The Owners - Strata Plan 3346 v The Owners - Strata Plan 10848

Relevant matters in determining apportionment

1. As required by the Trees Act, I have considered all matters at s 12. Below I discuss only those relevant to this decision.
2. At s 12(h) of the Trees Act, the Court is required to consider: (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property: (i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,
3. AT [207] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 ('Robson'), Chief Judge Preston drew the interpretative connection between ss 12(h) and 12(i) of the Trees Act and the tort of nuisance: "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"."
4. His Honour wrote at [74] in Robson: "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."
5. What are "reasonable capabilities and circumstances"? As His Honour continued at [75], they include the respondent's knowledge of the situation. "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: "a person is liable for a nuisance constituted by the state of his property: (1) if he causes it; (2) if by the neglect of some duty he allowed it to arise; and (3) if, when it has arisen without his own act or default, he omits to remedy it within a reasonable time after he did or ought to have become aware of it": see also Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 904-905; Goldman v Hargrave [1967] 1 AC 645 at 660, 661-662; Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 at 518, 522, 523-524. This summary was cited with approval by Singleton J in Cunliffe v Bankes [1945] 1 All ER 459 at 465 and Dixon J in Torette House Pty Ltd v Berkman (1940) 62 CLR 637 at 657."
6. I note in particular that His Honour's citation of Noble v Harrison [1926] 2 KB 332 identifies a person's liability for a nuisance includes omitting to "…remedy it within a reasonable time after he did or ought to have become aware of it".
7. The wording of the Trees Act at ss 12(h) and 12(i) encourages the Court to consider two matters. Firstly, the knowledge, both actual and what could be reasonably expected, that both the applicant and respondent might have of the relevant situation. And secondly, the actions that each party has taken or omitted to take with that knowledge in mind.

Brief timeline of events

1. To assist with analysis of actions and omissions of the parties, a summarised timeline is set out below.

• 1995-2000: the respondent removed most of the camphor laurel, leaving a stump of approximately 2 metres in height.
• Following removal of its crown, the camphor laurel regrew from its stump.
• 2009: correspondence from the applicant to the respondent regarding damage caused by the respondent's trees (in dispute). Ms Durham took photographs of the trees and of cracks in a garage wall.
• 2010: correspondence from the applicant to the respondent regarding damage to garage roof guttering caused by the branches of the camphor laurel and other trees.
• March 2011: the respondent obtained council consent to remove trees near the applicant's garages.
• June 2011: the respondent removed the trees, leaving their stumps, from which the trees began to regrow.
• April 2015: correspondence from the applicant to the respondent regarding tree root damage.
• September 2015: by this time the trees had regrown significantly.
• May 2016: correspondence from the applicant to the respondent regarding structural damage to their garage walls.
• March 2017: the applicant engaged a contractor to cut down the trees and poison their stumps to prevent further regrowth. Stumps were left in situ so as not to further destabilise the garages.
• August 2017: further correspondence from the applicant to the respondent regarding structural damage to their garage walls.
• September 2017: the respondent requested that the applicant obtain an engineer's report on their garages.
• November 2017: the applicant obtained an engineering report, which was provided to the respondent in December 2017.
• January 2018: the respondent requested that the applicant obtain quotes for removing tree stumps and repairing the garages.
• May 2018: the applicant provided the respondent with quotes for repairing the garages.
• May 2018: the respondent wrote to the applicant denying liability for the damage.
• October 2018: the respondent accepted the applicant's invitation to attend mediation, which took place in May 2019.
• Following mediation, the applicant tried unsuccessfully to get the respondent to carry out actions supposedly agreed upon.
• September 2020: the applicant made an offer of settlement to the respondent, which the respondent refused.
• November 2020: the applicant commenced these proceedings.

Knowledge and actions of the applicant

1. The applicant submits that they wrote to the respondent in 2009 asking for trees to be removed to prevent further damage to their garages. Relying on Ms Durham's oral evidence, the applicant submits that the damage to which they referred in written correspondence to the applicant was not limited to tree branches damaging their garage roof guttering, but included structural damage to the garage walls. There is no record of this written correspondence.
2. Correspondence to the respondent in 2010 indicates the applicant was aware of damage to their guttering caused by tree branches. It does not demonstrate any knowledge of structural damage to their garage walls caused by the growth of the trees' stems or roots. To me, this suggests the earlier correspondence of 2009 might have been of a similar nature.
3. The earliest correspondence regarding structural damage to the garage walls, and included in evidence, was apparently in April 2015.
4. From 2015 onwards, the applicant's efforts to have this issue resolved, summarised in the timeline above, appear entirely reasonable and sufficient.

Knowledge and actions of the respondent

1. The respondent first cut down the camphor laurel, to a 2-metre stump, between 1995 and 2000, apparently of its own accord, without any request from the respondent and without any issue regarding damage being identified.
2. The respondent disputes receiving any correspondence regarding damage in 2009.
3. After receiving correspondence regarding damage to the applicant's garage roof guttering in 2010, the respondent obtained council consent to remove the trees. They removed the trees in 2011. They did not remove or poison the stumps, thereby allowing the trees to regrow. The respondent submitted that the camphor laurel's stump was left in situ to avoid destabilising the garage wall. Even if they were unaware of structural damage to garage walls at this stage, they were aware that regrowth was likely to cause further damage to guttering.
4. The applicant submits that the respondent omitted to take action required by the consent notice they received from council to remove their trees. That consent included: "Note: Remove all stumps from site." It also included a condition that: "All branches, leaves, timber, stumps, wood chips and the like shall be disposed of in an approved manner." The applicant argues that the respondent was therefore required to remove and dispose of the stumps. I find that council's consent notice is just that: a consent and not an order. It does not require the trees to be removed. The note included in the consent ("Remove all stumps from site") is not an order, nor is it a condition of the consent. It could be argued that once the consent is acted upon, by the respondent removing the trees as allowed by the consent, then the conditions must be followed. I accept that all conditions must be followed if the consented works are carried out. However I also find that the conditions apply to those parts of the tree removed by the consent holder. The extent of removal is a matter of discretion for the consent holder: they are not required to remove the entire stem, or the stump or a tree's roots, unless specified in a condition. The consent did not include a condition requiring the consent holder to remove all parts of the tree. The purpose of the condition quoted above appears to seek an outcome where the parts of the tree that are removed by the consent holder are disposed of appropriately, rather than left on a naturestrip, or in a way that might interfere with the public or other property owners. Therefore I find that the respondent, by leaving the tree stumps in situ, was not negligent, nor did they omit to take a required action. However, their lack of preventing regrowth from the stumps might be considered an omission.
5. The respondent suggested that the first knowledge they had of any structural damage to the garage walls was the correspondence they received in May 2016.

Findings on actions and omissions

1. I have no reason to doubt Ms Durham's evidence that the applicant notified the respondent of damage caused by trees in 2009. However, with equal credibility given to both Ms Durham and Ms Dranganoudis, I have no reason to doubt Ms Dranganoudis' evidence that the respondent did not receive such correspondence. The applicant was unable to provide a copy of the correspondence.
2. The respondent undoubtedly received the 2010 correspondence regarding damage to garage roof guttering, and took action the following year. The respondent argues that the 2010 correspondence concerns damage to roof guttering only, and they were unaware of any structural damage caused by their trees until 2016.
3. Here I return to the citation quoted earlier from Noble v Harrison [1926] 2 KB 332, where Rowlatt J at page 338 wrote that a person's liability for a nuisance includes omitting to "…remedy it within a reasonable time after he did or ought to have become aware of it".
4. Even if I accept the respondent's submission that they first became aware of any structural damage caused by their trees in 2016, I find that they ought to have become aware of it earlier. The respondent has shown it does not blindly arrange remedy of any issue brought to its attention. It is safe to assume that the respondent, in responding to the 2010 correspondence received regarding damage to guttering, would have inspected the trees and the damage before arranging quotes for the works and engaging an arborist. I find that it was at this point in time that the respondent ought to have become aware of either some damage to the brick wall, or the likelihood that their camphor laurel, at least, would inevitably cause damage.
5. Bringing my own arboricultural experience and expertise to this decision, I know that the situation seen at the onsite hearing indicates that even in 2010 the camphor laurel's stem was pressing against the applicant's garage wall. The expectation that this situation would soon lead to damage, if indeed there were already no signs of damage, is one not limited to an arboricultural expert, but extends to the common property owner, perhaps even more so in a strata plan where people are used to carrying the responsibility of making decisions that affect others. The relevant factors were visibly apparent from within the respondent's property, from where the respondent would have viewed the stem of their tree pressing against the applicant's garage wall in 2010 when determining an appropriate response to the applicant's correspondence. This contrasts with the situation in So v Turnbull [2021] NSWLEC 1424, where the respondent was unlikely to observe from within their own property any signs suggesting their tree might be causing, or about to cause, damage to a neighbouring property.
6. For this reason, I find that the respondent ought to have been aware of the nuisance in 2010. They took appropriate action the following year by removing most of the tree, but their failure to prevent it regrowing was an omission on their behalf, an omission that might lead to further damage. Therefore, despite each party's submissions regarding the details of later correspondence, I find that the respondent is liable for their trees' contribution to damage from 2010 onwards.

Other factors contributing to the damage

1. Also to be considered at s 12(h) are other factors that might contribute to any damage. This would include the age and general deterioration of the applicant's garages. Both engineers gave some evidence towards this. I accept that the garages are old and have a limited lifespan, but according to the evidence they do not yet need replacing. The works specified in the consent orders are only required due to damage caused by the trees. Were it not for that damage, the works would not be required. Therefore, I see no reason to consider the age and condition of the garages in determining apportionment.

When did the damage occur?

1. If the respondents ought to have been aware from 2010 of the potential for their trees to cause damage, they might be expected to contribute proportionally to the extent of damage that occurred from 2010 to the present compared to the overall damage.
2. Relying on Mr Chresby's evidence, Ms Hammond submits that the trees caused damage over an extended period of 20 years or more. Their stumps were poisoned in 2017, from which time their growth stopped. Ms Durham's photos verify that damage had occurred by 2009. I find it possible that damage began some time before then, although might not have become evident for several years, and then was documented by Ms Durham in 2009. Lacking further evidence as to the history of the damage itself, I conclude that the trees caused damage to the garages for approximately 15 years up to 2017.

Submissions regarding apportionment

1. The applicant submits that the respondent was aware of the damage from 2009 but failed to take appropriate action to prevent further damage. The applicant referred the Court to Hale v McAlpin [2020] NSWLEC 1176, where the respondent was found to have acted responsibly, taking appropriate action once made aware of issues regarding their tree. Mr Holt submitted that the respondent here, to the contrary, has not acted responsibly even once they were aware that their tree was causing damage. The applicant submits that the respondent should pay 80% of the costs of the repair works.
2. The respondent submits that they should not be held responsible for structural damage before they were made aware of the issue in May 2016. Ms Hammond submits it would be reasonable for the respondent to contribute 10% of the costs of repair works.
3. Of course, each party's submissions regarding the other's failure to take appropriate actions are much more detailed than this brief summary. The party's dispute whether some correspondence was sent or received, and the contents of such correspondence. I have set out the important matters as I find them in the timeline earlier in this judgment. Importantly, as I have found that the respondent ought to have been aware of their trees causing damage from 2010, much of the dispute about later correspondence is not relevant to this decision.

Findings on apportionment

1. I find that the respondent's trees damaged the applicant's garages over an approximately 15-year period to 2017. I find that the respondent ought to have been aware of the damage, or the likelihood of damage, from 2010: that is, approximately 7 of the 15 years over which damage occurred. Given the approximation involved in these findings, I am comfortable rounding 7/15 to 50%. Therefore the respondent shall contribute 50% of the costs of the repair works.

Consent orders

1. The proposed consent orders will be made with 50% apportionment of the costs of the repair works. The Court should not be relied upon to select a contractor failing agreement between the parties (proposed order 7). It is in the applicant's interest to select a contractor based on both quality of work and price, so the applicant will select the contractor if no agreement is reached between the parties. Considering the finality of these orders, I see no need for liberty for the parties to restore. I have also amended the order requiring tree works to comply with a NSW code of practice to a Safe Work Australia guide.

Orders

1. Based on the foregoing reasons, the Court orders the following (substantially consented to by the parties): 1. The tree dispute application is upheld. 2. The Respondent is to engage and pay for an AQF level 3 arborist, with proof of current, adequate and appropriate insurance cover, to remove the Camphor Laurel on the north-eastern boundary of 74 Nobel Street, Allawah, to ground level. The roots are to be ground to a depth of 300mm below ground level to a distance of 300mm from the edge of the existing slab where the roots are located inside the Applicant's property. 3. The work in order (2) is to be carried out in accordance with Safe Work Australia 2016 Guide to Managing Risks of Tree Trimming and Removal Work. 4. The Applicant is to provide all necessary access for the purpose of quoting and the safe and efficient carrying out of the works in order (2) on reasonable notice. The Applicant will also advise the Respondent when the works can be carried out having regard to the anticipated completion date of the works referred to in order (5)(b). 5. Within 3 months from the date of this order, the parties are to obtain at least two quotes each from licensed contractors for the following works: 1. Temporary propping of the roof structure; 2. The demolition of the rear wall and rear half of the dividing wall between garages 1 and 2 and the rear half of dividing wall between garages 2 and 3 up to the engaged piers in each wall; 3. Reconstruction of single leaf masonry to rear wall and internal blade walls. Bricks and mortar to match as near as practicable to existing bricks and mortar; 4. The installation of ties and anchors to connect the existing and new brickwork; 5. Injection underpinning of the concrete slab using a suitable polyurethane resin; 6. The disposal of waste and make good; 7. Inspections and certification as required; and 8. Any necessary contingency. 1. The Applicant is to provide all necessary access for the purpose of quoting and the safe and efficient carrying out of the works in order (5) on reasonable notice. 2. Within 3 months from the date of this order, the parties are to have exchanged quotes and agreed on the nomination of a contractor. The parties are to serve each other with the quotes by registered mail. If there is no agreement the Applicant is to select their preferred contractor. 3. The Applicant is to engage and pay for the nominated contractor to undertake the quoted works in order (5) within 8 months from the date of this order. 4. Within 21 days of receipt of a tax invoice for the completed works in order (5), the Respondent is to reimburse the Applicant 50% of the costs of repairing the garage as set out in order (5). 5. The exhibits are returned, except for Exhibits A, B, E, F and 3. ……………………………….

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