Wilson v Farah

Misconstruction of "damage to property"

1. Ms Wilson contended that the Commissioner adopted too narrow a view of what was meant by damage to property.
2. Under s 7 of the Trees Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent "damage to property" on the land as a consequence of a tree situated on adjoining land. Under s 9 of the Trees Act, the Court may make such order as it thinks fit to remedy, restrain or prevent "damage to property" as a consequence of the tree concerned. However, under s 10(2) of the Trees Act, the Court must not make an order under s 9 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".
3. Ms Wilson submitted that the Commissioner construed the statutory phrase concerning damage to property to require that the tree concerned cause "material damage to the fabric of the pool or any other component" of the pool (at [11] of the judgment) and "physical damage" to the pool (at [12]).
4. That the Commissioner took this view is corroborated by the Commissioner's comments made at the hearing of the application. Ms Wilson referred to notes that she had made of the hearing that was conducted on the site (there was no transcript because the hearing was held onsite and not in a court room). The Commissioner said to Ms Wilson: "I am not going to make the order [for the removal of the tree] because you have not shown me any damage or future damage." Ms Wilson responded: "You can see from the photos the damage that was done to the pool. The water had turned green and brown. I had to actually get someone to empty the whole pool and had to have it scrubbed and refilled." The Commissioner asked: "Can you show me any cracks or damage to the fabric of the pool? What is the evidence of future damage?" Ms Wilson then referred to evidentiary material about the likelihood of the tree continuing to drop leaves and flowers around the same time each year and hence contaminate the pool water.
5. Ms Wilson relied on the Commissioner's questions at the hearing, which focused on cracks or damage to the fabric of the pool, as evidencing that the Commissioner took too narrow a view of "damage to property".
6. Ms Wilson submitted that the Commissioner erred in construing the statutory requirement for damage to property as necessitating that there be "material damage to the fabric of the pool or any other component" or "physical damage" to the pool. Ms Wilson submitted that damage to property is a wider concept than the Commissioner had found.
7. Ms Wilson submitted that "damage" to property involves a "physical alteration or change, not necessarily permanent or irreparable, which impairs the value or usefulness of the thing said to have been damaged", citing Ranicar v Frigmobile Pty Ltd [1983] Tas R 113 at 115-116. This concept of "damage" was followed in Switzerland Insurance Australia Ltd v Dundean Distributors Pty Ltd [1998] 4 VR 692; Bayer Australia Ltd v Kemcon Pty Ltd (1991) 6 ANZ Ins Cas 61-026; and Mainstream Aquaculture Pty Ltd v Calliden Insurance Limited [2011] VSC 286.
8. Ms Wilson submitted that property is damaged "when it is rendered imperfect or inoperative" even though the damage is not permanent but is remediable, if only by the expenditure of money, citing R v Zischke [1983] Qd R 240 at 247. Ms Wilson also submitted that "it is sufficient proof of damage if the evidence proves a temporary functional derangement of the particular article of property", as held in Samuels v Stubbs (1972) 4 SASR 200 at 204 and approved in R v Hayne (Court of Criminal Appeal (NSW), 18 September 1998, unrep).
9. Ms Wilson cited other authorities on the definition of "damage" as involving permanent or temporary reduction of functionality, utility or value, including R v Previsic (2008) 185 A Crim R 383; [2008] VSCA 112; Griffiths v Morgan [1972] Tas SR (NC) 279 (N28); A (A Juvenile) v R [1978] Crim LR 689; R v Whiteley (1991) 93 Cr App R 25 and that a person may "damage" property by contaminating it, or by rendering it imperfect or inoperative, including R v Previsic; Morphitis v Salmon [1990] Crim LR 48; A (A Juvenile) v R; Roper v Knott [1898] 1 QB 868.
10. Ms Wilson contended that the concept of damage to property, when applied to a swimming pool, can include damage to the water of the pool (by the contamination of the water) and to the inside fabric of the pool (by algal growth on the inside walls and floor of the pool). The contamination of the pool water and the algal growth in the pool were so great in this case that Ms Wilson had to have the pool emptied, scrubbed and refilled at considerable cost.
11. Ms Wilson submitted that the massive amount of debris falling from the tree caused physical alteration or change of the water of the pool (contamination of the water) and to the inside walls and floor of the pool (the algal growth on the fabric of the pool), which impaired "the value or usefulness of the pool" or rendered it "imperfect or inoperative" or caused "a temporary functional derangement" of the pool. In these ways, the tree caused damage to the pool.
12. Ms Farah, the daughter of Mr and Mrs Farah who own the neighbouring property on which the tree is situated, submitted that the Commissioner was correct to find that the leaves and flowers from the tree did not cause actual damage to the pool. The Court has held in many decisions that the dropping of debris from a tree onto property on the applicant's land does not amount to damage to property under s 10(2) of the Trees Act. Mere annoyance or discomfort caused by the debris is not enough to justify the making of an order under s 10(2) of the Trees Act.
13. I find that the Commissioner did err on a question of law by too narrowly construing the concept of "damage to property" under the Trees Act. In the case of a swimming pool, damage can include physical damage to the fabric of the pool or other components of the pool, but it can also include excessive algal growth on the sides and floor of the pool and gross discoloration of the pool water. The latter effects materially impair the usefulness of the pool and its fitness for the purpose of being used as a swimming pool. This can constitute damage to property under the Trees Act. These material effects on the pool and the pool water are to be distinguished from insignificant effects to a pool such as fleeting changes to the appearance of a pool or any unsightliness caused by tree debris falling into a pool.
14. In this case, there was evidence before the Commissioner of damage to the pool in the form of excessive algal growth on the sides and floor of the pool and gross discoloration of the water in the pool, which is part of the pool. Such damage could be described as being physical damage to the fabric of the pool and to the water of the pool. The excessive algal growth lining the inside of the pool changed the inside surface of the pool. The gross discoloration of the water changed the physical and chemical properties of the water of the pool.
15. The Commissioner erred on a question of law in construing ss 7, 9 and 10(2)(a) of the Trees Act as not including such physical damage to the pool and the pool water.
16. However, any error on a question of law must vitiate the decision. An error that is not material will not vitiate the decision: Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275 at 280; Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233; [2005] NSWLEC 470 at [34]; Sydney Water Corporation v Caruso (2009) 170 LGERA 298; [2009] NSWCA 391 at [133]-[136].
17. Under s 10(2)(a) of the Trees Act, it is not enough that there be damage to property; that damage must be a consequence of the tree concerned. In order for the Commissioner to have power under s 9 of the Trees Act to make an order for the removal of the tree, the Commissioner had to be satisfied under s 10(2)(a) that the tree concerned has caused, is causing or is likely in the near future to cause damage to Ms Wilson's property, which in this case is the pool on her property. Ms Wilson, therefore, had to establish two elements: first, that there was, is or is likely in the near future to be damage to her property and, secondly, that the tree concerned caused that damage.
18. Any error on a question of law in the Commissioner's first finding that there was not damage to Ms Wilson's property will not vitiate the Commissioner's ultimate conclusion that she was not satisfied under s 10(20(a) that the tree caused any damage to Ms Wilson's property unless there is also an error on a question of law in the Commissioner's second finding that any damage that has occurred to the pool was not a consequence of the tree. Ms Wilson has not established any error on a question of law in the Commissioner's second finding.
19. In this case, it would seem that the Commissioner held that, although the tree contributed the "greatest volume" of leaves and flowers in the pool (see [17]), the Commissioner was not satisfied that "any damage [that] has occurred to the pool [was] as a consequence of the leaves and flowers" from the tree (at [13]). This factual finding is corroborated by the Commissioner's discussion in [14] of the tree dispute principle in Barker v Kyriakides [2007] NSWLEC 292 at [20], not in the context of the discretion not to order the removal of the tree, but rather as a reason why the Commissioner was not satisfied that "any actual damage has been caused by the tree" (see [18]). This finding that the tree (and its leaves and flowers) did not cause any damage that occurred to the pool (such as the algal growth and the discoloration of the pool water) is factual and no error of law is alleged.
20. The leaves and flowers from the tree did not directly cause the damage of the algal growth on the inside fabric of the pool and the discoloration of the pool. The failure to remove the leaves and flowers from the pool and to otherwise maintain the pool, including chemically treating the pool to maintain water quality, created the conditions which allowed the algal growth and the discoloration of the pool water. The Commissioner must be seen to have held that the inadequate maintenance was the real cause of "any actual damage" to the pool or, put another way, the actual damage to the pool was a consequence of the inadequate maintenance (see [13] and [18] of the Commissioner's judgment).
21. This finding was open to the Commissioner. The question of whether the tree caused the damage to the pool was essentially a question of fact to be answered by ordinary common sense and experience: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515, 522, 524; [1991] HCA 12 and Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [178].
22. The Commissioner recognised that, in order to establish that the tree caused any actual damage to the pool, "something more than a theoretical possibility is required", applying Craig J's decision in Smith and Hannaford v Zhang and Zhou [2011] NSWLEC 29 at [62]. In that case, Craig J held that s 10(2)(a) of the Trees Act requires a "preponderance of probability" that the tree caused the damage concerned: at [38] and see also discussion at [34]-[37] and [62].
23. In this case, the mere dropping of the leaves and flowers of the tree onto the pool did not cause the damage to the pool. Those leaves and flowers had to decompose in the pool and release nutrients and algae had to be present in the water of the pool (and not be killed by pool chemicals) and grow using the released nutrients before the actual damage to the pool (the algal growth on the fabric of the pool and the discoloration of the pool water) could occur. It was open to the Commissioner to find that there was too remote a connection between the leaves and flowers falling from the tree and the damage of the algal growth on the fabric of the pool and the discoloration of the pool water in order for the Commissioner to be satisfied that the tree caused the damage to the pool.
24. Accordingly, the Commissioner found that the jurisdictional condition in s 10(2)(a) that the tree has caused, is causing or is likely to cause damage to property was not satisfied, not only for the reason that the algal growth and discoloration of the pool water were not damage to property (which involved error of law) but also because the tree did not cause that damage (which did not involve an error or law). Both elements had to be satisfied before the jurisdictional condition in s 10(2)(a) of the Trees Act could be met. The error in the first finding (no damage to property) did not affect the second finding (no causal nexus between the tree and the damage). Hence, the error in the first finding does not vitiate the Commissioner's conclusion that s 10(2)(a) was not satisfied.
25. The Commissioner also made an alternative finding that she would not order the removal of the tree even if she had been satisfied under s 10(2)(a) of the Trees Act that the tree caused damage to the pool (see [13]). The reason given by the Commissioner was the same as had been given in Barker v Kyriakides that people should maintain their property by removal of leaves and flowers that could cause damage to property if they were to remain on the property (see [14]-[18] of the Commissioner's judgment). The Commissioner found that the increased maintenance (cleaning of the pool up to three times per day) required by this particular type of tree, a Fiddlewood, did not justify ordering the removal of the tree. This factual finding, even if in error, did not involve an error on a question of law. For this alternative reason also, the decision of the Commissioner not to order the removal of the tree and to order the dismissal of the application is not vitiated by the error made by the Commissioner in construing "damage to property".
26. For these reasons, I reject the first ground of appeal.

Denial of procedural fairness

1. Ms Wilson argued that she was denied procedural fairness at the hearing of the application in two ways: prejudgment and denial of a fair hearing.
2. Ms Wilson contended that the Commissioner prejudged the outcome of her application in two respects. First, the Commissioner had already determined that only cracks or other physical damage to the fabric of the pool could constitute damage to property for the purposes of ss 7, 9 and 10(2)(a) of the Trees Act. Ms Wilson submitted that this prejudgment is evident from the questions asked by the Commissioner at the hearing that Ms Wilson show the Commissioner "any cracks or damage to the fabric of the pool". The Commissioner's reasons for judgment that there was no damage to property because there has not been "any material damage to the fabric of the pool or other component" (at [11]) or "physical damage" to the pool (at [12]) recorded the predetermined view already reached by the Commissioner.
3. Secondly, the Commissioner had already determined that, even if there were to be actual damage, she would not exercise her discretion to order removal of the tree on the basis of the tree dispute principle in Barker v Kyriakides. The Commissioner said at the hearing: "I can make any order I want but I'm not going to make the order sought. The case of Barker v Kyriakides made it clear that the property owner has to maintain their grounds. There are no cases that have gone against that. What do you say?" Ms Wilson responded to the Commissioner's question, saying in part: "Barker talks about ordinary maintenance. What has to be done here is beyond ordinary maintenance."
4. Ms Wilson submitted that the Commissioner's reasons for judgment record the Commissioner's predetermined view that there would be no departure from Barker v Kyriakides: "I am not satisfied, to the extent required by s 10(2) that any damage has occurred to the pool as a consequence of the leaves and flowers, or is likely in the near future to occur, however, if I am wrong in this, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf litter and other debris. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The 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. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [1]-[14], the Principle was extended to the cleaning of mould and slime. There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis, and so it is with this matter." (at [13]-[16]).
5. Ms Wilson contended that she had been denied a fair hearing in three respects. First, the Commissioner did not allow into evidence two documents tendered by Ms Wilson, one being Ms Wilson's written submissions filed on 15 November 2016 and the second being Ms Wilson's affidavit filed on 2 December 2016. However, later the documents were admitted into evidence and marked exhibits B and C respectively.
6. Secondly, the Commissioner did not allow into evidence an email dated 12 June 2016 from a botanist at the National Herbarium of New South Wales describing the habit of the Fiddlewood tree to drop leaves in the dry season and flowers periodically all year round. The email was included as part of Ms Wilson's application commencing the proceedings. At the hearing, Ms Wilson attempted to tender the letter, saying: "The Senior Technical Officer of the National Herbarium of New South Wales wrote in her report to me that the tree will probably drop leaves and flowers around the same time each year. I have a copy here." The Commissioner replied: "I am not prepared to rely on the advice of a botanist."
7. Thirdly, the Commissioner did not allow into evidence the relevant part of the applicable Development Control Plan for the locality, Pittwater 21 Development Control Plan 2014, being Part B 4.22 Preservation of Trees or Bushland Vegetation. That Part identified the exempt tree species: "The tree species listed in Table 1 below and listed in the noxious weed declarations for Pittwater Council under the Noxious Weeds Act 1993 are considered undesirable and can be removed without a Tree and Bushland Vegetation Removal Permit or Development Consent."
8. One of the exempt trees listed in Table 1 was the Fiddlewood tree. Ms Wilson referred to the Development Control Plan at the hearing, saying: "I have some material about the tree which I found during my research on the internet if you would like to have a look at them." The Commissioner replied: "I do not read material on the internet."
9. Ms Wilson submitted that, by the Commissioner refusing to receive into evidence these documents and to consider them, she denied Ms Wilson a fair hearing.
10. I find that the Commissioner did not deny procedural fairness in any of the ways contended for by Ms Wilson. First, prejudgment has not been established. It is true that the Commissioner did at the hearing express preliminary views about both the issue of whether the tree had caused damage to property and the issue of whether the Commissioner should in her discretion not order the removal of the tree. However, three matters establish that these were not the concluded views of the Commissioner and that she remained open to be persuaded otherwise.
11. In relation to the issue of damage to property, it is true that the Commissioner's questions assume that damage to property required "cracks or damage to the fabric of the pool". Nevertheless, Ms Wilson was given the opportunity to put a case that damage to property involved a wider concept and could include the excessive algal growth on the inside fabric of the pool and the gross discolouration of the pool water. The Commissioner invited Ms Wilson to show her "any damage or future damage". Ms Wilson responded to this invitation by referring to the photographs of the pool showing the algal growth and discolouration of the pool water. Ms Wilson said that these photographs showed: "…the damage that was done to the pool. The water had turned green and brown. I had to actually get someone to empty the whole pool and had to have it scrubbed and refilled."
12. Ms Wilson provided written submissions (which became exhibit B) that referred to the damage done to the pool in terms of excessive algal growth and gross discolouration of the pool water. Ms Wilson's affidavit (which became exhibit C) attached photographs of the debris that had fallen from the tree into and around the pool.
13. The Commissioner in her reasons for judgment recognised that Ms Wilson's case was that the volume of debris falling from the tree had caused algal growth and discolouration of the pool water. The Commissioner said: "The application claim form and other exhibits contain photographs of debris floating on the water, on the pool surrounds, on the pool cover, and on the nearby lawn. There are photographs of the greenish water and of considerable algal growth on the base and inner sides of the pool. The applicant states that because of the volume of debris that had accumulated in the pool, the condition of the pool and water was such that in February 2016, the pool had to be drained, cleaned, refilled and treated with 200kg of pool chemicals to render it fit for use. It appears that the applicant's contention that the algal growth constitutes 'damage'." (at [8]-[10]).
14. The Commissioner, therefore, considered Ms Wilson's argument but did not accept her argument. The Commissioner was of the view that such algal growth and discolouration of the pool water was not damage to property because it had not caused "material damage to the fabric of the pool or any other component" (at [11]).
15. The fact that the Commissioner's final view was expressed in substantially similar terms as her questions at the hearing does not, by itself, establish that the Commissioner had prejudged the issue. The Commissioner did invite Ms Wilson to adduce evidence and make submissions on the issue. Ms Wilson did adduce evidence and make submissions on the issue as invited. The Commissioner revealed in her reasons for judgment that she had considered that evidence and those submissions. These are indicators against the Commissioner having prejudged the issue.
16. In relation to the issue of discretion not to make an order for the removal of the tree, it is true that the Commissioner did say that she was not going to make the order for the removal of the tree sought by Ms Wilson on the basis of the case of Barker v Kryiakides. But immediately after saying this, the Commissioner asked Ms Wilson "what do you want to say?" This provided Ms Wilson with the opportunity to dissuade the Commissioner from that preliminary view. Ms Wilson immediately endeavoured to do so. She sought to distinguish Barker v Kryiakides by saying that, while that case talked about ordinary maintenance, in her case "what has to be done here is beyond ordinary maintenance". Ms Wilson provided evidence and made submissions to establish that more than ordinary maintenance was required. Ms Wilson supplemented her oral submissions with her written submissions (in exhibit B). The last section of the written submissions addressed specifically the decision of Barker v Kryiakides. Ms Wilson reiterated that the principle in Barker v Kryiakides was to be applied when considering "ordinary maintenance issues arising from" urban trees, however what was required in this case was beyond "ordinary maintenance."
17. The Commissioner in the reasons for judgment recognised that Ms Wilson's case was that the required maintenance was "more than ordinary" and "unreasonable" (at [2] and [18]). The Commissioner considered this argument but did not accept it. Again, the facts that the Commissioner invited Ms Wilson to address the issue, Ms Wilson did so and the Commissioner considered Ms Wilson's evidence and submissions on the issue are indicators against the Commissioner having prejudged the issue.
18. In relation to both the issues of damage to property and the discretion not to make an order for the removal of the tree, the Commissioner also gave a final opportunity at the end of the hearing for both parties to say anything else. Ms Farah gave oral evidence at the hearing of this appeal that the Commissioner had asked the parties at the conclusion of the hearing whether they wanted to say anything more. This open question did not restrict Ms Wilson as to the issues on which she could address the Commissioner.
19. In these circumstances, the Commissioner gave Ms Wilson adequate opportunity to adduce evidence and make submissions on both issues concerning the damage to property and the discretion not to make an order for the removal of the tree and hence to persuade the Commissioner to find differently to the preliminary views that she had expressed on these issues during the hearing.
20. Secondly, I do not find that the Commissioner denied Ms Wilson a fair hearing by not admitting into evidence various documents.
21. The first two documents were Ms Wilson's written submissions and Ms Wilson's affidavit. However, these documents were later admitted into evidence as exhibits B and C. There was, therefore, no denial of a fair hearing by not admitting these documents.
22. The second document was the email from the officer of the National Herbarium of New South Wales. This document was not formally admitted into evidence. However, it was part of Ms Wilson's application commencing the proceedings. There is no evidence that the Commissioner did not read and consider this originating process, as would be customary in dealing with an application under the Trees Act. Ms Wilson also referred to the officer's evidence in her written submissions, which became exhibit B. Ms Wilson said in her submissions: "According to a Senior Technical Officer of the National Herbarium of New South Wales, Ms Seanna McCune, the tree drops leaves and flowers year round. In Australia the leaves turn bronze in winter and some leaves fall in spring. Flowers appear from mid-summer to winter. Ms McCune said 'I would suggest that your tree will probably drop leaves and flowers around a similar time to previous years'."
23. This summary was the nub of the officer's evidence in the email.
24. The Commissioner in her reasons for judgment accepted that the tree concerned shed flowers, fruits and leaves and that this debris "required maintenance (up to 3x per day)" of the pool.
25. In these circumstances, Ms Wilson was not denied the opportunity to put the matters in this evidence before the Commissioner. Ms Wilson was in fact able to do so through her written and oral submissions and the Commissioner considered the matters.
26. The third document was part of Pittwater 21 Development Control Plan 2014. This document was not admitted into evidence. The problem with this document is that Ms Wilson did not properly identify what was the document or seek formally to tender it. Ms Wilson referred to this document at the hearing in this way: "I have some material about the tree which I found during my research on the internet if you would like to have a look at them." In response to this statement by Ms Wilson, the Commissioner said: "I do not read material on the internet." Ms Wilson took the matter no further. At no time did Ms Wilson describe the document as being the Pittwater 21 Development Control Plan 2014 or explain what was the content of the document or the relevance of the document to any issue in the proceedings.
27. Ms Wilson submitted on this appeal that the document was relevant because it established that a Fiddlewood is an exempt tree under Pittwater 21 Development Control Plan 2014 and hence no consent was required to remove it. But this explanation of the content and the relevance of the document was not given to the Commissioner. The only description given by Ms Wilson to the Commissioner about the document was that it was "some material about the tree which I had found during my research on the internet". This was an inadequate description of the document.
28. Furthermore, Ms Wilson did not formally seek to tender the document. She merely asked whether the Commissioner "would like to have a look at them".
29. Finally, the document was not relevant to the question of whether the tree had caused damage to property, which was the issue being discussed at the time when Ms Wilson referred to the document. The Commissioner had asked: "What is the evidence of future damage?" Ms Wilson had first referred to the email of the officer of the National Herbarium about the tree dropping leaves and flowers around the same time each year. Ms Wilson then referred to having "some material about the tree which I found during my research on the internet". The Pittwater 21 Development Control Plan 2014 was not relevant to this question as to whether the tree was likely to cause future damage.
30. These circumstances are insufficient to draw the inference that Ms Wilson was denied procedural fairness by being prevented from tendering and relying on the Pittwater 21 Development Control Plan 2014.
31. For these reasons, Ms Wilson was not denied a fair hearing.

Conclusion and orders

1. Ms Wilson has not established that the Commissioner's decision was vitiated by an error on a question of law. The appeal should be dismissed.
2. Neither party sought an order for costs. Each party appeared in person on the appeal. It is therefore appropriate for each party to pay their own costs of the appeal.
3. The Court orders that: 1. The appeal is dismissed. 2. Each party is to pay their own costs of the appeal.

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: 01 May 2018