Osborne v Hook

P Baer investments Pty Limited v University of New South Wales [2007] NSWLEC 128 CASES CITED: Robson v Leischke [2008] NSWLEC 152 Briginshaw v Briginshaw (1938) 60 CLR 336

APPLICANTS Ms M Carpenter, barrister LEGAL REPRESENTATIVES: RESPONDENTS Mr K O'Kane, solicitor Kevin O'Kane & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONERS: Mr and Mrs Osborne live at 62 Chapman Avenue, Beecroft - a battleaxe allotment along the eastern boundary of which, at 58 Chapman Avenue, the Hooks reside.

2 There are a number of trees in the vicinity - two of which are the subject of the Osbornes' application. The first of these is a Liquidambar (Liquidambar styraciflua) immediately adjacent to the driveway on the battleaxe element of the Osborne's property but located on the Hooks' property and the second is a Jacaranda (Jacaranda mimosifolia) located on the Hooks' property in the vicinity of the brick-paved area on the southern edge of the Osbornes' house. No application is made by the Osbornes for any interference with or removal of either of these trees.

3 The hearing, to this stage, has primarily concerned itself with the damage to the driveway caused, at least in part, by the Liquidambar. The matters that we are dealing with in this decision are equally applicable to matters that would arise with respect to the claim for damage arising from roots of the Jacaranda. Although there are two Jacarandas involved and it is possible that wrong jacaranda might have been identified by the Osbornes, we are also satisfied that does not provide any basis upon which we could refuse the application as it would simply be a matter of amendment to identify the correct tree. There would be no disadvantage to the Hooks if that were to be necessary and would be permitted.

4 Equally, with respect to the Liquidambar, although there is a significant dispute between the parties about the extent to which the Liquidambar had caused damage to the Osborne's driveway (a matter which would be relevant on the question of quantification and apportionment during a damages determination), there is no dispute, for the purposes of this stage of the proceedings, that the Liquidambar had at least in part (and to some to be determined extent) caused damage to the Osborne's driveway. The consequence of that, we are satisfied on the basis of the various written reports which we have received (which do not dispute that the Liquidambar has, at least, made some contribution to the cracking of the Osbornes' driveway) is that we have jurisdiction to entertain the application as the first of the tests pursuant to s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 is met.

5 It is convenient, in our view to set out, at this stage, a chronology of relevant matters that we are dealing with in this decision. This chronology is set out in the following paragraphs. 6 On 27 July 2004, Mr Osborne discussed with his consulting arborist, Mr Hartley, the question of damage to the driveway in the vicinity of the Liquidambar. That is set out in paragraph 4 of Mr Osborne's statement attached to his application and it is confirmed in a letter from Mr Hartley to Mr Osborne (dated 26 October 2006) where Mr Hartley confirms, in the fourth paragraph, that that discussion occurred. 7 Mr Osborne's statement about what occurred on that occasion reads as follows: On 23 July 2004 I discussed this matter with Mark Hartley, an Arborist [ sic ], who was inspecting a tree at the rear of our property and he suggested grinding the trip step caused by the cracking as a temporary solution. We did nothing more at that time as we hoped that the cracking would not get any worse. We did not contact Mr & Mrs Hook at that time because we do not enjoy a good relationship with them and were not confident that we could resolve the matter by discussion with them. We have had several disputes with them since they began occupying the property in 1997 in relation to the dividing fencing and their trees. In 1998 a dispute in relation to the dividing fence resulted in litigation. 8 In late 2005, the Osbornes noted and repaired some damage in the vicinity of the Jacaranda (including, we infer, paving).

9 In June 2006, Mr Osborne says that he and his wife noticed that the cracking in the driveway had worsened. 10 On 9 July 2006, Mr and Mrs Osborne wrote a letter to Mr and Mrs Hook which identified the areas about which they were concerned as being: o the driveway near the Liquidambar; o the driveway near to a drain; and o the paved area adjacent to the house. 11 Three photographs were appended to that letter. The letter foreshadowed seeking investigation by an arborist and obtaining specialist advice from the arborist. It was, at that stage, also foreshadowed that a copy of the arborist's report would be provided to the Hooks. The letter further foreshadowed a variety of elements proposed to be undertaken: o obtaining permission from the Council to sever the roots; o installing preventative barriers; o repairing damage to the driveway and the paved area; and o seeking compensation to cover all costs. 12 On 16 July 2006, the Hooks replied indicating that they would respond in detail after receiving material relating to the identification matters being undertaken. 13 On 21 July 2006, Mr Hartley, the Osbornes' arborist, inspects the property. 14 On 26 July 2006, Mr Brand, the Osborne's consulting engineer, makes an inspection. 15 On 27 July, Mr Brand prepares his report. 16 On 1 August 2006, the Osbornes write to the Hooks: o advising the arborist has identified the Liquidambar as the cause of the cracking; o confirming that they propose to apply to sever the roots; o advising that they were proceeding on an extensive holiday from 7 August; and o advising that a report would be provided when it was available. 17 Importantly, this letter made no mention of any timetable for rectification of the driveway. 18 By quotation dated 1 August, A. V. Maintenance provides the Osbornes with a quote for approximately $9,000 for rectification of what we accept is the relevant section of the driveway (subject to a minor calculation change concerning a concrete pump - which change does not detain us at this time). 19 On 7 August, the Osbornes leave for their holidays. 20 On 11 August, Mr Hartley prepares his report. 21 On 15 August, the Osbornes' solicitor, Mr Bricknell, writes to the Hooks doing a number of things (including service of Mr Hartley's report and the A. V. Maintenance quote). Importantly, toward the end of the letter, he says the following: Rectification works are due to commence on 18 September 2006. Please advise us at your earliest convenience if you wish to arrange an inspection of the tree roots. Please note that the commencement of the rectification works will not be postponed in the event that you have not arranged an inspection of the roots prior to that date. 22 On 18 August, the Osbornes' solicitor writes to the Hooks serving a copy of the Osbornes' structural engineer's report dated 27 July. 23 On 31 August, the Hooks' arborist undertakes an inspection of the driveway.

24 On 15 September, the Hooks' arborist reports. 25 On 18 September, work starts on rectification of the driveway as advised in the Osbornes' solicitor's 15 August letter. 26 On 19 September, Mr O'Kane, the Hooks' solicitor serves on the Osbornes, at their address but in their absence, a copy of the Hooks' arborist's report which queries matters of observation of the damage and makes a number of suggestions concerning work which might be undertaken. 27 It would appear that within one or two days following the Osbornes' solicitor becoming aware of the letter to the Osbornes' home, by letter of 21 September from the Hooks' solicitor, the document in (26) was also served on the Osbornes' solicitor. 28 On a date in late September 2006 (not able to be accurately identified - but nothing hinges on precision of this date), rectification work on the driveway was completed. 29 Finally, for this chronology, on 9 October, Mr and Mrs Osborne return from holidays. 30 As a consequence of discussion with the legal representatives of the parties during the course of the hearing - Ms Carpenter, barrister for the Osbornes and Mr O'Kane, solicitor for the Hooks - we took a short adjournment to consider whether we should pose some preliminary questions for the parties to consider and about which we might appropriately undertake a preliminary determination.

31 Upon resumption, we posed two preliminary questions - the first being in two parts. The two questions posed were as follows: 1. Whether (a) generally, the absence of notice prior to 9 July 2006; and (b) specifically, the knowledge of the applicants from 2004 of the damage to the drive and the applicants' decision not to notify the respondents should these, as a matter of discretion, in the absence of any incremental damage being shown between 9 July and 18 September 2006, preclude any claim for compensation succeeding? and

2. If the first question is answered "No" to both parts, did the actions of the applicants, in declaring their intention to and actually implementing rectification from 18 September whatever the respondents might consider, deny the respondents sufficient and reasonable opportunity to rectify the damage so, as a further matter of discretion, should be applicants be precluded from recovering any portion of the costs of rectification?

32 After hearing from Ms Carpenter and Mr O'Kane on those questions, by this decision we answer those preliminary questions.

33 With respect to the first of the questions, Ms Carpenter has put to us, effectively, that the subsurface activities of tree roots trigger liability when damage is actually occasioned and that there is no reason why actual or constructive notice should to be held by or imputed to the tree's owners for this to be the case.

34 In addition, she relied on a statement contained in the Hooks' statement in reply to the application where they said as follows; Finally, we would like to say that one of the attractions of living in the Beecroft area is the existence of a large number of mature trees although the number is diminished because of development and subdivision. Minor damage caused by these trees is something that the majority of residents accept in returned benefits that they provide. We have continuing problems outraged lined up to leave emanate from neighbouring trees on the other side of our property employer, at regular intervals to clear the lines of what you want to include in their correspondence with never thought approach any of our notice to the request reimbursement of the costs.

35 Ms Carpenter asks us to draw the conclusion, from that statement, that the Hooks should have been aware of the general likelihood of damage by tree roots, in the broadest possible sense, and, as a consequence, we should, if we are contrary to her general proposition about liability arising (when root damage is occasioned and brought to notice) for all damage which had occurred to that time, we ought also infer that the Hooks have sufficient knowledge of the risks of tree root damage that they were on constructive notice of this damage.

36 Mr O'Kane, on the other hand, relies on the general proposition contained the very first decision given under the Act, P Baer investments Pty Limited v University of New South Wales [2007] NSWLEC 128, that there is to be a setting aside of any entitlement to damages until actual notice of damage is give to the tree owner (or, we would interpolate, a proper finding of constructive notice could be made about the state of knowledge to be imputed to the owner of the tree).

37 We invited Ms Carpenter to address us on the question of whether or not the decision of Preston CJ in Robson v Leischke [2008] NSWLEC 152 at paras 222(h)(iv) to 228 ought not apply by analogy.

38 She indicated to us that the relevant propositions she drew as coming from that case were: o the failure was of the whole tree; o it was an act of God; o its failure was entirely unable to be foreseen (on the findings of fact made by the Chief Judge); and o it was not appropriate to apply the propositions that His Honour there deals with to the present circumstances involving tree roots.

39 We are satisfied that this final proposition is not the correct position.

40 The first reason for so concluding comes from para 207 of Robson where Preston CJ notes that: … considerations that arise in the tort of nuisance concerning fault, the nature of the conduct and the state of knowledge of a person on whose land a tree which causes a nuisance is situated (see discussion above at paragraphs 44-90), would be relevant in ascertaining whether any act or omission of that person has contributed or is contributing to the damage or injury.

41 We are satisfied that this is the proper approach and we should have regard to what was or should have been the state of the Hooks' knowledge.

42 We are satisfied, on the state of the facts, that there is no basis to infer that the Hooks had constructive notice concerning this tree.

43 We are satisfied, on the evidence of Mr Osborne, the Hooks lacked actual notice and we do not consider that the proposition contained in their statement in reply (concerning the likelihood of tree root damage to sewer pipes) has any analogous application to a Liquidambar tree located on the opposite side of their property in the vicinity of the Osbornes' driveway.

44 We are satisfied that there is no proper basis, to the degree of comfortable satisfaction discussed by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336, that we could be satisfied that there was constructive notice to be imputed to the Hooks. As we are also satisfied that there is no actual notice, we are therefore satisfied that the chain of reasoning applied by Preston CJ in Robson in paras 222(h)(iv) to 228 is appropriate to be applied in these circumstances.

45 That chain of reasoning necessarily leads to the conclusion, as there is no question of fault on the part of the Hooks either by failure to observe actual notice given to them or failure to respond to constructive notice that, as His Honour decided on the facts in Robson, the damage should fall as it does and there is no fault requiring a shifting of the incidence of loss.

46 If we are incorrect on that point, we turn to the question of the period between 2004 and 2006. This is a matter where we are obliged to have regard to the provisions of section 12(h)(ii) of the Act, the applicants raising the question of damage to their property, requiring us to consider 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. We are satisfied that steps taken in this case, as dealt with by His Honour in Robson, also deals with acts of omission as well as acts of commission.

47 We have earlier recited the terms of paragraph 4 of Mr Osborne's statement and so do not repeat its terms.

48 We here note that Mr Osborne is a solicitor, now in retirement, and that there had been litigation between the parties. We do not take the fact of his past legal practice into account in concluding that a reasonable ordinary person faced with the social circumstances which have existed between the parties (and being put on notice by their arborist that there is a problem with the roots of the trees) would be reasonably and prudently know that it would be desirable to tell the neighbours of the problem, even if only on a precautionary basis.

49 In addition, in light of the statement made by Mr Hartley, the Osborne's arborist, in a letter dated 26 October 2006 where he dealt with the visit he made in July 2004 saying: My earliest visit to the site was on 23rd July 2004. At that stage I noticed raised sections of concrete adjacent to the liquidambar that had not been extensively cracked but rather they had lifted. As a result, at that stage I discussed concrete grinding with Mr Osborne as a temporary solution to the problem. [Mr Hartley then goes on to note that he was not present when the roots were exposed and cannot recall to what extent cracking had occurred at his last visit prior to work commencing.]

we are satisfied that the Osbornes have not demonstrated, as a matter about which we can properly conclude, that there had been any significant incremental damage caused to the driveway nor damage which was not capable of being rectified, with or without notice to the Hooks, in 2004.

50 The choice that was taken by the Osbornes, not to want to undertake full investigation and rectification, leads us to the conclusion that, to that extent, they adopted the nuisance, as it were. We are certainly have no evidence and are not satisfied that any future damage which might have been occasioned between 2004 and 2006 could not have been avoided by proper and appropriate intervention at that time.

51 As a consequence we are satisfied, again on a Briginshaw basis, that, as a matter of discretion, because of the failure of the Osbornes to give notice in 2004 and/or undertake proper rectification at that time, we ought not entertain any claim for damages on this occasion.

52 However, if we are wrong in reaching both those conclusions with respect to the elements of the first question, we turn to consider the question of whether a reasonable opportunity was given to the Hooks, after notice was given in July 2006, for them to respond to and possibly abate and rectify the nuisance that the Liquidambar was causing to the Osbornes' driveway.

53 The chronology which we had earlier set out makes it clear that the time from inspection to preparation and serving of the arborists' reports was, in rough terms, equal on both sides.

54 The structural engineer's report by Mr Brand was dated 27 July but was not served until 18 August.

55 When the Hooks had been served with the report from Mr Hartley, we are satisfied they sufficiently promptly arranged for their own arborist to undertake an inspection which he did on 31 August - his reporting have a similar delay to the delay of Mr Hartley in preparation of his report.

56 We do not think that there was anything unreasonable in this course of conduct.

57 During of the hearing, Mr Osborne indicated that they had decided that undertaking of rectification to the driveway was to occur during the period when he and his wife were on holidays (and we consider this to be a not unreasonable practical position for them to adopt - given the possible disruption to their lives life that might have occurred had driveway being been being rectified during their occupation).

58 However, practical solutions are not the same as providing a reasonable opportunity to the Hooks to deal with the matters which were raised with them by the various elements of correspondence. There is nothing to suggest, from the subsequent correspondence (or, immediately relevantly, the letter from the Hooks' solicitor on 19 September) that matters of compensation have likely to be able to be resolved. However, we observe that this is a post hoc observation made through the prism of hindsight and does not provide us with any substantive assistance in dealing this claim.

59 However, the letter from the Hooks' solicitor on 19 September enclosing the Hooks' arborist's report did raise a number of practical issues concerning the nature and impact of the rectification works proposed to be undertaken. Whether or not the form of alternative concrete treatment advocated by the Hooks' arborist was appropriate or not (that being a matter contested by Mr Hartley in his subsequent correspondence) and whether the Hooks' arborist's concerns about the future stability of the Liquidambar contained in his report were valid (in which he is in disagreement with the earlier report of Mr Hartley suggesting that there would be no threat to stability of the Liquidambar), there was no opportunity allowed to resolve these issues.

60 The Osbornes' insistence that rectification would take place while the they were on holidays precluded any real opportunity for the Hooks to propose any alternative or more appropriate or arboriculturally sensitive rectification work being undertaken (including, from our own knowledge and experience, options such as structural soils, suspended slabs and the like now commonly required by Councils in critical root zones of trees). As a consequence, we are satisfied that there was no sufficient reason provided by the Osbornes (apart from their own desire to preserve their convenience) for requiring the rectification work to be undertaken when it was done. Specifically, by so requiring it to be done, they deprived the Hooks of an appropriate and acceptable opportunity to address and respond to be issues raised by the Osbornes.

61 Therefore we answer the second question "Yes" as well. Having reached that conclusion on all three bases, we are satisfied that, as a matter of discretion, there is no need for us to explore questions of causation and apportionment as we are satisfied there is should be no entitlement to compensation. The application concerning the Liquidambar is therefore refused.

62 Similar reasons apply to the Jacaranda element of the claim and it is also refused.

Tim Moore Peter Thyer Commissioner of the Court Acting Commissioner of the Court

26/06/2008 - Delete duplicated phrase - Paragraph(s) Paragraph 7

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