Ward v Glasson & anor

The Court's jurisdiction 8In applications made under s 7 Part 2 of the Act, there are a number of jurisdictional tests that must be satisfied. Of particular importance is s 10 which states: (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 9If the Court's jurisdiction is engaged, s 9 enables the Court to make any such orders it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person. In order to determine, what, if any, orders should be made, the Court must consider the matters in s 12 of the Act. 10The hearing commenced on site on 7 September 2012. For reasons explained below, the hearing was adjourned to enable the applicants to adduce more evidence. The hearing resumed on site on 14 November.

The 7 September hearing 11Present at this hearing were the parties and their legal representatives and Mr John Atkins, arborist for the respondents. Mr Kingdom was not present nor were any engineers. 12The tree and the accessible parts of the stables were inspected. As the stables were being used to house the applicant's tenant's show dogs, access to the interior of the stables was not possible. 13The tree was observed to be a mature Eucalyptus saligna (Sydney Blue Gum) growing very close to the south-western wall of the stables. The tree was planted by Mr Glasson about 28 years ago. 14A vertical stepped crack was noted in the wall of the stables adjacent to the base of the tree and another some metres to the west. Other cracks were seen on the accessible walls of the stables, in particular the north-western wall fronting the rear lane. 15There was no guttering on the roof on the south-western side of the stables. I was not shown any damage to the roof. 16Various reasons were put forward to explain the cracks including a statement from Mr Atkins that the soils in the area are reactive - that is they swell when wet and shrink when dry. 17Mr Atkins' oral and written evidence considers that the crack in the building near the base of the tree could most likely be attributed to an expansion of the root crown of the tree. He disagreed with Mr Kingdom's assessment of the likely risk of branch failure. 18On the basis of the hearing on 7 September, I came to the conclusion that there was enough evidence to suggest that the tree was at least a cause of the crack in the wall closest to the tree. That is, I found s 10(2) to be sufficiently satisfied to engage the Court's jurisdiction to make orders under s 9. 19However, on the evidence before me I was unable to determine what, if any, orders should be made. While two arborists had inspected the tree, no excavations had been undertaken to demonstrate the extent of any interaction between the tree's roots and the building. It was therefore impossible to determine the appropriate course of action. 20After considering the situation I made directions allowing the applicant to excavate a trench between the two expansion joints in the cement block wall in the vicinity of the tree. The trench was to be 300mm wide and at least 500 mm deep. The directions included access to be provided to any experts either party wished to inspect the trench. The directions were made on the proviso that the applicant reimbursed the respondents their agreed thrown away costs.

The 14 November hearing 21The hearing resumed on 14 November. The applicant and his solicitor Mr Kilpatrick were present as were Mr Kingdom and Mr Shayne Morrissey, a civil engineer. The respondents appeared in person as Mr Hanlon their solicitor was unable to attend. Mr Atkins was present as was the respondents' civil engineer Mr Peter March. Both Mr Morrissey and Mr March inspected the trench and prepared written reports.

Observations 22The roots in the trench were inspected and, during the hearing, further excavation was carried out to determine the direction of root growth. It was clear that at the base of the tree, two large structural roots were in contact with the concrete footing upon which the concrete blocks were laid. One root had grown over the edge of the footing and was just in contact with one block of the wall. To the west, a smaller diameter but nonetheless sizable structural root was also seen to be in contact with the footing. The roots tapered and descended into the soil. 23The two cracks in the adjoining wall were above the point of contact with the structural roots. The cracks commence in the second course from the bottom of the wall and traverse through blocks as well as along the mortar beds to a window. The crack increases in size from the bottom to the top. One block below the window protrudes slightly beyond the face of the wall. 24We proceeded to inspect the internal wall and floor of the stables. The cracks in the wall nearest the tree were visible from within the building. Apart from one old looking crack on the floor of the stable stall closest to the tree, the floor appeared in good order. Almost all of the floors of other stalls as well as the central part of the stables were cracked. The external condition of the north-eastern and north-western (rear) walls were inspected. Cracks in the north-eastern wall had been repaired but several large cracks were noted in a number of sections of the north-western wall. 25After the inspection of the tree and the stables had concluded, the cross-examination of the witnesses commenced. Shortly after this process Mr Kilpatrick stated that his arborist Mr Kingdom, had informed him that I was prejudiced against Mr Kingdom and that when he was a student I had "assaulted" him by throwing a stick at him. Being somewhat taken aback by this statement I asked Mr Kingdom to enlighten me. Mr Kingdom stated that 26 years ago during a Tree Surgery class at St Ives Showground (in which he was a student and I was a teacher) he was 'grounding' for another student and I threw a 2 m long stick at him. I have no recollection of this occurring. 26On this basis, Mr Kilpatrick considered that I should recuse myself from the hearing. I subsequently adjourned the hearing to consider this matter. For the reasons discussed below I determined that I would not recuse myself and I proceeded to hear the matter.

Apprehended bias 27In Webb & Hay v R [1994] HCA 30; (194) 181 CLR 41; (1994) 122 ALR 41; (1994) 68 ALJR 582, Deane J at [12] (citations omitted) discusses the range of categories of the appearance of bias. 12. The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first e.g., a case where a dependent spouse or child has a direct pecuniary interest in the proceedings.) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third e.g., a case where a judge is disqualified by reason of having heard some earlier case, and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias. 28The relevant test in regards to apprehended bias is that stated in the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ at [6]-[8] citation omitted). [6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. [7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. [8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 29In this matter, it would seem that the category of apprehended bias as described in Webb is one of 'association'. Where the "apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings". 30As to the steps in Ebner - what is it that is said might lead me, a Commissioner of the Court, to decide a case other than on factual merits; and, is there a logical connection between the matter and the feared deviation from the course of deciding the case on its merits? Would a 'fair-minded lay observer then reasonably apprehend that I did not bring an impartial mind in determining the matter? 31It is a fact that Mr Kingdom was a student in a course that I once taught. That course ran for one day per week for 18 weeks. I have no recollection of the year in which he was a student but I accept that 26 years ago I was teaching that course and that it was entirely probable that a class was held at St Ives Showground. I also note that it is a fact that Mr Atkins was also a student in the same course during the late 1980s; I have no recollection as to whether they were in the same class. As I taught arboriculture for almost 30 years, I regularly have past students appear before me as expert witnesses or who have prepared expert reports that are tendered as evidence; these experts appear in both tree dispute and planning matters. In this regard, Mr Kingdom is but one of many arborists with whom I have contact during my former and current careers. A number of those arborists were students in several subjects and courses of longer duration than the course in which Mr Kingdom was enrolled. 32Prior to this matter, Mr Kingdom has appeared as an expert witness before me at least once in the matter of Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069. In that matter, the applicants who had engaged Mr Kingdom were represented by a solicitor. No allegation of bias was raised on that occasion. On at least another two occasions I have considered other tree dispute matters where Mr Kingdom's reports have been relied on but where he has not been in attendance (Taylor v Department of Housing [2010] NSWLEC 1172 [5], [26]; Jones v Morgan and King [2010] NSWLEC 1064 - [5]-[15]). 33As to the event that Mr Kingdom cites as being evidence of my prejudice against him, I have no recollection of the incident. Even if I did pick up a branch and threw it in his general direction there may have been many reasons for doing so including clearing a path, or even alerting someone to a possible problem. It is inconceivable to me that, as a teacher, I would have thrown a stick (larger than me) at a student with the intent of causing harm. I also consider that had Mr Kingdom considered my alleged action to be unacceptable he would have formally raised it at the time with the college director or another supervisor. No such complaint was made. 34As to the connection between the alleged stick incident some 26 years ago and the matter now before me, not only are the circumstances of my association with Mr Kingdom completely different, the time frame is considerable, the matter was not raised at an earlier hearing, and given the very few times Mr Kingdom has appeared before me, I consider that a fair-mined lay person would not conclude that I did not bring an impartial mind to determining the matter. 35In this matter Mr Kingdom's evidence is only one aspect to consider; apart from evidence from Mr Atkins and the engineers, I have the benefit of the expertise I bring to the Court as well as the most compelling evidence being the exposed roots and the condition of the stables.

Arboricultural evidence 36Mr Kingdom was of the opinion that the roots were growing down and under the footing and slab and therefore the main cause of the two cracks nearest the tree. He opined that kinetic energy loading on the branches would transfer to the roots and therefore to the wall. In regards to the canopy, he considered signs of borer damage and some epicormic shoots could indicate that the tree is under some stress. In his view the tree appeared to have been lopped in the past given the multiple branch/ stem attachments. He maintained his written opinion that given the end weight and loading of the branches, if left untouched, they would fail within about 12 months. 37Mr Atkins was of the opinion that the roots were deflected along and down the footing but there was no evidence to show the roots being under the slab. He agreed that the roots are likely to be a cause of the cracking. In his opinion, the soil conditions under the slab are unlikely to be conducive to root growth and that given the available root space provided by the respondents' back garden, roots were more likely to be occupying that space. 38In his view, the tree was in good health, there was no sign of weakness associated with a wound on one of the stems nor any weak attachments. He considered that the 'fibre buckling' reported by Mr Kingdom was more likely to be normal reaction wood formed by the branches. In his opinion, the risk of branch failure is unlikely but he noted that some braches over the roof had been pruned thus providing some weight reduction. 39In response to Mr Kingdom's belief that the tree had been lopped in the past, Mr Glasson advised the Court that no such pruning had ever taken place and the only pruning so far was the selective removal of branches over the stable roof. 40Both arborists agreed that severing the roots would compromise the health and stability of the tree.

Engineering evidence 41The engineers agreed that the stable consists of a single skin of 190 mm concrete block work with timber trusses and a tiled roof. There are a number of internal walls of 140mm concrete blocks forming individual stalls. 42In his report Mr Morrissey describes the cracks near the tree as reaching a thickness of up to 5 mm. He considers that the internal and external walls were constructed on strip footings with the slab on ground being poured separately. He assumes the walls are core filled and reinforced but has no evidence to confirm this. In Mr Morrissey's opinion, the crack in the south-western wall is the result of pressure from the roots which has caused a rotation of the footing between the two expansion joints. In his view, the nature of the crack is consistent with this explanation. He also considers that the removal of moisture by roots from the soil beneath the slab and surrounding soil will exacerbate the cracks and is likely to be the cause of cracks in other walls as well as shrinkage cracks in the concrete floor of the stables. 43Mr Morrissey relies in part on the links between trees, buildings and soils in an information sheet published by the CSIRO - Foundation Maintenance and Footing Performance: A Homeowner's Guide; this is included in his report. 44In Mr Morrissey's opinion, the roots will continue to grow and "as the single leaf wall is the primary supporting element in the building, any significant damage or displacement of the blocks in the wall could lead to a structural wall and roof failure". In his opinion, the tree should be removed given the proximity of the tree to the wall, and the arborists' view that cutting the roots would destabilise the tree. 45Mr March, assumes that the stable walls are not reinforced. In his view the roots have contributed to the cracking on the south-eastern wall however, he considers that the damage to the stables is also consistent with other buildings of a similar age that have been built on reactive clay soils. In his opinion, the clay foundation material is a major contributing factor that explains the cracks in other parts of the building well away from the base of the tree. He notes that as the guttering around the building is absent or damaged, water accumulating at the base of the wall would make a significant contribution to the swelling and shrinking of the soil and therefore the footings/ slab in contact with the soil. 46In Mr Marsh's opinion, fixing the guttering would minimise future damage and insertion of another expansion joint in the wall nearest the tree would alleviate some of the pressure. In his view the wall is not structurally unsound as there are many internal walls providing additional support. 47In response to a question from Mr Glasson, the first respondent, in regards to the 1989 Newcastle earthquake, Mr Marsh agreed that the cracks in the building are consistent with those caused by an earthquake. 48In regards to the cracks, Mr Glasson stated that in his opinion the cracks in the wall closest to the tree have not changed in about five years.

Submissions 49Both the applicant's and respondents' legal representatives prepared written submissions. In essence each party maintains the view of their own experts and takes opposing views on the discretionary matters in s 12. 50Mr Kilpatrick for the applicant submits that the experts all agree that there is a clear nexus between the tree's roots and the two cracks in the south-western wall. He asserts that while Mr Atkins refers to the cracks as 'minor', he says that the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 indicates that even relatively minor damage engages the Court's jurisdiction and in that case the Court ordered the removal of the tree. Mr Kilpatrick also cites the decision of Galwey AC in Goldmann and anor v Malane [2012] NSWLEC 1234; he contends that the Goldman case and this matter have many similarities and tree removal was similarly ordered. 51Mr Kilpatrick cites Mr Atkin's report in regards to future damage; as Mr Atkins states that as "the trunk increases in diameter, it is more likely to come in contact with the roof" it could be implied that the tree is likely to cause future damage to the building. He also presses the opinions of Mr Kingdom and Mr Morrissey that both above and below ground, the tree is likely to cause damage within the next 12 months, a period he says is consistent with the published guidance decision in Yang v Scerri [2007] NSWLEC 592 in regards to the 'near future'. He submits that I should not accept Mr Glasson's evidence on the state of the crack over the last 5 years as Mr Glasson is a lay witness as well as a respondent in the proceedings; he contends that the only person able to give such evidence is an unbiased objective bystander who is not a party to the procedings. 52Mr Kilpatrick cites Goldman and the finding that after the matters in s 12 were considered, the Acting Commissioner found that, on balance, the value of the tree did not outweigh the right of the applicant to have his property remain undamaged without requiring anything more than reasonable maintenance. 53The applicant's position remains that the tree must be removed in order to enable the repair of the building and to prevent future damage. 54Mr Hanlon for the respondents submits that while the tree is likely to be a cause of the cracks in the south-western wall, the 'volatility' [by which I assume he means 'reactivity'] of the clay soil, the nature of the structure (probably un-reinforced walls), the lack of guttering (as considered by Mr Marsh), as well as the 1989 earthquake are also contributory factors in the overall condition of the building. In this regard he maintains that the circumstances in Goldman, as relied upon by Mr Kilpatrick, are quite different. 55In regards to future damage, Mr Hanlon contends that the applicant has not produced any reliable evidence to suggest that the damage is getting worse. He relies on Mr Atkin's report and evidence as to the health and stability of the tree and the statement that the tree has withstood many storms including the one that beached the "Pasha Bulka". 56The respondents' position is that the value of the tree does outweigh the concerns of the applicant, particularly when so much of the damage can be apportioned to other factors. The respondents maintain their view that the application should be dismissed and the tree should remain.

What orders are appropriate? 57At the first hearing I determined that the Court's jurisdiction under s 10(2) is engaged; that is not in question. Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2) but it can be relevant in determining what orders, if any, should be made. This is the question that must be answered. As stated above, s 9 enables the Court to make any such orders it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person. This requires consideration of the matters in s 12 of the Act. 58Mr Kilpatrick cites other decisions made in tree dispute matters that support his case. While there is an attempt to have consistency in decision making, the unique facts and circumstances of each case must be considered. I find that little weight can be put on my own findings or those of other commissioners in other matters where the facts and circumstances can only be determined from the judgment or are only known to me. 59With the benefit of the site inspection and the parties' written submissions, I make the following comments on the relevant matters in s 12.

• There is no dispute that the tree is wholly located on the respondents' property and is close to the stables on the applicant's land. A survey dated 7.5.2012 shows that the former guttering on the south-eastern side of the stables encroached 170-180 mm onto the respondents' land (s 12(a)).
• The issue of pruning the canopy did not really arise as the applicant is pressing for the removal of the tree. Past selective removal of some branches over the roof does not appear to have caused any problems. The issue is whether root pruning would compromise the health and stability of the tree. The arborists agree that it will; and with the expertise I bring to the Court, I concur (s 12(b2)).
• While the parties have opposing views on the amenity and biodiversity values of the tree, I consider that the tree does contribute to the amenity of the respondents' land and to the natural landscape and scenic value of their property. The tree can be seen from nearby streets and therefore it does have some value to public amenity. It is also likely to make a contribution to biodiversity (s 12 (b3), (d), (e) and (f)).
• In my view, the most critical considerations are the factors other than the tree that have contributed to the damage (s 12(h)(i)). These factors are discussed below.
• In regards to actions taken by the parties, Mr Glasson has removed another tree that was growing close to the building as has removed low branches from above the roof of the stables. There are some repairs to cracks in other parts of the stables but the cracks in the north western and south western walls have not been repaired or filled.

Reactive soils 60While no soil analysis was tendered, I am satisfied with the evidence of locally-based experts that the soils in the vicinity are reactive clays - that is, the soils swell when wet and shrink when dry. Again, with the expertise I bring to the Court (soil science and arboriculture), I agree that trees can exacerbate the removal of water from soils however water falling off a roof onto the base of a building can also concentrate water in that area. As the guttering appears to have deteriorated over time and then has been removed, the water regime will have changed. 61In my view, it is quite reasonable to assume that some of the damage to the walls is a consequence of soil movement as a consequence of the extra water. However, I think there is insufficient evidence to support Mr Morrissey's opinion that the 'shrinkage cracks' in the concrete floor are entirely due to roots removing water from the soil beneath the slab. The building is in excess of 32 years old and the internal floor is poured in large sections with few expansion joints. There is no evidence as to how the floor was poured or reinforced.

The 1989 earthquake 62The Newcastle earthquake caused loss of life and considerable damage to many buildings in the general area. I have no reason to doubt Mr Glasson's undisputed statements that the earthquake shook his dwelling. The engineers agreed that the pattern of cracking around the building is consistent with earthquake damage. It is unknown whether the walls are reinforced. If not reinforced, it was agreed they would be weaker than reinforced walls.

Findings and conclusions 63I am satisfied that the tree has contributed to the two cracks in the adjoining wall. However, I am not satisfied that the damage is sufficient to order the removal of the tree, or indeed any intervention with it at this stage. 64While there is clearly some root growth against the footing, the footing itself (or the course of blocks above) is not cracked or noticeably displaced. Mr Morrissey stated that the footing has rotated but there was no evidence adduced to support this. On careful inspection of the trench, I saw no evidence of roots growing under the footing. 65Mr Kilpatrick considers that I should ignore Mr Glasson's statement that the cracks have not worsened over the past five years as Mr Glasson is not an engineer. In these matters, the first hand observations and opinions of someone who has lived on the premises for at least 28 years are as valid as the opinion of a technical expert who has visited the site on one or two occasions. The parties' engineers disagree on the significance of the crack and the implications for the structural integrity of the building. 66Mr Morrissey relies in part on the CSIRO publication Foundation Maintenance and Footing Performance: A Homeowner's Guide. Apart from the direct and indirect impact of trees on buildings, this information sheet notes other causes of movement in buildings most of which are soil-related. The document includes Table C1 - 'Classification of Damage with Reference to Walls' from AS 2870 - the Residential Slab and Footing Code. The reference to the table notes - "In general, most cracking found in masonry walls is a cosmetic nuisance only and can be kept in repair or even ignored" This table states that cracks up to 5mm are noticeable but easily filled. It notes that cracks from 5-15mm can be repaired and possibly a small amount of wall will need to be replaced. 67The applicant has not provided me with sufficient evidence to satisfy me that the crack is anything more than cosmetic at this stage. While the tree will continue to grow I am also unconvinced that the crack is likely to expand in the next 12 months or so and compromise the structure of the stables. Indeed, the observations made on both site visits are that there are more severe looking cracks elsewhere in the building that cannot be attributed to the impact of root pressure and could quite reasonably be attributed to the 1989 earthquake, the construction of the building, the reactive nature of the soils, and the effects of water accumulating at the base of the building as a consequence of ineffective/ corroded/absent guttering. 68In regards to the likelihood of branch failure, I agree with Mr Atkins that there are no signs of structural instability, poor attachment or end loading of branches that would lead me to conclude that the tree is likely to cause injury to anyone in the foreseeable future. With the expertise I bring to the Court, there is nothing unusual in the habit of the tree and the 'epicormic shoots' are a normal part of the maturing canopy of a eucalypt and not stress-related. While there is some dead wood in the tree, it is not of a size or location that would cause injury or damage to the roof of the stables. 69If the circumstances change, and there is new evidence, it is possible to make a fresh application. This is discussed in Hinde v Anderson & anor [2009] NSWLEC 1148. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence. 70Therefore, the Orders of the Court are: (1)The application to remove the tree is dismissed.

J Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2012