Semple v Wilson
[2018] NZHC 992
•9 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-176
[2018] NZHC 992
BETWEEN GLEN SEMPLE AND HEATHER SEMPLE
Plaintiffs
AND
BRUCE GAVIN WILSON AND AMANDA JANE WILSON
Defendants
Hearing: 16-20 April 2018 Appearances:
A G Rowe and ENH Harris for Plaintiffs
M Casey QC and J Armstrong for the Defendants
Judgment
9 May 2018
JUDGMENT OF GORDON J
This judgment was delivered by me on 9 May 2018 at 11 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Wells & Co, Auckland
Armstrong Murray, Auckland
Counsel: M Casey QC, Auckland
SEMPLE v WILSON [2018] NZHC 992 [9 May 2018]
Introduction
[1] The plaintiffs (the Semples) and the defendants (the Wilsons) live on neighbouring lifestyle properties at Dairy Flat north of Auckland. While they are neighbours, the relationship between the Semples and the Wilsons is far from neighbourly.
[2] The Semples claim that branches and roots from trees growing on the Wilsons’ property close to the boundary between the two properties constitute an actionable nuisance. They say they are the cause of physical damage to their property, they interfere with their use of their land and they are the cause of a significant loss of enjoyment of their land.
[3] In their first cause of action, the Semples seek a declaration that the trees be removed by the Wilsons at the Wilsons’ expense; a declaration that the roots that encroach onto their property be removed at the Wilsons’ expense; special damages; general damages and an inquiry by the Court into the full extent of the damage to their property following destructive testing.
[4] In the second cause of action, the Semples seek a mandatory injunction restraining the Wilsons from continuing or repeating the nuisances and a mandatory injunction restraining the Wilsons from permitting encroachment by the trees.
[5] The Wilsons, while accepting that there is encroachment by some branches and by some tree roots, say that this does not constitute an actionable nuisance.
The issues
[6] In order for the Semples to succeed in their claim for declarations and damages and/or an injunction, they must prove that there is an actionable nuisance. It is therefore necessary for me to determine whether the admitted encroachment by some of the branches of the boundary trees and/or the roots of those trees gives rise to an actionable nuisance.
[7] In the event that an actionable nuisance is proven, I will need to determine the appropriate relief.
Background
[8] The Semples purchased their property at 120 Blackbridge Road, Dairy Flat (No 120) in November 2012, with settlement taking place in January 2013.
[9] No 120 is approximately 2.2 hectares in size and is almost entirely covered in established bush, apart from a relatively small area at the front of the property in the north-eastern corner. That area (the living area) comprises a concrete driveway leading from Blackbridge Road, a two storeyed house, a swimming pool, a timber deck surrounding the swimming pool, and a grassed area beyond the swimming pool and deck.
[10] The Wilsons moved into their property at 118 Blackbridge Road (No 118) in April 2013. No 118 is approximately 1.85 hectares in size with some bush cover and paddocks used from time to time to graze horses. The house at No 118 is at the back of the property at the end of a driveway running from Blackbridge Road.
[11] The driveway on No 118 lies close to, and runs parallel to, the common boundary on the northern side of No 120. The driveway is unsealed and comprises two tyre tracks of gravel surrounded by grass.
[12] The relevant part of the boundary between No 118 and No 120 is marked by a post and wire fence. There is a timber privacy fence constructed on the Semples’ property running parallel to the wire boundary fence. There is a gap of around a metre between the timber privacy fence and the wire boundary fence.
[13] There are two rows of trees on either side of the driveway on No 118 running from Blackbridge Road to the area in front of the house. The furthest row of trees is
5.6 to 6 metres from the boundary. It is the row of trees closest to No 120 (the boundary trees) that form the subject of this action. There are 10 of them and they are typically between 5 to 10 metres apart. The trunk of each is approximately one metre from the common boundary.
[14] Both the boundary trees and the row of trees on the other side of the driveway at No 118 are deciduous European trees. They were planted two or more decades ago. In October 2016, they ranged in height from 10 to 12 metres. There was no precise evidence as to their current height, but Mr Semple estimated they would now be probably between 12 to 15 metres.
[15] Mr Semple’s evidence was that when they moved into No 120, the people who then owned No 118 allowed them to trim what Mr Semple described as the “substantially overhanging branches” of the boundary trees back to the trunk of those trees. The former neighbours also trimmed and maintained the boundary trees.
[16] Shortly after the Wilsons moved into No 118, they met the Semples and became friendly with them. Mr Semple raised the matter of the boundary trees and said they were causing problems with regard to leaves.
[17] The Wilsons agreed to the Semples trimming back some branches of the boundary trees at the Wilsons’ cost.
[18] Not long after that, Mr Semple asked the Wilsons to thin down a tree or trees to allow more sunlight into their property. The Wilsons agreed but on this occasion the Semples agreed to meet the cost.
[19] Sometime after that, and the date is not clear, Mr Semple said to Mr Wilson that they would be happier if the trees were gone completely because of the mess caused to their property. Then, in early July 2015, Mr Semple telephoned Mr Wilson and provided him with what Mr Semple called “a 30-day notice” of his intention to prune the branches of the boundary trees which overhung his property.
[20] Mr Wilson’s position in response was that they had no problem with branches being trimmed back to the boundary line, so long as Mr Semple ensured the works were carried out by an arborist, as the Wilsons were concerned that harsh or inappropriate pruning may threaten the boundary trees or otherwise not be as aesthetically pleasing. At this point, Mr Wilson asked Mr Semple to put any communications regarding the boundary trees in writing. Mr Wilson also instructed
solicitors at this point who wrote to the Semples setting out the Wilsons’ position as referred to above in this paragraph.
[21] In October 2015, a company called Treescape Ltd, which had been engaged by the Semples, attended at No 120 to cut back the branches from the boundary trees which were overhanging into No 120. Mr Semple says that Treescape Ltd were able to cut back the lower branches, but could not reach the overhanging branches in the canopy with the equipment they had.
[22] The once friendly relationship between the Semples and the Wilsons deteriorated to the point of open hostility. Things culminated in the Wilsons installing a security camera on their driveway and, on 25 May 2016, they applied for a restraining order under the Harassment Act 1997 against Mr Semple. Those proceedings eventually settled in August 2016, with Mr Semple signing an undertaking on 30 August 2016. In doing so, and in agreeing not to carry out certain acts, Mr Semple did not accept that there had been harassment by him or that he had committed most of the acts alleged in the proceeding. Although the affidavits in that proceeding were before me, it is not necessary for the purposes of this proceeding to traverse the allegations made by either side. To the extent that the affidavits described the properties, particularly the alleged encroachments and alleged damage, they are of assistance. The various photographs annexed are also useful.
[23] Returning to the undertaking signed by Mr Semple, it did not prevent “any lawful abatement in relation to part of any such tree which may be constituting a nuisance by virtue of overhanging the boundary into the Semple property”. There were conditions requiring notification of acts of abatement and requiring any abatement to be undertaken by a qualified arborist at Mr Semple’s cost.
[24] Mr Semple says that he has not, in fact, been able to cut back the overhanging branches in the canopy without accessing the Wilsons’ property and without the use of special equipment.
[25] The parties were unable to resolve the issues regarding the boundary trees and the Semples filed their proceeding on 8 February 2017, making their claim both in relation to the branches of the boundary trees and roots from those trees.
[26] Mr Semple acknowledges that he has not asked for access to the Wilsons’ property to trim the overhanging branches, but in the circumstances, he said they thought they would wait and proceed with the current proceedings which, as noted, seek the removal of the boundary trees.
[27] Mr Wilson says they were always open to reasonable proposals but they do not believe that removal of the trees is an acceptable remedy. He said they did not wish to waste money on expensive arboreal work trimming the overhanging branches back to the boundary if the boundary trees were going to be subject to an order that they be removed. He described his trees as being “on death row”.
The site at No 120
[28] Before moving to the detail of what the Semples say is the actionable nuisance, I will explain the layout of the living area of No 120 and the location of various structures on the site. To assist, I also annex to this judgment a copy of a site plan produced by Tony O’Brien, an engineer called as an expert witness for the Wilsons. The plan is not to scale.
[29] No 120 is accessed off Blackbridge Road. There is first a gravel section, most likely Council property. That gravel section then adjoins a concrete driveway coloured with McCallum chip and having an exposed aggregate surface.
[30] Between the driveway, on its northern side, and the timber privacy fence, there is a narrow planting strip for part of its length. There is a hedge in that planting strip. The driveway is about 3.2 metres wide opening out to a larger parking area in front of the house. At that point, the driveway widens to about 9 metres. The driveway is tree- lined on the left hand (or southern) side from the Council gravel section up to at least the driveway gate, which is located at the point where the driveway widens out.
[31] The driveway was formed with control joints (formed weak spots in the driveway which allow for expansion and contraction of the concrete). It is estimated by Mr O’Brien to be not more than 23 years old. The logical assumption he made was that the driveway was one of the last items to be constructed when the house was built in 1994.
[32] At the point where the driveway meets the house, it then extends down the northern side of the house towards the swimming pool and a timber deck which surrounds the swimming pool, situated at the rear of the house. This part of the driveway, which runs along the northern side of the house, abuts the timber privacy fence for its 3.5 to 3.7 metres width.
[33] The driveway meets the timber pool deck at the north-western corner of the house. There are two pool gates at the junction of the driveway and timber pool deck.
[34] Like the driveway on the northern face of the house, the timber deck surrounding the pool extends right up to the timber privacy fence for the entire northern edge of the pool deck.
[35] The experts for each side agree that the swimming pool and timber deck appear to have been installed after the construction of the house, as the swimming pool was not included in the original consent plan.
[36] At the western end of the deck, furthest from the house, there is then a grassed area. There are several large palm trees running in a parallel line in a north-south direction on No 120 in the grassed area where that area meets the end of the timber swimming pool deck.
[37] There are further trees on No 120 on the southern side of the timber pool deck. They are part of a large copse of trees to the east, south and west of the main house.
[38] The timber privacy fence that I have referred to extends from the driveway gate on No 120 to a point beyond the timber pool deck near tree 9 (see further below). The privacy fence is constructed of vertical timber planks.
The boundary trees
[39] The approximate location of boundary trees 1 to 7 can be seen on the attached site plan. The canopy as drawn does not represent the actual canopy.
[40] Trees 1 and 2 are Ash trees. As can be seen, they are located at the Blackbridge Road end of the driveway on No 118.
[41] There is no tree 3 represented in the plan. The evidence of Andrew Barrell, an arborist called as a witness for the Semples, was that at some stage there would have been a tree between trees 2 and 4. That was disputed by Stuart Barton, the arborist called on behalf of the Wilsons. I will return to the issue of whether tree 3 ever existed, in the context of the claimed damage to the driveway by the tree roots. In the meantime, I use the numbering adopted by the witnesses through to tree 11, even though in fact at present there are only 10 trees.
[42] Trees 4 and 5 are an Oak and an Elm respectively. They are located adjacent to the part of the driveway on No 120 which extends along the northern side of the house.
[43] There are then two Gleditsias, trees 6 and 7, which are located adjacent to the timber deck area around the swimming pool.
[44] Tree 8 was identified by Mr Barrell as an Elm, but by Mr Barton as a Liquidambar. Nothing turns on this difference of opinion. Tree 8 is located adjacent to the grassed area on No 120 and is beyond the area shown in the annexed site plan.
[45] Tree 9 is an Ash and it is also adjacent to the grassed area on No 120. It is located near the end of the timber privacy fence.
[46] Trees 10 and 11 are Liquidambar trees. They are adjacent to the grassed area beyond tree 9.
The law
[47] A private nuisance is an unreasonable interference with a person’s right to the use or enjoyment of an interest in land.1 An action for private nuisance protects a person’s right to the “use or enjoyment of an interest in land, or of some right over or in connection with it”.2 Actionable harm may consist of encroachments from a defendant’s land, as where tree branches overhang neighbouring land or tree roots grow into a neighbour’s soil.3
[48] The following passage in Clerk & Lindsell on Torts sets out the types of private nuisance:4
… His conduct only becomes a nuisance when the consequences of his act are not confined to his own land but extend to the land of his neighbour by:
(1)causing an encroachment on his neighbour’s land, when it closely resembles trespass;
(2)causing physical damage to his neighbour’s land or building or works or vegetation upon it; or
(3)unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land.
[49] The claims in this case are based on the first two categories. The third category arises in cases where the complaint is, for example, interference with enjoyment of land by the creation of stenches through offensive activities. This involves smoke or noxious fumes, dust, unreasonable noise or vibration and the like.5
[50]Clerk & Lindsell on Torts further explains:6
1 Bill Atkin “Nuisance” in Stephen Todd (ed) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) 525 at [10.2.01].
2 Atkin, above n 1, at [10.2.02]; citing Read v J Lyons & Co Ltd [1945] KB 216 (CA) at 236 and
Hunter v Canary Wharf Ltd [1997] AC 655 (HL).
3 Atkin, above n 1, at [10.2.02(1)]; citing Lemmon v Webb [1895] AC 1 (HL); Woodnorth v Holdgate [1955] NZLR 552 (SC); Darroch v Carroll [1955] NZLR 997 (SC); Morgan v Khyatt [1964] 1 AC 475, [1964] NZLR 666 (PC) and Blakesfield Ltd v Foote [2015] NZHC 1325.
4 Richard Buckley “Nuisance and Rylands v Fletcher” in Michael Jones (ed) Clerk & Lindsell on Torts (22nd ed, Sweet & Maxwell, London, 2018) 1377 at [20-06]. See also Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536 (HC) at [15].
5 Hawkes Bay Protein Ltd v Davidson, above n 4, at [15].
6 Buckley, above n 4, at [20-07]-[20-08], [20-26].
Nuisances of the first kind, in the nature of encroachments, occur when … his trees overhang his neighbour’s land, and when the roots of his trees grow into his neighbour’s land …
In the case of nuisance by encroachment or damage, liability is established by proving the encroachment or the damage to the land as the case may be …
In nuisances of the second kind, namely, those causing physical damage to land, actual, not merely prospective, damage is essential to a cause of action.
(Citations omitted)
[51] Therefore, there can be an actionable nuisance simply due to an encroachment and without the need for physical damage. However, if physical damage is alleged, the question arises as to how material the damage must be.
[52] In Blue Circle Industries plc v Ministry of Defence, the United Kingdom Court of Appeal defined physical damage as “some alteration in the physical characteristics of the property … which render it less useful or less valuable”.7
[53]The following passage in The Law of Torts in New Zealand is illustrative:8
… proof of actual physical damage to property that is “material” or “substantial” rather than “merely trivial” is normally sufficient without more to establish that the interference is unreasonable and amounts to an actionable nuisance …
(Citations omitted)
[54] In Woodnorth v Holdgate,9 McGregor J referred to both “actual and sensible damage” and “sensible and actual damage” caused by encroachment.10 I will adopt the test of ‘material damage’ which seems to approximate the test of ‘actual and sensible damage’.
[55] There are three cases in relation to trees which are of assistance. In Matthews v Forgie,11 the then Supreme Court held that the planting of trees was part of the
7 Blue Circle Industries plc v Ministry of Defence [1999] Ch 289 (CA) at 300. See also Hunter v Canary Wharf Ltd, above n 2, at 676.
8 Atkin, above n 1, at [10.2.03(1)].
9 Woodnorth v Holdgate, above n 3.
10 At 553-554.
11 Matthews v Forgie [1917] NZLR 921 (SC).
“natural user of the land”, an expression used to designate those “acts of user which may be done with impunity”.12
[56] Then, in Molloy v Drummond,13 the then Supreme Court held that in respect of leaves, nuts and twigs blowing onto neighbouring land, “[a]n owner or occupier of land, using or occupying his land for any purpose for which it may in the ordinary or natural course of the enjoyment of land be used or occupied, is not responsible for damage sustained to the property of another through natural agencies operating as a consequence of such ordinary or natural user or occupation”.14
[57] More recently, in Blakesfield Ltd v Foote,15 Mander J, citing both the above cases, held:
[24] It is well established that an owner or occupier of land is not responsible for damage or interference with a neighbour’s land caused through natural agencies resulting from the lawful use of his or her own land. The inconvenience of windblown leaves or the shedding of other debris, such as acorns or pine needles, do not, despite the annoyance that may be caused, constitute a nuisance. The principle that no remedy lies from the consequence of a natural use of the land, such as growing trees, is, of course, premised on the trees not encroaching onto the neighbour’s property.
(Citations omitted)
[58] In order to constitute an actionable nuisance, the interference with the plaintiffs’ use and enjoyment of land must be substantial and unreasonable.16 The question to be answered is whether an interference exceeds what a normal occupier in the Semples’ position could reasonably be expected to tolerate.17
[59] In Bank of New Zealand v Greenwood,18 Hardy Boys J held that the basic test was “simply whether a reasonable person, living or working in the particular area, would regard the interference as unacceptable.19 To that hypothetical reasonable
12 At 925.
13 Molloy v Drummond [1939] NZLR 499 (SC).
14 At 499.
15 Blakesfield Ltd v Foote, above n 3.
16 Atkin, above n 1, at [10.2.03].
17 Atkin, above n 1, at [10.2.03].
18 Bank of New Zealand v Greenwood [1984] 1 NZLR 525 (HC).
19 At 531.
person must be accorded the attribute of acknowledging the reasonable exercise of rights by his neighbours.
Does the encroachment by the branches of the boundary trees constitute an actionable nuisance?
[60] The case for the Semples is that branches from the boundary trees, which encroach over the common boundary, inundate their living area with leaves, twigs, debris and fallen branches. They say that these encroachments have caused real and significant physical damage to No 120. They say the inundation of leaves from the boundary trees has repeatedly blocked internal gutters of their house, causing water to overflow and enter into the house.
[61] The Semples also say there has been continual blocking of their swimming pool pump.
[62] The Semples say further that because the boundary trees lie to the north of their living area, due to their height and size they block the sun from the house and the outdoor recreation parts of their living area, especially in the summer. Their house and their living area is therefore darker, wetter and less appealing for recreation than it otherwise would be due to increased presence of mould and mildew on the exterior surfaces.
[63] Finally, the Semples say that the inundation of a substantial quantity of leaves and debris from the encroaching branches interferes with their enjoyment of their property, as they are required to carry out far more tidying up, clearing of leaves and debris, and removal of mould and mildew than they would otherwise be required to do. They say this has caused significant stress, anxiety and distress, and an unreasonably large amount of work on their part to maintain and keep their property clean and tidy.
[64] The Wilsons accept that there is some encroachment of branches from the boundary trees, but they say that, given that the Semples have no remedy in nuisance for the fall of leaves and debris from the parts of the boundary trees that do not encroach onto No 120, the minor additional impact of what emanates from the
overhanging branches cannot be (or has not been shown to be) unreasonable in context. They also say that the evidence does not prove that the overhanging branches are the cause of any physical damage.
Encroachment by branches
[65] I accept that some branches from the boundary trees overhang No 120. The branches in the main are in the canopy, as the Semples have been able to trim the lower branches. The extent of the encroachment for each of the 10 trees was not itemised. Mr Semple’s evidence was that the canopy, as far as it overhangs No 120, is very large. He described is as “overhanging five metres into our property at the moment”. There are no current photographs of the overhang.
[66] Mr Wilson was asked to estimate the percentage of foliage that was on the part of the trees which encroached into No 120. While saying he had never thought about that in terms of percentage, his estimate was “maybe 7, 8 or 10 per cent”.
[67] I turn now to the effects which the Semples say have arisen from the encroaching branches. I start with the claim of actual damage, which concerns alleged water damage to the house at No 120 (the second category of nuisance). I will then turn to the other alleged effects, which relate to alleged interferences caused by the encroaching branches (the first category of nuisance).
Water damage to house at No 120
[68] Mr Semple’s evidence was that the leaves from the Wilsons’ boundary trees fall continuously onto the roof of their house. He said this blocks the gutters which overflow on the rear side of the house and consequential ingress of water to the structure of the house has occurred. He says they have had to carry out significant repair work which they would not have had had to do but for the sheer volume of leaves from the boundary trees.
[69] Mr Semple said to clean out the gutters he had to get up on a ladder, a chore which he had to undertake regularly and which is dangerous and unpleasant. He said that if he did not clean out the gutters regularly, the sheer volume of leaves and twigs
caused rainwater to overflow and on occasion enter the house. He said this had happened probably three times. He said he did not think it occurred in the first year, but probably over the following two years.
[70] Mr Semple said, however, the speed with which the gutters filled up with leaves meant that despite his best efforts, it was not possible to keep the gutters clear all the time, especially in stormy weather.
[71] It appears that part of the problem was the internal guttering which was present at the time the Semples purchased No 120. Mr Semple’s evidence was that in 2016 they engaged a building company to replace the internal guttering with external guttering. In the course of that replacement, the builder was able to locate rotten timber. Since the installation of the external guttering, Mr Semple says there is now no water coming into the house.
[72] Two issues arise. First, was any water ingress and resulting damage to the house caused or contributed to by the water entering as a result of leaves and other debris from the boundary trees blocking the gutters? Or, did any water damage arise from another cause or causes?
[73] Second, if the leaves and other debris caused or contributed to the ingress of water and resulting damage, to what extent were the encroaching branches responsible or might this simply have resulted from the presence of the (non-encroaching parts of) boundary trees on the Wilsons’ land?
[74] Not only did the house at No 120 have internal guttering, it is also built of monolithic cladding. Mr Semple acknowledged that prior to purchase he was aware of the “leaky home syndrome”, but he said they had had a building inspection done and were happy with that inspection. He therefore did not consider there was a possibility that this was a leaky home.
[75] There was some evidence of faulty construction. But that seemed to relate to the recent installation of external gutters since which time there has been no reported water ingress. Phillip Grigg, an architect who was called as an expert witness on
behalf of the Semples principally in relation to the cracking in the concrete driveway, specialises in the area of leaky homes. He was asked in cross-examination about the droppers (i.e. mini downpipes) from the upper level of the house. He noted that on his inspection of the property in September 2017, the droppers had not been installed correctly, with the consequence that water would be directed at the junction of the wall and the roof, which is a vulnerable junction.
[76] As far as the exterior of the house itself, Mr Grigg had checked the brick veneer cladding at the front of the house and the Harditex fibre cement sheets on the other three faces. He could see no signs of cracks. His opinion was that the house externally seemed to have been well maintained.
[77] In the absence of a detailed building report, it is not possible to say whether the nature of the construction of the house and the internal gutters were part of the cause of the rotting timber that was replaced when the external guttering was installed. However, what is clear is that leaves, twigs and other debris from the Wilsons’ boundary trees did get into the internal guttering and, on occasion, the blocked guttering was the cause of water entering the house at No 120. I accept that evidence.
[78]That water caused timber to rot. In my view, that is material damage.
[79] The question then arises as to what extent the leaves, twigs and other debris emanated from the encroaching branches. I pose that question because, as noted above, the natural distribution of leaves and other natural debris associated with trees and their branches within the confines of a neighbouring property cannot give rise to an actionable nuisance in the absence of encroachment.20
[80] The leaves, twigs and debris in the guttering would have come both from the encroaching branches and the non-encroaching parts of the boundary trees. In my view, the assessment I must make is not a mathematical one, based, for example, on Mr Wilson’s calculation of there being 7-10 per cent of the boundary tree’s foliage which encroaches.
20 See at [55]-[57] above.
[81] I consider the encroaching branches have contributed to a sufficient extent so as to be an integral part of the cause of the water ingress and resulting damage. As the encroaching branches are in the canopy, they would contribute to the fall of leaves and other debris onto the roof (and thence into the gutters) to a greater extent than leaves and debris from the non-encroaching branches lower down in the boundary trees.
[82] It follows from my finding that there is physical damage which is material, that the interference is unreasonable.21 I therefore find there is an actionable nuisance arising out of the water damage.
Shade
[83] The Semples say that because the boundary trees lie to the north of their living area, and due to their height and size, they block the sun, especially in summer, from the house and outdoor recreation areas. They say their house and their living area is darker, wetter and less appealing for recreation than it otherwise would be, due to the increased presence of mould and mildew on the exterior surfaces of the improvements.
[84] A photograph taken in September 2017 by Mr Grigg of the swimming pool and surrounding timber deck shows shadows cast by the boundary trees across the width of the pool to the far side of the deck.
[85] However, I consider that both the length and effect of the shade arises from a natural user of the boundary trees on No 118. The shadow cast by the boundary trees does not give rise to an actionable nuisance in itself. But, in my view, the encroaching branches in the canopy do create a ceiling of vegetation above No 120. To that extent, that ceiling of vegetation contributes to limited light. I accept this would be particularly noticeable in the outdoor recreation area on the timber deck around the pool on the side nearest to the boundary. Thus, if the encroaching branches were trimmed back to the boundary, it would improve the light available to No 120. Such trimming may affect the length of the shadow which the boundary trees cast given that the overhanging branches are in the canopy, but the effect would not be material.
21 See at [53] above.
[86] In relation to the alleged presence of mould and mildew on the exterior surfaces, there was no evidence adduced to support that claim. Even assuming that the boundary trees do have that effect, in my view, that is the likely consequence of the natural user of the boundary trees on No 118. But, I would accept that the extent to which the encroaching branches prevent sunlight reaching the ground below those branches, that would impede the drying out of the ground. I accept that this would make the ground wetter and, particularly in relation to the deck surrounding the pool, less appealing for recreation.
[87] I consider that the shading effects that I have accepted above do interfere with the Semples’ use and enjoyment of their property. I will consider whether the interference is ‘substantial and unreasonable’ so as to constitute an actionable nuisance after I have considered the other claimed interferences.
Swimming pool pump
[88] Mrs Semple’s evidence was that the volume of leaves that fall into their swimming pool continuously blocks two skimmer boxes which have to be emptied three times a day. She said that blockages caused by the amount of leaves restrict the amount of water flowing through the system and this risks damage to the pool pump. Additionally, smaller leaves and stems work their way through the skimmer boxes and into the filter, again risking damage to the pump. She said she has come home on more than one occasion to find twigs in the pool causing the flaps that control the flow of water into the skimmer boxes to be closed. On another occasion, hardly any water was getting through into the system, which she said could have resulted in the pump blowing out.
[89] Mrs Semple said they took the step of investing in a solar pool cover, but that was ineffective due to the lack of sun falling on the pool. They used this in the autumn months as a cover to keep out the leaves, but without air circulating, the water turned green. They have since had a large net altered to fit over the pool as a cover to prevent as many leaves as possible from falling into the pool. There are photographs which show what Mrs Semple describes, which were taken in 2016 for the purposes of the Harassment Act proceeding.
[90] The leaf fall on the swimming pool and surrounding deck area is very apparent from those photographs. I accept that many of the leaves and much of the debris will have come from the parts of the boundary trees growing within the confines of No
118. That natural distribution of leaves and debris cannot give rise to an actionable nuisance. However, I also accept that there is fall from the overhanging parts of the trees which will have contributed to the effects Mrs Semple describes. Those effects interfere with the operation of the swimming pool pump.
Leaves and debris generally
[91] The Semples say that the inundation of a substantial quantity of leaves and debris from the encroaching branches interferes with their enjoyment of their property, as they are required to carry out far more tidying up and clearing of leaves and debris than they would otherwise be required to do, in order to keep their living area, especially the swimming pool, in a reasonable state. Mrs Semple says that they had to purchase a road sweeper to clean away dry leaves and a petrol leaf blower to make cleaning more efficient. Photographs taken in 2016 for the Harassment Act proceeding again demonstrate the extent of the leaf and debris fall. There is no doubt that some of that leaf and debris fall, and perhaps a significant proportion of it, is the natural distribution associated with the boundary trees growing within the confines of No 118. That cannot give rise to an actionable nuisance. However, leaves and debris from the encroaching branches no doubt contributed. To that extent, leaves and debris from the encroaching branches have contributed to the Semples’ use and enjoyment of their property.
Health and safety
[92] Mr Semple gave evidence that in a significant storm event that occurred not long before the hearing, a large branch, approximately nine metres long, landed on No
120. Mr Semple said it was so heavy that he was unable to move it himself and that if it had come down when someone was walking past, it could possibly have killed them. However, there was no evidence as to which part of any tree or even which tree the branch had come from. I am therefore not able to conclude that the encroachment of branches in itself constitutes a risk to health and safety.
Conclusion on branches
[93] The question therefore arises as to whether the interferences I have found in relation to the shade, the swimming pool pump, and leaves and debris generally is substantial and unreasonable. I must do so by reference to the particular area. Mr Casey QC, counsel for the Wilsons, points out that this is a rural area. That is so. But No 120 also contains a home and an area identifiable as a recreation area. I consider that a reasonable person living in the area would regard the interferences to the living area, separately and in combination, as unacceptable.
[94] Overall, and for the reasons already given, I accept that the branches of the boundary trees which encroach across the legal boundary into No 120 amount to an actionable nuisance. The Semples are entitled to a remedy that remediates that encroachment. I will address the appropriate remedy, including the issue of damages, after I have considered the claim in relation to the tree roots.
Does the encroachment by the roots of the boundary trees constitute an actionable nuisance?
[95] The Semples say that the roots of the boundary trees have penetrated their land at No 120 and they have caused damage, including cracking and uplifting of the concrete driveway, uplifting of the timber deck around the swimming pool and disruption to the surface of the soil along the common boundary.
[96] The statement of claim also pleads that the roots have caused movement and significant uplifting of the timber privacy fence, and that they have undermined the foundations of the Semples’ house, resulting in uneven floors.
[97] In his closing submissions, Mr Rowe, who appeared for the Semples, accepted that there was no evidence to support those latter claims in relation to the timber privacy fence and foundations of the house. That was a proper concession. There is no evidence of the claimed movement or uplifting of the timber privacy fence. Mr O’Brien’s evidence was that it was relatively vertical with no significant deformation. He was not challenged on this evidence. As to the allegation of uneven floors, Mr Grigg undertook a full inspection and reported nothing in this regard. Mrs Semple
told him that there were no problems with internal doors. Mr Barrell gave opinion evidence that there must be damage to the foundations and services. In my view, this was speculation beyond his expertise and without a necessary evidential foundation. Mr Grigg expressed the opposite view, at least in relation to the foundations.
[98] The mere underground encroachment of roots is insufficient to constitute damage to land or be an actionable nuisance. I agree with Mander J where he held:22
[42] … There must, at least, be some detrimental consequence to the neighbouring landowner from what would otherwise be the natural consequence of planting trees or, indeed, any vegetation inside the border of a neighbouring property …
[99] I must therefore determine whether there has been some detrimental consequence from the presence of the roots. I will again adopt the test of material damage.
Disruption to the surface of the soil along the common boundary
[100] I deal with this aspect of the Semples’ claim relatively briefly, as the real focus was on the alleged damage caused to the timber deck around the pool and the concrete driveway.
[101] In Blakesfield Ltd v Foote, Mander J held that the disruption to the surface of the soil was capable of constituting interference with, and physical damage to, land.23 In that case, there was evidence that the digging of the ground and the preparation of the soil for the purpose of a five metre planting strip adjacent to the boundary, which was a condition of resource consent, was rendered more difficult because of the presence of roots from trees on the neighbouring property which extended underground onto the plaintiff’s land. While there was no actual damage established, the Court accepted that the encroaching roots created difficulties in the plaintiff’s use and enjoyment of its land, if only for the purpose of establishing the five metre planting strip.24
22 Blakesfield Ltd v Foote, above n 3.
23 Blakesfield Ltd v Foote, above n 3, at [42].
24 At [49].
[102] Mr Barrell gave evidence that there were tree roots of up to 70 millimetres in width very close to the surface of the soil in the one metre strip between the wire boundary fence and the timber privacy fence. Those roots had been exposed by Mr Semple for the purpose of Mr Barrell’s inspection in September 2016. However, unlike the Blakesfield case where the five metre strip was required to be used for planting, there was no evidence that the Semples wished to use the one metre strip between the wire boundary fence and the timber privacy fence for any particular purpose. In fact, there is a line of hedging planted between the concrete driveway and the timber privacy fence along part of the northern edge of No 120 (in other words directly beside the one metre strip), and there was no evidence that the growth of this hedge was in any way impeded by the presence of roots from the boundary trees.
[103] I, therefore, find that there is no actionable nuisance arising from the roots from the boundary trees near the surface of the soil along the common boundary.
Decking
[104] The particular trees in the vicinity of the timber deck around the swimming pool are as follows:
(a)Tree 5 (Elm) located adjacent to the driveway near the driveway/deck interface;
(b)Tree 6 (Gleditsia) located adjacent to deck area; and
(c)Tree 7 (Gleditsia) located adjacent to deck area.
[105] In the case of trees 6 and 7, large surface roots emanating from the boundary trees are visible in the strip of land between the timber privacy fence and the wire boundary fence. Thereafter, those roots are not visible.
[106] There was evidence of one surface tree root running parallel to the boundary between the northern edge of slab 1125 and the timber privacy fence. It is visible for a
25 The concrete slabs are numbered on the annexed site plan.
distance of approximately 200 millimetres running from the junction of slab 11 to the pool deck (i.e. running in an east/west direction).
[107] The pool deck is constructed of timber posts and bearers with 150 x 50 joints at 600 millimetre spacing topped with timber decking planks. Viewed from No 118 and looking under the timber privacy fence, a bearer can be seen on a pile with an approximately 100 millimetre gap between the bearer and the existing ground level.
[108] Mr Grigg said that the water-line in the pool was level. He said this would be as expected as the pool appeared to be cast or built with blocks plastered on the ground over hard-fill. As the pool has significant weight, the pool structure has been unable to withstand any forces by any tree roots, if present. However, the timber pool surround, compared to the pool, has significant movement. This suggested to Mr Grigg either that the pool surround framing and footings were being affected by the excess water splashing from the pool, thus exacerbating possible “shrinkage swell” ground movement, or that tree roots are also causing ground movement.
[109] However, Mr Grigg contrasted the significant difference of a 68 millimetre drop between the tiled pool surround and the decking on the far side of the pool with the much smaller differences on the side that adjoins No 118. The drop from the pool tile surround to the decking on the latter side is around 15-25 millimetres but mostly around 20 or 22 millimetres. In other words, the deck planks are relatively level with one another. In relation to the far side, not only is it a lot lower than the tiled pool surround, but it is also uneven. Accordingly, it is the part of the deck furthest from the boundary trees that is most affected.
[110] In the opinion of Mr O’Brien, the out of level situation on the deck appeared to be due to deteriorating support members, causing the levels to drop over time. Mr Grigg agreed with Mr O’Brien that the support structure for the deck is built quite close to the ground and that the deck timber is somewhat deteriorated. Mr Grigg also agreed with Mr O’Brien that the degree of decay in the timber indicated that the timber durability treatment was at the most H3 when it should have been H4 to maintain the durability and to avoid rot given the close proximity to the ground.
[111] There was also evidence regarding the junction of the decking and the driveway at the north-western corner of the house. Mr Barrell gave evidence that the deck level at this point (between trees 5 and 6) was distorted by upwards of 50 millimetres in height at each end of the join with the concrete driveway. He referred to the large root running parallel to slab 11 in close proximity to the “distorted deck section” adjacent to the timber privacy fence. Mr Barrell then contradicted himself by saying there was an irregular distortion on the deck/driveway interface with the deck being high at one end and low at the other. He said that indicated that a significant amount of structural realignment has occurred.
[112] In my view, Mr Barrell has assumed that the deck level has been distorted and has assumed that there is distortion by a lifting of the deck level. On this issue, Mr Grigg said that he did not recall measuring the deck, but he could say that the deck was not parallel with the driveway at the interface. He accepted, however, that the deck itself could have been level, and accordingly it would have been the driveway that was sloping. That this is in fact the case was confirmed by the evidence of Mr O’Brien. His evidence was that where the timber deck joined the concrete slab, it is logical to assume the deck was installed level, whereas the concrete was poured to drain towards the north and away from the house. This is evident from a photograph where the concrete driveway is lower than the timber deck closer to the boundary. Under cross-examination, Mr Barrell accepted that the concrete slab could have been constructed on a slope for drainage purposes.
[113] Mr Barrell’s overall conclusion was that given the prevalence of what he describes as direct correlations between roots and structural damage observed elsewhere along the boundary, it would not be unreasonable to assume a similar pattern of root-related disruption was occurring out of sight beneath the deck. One of the “correlations” Mr Barrell relied on was the presence of the root and what he described as a deck level distortion referred to in [111] above. There was no such distortion.
[114] The state of the timber privacy fence on the inside of No 120 adjacent to the wire boundary fence is also of relevance. The evidence was that it appeared relatively vertical with no significant deformation of its alignment being evident. One might have expected that had the roots been the cause of the decking planks to drop, there
would also have been an effect on the timber privacy fence, which is closer to the boundary trees.
[115] There is no doubt that there will be roots from the boundary trees under the deck. But the Semples have not satisfied me that the presence of any roots under the deck give rise to an actionable nuisance. Mr Grigg’s evidence allowed for other possible causes, and I found Mr Barrell’s evidence to be overstated. That then leaves Mr O’Brien’s evidence, which I accept. There is also the fact that the irregularities in the pool deck are more pronounced on the side of the deck furthest from the boundary trees.
[116] In their pleadings, the Semples claim that the extent of the damage cannot be assessed and evaluated fully until destructive testing can be carried out by removal of the decking. I do not accept that.
[117] This was not a case where destructive testing by the removal of the entire deck would have been required to present evidence of damage. Mr O’Brien’s evidence was that it would have been possible to take up some of the decking boards to view things from above. He suggested perhaps three or four locations on the deck. One would then be able to access and have a better view of the foundations, if there are any, and view the condition of the bearers to see if there are any roots that are affecting the structure. The Semples did not do that.
[118] In my view, the evidence does not establish any actionable nuisance caused or contributed to by roots from the boundary trees in relation to the deck around the swimming pool.
The driveway
Observable tree roots
[119] Mr Barrell produced photographs which he took in September 2016 of three tree roots, close to the surface, which Mr Semple had exposed prior to Mr Barrell’s site inspection.
[120] Two of the roots are on the boundary side of slabs 1 and 3. One can be seen going under the driveway at slab 1. It would appear that the root emanates from either tree 1 or tree 2. Mr Barrell said its diameter was over 100 millimetres.
[121] The second root also appears to emanate from either tree 1 or tree 2. It can be seen going under the driveway at the corner of slab 3 angled in the direction of slab 2.
[122] In his report produced as his evidence, Mr Barrell said that one of these two roots was then visible emerging on the opposite (southern) side of the driveway. This statement was based on the photographs he took. He did not make a site plan or drawing at the time. From an examination of the photographs, they do not show a root emerging on the southern side of the driveway.
[123] The third root runs parallel to the driveway beside slab 2 on the opposite side from the boundary.
[124] When Mr Barton attended at No 120 on 9 June 2017 with the permission of the Semples, Mr Semple did not permit him to use his trowel to remove loose/surface earth so as to observe roots, or to use a steel probe he had with him to detect roots that were not close to the surface. Accordingly, there was no evidence of any further roots in the driveway area.
Cracking – evidence of the Semples
[125] Mr Semple’s evidence was that when he and his wife inspected No 120 in 2012 prior to purchase, there were no visible roots on the surface of the ground. He said there were two insignificant cracks on the concrete driveway which were hardly noticeable and it was the building inspector who pointed them out. He also said that while the slabs were not 100 per cent even, they were not at different levels as they are now.
[126] Mrs Semple’s evidence in her affidavit sworn in July 2016 in the earlier proceeding was that they had noticed over the preceding three years cracking and lifting of sections of the driveway. She said it is steadily getting worse.
Observable damage to driveway slabs
[127] In summary, the observable damage to the concrete slabs in the driveway is as follows:
(a)Slab 1 – there are cracks running both side to side and top to bottom.26 There are two cracks either side of where the first root described above disappears under slab 1. With some of the cracks the concrete has slumped into the crack. There is a height difference between slabs 1 and 2 (slab 2 is higher), which suggests the sub-base of one or both of the slabs is moving.
(b)Slab 2 – Mr Grigg did not describe any cracking. Mr Barton describes “only faint cracks”. There is no crack evident which would correspond with the second root described above or the third root running along the surface parallel to slab 2.
(c)Slab 3 – there is a clear difference in height between slabs 2 and 3 (slab 2 is higher). There are no cracks emanating from the northern edge of the driveway. Rather, they emanate from the opposite side where there are trees on No 120.
(d)Slabs 4-7, 15-19, 21 and 23 – there are cracks running in various directions in these slabs. No trees are located on No 118 opposite these slabs. There is a palm tree in a small garden up against the house on No 120 next to slabs 15, 19 and 23.
(e)Slab 8 – Mr Grigg did not record any cracks in this slab.
(f)Slab 9 – there is a crack across the slab from the house towards tree 4.
(g)Slab 10 – Mr Grigg did not describe any cracks in this slab.
26 The cracks are marked on the attached site plan.
(h)Slab 11 – Mr Grigg describes a crack running across the middle of the slab in an east-west direction. In other words, it is parallel with the visible root running along the northern side of this slab.
Opinion evidence
[128] Mr Grigg’s opinion was that No 120 had been affected by what are known as “shrinkage/swell” issues of land movement generally due to the type of ground materials. Most of the ground movement would have been taken up at the weak points of the driveway at the self-made control joints. Mr Grigg said that as significant cracking emanates mostly from the control joints, and not along the control joints (which is the function of the control joints when normal shrinkage/swell occurs), other forces must be present. Mr Grigg’s opinion was that the only obvious force would be coming from the growth of the adjacent tree roots across the boundary.
[129] However, under cross-examination, Mr Grigg readily accepted that his expertise was as an architect and that issues regarding the cracking of concrete were predominantly an engineering matter. He also acknowledged Mr O’Brien’s evidence that the driveway concrete was only 80 millimetres thick, less than the standard 100 millimetres for construction at the time.
[130] As to cracking in the slabs, Mr Grigg agreed that there was no cracking in slab 8, slab 10 and slab 2 (although Mr Barton had noted faint cracks in slab 2). He accepted that although he described slab 2 as being raised up, it was equally possible that slab 1 and slab 3 had dropped down, and that may be something to do with the state of the ground under the slabs. In relation to slab 3, although there is cracking, he agreed it is mostly on the opposite side to where the root is apparent.
[131] In relation to slab 11, where there is a root running parallel to the slab, given that the crack also runs in an east-west direction, Mr Grigg accepted that that root did not appear to have caused any cracking from the side of the slab where the root exists.
[132] Mr Grigg accepted that the cracking in the concrete overall could have been from a variety of sources. He accepted that if the concrete was too thin and there was
insufficient sub-base preparation giving rise to variability in the strength of the ground below the concrete, that would be a possible cause.
[133] Mr Grigg also accepted that if you have topsoil over a clay base, the topsoil should be removed before the concrete is laid. If that were not done, that would be another reason why there might be differential ground movement.
[134] Mr Grigg further accepted that, as well as the quality of construction, other factors that will influence the life of a concrete driveway would be the volume and type of traffic. Also, if a crack develops then, as traffic continues to travel over the crack, it causes movement each time. Mr Grigg accepted that if a crack develops in concrete, water can get through the crack and soften the ground underneath which, added to the movement of the traffic, will exacerbate the crack.
[135] That then leads me to the evidence of Mr O’Brien who as an engineer was the only expert fully qualified to give evidence on the issue of the cause/s of cracks in the concrete. Mr O’Brien said that the concrete scan results showed that the slab was 80 millimetres thick and largely unreinforced. That thickness reduces further with the washout of the top surface to create the exposed aggregate. The only reinforcing steel mesh found was in slabs 8-11 which run along the north side of the house. There were some sporadic steel bars found in random spots in slabs 1, 2 and 3, but, as they were close to the bottom of the slab, they served no structural purpose.
[136] Mr O’Brien said that differential movement has occurred between those three slabs of between zero and 35 millimetre vertical movement. The worst location of differential movement is between slabs 2 and 3 where the middle of the edge of slab 3 measured 35 millimetres, north side zero and south side 25 millimetres. In Mr O’Brien’s opinion, this would suggest a heavy vehicle has broken slab 3 as the cracking suggests. The middle portion of slab 3 has fallen, creating a differential movement and more so towards the southern edge. This is consistent, Mr O’Brien said, with the lack of reliable bearing support throughout the underside of slab 3.
[137] Mr O’Brien’s opinion was that slab 2 shows no sign of movement and shows no evidence of being lifted by roots or expansive clay conditions which matches its lack of cracking.
[138] Slab 1, he says, has broken due to heavy vehicle load and inconsistent bearing support, thus lowering its south portion and raising its north portion, pivoting about its cracked zone. This has occurred to a lesser extent in slab 4, presenting small vertical variations, but still enough to cause considerable slab cracking.
[139] Again, inconsistent support under slabs 5, 6, 7, 15 and 19, and substantial loading to the weakly supported areas, has created the cracking.
[140] Mr O’Brien suggested that heavy vehicle loads applied in the past are quite possible, especially when the construction of the swimming pool took place at some time after the construction of the main house. This would have required heavily laden material and concrete trucks to use the driveway to gain convenient access. There was also evidence from Mr Semple that from time to time they had water delivered by a truck, on each occasion a quantity of 10,000 litres, weighing 10 tonnes.
[141] Mr O’Brien said that a standard pathway designed for pedestrians or bicycles is 80 millimetres thick, or not less than 75 millimetres, and it may or may not require steel mesh to be present depending on the variations and soil varying characteristics. He said the minimum slab thickness recommended for domestic slabs, subject to cars and light trucks under three tonnes, would be 100 millimetres, with slab mesh and control joints on a well-prepared layer of compacted hard fill on a good subgrade base that has been stripped of topsoil. This requirement has not changed much since the 1990s when the house was built.
[142] In this case, the presence of compacted granular fill below the slabs was not evident. Where heavier loads are expected, a minimum of 100 millimetre slab is recommended with steel. In all cases, but more so with shallow unreinforced slabs, the consistent bearing capacity is very important.
[143] In Mr O’Brien’s view, in this case it is very apparent that consistent good bearing for the underside of the damaged slabs is not present. He said inconsistent bearing can occur due to a combination of factors:
(a)Topsoil may not have been stripped fully off the platform down to a reasonably good subgrade that provides consistent good bearing capacity;
(b)Levels brought back up to level to the underside of the slab once excavated or stripped may have been formed using unsuitable fill;
(c)Levels brought back up to level to the underside of the slab once excavated or stripped may have been formed using suitable granular hard fill but that was not compacted well enough;
(d)Edges or extents of the drive may not be adequately retained;
(e)Harder spots present under the slab, even in well-compacted hard fill, may be present so as to create inconsistent ground bearing support. These harder spots could be created by rocks, boulders or large tree roots; and
(f)Where no compacted granular fill is used to support the concrete slab, the subgrade is more susceptible to localised shrinkage and void creation under the slab where root systems extract moisture from the soil and the ground shrinks away. But, given the right slab design for its intended purpose, a well-designed slab should be able to span over these localised voids.
[144] Finally, Mr O’Brien said it was important to stress that if the topsoil layer was properly removed and well-compacted granular fill was placed, then the tree roots would tend not to extend much beneath the slab.
Analysis
[145] Leaving aside slab 1 for the moment, and based principally on the evidence of Mr O’Brien which I accept, even if the roots of the boundary trees caused or contributed to some of the damage to the concrete driveway, by far the majority of the damage is due to other causes. In other words, I do not consider that the roots from the boundary trees have caused material damage. I say that for the following reasons:
(a)Most of the significant damage is where the area is cracked, and the concrete has a depression and is falling towards the main cracks. This slumping suggests it is more related to forces from above, such as vehicle weight, rather than pressure from below due to tree roots.
(b)Another cause of damage is where a slab has dropped below the adjoining slab. This is more likely due to poor subbase preparation that has caused the slab to drop rather than a root pushing up against the slab.
(c)Large cracks have occurred on slabs 4 to 7, 15 and 19 where there are no trees in the proximity. I deal at this point with the absent tree 3. Mr Barrell said that there was compelling evidence that tree 3 had been present. In postulating its previous existence, Mr Barrell relied on both the size of the gap between trees 2 and 4, and the otherwise relatively equal spacings between the other boundary trees, together with the cracks in the concrete driveway opposite where he says tree 3 would have been. The latter part of Mr Barrell’s reasoning is, of course, circular. Under cross-examination, Mr Barrell was referred to Mr Barton’s evidence based on a Google aerial photograph taken in winter of 2001. In Mr Barton’s opinion, this showed the canopy of tree 2 and tree 4, but no tree of a similar size in-between. Further, on Mr Barton’s inspection of the ground between trees 2 and 4, there was no evidence of a stump or of a stump having been removed. Mr Barrell then accepted Mr Barton’s opinion that if tree 3 had existed, it was
removed more than 16 years ago and it would not be possible for any remaining roots to have caused cracking.
(d)At slab 2 there is a root visible on the southern side, running parallel to the slab, but there is no corresponding cracking.
(e)Cracks are occurring across the driveway away from the trees, but they are also running up the driveway where there are no trees.
(f)Cracks are emanating from the side opposite the boundary trees, as well as on the same side as the boundary trees. As earlier noted, on the side opposite the boundary trees, there are trees growing on the Semples’ own property.
[146] I return to slab 1. Mr O’Brien accepted that the surface root seen disappearing under slab 1 would have increased the risk of cracking either side of the root as a vehicle drove across the area. He accepted that it contributed to the cracking. He described it as a secondary effect. The main cause of the cracking, he said, was due to vehicle loads. Although described as a secondary effect, I consider it is nevertheless material. The root acted as a pivot point which resulted in the concrete cracking either side.
[147] As with the timber deck, the Semples plead that the extent of the damage cannot be assessed and evaluated until full destructive testing can be carried out by the removal of the driveway. I do not accept that. The evidence of Mr Barton was that he excavated several test pits on No 118 where the boundary trees are located to observe the local soil profile. It consists of topsoil to a depth of 100-200 millimetres, then a subsoil of heavy clay. This heavy clay is not conducive to good growing conditions for tree roots, according to Mr Barton, so the majority of the roots will be in the 100- 200 millimetres of topsoil. Mr Barton makes what appears to be a proper assumption that the original ground and soil conditions at No 120 are similar to those at No 118.
[148] There was no evidence on behalf of the Semples as to why test pits, to a relatively shallow depth of 100-200 millimetres, could not have been dug either in the
soil in the strip where the hedge is growing between the northern side of the driveway and the privacy fence, or on the southern side of the driveway. Even if this had not been possible for some reason, it seems it would have been possible to use a trowel and steel probe to detect roots that were not close to the surface. This is what Mr Barton was proposing to do on his site visit, but Mr Semple was not prepared to allow it, as he maintained that would be destructive investigation.
[149] Instead, the Semples have come to court armed with insufficient evidence to prove their case on the balance of probabilities. I found their expert, Mr Grigg, to be a well-prepared and careful witness who gave evidence within the bounds of his area of expertise. But Mr Grigg is an architect and properly deferred to Mr O’Brien, the Wilsons’ witness, an engineer who had the relevant expertise in the area of concrete construction.
[150] It was not sufficient, in my view, for the Semples to produce evidence of three tree roots in the vicinity of slabs 1 and 2, and then to ask the Court to draw the conclusion that roots from the boundary trees were the cause of all the cracking in the driveway. That effectively was the evidence of Mr Barrell. I find his evidence was overstated. He did not allow for other possible causes being considered in the way that Mr Barton, the Wilsons’ arborist, did.
The driveway – overall
[151] Overall, in relation to the driveway, I find that the Semples have established an actionable nuisance arising from the presence of tree roots from the boundary trees only in relation to part of the damage caused to slab 1.
The lawn area – trees 8-11
[152] For completeness, I need to address the position in relation to trees 8-11. I do so briefly. Tree 8 is adjacent to the timber privacy fence. Tree 9 is near the end of that fence. The evidence was that there were significant roots from tree 9 crossing the property boundary just beyond the end of the fence. They were not visible on the surface, but had been exposed by Mr Semple for Mr Barrell’s inspection. However, I have already found that there was no damage from tree roots to the fence.
[153] As to trees 10 and 11, which were adjacent to the grassed area, again there was substantial root encroachment originating from those two trees. Again, they were not visible on the surface. However, they were not in proximity to any built structures. The encroachment in itself does not give risk to an actionable nuisance in the absence of any damage or in the absence of any substantial and unreasonable interference.
Relief
Damages
[154] At common law, damages may be awarded for past loss (subject to a duty to mitigate), either alone if the nuisance has ceased, or together with an injunction if it is still continuing.27
Mitigation of damages
[155] A plaintiff’s duty to mitigate is well-explained by Gendall J in Hawkes Bay Protein Ltd v Davidson,28 a nuisance case involving allegations of discharge of offensive odours. Gendall J stated:
[40] The general principles are well known. The important rule of avoiding consequences of a wrong done to a plaintiff is that he/she must take all reasonable steps to mitigate the loss consequent upon a defendant's wrong. Plaintiffs cannot recover damages for any loss, which could have been avoided but which they failed either through unreasonable action or inaction to avoid. Put shortly, a plaintiff cannot recover avoidable loss. The second rule is the corollary of the first. Where a plaintiff does take reasonable steps to mitigate a loss consequent upon a defendant's wrong, there can be recovery for any loss incurred in so doing. That is, recovery can occur for loss incurred in any reasonable attempts to avoid loss arising out of the defendant's wrong. The third rule is that where a plaintiff does take steps to mitigate the loss incurred consequent upon a defendant's wrong, and these steps are successful then the defendant is entitled to the benefit occurring from the plaintiff's action as being liable only for the losses lessened; see McGregor on Damages (16th ed), ch 6, paras 285 – 287. Whether a loss is avoidable by reasonable action on the part of a plaintiff is a question of fact and not law. Payzu v Saunders [1919] 2 KB 581.
27 Atkin, above n 1, at [10.2.09].
28 Hawkes Bay Protein Ltd v Davidson, above n 4.
Branches – remedy
[156] In their first cause of action, the Semples seek a declaration that the boundary trees be removed by the Wilsons at the Wilsons’ cost. In the second cause of action, they seek a mandatory injunction restraining the Wilsons from repeating the nuisances and a mandatory injunction restraining the Wilsons from permitting encroachment by the boundary trees onto No 120.
[157] In considering an appropriate remedy and adopting the words of McGregor J in Woodnorth v Holdgate, “I must limit my consideration to the injury resulting from encroachment; and it is not competent to take into consideration other injury resulting from natural forces as a consequence of ordinary user”.29
[158] Therefore, in relation to the encroachment by branches of the boundary trees, I consider it is a sufficient remedy to order that the branches of trees 1 to 11 inclusive be trimmed back to the boundary and that they be kept trimmed so as to prevent any future repetition of the encroachment. The order will be framed as a mandatory injunction. A similar order to prevent future encroachment was made in Darroch v Carroll.30 Mr Rowe accepted that the Court could make such an order in this case. I note that there was no evidence, as there was in Blakesfield Ltd v Foote, to suggest that there might be a potential problem of “flat siding” by cutting the tree branches on one side.
[159] Mr Barton’s evidence was that if the encroaching branches were cut back a “bit further” beyond the boundary, during the first growth season which is usually spring, the trees would start to put foliage back over the boundary. The distance would vary according to the tree. In the first year, the initial growth could be up to a metre, but that growth would usually be upright so that would result in perhaps 300 to 400 centimetres overhanging the boundary within the first year for some of the trees.
[160] The Wilsons will need to be vigilant to ensure that the branches are kept cut back so they do not extend beyond the boundary. This will require an ongoing process
29 Woodnorth v Holdgate, above n 3, at 555.
30 Darroch v Carroll, above n 3, at 1003.
of trimming and the injunction I propose to make will be framed in that way. I was unimpressed with Mr Wilson’s evidence that despite being aware of encroaching branches, he nevertheless left them in that state. The Wilsons will need to ensure there is ongoing compliance. Both initial compliance and ongoing compliance is to be at their expense.
[161] Therefore, in considering the issue of the branches separately from the roots, I do not consider it is necessary to order the removal of all or any of trees 1 to 11.
Roots – remedy
[162] In the first cause of action, the Semples seek a declaration that roots that encroach from the boundary trees onto their property be removed at the Wilsons’ expense.
[163] The Semples also seek mandatory injunctions in the same terms as referred to above in relation to the tree branches.
[164] The Semples are entitled to an order that the root which I have identified which has contributed to the damage to slab 1 be removed.
[165] There is also the issue of the replacement of slab 1 and the possibility of the installation of a root barrier.
[166] Both arborists were agreed that a root barrier would be effective to prevent future damage. They also agreed that it would be necessary for that root barrier to be installed on the Semples’ land. The installation of a root barrier on No 118 would mean the cutting of roots close to the base of tree 1 (and possibly tree 2). That would risk damage to the tree. It would also put the tree at risk of falling over as a result of the support roots being cut close to the trunk of the tree.
[167] The steps in [164] and [165] above provide a sufficient remedy for the actionable nuisance in relation to slab 1 without the need to remove any of the boundary trees. I address the issue of the contribution by the Wilsons to the cost of
replacing slab 1, the removal of the tree root and the installation of a root barrier for slab 1, under the heading of special damages below.
Inquiry into damage
[168] As part of the relief sought, the Semples ask for an inquiry by the Court into the full extent of damage to No 120 following destructive testing of the timber deck and the concrete driveway.
[169] Rule 16.2 of the High Court Rules provides for the Court to order “an account or an inquiry”. There has only been limited judicial consideration of this rule, and it appears only to have been applied in the context of assessing quantum. In Hau v Saulala,31 Keane J stated as follows:
[41]Rule 16.2 is widely expressed. It enables this Court:
On the application of any party, before, at, or after the trial of a proceeding, order an account or inquiry, whether or not it has been claimed in that party’s pleading.
[42]In the Newmans Tours case in 1992, speaking of r 384, from which r
16.2 derives and with which it is effectively identical, however, Fisher J said:
Rule 384 is not there to establish liability. Only if liability had been established would it be appropriate to consider whether the making of an inquiry would be the appropriate method of establishing the quantum of the remedy.
[43] In Rod Milner Motors Ltd v AG the Court of Appeal was equally emphatic. Though the Court agreed that, under the rule, “the potential subject- matter for inquiry is not restricted by definition”, it also agreed with the commentary in McGechan on Procedure that it must be confined to “matters of detail which cannot conveniently be dealt with in the context of the normal course of trial”. Classically, the Court said, it will be an inquiry into damages. The power to order an inquiry, the Court concluded, “should not be used as a method of obtaining separate hearings on liability and damages”.
(Citations omitted)
[170] It seems clear that the rule is not for the purpose of the Court conducting or directing a forensic investigation to establish whether damage has occurred and its extent.
31 Hau v Saulala [2013] NZHC 1622.
[171] In his submissions, Mr Rowe appeared to accept that the Court would first need to find that there is an actionable nuisance. He said the Semples would then carry out testing of the driveway and deck, and rectify the problems. The Court would then determine a reasonable amount for the Wilsons to pay in damages based on what the Semples had paid to have the damage rectified.
[172] However, I have determined there is no actionable nuisance in relation to the deck or the driveway, except for slab 1. For slab 1, damages can be addressed now.
Special damages
[173]The Semples seek special damages of $174,747.00 made up as follows:
(a) Diminution in market value of their house caused by leaves from the boundary trees blocking the gutters causing ingress of water into the fabric of the house being the reasonable cost to restore the value of the house: $30,300.00
(b)
Diminution of market value of the cracked and uplifted driveway, comprising removal of the concrete, removal of encroaching roots and relaying of the concrete driveway:
$30,000.00
(c)
Diminution in market value of the deck and pool surround due to the underground roots comprising removal of the deck and pool surround, removal of encroaching roots and replacement of the deck and pool surround (quote from Custom Decks and Fences Ltd):
$30,585.00
(d)
Current diminution in market value of the land of No. 120 by virtue of the existence of the Boundary Trees (independent of House, deck and driveway):
$80,000.00
(e)
Total diminution in market value of No. 120
$170,885.00
[174] To this they add the cost of what they say are reasonable steps they took to eliminate the effects of the nuisance made up as follows:
(a) Purchase of a net to cover the pool, to prevent
the falling leaves and debris from blocking up the swimming pool pump:
$1,000.00
(b)
Anticipated repair of pool privacy fence:
$2,000.00
(c)
Side-trimming of the Boundary Trees (Treescape Ltd, 29.10.2015) to reduce shading and inundation of leaves:
$862.00
(d)
Total
$3,862.00
[175]I deal with each of those claimed amounts in turn.
(a)I consider that the Semples are entitled to part of the amount paid to Top Shelf builders to have the guttering replaced and associated work being carried out. It appears that as a result of that work, there is now no water ingress into the house. In other words, the Semples took proper steps to mitigate their loss. However, leaves and other debris from the encroaching branches were only partly responsible for the clogged gutters, resulting water ingress and damage. I consider that one-third of the amount claimed, namely $10,100, is a fair reflection of the contribution from the leaves and other debris from the encroaching branches towards the cost of repairing the damage.
(b)In relation to the driveway, Mr Rowe relies on a quote dated 17 October 2016 by a building firm, Epic 360, to replace the concrete driveway at a cost of $20,232.93 (including GST). In oral evidence, Mr O’Brien gave a rough estimate of the cost of installing three slabs, including preparation and labour at $6,000. In other words, $2,000 per slab. There was no evidence as to the cost of installing a root barrier.
Bearing in mind that the tree root was only part of the cause of the damage to slab 1, I consider that the Wilsons should pay a share of the costs of removing and replacing slab 1, and a share of the cost of the removal of the tree root and the installation of a root barrier in relation to slab 1. However, I do not have a proper evidential basis for ordering
a precise monetary amount. My order will therefore be that the Wilsons are required to pay one-third of the cost of the removal of the existing slab and the installation of a replacement slab 1, together with one third of the cost of the removal of the tree root under slab 1 and the installation of a root barrier in relation to slab 1.
(c)The amount of $30,585 is sought for the dismantling and replacement of a new timber deck. I disallow that claim as I have found that the tree roots did not cause or contribute to the damage to the pool deck.
(d)The diminution in market value because of the existence of the boundary trees is based on a valuation prepared by Peter Bates, a property consultant and land economist. In his valuation report, he states his opinion that the boundary trees reduce the value of No 120 by at least $50,000. This part of the claim is framed as being independent of the issues with the house, deck and driveway. The boundary trees in and of themselves, absent any encroachment, do not constitute an actionable nuisance. In any event, if there is a nuisance and a Court grants relief in a form that results in the nuisance ceasing (as I will do), there is no basis for a claim in damages for loss of value on account of ongoing nuisance. There can, therefore, be no claim for damages under this head.
[176] In purchasing the swimming pool net, the Semples took proper steps to mitigate their loss. I allow half of the claim of $1,000 for the purchase of a net for the swimming pool, namely $500, given that other non-encroaching parts of the boundary trees are also responsible for leaves and debris in the pool.
[177] I allow the full amount of $862 for the side trimming of the boundary trees by Treescape Ltd on 29 October 2015.
[178] I disallow the claim of $2,000 for the anticipated repair of the pool privacy fence. There was no damage from the tree roots.
General damages
[179] The Semples each claim $30,000 for the stress, anxiety, disruption and inconvenience suffered by each of them and the children of each of them.
[180] Mr Casey submits that general damages for stress, anxiety, disruption and inconvenience, even if established, are not recoverable in a claim for nuisance. That is not correct. In Graham v Scott,32 the applicant appealed against a District Court judgment awarding the respondent exemplary damages of $5,000 in an action for private nuisance. Mallon J quashed the award because the respondent had not claimed them. She substituted an award of $2,500 general damages for loss of amenity for a six-week period that Mr Scott was impeded from accessing his property and the associated stress from that loss of amenity.33
[181]In Hawkes Bay Protein Ltd v Davidson,34 Gendall J stated:
[57] … But there remained, over a significant period, a loss of enjoyment of the property that the Davidsons, apart from the nuisance, had wished to occupy. Measure of damages cannot be a mathematical exercise. There also has to be factored into any award of damages the obligation on the Davidsons to mitigate. The assessment of general damages is very much a matter of personal judgment and the Court must decide that which is reasonable to remedy the true loss suffered by the occupiers, based upon the amenity value with appropriate discount to reflect the obligation to mitigate.
[182] I accept the evidence of the Semples that the effects of the encroachment by the branches of the boundary trees has caused them stress, anxiety, disruption and inconvenience. I also accept that the Wilsons have exacerbated that stress, anxiety, disruption and inconvenience by not trimming the overhanging branches. This was not something the Semples could do from No 120.
[183] However, part of the stress, anxiety, disruption and inconvenience can be attributed to issues with the deck and driveway. The Semples have not proved these parts of their case, except for slab 1 in the driveway.
32 Graham v Scott [2012] NZHC 2834.
33 The Court of Appeal refused the application for special leave to appeal in Graham v Scott [2014] NZCA 269.
34 Hawkes Bay Protein Ltd v Davidson, above n 4.
[184] I also consider part of the stress arises from the Wilsons’ installation of a security camera which films their driveway. I accept Mr Wilson’s evidence that for technical reasons the camera has been positioned in a particular location which results in part of the Semples’ property also being filmed. The pixilation presently occurring does not completely block out all of the Semples’ property. Mr Wilson acknowledged that. I accept his assurance that this will be remedied.
[185] In the end, a decision to award general damages and if so, the amount, is a matter of personal judgment. I consider that this is a case where an award of general damages to reflect disruption and inconvenience to the Semples in the sum of $5,000 each is appropriate.
[186] I make no award in relation to their children as there was no evidence about any effects on them.
Orders
[187] I make an order by way of a mandatory injunction that the Wilsons are to cut back to the boundary and to keep cut back to the boundary, the branches of trees 1 to 11 inclusive, at their expense.
[188] In the event that any debris from the encroaching branches enters the Semples’ property in the course of implementing the order in [187] above, the Wilsons or their contractors are responsible for removing that debris, by arrangement with the Semples.
[189] The Wilsons are to pay the Semples $21,462.00, made up of the following sums:
(a)$10,100 towards repairs and replacement of the guttering.
(b)$500 towards the purchase of a swimming pool net.
(c)$862 paid to Treescape Ltd to trim encroaching branches.
(d)$10,000 general damages for disruption and inconvenience.
[190] The Wilsons are to contribute one-third of the cost of removing and replacing slab 1, one-third of the cost of the removal of the tree root under slab 1 and the installation of a root barrier beside slab 1.
Costs
[191] The Semples have achieved only partial success. I encourage the parties to agree costs and file a joint memorandum. That may be a forlorn hope given the extent of the disagreements to date. Any agreed memorandum is to be filed within 15 working days of the date of this judgment. In the event that there is no agreement, the Semples may file a memorandum within 10 working days after the date for the agreed memorandum and the Wilsons 10 working days thereafter. Memoranda should not exceed five pages.
Gordon J
LEGEND
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