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.