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.