Consideration of the jurisdictional tests
36One of the photographs contained in Mr Melinz 's report (Exhibit H photo MKA 005) shows a large tree root leading from the centre of the applicants' rear yard toward the southern boundary fence. This root has been partially severed and the extent of the root in proximity to the wall is obscured by a large pile of paving bricks and other discarded building materials. This photograph is reproduced below.
37This root had been removed by the applicants as part of the landscaping of their rear yard. During the course of the in court evidence from Mr Ford and Mr Taylor, Mr Taylor was asked to examine a photograph in a supplementary bundle of photographs (Exhibit K) that had been tendered on behalf of the applicants. That photograph is reproduced below.
38Mr Taylor, on page 5 of his statement of evidence (Exhibit 1), responded to a number of photographs that had been provided to him showing roots that had been discovered by the applicants when the brick paving that had covered the soil surface of the rear yard had been removed. Mr Taylor said, amongst other things:
Other roots were located on the southern side of the applicant's property adjacent to the single brick boundary fence between the applicant's property and the Northern property boundary of [the adjacent property]. It was observed by the author at the August 2013 site inspection that two (2) Casuarina tree species approximately 12 m in height were growing within the rear of [the property second removed to the south].
These trees are located approximately 5m - 7m from the southern boundary of the applicant's property. There were no trees within the rear of [the adjacent property] adjacent to the applicant's property. The Eucalyptus scoparia (subject tree) is also located approximately 7m from the southern boundary of the applicants property therefore there is a strong possibility that some roots located adjacent to the southern boundary of the applicant's property have originated from the Casuarina trees.
39Mr Ford was asked, in light of what appeared to be a number of feeder roots attached to this root and its proximity to the cracking of the boundary wall with the neighbouring property to the south, whether it was possible that that root was, in fact, a root from one of the Casuarina trees located two properties away to the south, being trees to which Mr Taylor had referred.
40After his examination of the second of the photographs reproduced above, Mr Ford concluded that it was possible that the large root depicted in the photograph could be a root from a Casuarina growing in a northerly direction rather than a root from the Wallangarra White Gum.
41When the hearing resumed in early November, the applicants were permitted to rely on a supplementary statement of evidence (Exhibit T) prepared by Mr Ford. For the purposes of this decision, it is necessary to reproduce paragraphs (3) to (7) and (20) of the supplementary report (unusually, there are no paragraphs numbered between (8) and (19) inclusive in the document).
3. My brief was to re-examine a photograph, labelled PH - 021 in a report tabled as exhibit "K" in the Land and Environment Court hearing of 11 September 2013, under higher magnification than that presented in the report. In the light of the more detailed examination I was asked to determine then if it were possible to maintain my opinion outlined in section 4 below.
4. Under questioning by Senior Commissioner Tim Moor (sic), I was requested to give my opinion as to whether I agreed that structures in photograph PH - 021 appeared to be feeder roots emanating from the main root and that the orientation of the structures was towards the camera, that is, towards the north which would indicate that the roots were growing from the south. At that time, examining the photograph at the particular magnification presented, I did agree that the structures appeared to be feeder roots emanating from the main root and that the orientation was towards the viewer.
5. For the purpose of my brief I again examined photograph PH - 021 (see photograph, APPENDIX B labelled Photograph 1). This photograph is at the magnification viewed in Court. However, as the photograph supplied to me was in digital form, I was able to magnify it (see photograph 2). At the magnification shown I now doubt that the structures referred to are attached feeder roots. There is a lot of debris which I do believe is root material but it is not possible to determine beyond doubt if any of that root material is attached to the large root or merely severed material with one end lying under the large root. There may possibly be two, attached feeder roots, one on the right side of the large root, towards the viewer and one on the left side of the large root, further away from the viewer. The one closer to the viewer could be oriented towards the viewer, that is to the north, or perhaps down and the one, further away from the viewer, is oriented away from the viewer, that is, to the south. As the orientations are in opposite directions, no firm conclusion as to the direction of growth can be drawn from this.
6. Another possibility that might be construed as a side root in photograph PH -021, exhibit "K", is just before the point where the large root appears to have been severed. Under higher magnification (see photograph 3), this appears to be almost certainly damage to the root consistent with what might be a slicing effect from a shovel or spade.
7. In addition to photograph PH - 021, I have also been asked by the applicant to examine a photograph supplied to me in digital form by Steven Teh (see photograph 4). This photograph, according to Steven Teh is to appear in a further report by the witness, architect Melinz Melinz and I am advised is a photograph of the same root, taken in the same set as photograph PH - 021 and immediately prior to it before subsequent further disturbance. At higher magnification (see photograph 5), what appears to be a side root can be clearly seen. The orientation of the apparent side root is away from the viewer, that is, towards the south which would indicate the direction of growth is towards the south. However, as with the other possible subsidiary or feeder roots, it is not possible to determine beyond doubt if it is attached to the main root.
CONCLUSIONS
20. It is now my opinion, after examining photograph PH - 021 at higher magnification, that it is not possible to say with sufficient certainty that the structures in photograph PH - 021 are feeder roots attached to the large root and hence that their orientation towards the viewer would indicate that the direction of growth was towards the north. In any case, if the structures are indeed attached feeder roots their orientation is both toward and away from the viewer which precludes any firm conclusion as to the direction of growth.
42To enable an understanding of this evidence, it is necessary to reproduce the photographs referred to in this Exhibit. Photograph 1 was also reproduced earlier after paragraph (37) of this judgment.
43Our conclusions concerning whether or not we can be satisfied that this root is from the Wallangarra White Gum and thus support the necessary inference that arises from the applicants' submissions that the only roots under the applicants' property at any relevant time are roots of this tree and cannot be from any other tree (such as one of the Casuarinas) is a matter that is critical not only on this issue but also with respect to the roots that are alleged to be causing damage to the slab within the room in the lower ground floor of the applicants' property and the roots that were photographed in the applicants' sewer line.
44We observe that the root that is the subject of this detailed analysis in Mr Ford's supplementary statement was also the subject of a supplementary statement from Mr Melinz setting out the provenance of these photographs, photographs that were taken on 11 January 2013.
45The relevant element of Mr Melinz 's supplementary statement (Exhibit S) dealing with this tree root is in the following terms:
30mm root running generally North - South in middle of backyard & position of cracking in South boundary wall
14. There was a second large root approximately 30mm in diameter running to the South boundary wall (shared with 10 Rosser St) and under it.
15. The root noted above was discussed during the hearing on 11 September 2013, and the question was raised if there was a feeder root from the main root, and that it may be moving from South to North (Exhibit "K" - PH-021).
16. This root was located near, and appeared to be heading towards the South boundary wall. The root was pulled out by hand.
17. It appeared to me that the closer this root was to the South boundary wall the diameter was smaller. We started in the centre of the garden as one of the concrete pads was to be poured there, so we severed the root somewhere in the middle.
18. This root did not divide into smaller roots from the South to North. I recall hacking and digging a single root that was thicker the closer it was to the North wall. From the photograph, it appears to divide into a smaller root as it reaches the South wall (Annexure "A - PHOTOGRAPHS" - Photo - AM02: 30mm Root (AM02)).
19. This photo was taken approximately ten seconds before PH-021 in Exhibit "K" and so the smaller root heading to the South wall was still intact when it was taken. One of us was still pulling out the root while the other was taking photographs.
20. In photo PH-021, taken 10 seconds later, we had already pulled the root up and further out of the ground. Many of the attached smaller roots had been dislocated or moved as a result. The position of the root has also changed from AM02.
46The photographs appended to Exhibit S with the verifying timing information are also reproduced below:
47It has been necessary to reproduce this material at some length because the question of whether or not we can be satisfied with the necessary degree of comfortable satisfaction that this root is a root from the Wallangarra White Gum goes on to the heart of three elements of the application.
48The question of whether or not we can conclude, in these proceedings, that, on the balance of probabilities the damage to the southern area garden wall; damage to the concrete slab (taking applicants' case at its highest - that that damage has been caused by tree roots) and to the sewer line must have come from roots of the Wallangarra White Gum rather than from roots of one of the Casuarinas is fundamental to the applicants' complaints on these three matters.
49In this context, we will have carefully read the additional material contained in Mr Ford's supplementary statement in conjunction with what is depicted in the photographs appended to that statement.
50We make the observation that Mr Ford has not retracted his concession from his oral evidence that it is possible that this root is a Casuarina root emanating from under the southern wall. Indeed, the nature of the conclusion that is set out at (20) of his supplementary statement, in our view, expressly leaves open the possibility that this root may not be a root from the Wallangarra White Gum.
51We have also closely examined the photographs that were were attached to his supplementary statement in light of his assertion, in (6), that that which is depicted appears to be almost certainly damage to the root consistent with what might be a slicing effect from a shovel or spade.
52We are unable to come to the same conclusion. There is no sign of differential colouring on the element of the larger portion of root structure that would be the face toward the smaller element had this root been sliced at that point. There is nothing in the photograph that demonstrates any exposure of internal root wood where the slicing is alleged to have occurred. Indeed, those elements in the photograph are consistent with each element being fully bark covered. It would seem to us that, on this basis, it is not possible to reject the very real likelihood that this is a junction point of two, quite substantial, roots with that junction point demonstrating that the root is, in fact, one that emanated from the south rather than from the north. Indeed, despite Mr Ford's conclusion on this point, we are satisfied that the better view remains that this a depiction of a junction point where a smaller (but nonetheless substantial) root departs from and grows toward the north from a larger root growing to the north - being a root from a Casuarina.
53We have also carefully considered the material that was contained in Mr Melinz 's supplementary statement as extracted and set out above. We make three observations with respect to it.
54First, although Mr Melinz made a comprehensive initial statement, none of this material was adverted to in that statement - let alone contained in it (despite the fact that, self-evidently, the root that has been the subject of this discussion is obviously the root that has caused the cracking of the wall on the southern side of a rear yard, one of the specific elements of the claim pressed on behalf of the applicants).
55Second, the assertion in (18) of his supplementary statement that the root did not divide into small roots from south to north, although made in absolute terms, is contrary to the express conclusion we have reached from such photographic evidence as is available to us, particularly from photograph 3 of Mr Ford's supplementary report.
56Finally, his assertion in the third sentence of (18) that this root appears to divide into a small root as it reaches the south wall is nonsensical as the photo does not depict this root as it reaches the southern wall - it remains buried under a pile of pavers and other building materials. This assertion must also be viewed in light of the analysis made by Mr Ford in his supplementary statement concerning feeder roots.
57There is no observable division, in any substantial fashion, of this root as it travels near the south wall and there is no photographic evidence in the proceedings whatsoever of this root as it reaches the south wall.
58Even taking Mr Ford's broad conclusion concerning feeder roots at its highest, as set out in his (20), those conclusions do not sufficiently displace the reasonable possibility that this large root has originated from the south. When taken in conjunction with that which we have set out concerning our analysis of his photograph 3, we are satisfied that it remains appropriate to conclude that this major root originates from the southern side of the southern wall.
59It follows, on the basis of our analysis of such evidence concerning this root as is available in these proceedings - the photographic materials discussed above; Mr Ford's concession during the course of his oral evidence; the fact that the conclusion in Mr Ford's supplementary statement is equivocal and does not withdraw or resile from the possibility that this root is a root from one of the Casuarinas and the deficiencies in Mr Melinz's belated evidence concerning this root when coupled with the conclusions that we have drawn from photograph 3 appended to Mr Ford's supplementary report - that we are satisfied, on the balance of probabilities, on this evidence, with the necessary degree of comfortable satisfaction required in light of the consequences of such a conclusion, that the root causing the damage to the wall on the southern boundary is a root of one of the Casuarinas located on the property second to the south of the applicants' property.
60It further follows from that conclusion concerning this specific element of the applicants' claim that a broader general conclusion must also follow. That conclusion is that it is not possible to be satisfied that all tree roots that are or may have been present on the applicants' property are roots that emanate from the Wallangarra White Gum.
61It is, however, a necessary prerequisite of the two remaining elements of the applicants' claim that are discussed below, for us to have concluded that the only roots that could be present on the applicants' property are, on the balance of probabilities with the necessary degree of comfortable satisfaction in light of the potential consequences of such a finding, roots that emanate from the Wallangarra White Gum.
62The further consequences of us not being able so to conclude are also discussed below in our analysis (necessarily brief in light of our conclusion concerning the presence of at least one substantial Casuarina root on the applicants' property) than might otherwise have needed to be the case.