Carnus v Chiaraglio

Apportionment 29As Mr Seymour indicated that the respondent does not contest some liability with respect to the damage to the retaining walls and upper rear level pavers and he only pressed matters of apportionment, that leaves matters of apportionment, only, requiring consideration and determination (as we set aside the issue of the tree itself for the reasons later discussed). 30The positions of the parties on the question of apportionment are starkly different. The position put by the applicant is that the respondent should meet the entirety of the cost of removal of the tree and of such rectification works for which we determined that the applicant should be compensated. Her view is a short and simple one. It is that the tree is the respondent's tree and, as a consequence, the respondent should meet the totality of the removal and compensation costs that would arise from any orders that we might make. She does not concede that there should be any apportionment requiring her to contribute to the costs. 31Mr Seymour submitted that apportionment was appropriate and that the appropriate approach is to require that each of the parties should bear an equal share of the costs arising from any orders than we might make. 32As we understood him, he advanced this proposition on a number of separate bases. First, he submitted that, for any elements of damage that arose prior to the coming into effect of the Trees Act in early 2007, the former common law position concerning nuisance should apply. If this were to be the position, he submitted that the applicant had a positive duty to mitigate the damage to her property and that she had failed adequately to do so. He also submitted that it was relevant that for a deal of the relevant periods of time, his client had lived in the United States and was not in a position to undertake direct intervention with the tree but had provided all reasonable assistance to the applicant in enabling the applicant to do so. 33With respect to the position prior to the commencement of the Trees Act, there is no limitation on the retrospectivity of this legislation with respect to applications made after that commencement. It is clear, with respect to the application of the common law position concerning nuisance, that, for applications made after the commencement of the Trees Act concerning trees to which the Trees Act applies, actions in nuisance are not available (see s 5 of the Trees Act). There is no suggestion in this section or in any other provision of the Trees Act that this extinguishment of the former common law action of nuisance for relevant past tree damage, this being encompassed by the first jurisdictional test in s 10 of the Trees Act, is in any way preserved and available to be pursued for damage caused prior to the commencement of the Trees Act. 34To the contrary, it is our opinion, consistent with the opinion of Preston CJ set out in Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 at para 218, that for actions for property damage that satisfy the jurisdictional tests of:

• Caused by a type of vegetation encompassed within the statutory definition of a tree in s 4;
• meeting the requirements concerning land use zoning contained in s 4;
• satisfying one of the tree damage related jurisdictional tests contained in s 10(2)(a). then there is no remaining common law jurisdiction. As His Honour noted in para 219, the Court could not exercise any other residual common law power (of a non-nuisance nature) that might remain. The only basis upon which we exercise jurisdiction is that provided by the Trees Act. 35The broad order making discretions are those contained in s 9 of the Trees Act, discretions constrained only by the limitations therein that those orders are for the purposes of rectifying, remedying or restraining damage to property or preventing injury to persons. In exercising that discretion, we are required to have regard to relevant ones amongst the broad assessment factors contained in s 12 (including matters relating but not confined to contributing and mitigating factors). 36The second submission made by Mr Seymour in support of apportionment is in part based on the fact that, over time, there has developed a shared ownership of the tree and that as a consequence, it would be reasonable to have expected the applicant to make efforts to resolve the impact on her property occasioned by a tree of which she has become part owner. 37Although similar in structure to his earlier submission that there was a common law obligation to take steps to mitigate the damage to the applicant's property, as we understood his argument on this second basis, it is founded on reasonableness rather than obligation. 38He submitted that it was entirely reasonable to expect, as the respondent was resident in the United States, that the applicant should be (and should be expected to be) the motivating and driving force behind the resolution of the problems caused to the applicant's property by the tree. 39There are significant difficulties that stand in the path of us accepting these propositions. We are unable to accept Mr Seymour's submissions for the following reasons. 40As we understood the position from the correspondence between the parties that was tendered by the respondent, the respondent's premises have been tenanted consistently (if not continuously) throughout the period of her residence in the United States. As a necessary consequence, she must have made arrangements for the management of the property such as payment of rates; payment of land tax, if applicable; collection and banking of rents; arrangement of insurances and the like. Whether she undertook these activities, herself, in some remote fashion or whether they were conducted at arm's length by a real estate agent or some other person on her behalf, is not relevant. It was necessary at least to some extent for her to take an active role in the management of the property. She may also have had to make arrangements for the carrying out of repairs to her premises but that is not a matter about which we have any evidence and thus do not, therefore, take into account that possibility 41We also observe that the respondent attended the proceedings conducted on-site. As we understood the position, she had flown to Australia, with her comparatively recently born infant, for this purpose and, as we also understood the position, proposed to return to the United States shortly after the hearing. This, in our view, clearly demonstrates an ability to respond in an organised fashion to a matter concerning her property that she considered to be of importance. 42In our opinion, a careful reading of the correspondence that has taken place over a considerable period of time between the parties makes it clear that the respondent is in denial about any possibility of her bearing responsibility for damage that the tree may have caused to the applicant's property. Although, for the reasons we have earlier set out, we are not persuaded that the extent of the damage caused by the roots of the tree is as great as is claimed by the applicant, that position has only emerged at the hearing in these proceedings as there has been no discussion, as we also read the correspondence, of the dilapidated state of the applicant's gutters and alternative possible causation as a result. 43The correspondence makes it clear that the respondent reacted to the concerns of the applicant in two distinct fashions. These were confined to cooperation with the applicant in the applicant's endeavours to arrange removal of the tree and, second, in a consistent denial that she, the respondent, might bear any liability for damage to the applicant's property. These positions, in our view, in face of the applicant's persistence over many years in seeking to resolve the matter, demonstrate to us that the respondent rather than the applicant has been unreasonable in failing to recognise and react appropriately to the applicant's concerns. 44This is to be coupled with the fact that the extent to which the tree is now located on the applicant's land is a position that has increased significantly, but we accept not absolutely entirely, over the very lengthy period during which the applicant has endeavoured to resolve these matters of concern. This increased ownership of the tree should be ignored as, had the issues been resolved within a short time of the respondent being made aware of the problems being caused by the roots of her tree, the increased "ownership" would not have occurred. We are thus satisfied that it is appropriate that the respondent should meet the entirety of the cost of any order we might make concerning the tree (after dealing with the matters set out below under the heading "The future of the tree") and the entirety of the cost of the rectification of such damage to the applicant's property as we have found can be regarded as having been caused by the roots of the tree.

The future of the tree 45As part of our consideration of what, if anything, should be done about the tree, it is inevitable from its location that if there were to be any order for removal of or interference with the tree, it would be likely that access would be required (depending on the nature of the orders that might follow) to some or all of the four properties whose owners are not currently parties to the proceedings and who have not only not had the opportunity to be heard on access but have also not had the opportunity to be heard on whether or not any orders for removal of or interference with the tree should be made at all. 46Although, pursuant to s 9(2)(g) of the Trees Act, we have power to order access to such properties for the purpose of removal of or interference with the tree, we do not consider it appropriate to contemplate making such an order or giving effect to any written consent from the owners of any of these properties to which access would be required without providing each such owner to be heard not merely on questions of access but also on the broader issue of whether there should be any order made at all for removal of or interference with the tree.

Conclusion 47We have concluded that the only element of damage to the applicant's property for which we can be appropriately satisfied that the roots of the tree have caused is the damage to the garden bed and low retaining walls and lifted pavers at the rear of the applicant's property. We cannot be satisfied that any structural damage to her house has been caused by the tree nor that the cost of relaying the pavers at the rear door to her property was necessary as a consequence of damage caused by the roots of the tree. We have set out our reasons why any costs should be met by the respondent with no apportionment. 48We are also satisfied that, under the circumstances, it is not appropriate that we make any orders for removal of or interference with the tree (let alone for mandated access to other properties for these purposes) without providing those property owners with an opportunity to be heard concerning the fate of the tree and any possibly associated access matters. 49After considerable thought, we have concluded that we should confine ourselves to giving the conclusions we have reached concerning damage to the applications property and give directions as to how the other potentially affected property owners should be given the opportunity to be heard on questions concerning fate of the tree. Although this will necessitate orders pursuant to s 8(2) to give notice to the other landholders and the holding of a further hearing to permit them to be heard on matters concerning the tree and, if we were to order removal of or interference with the tree, issues of access for such purpose.

Directions 50We therefore give the following directions: (1)The applicant is to serve, by personal service and by no later than 4.30pm on Wednesday 8 June 2011:

• a copy of this judgment;
• the supplementary hearing notice direction provided with this judgment;
• a copy of her Tree Dispute Application concerning the Lemon-scented Gum ( Corymbia citriodora) located on 87 Shepherd Street, Chippendale;
• her Tree Dispute Claim Details; and
• a copy of the respondent's solicitors' Notice of Appearance on the owners of 83, 85 and 91 Shepherd Street and 1 Shepherd Lane, Chippendale; (2)The applicant is to file, by no later than 4.30pm on Thursday 9 June 2011, proof of service of the documents required by (1) on the owners of 83, 85 and 91 Shepherd Street and 1 Shepherd Lane, Chippendale; (3)Any of the owners of 83, 85 and 91 Shepherd Street and 1 Shepherd Lane, Chippendale who wish to be heard about the matters set out below are to file with the Court and serve on the applicant and the respondent to the application (through the respondent's solicitors, Gadens Lawyers) any material concerning:
• the application for removal of the Lemon-scented Gum ( Corymbia citriodora) located on 87 Shepherd Street, Chippendale;
• whether or not the Court should make any order for removal of or interference with the tree; and
• whether or not access to that person's property should be ordered to give effect to any order for removal of or interference with the tree if such an order were to be made; (4)The matter is set down for a further on-site hearing at 4.30PM on Thursday 16 June (meeting outside 89 Shepherd Street) for the purpose of hearing from any of the owners of 83, 85 and 91 Shepherd Street and 1 Shepherd Lane, Chippendale who wish to be heard. Tim Moore Senior Commissioner David Galwey Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2011