Robson v Leischke

Robson v Leischke - [2008] NSWLEC 152 - NSWLEC 2007 case summary — Zoe

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Aaron v Haynes [2007] NSWLEC 294 (25 May 2007) Antipas v Kutcher (2006) 144 LGERA 289 Ashworth v Joyce [2007] NSWLEC 357 (15 June 2007) Asman v MacLurcan (1985) 3 BPR 9592 Attorney-General v Doughty (1752) 2 Ves. Sen. 453, 28 ER 290 Bank of New Zealand v Greenwood [1984] 1 NZLR 525 Bainbridge v Chertsey Urban District Council (1914) 84 LJ Ch 626 Barker v Kyriakides [2007] NSWLEC 292 (24 May 2007) Barton v Chhibber (1988) Aust Torts Reports 80-185 Bathurst City Council v Saban (1985) 2 NSWLR 704 Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 Baulkham Hills Shire Council v A V Walsh Pty Limited [1968] 3 NSWR 138, (1968) 15 LGRA 338 Bayliss v Lea [1962] SR (NSW) 521 Bennetts v Honroth [1959] SASR 170 (7 September 1959) Bernstein of Leigh (Baron) v SkyViews & General Ltd [1978] QB 479 British Road Services Ltd v Slater [1964] 1 All ER 816 Broadie v Singleton Shire Council (2001) 206 CLR 512 Brown v Harrison (1947) 204 The Law Times 24 Bruce v Caulfield (1918) 34 The Times Law Reports 204 Buckingham v Ryder [2007] NSWLEC 458 (25 July 2007) Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Butler v Standard Telephones & Cables Ltd [1940] 1 KB 399, [1940] 1 All ER 121 Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264 Caminer v Northern & London Investment Trust Ltd [1951] AC 88 Campbell v Paddington Corporation [1911] 1 KB 869 Cannon v Newberger (1954) 1 Utah 2d 296 Chastey v Ackland [1895] 2 Ch 389 City of Richmond v Scantelbury [1991] 2 VR 38 Cohen v City of Perth (2000) 112 LGERA 234 Coutts v Haydon [2007] NSWLEC 863 (20 December 2007) Crowhurst v Amersham Burial Board (1878) 4 ExD 5 Crump v Lambert (1867) LR 3 Eq 409 Cunliffe v Bankes [1945] 1 All ER 459 Dalton v Angus (1881) 6 App Cas 740 Davey v Harrow Corporation [1958] 1 QB 60, [1957] 2 All ER 305 Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 Dooley v Newell [2007] NSWLEC 715 (23 October 2007) Dudley v Meadowbrook Inc (1961) 166 A 2d 743 Dungog Shire Council v Babbage (2004) 134 LGERA 349 Elliott v Islington London Borough Council [1991] 10 EG 145, 7-06-1990 Times 839 Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 F Hannan v Electricity Commission of NSW [No 3] (1985) 66 LGERA 306 Fishmonger's Co v East India Co (1752) 1 Dick 163, 21 ER 232 French v Auckland City Corporation [1974] 1 NZLR 340 Fletcher v Bealey (1884) 28 ChD 688 Gartner v Kidman (1962) 108 CLR 12 Gazzard v Hutchesson (1995) Aust Torts Reports 81-337 Gibson v Denton (1896) 4 AD 198; 74 NY St Rep 197 Giles v Walker (1890) 24 QBD 656 Goldman v Hargrave [1967] 1 AC 645 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Grosvenor Hotel Co v Hamilton [1894] 2 QB 836 Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683, [1961] 2 All ER 145 Hill v Van Erp (1997) 188 CLR 159 Hoare & Co v McAlpine [1923] 1 Ch 167 Holder v Coates (1827) M. & M. 112, 173 ER 1099 Hooper v Rogers [1975] Ch 43 Horn & Anor v Latter [2007] NSWLEC 744 (23 October 2007) Hunter v Canary Wharf Ltd [1997] AC 655 Hurst v Hampshire County Council (1997) 96 LGR 27 In re Christmas. Martin v Lacon (1886) 33 ChD 332 Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 Kent v Johnson (1973) 21 FLR 177 Kidman v Page [1959] Qd R 53 King v Taylor (1976) 238 EG 265 Laws v Florinplace Ltd [1981] 1 All ER 659 CASES CITED: Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 Lemmon v Webb [1894] 3 Ch 1 Lemmon v Webb [1895] AC 1 Lister v Hong [2006] NSWSC 1135 (31 October 2006) L J P Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 Malliate v Sharpe [2001] NSWSC 1057 (13 December 2001) Malone v Lasky [1907] 2 KB 141 Manchester Corp v Farnworth [1930] AC 171 Mandeno v Brown and Wilkie [1952] NZLR 447 March v E & M H Stramare Pty Limited (1991) 171 CLR 506 Masters v Brent London Borough Council [1978] QB 841 Matthews v Forgie [1917] NZLR 921 McCombe v Read [1955] 2 QB 429, (1955) 2 All ER 458 Mendez v Palazzi (1976) 68 DLR (3d) 582 Mills v Brooker [1919] 1 KB 555 Molloy v Drummond [1939] NZLR 499 Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 61 ALJR 282, (1986) 62 LGRA 46 Morgan v Khyatt [1964] 1 WLR 475 Newcastle-under-Lyme Corporation v Wolstanton Ltd [1947] Ch 92 Noble v Harrison [1926] 2 KB 332 Oldham v Lawson (No 1) [1976] VR 654 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 Owners of Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117 P Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 (15 March 2007) Peisley v Ashfield Municipal Council (1970) 21 LGRA 243; affirmed (1971) 23 LGRA 166 Pemberton v Bright [1960] 1 WLR 436 Perre v Apand Pty Ltd (1999) 198 CLR 180 Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 Ponting v Noakes [1894] 2 QB 281 Pwllbach Colliery v Woodman [1915] AC 634 Quinn v Scott [1965] 2 All ER 588 Read v J Lyons & Co Ltd [1947] AC 156 Ridley v Gyler [2007] NSWLEC 220 (20 April 2007) Rose v Equity Boot Co Ltd and Hannafin (1913) 32 NZLR 677 Roud v Vincent [1958] NZLR 794 Rylands v Fletcher (1868) LR 3 HL 330 Salvin v North Brancepeth Coal Co (1874) LR 9 Ch 705 Sedleigh-Denfield v O'Callaghan [1940] AC 880 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 Simbert Group Transport Pty Limited v Clifford [2005] SADC 80 (8 July 2005), 241 LSJS 1 Smith v Giddy [1904] 2 KB 448 Smith v Littlewoods Organisation Ltd [1987] AC 241 Solloway v Hampshire County Council (1981) 79 LGR 449 South Australia v Simionato (2005) 143 LGERA 128 Sparke v Osborne (1908) 7 CLR 51 Speed v Money & Musson (1904) 48 Sol Jo 674 Sterling v Weinstein (1950) 75 A2d 144 St Helens Smelting Co v Tipping (1865) 11 HLC 642 Sutherland Shire Council v Becker (2006) 150 LGERA 184 Tate & Lyle Food Distribution Ltd v Greater London Council [1983] 2 AC 509 Thompson v Sydney Municipal Council (1938) 14 LGR (NSW) 32 Thompson-Schwab v Costaki [1956] 1 WLR 335, [1956] 1 All ER 652 Todd v Flight (1860) 9 CB NS 377 Torette House Pty Ltd v Berkman (1940) 62 CLR 637 Turner v Ridley (1958) 144 A2d 269 Vairy v Wyong Shire Council (2005) 223 CLR 422 Valherie v Strata Corporation No 1841 and Ors (2004) 234 LSJS 134, [2004] SASC 170 Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108 Vella v The Owners of Strata Plan 8670 [2007] NSWLEC 365 (28 May 2007) Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 Vincent v Peacock [1973] 1 NSWLR 466 Walter v Selfe (1851) 4 De G & Sm 315, 64 ER 849 William Aldred's Case (1611) 9 Co Rep 57b, 77 ER 816 Woodnorth v Holdgate [1955] NZLR 552 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Wringe v Cohen [1940] 1 KB 229 Wyong Shire Council v Shirt (1980) 146 CLR 40 Young v Wheeler (1987) Aust Torts Reports 80-126

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1 HIS HONOUR: The Queen's birthday weekend of 8-9 June 2007 was a weekend of wild, windy and wet weather. An east coast low pressure system brought gale force winds and flash flooding to Newcastle and the Central Coast of New South Wales. It was on this weekend that the 76,000 tonne bulk ore carrier Pasha Bulker grounded on Newcastle beach. Flooding and high winds caused loss of power to over 200,000 homes in the Sydney-Newcastle area. Wind gusts of up to 135 kilometres per hour were measured at Norah Head at 1.30am on the morning of 9 June 2007. A tree causes damage to neighbouring property 2 Niagara Park, a residential suburb near Gosford on the Central Coast, was one of the areas affected by the stormy weather. On the evening of Friday, 8 June 2007, the gale winds blew a large, Grey Ironbark tree growing on Mr Leischke's property at 54 Joppa Street, Niagara Park, crashing onto the dwelling on Mrs Robson's neighbouring property at 56 Joppa Street. Significant physical damage was caused to the roof, ceilings, windows and other parts of the house and consequential water damage was caused to the interior of the house. 3 The wet weather had started on the preceding Thursday, 7 June 2007. 59 millimetres had fallen on that day. The rain escalated over the next two days. On Friday, 8 June 2007, 110 millimetres of rain fell and on Saturday, 9 June 2007, a further 229 millimetres fell. These three days were the days of highest rainfall in June 2007 on the Central Coast. 4 Mr Leischke was at home on the night of 8 June 2007. He said there had been a lot of rain. He could see water pooling on the ground in the backyard. 5 The tree fell in the evening, sometime before 10.00pm on 8 June 2007. The State Emergency Services (SES) attended, cut branches of the tree lying over the roof of Mrs Robson's house and erected a tarpaulin across the roof to prevent further water incursion. The SES advised the then tenants of Mrs Robson residing at the house that it would be unsafe for them to stay in the house. The tenants moved out on 9 June 2007. They did not return. 6 Mrs Robson and her father carried out interim work to repair the roof, ceiling and windows to make safe and waterproof the house. Mrs Robson moved into the house, with her family, on 26 September 2007. 7 There was, therefore, a period of about 15 weeks where the house was not occupied by the tenants or Mrs Robson. This period is the subject of Mrs Robson's claim for loss of rent. The tree and the cause of its failure 8 An arborist called by Mr Leischke in the proceedings, Mr Freeman, inspected Mr Leischke's property six months after the event, on Thursday, 13 December 2007. Mr Freeman inspected what remained of the tree (the stump and root ball and sawn sections of the trunk) and observed the growing environment of the tree. He studied photographs of the tree taken after it had fallen and before it was cut. 9 Mr Freeman identified the tree to be a Grey Ironbark, Eucalyptus paniculata, which is a native species indigenous to the area. Mr Freeman estimated the tree to be mature, about 80 years old. The overall height of the tree, based on the diameter of the trunk at breast height of 110 millimetres, was estimated to be 16 metres. 10 From the photographs taken at the time when the tree failed, Mr Freeman observed the tree to have a good percentage of foliage cover. The upper canopy did not appear to show any signs of reduction. It appeared to show no indications of poor health, epicormic growth, fungal infestation, borer or termite activity. 11 Based on the visual and physical assessment he undertook of the tree's lower to mid trunk region, Mr Freeman saw no indications on the outer trunk, bark or remaining scaffold branches of borer or termite activity (past or present) or indications of open wounds, splitting or dead sections of bark or fungal infestation fruiting bodies. 12 The lower tree trunk was observed by Mr Freeman to have minor physical signs of fungal damage (which Mr Freeman thought might be Phytophthora), but they were located underground and were only visible after the tree had failed. Mr Freeman considered that the fungal damage would have had an adverse effect on the tree's overall health and stability for its long-term management. 13 Mr Freeman stated that Phytophthora is spread through very moist and well aerated soil. He considered the construction of the sandstone retaining wall and subsequent drainage located around the tree's anchorage root system (about 35%) could have contributed to the Phytophthora root rot damage on the anchorage root system closest to the wall. 14 However, Mr Freeman stated that:

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The conduct and knowledge of the tree landowner 20 Mr Leischke purchased the property and entered into occupation in 1997. The tree was already growing there at that time. Indeed, on Mr Freeman's estimate that the tree is about 80 years old, the tree was already 70 years old when Mr Leischke entered occupation. The retaining wall adjoining the tree, which retained a vegetable garden uphill of the tree, and which Mr Freeman considered to be a contributing cause of the tree's decline and overall health and stability, also had already been constructed when Mr Leischke entered into occupation. Mr Leischke took no positive action to alter the retaining wall or the vegetable garden retained by it, or the lawn area where the tree grew. 21 Mr Leischke said he looked at the tree from time to time, maybe once a year, checking for obvious signs of bark coming off, or white ant damage or "that sort of thing". He never observed anything that he regarded as unusual with the tree. The tree appeared to him to be quite a healthy tree with lots of leaves and spreading branches. Occasionally, small dead branches, about 4-5 centimetres round, dropped off, but nothing greater. Mr Leischke had never received any complaints from the neighbour's about the tree. 22 Mr Leischke said that the only time water would lie in the backyard was after very heavy rain. The water would come from the path from the back steps (near the vegetable garden uphill from the retaining wall) down towards the washing line which is at the back of the yard. This is in the middle of the lawn rather than near the tree. 23 The water would lie for, maybe, a day before it receded. Mr Leischke did not observe the area around the trunk of the tree and near the retaining wall to be any wetter in terms of water logging than any other part of the backyard. 24 Mr Leischke did not make any exploration by digging around the base of the tree. He mowed the lawn around the tree. He could not mow right up to the base of the tree but instead pulled the tops of the grass off to trim it. Mr Leischke had never observed any holes in the base of the tree when he pulled the grass. 25 On these facts, Mr Leischke did not plant the tree and did not take any positive action in relation to the tree or its growing environment. No positive action that Mr Leischke took in the 10 years he was in occupation was a cause of the tree's failure. 26 Mr Leischke's knowledge about the tree was that it appeared to be a healthy tree and he had not experienced any problems with it. He had no knowledge of any defect in the tree, such as root rot, or in the environment in which the tree grew, such as water logging. Furthermore, on Mr Freeman's evidence, the tree would not have shown any obvious signs of stress, poor structural stability or decline to a lay person such as Mr Leischke. Mr Leischke would, therefore, not have constructive knowledge of any problems with the tree. The affected landowner applies for compensation 27 On 4 October 2007, Mrs Robson made application to this Court under s 7 of the Trees (Disputes Between Neighbours) Act 2006 claiming an order under s 9 for the payment of compensation for the damage caused to Mrs Robson's property by the tree. 28 At the time Mrs Robson made application to the Court, the Grey Ironbark tree had been cut so that only a base section of the trunk and the root ball remained, still situated in its original position wholly within Mr Leischke's land. The base of the tree leant in the direction in which the tree had fallen. It remained attached to the ground through part of its root system on the underside of the root ball. 29 Mrs Robson gave written notice to Mr Leischke on the same day, 4 October 2007, and enclosed a copy of the application to the Court claiming compensation. Such notice is required by s 8(1) of the Trees (Disputes Between Neighbours) Act 2006. 30 On 15 October 2007, Mr Leischke's insurer, AAMI, responded by denying liability on behalf of Mr Leischke. The insurer asserted "[t]here is no evidence to prove that our insured was negligent; the tree came down during severe storms". The insurer gave notice that any claim by Mrs Robson for compensation would be "vigorously" defended. 31 In light of this response, any further efforts by Mrs Robson to try to reach agreement with Mr Leischke in relation to her claim for compensation would have been futile. The attempt that she had made is sufficient for the purposes of s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006. 32 Mrs Robson's claim for compensation falls into three categories: (a) reimbursement of monies already expended by Mrs Robson in purchasing goods and materials used in undertaking the interim works to repair the damage to the house (such as tiles, gyprock and paint);

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(d) The amount claimed by Mrs Robson for future repair work is excessive and should be reduced. 34 The arguments of Mr Leischke require, first, an analysis of the position at common law before the introduction of the Trees (Disputes Between Neighbours) Act 2006 and, secondly, interpretation of the statutory scheme established under the Trees (Disputes Between Neighbours) Act 2006 to determine the extent to which the statutory scheme differs from the common law. In undertaking the second task, it is relevant to consider, insofar as is permissible under established principles of statutory interpretation, the extrinsic material of any relevant report of the New South Wales Law Reform Commission and the second reading speech made when the Bill was introduced to Parliament. 35 Although the Trees (Disputes Between Neighbours) Act 2006 commenced on 2 February 2007 and there have been many decisions of Commissioners of the Court determining applications made under the Act, this case is the first opportunity for judicial analysis of the Trees (Disputes Between Neighbours) Act 2006. A more comprehensive and detailed analysis of the Trees (Disputes Between Neighbours) Act 2006 and its history will be beneficial not only in determining the particular issues raised in this case but also in providing guidance in the future application of the Act. The analysis may also be beneficial in the review of the Trees (Disputes Between Neighbours) Act 2006 mandated by s 23(1) to be undertaken as soon as possible after the period of two years from the date of assent (4 December 2006). The common law regime prior to the Trees (Disputes Between Neighbours) Act 2006 The causes of action at common law 36 Where a tree causes damage to property, under Australian common law, there are three causes of action in tort the affected land owner can bring against the owner of the land on which the tree that caused the damage grew: trespass, nuisance and negligence. 37 The first derives from the traditional form of action in trespass, the other two from action on the case. For an action in trespass, the injury must be caused by a direct, intentional act of the defendant. For an action on the case, the injury may be due to an omission or an act which is injurious to the plaintiff's interests consequentially or indirectly: Halsbury's Laws of Australia, Butterworths, Vol 26 [415-10], p 787,024. 38 Each of these three causes of action require fault by the defendant. Fault involves falling below a standard of behaviour required by law. Fault may be in the form of intentional conduct or negligent conduct: Halsbury's Laws of Australia, Butterworths, Vol 26 [415-60], p 787,034. However, strict liability can be imposed by statute: Halsbury's Laws of Australia, Butterworths, Vol 26 [415-75], p 787,036. Trespass 39 An action of trespass to the plaintiff's land (which includes improvements on it, such as a house) will lie against a defendant, who, without the plaintiff's permission or licence, enters the plaintiff's land, unless the defendant's entry is justified in some way: Halsbury's Laws of Australia, Butterworths, Vol 26 [415-325], p 787,123. Every unjustified entry directly by a person on land in possession of another, which is carried out either intentionally or negligently, is an actionable trespass, even though no damage is done thereby: Halsbury's Laws of Australia, Butterworths, Vol 26 [415-480], p 787,144. 40 There must be physical intrusion onto the plaintiff's land: Bathurst City Council v Saban (1985) 2 NSWLR 704 at 706. The intrusion must also be direct. Hence, for a defendant to cut off a part of a tree growing on the defendant's land and drop it over the boundary directly into the plaintiff's land is a trespass, but the intrusion of branches or roots of a tree into the plaintiff's property due to the operation of natural forces is indirect and is treated as nuisance, not trespass: Lemmon v Webb [1894] 3 Ch 1 at 24 affirmed on other grounds in Lemmon v Webb [1895] AC 1; Bruce v Caulfield (1918) 34 TLR 204 at 205; Butler v Standard Telephones & Cables Ltd [1940] 1 All ER 121 at 131; Davey v Harrow Corporation [1958] 1 QB 60 at 70; Bernstein of Leigh (Baron) v SkyViews & General Ltd [1978] 1 QB 479 at 485; Young v Wheeler (1987) Aust Torts Reports ¶80-126 at p 68,969; L J P Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 at 496. Similarly, to enter a neighbour's land to cut away branches or roots that encroach over the boundary is a trespass: Gazzard v Hutchesson (1995) Aust Torts Reports ¶81-337 at p 62,360. 41 In this case, the tree intruded into and caused physical damage to the applicant's property by operation of natural forces (the storm). There was no direct action of the respondent that caused the tree to fall into the applicant's property. An action in trespass, therefore, would not lie against the respondent. Private nuisance

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(c) "If the defendant neither knows and intends harm nor is negligent with regard to the consequences of his conduct, then he may be nevertheless liable if the claimant can bring his case within the rule in Rylands v Fletcher (1868) LR 3 HL 330, and in that event there is strict liability": Clerk & Lindsell on Torts , 19th ed, Sweet & Maxwell, London, 2006, [20-41], p 1185. However, in Australia, strict liability within the rule in Rylands v Fletcher has been subsumed within the law of negligence by the High Court decision in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. Strict liability can, however, be reintroduced by statute. 49 Where the defendant continues or adopts a nuisance, different conduct is required before liability will be imposed on the defendant. An occupier of land "continues" a nuisance or a potential nuisance if, with actual or constructive knowledge of its existence, he or she fails, within a reasonable period of time, to take reasonable measures to bring it to an end: Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 894, 904-905, 913; Torette House Pty Ltd v Berkman (1940) 62 CLR 637 at 657-658; Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 62 ALJ 282 at 284, (1986) 62 LGRA 46 at 50; City of Richmond v Scantelbury [1991] 2 VR 38 at 41, 42; Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 at 484; Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 at 332 [29]. 50 An occupier of land "adopts" a nuisance if he or she makes use of "the erection, building, bank or artificial contrivance" or the natural object (such as a tree) which constituted the nuisance: Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 894, 904, 913; Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 at 484. 51 An occupier of land who knows or ought to know of a nuisance, and the possibility of danger occurring in consequence is a real risk, must take such positive action as a reasonable person, in his position and circumstances, would consider necessary to eliminate the nuisance: Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-42], p 1185-1186; Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 894, 904-905, 913; Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 61 ALJ 282 at 284, (1986) 62 LGRA 46 at 50; City of Richmond v Scantelbury [1991] 2 VR 38 at 40, 42, 43, 45, 46; Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 at 332 [29], 333 [31]; and South Australia v Simionato (2005) 143 LGERA 128 at 141 [52]-[53], 142 [56]. 52 Knowledge of the nuisance, actual or constructive, is insufficient by itself to render an owner or occupier liable for damage caused by it; arising out of such knowledge is a duty on the occupier to take steps to eliminate the risk of damage from the nuisance which is reasonably foreseeable: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 at 639; City of Richmond v Scantelbury [1991] 2 VR 38 at 45; Malliate v Sharpe [2001] NSWSC 1057 (13 December 2001) at [43], [44]. 53 The defendant will be liable if, when the nuisance arose, the defendant did not take any reasonable means to bring it to an end when the defendant became aware, or ought to have been aware, of the existence of the nuisance, and damage results: Valherie v Strata Corporation No 1841 and Ors [2004] SASC 170 (9 June 2004); 234 LSJS 134 at 14 [33], [34], [36], 143 [44]; Sutherland Shire Council v Becker (2006) 150 LGERA 184 at 226 [121].

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Causing an encroachment on neighbour's land 55 Nuisances of the first kind, causing an encroachment, are exemplified by branches or roots of a tree growing on the defendant's land, encroaching into the air above or the soil below the neighbour's land: Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-07], p 1165. 56 Mere encroachment into the neighbour's land is insufficient to complete a cause of action for nuisance; special damage must be suffered by the neighbour as a result of the encroachment to obtain the remedies of damages or injunction: Asman v MacLurcan (1985) 3 BPR 9592 at 9594. Damage ordinarily being the last element of the cause of action in nuisance to be satisfied, the cause of action will ordinarily accrue on proof of damage occurring: McCombe v Read [1955] 2 QB 429 at 435; Peisley v Ashfield Municipal Council (1970) 21 LGRA 243 at 248 (reversed on appeal but on a different point: Peisley v Ashfield Municipal Council (1971) 23 LGRA 166 at 169, 171-172); South Australia v Simionato (2005) 143 LGERA 128 at 141 [51]; and Lister v Hong [2006] NSWSC 1135 (31 October 2006) at [23], [30]. 57 However, even though actual damage has not yet occurred, the neighbour has a right to abate by cutting away at the boundary so much of the branches and/or roots that encroach: Lemmon v Webb [1894] 3 Ch 1 at 13-14, 17-18, 24; Smith v Giddy [1904] 2 KB 448 at 451; Mills v Brooker [1919] 1 KB 555 at 557-558; Butler v Standard Telephones & Cables Limited [1940] 1 All ER 121 at 130; Mandeno v Brown and Wilkie [1952] NZLR 447 at 450-451; Young v Wheeler (1987) Aust Torts Reports ¶80-126, p 68,966 at 68,970. There is no right to cut away branches or roots growing between the tree and the boundary, for to do so would be a trespass: Gazzard v Hutchesson (1995) Aust Torts Reports ¶81-337, p 62,352 at 62,360. As the overhanging branches or encroaching roots are still part of the property of the owner of the land on which the tree grows, the neighbour who cuts away the branches or roots should return them to the tree owner to avoid liability for conversion of the tree owner's property: Mills v Brooker [1919] 1 KB 555 at 558. 58 Furthermore, although actual damage is required to have a completed cause of action, a quia timet injunction might lie to restrain apprehended damage to the neighbour's property by encroaching tree branches or roots, but only if there is proof that the apprehended damage, first, is imminent or likely to occur in the near future and, secondly, is very substantial or almost irreparable: Fletcher v Bealey (1885) 28 ChD 688 at 698; Hooper v Rogers [1975] Ch 43 at 49-50; Mendez v Palazzi (1976) 68 DLR(3d) 582 at 590 and Asman v MacLurcan (1985) 3 BPR 9592 at 9594. The requirement of imminence is to indicate that the injunction ought not to be granted prematurely: Hooper v Rogers [1975] Ch 43 at 49, 50. The degree of probability of future damage required has been said to be "a real appreciable probability of irreparable damage": Asman v MacLurcan (1985) 3 BPR 9592 at 9594. However, it has also been noted that "the degree of probability of future injury is not an absolute standard: what is to be aimed at is justice between the parties, having regard to all the circumstances": Hooper v Rogers [1975] Ch 43 at 50. 59 Examples of cases where overhanging branches have been held to constitute an actionable private nuisance include where: (a) branches of a yew tree, the leaves and branches of which were poisonous to stock, projected over the neighbour's land where they were eaten by the neighbour's horse, which later died from poisoning: Crowhurst v Amersham Burial Board (1878) 4 ExD 5 (but there was no nuisance where the branches of a yew tree did not overhang the neighbour's property and the neighbour's horse instead gained access to the tree wholly on the defendant's property and ate the leaves and died: Ponting v Noakes [1894] 2 QB 281 at 286, 288);

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(e) encroaching roots caused substantial interference with a neighbour's gardening operations: Woodnorth v Holdgate [1955] NZLR 552; Roud v Vincent [1958] NZLR 794. 61 As noted above, the liability of a defendant as occupier of land on which a tree grows, for nuisances of the first kind, namely causing an encroachment on the neighbour's land, will vary depending on whether the defendant created the nuisance or continued or adopted the nuisance. 62 A defendant may create a nuisance by planting trees, of a kind or in a location or in a condition, which are likely to cause harm to his neighbour as they grow. It may be rare that planting a tree would fall within the category of unreasonable user (see paragraph 48(a) above). 63 One example was where the defendant planted a row of pine trees close to a neighbour's boundary. The trees were of a nature where they could be expected to, and in fact did, grow to a height and have their branches overhang the neighbour's property for various distances. The planting of trees of that nature, in a location proximate to the boundary, was held not to be a natural user of the land and constituted a nuisance: Mandeno v Brown and Wilkie [1952] NZLR 447 at 449-450. 64 However, in most other cases, the mere planting of a tree has not been held to be an unreasonable user: egs Lemmon v Webb [1894] 3 Ch 1 at 11; Matthews v Forgie [1917] NZLR 921 at 924-925; Noble v Harrison [1926] 2 KB 332 at 336, 342; Molloy v Drummond [1939] NZLR 499 at 503. Trees and tree roots per se are not a danger or a nuisance: City of Richmond v Scantelbury [1991] 2 VR 38 at 40 and South Australia v Simionato (2005) 143 LGERA 128 at 142 [54]. 65 It is more likely that planting a tree may be negligent (see paragraph 48(b)). If a defendant planted a tree of a kind (such as a large and vigorously growing tree with invasive roots) or in a location (in close proximity to the neighbour's property, house, works or other vegetation) or in a condition (such as being pot bound or with patent defects in the trunk and branches or the roots) and that tree in fact grows so as to encroach, such as by its branches overhanging or roots growing into the neighbour's property, and damage is caused thereby, the defendant will be liable in nuisance: Matthews v Forgie [1917] NZLR 921 at 924; Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 904-905; City of Richmond v Scantelbury [1991] 2 VR 38 at 40. 66 If the defendant did not plant the tree which causes a nuisance, such as by encroaching branches or roots, but instead it was either planted by a third party or was self-sown, the defendant, as occupier of the land on which the tree grows, will not be liable unless and until the defendant had or ought to have had knowledge of the growth of the tree and the damage created by it, and fails to act without undue delay to remedy it upon becaming aware of it: Noble v Harrison [1926] 2 KB 332 at 338; Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 894, 904-905 and 913; Davey v Harrow Corporation [1958] 1 QB 60 at 73; Leakey v National Trust for Places of Historical Interest or Natural Beauty [1980] QB 485 at 522; Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 at 484; City of Richmond v Scantelbury [1991] 2 VR 38 at 40-41, 42; Valherie v Strata Corporation No 1841 & Ors [2004] SASC 170 (9 July 2004); 234 LSJS 134 at 139 [27], [28] and Sutherland Shire Council v Becker (2006) 150 LGERA 184 at 226 [121], 230 [136]. In this circumstance, the defendant's liability is dependent on having adopted or continued the nuisance and being negligent in not abating it.

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(c) emitting noxious fumes from his land which damage his neighbour's crops or trees: St Helen's Smelting Co v Tipping (1865) 11 HLC 642, 11 ER 1483; Salvin v North Brancepeth Coal Co (1874) LR 9 Ch 705; Manchester Corp v Farnworth [1930] AC 171. 69 In relation to trees, it may involve the defendant, on whose land a tree grows, taking action which adversely affects the health and vigour of the tree or its structural stability, such as pruning, lopping or cutting braches or roots of the tree; excavating around the tree and its roots; altering the hydrological or nutrient conditions of the tree; poisoning the tree; ringbarking or damaging the trunk of the tree; or allowing a tree to become unsafe or unsound so that it, or parts of it, fall onto the neighbour's land. 70 Nuisances of the second kind can also originate in some natural condition of the land. The duty of an occupier of land to take reasonable care to avoid causing harm to a neighbour's property extends to nuisances caused by some natural condition of or natural event occurring on the land. 71 Thus, an occupier of land was held to be under a duty of care to abate a fire which had started by lightening striking a tree on his land and spreading to his neighbour's land: Goldman v Hargrave [1967] 1 AC 645 at 661-662. An owner of a natural hill which was unstable and from which, by natural forces, soil fell causing damage to the neighbour's land, was also held to be under a duty of care to the neighbour in relation to the hazard on his land: Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 at 514, 522. 72 This affirmative duty to take action arises where the defendant has, or ought to have had, knowledge of the existence of the defect in the land or something on it and the danger thereby created: Goldman v Hargrave [1967] 1 AC 645 at 663-664; Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 at 522; Smith v Littlewoods Organisation Ltd [1987] AC 241 at 279. 73 The scope of the duty is:

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"a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one's neighbour or to his property. The considerations with which the law is familiar are all to be taken into account in deciding whether there has been a breach of duty, and, if so, what that breach is, and whether it is causative of the damage in respect of which the claim is made. Thus, there will fall to be considered the extent of the risk; what, so far as reasonably can be foreseen, are the chances that anything untoward will happen or that any damage will be caused? What is to be foreseen as to the possible extent of the damage if the risk becomes a reality? It is practicable to prevent, or to minimise, the happening of any damage? If it is practicable, how simple or how difficult are the measures which could be taken, how much and how lengthy work do they involve, and what is the probable cost of such works? Was there sufficient time for preventive action to have been taken, by persons acting reasonably in relation to the known risk, between the time when it became known to, or should have been realised by, the defendant, and the time when the damage occurred? Factors such as these, so far as they apply in a particular case, fall to be weighed in deciding whether the defendant's duty of care requires, or required, him to do anything, and, if so, what": Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 at 524. 74 The duty of care is not that of the reasonable man in negligence, but rather it is measured by the reasonable capabilities and circumstances of the defendant: Goldman v Hargrave [1967] 1 AC 645 at 663; Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 at 526. 75 As noted above, the defendant's liability for a nuisance of this second kind will depend on the defendant either having created the nuisance (such as by doing the acts which caused the defect and the danger) or by adopting or continuing the nuisance (which require the defendant to have actual or constructive knowledge of the defect and the danger thereby created). In Noble v Harrison [1926] 2 KB 332 at 338, Rowlatt J summarised the authorities as holding that:

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(b) for the reasonably foreseeable consequences of the conduct, if the defendant knew or ought to have known that, a consequence of his conduct, damage to his neighbour's property was reasonably foreseeable, and the defendant failed to take such positive action as a reasonable person, in his position and circumstances, would have taken to prevent such damage (see paragraph 48(b) above). 77 If the defendant did not create the nuisance (such as by planting the tree or carrying out works to or around the tree) he could still be liable if he adopted or continued the nuisance. If the defendant as occupier of the land in which the tree grew, knew or ought to have known of the unsuitability of the tree, such as because of the kind of tree or its location or condition or health or other reason, and the possibility of damage occurring in consequence is a real risk, the defendant would be under a duty to take such positive action as a reasonable person, in his position and circumstances, would consider necessary to eliminate the nuisance. The defendant would be liable for nuisance if he fails to do so and the tree causes damage. 78 Thus, a defendant was held liable in nuisance for the damage caused when a decayed tree was blown down in a heavy gale and damaged a neighbour's house. The tree had been cut into near the ground; it had been blazed; about a third of the trunk and many of the limbs were decayed; and its unsound condition was apparent and had been for several years. It stood fully exposed to the wind. The defendant had knowledge of the defective state of the tree and the danger it posed. The neighbour had requested the defendant to remove the tree three times but the defendant, although promising to do so, never did remove it. The defendant was held to have "had no more right to keep, maintain or suffer to remain on her premises an unsound tree near the house of her neighbor, on which in any of the frequently occurring high winds it was liable to fall, than she would have had to keep a dilapidated and unsafe building in the same position. It was her duty to maintain her premises in such a condition as that they should not become a cause of injury to her neighbor's property in a way that common prudence should foresee": Gibson v Denton (1896) 4 AD 198 at 201; 74 NY St Rep 197. 79 Similarly, a landowner was held liable in nuisance and negligence where the whole of a beech tree growing on the defendant's land bordering a busy main country road, split and fell onto the road, causing an accident between two vehicles. The landowner knew or ought to have that if the tree were to fail, it would fall on to the road, blocking it. The landowner, by its employees, knew that the tree was old, top-heavy, and showing an appearance of unhealthiness in the thinness of the foliage and indications of dieback, such signs being consistent with decay in the tree. A reasonable landowner apprised of these facts, would have cut the tree down and the failure of the landowner to do so was a breach of its duty of care: Quinn v Scott [1965] 2 All ER 588 at 593. 80 Where, however, the defendant has not created the danger posed by the tree and has no knowledge, actual or imputed, of it, the defendant would not be liable. Thus, where a branch of a tree growing on the defendant's land, overhanging a highway, suddenly broke off in fine weather, falling on the plaintiff's vehicle passing on the highway and damaging it, the defendant was held not to be liable because, although the branch proved to be a danger, the defendant had not created the danger and had no knowledge, actual or imputed, of its existence: Noble v Harrison [1926] 2 KB 332 at 338, 341. 81 Similarly, where an elm tree on the defendant's land fell or was blown down on to a highway and the plaintiff's husband riding a motorcycle collided with the tree and died, the defendant was held not to be liable as the defendant had not caused the tree to fall, had not omitted to remedy the nuisance within a reasonable time after the tree had fallen, and had not, by neglect of some duty, allowed it to arise because there was nothing to warn the defendant that the tree was diseased or that it had been attacked by honey fungus: Cunliffe v Bankes [1945] 1 All ER 459 at 465. 82 The defendant was also held not liable where an elm tree on the defendant's land fell injuring persons passing along an adjoining highway. The tree had a large, but not abnormal crown. It was apparently sound and healthy. Although after the tree fell its roots were found to have root rot, this would have been undiscoverable by any reasonable examination: Caminer v Northern & London Investment Trust Ltd [1951] AC 88 at 94, 96, 99, 103, 104, 105-106, 107-108, 111-112. 83 A different factual situation arose where a branch of a tree growing on the defendant's land had for many years intruded over a highway at a height of 16 feet. The intruding branch was plain for all to see. Prior to the accident, neither the defendants nor the highway authority regarded the branch as a traffic hazard. The plaintiff's lorry carried a load of five packing cases in two tiers, the top of the load being 16 feet 4 inches from the ground. On passing under the overhanging branch, the top case was thrown to the ground and the plaintiff's lorry, in trying to avoid it, had an accident. The defendants were held not liable as they had no knowledge, nor should be presumed to have knowledge, that the overhanging branch was a hazard: British Road Services Ltd v Slater [1964] 1 All ER 816 at 820.

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yet such interferences are not actionable as a nuisance: Hunter v Canary Wharf Ltd [1997] AC 655 at 685, 709. 87 Cases where an actionable nuisance has been held to exist where there has not been an emanation, such as a use of land that is morally offensive to neighbours (Thompson-Schwab v Costaki [1956] 1 WLR 335, [1956] 1 All ER 652 (prostitutes operating in the street) and Laws v Florinplace Ltd [1981] 1 All ER 659 (sex shop operating nearby)) or dazzling glare off a glass roof (Bank of New Zealand v Greenwood [1984] 1 NZLR 525), are special and may go to the limit of the law of nuisance: Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 at 208; Hunter v Canary Wharf Ltd [1997] AC 655 at 685-686, 700. 88 Leaves, nuts, twigs or bark of trees, or seeds of weeds, each growing on a defendant's land, which are blown onto a neighbour's property, could be considered a form of emanation from the defendant's land. However, the defendant would only be liable in nuisance if, first, the growing of the trees or the weeds on the defendant's land amounts to excessive user and, secondly, such excessive user causes unreasonable interference with the enjoyment by the neighbour of their land. 89 Thus, a defendant was held not liable for nuts, leaves and twigs that fell from a tree growing on the defendant's land, the tree not projecting over the neighbour's land, and which were blown onto the neighbour's roof, making a noise and blocking the drain pipes. Planting the tree or allowing the tree, whether planted by others or self-sown, to grow on the land, the tree not being noxious, did not constitute an excessive or unreasonable user of the defendant's land: Molloy v Drummond [1939] NZLR 439 at 503. See also Matthews v Forgie [1917] NZLR 921 at 924; Sterling v Weinstein (1950) 75 A2d 144 at 147; Cannon v Neuberger (1954) 1 Utah 2d 396 at 399; 268 P2d 425 at 427; Woodnorth v Holdgate [1955] NZLR 552 at 553, 554; Asman v MacLurcan (1985) 3 BPR 9592 at 9593. 90 In contrast, a defendant who allows noxious weeds to grow on his land, and to spread, by seed or otherwise, through natural agencies onto neighbouring properties and cause damage thereto, and does not take effective measures to counter them, may be liable in nuisance to the neighbours for the damage caused: French v Auckland City Corporation [1974] 1 NZLR 340 at 350 (variegated thistle and other weeds). Earlier decisions to the contrary in Giles v Walker (1890) 24 QBD 656 (thistles) and Sparke v Osborne (1908) 7 CLR 51 (prickly pear) are no longer good law: Davey v Harrow Corporation [1958] 1 QB 60 at 72; Goldman v Hargrave [1967] 1 AC 645 at 664; French v Auckland City Corporation [1974] 1 NZLR 340 at 346, 348, 349, 350.

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(e) the loss suffered by the plaintiff was not too remote, that is to say, the injury complained of was not only caused by the alleged negligence, but was also an injury of a class or character which was reasonably foreseeable as a result of the possible negligent act or omission: Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 at 322. 94 As to the first element, the existence of a duty of care, one unifying principle for determining when a duty of care will arise has not emerged: Perre v Apand Pty Ltd (1999) 198 CLR 180 at 210 [76], 217 [93]. At the minimum, there needs to be reasonable foreseeability: a defendant must know or ought reasonably to know that he or her conduct is likely to cause harm to the person or the tangible property of the plaintiff unless the defendant takes reasonable care to avoid that harm: Perre v Apand Pty Ltd (1999) 198 CLR 180 at 208 [70] and see also s 5B(1)(a) of the Civil Liability Act 2002 (NSW). 95 The difficulty that has arisen is ascertaining what, if any, further requirements need to be satisfied before the law will impose a duty of care. Proximity had been suggested as a determinant of a duty of care, but it has now been rejected: Hill v Van Erp (1997) 188 CLR 159 at 176-177, 210, 237-239; Perre v Apand Pty Ltd (1999) 198 CLR 180 at 198 [27], 209 [74], 283 [280], 301 [330]-[331]; and Vairy v Wyong Shire Council (2005) 223 CLR 422 at 433 [28] and 444-445 [66]. Other factors have been suggested (see Perre v Apand Pty Ltd (1999) 198 CLR 180 at 194 [10]-195 [15], 231 [133], 254 [201], 275 [259], 303 [335], 326 [406]) but no consensus has emerged. 96 Determining whether a duty of care arises is more straightforward where the relationship between the plaintiff and the defendant falls into one of the established categories of cases in which the common law imposes a duty of care on a person in the position of the defendant to take care of a person in the position of the plaintiff: Vairy v Wyong Shire Council (2005) 223 CLR 422 at 432 [27], 443 [63]. The relationship between the owners or occupiers of neighbouring properties is a familiar category where the common law imposes a duty of care on each neighbour in relation to the other neighbour. 97 As to the second element, breach of the duty, Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 said: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." 98 This statement of principle has been repeatedly approved and applied: see, for example, Brodie v Singleton Shire Council (2001) 206 CLR 512 at 577 [151]; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 472 [39], 482 [72] and [74], 502 [138]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 585 [106]-[107], 612 [193]; Vairy v Wyong Shire Council (2005) 223 CLR 422 at 433 [27], 447 [72], 456 [105], 464 [134] and 466 [144]. A statement to similar effect is to be found in s 5B(2) of the Civil Liability Act 2002 (NSW). 99 One situation in which the owner or occupier of land may be liable in negligence is where a tree growing on the land, or a branch or part of the tree, falls and causes damage to a person and/or their property. An example is where a tree falls onto a public road, injuring a person using the road, either directly or indirectly, such as where the person's car collides with the fallen tree: Brown v Harrison (1947) 204 LT 24 (tree fell injuring users of the highway); Quinn v Scott [1965] 2 All ER 588 (tree fell onto highway causing collision between two vehicles); Smibert Group Transport Pty Limited v Clifford [2005] SADC 80 (8 July 2005), 241 LSJS 1 (tree fell onto highway and user's vehicle collided with fallen tree); and Turner v Ridley (1958) 144 A2d 269 (tree fell onto adjoining road striking a car parked at the curb). In each of these cases, the tree was apparently in a state of decay and the risk of causing damage to road users posed by the tree or parts of it falling was obvious, but the defendants failed to take steps to mitigate the risk of damage. 100 In contrast, no negligence was found where the tree was apparently sound and healthy and inspection would not have revealed that it was dangerous: Noble v Harrison [1926] 2 KB 332 at 336, 339; Caminer v Northern & London Investment Trust Ltd [1951] AC 88 at 96, 99, 103, 104 and Dungog Shire Council v Babbage (2004) 134 LGERA 349 at 377 [85]. 101 Similarly, an owner or occupier of private land may be liable in negligence if a tree growing on the land falls onto and causes damage to adjoining private land or buildings, works or vegetation on it: Dudley v Meadowbrook Inc (1961) 166 A2d 743 at 744. There, although the defendant landowners did not have actual knowledge of the fact that the tree was full of decay, the defendant was aware that the tree had had surgery and there was a strip of cement extending from near the base of the tree to a height of about five feet. The court held that in the intervening years, the owners ought to have inspected the tree or had it examined by an expert to see whether it required further attention or whether it was safe to remain standing: at 744. 102 In contrast, where a defendant had no knowledge that a tree that subsequently failed was decayed, and there was no evidence of any decay, the defendant was held not liable in negligence: Bruce v Caulfield (1918) 34 TLR 204 at 205. 103 An owner or occupier of land on which a tree grows may be liable in negligence for damage caused by the tree's roots to neighbouring property. Thus, an owner of a public park was held liable in negligence for the damage caused to neighbours' dwellings on adjoining land by roots of the trees desiccating the soil, which resulted in cracking of the dwellings: South Australia v Simionato (2005) 143 LGERA 128. 104 A different situation is where the roots of a tree growing on a footpath belonging to a council exerted pressure on a retaining wall of the boundary with the plaintiff's land, causing the wall to fail. The council was on notice that the roots of the tree, which was under its care, control and management, were causing damage in the area. Cracks in and lifting of the footpath in the area near the tree had been obvious over the years. The council had repaved the footpath where it had been lifting. The council was held to be under a duty to inspect and rectify the situation. The council failed to do so and the consequence was that the wall was damaged: Owners of Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117 at 149 [138], 150 [142], 151 [144] per Rolfe AJA but contra per Young CJ in Eq at 135 [155], 137-138 [74]. 105 The doctrine of res ipsa loquitur (the thing speaks for itself) is potentially available to establish negligence. For example, if a tree were to fall down or be blown down by the ordinary force of the wind, it might be said that there was some evidence of unsoundness: Bruce v Caulfield (1918) 34 TLR 204 at 205. However, such a conclusion, by application of the doctrine of res ipsa loquitur, would not be drawn where the gale which blew down the tree was an exceptional one: Bruce v Caulfield (1918) 34 TLR 204 at 205. 106 An owner or occupier of lands can also be liable in negligence in relation to hazards on the land, whether natural or man made: Goldman v Hargrave [1967] 1 AC 645. The NSW Law Reform Commission review and report 107 In a judgment delivered on 12 July 1985, Wood J called for law reform in the field of nuisance caused by encroaching roots and branches and, in particular, concerning what and when remedies of abatement, damages and injunction should be available:

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"2.20 Trees on private property are a substantial cause of neighbourhood disputes. Neighbours seeking resolution of problems caused by a neighbour's trees must rely on common law remedies, but submissions and consultations show that the common law is inadequate. The law of nuisance is only likely to provide a remedy where a tree actually causes physical damage. Common law nuisance rights in relation to the less tangible impact of trees on the enjoyment of property are so unclear and uncertain that few people are likely to pursue them in a court. People are also unlikely to be able to resolve a dispute between themselves on the basis of such laws. 2.21 The common law does not reflect the evolving importance to society of access to sunlight and views. The common law of nuisance is of very little use to a neighbour trying to prevent a tree from causing damage. This means that a minor dispute that could be resolved by the inexpensive removal of a small tree is likely to become a major dispute in which property damage has occurred and will continue to occur unless huge amounts are spent to remove what has become a very large tree. 2.22 The right of abatement has been considerably modified by TPOs and, in any case, the costs involved in removing overhanging branches prevents many people from exercising it. The common law requirement that a person removing overhanging braches must place them on the tree owner's property is totally out of touch with the circumstances in which abatement is likely to occur in modern times. A person complying with this requirement runs a high risk of escalating a dispute… 2.23 The inadequacy of the common law and the legal process leaves a legal vacuum for neighbours in dispute about trees…": paras 2.20-2.23, pp 21-22. 116 The Law Reform Commission made a number of recommendations dealing with modification of the common law right of abatement (Recommendation 1: p 22); minimising conflict with Tree Preservation Orders (Recommendations 2 and 3: p 27); and establishing a new and simple dispute resolution process to deal with the disputes between neighbours about trees (Recommendation 4: p 32, Recommendation 5: p 36, Recommendation 6: p 37, Recommendation 7: p 38). The recommendations concerning establishment of a new and simple dispute resolution process are of particular relevance to the subsequent legislative reforms embodied in the Trees (Disputes Between Neighbours) Act 2006. 117 The Law Reform Commission noted that:

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2.48 A court should only make a declaration that a tree has unreasonably interfered with a person's enjoyment of land if: - the loss of enjoyment is severe and it outweighs any loss of enjoyment (and any financial loss) the tree owner would experience as a result of the court order and any detrimental impact on the natural environment; or - the loss of enjoyment is severe and the court finds on the balance of probabilities that the trees were planted with the intention of causing loss of enjoyment.": paras 2.47-2.48, p 34. 128 As to whether a tree is likely to cause damage, the Law Reform Commission said: "2.49 In determining whether a tree is likely to cause damage, the Court should consider the species of the tree and its characteristics and the tree's position in relation to the property likely to be damaged.": para 2.49, p 34. 129 As to the exercise of the Court's discretion to make orders, the Law Reform Commission said: "2.51 In making an order the Court may consider among other things: - whether the tree is subject to a TPO; - whether the tree is an Australian native; - the reasonableness or otherwise of the behaviour of the parties; - the costs involved in carrying out the order; and - the means of the parties involved": para 2.51, p 35. 130 Finally, in relation to the orders the Court could make, the Law Reform Commission said: "2.50 If the Court makes a declaration, it would have the power to make a range of orders including an order to: - lop or trim a tree's branches or roots; - remove a tree entirely; - take any other action necessary to prevent further damage; - take any other action necessary to prevent future damage in a case where damage has not yet occurred but is highly likely to occur if action is not taken; - compensate the owner for the costs of repairing the damage where damage has occurred; and/or - state who should bear the cost of abating the loss of enjoyment and, in appropriate circumstances, how the cost should be shared between the parties.": para 2.50, p 35. 131 The summary recommendation the Law Reform Commission made in relation to the enactment of legislation was in these terms:

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"That legislation should be enacted which provides a new simple, inexpensive and accessible process in Local Courts, similar to the model under the Dividing Fences Act 1991 (NSW) for the resolution of disputes about trees. The legislation should state: (1) the responsibilities of tree owners, specifically that tree owners are responsible for ensuring that their trees do not cause damage to neighbouring property or interfere unreasonably with the neighbour's enjoyment of land; and (2) that the tree owner must bear any costs associated with preventing tree-caused damage to neighbouring property and must compensate neighbours for any damage the owner's tree causes.": Recommendation 5, p 36. 132 The Law Reform Commission also addressed the impacts that trees can have by blocking sunlight and views. The Law Reform Commission noted that, absent an easement, there is no right at common law to sunlight (pp 13-14) or views (p 15). The Law Reform Commission recommended, therefore, that there should be law reform to enable persons whose enjoyment of property is severely affected by a neighbour's tree blocking out sunlight or a view to apply to a Local Court under the proposed new procedure: Recommendation 6, p 37 and Recommendation 7, p 38. The Trees (Disputes Between Neighbours) Bill 133 The exposure draft Trees (Disputes Between Neighbours) Bill was released in August 2006. Public submissions were received in response. A number of changes were made to the Bill tabled in Parliament as a result of the submissions received during this exposure draft period. 134 The Trees (Disputes Between Neighbours) Bill was introduced and read a second time on 25 October 2006. In the second reading speech, the then Attorney-General, the Honourable Bob Debus, noted that the issue of disputes about trees in the urban environment was originally considered by the Law Reform Commission and that "[t]he Law Reform Commission's report concluded that the common law of nuisance and abatement, which currently governs disputes between private parties about trees, does not provide an adequate dispute resolution process for people living in closely settled communities". The Bill was noted to draw upon the work of the Law Reform Commission, but adopts a different approach to that contained in a number of the Law Reform Commission's Recommendations. The second reading speech identified the key aspects of the Bill to include: (a) providing "a simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours";

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The Oxford English definition of "tree" is to like effect. 139 The first specific inclusion in the definition in s 3(1) makes it clear that the category of "tree" for the purposes of the Act includes "any woody perennial plant". This is similar, but not necessarily the same, as the first dictionary definition of a "tree". The second specific inclusion is "any plant resembling a tree in form and size". This evidently picks up the second dictionary definition. 140 By the definition of tree in s 3(1) of the Trees (Disputes Between Neighbours) Act 2006, the scope of application of the Act is more restrictive than the common law tort of nuisance. There is no restriction in the tort of nuisance to vegetation meeting the description of a tree. As the earlier summary of the tort of nuisance has revealed, an owner of land on which any vegetation grows can be liable in nuisance for causing an encroachment of the vegetation growing on their land onto the neighbour's land, causing physical damage by the vegetation to the neighbour's land, or causing unreasonable interference by the vegetation with the use and enjoyment of the neighbour's land. Although the vegetation involved in the cases has usually consisted of trees, non-tree vegetation such as noxious weeds has featured in some cases. 141 That the definition of tree in s 3(1) of the Trees (Disputes Between Neighbours) Act 2006 has the capacity to restrict the scope of application of the Trees (Disputes Between Neighbours) Act 2006 is illustrated by the decision in Buckingham v Ryder [2007] NSWLEC 458 (25 July 2007) (Moore C) that a vine, the pink trumpet vine, Podranea ricasoliana, which was not self supporting, was not a tree for the purposes of the Trees (Disputes Between Neighbours) Act 2006. Tree "is situated on" land 142 A number of provisions of the Trees (Disputes Between Neighbours) Act 2006 make reference to a tree being "situated on" land. The Trees (Disputes Between Neighbours) Act 2006 defines the phrase "a tree is situated on land":

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"For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land": s 4(3). 143 Determining the land on which a tree is situated is important for determining, first, whether the tree is situated on land to which the Act applies and, secondly, who is the affected landowner and who is the tree owner, as only the former can make application to the Court under the Trees (Disputes Between Neighbours) Act 2006. 144 The Trees (Disputes Between Neighbours) Act 2006 uses the present tense when describing the requirement that the tree be situated on land, namely, "a tree…is situated" on land (emphasis added): see s 7 and s 4(3). When used in s 7, this has the consequence that the tree needs still to be situated on the land at the time the application is made. If the tree has been wholly removed, it could not be said that there is "a tree to which this Act applies that is situated on adjoining land": s 7. 145 This construction does limit the scope of application of the Trees (Disputes Between Neighbours) Act 2006. For example, a tree which was situated on adjoining land might entirely fail at the ground and fall into the adjoining land causing damage to property on the adjoining land. If the tree is cut up and removed in the clean up of the damage and to mitigate further damage to property, there would be no tree remaining on the land on which it originally grew. In this situation, the owner of the land who has suffered as a result of the tree causing damage to their property would not be able to make application to the Court for an order under the Trees (Disputes Between Neighbours) Act 2006, either to remedy damage to their property or to require payment of compensation for damage to their property. 146 However, the person would not be precluded from bringing an action in nuisance in the Supreme Court (assuming grounds exist) seeking a mandatory injunction to remove the fallen tree that may now be principally situated on their property or damages for the damage caused to their property. Section 5 of the Trees (Disputes Between Neighbours) Act 2006 would not operate to limit such an action. Section 5 provides that "no action may be brought in nuisance as a result of damage caused by a tree to which this Act applies". The Act applies to trees "situated" on land specified in s 4(1) (except if excluded by s 4(2)). The tree will only be situated on such land if it "is situated wholly or principally" on that land: s 4(3). In the situation given in the example, the tree no longer meets this description. 147 The requirement that there still be a tree to which the Act applies situated on the land at the time of making an application under s 7 of the Trees (Disputes Between Neighbours) Act 2006 does not, however, mean that the whole of a tree still needs to be situated on the land. The concept of a "tree" is wide enough to include a tree that has been reduced to a bare trunk or a stump that is still connected to the soil of the land. The concept of a tree also includes a tree that has died: see Ridley v Gyler [2007] NSWLEC 220 (20 April 2007) (Moore C, Hussey C, Fakes AC); Ashworth v Joyce [2007] NSWLEC 357 (15 June 2007) (Moore C, Thyer AC); and Coutts v Haydon [2007] NSWLEC 863 (20 December 2007) (Fakes AC). "Land" on which tree is situated 148 The Trees (Disputes Between Neighbours) Act 2006 applies only to trees situated on:

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"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". 151 At common law, identification of ownership of a tree is critical to determining the rights and duties of neighbours in relation to the tree. Where a tree, both above ground and below ground, is wholly within one person's land, that person will obviously be the owner of the tree. The difficulty arises where part of the tree is on each of the lands of the adjoining owners. Where the body of the main part of a tree is within one person's land, although the roots or branches may encroach onto the neighbour's land, the first person is the owner of the tree, including the encroaching roots or branches: Holder v Coates (1827) M. & M. 112 at 113; 173 ER 1099 at 1100; Lemmon v Webb [1894] 3 Ch 1 at 20. It is for this reason that if the neighbour exercises the right of abatement by cutting away at the boundary encroaching branches, the neighbour must return the fruit from the branches to the owner of the land on which the tree grows to avoid being liable for conversion: Mills v Brooker [1919] 1 KB 555. 152 If the tree has moved into the neighbour's land, such as by subsidence of the ground on which the tree grows, so that it is partly in the land of each of the adjoining owners, the owner will be the person in whose land the tree was first sown or planted: Holder v Coates (1827) M. & M. 112 at 113; 173 ER 1099 at 1100; Speed v Money & Musson (1904) 48 Sol Jo 674 at 675. 153 Otherwise, where the tree is growing on the boundary, so that the trunk is partly on the land of each of the adjoining owners, they become joint owners of the tree: Holder v Coates (1827) M. & M. 112 at 113; 173 ER 1099 at 1100; Lemmon v Webb [1894] 3 Ch 1 at 20. In such a case, neither owner would have the right to cut the trunk of the tree at the boundary, because to do so risks killing the tree and destroying the other adjoining owner's property rights and interest in the tree. 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. 156 If there is doubt as to the location of the tree in relation to the boundary, the Court may direct the applicant to provide a survey to establish the location of the tree relative to the boundary (as was required at the interlocutory stage in Vella v The Owners of Strata Plan 8670 [2007] NSWLEC 365 (28 May 2007) (Moore C, Brown C, Fakes AC). 157 Apart from determining on which land the tree is situated, it is also a requirement under s 7 of the Trees (Disputes Between Neighbours) Act 2006 that the tree be situated on "adjoining land". The concept of "adjoining land" evidently includes properties that abut each other, but might also include properties that are separated by other land, such as a public road or drainage easement, provided there is a relevant connection in the sense that the tree growing on one property is capable of causing damage to the other property or injuring persons on that other property: see P Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 (15 March 2007) (Moore C, Fakes AC) at [2]-[7]. Applicant must be affected landowner 158 The Trees (Disputes Between Neighbours) Act 2006 grants a right to make an application under s 7 to a person described as an "owner of land". The term "owner of land" is defined to also include "the occupier of the land": s 3(1) of the Trees (Disputes Between Neighbours) Act 2006. 159 At common law, an action in private nuisance would only lie at the suit of a person who has some right or interest in the land affected. Ordinarily, such a person could only sue if such a person has exclusive possession of the land, such as a freeholder or a tenant in possession or even a licensee with exclusive possession, or exceptionally, a person in actual exclusive possession of land who cannot prove title to the land. The reversioner can also sue insofar as his or her reversionary interests are affected. However, a mere licensee has no right to sue: see earlier discussion and Hunter v Canary Wharf Ltd [1997] AC 655 at 688, 692. 160 Application under s 7 of the Trees (Disputes Between Neighbours) Act 2006 is limited to, first, an "owner" of land and, by the extension in the definition of "owner of land" in s 3(1), "the occupier of land". If the owner is not in exclusive possession and is a reversioner, the right to make an application under the Trees (Disputes Between Neighbours) Act 2006 would differ from the right of action in nuisance at common law insofar as it would extend to the owner of land and reversioner the right to make application even if the reversionary interest is not affected by the damage caused by the tree on adjoining land. The specific extension of the class of "owner of land" to include only persons meeting the description of "the occupier of land" might also differ from the common law position if the concept of "the occupier of land" under the Trees (Disputes Between Neighbours) Act 2006 were not to include a person who, although having legal right to possession, is not in physical possession: N Foster, "Trees and Nuisance in New South Wales" (2007) 81 ALJ 291 at 292. It is not necessary to decide this question in this case. Specified harm caused by the tree 161 The Trees (Disputes Between Neighbours) Act 2006 specifies the harm that must have occurred, is occurring or is likely in the near future to occur in order to make an application to the Court and for the Court to make an order. The harm must be either damage to the applicant's property on the land of which the applicant is the owner or occupier, or injury to any person, or both.

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Damage to "property on the land " 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. The concept of "property on the land" may include both corporeal components of land and corporeal chattels or moveables. 165 Conventionally, land includes both "corporeal" and "incorporeal" components or "hereditaments". Broadly, corporeal hereditaments refer to the physical and tangible characteristics of land while incorporeal hereditaments refer to certain intangible rights which may be enjoyed in, over or in respect of land. Corporeal hereditaments include the land itself (the solum), including the soil and rocks which constitute the surface layer of the land, as well as such physical objects that are attached to or part of the ground. Corporeal hereditaments extend to buildings and other fixtures on the land, trees, crops and plants growing in the soil of the land, subjacent minerals and even some portion of the superjacent air space: K Gray and SF Gray, Elements of Land law, 4th ed, Oxford University Press, 2005, p 13 [1.24]-[1.25]. An incorporeal hereditament "is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within, the same. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses": W Blackstone, Commentaries on the Laws of England, Clarendon Press, Oxford, 1765 (reprinted Legal Classics Library, 1983), Vol 2, p 20, cited and applied by Cotton LJ in In re Christmas. Martin v Lacon (1886) 33 ChD 332 at 338-339. Examples of incorporeal hereditaments are easements and profits à prendre. 166 The reference in s 7 to "property on the land", insofar as it refers to land, therefore, may be a reference to corporeal hereditaments ("things corporate") rather than incorporeal hereditaments ("things collateral to things corporate") and furthermore only to those corporeal hereditaments other than the surface layer of the land (the solum). If this be correct, the Trees (Disputes Between Neighbours) Act 2006 would apply to damage to physical and tangible property constituting corporeal hereditaments but excluding the surface of the land itself. Hence, damage caused by a tree's roots to buildings, fences, paving or other structures, or to fruit trees, crops, ornamental gardens or other vegetation growing on a neighbour's land, may be covered by the Trees (Disputes Between Neighbours) Act 2006 but damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes Between Neighbours) Act 2006: N Foster, "Trees and Nuisance in New South Wales" (2007) 81 ALJ 291 at 292. 167 The reference in s 7 to "property on the land" is also wide enough to include moveable objects or corporeal chattels, such as animals, vehicles or furniture, that may be located on, but are not attached to or part of the ground. Hence, damage caused by a tree falling onto the applicant's vehicle parked on or the applicant's outdoor furniture placed on land of which the applicant is the owner or occupier, may be covered by the Trees (Disputes Between Neighbours) Act 2006.

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" Damage to property " 168 The scope of what constitutes "damage" to property on the land is not defined by the Trees (Disputes Between Neighbours) Act 2006. 169 At common law, although damage is necessary to complete the cause of action in nuisance, the type of damage required varies depending on the kind of nuisance involved. For nuisances of the first kind, causing encroachment as by roots and branches of trees, actual damage to the land (including property attached to or inherent in the ground) must be proved: see paragraph 56 above. For nuisances of the second kind, causing physical damage, actual physical damage to land (including property attached to or inherent in the ground) is also required: see paragraph 67 above. For nuisances of the third kind, causing unreasonable interference with the use and enjoyment of the neighbour's land, however, no actual financial loss or injury to health need be involved. The damage consists of the annoyance and discomfort caused to the occupier of the neighbouring land, such interference being of a material character: Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-27], p 1178. 170 The types of actual damage required at common law for nuisances of the first and second kind would also constitute "damage to property on land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006, with the possible exception noted earlier (at paragraph 166) that damage to the surface layer of the land may not be damage to property on land. 171 However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7. 172 I note that in Barker v Kyriakides [2007] NSWLEC 292 (24 May 2007), Moore C, Hussey C and Fakes AC found, as a matter of discretion, that "[t]he dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree": at [20]. However, the problem is anterior to the exercise of discretion as to whether to make an order under the Act; there is no power to make an order in relation to the tree unless such debris of the tree "has caused, is causing, or is likely in the near future to cause, damage to the applicant's property" on the land: ss 7 and 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006. 173 Also, the requirement that the tree cause "damage to property on the land" would not cover situations of a tree obstructing a view or access to light. Such interferences do not constitute nuisances at common law (absent an easement): see earlier discussion at paragraph 86. Although the New South Wales Law Reform Commission recommended that the new statutory scheme should address such concerns, the legislature expressly declined to do so, as the second reading speech and Parliamentary Debates plainly state. Obstruction of a view from land or of access to light on land by a tree situated on adjoining land does not constitute "damage to property on the land". Even where there is an easement for light, and there is an interference with rights under that easement, such interference might not constitute "damage to property on land" under s 7 because the easement is an incorporeal hereditament which does not fall within the concept of "property on land". However, it is not necessary to determine this question in this case.

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"Cause" is also employed in s 12(h)(i) and (ii). 177 The use of the different phrases, "in consequence of" and "cause", may be a case of a difference without a distinction. 178 Causation is essentially a question of fact to be answered by ordinary common sense and experience: March v E & M H Stramare Pty Limited (1991) 171 CLR 506 at 515, 522, 524 and Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 29. 179 Under either phrase describing the necessary nexus, the tree need not be "the" cause of the damage to property or likely injury to any person; it will be sufficient if the tree is "a" cause. Hence, for example, where two trees are growing, one on the applicant's land and one on the neighbour's land and the roots of each of the trees encroach into property on the applicant's land, such as drainage or sewer pipes, and cause damage, each of the trees can be said to have "caused" damage to the applicant's property, or to use the other phrase, damage to the applicant's property can be said to be "a consequence of" each of the trees. The fact that one could say that one tree caused damage is not inconsistent with another tree also having caused damage. 180 The conclusion that there can be contributing causes of the damage to property or likely injury to any person is corroborated by s 12(h) and (i) of the Trees (Disputes Between Neighbours) Act 2006 which requires the Court to consider, before determining an application, whether "anything, other than the tree, has contributed, or is contributing" to any such damage or likelihood of damage or such likelihood of injury to any person. 181 It is also to be noted that the necessary nexus is between "the tree" and the damage to property or likely injury to any person; it is not between some act, or omission to act where there was a duty to act, of the owner or occupier of the land on which the tree is situated, and the damage to property or likely injury to any person. This is an important distinction and is in contrast with the tort of nuisance. A tort is a breach of a duty which has been imposed on a person by law and gives rise to a right of action in the person wronged when injury has been sustained as a result of the breach of the duty recognised by law. 182 Under the Trees (Disputes Between Neighbours) Act 2006, however, neither the right of a person to make an application under s 7 for an order, nor the power of the Court to make an order under s 9 and s 10, is expressed to be dependent on a breach of any duty imposed on any person by law, whether by the common law or statute. 183 The statutory scheme under the Trees (Disputes Between Neighbours) Act 2006 is in contrast to that recommended by the New South Wales Law Reform Commission. The Law Reform Commission recommended that the legislation should state the responsibilities of tree owners, specifically that tree owners are responsible for ensuring that their trees do not cause damage to neighbouring property or interfere unreasonably with the neighbour's enjoyment of land: see Report 88, Neighbour and Neighbour Relations, para 2.44, p 33 and Recommendation 5, p 36. However, the Trees (Disputes Between Neighbours) Act 2006 does not adopt this recommendation. It does not impose any responsibilities on tree owners or make the breach of responsibility a criterion for making an application for an order or the Court making an order under the Act. 184 Hence, it is not relevant, in establishing whether, as a matter of fact, there is a causal connection between the tree and damage to property or likely injury to any person, to identify whether any person is at fault. Fault is often used as a criterion for allocating legal responsibility for damage or injury caused. Under the Trees (Disputes Between Neighbours) Act 2006, however, the concept of causation is used in s 7 and s 10 only for the purposes of establishing a factual relationship of cause and effect and not also for allocating legal responsibility. 185 Fault does, however, become a matter to be considered by the Court when determining the application, as it falls within the heads of consideration in s 12(h) and (i) of the Trees (Disputes Between Neighbours) Act 2006: see discussion below in paragraphs 207-208. 186 The specification of "the tree", rather than any act or omission of any person, including the owner of the land on which the tree is situated, as being a cause of either damage to property or injury to any person may mean that deliberate human acts and extraordinary natural events do not break the causal connection. Conventionally, "[i]n answering questions of causation for the purposes of holding someone responsible, both the law and common sense normally attach great significance to deliberate human acts and extraordinary natural events": Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 30. Deliberate human acts and extraordinary natural events (often termed acts of God) can break the chain of causation so that a person will not be held responsible in tort or under statute for the consequences. This is a result of the law imposing responsibility on the person and holding that person liable where, in breach of their responsibility, their act or omission causes the proscribed result. 187 Where, as is the situation under the Trees (Disputes Between Neighbours) Act 2006, the causal connection is not between the proscribed result of damage to property or injury to any person and the breach of some responsibility imposed on a person, but rather the causal connection is between the proscribed result and something, namely a tree, the notion of deliberate human acts and extraordinary natural events breaking the chain of causation is not applicable. For example, whether a tree, or part of it, falls over and causes damage to property on adjoining land in calm conditions or in an extraordinary storm, either way, as a matter of factual causation, the tree caused the damage or put the other way, the damage is a consequence of the tree. 188 However, the intervention of an extraordinary natural event or a deliberate human action may be a relevant matter to be considered by the Court in determining an application and in the exercise of the discretion as to the order, if any, that is fit to be made in the circumstances: see discussion below at paragraphs 209-210 and 212. 189 Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601 (12 September 2007) (Bly C, Fakes AC). Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant's property: Dooley v Newell [2007] NSWLEC 715 (23 October 2007) (Moore C, Thyer AC) at [22]-[23]. Preconditions to the Court making an order 190 The Trees (Disputes Between Neighbours) Act 2006 precludes the Court making an order unless it is satisfied of three matters:

[111]

"[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises.": para 1.13, p 7. 192 The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order: para 2.46, p 33. 193 The Trees (Disputes Between Neighbours) Act 2006 did not adopt the procedural requirement of giving notice before commencing legal action, either as a precondition to taking action or as the means by which the applicant must make a reasonable effort to reach agreement. The notification requirement under s 8 of the Trees (Disputes Between Neighbours) Act 2006 is of lodging of the application and the terms of any order sought. Of course, such notification may prompt discussions between the parties, but it serves a different function to the Law Reform Commission's recommendation of giving notice before taking court action. 194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application. 195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process. For example, s 88K(2)(c) of the Conveyancing Act 1919 and s 40(2)(d) of the Land and Environment Court Act 1979 provide that the applicable court should not make an order imposing an easement over land unless it is satisfied that "all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful". The requirement that "all reasonable attempts" be made is more demanding than "a reasonable effort" to reach agreement. Nevertheless, in relation to the more demanding requirement that "all reasonable attempts" be made to reach agreement, Lloyd J noted in Antipas v Kutcher and Anor (2006) 144 LGERA 289 at 293 [14]:

[123]

"The provisions that require the Court to consider environmental factors prior to making an order are in recognition of the importance of urban trees as an environmental asset. Urban trees play a proven environmental role in every urban society. They provide energy savings through lower cooling costs, reduce storm-water run-off, help reduce salinity and provide aesthetic and social benefits associated with being in proximity to nature. The bill therefore recognises the environmental contribution of urban trees as a factor that the court must take into consideration in determining applications." 204 The matters in s 12(h) and (i) require the Court to consider whether there are any contributing causes of the damage or the likelihood of damage to property or the likelihood of injury to any person, other than the tree. The phrase "anything, other than the tree, that has contributed, or is contributing…" is wide. 205 It evidently includes "any act or omission by the applicant" and "the impact of any trees owned by the applicant" because both of these are specified to be included in the wider phrase. Thus, in Horn & Anor v Latter [2007] NSWLEC 744 (23 October 2007) (Moore C, Thyer AC) at [17], found that the reason why a tree required removal was because the applicants had poisoned the tree's roots, killing part of the tree and rendering it "likely in the near future to cause damage" to the applicants' property. As a consequence of this fact, although the Court ordered removal of the tree, it required the cost of removal to be borne by the applicants rather than the tree's owner. 206 The phrase also would include any act or omission by the owner of the land on which the tree is situated, which has contributed or is contributing to the damage or the likelihood of injury to any person. 207 The 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. Thus, it would be relevant to consider whether the person created the nuisance constituted by the tree having caused, causing, or being likely to cause damage, or whether the person adopted or continued that nuisance. Such conduct could be said to be "anything, other than the tree, that has contributed, or is contributing to any such damage". 208 Acts of the owner of the land on which the tree is situated, of the kind given by the Law Reform Commission in its Report 88, Neighbour and Neighbour Relations, would also fall within the phrase. The Law Reform Commission recommended that the Court should consider whether the tree landowner created the nuisance by planting the trees, whether there was malice involved in planting the trees, whether the trees were planted in accordance with a local council's tree planting policy, whether the tree was planted with the intention of causing loss of enjoyment to the neighbour and the reasonableness or otherwise of the behaviour of the tree landowner: see paras 2.47, 2.48 and 2.51, pp 34-35, quoted above in paragraphs 127 and 129. Although these matters have not been included as express matters in the Trees (Disputes Between Neighbours) Act 2006, they may fall within the ambit of "anything, other than the tree, that has contributed, or is contributing to" the damage or the likelihood of damage to property or the likelihood of injury to any person. 209 The phrase "anything, other than the tree, that has contributed, or is contributing" to the damage or the likelihood of damage to property or the likelihood of injury to any person would also include any act of a person other than the applicant and the owner of land on which the tree is situated. If a trespasser poisoned or vandalised the tree, that person's act could have contributed to the damage or the likelihood of damage to property or the likelihood of injury to any person.

[128]

Such observations are equally applicable to s 9(1) of the Trees (Disputes Between Neighbours) Act 2006 . 214 The specific powers in s 9(2) of the Trees (Disputes Between Neighbours) Act 2006 that the Court may employ are: powers of an injunctive nature, such as making a mandatory order to take specified action to remedy damage to property, or to restrain or prevent damage to property, or to prevent injury to any person (s 9(2)(a), (b), (c), (d)); powers authorising the applicant or other persons to take such specified action and be paid their costs associated with doing so (s 9(2)(e), (f), (g) and (h)); power to require payment of compensation for damage to property (s 9(2)(i)); and power to require the replacement of a tree that the Court orders to be removed (s 9(2)(j)). These specific powers are but some of the ways open to the Court to discharge its duty under ss (1) to make "such order as it thinks fit". 215 There is, however, a limitation on the Court's powers introduced by the orders being required to be directed either to "damage to property" or "injury to any person". This is of particular relevance in this case to the power of the Court to remedy damage to property by requiring payment of compensation for damage to property. 216 At common law, the measure of damages for nuisance is the same as for tort generally. "The damages are whatever loss results to the injured party as a natural consequence of the wrongful act of the defendant": Grosvenor Hotel Co v Hamilton [1894] 2 QB 836 at 840 and Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006 [20-28], p 1178. Damages may be not only for injury to the land but also for consequential loss, for example, loss of profits which are the result of an inability to use the land for the purposes of any business conducted on the land: Hunter v Canary Wharf Ltd [1937] AC 655 at 706. 217 The Trees (Disputes Between Neighbours) Act 2006, however, has a more limited focus. The Court may make an order to "remedy damage to property" (s 9(1)) and this may include making an order requiring the payment of compensation "for damage to property" (s 9(2)(i)). An order requiring payment of the compensation for economic loss that is consequential on damage to property is not an order requiring payment of compensation "for damage to property" and it does not remedy "damage to property". To this extent, the remedies under the Trees (Disputes Between Neighbours) Act 2006 in relation to compensation for damage to property are more limited than damages that may be awarded in an action for nuisance. Limitation on action in nuisance 218 Section 5 of the Trees (Disputes Between Neighbours) Act 2006 provides that "no action may be brought in nuisance as a result of damage caused by a tree to which this Act applies". Hence, if damage is caused by a tree to which the Act applies, a person whose property is damaged by the tree cannot bring a common law action in nuisance but must instead make application under the Trees (Disputes Between Neighbours) Act 2006 to the Land and Environment Court. However, if the damage is caused by a tree to which the Trees (Disputes Between Neighbours) Act 2006 does not apply, such as a tree on land within zones not covered by s 4(1)(a) or on land vested in or managed by a council (s 4(2)(a)), a common law action in nuisance can still be brought. 219 The Trees (Disputes Between Neighbours) Act 2006 contains no limitation on bringing common law actions in trespass or negligence, regardless of whether the tree concerned is one to which the Trees (Disputes Between Neighbours) Act 2006 applies. The Land and Environment Court, however, has no original jurisdiction to hear and determine such common law actions, nor would such actions be ancillary to a matter that falls within jurisdiction such as an application under the Trees (Disputes Between Neighbours) Act 2006 but rather are separate causes of action: see National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 582; Mitchell v Waugh (1993) 82 LGERA 44 at 49; Nix and Dunn v Pittwater Council (1994) 84 LGERA 199 at 203-205. The application before the Court 220 On the evidence in this case, I find: (a) The Grey Ironbark that fell over in the storm event of 8-9 June 2007 was a tree within the meaning of that term in s 3(1) of the Trees (Disputes Between Neighbours) Act 2006 .

[143]

(h) (i) The evidence of Mr Freeman is that "the tree failed due to a combination of associated storm events, water logged localised soils and root damage from a root pathogen (Phytophthora), which can be attributed to the construction of a retaining wall and site modifications impacting upon the tree's critical root zone": Arboricultural Assessment Report, 17 December 2007, p 16, and see also transcript of 20 December 2007, p 19, lines 20-25. (ii) However, the construction of the retaining wall and the site modifications were carried out by Mr Leischke's predecessor in title prior to Mr Leischke's ownership and occupation of the land. The evidence does not establish that any act or omission of Mr Leischke during his ownership and occupation of the land contributed to the damage caused by the tree failing. (iii) The findings made earlier as to the tree and the cause of its failure and the conduct and knowledge of Mr Leischke establish that Mr Leischke did not create the nuisance constituted by the tree causing physical damage to Mrs Robson's house. Mr Leischke did not plant the tree, did not take any positive action in relation to the tree or its growing environment that was a cause of the tree's failure. (iv) Mr Leischke also did not adopt or continue the nuisance. Mr Leischke had no actual knowledge of any defect in the tree, such as root rot, or in the environment in which the tree grew, such as waterlogged soils. To the contrary, Mr Leischke's knowledge was that the tree appeared to be a healthy tree and he had not experienced any problems with it. On Mr Freeman's evidence, the tree would not have shown any obvious signs of stress, poor structural stability or decline to a layperson such as Mr Leischke. Hence, Mr Leischke would not have any constructive knowledge of any problems with the tree. (v) Having no actual or constructive knowledge of the problems with the tree, Mr Leischke could not be said to be under a duty to prevent or minimise any risk of damage or injury to Mrs Robson or her property. It cannot be said, therefore, that the omission to act by Mr Leischke contributed to the damage caused by the tree failing. (vi) Equally, no act or omission of Mrs Robson contributed to the damage caused by the tree failing.

[144]

(i) There was no injury to any person when the tree failed. Exercise of power to make orders 223 I have found that damage has been caused to Mrs Robson's property as a consequence of the tree situated on Mr Leischke's land. The Court is obliged under s 9 of the Trees (Disputes Between Neighbours) Act 2006 to consider what order, if any, best meets the justice of the situation. 224 Mrs Robson has suffered damage to her property through no fault of hers. Unless the Court makes an order for payment to her of compensation for the damage, the loss will fall on her. An order requiring some person to pay compensation to Mrs Robson, would shift the incidence of loss to that person. However, as Salmond has observed, "reason demands that a loss shall lie where it falls, unless some good purpose is to be served by changing its incidence": Salmond on Torts, 1st ed, 1907, p 9. 225 The only person whom it is suggested should pay compensation is Mr Leischke, being the owner of the land on which the tree that caused damage is situated. However, the mere fact that a tree is situated on a person's land is insufficient reason by itself to justify making that person an insurer of other persons for any harm the tree may have caused to them or their property. 226 In the law of torts, fault provides a reason to shift the incidence of loss. A person who is at fault for the damage or injury to another person or their property is punished by being compelled to make pecuniary compensation to the person so injured. On the facts of this case, however, I have found that Mr Leischke is not at fault for the tree's failure and the consequential damage to Mrs Robson's house. Hence, fault cannot be a reason in this case justifying shifting the incidence of the loss from Mrs Robson to Mr Leischke. 227 There is no other reason in the circumstances of this case for shifting the incidence of the loss from Mrs Robson to Mr Leischke. None of the factors in s 12 of the Trees (Disputes Between Neighbours) Act 2006 provide justification to order that Mr Leischke pay compensation to Mrs Robson. The tree did not solely benefit Mr Leischke. The tree made a contribution to the local ecosystem and biodiversity, the natural landscape and scenic value of the locality, and public amenity. The tree was able to be seen and enjoyed not only from Mr Leischke's land, but also from Mrs Robson's land, as well as by residents and passers-by in the neighbourhood. 228 In these circumstances, the justice of the situation is to leave the loss where it falls, namely on Mrs Robson. An order shifting that loss to Mr Leischke by requiring him to pay compensation to her would not be fit or just. 229 Hence, the proper exercise of the duty under s 9(1) in this case is that there should be no order to remedy the damage by requiring payment of compensation. Orders 230 The orders of the Court are as follows: 1. The application is dismissed.

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