by people as common law titles, and as Torrens title under the Real Property Act 1900 (NSW). This land was progressively resumed by the Commonwealth under the now repealed Lands Acquisition Act 1906 and then the Lands Acquisition Act 1955.  The land was then re-granted as a crown lease under the Lease Act 1918 and Leases (Special Purposes) Act 1925. The last of the freehold titles in the ACT was acquired by the Cth in 1993.

36.The leasehold system in the ACT was consolidated in the City Area Leases Ordinance 1924 (later referred to as an Act). The leasehold system was based on 99 year lease tenure with some exception relating to diplomatic premises; churches (the Church Lands Leases Act 1924 gave indefinite tenure) and specific statutes for the universities (including the Canberra College of Advanced Education (Leases) Act 1977). These statues started their lives as “ordinances”.

37.The Real Property Act 1925 (originally an ordinance) repealed the application of the NSW Real Property Act 1900, and introduced the ACT’s own version of Torrens title. In 1995, that Act was renamed the Land Titles Act 1925 (LTA) and continues in force as amended. Part 9 of the LTA deals expressly with crown leases within the Torrens system and provides for a crown lease to have the characteristics of a Torrens Title. Once the crown lease is registered, a certificate of title issues for the land and the LTA then applies with the registered holder of the crown lease as the registered proprietor of the land.

38.The ACT government has consolidated the plethora of miscellaneous NSW and Commonwealth statutes that applied in the ACT in the Civil Law (Property)

Act  2005 which commenced on 27 March 2007.

39.From 1930, the ACT was administered by the ACT Advisory Council and the Minister for Territories. In 1974, this council became a fully elected Legislative Assembly advising the Department of the Capital Territory and, in 1979, became a House of Assembly of 18 elected members.

40.Self-government in the ACT was granted from 11 May 1989. Self-government was conferred by the Australian Capital Territory (Self-Government) Act1988 (Cth). Section 7 of the Self-Government Act established the ACT as a body politic, and section 8 established the Legislative Assembly. The Assembly was given broad powers to legislate for the good governance of the Territory but Territory statutes do not bind the Commonwealth (section 27) and are invalid to the extent of inconsistency with a Commonwealth statute (section 28). Section 36 established the Executive of the ACT comprising the Chief Minister and other Ministers.

41.Section 34 of the Self-Government Act converted all applicable NSW and Imperial statutes into ACT statutes which were then subject to repeal or amendment by the ACT Legislative Assembly.

42.Upon self-government the Commonwealth also enacted the A.C.T. (Planning and Land Management) Act 1988.

43.Part V of that Act regulated the relationship between the ACT and the Commonwealth in respect of the land in the ACT. In short, the land in the ACT is divided into “national land” and “territory land”. The former is land the Commonwealth has reserved for Commonwealth purposes and Territory land is the rest (Canberra Drag Racers Club Incorporated v Australian Capital Territory and Commonwealth of Australia [2000] ACTSC 61). The national lands include the Parliamentary triangle, the major Commonwealth office complexes in Belconnen, Woden, and Tuggeranong, and the defence installations.

44.Sections 29 and 30 A.C.T. (Planning and Land Management) Act 1988 reads:

29(1) The Executive, on behalf of the Commonwealth:

(a) has responsibility for the management of Territory Land; and

(b) subject to section 9 of the Seat of Government (Administration)       
  Act 1910, may grant, dispose of, acquire, hold and administer
   estates in Territory Land.

(2)The Executive shall perform its functions under subsection (1) subject to enactment and in accordance with the principles:

(a) that new estates in Territory Land shall be granted only in    
     accordance with procedures that are notified to the public; and

(b) that appropriate classes of decisions relating to the
     administration of estates in Territory Land shall be subject to
      just and timely review without unnecessary formality.

(3) The term of an estate in Territory Land granted on or after
  Self‑Government Day shall not exceed 99 years or such longer
   period as is prescribed, but the estate may be renewed.

(4) The Authority may intervene in any proceedings for review of a
      decision relating to the administration of an estate in Territory
       Land.

30(1) Where, apart from this section, the Commonwealth would be
       liable in respect of an act done or omitted to be done by the
       Territory in the performance of its functions under section 29,
       the liability is vested in the Territory and ceases to be a liability
       of the Commonwealth.

(2)Where:

(a) a liability arises in respect of land at a time when it is
     Territory Land; and

(b) the liability arises from a covenant given by the
            Commonwealth at any time in its capacity as owner of the
              land;

the liability is vested in the Territory and ceases to be a liability
       of the Commonwealth.

45.Some of the key factors to note in the above provisions are:

(i)the ACT government does not own any of the land in the ACT, it merely manages it for the Commonwealth,

(ii)the ACT government has no role in the management of national land.

(iii)the Act may grant estates in Territory Land in the ACT,

(iv)the ACT government is liable for any civil wrongs committed as manager of the land for the Cth and the Cth has no liability for such actions.

46.The ACT Legislative Assembly enacted the Land (Planning and Environment) Act 1991 (LPE Act). This Act was intended to regulate the Crown leasehold system in the ACT and town planning. The Land (Planning and Environment)(Consequential Provisions) Act 1991 repealed the Leases (Special Purposes) Act 1925 and the Lease Act 1918 and the City Area Leases Act 1924 which had hitherto regulated the leasehold system in the ACT.

47.The LPE Act was repealed in 2007 and replaced with the Planning and Development Act 2007 (PD ACT).

48.The planning body for the ACT is the Planning and Land Authority (ACTPLA) (section 10 of the PD Act).

49.The power to grant and deal with Crown leases is contained in Part 9 of the PD Act, which are now referred to simply as ‘leases’.

50.Part 4.3 of the PD Act regulates what are referred to as ‘controlled activities’ which includes the pruning of trees (section 359) but not the removal of trees.

51.The standard crown lease issued by ACTPLA contains a series of covenants which are those typical of leases generally such as:

(i)a lease purpose clause limiting the use to which the land can be put,

(ii)the lessee’s duty to pay rent to the ACT if required to do so,

(iii)the lessee’s duty to maintain and repair buildings on the land,

(iv)a prohibition on erecting an buildings or structures on the land without ACTPLA consent,

(v)the right of ACTPLA staff to enter and carry out inspections, and

(vi)termination clauses for breach

52.There are other covenants not typical of leases generally, such as:

(i)a requirement to commence construction of the building approved for the land within 12 months,

(ii)restrictions on wood fire places, and

(iii)restrictions to single dwellings.

53.There is nothing in the Crown leases about removing trees.

54.On the basis of the above review, I conclude that:

(a)The Cth has not reserved any specific rights over trees on Crown leases of Territory land in the ACT;

(b)The ACT has full legislative power to deal with the issue of trees on Territory land in the ACT;

(c)The common law in relation to nuisance in the ACT is the common law of NSW as at 1911, as developed in the ACT since that date as part of the overall framework of the common law of Australia; and

(d)The holder of Crown lease in the ACT has the same rights and responsibilities in relation to fixtures on the land (including trees) as apply under NSW Torrens Title;

Statutory power to order the removal of the dangerous tree

55.There does not appear to be any such power in the ACT.

Action in nuisance:

56.Private nuisance. There are two forms of private nuisance:

(i)Unreasonable interference with the use and enjoyment of property; or

(ii)Material damage suffered as a result of the interference.[1]

[1] Creamers v Attorney-General (Tas) [1966] Tas SR 113 (FC), Burbury CJ at 122

57.This case is concerned with nuisance as an, ‘indirect, substantial and unreasonable interference’[2] with the Applicants’ use and enjoyment of their land. The factors to be assessed are whether:

[2] Munro v Southern Dairies Ltd [1955] VLR 332 at 335.

(i)there has been indirect interference with the use or enjoyment of the land,

(ii)the Applicants have suffered either physical damage or interference with their enjoyment of the land, and

(iii)there has been substantial and unreasonable interference with the use and enjoyment of the land, involving a consideration of the purpose of the Respondent’s behaviour, duration and gravity of the harm, locality and alternatives.

58.It is enough that there has been a substantial and unreasonable interference with the use of the land. It is not necessary that there has been actual damage to the land. An interference with the use of the land arising from the imminent threat of danger to the land is enough to constitute a nuisance[3].

[3] McGlone and Stickley Australian Tort Law 2^nd Ed, 2009 Lexis at [25.1][25.13]

59.The tree branches overhanging into the Applicant’s land constitute an indirect interference with his enjoyment of the land. I am satisfied on the evidence that the potential fall of the branches poses a ‘real and imminent risk’[4] which prevents the Applicant from enjoying his garden by exposing him, his family and any guests to the risk of injury from falling branches.

[4] Mendez v Palazzi (1976) 68 DLR 582

60.The size of branches which have previously fallen, being from 2 to 3m in length would probably cause serious personal injury or damage to the Applicant’s property. Although there is no evidence of damage which the Applicant has already sustained, the ongoing threat of injury or damage to property from falling tree branches can be properly said to have interfered with the Applicant’s ability to enjoy his land.

61.In addition to the branches that overhang, there is the main threat that the diseased tree will fall onto the Applicants’ land and house, potentially causing serious personal injury and property damage. This ever present danger causes the Applicants’ anxiety and apprehension in the use of their land.

Remedies for private nuisance at common law

62.There are three categories of remedy available to the Applicant:

(i)abatement of the private nuisance,

(ii)damages for the distress caused by the constant risk posed by the tree to the Applicant’s person, family and property, and/or

(iii)an injunction to compel the Respondent to cease the nuisance by removing the tree or to allow the Applicant to access the Respondent’s property for the purposes of removing the tree.

63.Abatement has been defined as,

(i)‘[...]the summary removal or remedying of a nuisance by the person injured without having recourse to legal proceedings...in the general law of nuisance the expression is used as referring to a method of self-help available to the injured person.’[5]

[5] Farley & Lewers Ltd v Attorney General (NSW) (1962) 63 SR (NSW) 814; 80 WN (NSW) 1693; [1963] NSWR 1624

64.Abatement is available in simple cases such as this, where the abatement would remove the nuisance and the cost of legal proceedings could not be justified.[6] ‘Abatement’[7] is not available to the Applicants in this case since they require the permission of the Respondents to enter the Respondents’ land and cut down the Respondents’ tree at the Respondents’ cost.

[6] Young v Wheeler [1987] Aust Torts Reports 80-126; Burton v Winters [1993] 1 WLR 1077

[7] Lemmon v Webb (1894) 3 Ch 1

65.The question of whether damages could be ordered in the place of an injunction was discussed in Shelfer v City of London Electric Lighting Co[8]. Damages are more appropriate where:

(i)injury to the plaintiff’s legal rights are small;

(ii)the damage can be estimated in monetary terms;

(iii)the injury caused can be adequately compensated by a money payment; and

(iv)it would be oppressive under the circumstances to grant an injunction.

[8] [1895] 1 Ch 283

66.In this case, damages would be inadequate to relieve the Applicants’ situation. It is entirely unsatisfactory to wait for the tree to fall, possibly killing someone and then to address damages as a remedy for the deceased’s family.

67.In L’Estrange v Brisbane Gas Co [1928] St R Qd 180, Blair CJ said,

(i)[W]here the Court interferes by way of injunction to prevent an injury [...] it does so upon two grounds, which are of totally distinct character. One is that the injury is irreparable...the other that the injury is continuous, and so continuous that the Court...restrains the repeated acts which would only result in incessant actions, the continuous character of the wrong making it grievous and intolerable.’

68.The Tribunal may order an injunction (quia timet) where a nuisance is continuous, such as the presence of the dangerous tree in the Respondents’ yard where the potential serious personal injury and property damage will be irreparable even though the nuisance has not caused any actual loss at this point in time.[9][10]

[9] Madden v Coy [1944] VLR 88

Trespass to the Applicants’ land

69.In the alternative to the tort of nuisance, the Applicants may have a cause of action in the tort of trespass to land in respect of the present overhanging limbs of the tree. This tort involves the direct and intentional interference with another’s possession of land, and is actionable per se. In Plenty v Dillon,[11] the High Court held that without the owner’s consent or a relevant license, it is impermissible to enter another’s land. For an action in trespass to be successful the action must be deliberate. There is no requirement to prove damage or loss as a result of the trespass.

[11] (1991) 171 CLR 635

70.Approximately 30 per cent of the Respondents’ tree projects into the Applicants’ land and the Applicants have not granted to the Respondents a relevant license or permission. In Kelsh v Imperial Tobacco Co,[12] trespass occurred where the defendant allowed an advertising board to project into the plaintiff’s property. On the same principle, the overhanging tree would constitute trespass to the airspace above the Applicants’ land.

[12] [1957] 2 QB 334

71.The overhanging limbs are not the main concern but they are still a concern. The Conservator has declined permission to prune the tree on the grounds that it will not cure the risk. The removal of the overhanging limbs can only be achieved by cutting down the whole tree.

Tort of negligence

72.In the further alternative the Applicants may put their case in the duty owed to them by the Respondents to prevent foreseeable harm to the Applicants and their property. There is considerable overlap between the torts of nuisance and negligence.[13]

[13] Ibid 3 at [25-56].

73.By way of example only in Classic Constructions (Aust) Pty Ltd v Conservator of Flora and Fauna, the Supreme Court found the Tribunal to have been in error  by declining to consider ‘future risk’ of a diseased tree falling. In that case the risk from falling limb was a ‘real risk’ and not a ‘fanciful, chance of injury in the foreseeable future’.[14] The risk of damage or injury to the Applicants and their property was such that the Respondents would be negligent if they failed to take reasonable measures to avoid that risk, as required by the well established principles in Jaensch v Coffee[15] and Donoghue v Stevenson.[16].

[14] [2006] ACTSC3 (30 January 2006)

[15] [1984]HCA 52

[16] [1932] UKHL 100

74.It may be that at law the tort of negligence in such cases has to await the serious injury or death of someone from a foreseeably dangerous tree before it is actionable, but there is little public policy merit in such a proposition.

75.Historically, the common law doctrine of Rylands v Fletcher[17] imposed strict liability on a landowner who keeps a dangerous object such as a diseased tree that will almost certainly fall causing damage to his neighbour. This meant that the landowner would bear responsibility or be prima facie responsible for the damage caused by the object kept on his land. The case has since been overruled by the High Court in Burnie Port Authority v General Jones Pty Ltd[18] on the grounds that it has been absorbed into the ordinary principles of negligence and was no longer applicable as a special rule of common law.

[17] (1868) LR 3 HL 330

[18] (1994) 179 CLR 520

76.Part 4.2 of the Civil Wrongs Act 2002 (section 43) sets out that ‘a person is not negligent in failing to take precautions against a risk of harm unless:

(i)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(ii)the risk was not insignificant; and

(iii)in the circumstances, a reasonable person in the person’s position would have taken those precautions.’

77.The crucial issue with respect to negligence is that in order to bring an action for negligence, the Applicants must have first suffered some injury. With the exception of possible mental health damage suffered as a result of the distress involved in the continued risk of injury, or damage to property, from falling limbs, there is no indication or suggestion of injury or property damage already suffered as a result of the Respondents’ failure to permit or arrange for the removal of the tree. 

78.The legislation is silent on the prospect of remedial action for a risk that is real and obvious but which has not yet materialised to cause tangible damage or injury. The legislative scheme does not provide for prospective damage or injury but is rather restricted to retrospective damage or injury and does not authorise the Tribunal to compel the removal of the tree by the Respondent.

79.The Respondents are cautioned that it is likely if damage to property or personal injury is suffered by the Applicants as a result of the Respondent’s tree falling, the Applicant could bring an action for negligence against the Respondents.

Tribunal jurisdiction

80.Section 15 of the ACT Civil and Administrative Tribunal Act 2008 confers jurisdiction on the Tribunal for actions in nuisance and trespass up to a limit of $10,000. The quotes for the tree removal are within this limit.

81.Section 22 of the ACT Civil and Administrative Tribunal Act 2008 provides that the Tribunal has the same jurisdiction as the Magistrates Court. Under the Magistrates Court Act 1930, the Magistrates Court also has the same jurisdiction as the Supreme Court to hear actions in nuisance[19] under part 4.2 of the Magistrates Court Act 1930, in relation to civil disputes.

[19] Magistrates Court Act 1930, part 4.2, sect 260 (1)

82.The Magistrates Court may also grant the same relief as the Supreme Court for an action in nuisance.[20] Therefore, the Tribunal has the jurisdiction to order an injunction to compel the Respondents to remove the tree at his own expense on the basis that the Applicants have satisfied a cause of action for private nuisance against the Respondents.

[20] Ibid., 260 (2)

Orders

83.The Respondents are ordered to permit the Applicants and the Applicants’ contractors to access their property for the purpose of removing the tree.

84.

The Respondents are to pay the invoice for the removal of the tree, provided by

the Applicants, within 28 days of receipt.

85.If there are any issues arising out of these orders, whether before, during or after the removal of the tree, either party may relist for further directions.

……………………………………..

Mr A. Anforth

Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      XD 11/1084

APPLICANT:                William and Maria Young
RESPONDENT:            Pat and Brian Hammond

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      

SOLICITORS:  APPLICANT:          

RESPONDENT:      

OTHER:  APPLICANT:          William and Maria Young

RESPONDENT:      Pat and Brian Hammond

TRIBUNAL MEMBER/S:        Mr A. Anforth, Senior Member

DATE/S OF HEARING:          23 March 2012           PLACE: CANBERRA

DATE/S OF DECISION:          9 May 2012                PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS:

[10] Wheery v KB Hutcherson Pty Ltd [1987] Aust Torts Reports 80-107; 919860 4 BCL 164 (NSWSC)