McCormack v Spencer

CASES CITED: Robson v Leischke [2008] NSWLEC 152 Brown & anor v Weaver [2007] NSWLEC 738

DATES OF HEARING: 27 June and written submissions 4 July 2008

APPLICANT Mr G Ellison, solicitor LEGAL REPRESENTATIVES: G. M. Ellison & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 COMMISSIONER: Mr McCormack lives in a house on a landlocked allotment with a water frontage to Oyster Bay. His property's street address is 84 Oyster Bay Road. Immediately to the south is a house on a similar landlocked allotment and also having a frontage to Oyster Bay. This property's street address is 86 Oyster Bay Road.

2 Each of these landlocked parcels of land has access to Oyster Bay Road via another allotment with a frontage to Oyster Bay Road. This access is via rights of carriageway. Each of these landlocked allotments has a separate right of carriageway. The two rights of carriageway are adjacent and have a common boundary - also being the common boundary between the front allotments.

3 Mr McCormack's right of carriageway is over 82 Oyster Bay Road which is owned by the Spencers - the respondents to Mr McCormack's application. The right of carriageway serving 86 Oyster Bay Road is over 88 Oyster Bay Road.

4 Mr McCormack has provided a "not to scale" sketch showing the general layout of the property boundaries of the four relevant properties and two rights of carriageway.

5 Also relevantly, Mr McCormack also has an easement for services which easement is co-extensive with his right of carriageway over the Spencers' property (according to the survey plan below). Mr McCormick's water, electricity and telecommunications services are located in a trench adjacent to the boundary between the two rights of carriageway.

Mr McCormack's application 6 Mr McCormack's application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 was originally for the removal of three trees (one eucalypt and two paperbarks) located on the boundary between the two Oyster Bay Road frontage properties (and thus on the boundary of the two rights of carriageway). The application included a claim for compensation for damage caused by one of those trees - a large eucalypt which was described by Sutherland Shire Council as being a Blue Gum (Eucalyptus saligna). The other two trees are not a matter requiring consideration in Mr McCormack's compensation claim. This compensation claim is for damage to his services in the vicinity of the Blue Gum (and in the right of carriageway) and for works he had undertaken to the driveway on the right of carriageway. Removal of the trees 7 All three of the trees were in existence at the time of lodgement of his application and therefore the Court has jurisdiction to consider it (see Preston CJ in Robson v Leischke [2008] NSWLEC 152 at para144).

8 Between the lodgement of his application and the on-site hearing of the matter, Mr McCormack had had all threes removed and stump ground to very slightly below ground level. He undertook these removals purportedly pursuant to a consent granted to him by the Council. The consent contained the requirement that consent of the relevant tree owners be provided to the Council, in writing, prior to tree removal being undertaken. As all three trees straddled the boundary between the two Oyster Bay Road frontage properties, these conditions required, on purely a fee simple basis, the provision of the written consent of the owners of each of the Oyster Bay Road frontage properties being provided to the Council prior to removal.

9 Mr McCormack had the written consent for the removal of these trees from the owners of 88 Oyster Bay Road and a document which Mr Ellison, his solicitor, submits constitutes written consent of the Spencers for the removal of these trees. The Spencers deny that this document constitutes such consent. However, whatever the status of the document signed by the Spencers, neither the written consent from the owners of 88 Oyster Bay Road nor the document signed by the Spencers was provided to the Council prior to the tree removal being undertaken.

10 For the reasons which follow, I have concluded that I do not need to determine whether or not the failure to comply with the terms of the Council's consent would automatically be fatal to Mr McCormack's compensation application (as it would involve compensating him for the carrying out of an activity which was otherwise, prima facie, unlawful). However, I am satisfied that, had I not reached the conclusion which I have concerning jurisdictional issues arising from the location of the Blue Gum and the various property boundaries and rights (however construed), Mr McCormack's failure was not merely one of form, as submitted by Mr Ellison, (particularly given the Spencers' challenging of the validity of the "consent" given by them) but would have been a significant matter as to whether the Court, as a matter of discretion, under the circumstances, should exercise such discretion and compensate Mr McCormack.

Applications under the Act 11 An application to the Court pursuant to s 7 of the Act may be made as follows: An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. 12 An owner of land includes the occupier of the land (s 3(1) of the Act).

13 The property must be on the land owned by the person making the application (see discussion by Preston CJ in Robson v Leischke at paras 162 to 164).

14 A tree is situated on adjoining land if it is situated wholly or principally on the land (s 4(3) of the Act). The location of the Blue Gum 15 For the purpose of understanding the analysis of the jurisdictional issues discussed below and the conclusion reached, it as necessary to reproduce four further images.

16 The first is a survey plan tendered on behalf of Mr McCormack. 17 The survey plan shows the boundary interface for two of the allotments (82 and 84 Oyster Bay Road - the Spencer and McCormack properties respectively) which are relevant in the proceedings. The survey also shows the location of Mr McCormack's right of carriageway and easement for services.

18 In addition, the survey shows, in a stylised, circular fashion, the location of the Blue Gum. As the survey was undertaken on 20 June 2008, after the three trees had been removed, the information concerning the Blue Gum is not taken from an extant tree. However, the survey notes two matters concerning this tree which are relevant in consideration of preliminary jurisdictional issues. The first of these notes is that the tree was approximately 0.9 m in diameter and the second is that it was approximately 0.45 m over the boundary. The Blue Gum was, thus, in part, located on the property to the south, 88 Oyster Bay Road and, also in part, within the right of carriageway to the landlocked property to the south, 86 Oyster Bay Road.

19 However, the Blue Gum was not a tree with a regular, circular trunk as the subsequent images will confirm. The tree was of irregular circumference at its point of attachment to the ground at the base of its trunk. This is obvious from the image immediately below which shows the remnant of the tree at the time of inspection and after the grinding of the stump to ground level. The boundary between 82 and 88 Oyster Bay Road runs in a line parallel to (or virtually parallel to - the difference, if any, is not material under the circumstances) the edge of the concrete slab running from left to right in the photograph below and extending as a projection from a survey mark on the timber at the bottom of the residual fence element in the upper right portion of the photograph. 20 This photograph was taken during the site inspection after scraping away the detritus left by the stump grinding. The raised (or ridged) element in the left of centre foreground shows the furthest extent of the tree into 88 Oyster Bay Road and the right of carriageway to 86 Oyster Bay Road.

21 The third and fourth images are photographs taken from a report tendered for Mr McCormick in these proceedings. The report was prepared by Mr John Loiterton, a structural engineer from an engineering consultancy. Mr Loiterton was retained in mid-2006 by Mr McCormack's insurance company to provide a report on a number of elements damage to Mr McCormack's property and to the property to the south at 86 Oyster Bay Road.

22 Although this report was provided some time ago, the Spencers took no objection to it being tendered and there was no requirement for its author to be available for cross-examination. 23 The above photograph is taken from Mr McCormack's right of carriageway in the vicinity of his property boundary. It shows the Blue Gum in the left mid-ground. The photograph clearly shows twin trunk elements, some 1 m above the ground, rising from a single basal trunk at the point of ground attachment.

24 Although of poorer quality than the second of Mr Loiterton's photographs, it clearly shows the line of the fence (the fence being on the boundary at its point at the tree immediately toward the viewer. This point coincides with the survey mark noted in [19]. 25 The above photograph is taken from a point on the right of carriageway accessing 86 Oyster Bay Road. It, too, shows the Blue Gum in the left mid-ground. This photograph also clearly shows the twin trunk elements, from a single basal trunk at the point of ground attachment.

26 This photograph also clearly shows the line of the fence (the fence being on the boundary but beyond the tree.

27 In addition, Mr Loiterton made a relevant observation concerning the location of Blue Gum when he wrote, page 4 of his report, "the trunk appears to straddle the boundary between the rights of carriageway, being slightly more on the right of carriageway to No 86".

28 As a consequence of my site examination of the base of the trunk depicted above (following [19]), my consideration of the photographs taken by Mr Loiterton and reproduced above (following [22] and [24]) the and opinion expressed by Mr Loiterton (quoted in [27]), I have concluded that the limits of the trunk of the tree at its point of attachment to the ground show that the centre of the trunk was to the west of the boundary and significantly more than 50% of the trunk of the tree at its point of attachment to the ground was located on 88 Oyster Bay Road and within the right of carriageway to 86 Oyster Bay Road. As a consequence, if I were required to determine the location of the tree, I would hold that it is situated principally on 88 Oyster Bay Road and within the right of carriageway to 86 Oyster Bay Road.

29 The approach taken above is consistent with an earlier determination on how the location of a boundary tree should be determined for the purposes of s 4(3) of the Act (see Brown & anor v Weaver [2007] NSWLEC 738). Although I am not bound to follow that decision, I am satisfied, on the facts of this case (particularly the limits of the information caused by Mr McCormack's removal of the Blue Gum prior to the hearing) that this would, if needed, be the appropriate approach to take here.

30 During the course of the site inspection, Mr Ellison submitted that an inspection of what remains should cause me to conclude, consistent with the stylised depiction on the survey plan, that the tree was equally on both properties. However, if I were to so hold, the Court has no jurisdiction under these circumstances as the tree would not be situated principally on either property.

31 Mr Ellison has also provided written submissions in support of me finding that the location of the tree permits enlivenment of the Act. These submissions read, relevantly: The growth of the tree to the east has been restricted by the concrete road surface laid above natural ground level along the right of carriageway. Nevertheless it is submitted by the Applicant that the tree at natural ground level was straddling the boundary between 84 and 88 Oyster Bay Road. Therefore it is submitted that the tree falls within the ambit of the Act and as such within the jurisdiction of the Court to determine the application. 32 There is no doubt that the Blue Gum straddled the boundary between 84 and 88 Oyster Bay Road. It may be that the concrete road surface laid above natural ground level along the right of carriageway caused greater growth of the tree away from such constraint. However, the location of the tree vis-à-vis the boundary is what requires consideration under the Act - not the cause of its location. These written submissions provide no assistance to Mr McCormack on the issue of the location of the tree on the test of where it is principally situated.

33 However, from the discussion which follows, it can be seen that my factual finding contrary to either of Mr Ellison's submissions does not impact on the conclusion which I consider is inevitable.

"Owner" of a right of carriageway 34 Mr Ellison has also provide written submissions in support of the proposition that, at least for the purposes of s 3(1) of Trees (Disputes Between Neighbours) Act 2006, a holder of a right of carriageway is an occupier of the land over which the right of carriageway exists (and is thus deemed to be an owner of that land and capable of making an application pursuant to s 7 of the Act).

35 I have concluded for the reasons that follow that I do not need to determine this question as the answer to it has no material bearing on what I have concluded is the inevitable failure of this application.

36 I am satisfied that there are only three possible factual combinations of circumstances which might be held to be applicable to Mr McCormack's application. Each element of this matrix, for the reasons set out below, is not capable of supporting this application under s 7 by Mr McCormack against the Spencers concerning the Blue Gum. Mr McCormack is an "owner" and the tree is situated principally on the Spencers' land 37 The first possibility is that Mr McCormack is, for the purposes of the Act, the owner of the right of carriageway and that the tree which is depicted in the earlier images is situated principally on the Spencers' property. If that is basis upon which Mr McCormack's case is advanced (and that is what appears to be the position from the way the application is framed and Mr Ellison has argued it), the tree is also situated principally on Mr McCormack's right of carriageway. 38 In Robson v Leischke, Preston CJ observed: 154 The Trees (Disputes Between Neighbours) Act 2006 , by its specification of when a tree is situated on land for the purposes of the Act, does not alter the property rights in a tree but it does specify which of the adjoining owners of land has the right to apply to the Court for an order in relation to the tree.

155 If the tree is wholly on one person's land, the adjoining owner adversely affected by the tree may make application to the Court. This situation accords with the common law. If the tree is principally on one person's land, the adjoining owner would also have a right to make application to the Court. This accords with the common law where the tree could be said to be owned by the person on whose land the tree is principally situated (such as where the tree has moved), but not where the tree is jointly owned by the adjoining owners. In this situation, the Trees (Disputes Between Neighbours) Act 2006 is facultative. It allows one of the joint owners of the tree, namely the owner of the land adjoining the land on which the tree is principally situated, to apply for an order in relation to the tree without the consent of the other joint owner. But it is also restrictive in that the joint owner on whose land the tree is principally located cannot make application to the Court for an order in relation to the tree. 39 It is clear from: - His Honour's final observation above on the terms of the Act; - the terms of the Attorney-General's second reading speech when the legislation was introduced; and - the report of the New South Wales Law Reform Commission which formed the policy discussion basis for the introduction of the legislation, that it is not envisaged that an owner of land can take action against other owners of the same land for damage to the first owner's property which is situated on that land. 40 On Mr Ellison's submissions, there are three owners of the land on which the tree was located - the Spencers and Mr McCormack. The necessary conclusion follows that, if Mr McCormack is an owner for the purposes of the Act, he has made an application against his co-owners - the Spencers. If Mr Ellison be correct, it necessarily follows that the Court has no jurisdiction to entertain Mr McCormack's application as the joint owner on whose land the tree is principally located cannot make application to the Court for an order in relation to the tree. Mr McCormack is an "owner" and the tree is situated principally on the land to the south 41 If, however, considering the second of the three possible elements of the matrix, Mr Ellison's submission is correct that Mr McCormack is an owner of the land but the tree was not situated principally on the Spencers' land but was situated principally on the land to south - being land jointly owned, on Mr Ellison's submissions on how "ownership" under the Act should be construed, by the owners of the fee simple of 88 Oyster Bay Road and the owners of 86 Oyster Bay Road as "owners" of the right of carriageway.

42 Therefore, if the tree was situated principally on the land to south (as I consider is the factual position), no cause of action lies against the Spencers (assuming Mr Ellison's submission is correct that beneficiaries of rights of carriageway are owners of the land for the purposes of the Act - a matter I am not determining because, as earlier discussed it is not necessary to do so) any application under the Act would need to name, as respondents, the owners of the fee simple of 88 Oyster Bay Road and the owners of 86 Oyster Bay Road as "owners" of the right of carriageway and not the Spencers.

43 On this construction, Mr McCormack's application must fail.

Mr McCormack is not an "owner" and the tree is situated principally on the Spencers' land 44 If, however, considering the third and final of the three possible elements of the matrix, Mr Ellison's submission is incorrect as to ownership for the purposes of the Act springing from the right of carriageway and Mr McCormack is not an owner of the land, the damaged property which is the subject of Mr McCormack's claim - his water, power and communications services in and the concrete slabs of driveway on the right of carriageway - is not on Mr McCormack's land.

45 As earlier noted at [13], Preston CJ specifically discussed this in Robson v Leischke at paras 162 to 164. His Honour said: 162 In relation to the first type of harm, damage to property, the Trees (Disputes Between Neighbours) Act 2006 restricts the scope of its application to damage to the applicant's property on the land of which the applicant is the owner or occupier. Section 7 entitles an applicant, who is "an owner of land" to apply for an order to remedy, restrain or prevent "damage to property on the land" as a consequence of a tree situated on adjoining land. "The land" in the phrase "damage to property on the land" in s 7 is the land of which the applicant is the owner or occupier (in the extended sense of "owner of land" in s 3(1)).

163 The object of the damage caused by the tree is specified to be "property". The Court may make orders to remedy, restrain or prevent damage "to property": see s 9(1) and (2)(a), (b), (e) and (i), and see also s 7 and s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 . The property must be "on" the applicant's land. By reason of s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 , the property must also be "the applicant's property". Section 10(2)(a) prohibits the Court making an order unless it is satisfied that the tree concerned "has caused, is causing, or is likely in the near future to cause, damage to the applicant's property".

164 The legislative requirement that the damage be to "the applicant's property" and that such property be "on" the applicant's land, restricts the type of property to which the Trees (Disputes Between Neighbours) Act 2006 applies.

46 As a consequence, under the third of the possible elements of the matrix of circumstances, the damage to Mr McCormack's water, power and communications services in and the concrete slabs of driveway on the right of carriageway is incapable of being subject of an application under the Act as the property subject of the compensation claim is not on Mr McCormack's land.

47 In these circumstances, it is irrelevant whether the tree is situated principally on the Spencers' land or principally on 88 Oyster Bay Road

Conclusion 48 Mr Ellison bases Mr McCormack's application on three propositions - the Spencers own the freehold of 88 Oyster Bay Road; the tree is principally situated there; and Mr McCormack is, for the purposes of the Act, an "owner" of a right of carriageway over the Spencers' land. On Mr Ellison's construction of the Act, Mr McCormack must also be an owner of the tree. Understood in that stark simplicity, a claim for compensation against the Spencers is simply absurd. Further, any permissible construction of the Act applied to the facts is incapable of founding a claim against the Spencers. If proper consideration had been given to the facts and law, the fundamental futility of this application would have been evident. It should never have been lodged.

49 The application was a waste of the Court's and the parties' time and resources and must be dismissed.

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