Li v Fang

Li v Fang - [2018] NSWLEC 33 - NSWLEC 2018 case summary — Zoe

[3]

The relevant provisions of the Trees Act

Mr Fang's application was made under Pt 2 of the Trees Act, a part which contains provisions that give rise to several jurisdictional tests requiring satisfaction before the Court has jurisdiction to deal with the merits of the application. There is no dispute in these proceedings that the locational tests (that the tree is located on the Appellants' property and that the Appellants' property adjoins Mr Fang's property) are satisfied. The tests that might, in shorthand terms, be described as the causation tests for an application pursuant to Pt 2 of the Trees Act are contained in s 10(2) of the Trees Act. This provision is in the following terms: 10 Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person.
It is clear that Mr Fang's application, with respect to both the Turpentine and the Tulip Tree, was based on breaches of s 10(2)(a) in that each of those trees was said, in the past, to have caused damage to Mr Fang's property. If that threshold question was found to be satisfied (as the Acting Commissioner did so find), it is not, then, necessary to undertake a specific further analysis of whether there is present or likely future causation of damage or likely risk of injury to a person. However, as can be seen from the Acting Commissioner's judgment, he has engaged with those additional factors, as appropriate, at various points in his analysis and conclusions.
It is also to be observed that the Acting Commissioner was required to be satisfied that there had been appropriate negotiations between Mr Fang and the Appellants before he commenced these proceedings. That requirement is to be found in s 10(1) of the Trees Act. There is no dispute that this provision was satisfied and a history of the dealings between Mr Fang and the Appellants, since approximately 2014, was included in the Appeal Book.
The next matters to which the Acting Commissioner was required to have regard, to the extent that they were relevant in the present proceedings, are those factors called up by s 12 of the Trees Act. Those are factors which he was required to evaluate and balance as part of his assessment as to whether or not he should make any orders to remedy or restrain matters about which complaint had been made by Mr Fang where he had jurisdiction to deal with Mr Fang's complaints.
Included in this balancing process, the Acting Commissioner was able to have regard, as earlier observed, to the additional factors in s 10(2) of the Trees Act that arose in a jurisdictional sense, even though the first of the factors in s 10(2)(a) was sufficient to engage his jurisdiction in the first instance.
As can be seen from Ground (2)(c) of the grounds pressed on behalf of the Appellants, it is alleged that the Acting Commissioner failed to have adequate regard to a number of specified elements of s 12. It is appropriate, therefore, to set out the potentially relevant elements of s 12 in full. They are in the following terms: 12 Matters to be considered by Court Before determining an application made under this Part, the Court is to consider the following matters: (a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises, (b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained, (b1) …, (b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree, (b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated, (c) whether the tree has any historical, cultural, social or scientific value, (d) any contribution of the tree to the local ecosystem and biodiversity, (e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned, (f) the intrinsic value of the tree to public amenity, (g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned, (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property: (i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage, (i) …, (j) such other matters as the Court considers relevant in the circumstances of the case.
Finally (and relevantly), the Acting Commissioner is given a very broad discretionary order-making power concerning Pt 2 applications, an order‑making power contained in s 9 of the Trees Act. It is unnecessary to repeat the terms of this provision.

[5]

The Acting Commissioner's decision

On 19 September 2017, the Acting Commissioner delivered his decision (Fang v Li & anor [2017] NSWLEC 1503).
It is appropriate to note that, with respect to the Turpentine, there was no jurisdictional locational controversy concerning the application of Pt 2 of the Trees Act, nor was there any controversy that there was appropriate satisfaction of s 10(2)(a) of the Trees Act, thus engaging the Court's jurisdiction with respect to that tree.
It is also equally uncontroversial, as dealt with at [18] of the Acting Commissioner's decision, that the Appellants agreed to the removal of the Turpentine.
The Acting Commissioner's decision set out his conclusions and made precise orders (at [87] of his decision) to give effect to his conclusions with respect to the Tulip Tree and the agreed position with respect to the Turpentine (this agreed position being one with which he indicated his concurrence and the jurisdictional appropriateness of making the proposed agreed order concerning that tree - see [19] of his decision).
Mr Fang's complaints about the Tulip Tree had been based on two separate impacts that he said that the tree had on his property. First, Mr Fang asserted that the Tulip Tree had caused damage to a rear, single-storey extension, constructed in the 1980s at the rear of the original two-storey dwelling, a dwelling which had been constructed prior to 1967. This alleged damage comprised various elements of cracking to this single-storey structure. Second, Mr Fang complained that a concrete path between the dwelling and his boundary with the neighbouring property, upon which the trees were located, had been significantly damaged by roots from the Tulip Tree. A subsidiary element of this complaint was, as able to be observed during the course of the on-site hearing and discussed at [28] to [29] and [67] in the Acting Commissioner's decision, that a pipe present under the path had also been crushed and significantly compressed as a result of pressure from the roots of the Tulip Tree.
The Acting Commissioner did not uphold the first basis of complaint concerning the Tulip Tree but did conclude that Mr Fang's second complaint concerning this tree was established. As a consequence, the Acting Commissioner undertook an analysis of various matters he was required to consider as a consequence of the provisions of the Trees Act. His discussion of this is set out at [68] to [81] of his decision.
As a result of that analysis, he concluded that it was appropriate to order the removal of the Tulip Tree, an outcome reflected in his orders at [87] of his decision.

[6]

The appeal

On 17 October 2017, an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act) was filed on behalf of the Appellants with respect to the Acting Commissioner's decision requiring the removal of the Tulip Tree.
The Summons commencing the appeal pleaded seven separate grounds said to demonstrate errors of law, or errors of fact and law, which warranted the setting aside of the Acting Commissioner's decision. The orders sought as the outcome of the appeal was that the matter be remitted to the Acting Commissioner to be dealt with according to law. An exclusionary remitter was not sought.
It is appropriate to set out the seven grounds upon which the appeal is based. It will be necessary to consider, separately, each of those grounds. The grounds in the Summons are in the following terms: 1 The Trial Commissioner erred in finding that: "Just as the burden of proof for satisfying the Court of the cause of damage lies with the applicant, when a respondent's tree is found to be causing damage the burden for finding suitable alternatives to tree removal, that the Court might order, to some significant extent lies with the respondent" when in fact there is no such burden of proof falling on the appellant, and instead the Court ought to have considered any steps taken by either the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage (see s12(h)(ii) of the Trees (Disputes between neighbours) Act 2006 (NSW)). 2 The Trial Commissioner erred by finding that there was "no alternative" to ordering removal of the Tulip Tree and thereby failed to consider as he ought to have done: (a) The alternative of utilising the Court's powers under s38 of the Land & Environment Court Act 1979 (NSW) which include inter alia: (i) the power to inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. (ii) obtaining the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings, such as the appellant's engineer who was in attendance. (b) The comparative value of retaining the concrete path and PVC pipe in their existing location and manner of construction (if that in fact was impossible which was unknown) weighed against the value of retaining the Tulip Tree (which it was found substantially predated the path and pipe). (c) Matters required to be considered by the Court under s12 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (and particularly s.12(b3),(c), (d),(e),(f),(h)(ii), and (j) as relevant to that comparative value. 3 The Trial Commissioner erred by failing to consider that the Tulip Tree existed prior to construction of the concrete path and pipe, when that was a consideration relevant to the question whether an order for removal of the Tulip Tree should be made (see [75]). 4 The Trial Commissioner erred in applying the "tree disputes principle" said to derive from the Court's judgment in Black v Johnson (No. 2) [2007] NSWLEC 513 when that 'planning principle' is in error. 5 The Trial Commissioner erred in ordering removal of the Tulip Tree on the basis that: "it would be unreasonable to (replace the concrete path and pipe in their existing locations) knowing that further damage would be inevitable within a few years" when it had found at paragraph 79 of the Judgment that this was not known because there was no available evidence, and it was also not known what the pipe was for. 6 It was procedurally unfair of the Trial Commissioner to determine that there was "no alternative" to ordering removal of the Tulip Tree "in the absence of any definite solution to ensuring the applicant has a concrete path and functioning pipes that will remain undamaged" without first alerting the parties that this issue may be determinative, and affording the parties an opportunity to present evidence and make submissions on that issue. 7 The Trial Commissioner erred in failing to consider and determine which party should pay the costs of removal of the Turpentine Tree and the Tulip Tree.

[11]

The Appellants' alternative proposed orders

I have earlier described the pre-hearing mention at which the Assistant Registrar made the relevant standard directions to lead up to the hearing, establishing a timetable for the various pre-hearing steps to be undertaken by the parties. Amongst those standard directions was direction (10), a direction in the timetable relevant to these proceedings and one in the following terms: The respondent is to file with the Court and serve a copy on the applicant, the local council and the Heritage Council of NSW, by 4.30pm on 24 May 2017, any order pursuant to s 9 and/or s 14D of the Trees (Disputes Between Neighbours) Act 2006 or pursuant to s 13A of the Dividing Fences Act 1991 which the respondent proposes as an alternative to or in addition to the orders sought by the applicant;
The Appellants proposed two orders that they advanced as the basis upon which the proceedings should be resolved. During the course of the appeal, Mr Doyle, counsel for the Appellants on the appeal and before the Acting Commissioner, handed up a copy of those alternative orders. Those orders, in their terms, proposed: 1. In proposed order (1), the outcome advanced was that, by express reference to the botanic name of the Tulip Tree, that that tree be removed; and 2. In proposed order (2), a requirement for pruning of the Tulip Tree.
When I questioned Mr Doyle as to the apparent mutual inconsistency of these two proposed orders, he advised me that the reference to the botanic name of the Tulip Tree in the Appellants' proposed alternative order (1) had been a mistake and that had been intended to refer to the Turpentine. He informed me that this error had been corrected during the course of the hearing before the Acting Commissioner. Mr Fang did not demur on this point.
The practical effect of this correction was, as earlier noted, agreement between the parties that an element of the outcome of the proceedings was that the Turpentine should be removed.

[13]

Ground (1)

Ground (1) was pleaded in the following terms: 1 The Trial Commissioner erred in finding that: "Just as the burden of proof for satisfying the Court of the cause of damage lies with the applicant, when a respondent's tree is found to be causing damage the burden for finding suitable alternatives to tree removal, that the Court might order, to some significant extent lies with the respondent" when in fact there is no such burden of proof falling on the appellant, and instead the Court ought to have considered any steps taken by either the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage (see s12(h)(ii) of the Trees (Disputes Between Neighbours) Act 2006 (NSW)).
The above quoted extract from the Acting Commissioner's decision constitutes reproduction of part (and only part) of [79] of his reasons for decision. To enable me to explain what I consider to be the intellectual dishonesty of the approach taken in drafting this ground in this fashion, it is necessary to set out, in its entirety, [79] of the Acting Commissioner's decision. It is in the following terms: 79. I asked Mr Doyle if the respondents proposed any solutions that might allow the tree to remain. He suggested that the path might be replaced with a gravel path, and that it may be possible to find another route for the pipe but this would take some further research. It is not the role of the Court to research alternative solutions. Just as the burden of proof for satisfying the Court of the cause of damage lies with the applicant, when a respondent's tree is found to be causing damage the burden for finding suitable alternatives to tree removal, that the Court might order, to some significant extent lies with the respondent. In the absence of any definite solution to ensuring the applicant has a concrete path and functioning pipes that will remain undamaged, I see no alternative to ordering removal of the Tulip Tree. [emphasis added]
There are a number of observations to be made concerning this element and a further subsequent element of the grounds pleaded attacking the Acting Commissioner's decision when viewed in the context of the totality of this extract.
First, the opening three sentences which precede the element upon which Ground (1) is based have been deliberately omitted from the pleading when, clearly, the totality of the paragraph should properly be read in its cohesive entirety.
Second, a proper reading of the earlier portions of the Acting Commissioner's judgment, which deal with the roots of the Tulip Tree, provides a context which makes it clear that the Acting Commissioner was seeking to explore with Mr Doyle whether there was any appropriate way advanced on behalf of the Appellants that would enable retention of the tree in a fashion which would also permit the reinstating of Mr Fang's path and pipe in a properly functional fashion.
Third, in doing so, it is self-evident that the necessary implication is that the Acting Commissioner was exploring potential options for action by the Appellants to resolve the relevant impact of the Tulip Tree, an exploration impliedly required of him by virtue of s 12(h)(ii) of the Trees Act.
When viewed in this proper context of what led up to [79] of the Acting Commissioner's reasons, together with the terms of the element itself, it is clear that the shifting of the burden to which reference is made is not one of the totality of the burden of proof on all the issues in the proceedings, but is confined to the question of whether or not there was an available approach which would permit preservation of the Tulip Tree, whilst resolving the present and (on the Acting Commissioner's factual finding, a finding which is not challenged) that future damage would inevitably occur if the path was simply replaced.
The element of [79] that precedes the element extracted in support of Ground (1), when read with the totality of the paragraph, shows the extracted portion entirely without merit as a basis of attack on the Acting Commissioner's approach.
Indeed, it is reflective of the general approach which has been taken by past and present commissioners of the Court when dealing with proceedings under the Trees Act (that, as a general proposition, there should be a presumption in favour of the tree and that removal should generally be a last resort) that the Acting Commissioner has sought to explore alternatives to ordering removal of the Tulip Tree. As discussed later, concerning Ground (2), in circumstances where the Appellants' arborist and engineer were present, and the Acting Commissioner was describing, in the totality of [79], the potentially protective approach being taken by him, there is no error on the Acting Commissioner's part, in his suggestion that the burden of proof substantially shifted to the Appellants to demonstrate to him an acceptable alternative that would achieve protection of the tree whilst remedying the past damage caused by its roots and protecting against future damage by those same roots - it being clear from the earlier discussion in the judgment (and reflected in Ms Johnstone's notes) that removal of the substantial roots giving rise to these impacts, without the removal of the tree itself, was not an appropriate and viable aboricultural outcome.
Ground (1) is, in light of a proper understanding of the totality of [79] of the Acting Commissioner's decision and its context, without merit and is rejected.

[15]

The pleaded provisions of the Court Act

It is necessary, now, to turn to consideration of the specific terms of s 38(2) and (3) of the Court Act. These provisions are in the following terms: 38 Procedure ... In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person.
As can be seen from the terms of (a)(i) and (ii), as set out in Ground (2) as pleaded, the proposition advanced is that there was some form of mandatory obligation on the Acting Commissioner that required him to go beyond the evidence which had been adduced on behalf of Mr Fang or the Appellants. Such a proposition is, from the terms of the elements of the Court Act set out above, clearly nonsensical. The statutory provisions impose no obligations to go beyond the evidence but merely provide a discretionary opportunity for a decision-maker in, here, relevantly, Class 2 proceedings to choose to do so in the fashion provided if the circumstances dictated that it was appropriate to do so.
It is here to be observed that the first sentences of [79] of the Acting Commissioner's decision clearly disclose that the Acting Commissioner invited Mr Doyle to advance one or more options which would address the damage to Mr Fang's property whilst permitting preservation of the Tulip Tree. The necessary implication of that invitation is that the Acting Commissioner was prepared to entertain further evidence on this point. That approach is entirely consistent with the discretionary powers given to him by the provisions of the Court Act set out above. That it was Mr Doyle's forensic decision on behalf of the Appellants not to do so does not, in any fashion, create any obligation on the Acting Commissioner to make, independently, any further enquiries in exercise of the powers given to him by these provisions of the Court Act.
The subsidiary elements of Ground (2)(a), proposing that he had some obligation to do so, simply demonstrate a lack of understanding of the clear nature of the discretionary powers given by the provisions, being non‑obligatory in nature.
The Acting Commissioner's observation, made in the third sentence of [79] - It is not the role of the Court to research alternative solutions - is undoubtedly correct.
This element of Ground (2) is rejected.

[16]

Retaining the path and pipe

To the extent that this element of Ground (2) makes complaint that the Acting Commissioner failed, as a general proposition, to explore sufficiently whether or not there was some available engineering option that would permit retention of the Tulip Tree whilst enabling reinstatement of the damaged elements of Mr Fang's property, my discussion of Grounds (1) and (6) explain why Mr Doyle was given, appropriately, the option of seeking to do so but made the forensic decision to proceed on the basis of the evidence and submissions then before the Acting Commissioner.
It is clear from [79] of the Acting Commissioner's decision, and my discussion of it with respect to Grounds (1) and (6), that the Acting Commissioner was prepared to contemplate alternatives to removal of the tree and had proactively sought the assistance of the Appellants in the exploration of whether that course might be possible. To that extent, as explained concerning Ground (6), the Appellants are bound by the forensic decisions made by their counsel below and there is, now, no proper basis to attack the Acting Commissioner's decision for determining the matter in light of the critical forensic decision made by Mr Doyle.
At this point, it is also instructive to consider the evidence which had been put before the Acting Commissioner about the extent to which the path had been damaged by the roots of the tree and his conclusion concerning that impact.
Amongst the documents tendered by Mr Fang (confirmed by Ms Johnstone's notes) was a report by Mr Andrew Scales, a consulting arborist commissioned by Mr Fang. A copy of that report was included in the Appeal Book (at Tab 14). As the copy which had been filed in the Appeal Book was not the coloured original, a copy of the coloured original was provided during the course of the hearing before me and substituted for the document filed. It is not necessary to address this report in detail. The value of this report for the purposes of considering this ground of appeal is the photograph reproduced as Figure 5 on page 5 of Mr Scales' report. I have scanned that photograph as it demonstrates the extent to which the path had been displaced by the roots of the Tulip Tree.
The photograph shows the state of the path at the time that Mr Fang made his application. It is also clear that, as at the date of the on-site hearing, a portion of the path had been removed in order to reveal the state of the roots of the Tulip Tree that had caused the lifting of the path depicted in the photograph and the impact on the PVC pipe. It is, therefore, obvious that it would not have been possible to leave the site in the physical condition that it was at that time. To the extent that Ground (2)(b) might be understood to propose that this be the case, it is difficult to see how such a proposition could be regarded as anything other than as bizarre. To the extent that the way this element of the Ground (2) is pleaded might be seen to be proposing that such concrete material as had been removed in order to make the roots and the pipe available for examination should have been required to be reinstated as the outcome of the Acting Commissioner's deliberation (that is, reinstated to replicate that which is shown in the above photograph), such an outcome, in itself, would also have been, self-evidently, bizarre.
Even if either of these options could rationally have been contemplated as an appropriate outcome, that which is set out in the second sentence of [79] of the Acting Commissioner's decision (and no contrary position is to be inferred from Ms Johnstone's notes), neither of these positions were advanced by Mr Doyle to the Acting Commissioner. In those circumstances, suggesting on appeal that the Acting Commissioner ought to have done something which was not requested of him during the course of the on-site hearing is impermissible and is to be rejected.
Finally, with respect to these suggestions, had either of them been given effect, that which would have been the result would itself have, self-evidently, constituted the creation of a risk of injury, a risk of injury which would have been contrary to the implicit objective of s 10(2)(b) of the Trees Act.
This aspect of Ground (2) is rejected.

[17]

Engaging with matters in s 12 of the Trees Act

At [68] and [69] of the Acting Commissioner's decision, he set out the task with respect to which he was required to engage in undertaking the mandated balancing of relevant matters in s 12 of the Trees Act. The Acting Commissioner wrote: 68) Because I have found that the Tulip Tree's roots have damaged Mr Fang's path and pipes, the Court's jurisdiction is enlivened in regard to this element of the application. 69) Section 12 of the Trees Act requires the Court to consider a range of discretionary matters. Of particular relevance here, in my mind, are: the timing of the damage; the timing of each party purchasing their properties and of each party becoming aware of the damage; actions taken by the parties; any protection afforded the tree under other Acts; and the tree's social and environmental benefits.
Although the Acting Commissioner did not set out, in the "tick a box" list form that the complaint in Ground (2)(c) proposes, it is nonetheless clear that, in summary form, the Acting Commissioner has listed the matters to which he was required to turn his mind as arising from the various elements set out in s 12 and relevant to Mr Fang's application as it related to the damage to the path and pipe caused by the roots of the Tulip Tree. The implicit suggestion in this ground that he should have expressly cited the provisions of s 12 to which he proposed to have regard would be to adopt an inappropriate and impermissible "fine-toothed comb" approach (Brimbella).
The Acting Commissioner then set out his analysis of the factors to which he was required to have regard arising from s 12. It is appropriate to note that, in Ground 2(b), the Appellants suggest that the Acting Commissioner did not undertake an appropriate weighing process having regard to "the value of retaining the Tulip Tree (which it was found substantially predated the path and pipe)". It is appropriate here to note that the Acting Commissioner specifically addressed the benefits of the Tulip Tree in [73] and [74] of his decision. He did this under the heading "Benefits of the tree" in the following terms: Benefits of the tree 73) Mr Palmer says the tree has high value due to its size and age. Its healthy large canopy contributes to local amenity. It is within a Heritage Conservation Area of Ku-Ring-Gai Council. Its owners appreciate its shade and aesthetic benefits. The tree appears to be an important part of their garden landscape. It has been here for decades and would take many decades to replace with a tree of similar stature. 74) In a letter to Mr Fang in 2015, Ku-Ring-Gai Council's Tree Management Officer explained that, even though the Tulip Tree was less than three metres from a dwelling, there were no such exemptions to Council's tree protection policies within this Heritage Conservation Area. Furthermore, it was most likely that the tree's owners would be required to submit a Development Application if they wished to remove it or carry out any more than minor maintenance pruning. In my mind, when considering the tree's benefits, this requirement puts additional weight on the Tulip Tree's value within the local landscape and the consideration that must be given to alternatives to tree removal.
It is also to be observed that the process required to be undertaken by the Acting Commissioner, in weighing and assessing the various factors called up by s 12 of the Trees Act, is not required to undertake a process of mathematical precision. Nor was he required to list each of the factors, by statutory citation, to demonstrate that he had considered the matters called up as relevant to his assessment.
I have earlier set out [68] and [69] of the Acting Commissioner's decision, where he identified the matters to which he was required to have regard, in his view, in undertaking that process. Having identified those factors, the Acting Commissioner then proceeded to deal with them under the following headings:

Timing of the damage (at [70] to [72]);
Benefits of the tree (at [73] and [74]);
The tree was there first (at [75] and [76]);
Can the damage be remedied without removing the tree? (at [77] to [80]);
Tree removal may affect soil moisture and fittings (at [81])).

Having set out those factors, the Acting Commissioner then proceeded to set out what he had concluded, as a consequence of the weighing and balancing of all these factors. To complain that insufficient weight was given to any one or more of these factors misunderstands that the nature of the process being undertaken by the Acting Commissioner is a deliberative and subjective one, a process engaging the application of not only his arboricultural skills but also the broader assessment skills arising from his significant experience as a quasi-judicial decision-maker. For there to be any potential error of law in the Acting Commissioner's undertaking of this process, this could only arise for consideration if the conclusion which he reached was so unreasonable as to constitute an error of law (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 and Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; (2004) 211 ALR 472; (2004) 79 ALJR 414; [2004] HCA 63). In this appeal, no such unreasonableness was pleaded, nor was any application made during the course of the appeal hearing seeking to add a pleading of such unreasonableness as an additional ground of appeal.

[19]

Ground (3)

Ground (3) was pleaded in the following terms: 3 The Trial Commissioner erred by failing to consider that the Tulip Tree existed prior to construction of the concrete path and pipe, when that was a consideration relevant to the question whether an order for removal of the Tulip Tree should be made (see [75]).
In Ground (2), the Appellants pleaded the elements of s 12 of the Trees Act, which they allege the Acting Commissioner failed to address, or failed to address sufficiently, matters arising in s 12 of the Trees Act. No such basis in s 12 is pleaded to provide a foundation for Ground (3). There is a simple reason for this. There is no provision in s 12 that mandates the Acting Commissioner to consider the question of timing (that is, whether the tree was there first). This, in itself, is sufficient reason to reject Ground (3).
However, to the extent that the Acting Commissioner considered questions of timing, he did so pursuant to s 12(j) (a provision which permitted him to have regard to such other matters as he considered relevant). It is also appropriate to point out that, to the extent that the Acting Commissioner dealt with these matters, he dealt with them, not only in [75] - this being the element of the Acting Commissioner's decision complained of in this ground - but he also addressed the question of timing in [70] to [72] of his reasons for decision.
In these earlier elements of his decision, the Acting Commissioner dealt with matters relating to timing concerning:

when Mr Fang purchased his property and the extent of damage, relevantly, would have been present as at the date of purchase and the reasons why Mr Fang had not been aware of it;
the fact that the tree predated construction of the single-storey extension to Mr Fang's dwelling;
the fact that the Appellants had not owned their property throughout the entirety of the period when the roots of the Tulip three would have been causing the damage to the pathway on Mr Fang's property.

These factors led the Acting Commissioner to conclude that, as he set out at the end of [72] of his decision, it would not be appropriate to order the Appellants to pay for any rectification work that might be required to Mr Fang's property.
This consideration of timing issues was entirely appropriate and is without fault. Indeed, such consideration and conclusion resulted in a beneficial outcome for the Appellants, an outcome about which I do not understand that they now complain.
Ground (3) is without merit and is rejected.

[23]

Mr Doyle's submissions

Mr Doyle's written submissions concerning this ground were in the following terms: 43. There is however no information as to how the principle so stated has been arrived at which assists in this case in knowing the extent to which the Court took into account the circumstances in issue. Exactly, what the word "this" refers to at the beginning of paragraph [15] as being the source of the planning principle is not identified. There is (for example) a big difference between moving a house that has been constructed and adapting or potentially adapting the design of a path and pipe. Without including an explanation of the rationale for the principle there is no guidance as to when it should be applied and when it should not. The Acting Commissioner provides no insight in his reasoning in this case as to why he saw the principle as fitting to the present facts. 44. While there are a number of cases which have applied the second leg of the identified 'tree dispute principle' which asserts the relevance of the comparative ages of the tree and affected structure to the apportionment of costs of work ordered, the Appellants have located no case which considers further why it is that in that same factual situation the age of the tree and the date of construction should universally be irrelevant to the issue of whether orders for vegetation removal should be ordered. 45. Commissioner Fakes in Zadel v Cox [2012] NSWLEC 1040 refers to the Black v Johnson case at [11] but without discussing how it was employed in her reasoning in that case, she describes the assessment she undertook as follows: "Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential." 46. Whether the first limb of the Black v Johnson 'principle' can be universally applied fairly can be appraised by considering a brisked path constructed say last week within the root zone of a century old large and important fig tree. The pre-existence of the tree is plainly relevant to the issue of whether its removal should be ordered. If in contrast a tree had been planted beside a long standing path the expectation that the tree rather than the path should move would be quite different. 47. The consideration to be undertaken under s 12 should not be artificially constrained where the facts warrant otherwise.
During the course of his oral submissions, he referred to a decision I had given (in my then capacity as Senior Commissioner), Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126, where I had set out, between [35] and [61], a discussion of the role of planning principles published by the Court. Importantly, Mr Doyle submitted that what I had written between [54] and [61] concerning "what planning principles were not" was equally applicable, by analogy, to Tree Dispute Principles. I accept that that application, by analogy, is likely to be appropriate for the purposes of considering Tree Dispute Principles. They do not, however, require analysis in these proceedings.
That is because the complaint here is misplaced. It is to be observed that Ms Johnstone's notes provide no assistance on this appeal ground except to record that (at page 4) her notes appear to confirm that Black v Johnson (No 2) was raised first by Mr Fang.
A careful reading of [75] of the Acting Commissioner's decision leads to the conclusion that the relevance of Black v Johnson (No 2) was raised by Mr Fang, and responded to by Mr Doyle, rather than being a matter dealt with of the Acting Commissioner's own choice. Indeed, for the reasons set out above, with respect to Ground (3), the Acting Commissioner's conclusion that there was no reasonable basis upon which the Appellants could be required to contribute to the cost of works on Mr Fang's property rendered consideration of this Tree Dispute Principle irrelevant. This was because the matters with which the Tree Dispute Principle dealt (whether a tree owner should be required to contribute to the cost of rectification works for damage caused by the trees when the trees were there first) had been rendered irrelevant as a consequence of that with which the Acting Commissioner had dealt in [70] to [72] earlier discussed.
Black v Johnson (No 2) was not promulgated in response to any specific, mandated matter of consideration set out in s 12 of the Trees Act but did arise (and had foundation in s 12(j) as a matter that the Commissioners hearing that matter considered relevant as permitted by that provision) in the context of considering whether or not there were matters requiring to be taken into account, as a matter of equity between a person making an application under Pt 2 of the Trees Act and the owner of the land on which trees the subject of such an application were growing. This decision has been applied in 32 subsequent cases without the question of its validity being a matter of controversy (I also note that the Tree Dispute Principle in Black v Johnson (No 2) has been cited (and followed) twice in the Queensland Civil and Administrative Tribunal in its tree disputes jurisdiction).
It is clear from [75] of the Acting Commissioner's decision that, had he not reached the conclusion beneficial to the Appellants set out at the end of [72], the same conclusion would have arisen from the application of the Tree Dispute Principle in Black v Johnson (No 2) had it been necessary for the Acting Commissioner to consider those matters by application of that principle.
Finally, and separately, there can be absolutely no validity of a complaint about how the Acting Commissioner dealt with Black v Johnson (No 2) when the paragraph in which this case is mentioned deals exclusively with why the Tree Dispute Principle derived from Black v Johnson (No 2) was irrelevant in the present proceedings, as the Acting Commissioner had set out, in [72], why there would be no financial obligation placed on the Appellants with respect to the damage arising from the roots of the Tulip Tree impacting on Mr Fang's path and PVC pipe. It is as if whoever drafted this ground of appeal had not read and/or understood that earlier paragraph and the reason why the Acting Commissioner explained that Black v Johnson (No 2) did not require to be considered for application in these circumstances.
This ground is without merit and is rejected.

[24]

Ground (5)

Ground (5) was pleaded in the following terms: 5 The Trial Commissioner erred in ordering removal of the Tulip Tree on the basis that: "it would be unreasonable to (replace the concrete path and pipe in their existing locations) knowing that further damage would be inevitable within a few years" when it had found at paragraph 79 of the Judgment that this was not known because there was no available evidence, and it was also not known what the pipe was for.
This ground is one selectively framed without exposing the full terms of the paragraph from which the quoted portion of the Acting Commissioner's decision is extracted. It is a second example of intellectual dishonesty in the drafting of these appeal grounds. The full paragraph, [80] of the Acting Commissioner's decision, is in the following terms: 80) I note that the consideration of the near future in s 10(2) of the Trees Act is part of the jurisdictional test, but when it comes to making orders at s 9 there is no requirement to only prevent damage that might occur within 12 months. Mature tree roots may grow in girth relatively slowly. While it would be possible to replace the concrete path and pipe in their existing locations without any significant damage occurring within 12 months, it would be unreasonable to do so knowing that further damage would be inevitable within a few years. I see no alternative to ordering removal of the Tulip Tree.
This paragraph, obviously, follows immediately after [79] set out in full in my consideration of Ground (1). In this context, it is also instructive to set out the terms of [78], a paragraph in the following terms: 78) It appears that the concrete path could be repaired with the roots remaining in place, but these roots would inevitably damage the path again before too long. As for the PVC pipe, it is not clear that there is sufficient room to replace the pipe beneath the path if the roots are left intact.
The reference in Ground (5) to: when it (sic) had found at paragraph 79 of the Judgment that this was not known because there was no available evidence, and it was also not known what the pipe was for. appears more correctly to be a reference to [67] of the Acting Commissioner's decision, a paragraph which reads: PVC pipe 67) One of the large uncovered roots grows against the PVC pipe and has distorted it. The pipe is so crushed that it appears it must be almost blocked and unable to perform its function, although what that function might be is not apparent and is not known by the applicant. There is no other likely cause for this damage and I am satisfied that the Tulip Tree's root has caused the damage.
The combination of [78] and [80] above, when read with [79] earlier set out, makes it clear that the Acting Commissioner's findings concerning the path (at [66], and as can be seen from the earlier reproduced photograph) make it clear that the primary concern of the Acting Commissioner was the path not the pipe - see [78]. It is also clear, for the reasons discussed concerning Ground (1) that the Acting Commissioner actively sought an outcome that would permit retention of the Tulip Tree. Mr Doyle's forensic decision earlier discussed closed off that option. Absent such an alternative, that which is set out at [78] and [80] of the Acting Commissioner's decision provides a sufficient evidentiary basis for his conclusion that removal of the Tulip Tree was required.
Ground (5) has no merit and is rejected.

[25]

Ground (6)

Ground (6) was pleaded in the following terms: 6 It was procedurally unfair of the Trial Commissioner to determine that there was "no alternative" to ordering removal of the Tulip Tree "in the absence of any definite solution to ensuring the applicant has a concrete path and functioning pipes that will remain undamaged" without first alerting the parties that this issue may be determinative, and affording the parties an opportunity to present evidence and make submissions on that issue.
The basis upon which this ground is pleaded is difficult to ascertain. I have earlier observed that Mr Fang had set out, in his original Tree Dispute Application, the orders which the proposed be the outcome of the hearing before the Acting Commissioner. The terms of those orders are set out at [2] of this decision. They make it clear that Mr Fang was expressly seeking the removal of the Tulip Tree. It is clear from the terms of his proposed order (1) that one of the bases upon which he was seeking its removal was the impact of the tree on the path between his dwelling and the boundary of the Appellants' property.
It is appears from the discussion in the Acting Commissioner's decision at [61] that the Acting Commissioner was able to inspect two roots of the Tulip Tree where they had impacted on this path. However, it does not matter if this was not the case as all relevant matters discussed below were available on the evidence if he was not able to do so.
If he was able to do so, this was because there had been a partial removal of portion of the path for the purposes of an earlier investigation by an engineer commissioned by Mr Fang. Although the purpose of that investigation was broader than merely concerning the causation of the damage to the path, nonetheless, what was revealed was instructive to the Acting Commissioner of the cause of the damage to the path. He also appears to have been able to observe the impact of roots of the Tulip Tree on the PVC pipe that had been revealed by this excavation. At [61] of his decision, the Acting Commissioner described what had been revealed in the following terms: …Two large roots from the Tulip Tree have grown beneath the path. One of these roots has filled the space where the pipe once was, distorting it severely. This, using Mr Paheerathan's words, can be "visually observed", as can the path being lifted by the large root directly beneath it.
The Acting Commissioner's description of his conclusion about the displacement of the path is set out at [66] of his decision in the following terms: The two roots uncovered by Mr Fang are relatively large (130 mm and 260 mm in diameter) and are directly beneath the lifted section of the concrete path. Photographs of this section of path, taken prior to its removal, and the descriptions from both Mr Fang and Ms Li, show the path was lifted vertically approximately 150 mm. This is more than minor cracking. There is no other likely cause of this damage, and I am satisfied that the tree has caused this damage.
Finally, on this ground, it is appropriate to repeat the first two sentences of [79] of the Acting Commissioner's decision (sentences which have earlier been reproduced as relevant in a different context). They read: I asked Mr Doyle if the respondents proposed any solutions that might allow the tree to remain. He suggested that the path might be replaced with a gravel path, and that it may be possible to find another route for the pipe but this would take some further research.
It is clear from Ms Johnstone's notes of what took place during the hearing before the Acting Commissioner that, although undoubtedly of lesser emphasis than Mr Fang's complaint concerning damage to the structure of the single-storey addition to his dwelling, his complaint concerning the impact of the roots of the Tulip Tree on his path was the subject of oral evidence by Mr Palmer and Mr Marshall and was clearly a matter of substance upon which the parties had engaged during the course of the hearing.
It is to be observed that, during Mr Doyle's closing submissions at the on-site hearing, the Acting Commissioner extended an invitation to Mr Doyle to propose an alternative outcome which would permit the reinstatement of a functioning path and pipe whilst retaining the Tulip Tree. Mr Doyle's response on this point is encapsulated in the second of the sentences of [79] set out above. Mr Doyle did not, during the appeal, cavil with the accuracy of what was there set out by the Acting Commissioner.
There are three observations relevant to this ground to be made from Mr Doyle's response as recorded in the Acting Commissioner's decision. These are: 1. The Acting Commissioner extended the opportunity to the Appellants, through their counsel, to propose an alternative resolution that would permit the reinstatement, functionally, of this damaged element of Mr Fang's property; 2. Whilst Mr Doyle advanced a possibility (a gravel path), he conceded that, with respect to one aspect of the impact of the Tulip Tree (the impact on the pipe), further research would be required. As a consequence, with respect to this contested aspect of Mr Fang's application, the Appellants were unable to proffer a resolution to reinstate this impacted aspect of Mr Fang's property in a fashion which could have been ordered by the Acting Commissioner; and 3. The Acting Commissioner did not record Mr Doyle seeking either to reopen the hearing to permit further evidence from Mr Palmer and/or Mr Marshall or to seek an adjournment to enable the "research" to be undertaken. Mr Doyle did not suggest, before me, that he had sought to propose either of these procedural alternatives. Mr Doyle is a counsel who has experience in this Court, not only in tree dispute proceedings, but also more widely. Although tree dispute hearings are conducted with a significant degree of informality, they are nonetheless proceedings of this Court. Parties are bound by forensic decisions made during the course of such hearings. There is no suggestion that seeking to reopen or adjourn was not a forensic option available to Mr Doyle at that point during the course of the hearing - an option he did not choose to pursue. The question of the impact on Mr Fang's path was an issue identified as being in contest from the date the proceedings were originally initiated by Mr Fang. The report prepared by Mr Scales also makes it clear that the impact on the path was a contested issue. The image earlier reproduced depicting the extent of the displacement of the path makes it obvious why this was so.
It is clear that the Acting Commissioner sought to engage with Mr Doyle on the question of how the reinstatement of the path and the pipe might be achieved. Mr Doyle's response is as earlier set out, as recorded in the second sentence of [79] of the Acting Commissioner's decision. Mr Doyle's forensic decision at that time is also clear, as earlier discussed. Parties are bound by their counsel's conduct at trial (this being particularly important in circumstances where one party is a self-represented litigant, whilst the other is represented by experienced counsel) and the forensic decision from which it is sought to resile on appeal is one made by that counsel.
Whilst, with the benefit of hindsight, Mr Doyle may now regret that forensic decision, there was no denial of natural justice on this point by the Acting Commissioner. Indeed, a proper and fair reading of the whole of the element of his judgment dealing with this aspect of Mr Fang's complaint demonstrates that the Acting Commissioner sought, until the end, to seek a resolution that would permit reinstatement of Mr Fang's property, coupled with retention of the Tulip Tree.
This ground is without merit and is rejected.

At a glance

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Judgment (29 paragraphs)

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Legislation Cited (3)

Cases Cited (14)

Cited By (1)