New South Wales Supreme Court CITATION : Owners Strata Plan No 13218 v Woollahra Municipal Council [2001] NSWSC 158 revised - 19/03/2001 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4674 of 2000 HEARING DATE(S) : 26 and 27 February 2001 JUDGMENT DATE : 15 March 2001 PARTIES : The Owners of Strata Plan No. 13218 (Plaintiffs) Woollahra Municipal Council (Defendant) JUDGMENT OF : Windeyer J at 1 COUNSEL : Mr P White (Plaintiffs) Mr M K Meek (Defendant) SOLICITORS : Mr P White (Plaintiffs) Phillips Fox (Defendant) CATCHWORDS : TORTS - Nuisance - tree on road owned and under care and control of Council as highway authority - damage to adjoining property caused by roots of tree - tree no planted by council - non-feasance rule - HIGHWAYS - negligence and nuisance - damage caused to property adjoining highway from roots of tree growing on verge - non-feasance rule LEGISLATION CITED : Roads Act 1993 s145, s146(1)(a)(d) Strata Titles (Freehold Development) Act 1973 Bretheron v Council of the Shire of Hornsby [1963] SR NSW 334 Brodie v Singleton Shire Council [1999] NSW CA 51 CASES CITED : Buckle v Bayswater Road Board (1936) 57 CLR 259 Donaldson v Municipal Council of Sydney (1924) 24 SR NSW 408 Ghantous v Hawkesbury City Council [1999] NSW CA 37 Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232 DECISION : See paragraph 15 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J THURSDAY 15 MARCH 2001 4274/00 THE OWNERS - STRATA PLAN NO. 13218 V WOOLLAHRA MUNICIPAL COUNCIL JUDGMENT Outline 1 The plaintiff strata corporation claims that the roots of a camphor laurel tree in Edgecliff Road have caused a retaining wall on the boundary of its property and the road to fail and be in danger of imminent collapse. It seeks an order restraining the Council from continuing the nuisance or a mandatory order for removal of the tree, plus damages. Facts 2 The owners - Strata Plan No. 13218 being a body corporate under the Strata Titles (Freehold Development) Act 1973 is the owner of the common property land in Strata Plan 13218. The property known as "Edgemount", number 291 Edgecliff Road, Woollahra, is erected on the land on the strata plan. I will call the plaintiff "the owners". Edgecliff Road is a public road within the municipal area of Woollahra Municipal Council (the Council). Pursuant to s145 of the Roads Act 1993 the road is vested in the Council in fee simple. The Council is responsible for the care, control and management of the road but is not the occupier: Roads Act s146(1)(a)(d). 3 A large camphor laurel tree grows on the eastern road verge adjacent to the property of the owners. There is a significant drop from the road to the owners' land, the road or footpath being retained by a stone wall built almost entirely on the owners' land. 4 Mr Hackett has lived in Unit 4 in "Edgemount" since 1978. The tree was a big tree when he purchased his unit. Cracks in the footpath and lifting of the footpath in the area near the tree have been obvious over the years. In the mid 1980s the Council repaved the footpath where it had been lifting. Mr Hackett had noticed some cracking in the wall quite early during his occupation. He said the position of the wall got worse during the 1990s. The top of the wall was bowing eastwards. The owners were told in 1997 that the wall had failed and should be propped up and props were put against it and still remain in position. In 1997 the owners and Council agreed that Coffey Partners International Pty Ltd, Geotechnical Engineers, would be retained to investigate the cause of the wall buckling and its failure and to report on it. A trench was excavated on the footpath area near the tree and was enlarged and deepened by Mr Lumsdaine, an associate of Coffey Partners. The investigation disclosed quite large roots from the tree running parallel to the boundary beneath the footpath area and towards a service pit wall, apparently placed in position about twenty years ago. The report from Coffey Partners expressed the clear opinion that the damage to the wall was caused as a result of pressure caused by the roots of the tree. Photographs in evidence clearly show a root system and some roots of considerable size. 5 Apparently the Council was not convinced by the report and arranged for a further report to be obtained from GHD-Longmac Pty Ltd. Mr Davies, the principal geotechnical engineer of that company conducted a further investigation; additional test pits were dug in the trench area for the purposes of this. He considered that the "wall distress" namely the tilting and bowing resulted from inadequate design and construction of the wall and that the tree root system had not been influential in this. 6 After all the inspections had taken place Council filled the trench. This was done with a cement and sand mixture in layers and the evidence establishes that by using this method Council ensured that little if any pressure would be exerted on the wall as a result of filling the trench. Thereafter the footpath area was also re-concreted. Since that date cracks have appeared at the edge of the re-concreted area of the footpath, and it is obvious that pressures are being exerted upon it. Pleadings 7 The owners' main claim is in nuisance. It is claimed first that the failure of the wall has been caused upon it by pressure from Edgecliff Road, the road verge and the footpath which are supported by it. No evidence adduced went to this. The real claim is that the roots of the camphor laurel tree have caused pressures on the wall which have caused it to fail. It is said that the Council caused or adopted and continued this nuisance. There was a third claim made in negligence which was less strongly argued. In essence the negligence claim was that since 1997 the Council had been aware of the failure of the wall and its dangerous condition, that it owed a duty of care to the owners to safeguard them against loss, damage or injury and that it had breached this duty of care. It is claimed that reconstruction of the wall to render it safe requires work to be carried out on Council land or at least under Council control and also requires approval of the Council as owner of the land. That is admitted and it is clear that work on the retaining wall would require some work on the adjacent footpath area. It is also claimed and admitted that removal of the camphor laurel tree would require the consent of the Council as owner of the road land and as the consent authority under the Woollahra Municipality Tree Preservation Order. The relief claimed by the owners is first an order that the Council demolish the retaining wall and reconstruct it to provide proper support for its land, being the road; secondly, that such relief as is necessary to abate the nuisance be given; and thirdly, damages. I should add here that although there was evidence adduced by the plaintiff as to the work required to reconstruct the wall, there was no evidence as to the cost, the owners, for some reason appearing to think that an order could or would be made that the defendant rebuild the wall. Thus there was no evidence to support the claim for damages, albeit that damage was a necessary component of the claim in negligence if it were to succeed and, of course, for the nuisance claim insofar as it was not limited to injunctive relief. Fortunately for the plaintiff, no point was made about this and it was agreed that if it were appropriate to award damages then the quantum of those damages should be determined in a separate hearing, presumably before me or before a Master. 8 By its defence, the Council denies that any damage to the wall has been caused by its activities or by the camphor laurel tree. Its main defence, however, is based on the highway immunity rule and the law relating to non-feasance by public authorities. The Council denies that it planted the tree or that it had anything to do with its planting and therefore denies that it had any duty to prevent the tree roots causing damage, or to repair, so as to give rise to a claim in nuisance or in negligence. Decision on cause of failure of wall 9 To a large extent this depends upon whether the opinion of Coffey Partners or that of GHD-Longmac is accepted. I have no hesitation in preferring the evidence of Mr Lumsdaine over that of Mr Davies. I should say that the evidence of Mr Lumsdaine was supported by evidence given by Mr Crane, albeit that the main purpose of his report was to prepare a design for the retaining wall. Nevertheless he came to the conclusion that the damage to the existing wall was caused by roots from the camphor laurel tree. In addition Dr. Redman who had inspected the site quite recently, and who had seen the photographs, but who had not been present when the trench was opened up, supported the Coffey findings. It is perfectly clear from the photographs tendered in evidence that tree roots of the camphor laurel of substantial size are present and run below the pavement parallel to the road, adjacent to the wall. I accept the evidence of Mr Lumsdaine that there was present in the trench, some sandstone particle type material and that the pressure of the tree roots as the roots grew would cause compaction of these pieces of hard material against each other, which would exert pressure on the wall. I also accept his evidence that the existence of the edge of the services pit would cause additional pressure to be exerted on the wall by the roots. The fact that the wall has failed between the camphor laurel tree and the pit, but has not failed further away gave further support to opinion of Mr Lumsdaine. The plans of Mr Davies, tended to give a false impression of the position of the main crack or failure in the wall, although I do not think intentionally. In cross-examination, he agreed the point of failure was as shown on the plan of Mr Lumsdaine in a place consistent with the location of what appears to be the largest root. The reasons given by Mr Davies for the collapse of the wall, namely inadequate design and construction, did not explain why the wall was standing without problem further along the roadway, neither was their any evidence of actual events or happenings to support his theory that pressures which might have been exerted by heavy vehicles on the pavement during construction of the service pit. There was no evidence that those vehicles had been present. The fact that even since the trench has been re-filled, cracking has recommenced at the edge of the reconstructed footpath, points to continuing problems with the tree from its roots and the likelihood that unless something is done, there would be continuing problems even if the wall is rebuilt, although perhaps not for some time. The fact that the wall is inadequately constructed in that its design and construction does not accord with modern engineering requirements is not really relevant. What is relevant is whether or not the tree and its roots have caused a nuisance which has caused the wall to fail. I find that to be the position. Public highway immunity rule 10 In Buckle v Bayswater Road Board (1936) 57 CLR 259 at 281, Dixon J said: It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway. Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinguished from a discretionary, duty of repair and to confer a correlative private right (Cf. City of Vancouver v. McPhalen (1911) 45 S.C.R. (Can.) 194). No civil liability arises from the incorporated character of the road authority, or from the fact that it is expressly made liable to be sued (Gibson v. Mayor of Preston 57 (1870) L.R. 5 Q.B. 218). Nor is its responsibility affected by statutory provisions vesting the soil of the highway in it, or placing the highway under its management and control (Cowley v. Newmarket Local Board (1892) A.C. 345; Municipal Council of Sydney v. Bourke (1895) A.C. 433). The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property. The body remains a public authority charged with an administrative responsibility. It must decide upon what road work it will expend the funds available for the purpose, what are the needs of the various streets and how it will meet them. A failure to act, to whatever it may be ascribed, cannot give a cause of action. No civil liability arises from an omission on its part to construct a road, to maintain a road which it has constructed, to repair a road which it has allowed to fall into disrepair, or to exercise any other power belonging to it as a highway authority. 11 The plaintiff has not established that the Council planted the tree. It seems more likely than not that it did not. The owners bear the onus on this. In terms of the decision in Buckle there is no original act of the road authority to found the complaint. That is because it did not plant the tree and because it has not been shown that its work on the pavement is in any way connected to the failure of the wall. 12 There is no doubt that a Council is responsible for nuisance caused by trees planted by Council in the road or on the footpath as is shown by cases such as Donaldson v Municipal Council of Sydney (1924) 24 SR NSW 408, Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232, and like cases. But it is not liable in respect of self-sown trees or trees planted before it became the controlling authority. In Bretheron v Council of the Shire of Hornsby [1963] SR NSW 334 which was a case where the plaintiff's vehicle was damaged by a falling tree growing in a public street in circumstances where the Council knew the tree was dangerous, the Full Court, after quoting the paragraph in Buckle I have set out, said at p337-38: One further matter should be noticed. During the argument much was said as to the liability of a highway authority for damage caused by artificial structures on a highway. This matter was adverted to by this Court in Grafton City Council v Riley Dodds (Aust.) Ltd [1956] SR NSW 53; and part of an article by Professor Sawer (12 A.L.J. 231) was approved, the effect of which was to state a highway authority is under a civil duty to road users "to take reasonable care to prevent the following structures from becoming a danger to them, to wit, artificial structures and all structures built by it upon or under the highway under statutory authority other than that relating to road building and maintenance". The Court stated that although the members thereof were in agreement with this synthesis, a question still remains as to whether the duty arises only if the structure is built by the authority, not if the structure is merely owned and maintained by the authority [1956] SR NSW at pp 60, 61. In the view we take, we do not find it necessary to express any views of our own on this matter. We think it clear that a self-sown tree growing on a highway cannot possibly be regarded as an artificial structure so as to require consideration of any refinements of the law on the subject. The respondent could succeed only if it was the active agent in causing an unnecessary danger on the highway. It is not sufficient that it has failed to exercise a power belonging to it as a highway authority. 13 The highway immunity rule has been upheld recently in Ghantous v Hawkesbury City Council [1999] NSW CA 37 and Brodie v Singleton Shire Council [1999] NSW CA 51. Ghantous is the subject of an appeal in the High Court of Australia, but as I understand it success in any appeal would involve a change in the law for Australia. In any event the hearing was expedited on the application of the plaintiff and a decision should be given on the law as it stands. 14 I am of the opinion that the immunity rule provides a complete defence to the claim. Whether or not it is fair that the highway immunity rule should be relied upon in this case where damage to a ratepayer's property is being caused by nuisance, for which the Council to which rates are paid would be liable in the absence of the immunity rule, is a matter for the Council to decide and to remedy if it considers that it ought to do so. It is not a responsibility which can be laid at its feet by the court in this action, even accepting that camphor laurel trees are not generally well regarded. It follows from this that there must be judgment for the defendant on the plaintiff's claim. 15 Orders 1. Judgment for the defendant. 2. Plaintiff to pay defendant's costs. 3. Exhibits may be returned. ********** Last Modified: 03/19/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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