Malliate v Sharpe

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CAMPBELL J 13 December 2001 4039/00 SUZANNE MALLIATE v RALPH SHARPE & ANOR Judgment

Nature of the Dispute 1 HIS HONOUR: This is a dispute between two neighbours concerning a rubber tree, which grows close to the boundary they share. The tree is growing on the defendants' land. The plaintiff claims that roots from the rubber tree have entered her property, have damaged a path and steps in her property, and, if allowed to proceed in their natural course, might damage other structures on her property. She seeks a mandatory injunction requiring the rubber tree to be killed by poisoning, in such a way that its roots will die too.

The Two Blocks of Land 2 The plaintiff is the registered proprietor of land located at 21 Juvenis Avenue Oyster Bay. From the rear of the house which is there, if one goes in a northerly direction, the block of land falls away fairly steeply. Down this slope, running close to the western boundary of the lot, is a concrete path and steps. The path and steps provide the only way into the plaintiff's backyard from outside her house. On the plaintiff's land, and to the east of those concrete steps, has been constructed a large paved area ("the Paved Area"), in which is a concrete pool and spa. The Paved Area is on the same level as the back of the house. Thus, as one goes down the steps in a northerly direction, there is a wall or bank, the height of which increases the further one goes down the steps in a northerly direction, which retains that concrete pool and Paved Area. The main drainage pipe of the house runs parallel to the concrete path, a little to the east of the edge of the Paved Area. Once it leaves the paved area, it runs in a northwesterly direction for some distance, then continues in a northerly direction, parallel to the western boundary of the plaintiff's property. 3 The defendants are the registered proprietors of property known as 25 Juvenis Avenue Oyster Bay. The defendants' property lies immediately to the west of the plaintiff's property. The rubber tree, the subject of these proceedings, is just inside the eastern boundary of the defendants' property. It is adjacent to the path and steps on the plaintiff's property, and a little further north of the place where ends the part of the Paved Area which is closest to the rubber tree. 4 The plaintiff purchased her property on 24 November 1995, and so far as the evidence discloses has lived there continually ever since. The evidence does not enable me to say when the defendants purchased their property, though they were living there before November 1995. It has been established that the rubber tree was growing at the time the plaintiff purchased her property, but the evidence does not enable me to say when it was planted. Nor does the evidence enable me to say whether it was planted by the defendants, or someone else.

Development of the Dispute 5 In or about mid February 1996 the plaintiff's husband noticed for the first time, quite severe cracking in one part of the concrete path and steps. He lifted up a section of concrete with his bare hands, and observed large roots protruding from the ground. He suspected that the defendants' rubber tree had caused this damage to the path and steps. His suspicion was based partly on the fact that the defendants' rubber tree was adjacent to the path and steps, partly on the fact that there were no adjacent live trees on the plaintiff's property, and partly on what he understood to be the reputation of rubber trees for very vigorous, and in some cases harmful, root growth. The plaintiff's husband has no qualifications or experience concerning the characteristics of rubber trees which would enable his opinion of this last mentioned topic to be relied upon as anything other than an explanation for subsequent actions of himself and his wife. 6 Soon thereafter, and still in or about mid February 1996 the plaintiff's husband had a conversation with the male defendant, where he told the male defendant about the damage to the path and steps, said that roots were visible underneath the concrete, and expressed the view that the roots came from the defendant's rubber tree. The male defendant said that he was sure that this was not the case. 7 On 23 February 1996 the plaintiff's husband obtained a quotation from Mr Lawson, of Shane Trees. Mr Lawson's letterhead asserts that he is "qualified in arboriculture 1 and 2" and that amongst his lines of work is "specialised pruning and removal". That quotation related to the rubber tree in question. For the work of "to cut down to flat top stump poison and leave all on site into manageable size lengths" an amount of $450 was quoted. Mr Lawson also stated in handwriting on the quotation "in my opinion this species is contributing to the lifting & breaking of path + steps of # 21. Should new steps be built strongly recommend eradication of this species". 8 The plaintiff's husband also obtained a report dated 1 April 1996 from Rodney Page, who carries on business as a tree surgeon and horticulturist. His report said: "On the 30th March I inspected damage to a stairway and path on the lower western boundary of 21 Juvenis Ave Oyster Bay and found roots of a Ficus sp under the concrete. These roots are causing the path and stairs to lift and break apart. Identification was made by scratching the surface of the roots which revealed milky latex which is consistent with the family Moraceae, representing the Genus Ficus . After studying the roots' epidermis it is clear and I have no doubt that the roots identified belong to the Ficus elastica Rubber Tree which is located on the neighbouring property of 25 Juvenis Ave and is within 3 metres of the damaged area. The attached sketch shows the location of Ficus tree in relation to the damaged area, and the probable root configuration. Rubber Trees have a known reputation for root invasion on foundations, sewer lines, retaining walls and other concrete structures eg pools, stairs etc. It is common knowledge that Rubber trees can cause extensive damage; Forestry Commission holds this tree high on it's list of trees not to plant and while this species is not regarded as a weed, all Councils will immediately allow for its removal. Ficus elastica is in Category 1 of the Water Board's list of nuisance trees. The damage this particular species of Ficus has caused, which has initially drawn one's attention to it, is only the beginning. If left alone the individual has the ability to gain a trunk diameter of 2 metres, a canopy spread of some 15 metres and a roots system that exceed these measurements making it capable of lifting and cracking the swimming pool and penetrating sewer and storm water pipes. It is my opinion that there is a reasonable likelihood that damage of this nature will occur unless appropriate corrective action (as set out below) is taken. There are only 2 options for the prevention of further root damage:- Option 1 *Erect a brick retaining wall above and below the tree of at least 6 metres each way. This wall would then need to have fitted alongside a chemically treated root barrier. Similar operations to build alike wall that will stand the pressures and satisfy engineering standards would cost in the vicinity of $12,000.00 Option 2 *To remove the tree altogether, it is advisable to poison the tree several weeks before removal while leaves are still photosynthesising and the tree is transporting nutrients up and down. This will enable the poison to be translocated through the roots effectively killing them and thus preventing re-growth long after the tree has gone." 9 The sketch attached to Mr Page's report showed the location of the various structures which I have earlier mentioned in this judgment, and of the rubber tree. It showed the damaged area on the concrete path and steps. It also had a series of concentric circles centred on the rubber tree, which marked what Mr Page said was the probable root configuration of the tree. The damaged area of the concrete path and steps lay well within that area shown as "probable root configuration". Part of the main drainage pipe, and part of the Paved Area, also lay within those concentric circles. 10 On 4 April 1996 the plaintiff and her husband wrote a lengthy letter to the defendants, which recorded the plaintiff's account of what had transpired in a meeting between the two couples on 23 March 1996. The quote and opinion from Mr Lawson, and the report from Mr Page, were sent to the defendants enclosed in that letter. In one part of the letter, the plaintiff and her husband said: "You indicated that the tree provides you with appropriate privacy. In that regard, please note that we would be prepared to consider planting another tree in place of the rubber tree and/or contributing towards the erection of an appropriate boundary fence between our adjoining properties." 11 The letter concluded as follows: "…1 Having regard to all the surrounding circumstances, and in particular the additional information now set out in the attachments to this letter, are you prepared to reconsider your position with respect to removal of the offending tree? If so, what, if any, financial contribution would you request from us towards the cost of removal? 2 If you are not prepared to consider removal of the tree, are you prepared to carry out the abatement works (ie erection of a barrier wall) as suggested in the attached report from Rodney Page? As you will note from that report, apart from removing the tree, this is the only reasonable means of ensuring effective prevention of further damage. You will also note that the cost of carrying out such works would be approximately $12,000. 3 If you are not prepared to pursue the avenues as suggested in 1 and 2 above, is there any valid information or evidence which you can provide to confirm that: a) the roots from the tree in question are not on our property; b) these roots have not caused and/or contributed to the damage of our concrete steps; (c) there is no reasonably foreseeable risk that the roots may cause further damage to the concrete steps/path, nearby drainage systems, concrete swimming pool and/or surrounding paving area, located on our property. 4. If you are not prepared to consider the options referred to in items 1 and 2 above, would you be willing to have this matter referred to the Community Justice Centre for independent mediation? We hope that it is clear from the information set out and attached to this letter that: a) The roots from your tree are located on our property and are in close proximity to our concrete pool, concrete path/steps and drainage systems; b) These roots are already visible under the concrete steps which have been damaged; c) The roots from this particular type of tree have a reputation for causing nuisance and there is a reasonably foreseeable risk that further damage to our property will occur in future. Ralph and Yvonne, we are very anxious to resolve this matter as amicably as possible. We regret that it may have already become the cause of unnecessary tensions between us." 12 The letter went on to remind the defendants of an occasion when the plaintiff and her husband had carried out some work on the plaintiff's land to alleviate some concerns of the defendants. It concluded; "we look forward to your early response to this letter and in particular, to items 1 to 4 as set out above." 13 The defendants did not reply until mid July 1996, after their return from an overseas trip. The response denied that it had been shown that the roots of the rubber tree were responsible for damage to the path. Rather, it said, the cause lay in the fact that the path had been constructed by an amateur builder using inadequate materials and construction methods. The male defendant also said; "I am also aware of the potential danger to any water lines in the vicinity of a rubber tree, but only if the water lines are broken or badly constructed. I have water lines which consist of correctly jointed and glued PVC pipe that have been installed approx 15 years ago, very close to the rubber trees and there is no damage done or concern because of the rubber tree and their roots." 14 The letter went on to imply that the plaintiff and her husband were not bona fide in expressing concern that the rubber tree had damaged their path, but rather wanted the rubber tree removed so as to improve their view. It also said; "The rubber trees have been growing in the location for a period of many, many years a fact you must of [sic] been aware when you purchased the property." 15 The defendant expressed willingness to mediate the matter relating to the rubber tree, provided that certain complaints that he had against the plaintiff were also mediated. He asserted that the path "has been in its current state for, to my knowledge, at least 16 years." 16 The plaintiff and her husband replied to that letter two days later. They indicated willingness to mediate the additional problems, and asked to be provided, in relation to those additional problems with "(a) an independent expert's report confirming the nature of those concerns as well as the alternative solutions and associated costs; (b) the specific remedy which you are seeking and the reasons for that recommendation; and (c) an indication of your willingness to contribute towards the cost of implementing that solution." 17 There was no response to that letter. The plaintiff's husband says that, thereafter, the matter was left in abeyance until, in or about, October 1999, because it appeared to him unlikely that he could resolve the matter amicably and because the male defendant did not provide any further information on the new matters he had raised. 18 In about October 1999 the plaintiff's husband noticed that the path and steps had become much more severally damaged. He observed members of his own family, and visitors to the house, tripping over damaged sections of the path and steps. He formed the opinion that the path and steps had become a real hazard. He raised again with the defendants the question of whether they would agree to have the tree removed, but discussions led nowhere. 19 The plaintiff's husband telephoned the male defendant in or about late October or early November 1999 and had a conversation to the following effect:

Plaintiff's husband: "Is there any basis upon which you would be happy to have the tree removed? I am prepared to give you some compensation for the loss of the tree."

Male defendant: "I will consider your request and I will let you know in a week."

Some discussions followed, but without result. 20 Solicitors engaged by the plaintiff and her husband wrote to the defendants on 3 February 2000 referring to the discussions in 1996. The letter continued; "… Our clients have recently obtained a quotation ($1,130) from Shire Home Maintenance Services to repair the damaged section of the path and the quotation provides a limited warranty. Our clients' wish to repair the damaged path but have been advised by the builder/pavers that any such repair would be a fruitless exercise as the tree roots are likely to cause further damage to the path. We note in your correspondence to our clients that you deny that the rubber tree is the cause of the problem. Would you be kind enough to provide us with a copy of any expert's report or documentation you have obtained to support your assertion. We are instructed and it is evidenced from the correspondence that our clients have made every attempt to resolve the matter without recourse to litigation. Our clients are amenable to attending mediation at the Community Justice Centre to see if a mutually acceptable resolution can be achieved. Please contact our office and advise whether you are amenable to attending mediation and the dates that would be suitable to you. We will then contact the Community Justice Centre to arrange for an appointment. A room can be booked at Sutherland Courthouse between 9.30am and 4.30pm if more convenient than attending at the Community Justice Centre, Bankstown. We are instructed that if we do not hear from you within ten days from the date of this letter our clients will consider taking appropriate legal action."

21 On 14 February 2000 the male defendant replied saying that a reply was being prepared, and would be posted as soon as it was prepared in full. On 28 February 2000 the solicitors for the plaintiffs wrote to the defendants requesting a reply, and saying "whilst our clients do not wish to resort to litigation they may be left with no other option if a response is not received by 5.00pm Friday 3 March 2000." 22 On the same day, 28 February 2000 the male defendant replied saying; "I suggest you try and get Mr Malliate to tell you the truth about this matter. I'm sorry but I will not be intimidated by your threat of legal action. Under this new circumstance of your fax dated 28/2/2000 I will not advise you of the many problems caused by your client. This then is my reply to your previous fax (14/2/2000)." 23 On 2 March 2000 the male defendant sent a further fax to the plaintiff's solicitor, saying; "It has just occurred to me that I should ask you to warn your client, that should he enter or have a contractor enter my property and damage, poison or cut any branches from any of my rubber trees, as he has done in the past, I will have no hesitation in contacting the police and take legal action against him for trespass and damage." 24 On or about 10 March 2000, the solicitor for the plaintiff faxed the defendants saying: "We refer to your facsimile dated 2 March 2000. Our clients deny the allegations contained in your facsimile and instruct that should you continue making these allegations our clients will take appropriate legal action. We have advised our clients that we have received no correspondence from your solicitor as indicated in your facsimile dated 14 February 2000 and anticipate receiving instructions to commence legal action. We suggest that you request your solicitor to forward a response forthwith if you wish to avoid commencement of legal proceedings." 25 The male defendant replied saying: " My fax of 14/2/2000 makes no mention of any solicitor. In any case my fax of 28/2/2000 constitutes my reply to your fax of 14/2/2000. Surely the truth is paramount in this matter." 26 In mid March 2000 the plaintiff's husband approached a Community Justice Centre and asked them to intervene directly in the dispute with the defendants. An officer of the Community Justice Centre wrote to the plaintiff's husband on 20 March 2000 saying: "We have been in contact with Mr & Mrs R Sharpe but our offer of mediation has been declined. As mediation requires the willing participation of both parties to a dispute we regret we are unable to proceed further. Given the circumstances you may wish to consider other options to resolve this matter. If you have any further enquiries please do not hesitate to contact us." 27 On 2 February 2000 the plaintiff's husband obtained a quotation from MTS Tree Service for lopping the rubber tree to ground level, and removal of it, and poisoning of the stump. That quote was $3,400. 28 On 3 July 2000 the plaintiff's husband obtained a quotation from Belgrave Constructions, a gold licensed builder, for construction of a wall somewhat similar to the wall which Mr Page had described as option 1 in his letter of 1 April 1996 (see para 8 above). However, the quotation of July 2000 relates to a wall which extends 10 metres above, and 10 metres below, the tree in question. While the width of that wall is not expressly stated, the construction of it is said to require excavation of a trench 600mm wide and 1.2 metres deep. It may be that the intention of the person providing the quotation is that the wall eventually constructed, will itself be of those dimensions, but the evidence does not enable me to make a positive finding to that effect. The cost of construction is quoted at $28,600, inclusive of GST.

Nature and Extent of the Plaintiff's Damage 29 Martin Clark is a real estate agent. He was engaged by the previous owners of the plaintiff's property to sell that property, in 1995. Over a period of months in late 1995, he visited the plaintiff's property on about 15 separate occasions. Mr Clark recalls the concrete path and steps on the western side of the property. He gives evidence, which I accept, that to the best of his knowledge and recollection the concrete path and steps were, in late 1995, in good and serviceable condition. 30 Mr Clark also gives evidence of having inspected the property on 16 March 2001, and observing that a small section of the concrete path and steps was cracked and broken up. He also gives evidence of lifting up one of the concrete pieces and observing what he describes as "several large tree roots growing underneath the damaged area." 31 Robert Bennett is a friend of the plaintiff. He has visited the plaintiff's home on numerous occasions during the last five years. He says, and I accept, that the condition of the broken section of the path has deteriorated significantly over the last few years. He says that about four years ago, the condition of the broken section of the path consisted mainly of cracks in the concrete, that the ground level was generally stable, and that the area was very serviceable. He gives evidence that he made another inspection on 17 March 2001, and observed that the concrete area is now broken up into several sections, with large gaps between each section, that the ground level in the broken section of the path is uneven and unstable, and that there are what he described as "large tree roots underneath the broken concrete pieces". He gives evidence that, apart from this broken section, the remainder of the plaintiff's path and steps is in very good condition. 32 The plaintiff's husband gives evidence, which I accept, to the same general effect as the evidence of Mr Bennett. As well as saying that he has observed the damage to the plaintiff's path and steps to have increased over time, the plaintiff's husband gives evidence, which I accept, of observing people trip on the broken concrete on several occasions. In particular, on 13 January 2001 he observed a guest tripping on the broken concrete, causing him to fall and injure his ankle. The plaintiff's husband has attempted to deal with the risk of people tripping on the broken concrete by installing additional lighting around the path and steps, and by erecting signage to warn guests and visitors of the broken concrete.

The Expert Evidence 33 John Ford works as a government analyst and wood identificationist. For the last 15 years he has lectured in botany at the Sydney Institute of Technology. He has extensive practical experience in identification of different woods. He gives evidence as follows: "On 24 September 2001 I visited the premises of Paul and Suzanne Malliate at 21 Juvenis Avenue Oyster Bay. I took a sample of root material from a tree root growing under the pathway on the western side of the property adjacent to 25 Juvenis Avenue. Growing close to the common boundary in 25 Juvenis Avenue and near where I sampled the root is a large rubber tree - Ficus elastica. Based on the anatomy of the woody tissue of the material I have identified the root sample as Ficus sp. In identifying roots using the information available, that is microscopic anatomical characteristics there is usually only enough information to make a positive identification to the level of the genus, in this case Ficus. However as I visited the site and observed that there was only one species of Ficus present - Ficus elastica, the root of necessity must be Ficus elastica." 34 Warren Salkeld holds an Associate Diploma of Horticulture from the Ryde School of Horticulture. He has been a member of the National Arborists Association of Australia for approximately eight years. He has extensive practical experience in the investigation of tree problems, and problems caused by trees. He has taken over the running of the business formerly run by Mr Page. 35 On 20 April 2000 he inspected the plaintiff's property. He observed, on that visit, that the broken section of the path and steps were within three metres of the defendants' tree. He also observed that the Paved Area was within 3.9 metres of the boundary and (as I read his report) within 3.9 metres of the defendants' rubber tree. 36 He gives evidence that on inspecting the path and steps he was able to, and did, lift slabs of concrete off the path and steps with his bare hands. He removed a section of concrete from the path and steps, and observed large tree roots protruding from the ground. He scratched the surface of the exposed large tree roots and a milky latex, which is consistent with the family Moracae (of which rubber trees are part) was produced. Mr Salkeld says that after studying the root epidermis. "…it was clear to me, and I have no doubt, that the exposed roots belonged to the Defendants' Rubber Tree since that was the only rubber tree nearby I observed and there are none on the Plaintiff's Property." 37 Mr Salkeld gives evidence as follows: "I consider that the Defendants' Rubber Tree is the cause of the damage done to the Plaintiff's Path and Steps. Rubber trees have a known reputation for root invasion on foundations, sewer lines, retaining walls and other concrete structures such as pools and stairs and, and my experience, it is common knowledge that rubber trees can and do cause extensive damage. I also consider that the damage already caused is only the beginning. I estimate that the Defendants' Rubber Tree currently has a trunk diameter of approximately 1.2 metres (multiple trunked) and a canopy spread of approximately 15 metres. If left untouched, the Defendants' Rubber Tree could reasonably be expected to attain a trunk diameter of 2 metres, a canopy spread of 20 metres and a roots system that exceeds 20 metres from the base of the Defendants' Rubber Tree. The result is that I also consider that the Defendants' Rubber Tree is capable of doing even further (and, indeed, much more substantial) damage over time including cracking of the Plaintiff's swimming pool and penetrating the Plaintiff's adjacent sewer and storm water pipes. It is my opinion that there is a strong likelihood that damage of this nature will occur unless appropriate action is taken. I believe that appropriate action requires either: (a) the removal of the Defendant's Rubber Tree altogether. In that event I would recommend that the Defendants' Rubber Tree be poisoned several weeks before removal whilst the leaves are still photosynthesising and the tree is transporting nutrients up and down its system. This will enable the poison to be translocated through the roots, effectively killing them and thus preventing re-growth after the removal of the tree; or (b) construction of a reinforced retaining wall above and below the tree of at least 10 metres each way. This wall would then need to have a chemically treated root barrier fitted alongside." 38 I am satisfied, both from evidence given by Mr Salkeld, and from evidence from a enquiry made by the plaintiff's husband, that the local council (the Sutherland Shire Council) has a tree preservation order in place, but there is an exception in that tree preservation order which allows rubber trees to be removed without any consent from the Council.

Applicable Legal Principles 39 The tort of private nuisance aims to protect an occupier's interest in the beneficial use of his or her land, and of his other interests in land. It occurs when activities of the defendant interfere, to a greater extent than is reasonable, with the plaintiff's use of his or her land. It is well established that the defendant can commit the tort of private nuisance by having, on his or her land, a tree the roots of which invade land of the plaintiff. 40 In Young v Wheeler (1987) Aust Torts Reports ¶80-126 at 68,969 Wood J said: "In Davey v Harrow Corporation (1958) 1 QB 60, it was held that an owner of land on which a tree grows is liable, if its roots encroach on adjoining land and cause damage, to an action of damages for nuisance at the suit of the owner of the adjoining land. That such an encroachment is not regarded as a trespass but as a nuisance is settled law: Pickering v Rudd (1915) 4 CAMP 219; Earl of Lonsdale v Nelson (1823) 2 B & C 302; Lemmon v Webb (1894) 3 Ch 1; Middleton v Humphries (1913) 47 Ir LT 160, and Butler v Standard Telephones (1940) 1 KB 399 In order to constitute a private nuisance, there must be an invasion of the interest of the plaintiff in the use and enjoyment of land. A harmful interference must be shown which may consist of physical damage to the land or to structures standing on it, or a disturbance of the comfort, health or convenience of its occupier: Fleming, The Law of Torts 6th ed. (1983) at p.385. It has been said that in order to merit legal intervention, the annoyance or discomfort must be substantial and unreasonable (Fleming at p 356). While this is no doubt true, I reject the defendant's submission that, as a consequence, intrusions by boughs or roots of trees standing on the border of lands in the leafy suburbs of Sydney, such as Roseville, should not be regarded as constituting a nuisance. While trees are an inescapable and desirable part of the landscape in suburbia, it is by now far too late to assert that the inevitable incroachment of their boughs or roots cannot constitute a nuisance." 41 In Morgan v Khyatt [1964] 1 WLR 475 at 477 Lord Evershed said: "…it has…long been established as a general proposition that an owner of land may make any natural use of it; but also (and by way of qualification of the general rule) that if an owner of land grows or permits the growth on his land in the natural way of trees whose roots penetrate into adjoining property and thereby cause and continue to cause damage to buildings upon that property, he is liable for the tort of nuisance to the owner of that adjoining property." 42 In the situation where a defendant has not itself created the situation which results in the plaintiff sustaining damage, liability in nuisance is established only if the defendant has adopted or continues the nuisance with knowledge of its effect. Kaye J explained this concept in City of Richmond v Scantelbury [1991] 2 VR 38, at 40-41, as follows: "There is a line of authority preceding and including the Privy Council's decision in Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258 whereby it is now settled law that an occupier is liable for the continuance of a nuisance provided that he has knowledge of its existence or he ought to have had knowledge of it. In Montana v Fasson, at pp 261-2, Lord Ackner, delivering the judgment of the Board, described the following passage from the speech of Lord Wright in Sedleigh-Denfield v O'Callaghan [1940] AC 880, at p 904 as the locus classicus (of the law on this subject): 'Though the rule has not been laid down by this House, it has I think been rightly established in the Court of Appeal that an occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise. But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience. The responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if, with knowledge, he leaves the nuisance on his land. The same is true if the nuisance was such that with ordinary care in the management of his property he should have realised the risk of its existence.' In Sedleigh-Denfield v O'Callaghan, Viscount Maugham, at p 894, expressed the principle that "an occupier of land 'continues' a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so". Lord Romer, at p 913, said of the matter then before the House: 'The respondents did not themselves create this potential nuisance, and cannot therefore be held liable for its creation. But an occupier of land upon which a nuisance has been created by another person is liable if he 'continues' the nuisance. What acts or omissions on his part are sufficient to constitute continuance of the nuisance is a question that probably does not admit of a comprehensive answer. But I agree with my noble and learned friend upon the woolsack, whose opinion I have had the privilege of reading, that the occupier 'continues' a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so.' " 43 Further, before there is liability in nuisance, it must be reasonably foreseeable that there is a risk of damage if the use of the defendants' land which amounts to the nuisance is continued. Kaye J in City of Richmond v Scantelbury [1991] 2 VR 38 at 45-46, collects the authorities as follows: "Knowledge of the nuisance, whether actual or presumed, does not by itself render an occupier liable for damage created by it. Arising out of such knowledge, there is a duty borne by the occupier to take steps to eliminate the risk of damage from the nuisance which is reasonably foreseeable. That the doctrine of foreseeability of the risk of damage extends to nuisance was recognised by the Privy Council in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617. In the judgment of the Board delivered by Lord Reid, at p 639, it was said: "It is quite true that negligence is not an essential element in nuisance. Nuisance is a term used to cover a wide variety of tortious acts or omissions and in many negligence in the narrow sense is not essential. An occupier may incur liability for the emission of noxious fumes or noise although he has used the utmost care in building and using his premises. The amount of fumes or noise which he can lawfully emit is a question of degree and he or his advisers may have miscalculated what can be justified. Or he may deliberately obstruct the highway adjoining his premises to a greater degree than is permissible, hoping that no one will object. On the other hand the emission of fumes or noise or the obstruction of the adjoining highway may often be the result of pure negligence on his part: there are many cases (eg Dollman v Hillman [1941] 1 All ER 355, CA) were precisely the same facts will establish liability both in nuisance and in negligence. And although negligence may not be necessary, fault of some kind is almost always necessary and fault generally involves foreseeability, eg in cases like Sedleigh-Denfield v O'Callaghan [1940] AC 880; 56 TLR 887; [1940] 3 All ER 349 the fault is in failing to abate the nuisance of the existence of which the defendant is or ought to be aware as likely to cause damage to his neighbour." Although the Board stated that in the class of case then under review, namely, pubic nuisance, foreseeability was an essential element in determining liability, the doctrine of foreseeability applies equally to private nuisance. Thus, Megaw LJ in Leakey v National Trust, [[1980] QB 485] at p 522 in the passage which I have quoted concerning private nuisance, spoke of "the duty arising from a nuisance which is not brought about by human agency" not arising "unless and until the defendant has or ought to have had knowledge of the existence of the defect and the danger thereby created". Implicit in his Lordship's words "the danger thereby created" is the application of the doctrine of foreseeability to private nuisance." 44 In those cases where it is alleged that a defendant has adopted or continued a nuisance, there may well be some overlap between the facts which show that the nuisance has been adopted or continued with the requisite kind of knowledge, and the facts that show that the risk of damage from continuance of the nuisance was foreseeable, but they are still conceptually separate inquiries.

Application of Legal Principles to the Present Case 45 I am satisfied of the following matters.

1 It is the roots of the defendants' rubber tree which have caused damage to the plaintiff's path and steps.

2 It is reasonably foreseeable that rubber trees in general, and this rubber tree in particular, can cause structural damage by their roots passing through, or under, structures in land.

3 The damage to the plaintiff's path and steps has become worse since February 1996, and continues to get worse.

4 That damage is not the sort of incidental or transient annoyance which an occupier of land in an Australian suburb sometimes suffers from reasonable user of his neighbour's land.

5 It is likely that other structures on the plaintiff's land will be damaged by the roots of the rubber tree if the growth of the tree is allowed to continue. 46 Thus, I am satisfied that the continued presence of the rubber tree constitutes a nuisance, within the meaning of the tort of private nuisance. 47 Even though I can make no finding about whether the defendants actually planted the rubber tree, the defendants have adopted or continued the nuisance arising from its presence on their land. They have, from at least April 1996, had information before them which showed, with sufficient certainty, that their rubber tree was the cause of the damage, and that its continued growth would be likely to cause further damage. The defendants produced no expert report or opinion to counter the views expressed by Mr Lawson and Mr Page, and made known to the defendants. In these circumstances, notwithstanding that the defendants continued to assert that their rubber tree was not the cause of the damage, in my view the defendants have adopted or continued the nuisance constituted by the rubber tree. Thus, the defendants have committed the tort of private nuisance by permitting the roots of their rubber tree to encroach on the plaintiff's land.

Damages 48 While the summons made a claim for damages, the plaintiff abandoned that claim at a pre trial directions hearing.

Is an Injunction Appropriate? 49 Because the spread and growth of tree roots which causes damage to structures occurs out of sight and silently, it is possible for quite significant damage to have been caused before the person whose property has been damaged becomes aware of it. Even if any damage to structures caused by the roots is repaired, so long as the roots remain there, and the tree to which they are attached remains growing, there is a risk that the damage to structures will continually recur. For these reasons, damages are not an adequate remedy for the nuisance. It is, in my view, appropriate that an injunction should issue for the purpose of restraining the continuance of the nuisance.

Form of Order 50 The plaintiff seeks an order that the defendants forthwith remove and destroy the rubber tree by cutting it down and poisoning the stump. 51 That is not the usual form of an injunction to restrain a nuisance. Seton's Judgments and Orders, 7th ed (1912) p 595 gives an example of an injunction restraining defendants: "…from burning, or causing to be burnt, any bricks on the defendants' plot of land, in the writ mentioned, so as to occasion a nuisance to the plaintiff, as the owner or occupier of the messuage or dwelling/house and garden, in the writ mentioned to belong to, and to be occupied by, the plaintiff." 52 Other examples of injunctions in similar form are given by Seton at 595-596 - an injunction that the defendant: "…be restrained from keeping or suffering any horse to be on the ground floor of No 19 G - Street in the (bill) mentioned, so as to occasion any nuisance to the plaintiff, his family and lodgers, residing at No 18 G - Street aforesaid." "…from using or permitting to be used the cottage now occupied by them as a small-pox hospital at etc, or any other premises at etc, so as to occasion a nuisance to the plaintiffs as the owners and occupiers respectively of the three messuages or dwelling houses, gardens, farms, and diary at etc belonging to the plaintiff B and occupied by the other plaintiffs." 53 It is to be noted that this usual form of injunction does not contain an absolute prohibition on an activity, but rather a prohibition which takes into account the possibility that whether the activity amounts to a nuisance depends not just on the general type of activity which it is, but also on matters concerning the frequency, extent or manner in which the activity is carried on. 54 It is also to be noted that a relevant ingredient in the prohibition imposed by this order is the effect of the defendants' conduct on the plaintiff, in the plaintiff's capacity as occupier of a particular block of land. The first order which I have quoted from Seton leaves the defendant free to burn bricks to his heart's content whenever the wind conditions are such that the plaintiff's land will not be affected. It leaves the defendant free to burn bricks in a way which affects the plaintiff in some capacity other than as occupier of the identified land. That the order is limited in this fashion is a recognition that the defendants' use of their own land should be restricted by the court only to the extent that is necessary to prevent the particular nuisance which has been proved in Court, and which the Court has been asked to remedy. That nuisance is the nuisance which the plaintiff sustains, not a nuisance which anyone else might sustain arising from the defendants' conduct. 55 Applying this traditional formulation to the case of tree roots, in McCombe v Read [1955] 2 QB 429 at 437 Harman J ordered an injunction: "…to restrain the defendants by themselves, their servants or agents from causing or permitting the roots of trees growing on their property to encroach on the property of the plaintiff so as to cause a nuisance." 56 There are, however, some examples of courts finding that a tree on a defendant's lands constituted a nuisance to the plaintiff, and granting a mandatory injunction to require its removal. Morgan v Khyatt [1964] 1 WLR 475 was an appeal to the Privy Council from the New Zealand Court of Appeal. That Court of Appeal had affirmed an order of the trial judge that the appellant, "within a period of three months from the date of this order … removed from upon and alongside the boundaries of the two properties the pohutukawa trees and that he remove from the land of the [respondent] the roots of such trees or otherwise destroy or render them impotent." (at 476) 57 Their Lordships said that they had: "no doubt…that there is no ground on which the grant of a mandatory injunction for the removal of the trees can be assailed" (at 478). However, there Lordships modified the injunction so as to give the plaintiff/respondent a choice, after the injunction was pronounced, as to whether she would actually require the roots of the trees in her own land to removed, destroyed or render impotent. Their Lordships said: "As their Lordships have understood the evidence, it should well be possible for the appellant, if he properly removes his four trees, to render further infiltration by their roots into the respondent's property practically impossible or at least for the respondent to be enabled at negligible cost to herself to render impotent such roots as remain upon her land. Their Lordships express the hope that these two neighbours may now be capable in this regard of some degree of co-operation. In the circumstances (and in this hope) their Lordships would therefore vary the form of order made by Leicester J by inserting therein immediately after the words "…the pohutukawa trees and that" the brackets and words "(if required so to do by the plaintiff within six months after the removal of the trees or of the last of them)"." 58 That decision needs, however, to be understood in the light of the findings of the trial judge. Those findings are reported as Khyatt v Morgan [1961] NZLR 1020. The basis for granting a mandatory injunction requiring removal of the trees is stated at 1025: "The evidence in this case establishes not only the invasion of a common-law right but a reasonable belief that, without an injunction, there is likely to be a repetition of the wrong. In such circumstances I feel that there should be a mandatory injunction to remove the trees when the attitude of the defendant gives a clear indication that he is not disposed to do anything about the roots. No suggestion is put forward by him that a real remedy can be found for the invasion of the roots other than in the removal of the trees from which the roots emanate. In the absence of any such suggestion, I fail to see why it should be left to the Court to speculate upon what lesser corrective could afford the relief to which the plaintiff is entitled." 59 The reason of the New Zealand Court of Appeal for upholding the injunction (Morgan v Khyatt [1962] NZLR 791, at 797) is: "there are passages in the evidence [of two identified witnesses] which clearly support the view that the removal of the trees is necessary. What is more important, however, is that the same conclusion emerges from the evidence of the witnesses called for the appellant…[three identified witnesses] all agreed that the trees could not remain without the likelihood, if not the inevitability, of further damage. In these circumstances we think the learned judge was justified in making the order he did…" 60 That decision was in keeping with earlier New Zealand decisions that a mandatory injunction requiring removal of the offending tree could issue when a nuisance arising from encroachment of tree roots was established, and there was evidence that the removal of the tree was the only practical course which was likely to stop continuance of the damage (Mandeno v Brown [1952] NZLR 447 at 448,3-6 (mandatory order granted in court below) 449,5-10 (evidence that merely removing encroaching roots and branches would leave the tree in a dangerous state) 451,15-35 (mandatory injunction requiring removal justified); Woodnorth v Holdgate [1955] NZLR 552 at 553,44-53 (appeal seeks mandatory injunction requiring removal of trees), 555 (mandatory injunction not ordered when actionable injury to the plaintiff can be avoided without removal of the trees); Darroch v Carroll [1955] NZLR 997 at 997,1-5 (lower court makes mandatory injunction requiring the removal of tree) 1001,5-1002.50 (mandatory injunction not justified when evidence does not show that removal is the only practical way of preventing the nuisance from continuing); Roud v Vincent [1958] NZLR 794 at 795 (mandatory injunction requiring removal of tree not justified when evidence shows an alternative way of preventing continuance of the nuisance is available).) 61 Similarly, where there was a nuisance arising from withdrawal of support to land, and there was evidence that the only way of avoiding the risk of damage to the plaintiff's land was by performing certain remedial works, a mandatory injunction to require those remedial works to be performed was granted (Hooper v Rogers [1975] 1 Ch 43, at 48 A-B, 49 E-F, 50 B-D, 50 D-E, 51 E-F). 62 In the present case the evidence shows, both from the 1996 opinion of Mr Page, and the 2000 opinion of Mr Salkeld, that the nuisance can be appropriately dealt with either by removal of the tree, or by construction of a reinforced retaining wall above and below the tree, with a chemically treated root barrier fitted alongside. While the method of preventing the encroachment of the roots by construction of a retaining wall is many times more expensive than would be the cost of preventing encroachment of the roots by destroying the tree, it seems to me that, unless the retaining wall solution is really not an available solution for the reason I mention in the next paragraph, the defendants ought be free to decide whether they will spend the extra money and adopt the retaining wall solution. All that the plaintiff is entitled to, is that the nuisance be stopped; if there are alternative means of stopping it, it is for the defendant to choose which of those alternative means they prefer. 63 While Mr Page and Mr Salkeld have expressed the view that construction of a reinforced retaining wall is a practical means of preventing the root incursion, those opinions were expressed in a context where no attention was being paid to the precise location of any such retaining wall. If the defendants are to adopt the retaining wall solution to the problem of root encroachment, it will be necessary for it to be constructed so that it is located entirely on the defendants' property. While defendants are free to choose which method is to be adopted to stop a nuisance continuing, any method needs to be one which uses the defendants' own resources, both money and land. It appears from the quotation of Belgrave Construction that the wall might be of the order of 600mm wide. The evidence does not enable me to make a positive finding that it is practical to construct such a wall so that it is located entirely on the defendants' property. 64 However, the evidence does enable me to make a finding that it has not been demonstrated that the only practical method of dealing with the nuisance constituted by the root encroachment is to remove the tree. In these circumstances, I will not grant a mandatory injunction requiring its removal. Rather, I will adopt the traditional form of injunction to restrain a nuisance.

Relief Granted 65 The relief that I am presently minded to grant is as follows:

1 The Court declares that the presence in the land of the plaintiff known as 21 Juvenis Ave Oyster Bay of roots of the ficus elastica tree (also commonly known as a "rubber tree" ) situated on the eastern boundary of the defendants' property known as 25 Juvenis Ave Oyster Bay constitutes a nuisance which is actionable at the suit of the plaintiff against the defendants.

2 The Court orders (a) That the defendants by themselves, their servants and agents be restrained from causing or permitting roots of the said ficus elastica tree to encroach on the property of the plaintiff so as to cause a nuisance. (b) That the defendants pay the costs of the plaintiff of these proceedings. (c) That either party have liberty to apply upon 14 days notice in writing to the other party and to the Court. 66 I make a declaration and orders accordingly. However, the parties have not had the opportunity to address me concerning the precise form of order which would be appropriate to give effect to these reasons for judgment. Thus, I also give the following direction

3 I direct that the declaration and orders set out above not be entered for 28 days (not including days which fall in the court vacation) after the date of these reasons for judgment. 67 If either party wishes to make submissions about the precise form of declaration or order which is appropriate to give effect to these reasons for judgment, they may do so by giving notice to my Associate and to the other party within 14 days of the date of this judgment. I will then give consideration to whether some modification to the wording of the declaration and order should be made. The declaration and orders as set out above may be entered at the conclusion of 28 days from the date of these reasons for judgment unless, prior to the expiry of those 28 days, and following the making of such submission, I have altered the declaration and orders in any respect. All the time periods referred to in this paragraph exclude days which fall in the court vacation. **********

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