District Court New South Wales Medium Neutral Citation: Donnelly v Hunter's Hill Council [2020] NSWDC 76 Hearing dates: 3-6 February 2020; 20 March 2020 Date of orders: 01 April 2020 Decision date: 01 April 2020 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) Judgment for the plaintiff in the sum of $35,470.33. (2) The parties are to bring in short minutes of order within 14 days to reflect the reasons of the court. (3) Liberty to the parties to approach the Associate to Dicker DCJ to relist the matter if necessary for further argument about the costs of the proceedings and the precise form of the injunctive order to be made. Catchwords: Torts – private nuisance – large camphor laurel tree located on the defendant council's land – alleged damage to the plaintiff's front fence, gate structures and front paving – whether elements of private nuisance have been established – extent of damages suffered – whether injunction should be ordered – form of injunctive relief appropriate Jurisdiction – jurisdiction of District Court to grant ancillary injunctive relief Legislation Cited: District Court Act 1973 (NSW) Local Government Act 1993 (NSW) Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Care Park Pty Ltd v Universal One Communication Pty Ltd [2019] NSWSC 1405 Fearn v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104 (Court of Appeal) Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 Hargrave v Goldman (1963) 110 CLR 40 Kraemers v Attorney-General for Tasmania [1966] Tas St Rep 15 Lawrence v Fen Tigers Ltd [2014] AC 822 Malliate v Sharpe [2001] NSWSC 1057 Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169 Michos v Council of the City of Botany Bay [2012] NSWSC 625 Morgan v Khyatt [1964] 1 WLR 475 Owners - Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Semple v Wilson [2018] NZHC 992 Torette House Pty Ltd v Berkman (1940) 62 CLR 637 Valherie v Strata Corp No 1841 [2004] SASC 170 Young v Wheeler (1987) Aust Torts Reports 80-126 Category: Principal judgment Parties: Peter Edward Donnelly (Plaintiff) Hunter's Hill Council (Defendant) Representation: Counsel: B C Kasep (Plaintiff) D Kelly (Defendant) Solicitors: Pikes & Verekers Lawyers (Plaintiff) Gillis Delaney Lawyers (Defendant) File Number(s): 2019/00078124 Judgment 1. In these proceedings, the plaintiff, Dr Peter Donnelly, brings a claim against the defendant, Hunter's Hill Council, in the tort of nuisance seeking damages and related injunctive relief. The proceedings relate to a large camphor laurel tree which is growing on the nature strip owned by the defendant council immediately in front of the plaintiff's house in Futuna Street, Hunters Hill in Sydney. The plaintiff asserts that the roots of the camphor laurel tree are pushing against the front sandstone fence and gate of his property, causing the fence and gate to be forced out of alignment and other roots have raised pavers in the front footpath to the plaintiff's house creating a trip hazard and substantially damaging as a whole the plaintiff's property. 2. The defendant accepts, despite its Defence, that the roots of the camphor laurel tree growing on the defendant's nature strip have caused the damage to the fence, gate and the pavers but submits that the tort of nuisance has not been established and that the damages sought are excessive and that the injunctive relief sought should not be granted. 3. A substantial number of experts' reports have been relied upon by the parties for the purposes of the proceedings. 4. The case is solely brought in private nuisance. Such a claim against a council in relation to a tree on its land is permitted under the Trees (Disputes Between Neighbours) Act 2006 (NSW): see s 4(2)(a). The pleadings 1. Proceedings were commenced by the plaintiff by a Statement of Claim filed on 5 March 2019. An Amended Statement of Claim was filed with leave on 6 February 2020. It is unnecessary having regard to a number of matters which were agreed, for the court to consider the Amended Statement of Claim in detail (except as to the form of any injunctive relief). The plaintiff asserts that at all material times roots of the camphor laurel tree in question have penetrated and encroached on the plaintiff's land, exerted pressure on the front fence and the entrance gate and/or its sandstone piers and have caused damage to the plaintiff's improvements on his property and a sewer pipe on the property. Particulars of the damage are given in paragraph 8 of the Amended Statement of Claim. It is also pleaded that as a result of the matters set out, the plaintiff has suffered loss and enjoyment of his land, inconvenience, stress and embarrassment for which damages are sought. It is particularised that the damage caused by the roots of the camphor laurel tree to the plaintiff's path within his property has caused a tripping hazard which requires the plaintiff, his family and visitors to exercise care and they remain at risk of tripping and falling. Also it is particularised that damage has been caused to the fence, the entrance gate and/or its sandstone piers. It is particularised that the roots of the camphor laurel tree have blocked the sewer pipe to the property causing problems with the plaintiff's toilet facilities within his property. The plaintiff pleads that he has requested the defendant on a number of occasions in the period from 2017 to 2018 to remove the camphor laurel tree but the defendant has refused to take action. 2. It is pleaded in paragraph 11 of the Amended Statement of Claim that the roots of the camphor laurel tree constitute and continue to constitute a nuisance that the defendant has continued or adopted by permitting the growth of the camphor laurel tree with notice of its effect and by neglecting and refusing to take any action to abate the nuisance. 3. Further and better particulars were sought of the original Statement of Claim by the solicitors for the council from the solicitors for the plaintiff by letter dated 2 April 2019 (Exhibit A page 10). In the further and better particulars provided dated 15 April 2019 (Exhibit A page 12), it is asserted that the plaintiff first became aware of the encroachment of roots of the camphor laurel tree and that the roots were exerting pressure on the fence, entrance gate and sandstone piers in November 2017 or shortly thereafter. The correspondence between the plaintiff and his wife, Mrs Donnelly, and the defendant council was provided with the further and better particulars. I will consider this correspondence in more detail further below. Photographs of the alleged damage to the plaintiff's front fence and property were also provided. 4. In its Defence filed 10 April 2019, the defendant denies the nuisance. It admits the plaintiff has requested the defendant to remove the camphor laurel tree but denies that the roots of the camphor laurel tree constitute a nuisance or that the plaintiff is entitled to the relief sought. Matters admitted on the pleadings 1. The defendant has admitted a number of matters in its Defence filed 10 April 2019 which was in response to the Statement of Claim. Those matters, in summary, are as follows: 1. The plaintiff is and was at all material times the registered proprietor of the land comprised in Certificate of Title Folio Identifier B/XXXX and known as X Futuna Street Hunters Hill; 2. The defendant is a council duly constituted under the Local Government Act 1993 (NSW) and is liable to be sued in the name of "Hunter's Hill Council"; 3. The defendant is and was at all material times the owner of a nature strip (or road reserve) adjacent to the plaintiff's land; 4. There were at all material times improvements on the plaintiff's land that consisted of a metal and sandstone fence along the front boundary of the plaintiff's land; 5. A metal pedestrian front entrance gate with sandstone piers adjoined the fence; 6. There was a path from the front entrance gate made of paving stones with mortar joints; 7. There is and at all material times was a sewer pipe on the plaintiff's land; 8. There is and was at all material times growing on the defendant's land a camphor laurel tree in close vicinity to the front boundary of the plaintiff's land; 9. The plaintiff has requested the defendant to remove the camphor laurel tree. Issues to be determined 1. On 3 February 2020, the plaintiff's solicitor provided to the court a schedule of issues indicating the matters admitted by the defendant in its Defence and the issues for determination in the proceedings. 2. The plaintiff submits that the issues for determination are as follows: 1. Whether the roots of the camphor laurel tree are an actionable nuisance that the council has continued. This issue requires a determination that the roots of the defendant's camphor laurel tree have invaded the plaintiff's land and create an actionable nuisance; 2. Whether the plaintiff is entitled to recover damages for the cost of repair of his fence, entrance gate and path, loss of enjoyment of his land, stress, inconvenience and embarrassment and out-of-pocket expenses incurred prior to the commencement of the proceedings; 3. If the roots of the camphor laurel tree are an actionable nuisance, whether there are any special circumstances which warrant the plaintiff Dr Donnelly being denied injunctive relief. It is accepted that injunctive relief is a discretionary remedy. It is asserted that Dr Donnelly is prima facie entitled to an injunction and he will be deprived of that only if special circumstances exist; and 4. If there are no special circumstances indicating that injunctive relief should not be granted, what is the form of the injunctive relief and whether it should amount merely to a negative restraint against the defendant from causing or permitting roots of the camphor laurel tree to cause a nuisance or be in mandatory terms requiring the council to remove the camphor laurel tree. It is noted that three alternative forms of injunctive relief are set out in the Amended Statement of Claim. Summary of the evidence 1. The plaintiff, Dr Donnelly, did not give oral evidence. It was stated from the bar table by counsel for Dr Donnelly that he has existing commitments to patients in his practice as a specialist endocrinologist which he felt duty-bound to maintain. Oral evidence was given by Mrs Donnelly, who, although not a registered proprietor of the property in Futuna Street in Hunters Hill, is the wife of Dr Donnelly, resided at the property and has factual knowledge of the issues and background to the dispute including the correspondence. There was also tendered a folder of documents which became Exhibit A in the proceedings. This included correspondence, photographs and expert evidence in a number of reports. Concurrent expert evidence was given also orally by two arborist experts retained to provide reports to each of the parties. Background factual matters 1. It is important to set out some background factual matters. Unless it is indicated to the contrary, these constitute my findings of fact in the matter based on the evidence before the court. 2. Hunters Hill is a suburb in Sydney which contains numerous buildings of heritage significance and has many large trees in it. On the plaintiff's property at X Futuna Street Hunters Hill is constructed an old house. It is asserted in the plaintiff's chronology (which was adopted by Mrs Donnelly as correct) that the house, which is of sandstone, was constructed in 1889 but there was no direct evidence before the court of the age of the house. However, the house in question has been constructed on the property for many decades and appears to be represented in a photograph which was in one of the experts' reports from about 1943. It is also asserted in experts' reports that the house at X Futuna Street is a heritage item. 3. On 1 April 1980, title to the house at X Futuna Street, Hunters Hill, was transferred from the previous registered proprietor to the plaintiff, Dr Donnelly. The transfer (Exhibit A page 108) suggests that the transfer was registered. It is not disputed that Dr Donnelly is the registered proprietor. 4. On 26 September 1989, the defendant council granted building approval to the plaintiff for the construction of a sandstone and wrought iron fence at X Futuna Street. There is nothing to indicate that the fence was not constructed soon after approval was given. Accordingly, the fence in question in the present case has been in place for about 30 years. This was confirmed by Mrs Donnelly. The plans for the fence (Exhibit A page 112) show that the fence was to be constructed in a Victorian heritage style for "Mr & Mrs P Donnely" [sic]. Photographs in evidence show that the fence was in due course constructed in the style as appears in the plans (Exhibit A page 142). 5. Between 25 November 2017 and the end of 2018, there was extensive correspondence between Dr and Mrs Donnelly and the defendant Council in relation to the camphor laurel tree and alleged damage which the tree roots were causing to the property of the plaintiff. It seems that earlier in November 2017, the plaintiff had work completed to his verandah at X Futuna Street by a carpenter, Mr McCartan. Mr McCartan apparently alerted Dr and Mrs Donnelly to the alleged damage to the front fence and gate (Exhibit A page 122). There is no evidence Dr Donnelly (or Mrs Donnelly) should have been aware of the alleged damage prior to being so alerted. It seems that Dr and Mrs Donnelly had a builder inspect the fence and he advised to contact the Council seeking the immediate removal of the camphor laurel tree due to alleged damage which had occurred which was described as "significant". On 25 November 2017, Dr and Mrs Donnelly wrote to the Council alerting them to the damage to the front fence including the sandstone base, and asking for the tree to be removed. 6. On 30 November 2017, there was a telephone conversation between one or both of Dr Donnelly and Mrs Donnelly and a Council officer Ms Tracy Ivin, the Parks and Landscape Coordinator, in which Ms Ivan apparently stated that the camphor laurel tree would be removed early in 2018 following notices to neighbours. This was confirmed in a letter to Ms Ivin by Dr and Mrs Donnelly dated 8 November 2017 (Exhibit A page 114). By letter dated 23 January 2018, Ms Ivin stated that the defendant was proposing to remove the camphor laurel tree located in front of X Futuna Street: "The tree has grown quite large for its location and has the potential to damage the sandstone fence located adjacent to it as it increases in girth. A surface root can be seen growing parallel to the fence." This letter was sent to apparently a number of residents in Woolwich (the peninsula part of the suburb of Hunters Hill). 7. By letter dated 30 January 2018, the defendant Council wrote to Dr and Mrs Donnelly stating that the Council had inspected the tree and found the tree to be in good health at the time of inspection. It was recorded that the Council had received many responses in relation to the request for the tree's removal with a number of residents wishing the tree to remain. An engineering report from Dr and Mrs Donnelly from a qualified structural engineer was requested (Exhibit A page 116). 8. An email was sent by Dr and Mrs Donnelly to Ms Ivin on 31 January 2018 forwarding photographs in relation to the alleged damaged caused with a reference to stone pavers in the footpath from the plaintiff's gate to his front door being raised (Exhibit A page 117). 9. From this time, the Council appeared to be of the view that having regard to the opposition from a number of residents, the tree should be maintained and that there were possibilities for the plaintiff to alter the fence to allow the spread of the roots of the camphor laurel tree without distorting the fence. 10. Dr and Mrs Donnelly requested a meeting on site with Council officers on 21 February 2018 (Exhibit A pages 119-120). It seems that by this time a report from an engineer had been provided to Council. The Council Group Manager agreed to an on-site meeting (Exhibit A page 121) by letter dated 22 February 2018. 11. In an email from Dr and Mrs Donnelly dated 9 March 2018, there was a reference to damage to the pavers of the plaintiff inside the front gate from the roots of the camphor laurel tree with elderly persons having tripped on the plaintiff's pavers and on the public footpath (Exhibit A page 123). It seems that a site meeting occurred in early March 2018 (Exhibit A page 124). Dr Donnelly pressed for the Council to urgently remove the camphor laurel tree and to pay for the restoration of the plaintiff's front fence and path due to the roots creating a tripping hazard (Exhibit A page 124). In due course, a letter was sent to the Mayor of Hunter's Hill Council by Dr Donnelly dated 15 April 2018 raising issues relating to the tree (Exhibit A pages 125-126). 12. By letter dated 23 April 2018 to Dr and Mrs Donnelly from the Council, the Council referred to investigations it had made "to ensure the best outcome for all involved". Receipt of a structural engineer's report from the plaintiff was noted. As a result of advice from an arborist and an engineer from the Council, the Council informed Dr and Mrs Donnelly that the tree would be retained with some action being taken to alleviate structural pressure on the front fence. This included alteration to the front fence to the plaintiff's property. The Council refused to pay for the cost of the engineer's report commissioned by the plaintiff at the request of the Council. 13. Dr Donnelly, by letter dated 26 April 2018, requested a copy of the reports referred to in the Council's 23 April 2018 letter (Exhibit A page 132) and these reports were in due course provided. 14. In a letter from Dr Donnelly dated 3 May 2018 to the Council, Dr Donnelly referred to the history of the matter including the review of Ms Ivin and noted: "The roots continue to advance in size on the pavement and the roots continue to further encroach on our property and push our Palisade fence including one pier both vertically and horizontally" (Exhibit A page 134). In due course, the plaintiff retained solicitors and wrote to the Council foreshadowing a claim in nuisance for the damage allegedly caused by the camphor laurel tree to the plaintiff's property and stating that it was clear that a landowner could be liable in nuisance for the encroachment of tree roots onto a neighbouring property which caused damage to that property. Relevant authorities were referred to in the solicitor's letter and various experts' reports were provided. The solicitors for the plaintiff sought an undertaking for the Council to cease the nuisance constituted by the invasion of the tree roots from the camphor laurel tree by the removal of the tree, the payment for repairs to the plaintiff's front fence and footpath and to pay reasonable legal and expert expenses involved in the making of the claim. Proceedings were foreshadowed if the Council did not take action. 15. By email dated 22 August 2018 from Mr Tony Hatgis from Claims Management Australasia who asserted to be acting on behalf of the Council in relation to the claim, Mr Hatgis stated: "Council concedes the Camphor Laurel tree has contributed to the damage sustained to the fence. Council does not concede the entire fence is damaged and therefore only a part of the fence requires repair". A contribution of 40% of the cost of the repairs as set out in the plaintiff's expert report was offered. 16. The plaintiff's solicitors by letter dated 20 September 2018 confirmed the plaintiff's claim and sought the undertaking for the removal of the tree with related expenses. A report was provided from a landscapist asserting that the tree's roots were damaging the fence. 17. By letter dated 30 November 2018 from the plaintiff's solicitors to Claims Management Australia, it was asserted that the problems caused by the tree within the plaintiff's property had become more serious. Again legal proceedings were threatened. This letter confirmed issues relating to the blockage of a sewer pipe. By email dated 10 December 2018, Mr Hatgis confirmed that the tree would not be removed, apparently because of 21 submissions from surrounding neighbours all expressing a desire for the tree to be retained (Exhibit A page 145). 18. As a result of the Council's refusal to take action as requested by the plaintiff through his solicitors, the plaintiff filed the Statement of Claim referred to above on 5 March 2019. 19. I will make further findings in relation to the matter later in these reasons in the light of the oral and expert evidence which I will set out below. 20. It is fair to say that the parties' positions have become somewhat entrenched. The plaintiff wants the tree removed. The defendant wants to retain the tree if at all possible, including with any necessary alterations to the existing fence, having regard, inter alia, to the representations it has received from a number of ratepayers and a desire to retain the tree due to its age and tree canopy. Oral evidence of Mrs Donnelly 1. Oral evidence was given by Mrs Judith Donnelly, the wife of the plaintiff Dr Donnelly. As stated above, Dr Donnelly was not called to give evidence in the proceedings. The defendant took no Jones v Dunkel point in relation to Dr Donnelly's failure to give oral evidence. 2. In her oral evidence, Mrs Donnelly confirmed as true and correct, a chronology which became Exhibit B in the proceedings. The chronology included a reference to a friend of Dr Donnelly and Mrs Donnelly, Mrs Carolyn Mulqueeney, tripping and falling on the path between the plaintiff's front gate and his house in April 2018. Mrs Mulqueeney was an elderly lady who passed away on 19 March 2019 aged 77 years. Mrs Donnelly said that Mrs Mulqueeney left the house walking towards the gate where there was a "very large root…from the camphor laurel tree" and she saw her tripping and falling but was fortunately caught by Dr Donnelly: T38.8; .28. Mrs Donnelly confirmed she saw Mrs Mulqueeney trip on the tree root. I accept this evidence. 3. In relation to the plan for the plaintiff's front fence, which is at page 112 of Exhibit A, Mrs Donnelly confirmed that this was the plan of the palisade fence which was built at the front of the house about 30 years ago. She gave evidence that the neighbours in No X Futuna Street had located a fence at a heritage house in Richmond and had built a similar fence at their property. Mrs Donnelly said that as Dr Donnelly's house was the same as the house at No X, they asked their neighbours whether they could copy the fence and they agreed. When asked about the cost of construction of the fence and the gate which was built 30 years ago, Mrs Donnelly said that the cost may have been around $100,000 but she was not sure: T39.21. She said that all the stone necessary for the fence had been carved on site: T39.22. 4. Mrs Donnelly confirmed that the letters from her and Dr Donnelly to the Council had been prepared by both Dr Donnelly and herself. In relation to the first letter dated 25 November 2017 (Exhibit A page 113), Mrs Donnelly confirmed that what prompted the letter was a comment from a builder who was repairing their verandah who indicated that the camphor laurel tree was pushing the fence over and recommended that they contact the Council to have the tree removed otherwise there would be a lot of damage caused in the future: T39.35. Later Mrs Donnelly confirmed that she had not been aware of the damage being caused by the tree until it was pointed out to her. When asked about the proposal of the Council in its letter dated 23 April 2018 for alterations to their fence at the front of their property Mrs Donnelly said the proposal was "totally unacceptable": T41.26. 5. Mrs Donnelly was asked about the incident on 3 November 2018 at her property referred to in the chronology. Mrs Donnelly said that the dog barked at about 3am and the next morning they got up and she noted that the small entry gate was wide open and a pair of dark glasses had been left on the pathway. She said that this raised security concerns to her, including that their dog could get out of the gate: T41.44. Mrs Donnelly said that the gate was a security gate and was between about 1.5m and possibly 2m in height: T42.14. She said it had a security lock on the gate which required a tongue on the gate to be inserted into the stone pier to lock the gate. She said that as the stone pier had been moved by the camphor laurel roots, the distance between the metal tongue on the gate and the stone pier had widened, making it more difficult to lock the gate. After some visits by a locksmith, the gate mechanism could not be extended any further and with a bit of force it could be pushed open. Since that time, a chain and padlock had been used by Dr and Mrs Donnelly to secure the gate. With that addition, the gate could not be pushed open. In relation to paragraph 26(a) of the joint arborist expert report, Mrs Donnelly said that the gate was always able to be closed but the problem was that the gate could be pushed open with some force with the security lock not working as the tongue of the gate was too far from the moved stone pier. Mrs Donnelly importantly said that prior to 25 November 2017 there had never been any issues in relation to the gate: T43.44. 6. In relation to the March 2019 entry in the chronology, Mrs Donnelly confirmed that her 27 year old son Peter had tripped on the path between the gate and the house on the root of the tree pushing up in the pavers. She said he was a 27 year old man and able-bodied: T44. I accept that evidence. 7. In cross-examination, Mrs Donnelly was somewhat vague about the height of the gate but said it was at a height that a young person could climb over and she had noted that parcels had been left at the front door of their property. 8. Mrs Donnelly agreed in cross-examination that until November 2017 she had no reason to raise any concerns with the Council in relation to the effect of the roots on her land: T45.41. She said she had not noticed the fence leaning over and it was the builder who had noticed it and brought it to their attention. She said that the lean was not bad ("gross") then: T45.23-.44. 9. Mrs Donnelly was asked whether 30 years ago when the fence was constructed, a number of roots had been severed from the camphor laurel for the fence to be built. She said she was not aware of that: T51.21. She agreed that the only solution for the problem as far as she was concerned was to remove the camphor laurel tree. When she was asked whether she was not prepared to consider any solution which would involve the retention of the tree even if the fence was repaired and reinstated, Mrs Donnelly said that the fence could not be put back in position properly due to the large root of the tree pushing the fence. 10. Overall, Mrs Donnelly impressed the court as making every effort to give accurate evidence and I accept her evidence. However, she appeared firmly to want the defendant Council to remove the camphor laurel tree. Photographic evidence 1. As stated above, before the court were a number of photographs of the tree in question and the front fence and paving stone path at the plaintiff's house. 2. Included in evidence were aerial photographs taken of the relevant area in 2009 and in about 1943 showing the large tree canopy of the tree in question (Exhibit A page 160). The tree is located on the nature strip in front of the plaintiff's house and between the house and the road (see Exhibit A page 157). The tree occupies a prominent position in front of the plaintiff's house and has a number of large branches growing from its central trunk (see Exhibit A page 161). It appears that the tree provides significant shade and visual amenity near the plaintiff's house and nearby houses (Exhibit A page 162). The photographs show roots apparently emanating from the tree near the base of the plaintiff's fence (Exhibit A pages 164 and 165). Photographs taken in mid-2019 show a large root pushing against the stone plinth of the plaintiff's fence, a paver inside the plaintiff's front gate being raised what appears to be a number of centimetres, part of a paver being cracked, and the base of the stone fence bowing near the root and there being a vertical rise in the fence. Roots from the tree can clearly be seen at the entrance gate to the plaintiff's property. The roots have also caused significant displacement to the sandstone kerbing in front of the plaintiff's house on the road as well as cracking in the street outside the plaintiff's house. In the light of the expert evidence which I will shortly set out in summary, it seems clear that the roots from the camphor laurel tree in question have caused the damage to the plaintiff's fence, gate and the pavers within the plaintiff's property as well as the damage to the council owned kerb and road (Exhibit A pages 77-82). Evidence relating to out-of-pocket expenses claimed 1. The plaintiff makes a claim in damages in nuisance for the costs of repairing the fence, entrance gate and path, pre-proceeding out-of-pocket expenses and a lump sum of $25,000 for loss of enjoyment of his land, stress and inconvenience and embarrassment (Exhibit A pages 83-84 and 103-104). In support of the claim relating to the repairs, the plaintiff has tendered a report from Mr B Delprado, Project Manager and Structural Consulting Engineer, dated 17 June 2019 (Exhibit A page 61) and a statement by Mr D Grujovic, Structural Landscaper, dated 24 June 2019 annexing a quotation for the repair of the fence and front path (Exhibit A pages 69-76). 2. Mr Delprado states in paragraph 1 of his report that he was instructed to provide a report regarding possible damage to the plaintiff's property by the tree and any remedial actions that would be appropriate. Mr Delprado conducted site inspections on 3 April 2019 and 16 June 2019. He sets out the damage to the plaintiff's front fence and path. Mr Delprado concluded in paragraphs 5 and 6 of his report that the damage to the fence and gate and the plaintiff's path was caused by roots from the camphor laurel tree. He referred to the conclusion of Mr Paroissien, arborist, dated 6 June 2019 that the tree, although mature, was still growing. In paragraph 10 of his report Mr Delprado states as follows: "From the observations of the nature of the damage to the fence it is clear that it has been adversely affected by the roots of the tree. From the arborist's conclusion that the tree is still growing the current damage to the fence would be exacerbated over time. This would be especially so as there would be more moisture available on the property side of the tree rather than the street side where there are predominantly sealed surfaces. Also it is not possible to install a root barrier next to the fence as this would disrupt many and significant roots within the Structural Root Zone." 1. Mr Delprado states that in his view the only way that ongoing damage to the fence could be avoided would be to remove the tree. He then notes that to rectify the existing damage to the fence it would be necessary to demolish the wrought steel fencing and the sandstone base. 2. In his attached report, Mr Grujovic provides a quotation to repair the front fence and front path and sets out the work required. His quotation was $28,765.33. 3. Mr Delprado and Mr Grujovic were not required for cross-examination. 4. There is some suggestion in the evidence that some damage to the fence may also be caused by other trees on the plaintiff's property. However, having regard to the photographic evidence, the report of Mr Delprado and the location of the bowing in the fence and the damage to the footpath compared to the location of the tree in question, I am satisfied that the damage referred to has been caused by the camphor laurel tree roots. This is also apparently the conclusion of the arborist experts: joint report paragraph 26 (cf paragraph 12h of the joint report where a view is expressed as to the cheese tree on the plaintiff's property but expertise on the issue is disavowed). In submissions, the defendant did not appear to take any issue that the camphor laurel tree had caused the damage complained of. 5. In paragraphs 19-20 of his submissions dated 20 March 2020, counsel for the defendant submits, relying on two authorities including Valherie v Strata Corp No 1841 [2004] SASC 170, that precisely the same work was required to undertake repairs before the Council was notified of the damage in 2017 as was required after it was notified, therefore the plaintiff was not able to establish any entitlement for repair costs even if successful in its claim. In other words, the Council did not continue the offending conduct causing more damage. 6. The plaintiff submits this is incorrect. It was submitted that the damage must be perceptible to the plaintiff. Mrs Donnelly should be accepted that the first they became aware of the damage was in November 2017; there is no evidence they should reasonably have been aware of any damage before this time; it was speculative as to what damage to the plaintiff's property had occurred prior to this time; the experts did not give definitive evidence about the period over which the tree root growth had occurred (T82.33-83.16) and no proper inference could be drawn against the plaintiff. 7. I accept the plaintiff's submissions on this point. First, there was no evidence that the damage could reasonably have been perceived by Dr Donnelly prior to being informed in November 2017. Secondly, the expert evidence at T82-83 does not permit a finding to be made as to when certain alleged prior growth in the roots occurred. There is no clear evidence as to the precise extent of any prior growth causing damage as at November 2017. Thirdly, the trips of Mrs Mulqueeney and the plaintiff's son on the root near the front path occurred in 2018 and 2019, after the defendant became aware of the problem, suggesting significant relevant growth after November 2017. Fourthly, Mr Paroissien found the fence had bowed further by 5mm between May 2018 and April 2019: Exhibit A page 46. There was thus further damage in the relevant period. Fifthly, the relevant damage to the gate appeared to occur after November 2017: T43.44. Sixthly, the size of the tree, its location and the damage to the kerb suggests the council must or should have been aware of the likely risks posed by the tree as at November 2017: see Robson v Leischke (2008) 72 NSWLR 98 at [77]. As a result, the finding urged by the defendant cannot in my view be made. The case is different having regard to the findings made by Perry J in Valherie: see [33]-[40]. I am satisfied that the plaintiff has established significant relevant damage. No obvious damage was reasonably clear to the plaintiff as at November 2017. 8. Accordingly, in the event that a nuisance is established by the plaintiff, I would allow the cost of repairs of $28,765.33. 9. An amount of $6,641.22 is claimed in relation to an engineering report sought by the Council from the plaintiff, an initial arborist report from Mr Paroissien dated 2 August 2018 and pre-proceeding legal costs. Both of the report expenses are established by the evidence (Exhibit A pages 85-86). I allow the claimed amounts in the event that nuisance is established of $825 for the report from Mr Ghosn and $880 for the report of Mr Paroissien dated 2 August 2018. 10. An amount of $4,936.22 is sought in relation to legal fees charged by the plaintiff's solicitors to advise and prepare correspondence with the Council. It appears from the evidence that the plaintiff's solicitors were only retained by him following the Council's decision not to remove the tree. There was also no suggestion by the Council of a willingness to insert a root barrier. In my view, the amount sought of $4,936.22 is an amount relating to costs incurred in relation to the proceedings and not an amount which falls within the concept of damages. I accept the defendant's oral submissions on this issue. 11. I will consider the claim for loss of enjoyment and inconvenience further below. The arborist expert evidence 1. There are a number of reports in evidence from arborist experts: 1. Report of Ms Anna Hopwood dated 7 February 2018 suggesting alterations to the fence to accommodate the roots of the tree and expressing the view that the pruning of larger roots of the tree cannot be undertaken to prevent further displacement of the wall; 2. Report of Mr Paroissien dated 6 June 2019; 3. Report of Mr Hare dated 23 April 2019; 4. Report of Mr Hare dated 12 September 2019; and 5. Joint report filed 21 January 2020 of Mr Paroissien and Mr Hare. 1. In his first report dated 23 April 2019, Mr Hare, who is clearly an expert arborist, expresses the following opinions: 1. The relevant tree is a mature camphor laurel tree of high landscape significance with valuable visual amenity; 2. The tree was of good vigour and structural condition, likely to be between 90 and 100 years old, with a medium useful life expectancy of 15 to 40 years; 3. The damage to the plaintiff's property from his inspection and the photographs appeared "relatively minor at this stage" and did not in his opinion warrant the removal of such a significant tree; 4. Root pruning was unlikely to destabilise the tree but would impose negative impacts upon tree health and may reduce the lifespan of the tree. There were potential solutions available which would not require the tree to be removed; 5. Engineering advice should be sought on the most appropriate course of action. The tree should be retained and protected throughout any rectification works. 1. Mr Hare noted that all his observations were made from the ground only and no subsurface root testing or soil testing had been completed by him. He noted that while the tree's overall vigour was considered as good, considering its age, there were some signs of minor reduction in vigour possibly related to the constriction of the root system of the northern side of the tree from the conflict with the plaintiff's fence. He noted that having regard to the tree's significant age, its growth rate would have slowed significantly meaning that any further damage to the plaintiff's structure was likely to be reduced "and may take many years to eventuate if at all". This should be contrasted with later evidence on this issue. He accepted that removal of the tree would stop further damage from occurring to the fence structure (page 11) but was of the view that action to remove the tree was excessive considering the loss of visual amenity and the "relatively minor damage to the structure at this stage". He was of the view that the fence was within the structural root zone of the tree. While accepting that camphor laurel trees were known to be relatively tolerant of root damage, he was of the view that removal of such a large root near the fence would "undoubtedly impose negative impacts upon tree health", although he was of the view that pruning the roots would be unlikely to destabilise the tree, although that was not the most suitable course of action. He was of the view that the preferred option would be to carry out modification upon the fence to protect the tree and the fence. 2. In his report, Mr Paroissien, also clearly an arborist expert, noted that he inspected the tree on 31 May 2018. Like Mr Hare, Mr Paroissien did not undertake any woody tissue testing or subterranean root investigation. Mr Paroissien confirmed that the tree in question was a camphor laurel tree of significant height and canopy size. He was of the view that at the time of inspection the tree was of good health but of reduced and fair vigour and exhibited moderate to high levels of dieback in the upper crown areas. He referred to fair to poor branch attachment for the tree. 3. Mr Paroissien in paragraph 14 of his report was of the view that the damage to the sandstone kerb and gutter, road surface, the entrance gate to the plaintiff's property, fence and pathway was due to roots from the camphor laurel tree. In paragraph 15 of his report, Mr Paroissien expressed the opinion that given the size and proximity of the roots to the damaged areas, the roots from the camphor laurel tree are the primary cause of the damage. Having regard to the tree's declining vigour, he estimated that the tree had a short useful life expectancy of 5 to 15 years (paragraph 16). He agreed that in the structural root zone, disturbance of any sort of the tree should be avoided if possible. While expressing the opinion that pruning of the roots would likely result in adverse impact to the tree's stability in the short term and health in the long term as it was within the structural root zone of the tree, he disagreed with the opinion that the tree was in the latter stages of growth and that further damage from expansion of the tree's root system was unlikely. He was of the view that further root growth was likely (paragraph 31) and it would more likely occur in the front garden of the plaintiff's property due to its more favourable soil environment. 4. While accepting that camphor laurel trees were known to be relatively tolerant of root damage, Mr Paroissien was of the view that removal of a large root near the fence would undoubtedly impose negative impacts upon the tree's health. He did not agree that there was sufficient evidence to support the statement that pruning the tree would be unlikely to destabilise the tree. In the light of the various matters he considered, Mr Paroissien was of the view that the removal of the root near the wall, and possibly other roots, may impact the tree's stability particularly during adverse environmental conditions such as winds or following rain. Having regard to his view as to the tree's life expectancy when taking into account the tree's declining vigour and the damage caused, he recommended that the tree be removed and a suitable replacement tree be planted. 5. Mr Paroissien further inspected the tree on 3 April 2019 when a further displacement of the fence by an additional 5mm was noted. He was of the view that this supported his opinion that further root growth from the tree was anticipated. He also noted that one exposed root from the camphor laurel tree was observed in the front garden of the plaintiff's property including in the pathway (Exhibit A page 56). Extensive photos were taken by Mr Paroissien in support of his opinion. 6. In his second report dated 12 September 2019, Mr Hare expressed similar views in his first report. He was of the view that root pruning of the visible surface roots was unlikely to destabilise the tree but further investigation would be required to assess whether there are other roots which would need to be pruned that may make root pruning unsuitable. He said the root pruning would impose negative impacts upon the health of the tree and may reduce the lifespan of the tree. He referred to potential engineering solutions available to rebuild the wall which would not require the tree to be removed and was of the view that these had not been sufficiently explored. He recommended that the tree should be retained and alternative approaches considered. He did not appear to dispute that the roots from the camphor laurel tree had caused the damage to the plaintiff's fence and the path flag stones although he was of the view that the damage was relatively minor (paragraphs 29-30). 7. In paragraph 33 of his report he referred to the other smaller woody roots near the wall and expressed the opinion that some of the damage being attributed to the camphor laurel tree "may in fact be related to other trees on the property" (emphasis added). He said the alleged tree root ingress to the plaintiff's sewer system could not be fully assessed as there was no evidence of it and detailed investigation would be required (paragraphs 31-32). 8. Mr Paroissien and Mr Hare prepared a joint expert report dated 21 January 2020 in which there was substantial agreement between them. Curriculum vitae from both arborist experts were attached to the joint report clearly establishing their expertise in this area. Also included were photographs showing the tree and exposed roots near the fence and the entrance. 9. Mr Hare and Mr Paroissien prepared their joint report as an outcome of a joint conference held between them on site on 14 January 2020 and subsequent phone calls and email correspondence. 10. In relation to the tree, both experts agreed that the tree was a mature camphor laurel tree, around 90 to 100 years old, of good health but reduced vigour and of high landscape significance in the streetscape and immediate surrounds due to its canopy dimensions. It is noted that there were two other significant mature trees in the vicinity and that there had been previous substantial pruning of the camphor laurel tree. It was accepted that if the tree was removed the loss of the tree would be partially offset by the adjacent mature trees. 11. There was disagreement in relation to the tree's life expectancy with Mr Hare considering the tree had a medium estimated life expectancy of 15 to 40 years, while Mr Paroissien considered the tree had a short useful life expectancy of 5 to 15 years. Mr Hare's life expectancy estimate did not take into account the location of the tree and damage to adjacent structures. Mr Paroissien's estimate took this into account including its proximity and damage to adjacent infrastructure. He stated that in his experience trees in situations of conflict with adjacent infrastructure generally had a shorter useful life expectancy due to a combination of root damage impacts on the tree's health and pressure for removal to alleviate the need for ongoing repair works. It is noted that if repairs were undertaken to the plaintiff's property that it would have some negative effect upon the tree. Mr Hare was also of this view. 12. In relation to the issue of the damage caused by the tree, both experts agreed that the roots from the tree had caused displacement to public infrastructure including the sandstone block kerb, road surface and public footpath. Importantly, both experts also agreed that damage had been caused by the roots to the plaintiff's property including lifting and tilting of the sandstone gate pier, the metal support rail from the gate pier to the gate, the sandstone block base course of the fence opposite the tree which had been displaced and bowed, the upper horizontal metal railing of the fence had been pushed offset by 55mm, the entire fence structure had been lifted opposite the tree and the internal sandstone pathway leading from the front gate to the dwelling had been lifted/displaced. As to the last matter, the experts agreed that the roots from the tree were at least partially responsible but other factors "could be contributing to the displacement". The experts could not express an opinion that it was likely that blockage of the sewer pipeline adjacent to the dwelling resulted from roots from the camphor laurel tree as opposed to other plants and trees. Crucially, there were no areas of disagreement between the experts in respect to damage caused or likely to be caused by the tree. 13. The experts then considered options to resolve the issue. In relation to a "do nothing" option, both experts stated that although the current displacement of the fence was largely aesthetic at this stage, attention would be required at some stage and that repairs to the upright gate pier for security and to the footpath were important. 14. Both experts agreed in relation to the option of undertaking repairs and retaining the tree, that further investigations would be required to determine if a redesign of the fence was physically possible to enable the tree's retention. It was agreed that the area of the fence opposite the tree was the area of most concern in relation to impediments to undertaking repairs without damage to roots or removal of roots. The experts disagreed with the option of repairs. Mr Hare was of the view that there were options for rebuilding the wall in its current location without requiring the removal of the tree whereas Mr Paroissien was concerned that repairs would result in removal of or damage to the existing exposed roots and other roots which may impact upon the tree's vigour and structural support. He also importantly noted that there was the potential for future impacts on the new wall from existing roots that may increase in girth and potentially damage the replacement structure. 15. In relation to the option of undertaking repairs and removing the tree, the experts agreed that further investigations would be required to determine if a redesign that enabled retention of the tree was physically possible and such investigations could not be satisfactorily undertaken until the existing structure had been carefully removed. They agreed that the results of investigations may identify that the removal of the tree would be required to reconstruct the fence due to the extent of root loss that would occur during works. Mr Hare considered it unlikely that there would be a need to remove the tree while Mr Paroissien considered it a real possibility based on the known location of the roots exposed at the surface and the likelihood of further roots under the surface. Mr Hare referred to the camphor laurel is being "very tolerant of root damage" whereas Mr Paroissien referred to the potential damage to the roots with repairs which would have an impact on the tree's vigour and potential structural support. Oral evidence of the arborist experts 1. The two arborist experts, Mr Hare and Mr Paroissien, gave oral conclave expert evidence. 2. Counsel for the plaintiff asked questions of Mr Hare in relation to the disagreement between Mr Hare and Mr Paroissien about the life expectancy of the camphor laurel tree. Mr Hare agreed that he had used the concept of a medium estimated life expectancy which he estimated as 15 to 40 years whereas Mr Paroissien used the concept of a useful life expectancy which he estimated as being 5 to 15 years. Mr Hare accepted that the critical difference between them was that Mr Paroissien's assessment took into account the location of the tree and damage to adjacent structures. Mr Hare described his assessment as a "purely tree-based assessment" (Exhibit A page 209 paragraph 19(b)). Mr Hare accepted as set out in paragraph 21(c) of the joint report, that Mr Paroissien took into account the proximity of the tree and damage to adjacent infrastructure including the footpath, roadway and fence and the likelihood of root damage arising from ongoing repairs to infrastructure. Mr Hare said that the different methodology used by him was the one he preferred but did not accept that it ignored the location of the tree and damage to infrastructure. Mr Hare was of the view that damage to adjacent structures was not really a relevant consideration particularly in the light of the apparent vigour of the tree. 3. Mr Paroissien expressed the view that the context of the tree was important in estimating its life expectancy. The location of the tree meant there was likely to be repairs to the infrastructure which was also likely to restrict its growth. 4. When Mr Hare was asked by counsel for the plaintiff whether if the useful life expectancy test as used by Mr Paroissien was used by him, he would need to reconsider his opinions, he stated that there had been clear damage to the structure of the fence. If this was taken into account, he said that this may affect his views slightly but he said the damage on his assessment was minor and there was no great hazard or threat as far as he could determine to the stability of the wall. In relation to paragraphs 18 to 19 to his report dated 12 September 2019, Mr Hare confirmed that there were two surface roots of the tree which were "clearly impacting the sandstone portion of the fence" with the greatest influence being the 25cm diameter root. After further cross-examination, Mr Hare accepted that the roots had caused damage to the fence and had the potential to cause further damage to the fence in the future over time. How significant that damage would be was unknown and he expressed the view as an arborist that he was not qualified to give an opinion as he was not sure of the growth beneath the surface and under the fence. Mr Paroissien agreed with these views. Mr Paroissien said that if nothing was done, the roots would continue to cause damage to the fence. He also expressed the view that if nothing was done, the damage to the gate would continue to be caused by the roots which he described as "inevitable" having regard to the damage which had already occurred to the gate. Mr Paroissien had similar views in relation to the path of the plaintiff's house. If nothing was done about the roots damage would continue to be caused to the path. Similar views were also expressed by Mr Hare in relation to the gate and the path. 5. Mr Hare was asked about paragraph 21 of his 12 September 2019 report where he said that the removal of the large root near the fence of a tree of its age "would undoubtedly impose negative impacts upon tree health." Mr Hare indicated that large roots are relevant to the health and vigour of a tree as they assist in the uptake of water and nutrients. However, his view was only formed on what could be seen. He accepted that in relation to the pressure on the fence that something needed to be done to deal with it. However, he said it was highly unlikely that the removal of the relevant roots would make the tree unstable although more information was needed. He accepted that the Council could sever and remove the relevant roots but it may have a negative impact on the health of the tree even though camphor laurel trees were very tolerant to root removal. He said that the health of the tree could be protected with clearing vegetation around the tree, allowing for irrigation and providing nutrients to the tree. 6. Mr Paroissien said that the two roots referred to by Mr Hare were part of the structural support zone of the tree and in the absence of knowing more information about the roots he would not recommend severing them. 7. Mr Hare was asked about a root barrier as an option and he said that he could not assess whether it was a viable option as he did not know what was under the fence and more information was needed. Mr Paroissien noted that a root barrier had not been contemplated so far but these were significant roots which were likely to be underneath the fence which was why he recommended removal. Having regard for the potential to affect the tree, he would be reluctant to recommend a root barrier and certainly would not recommend it without further investigation. Mr Paroissien said that he believed that the roots were under the fence and the creation of a root barrier was not a viable option. 8. Mr Hare was asked questions by counsel for the plaintiff in relation to his proposal for a redesign of the fence (Exhibit A page 211 paragraph 45). Mr Hare accepted that this involved a redesign of the fence with a similar structure while accommodating the roots of the tree. He said this would potentially involve a redesign below ground but replacing the above ground fence as it is. When he was asked about the effect of a redesign on the surface roots of the tree he said that the presence of roots was unknown until the wall was removed. When investigations were made there was a possibility that surface roots of the tree could be removed. In relation to the options in paragraph 26 of his 12 September 2019 report for alterations to the fence, Mr Hare agreed that it depended on the view of the structural engineer. When Mr Hare was taken to Mr Paroissien's view in the joint report at paragraph 50 that the growth of the tree could potentially damage the replacement structure, he said in his view there would first need to be an investigation of the below ground root position and a determination whether there may be a means to work around the roots to allow them to expand as part of the rebuilding process. When Mr Hare was pressed that if the tree roots remained there could continue to be caused damage to the structure on the plaintiff's property, he disagreed with this and said that they first needed to see what was there and to determine if there were ways of making sure that would not happen. On this issue Mr Paroissien said that it may not be possible to change the fence to a pier structure. That was why he used the term carefully in paragraph 50 of the joint report that with a replacement structure the existing roots "may" increase in girth and "potentially" damage the replacement structure. He believed the roots would continue to grow in size having regard to the increase in the deviation of the fence in the time he examined it from 50 to 55mm. 9. Counsel for the plaintiff put to Mr Hare that while further investigations could occur the only way of delivering certainty and eliminating future potential damage was the removal of the tree now. Mr Paroissien agreed that if certainty was required that was the position. Mr Hare also agreed with this but said it was reasonable not to remove the tree whilst further investigations were undertaken. He accepted that it was possible after further investigations were undertaken that the view could be formed that the tree must be removed. Mr Paroissien also agreed with this. 10. The experts were then asked questions by counsel for the defendant. Mr Paroissien and Mr Hare agreed that the life expectancy of the tree was one based on the visual inspection of the tree against set criteria: T72.21-.31. They also agreed that the various options available involved "educated guess work" until further investigations were undertaken: T72.33-.42. The two experts stated that these investigations involved removal of the affected fence and the involvement of an arborist and an engineer. They both agreed that an air spade should be used to vacuum out the soil around the roots. They both were of the opinion that the information required could be ascertained with the use of an air spade as opposed to a high pressure water hose which could damage the roots to the tree. They agreed that it was desirable for an arborist to be there when the excavation took place following the removal of the fence. This would allow a visual inspection and an assessment by the arborist including a mapping of the root system: T74. An engineer could identify whether and if so what roots needed to be removed for the replacement of the structure. Both experts agreed that a pier and lintel base to the fence could allow the roots of the tree to pass between the piers. Mr Paroissien agreed that until further investigations took place the desirable solution could not be determined. Mr Paroissien said that they were in a "grey area" in relation to the roots. They knew that there were roots pushing against the fence and in the plaintiff's property and he believed that the roots were likely to be underneath the fence. However, he agreed that he could not say that it was impossible to reinstate the fence in the same position without making further investigations. Mr Hare said that there were two other large trees on the property and Mr Paroissien accepted that there were two large trees in other locations on the property: T76. 11. It was put to the experts that having regard to the 5mm additional deflection in the fence over a period of about ten months in 2018-19, the camphor laurel tree roots had continued to grow. Mr Paroissien accepted that. He said he could not say that the tree would continue to grow until its death as other factors came into play. He noted that the tree was a mature tree, surrounded by paths, a road and a fence, there had been dieback in the upper crown of the tree and it had reduced vigour. He only said it was possible that roots of the tree had been severed when the fence was installed. He said the roots of the tree had continued to expand despite there being dieback in the growth. He accepted that root growth of the tree would slow at the end of its life. Importantly, Mr Paroissien gave evidence that the additional wood on the tree was a result of the tree attempting to expand further where it was up against the fence. Mr Hare agreed with this: T80.1-.21. Both experts agree that the possibility of additional damage to the structures was subject to further growth of the roots of the tree: T80.23-.33. 12. Questions were asked in relation to the structural root zone of the tree being the area in the immediate vicinity of the tree trunk. Mr Hare agreed that this was the area and Mr Paroissien identified Australian Standard AS4970 which identified the tree protection zone. Mr Hare was of the view that while recommendations were in the Australian Standards this was subject to expert arborist consideration. Mr Paroissien agreed with this in principle but said that the Standard had been prepared after careful consideration and he would be wary to go against it. 13. Both experts confirmed that they would need to see the root system underground of the tree near and under the fence to determine what could be done. In relation to whether investigations needed to be undertaken before a decision was made to remove the tree, Mr Hare said that he was "definitely" of that view and Mr Paroissien said that it was certainly better to have all the facts as it was easier to make a decision: T83.33-.43. 14. The experts were asked whether the fact of a 5mm increase in deviation of the fence over a several month period indicated that the earlier 50mm displacement had occurred over several years. Mr Paroissien said that the 50mm displacement had occurred before the later displacement but he was unable to say when it occurred as it depended on the growth and seasons. Mr Hare said he agreed with Mr Paroissien but said that the growth causing the 50mm displacement had occurred logically over number of years: T82.33-83.16. 15. Both experts agreed that the camphor laurel tree was of high visual landscape significance and value in the streetscape with Mr Paroissien saying that was the case because of its canopy: T83. 16. The court was impressed with both experts and formed the view that the differences between them on many issues were largely ones of emphasis. Submissions of the parties 1. The parties relied on written and oral submissions in the matter. 2. The plaintiff, in general summary, submitted as follows: 1. The roots of the camphor laurel tree growing on the nature strip owned by the defendant adjacent to the plaintiff's land have caused damage to the plaintiff's fence, entrance gate and path from the entrance gate. The roots constitute an actionable nuisance. The defendant Council has failed to take any steps to eliminate the continuing nuisance caused by the roots of the camphor laurel tree. The plaintiff is entitled to damages and injunctive relief as a result of the nuisance; 2. The tort of private nuisance aims to protect an occupier's interest in the beneficial use of his or her land. An owner of real property is entitled to the full use and enjoyment of his or her land free from a nuisance emanating from his or her neighbour. In order to constitute a private nuisance, there must be an invasion of the interest of the plaintiff in the use and enjoyment of the land. A harmful interference must be shown which may consist of physical damage to the land or to structures standing on it. Roots of a tree may constitute an actionable nuisance under binding authority; 3. It is no answer to that submission that a party should put up with physical damage caused as the result of roots of a tree because of the location and vegetation in a location or suburb. If an owner of land grows or permits the growth on his or her land in the natural way of trees whose roots penetrate into an adjoining property and cause and continue to cause damage to buildings or other constructions on the property, the owner of land is liable for the tort of nuisance to the owner of the adjoining property. While trees are an unavoidable and desirable part of the landscape in suburbs, it cannot be submitted that the inevitable encroachment of their boughs or roots causing physical damage cannot constitute a nuisance; 4. Actionable nuisance is complete upon proof of physical damage which is more than trivial and nothing more need be shown by the plaintiff; 5. The plaintiff maintains that there is no doubt on the evidence that roots of the camphor laurel tree are the cause of physical damage to the fence, entrance gate and path from the entrance gate. That is established by the expert evidence in the joint report from the arborist experts as well as the evidence in the report of Mr Delprado, the engineer; 6. For over a year, Dr and Mrs Donnelly corresponded with the defendant Council and advised it of damage being caused by the roots of the camphor laurel tree. As stated, this is supported by the expert evidence of the arborist Mr Hare and Mr Paroissien: see their joint expert report dated 21 January 2020 to the effect that roots of the camphor laurel tree are the cause of physical damage; 7. Mr Delprado who referred to the damage caused by the roots in his report was not required for cross examination; 8. An actionable nuisance is made out. Although nuisance is not ordinarily actionable without damage, damage must be material or substantial in the sense that it is not trifling or speculative. Proof of actual physical damage to property that is material or substantial rather than merely trivial is normally sufficient without more to establish that the interference is unreasonable and amounts to an actionable nuisance: Kraemers v Attorney-General for Tasmania [1966] Tas St Rep 15 at 122-123. Unreasonable conduct of the defendant in relation to the plaintiff does not have to be established. As stated, where physical damage to property is alleged, the location and character of the neighbourhood is not a matter to be taken into consideration (or at least is not significant): Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 at 691-692; Young v Wheeler (1997) Aust Torts Reports 80–126 at 68,969; Malliate v Sharpe [2001] NSWSC 1057 at [40]. 9. Although the plaintiff has pleaded that he only became aware of the nuisance in November 2017, the Council is liable as it has continued the nuisance caused by the roots of the camphor laurel tree. A person continues a nuisance if with knowledge or presumed knowledge of its existence he or she fails to take any reasonable means to bring it to an end though with ample time to do so. In Torette House Pty Ltd v Berkman (1940) 62 CLR 637 at 657 Dixon J approved the following principle: "A person is liable for a nuisance constituted by the state of his property … 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."; 10. The Council defendant has continued the nuisance caused by the roots of the camphor laurel tree by being aware of the nuisance and taking no action from November 2017 to remedy the nuisance. Also the Council knew, or ought to have known of the nuisance, by the damage caused to the footpath, road and kerb immediately outside the plaintiff's property. The size and species of the tree and its location close to the plaintiff's property is also relevant; 11. The plaintiff is entitled to the damages sought being the costs of reinstatement and restoration, the out of pocket expenses and the claimed amount by Dr Donnelly for loss of enjoyment of his land, stress, inconvenience and embarrassment; 12. The plaintiff is entitled to injunctive relief as sought. Where a plaintiff has established that the defendant's activities constitute a nuisance, the prima facie remedy to which the plaintiff is entitled in addition to damages is an injunction to restrain the defendant from committing such nuisance in the future: Lawrence v Fen Tigers Ltd [2014] AC 822 at 851 [101] and Michos v Council of the City of Botany Bay [2012] NSWSC 625 at [78]. Damages are not an adequate remedy here. Whilst injunctive relief is discretionary, the plaintiff is prima facie entitled to it and such relief is justified in relation to the nuisance caused by the roots of the camphor laurel tree. It would be unjust to leave the plaintiff with the nuisance and to recover further money for more damage in the future. Damages are not an adequate remedy for the nuisance because of the risk that damage to structures will likely continually recur which is established on the evidence of the arborists or should be inferred and the fact that the fence has continued to bow between the two inspections of Mr Paroissien: Malliate v Sharpe, above, at [49]. Injunctive relief should be granted in the form of paragraphs 1, 2 or 2A-2C of the Amended Statement of Claim with the relief in paragraphs 1 or 2 being preferred; 13. The proposed amendment to paragraph 2B(c) of the relief in the Amended Statement of Claim put forward by the defendant should not be contemplated by the court as it will not constitute final relief, will give rise to further dispute and hearing and ignores the significant physical trespass by the roots which has occurred. 1. The defendant submitted, in summary, as follows: 1. There was no nuisance established as the interference caused by the camphor laurel roots was trivial and aesthetic only in relation to the fence and not unreasonable and substantial: written submissions paragraphs 8-13 relying inter alia on Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169. The principles of give and take, and live and let live in a community were important; 2. The plaintiff chose to erect the fence next to the tree which was old and had been there for some substantial period of time; 3. Much of the deviation of the fence due to the roots should be inferred as having occurred prior to November 2017. That is consistent with the oral evidence of Mr Hare: see submissions paragraphs 19-20. The plaintiff can relevantly establish no loss; 4. The plaintiff cannot establish that the defendant created the nuisance or adopted it. The defendant has proposed reasonable alternative outcomes in an attempt to save the tree which have been rejected by the plaintiff: submissions paragraphs 14-17; 5. No amount should be allowed for inconvenience and distress. There was no evidence from Dr Donnelly on this issue; 6. The court should not grant the injunctive relief as sought or should adopt a modified form of paragraphs 2A-2C of the Amended Statement of Claim such that the examination and investigation occur first without the mandatory removal of the tree or significant roots. Any order made should be amended as sought. 1. The plaintiff submitted in reply, in summary: 1. There was no evidence the plaintiff should reasonably have been aware of the damage before it was pointed out in November 2017; 2. However, the defendant should have been aware of the likelihood of damage to the plaintiff's property due to the damage to the defendant's kerb and road and footpath; 3. The extent of the damage to the plaintiff's property prior to November 2017 due to the roots was speculative. No safe inference could be drawn on the expert evidence. However, substantial relevant damage is established from November 2017; 4. Injunctive relief should be granted as the plaintiff is likely to be exposed to further damage in the future including to any repaired fence unless appropriate steps are taken to prevent the roots continuing to damage the plaintiff's property; 5. The proposed amendment of the defendant to paragraph 2B(c) of the relief should not be granted as it would not result in final relief and could well give rise to further hearings and disputes. Findings in relation to the arborist evidence 1. There was a substantial degree of agreement between the experts in their joint report filed 21 January 2020 and in their oral conclave evidence. I make the following findings in relation to the expert evidence: 1. The tree in question is a mature camphor laurel specimen about 90 to 100 years old; 2. The tree is located on the defendant Council's land near the plaintiff's front palisade fence; 3. The tree is of high landscape significance in the streetscape and immediate surrounds due substantially to its canopy dimensions and shade; 4. The tree is of good health but of reduced vigour with some dieback in the crown area of the tree; 5. The tree has multiple trunks from around 1m above ground and multiple branches from 3m above ground following severe past reduction pruning causing the canopy of the tree to spread in its current form; 6. The tree appears stable with no visual evidence of instability and no branch failures are predicted in the short to medium term; 7. The tree has minor crown conflict with another tree. There is an indication that significant structural roots of the tree have been pruned back in the past; 8. If the tree was to be removed the loss of the tree would be partially offset by adjacent large trees. There is some suggestion from Mr Hare in his oral evidence and in paragraph 14(h) of the joint report that the nearby cheese tree on the plaintiff's property was contributing to the misalignment of the boundary fence. The experts both say that they are not qualified to make a proper assessment and the evidence does not establish in my view that other trees are contributing to the misalignment of the fence or claimed damage. This was not pressed by the defendant in final submissions; 9. In relation to the question of the tree's life expectancy, I prefer the evidence of Mr Paroissien to that of Mr Hare. In my view, contrary to the defendant's oral submissions, I am able to make a finding on this issue. Mr Paroissien's opinion takes into account the contextual location of the tree and damage caused to adjacent structures, including the effect on the tree if structures are repaired. I do not accept that it is appropriate as Mr Hare does to have a simple tree based assessment. I accept Mr Paroissien's view that the path and roadway and the fence must be taken into account in determining life expectancy. Also the fact that work will be undertaken to repair and replace the fence and the path and roadway areas in the future are matters which must be taken into account. Taking into account this finding, the view of both experts and the apparent vigorous nature of the tree at present, I find that the life expectancy of the tree is likely to be about 15 years, being the higher period of Mr Paroissien's estimate. This is of relevance to the injunction issue; 10. I accept and find that the damage caused by the camphor laurel tree is that set out in paragraphs 24 to 26 of the joint report. In relation to the plaintiff's property I accept that the damage from the tree roots includes: lifting and tilting of the sandstone gate pier, deformation of the metal support rail from the gate pier to the gate due to the lifting of the pier, the sandstone block base course of the fence opposite the tree has been displaced and bowed, the upper horizontal metal railing of the fence has been pushed out of alignment, the entire fence structure has been lifted opposite the tree and the internal sandstone pathway leading from the front gate to the dwelling has been lifted and displaced in places. The experts agree that the roots from the camphor laurel tree are at least partially responsible having regard to the exposed root in the pathway and I accept this evidence. While they point to other factors which could be contributing to the displacement such as slumping of individual sandstone paving there was no clear evidence that this was a factor and I am satisfied that it is not established on the evidence. I also find that there is not satisfactory evidence that the roots from the camphor laurel have led to damage or blockage of the sewer pipe line of the plaintiff's property; 11. I have made findings above in relation to damages issues. In my view, and I find, the plaintiff has acted promptly since being alerted to the potential for damage. I accept the evidence that damage has occurred since November 2017: the trips occurred in 2018 and 2019, respectively. The roots have created a real hazard on the footpath; there was no issue with the gate prior to November 2017 (T43.44); the fence has bowed more (Exhibit A page 46). As the plaintiff was not aware of any problem prior to November 2017 it is likely that any damage that existed was not reasonably perceptible. No evidence was relied on to the contrary; 12. Having regard to the opinions of the two arborist experts, the cost of removing, replacing and repairing the fence, gate and path, the evidence of Mr Delprado in his report and the comments of Mr McCartan in his 27 February 2018 letter (Exhibit A page 122), I find that the physical damage caused by the camphor laurel tree roots as found is reasonably significant. While I accept the evidence of the experts and particularly Mr Hare that there is no indication of any danger of the fence collapsing, I also accept the evidence that Mrs Mulqueeney and the plaintiff's son have tripped on the raised path stones and that this is a real hazard to visitors and inhabitants of the plaintiff's property. In my view the damage is more than trivial and goes beyond the concept of give and take in a leafy neighbourhood; 13. Having regard to the oral evidence of the arborist experts and the opinions given as to the options, I find that the certain way of removing further damage from the tree roots is to remove the camphor laurel tree. However, I also find having regard to the evidence of the experts (including the oral evidence) that at present it cannot be found that this is necessary and that further investigations need to be undertaken including with the advice of an arborist and a structural engineer and builder when the fence is removed and the root system of the camphor laurel near and under the fence including below the ground is exposed. While I accept that the current displacement of the fence does not currently impede its function as a fence, the roots have caused damage to the fence including the gate. It is unclear whether there could be alterations to the fence below the surface not affecting the appearance of the fence which could accommodate the roots of the tree and prevent its removal without there being further damage to the fence; 14. I find that if no steps are taken in relation to the tree and its roots that any replacement similar structure of the fence will likely be damaged in the future through further growth of the tree roots albeit that the growth may lessen as the tree continues to age and has a continued loss of vigour. This is based on the evidence of Mr Paroissien on this issue which I prefer, the further deviation of the fence from 2018 to 2019, the apparent vigour of the tree, the roots near the fence and the tree's location to the fence. See also the evidence at T80.1-.21; 15. I find that the results of any investigations may be that removal of the tree would be required to reconstruct the fence and to prevent further damage but this is unclear until those investigations are undertaken. The experts have different views as to whether there will be a need to remove the tree. In my view, no conclusion can properly be drawn on this issue without further investigations. There are risks that further root pruning or damage may well affect the vigour and growth and life of the tree. Legal principles applicable 1. The plaintiff's claim is in private nuisance. 2. In Morgan v Khyatt [1964] 1 WLR 475, Lord Evershed on behalf of the Privy Council on an appeal from New Zealand stated as follows: "It is sufficient therefore for present purposes to say that it has in their Lordships opinion long been established as a general proposition that an owner of land may make any natural use of it; but also (and by way of qualification of the general rule) that if an owner of land by growing or permitting the growth on his land in the natural way of trees whose roots penetrate into adjoining property and thereby cause and continue to cause damage to buildings upon that property, he is liable for the tort of nuisance to the owner of that adjoining property." (at 477). 1. A view has also been expressed in a number of cases that if tree roots are the cause of physical damage, it does not matter whether they have penetrated adjoining land or not: Owners of Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117 per Powell JA at [16] and [22] cf Young CJ at [52]-[53]. 2. It seems that to be actionable the interference must be both unreasonable and substantial: Hargrave v Goldman (1963) 110 CLR 40 at 51-53, 61-62. 3. In Malliate v Sharpe [2001] NSWSC 1057, Campbell J stated the principles applicable as follows in paragraphs [39]-[44]: "[39] The tort of private nuisance aims to protect an occupier's interest in the beneficial use of his or her land, and of his other interests in land. It occurs when activities of the defendant interfere, to a greater extent than is reasonable, with the plaintiff's use of his or her land. It is well established that the defendant can commit the tort of private nuisance by having, on his or her land, a tree the roots of which invade land of the plaintiff. [40] In Young v Wheeler (1987) Aust Torts Reports ¶80-126 at 68,969 Wood J said: "In Davey v Harrow Corp (1958) 1 QB 60, it was held that an owner of land on which a tree grows is liable, if its roots encroach on adjoining land and cause damage, to an action of damages for nuisance at the suit of the owner of the adjoining land. That such an encroachment is not regarded as a trespass but as a nuisance is settled law: Pickering v Rudd (1915) 4 CAMP 219; Earl of Lonsdale v Nelson (1823) 2 B & C 302; Lemmon v Webb (1894) 3 Ch 1; Middleton v Humphries (1913) 47 Ir LT 160, and Butler v Standard Telephones (1940) 1 KB 399 In order to constitute a private nuisance, there must be an invasion of the interest of the plaintiff in the use and enjoyment of land. A harmful interference must be shown which may consist of physical damage to the land or to structures standing on it, or a disturbance of the comfort, health or convenience of its occupier: Fleming, The Law of Torts 6th ed (1983) at p385. It has been said that in order to merit legal intervention, the annoyance or discomfort must be substantial and unreasonable (Fleming at p356). While this is no doubt true, I reject the defendant's submission that, as a consequence, intrusions by boughs or roots of trees standing on the border of lands in the leafy suburbs of Sydney, such as Roseville, should not be regarded as constituting a nuisance. While trees are an inescapable and desirable part of the landscape in suburbia, it is by now far too late to assert that the inevitable encroachment of their boughs or roots cannot constitute a nuisance." [41] In Morgan v Khyatt [1964] 1 WLR 475 at 477 Lord Evershed said: "...it has...long been established as a general proposition that an owner of land may make any natural use of it; but also (and by way of qualification of the general rule) that if an owner of land grows or permits the growth on his land in the natural way of trees whose roots penetrate into adjoining property and thereby cause and continue to cause damage to buildings upon that property, he is liable for the tort of nuisance to the owner of that adjoining property." [42] In the situation where a defendant has not itself created the situation which results in the plaintiff sustaining damage, liability in nuisance is established only if the defendant has adopted or continues the nuisance with knowledge of its effect. Kaye J explained this concept in City of Richmond v Scantelbury [1991] 2 VR 38, at 40-41, as follows: "There is a line of authority preceding and including the Privy Council's decision in Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258 whereby it is now settled law that an occupier is liable for the continuance of a nuisance provided that he has knowledge of its existence or he ought to have had knowledge of it. In Montana v Fasson, at p261-p262, Lord Ackner, delivering the judgment of the Board, described the following passage from the speech of Lord Wright in Sedleigh-Denfield v O'Callaghan [1940] AC 880, at p904 as the locus classicus (of the law on this subject): 'Though the rule has not been laid down by this House, it has I think been rightly established in the Court of Appeal that an occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise. But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience. The responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if, with knowledge, he leaves the nuisance on his land. The same is true if the nuisance was such that with ordinary care in the management of his property he should have realised the risk of its existence.' In Sedleigh-Denfield v O'Callaghan, Viscount Maugham, at p894, expressed the principle that "an occupier of land 'continues' a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so". Lord Romer, at p913, said of the matter then before the House: 'The respondents did not themselves create this potential nuisance, and cannot therefore be held liable for its creation. But an occupier of land upon which a nuisance has been created by another person is liable if he 'continues' the nuisance. What acts or omissions on his part are sufficient to constitute continuance of the nuisance is a question that probably does not admit of a comprehensive answer. But I agree with my noble and learned friend upon the woolsack, whose opinion I have had the privilege of reading, that the occupier 'continues' a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so.' " [43] Further, before there is liability in nuisance, it must be reasonably foreseeable that there is a risk of damage if the use of the defendants' land which amounts to the nuisance is continued. Kaye J in City of Richmond v Scantelbury [1991] 2 VR 38 at 45-46, collects the authorities as follows: "Knowledge of the nuisance, whether actual or presumed, does not by itself render an occupier liable for damage created by it. Arising out of such knowledge, there is a duty borne by the occupier to take steps to eliminate the risk of damage from the nuisance which is reasonably foreseeable. That the doctrine of foreseeability of the risk of damage extends to nuisance was recognised by the Privy Council in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617. In the judgment of the Board delivered by Lord Reid, at p639, it was said: "It is quite true that negligence is not an essential element in nuisance. Nuisance is a term used to cover a wide variety of tortious acts or omissions and in many negligence in the narrow sense is not essential. An occupier may incur liability for the emission of noxious fumes or noise although he has used the utmost care in building and using his premises. The amount of fumes or noise which he can lawfully emit is a question of degree and he or his advisers may have miscalculated what can be justified. Or he may deliberately obstruct the highway adjoining his premises to a greater degree than is permissible, hoping that no one will object. On the other hand the emission of fumes or noise or the obstruction of the adjoining highway may often be the result of pure negligence on his part: there are many cases (eg Dollman v Hillman [1941] 1 All ER 355, CA) were precisely the same facts will establish liability both in nuisance and in negligence. And although negligence may not be necessary, fault of some kind is almost always necessary and fault generally involves foreseeability, eg in cases like Sedleigh-Denfield v O'Callaghan [1940] AC 880; 56 TLR 887; [1940] 3 All ER 349 the fault is in failing to abate the nuisance of the existence of which the defendant is or ought to be aware as likely to cause damage to his neighbour." Although the Board stated that in the class of case then under review, namely, public nuisance, foreseeability was an essential element in determining liability, the doctrine of foreseeability applies equally to private nuisance. Thus, Megaw LJ in Leakey v National Trust, [[1980] QB 485] at p522 in the passage which I have quoted concerning private nuisance, spoke of "the duty arising from a nuisance which is not brought about by human agency" not arising "unless and until the defendant has or ought to have had knowledge of the existence of the defect and the danger thereby created". Implicit in his Lordship's words "the danger thereby created" is the application of the doctrine of foreseeability to private nuisance." [44] In those cases where it is alleged that a defendant has adopted or continued a nuisance, there may well be some overlap between the facts which show that the nuisance has been adopted or continued with the requisite kind of knowledge, and the facts that show that the risk of damage from continuance of the nuisance was foreseeable, but they are still conceptually separate inquiries." 1. It is noted that Campbell J approved in paragraph 40 of Malliate the comment of Wood J in Young v Wheeler (1987) Aust Torts Reports 80-126 at 68,969 that while the annoyance or discomfort from the nuisance must be substantial and unreasonable the submission that the intrusion by boughs or roots of trees standing on the border of lands in leafy suburbs of Sydney should not be regarded as constituting a nuisance should be rejected in the light of authority. 2. This is applicable in the case of any argument to a similar effect in relation to the suburbs of Hunters Hill or Woolwich. 3. Malliate was a case which specifically considered roots encroaching on neighbouring land. 4. In Robson v Leischke (2008) 72 NSWLR 98, Preston CJ in a judgment which comprehensively considered the tort of nuisance in relation to trees, set out at [60]-[66] the law relating to actionable nuisance involving tree roots including cases where it had been accepted that encroaching roots damaging retaining walls, lawns and structures and causing undermining/cracking/subsidence of buildings, constituted an actionable nuisance. 5. In Michos v Council of the City of Botany Bay [2012] NSWSC 625 Slattery J stated the principles as follows relating to roots constituting a nuisance at paragraphs [57]-[60]: "57. The law of nuisance may be concisely stated. Nuisance is the unreasonable interference with the use and enjoyment of a person's land: Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40 at 62 per Windeyer J; Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 at [295] per Bergin CJ in Eq. Whether there has been "unreasonable interference" is an objective test - whether a person of ordinary habits and sensibilities in the plaintiff's position and circumstance would regard the interference with the enjoyment of the land as unreasonable; some "reasonable give and take" is involved; and another way of stating the test is whether there has been "an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions" of the community: Jordan CJ in Don Brass Foundry Pty Ltd v Stead [1948] NSW St Rp 47; (1948) 48 SR (NSW) 482 at 486 and 487. 58. In determining whether there has been unreasonable interference, a court will take into account the locality in which the interference occurs: Sturges v Bridgman (1879) 11 Ch D 852 (CA) at 865 per Thesiger LJ; the duration, time of day, frequency and extent of the interference: Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683; and, any malice on the part of the person causing the interference: Christie v Davey [1893] 1 Ch 316. 59. Consistently with the notion of give and take, a neighbour may tolerate an interference with the enjoyment of the land for various reasons; but when the interference has reached the stage that the neighbour no longer feels obliged or willing to tolerate it, the neighbour will be entitled to claim that there is an unreasonable interference with the enjoyment of the land, notwithstanding earlier tolerance; but the neighbour will not be entitled to claim damages for the interference that was tolerated prior to the complaint being made: Orr v Ford [1989] HCA 4; (1989) 167 CLR 316 at 341 per Deane J. 60. Although there may be some exceptions, fault of some kind is now usually necessary for liability in nuisance: Sutherland Shire Council v Becker [2006] NSWCA 344 at [118] - [119] per Bryson JA; Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 at [296] per Bergin CJ in Eq." 1. Michos considered a case where fig tree roots had penetrated the plaintiff's property. A claim in nuisance was held to be established and injunctive relief was granted. 2. Unreasonable interference which is substantial can be established by physical damage to the plaintiff's property which is more than trivial through encroaching roots: Kraemers, above at 122; Malliate at [40]. Material inference with the plaintiff's amenity of the land is sufficient provided the defendant's use is not a reasonable use: Fearn v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104 at [39]. Consideration Whether the tort of nuisance has been established 1. In my view, the elements of the tort of private nuisance have been established by the plaintiff in the current proceedings. 2. First, it is well established that encroaching roots from a neighbour's tree may constitute actionable nuisance: Morgan v Khyatt, above, at 477; Malliate v Sharpe, above, at [39]; Young v Wheeler, above, at 68,969; Michos v Council of the City of Botany Bay, above, at [57]–[61]. 3. The balance of the authorities establish that where nuisance is caused by encroaching tree roots causing physical damage, the location of the tree in a leafy garden suburb is not decisive: Young v Wheeler, above at 68,969; Malliate v Sharpe, above, at [40], Halsey v Esso Petroleum Co Ltd, above at 691–692 (where the nuisance is not a nuisance by smell or noise). It is possible that where the issue is whether there has been unreasonable interference, a court will take into account the locality in which the interference occurs but this appeared not to be the case where the encroachment causes actual physical damage which is more than trivial: Michos, above, at [58]; Kraemers, above at 122. 4. The evidence of the engineer Mr Delprado and the evidence in the joint report of the arborist experts at paragraph 26 establish in my view that the damage to the property of the plaintiff Dr Donnelly as a result of the camphor laurel tree roots is much more than trivial or minor. Whilst the experts say in paragraph 35 of their joint report that in relation to the fence it is "more of an aesthetic issue at this stage", the damage to the gate appears to be more than trivial and the rising of the flagstones on the path have created a tripping hazard which is potentially dangerous. I also take into account the evidence of Mr Paroissien that the front fence has continued to bow and has been lifted. Accordingly, in my view damage has been established which is material and substantial in the sense that it is not minor or trifling: Semple v Wilson [2018] NZHC 992 at [48]-[51] and [98]; Michos, above, at [57], Malliate v Sharpe, above, at [39] and following. In my opinion, the encroachment by the roots of the camphor laurel tree which is established on the expert evidence of the arborists and on the photographic evidence when seen in the light of the location of the tree compared to the fence and the plaintiff's front path, amounts to an interference of the plaintiff's private rights to a greater extent than is reasonable and constitutes an invasion of the private interests of the plaintiff in the use and enjoyment of the land through physical damage to the fence, gate and the pavers. This in my view goes beyond the usual give and take required in any community with substantial public trees: see Michos at [59] and Marsh v Baxter, above, at [245]. 5. The defendant gave approval for the plaintiff to construct the fence in 1989. Accordingly, it must have been aware that the fence would be constructed and that it was obliged to ensure that the tree on its property did not constitute a private nuisance in relation to the fence. It appears on the evidence that no actionable nuisance had probably occurred in relation to the roots of the tree until about November 2017 when the damage to the fence was brought to the attention of the plaintiff and his wife. The evidence does not establish to my satisfaction how long damage had occurred prior to that time, if at all, and what that damage was: see T82-83 especially at T82.46 and T83.14. Nevertheless, Mr Paroissien's report establishes that the roots of the tree have continued to push and alter the line of the fence. The damage to the gate post and the pier and the pavers also seems to have become much worse and apparent on Mrs Donnelly's evidence. The trips occurred in 2018 and 2019 on the entrance path to the house. 6. In my view, the defendant Council has continued the nuisance with knowledge or presumed knowledge of its effect: Malliate v Sharpe, above, at [42]; Robson v Leischke, above at [77]. The Council must be taken to have been aware of the damage caused by the tree roots to the nearby road and kerb and footpath on the evidence. That is part of its property. The roots of the tree are immediately next to the plaintiff's fence. It was at all times a very large tree. Also, the plaintiff brought the problem to the attention of the defendant in November 2017 and the defendant has not taken any steps to resolve the problem by preventing the encroachment of the roots and the continuing nuisance. Accordingly, in my view the defendant as an occupier of the land continued the nuisance with knowledge or presumed knowledge by failing to take reasonable steps to bring the nuisance to an end with more than ample time to do so from November 2017. The damage which has occurred to the plaintiff's property and the bowing of the fence in my view establish that it is reasonably foreseeable that there is a real risk of further significant damage to the plaintiff's property if the nuisance is allowed to continue: Malliate at [43]. This case is similar to Malliate and Michos where a nuisance was held to have been established because of encroaching tree roots causing damage. I accept and find on the evidence that the damage to the plaintiff's fence, gate and path has become significantly and relevantly worse since November 2017. 7. Accordingly, I am satisfied that the roots of the camphor laurel tree situated on the land of the defendant have constituted a nuisance as that term is used in the tort of private nuisance. The defendant has committed the tort of private nuisance by permitting the roots of the camphor laurel tree to continue to encroach on the plaintiff's land causing physical damage to structures on it which is more than trifling or trivial but which is material and significant and unreasonable. Damages 1. In the light of Mr Delprado's report, Mr Grujovic's statement and attached report and the joint report of the arborists, in my view the first head of damages being the cost of repairing the fence, gate and path in the sum of $28,765.33 has been established. See my reasons for this conclusion above. 2. In relation to the out of pocket expenses, as stated above, I find that the damages relating to the $825 report of Mr Ghosn and the $880 report of Mr Paroissien are established. In my view, the fees relating to the plaintiff's solicitor do not fall within a head of damages but are properly to be seen as costs in the proceedings for the reasons which I have set out above. I accept the defendant's submissions on this point. 3. The plaintiff seeks $25,000 for damages for Dr Donnelly's loss of enjoyment of his land, stress and inconvenience and embarrassment. The defendant submits that nothing should be awarded. It seems established on the authorities that the court may order the payment of damages for loss of enjoyment caused by a nuisance: Michos and the cases cited by Slattery J at paragraphs [150]-[156]. In my view, the amount sought by the plaintiff in the present case of $25,000 is excessive and not established. The plaintiff only became aware of the nuisance in November 2017. That is a period only of a little more than two years. The damage to the fence is primarily aesthetic although it has bowed. There is currently no threat of it falling over. The plaintiff and his guests have still been able to use the front gate and the path. The gate has caused some worry and potential security issues. Having regard to the approach taken by Slattery J in Michos and the authorities his Honour refers to and the limited interference with the plaintiff's loss of enjoyment (taking into account in particular the correspondence), I would award the amount of $5,000. Injunctive relief 1. The various forms of injunctive relief sought by the plaintiff are set out in the Amended Statement of Claim leave to file which was granted on 6 February 2020. In my view, the evidence, particularly the joint report of the arborists and their oral conclave evidence, does not justify injunctive relief requiring the defendant forthwith or within a stated short period to remove and destroy the camphor laurel tree. Both experts said they would want or prefer more information before they would recommend this. 2. In coming to this view, I take into account my finding as to the tree's likely life expectancy. 3. I accept the authorities referred to above that where a plaintiff has established that the defendant's activities constitute a private nuisance, prima facie the remedy to which the plaintiff is entitled is an injunction to restrain the defendant from committing such nuisance in the future, particularly where the nuisance is more than modest: Lawrence v Fen Tigers Ltd, above, at 851; Malliate, above at [49]. That is because there damages are not an adequate remedy. However, the facts of each case must be considered. I particularly note paragraph 80 of Michos. Even if the damage is repaired in the present case, as in Malliate, as long as the roots remain pushing against the fence and encroaching under the path, there is a real risk that the damage to the structures will continually recur. Whilst the tree is of an advanced stage, I accept the evidence of Mr Paroissien that it appears likely that it will continue to grow but at a slower speed. In my view, for these reasons damages alone are not an adequate remedy in the present case. See also the discussion in Michos at [78]-[81]. In my view, there is no suggestion that an injunction will cause hardship to the defendant. There has also not been delay or acquiescence on the part of the plaintiff in responding to the nuisance. They have constantly pressed for action to be taken on becoming aware of the damage. In my opinion, the nuisance is not minor or trivial. I take into account the discussion in relation to injunctions in both Malliate and Michos. See in particular Malliate at [55]. The expert evidence satisfies me that there is some prospect of the tree being saved following further investigation. Both Mr Hare and Mr Paroissien recommended that further investigation be undertaken to ascertain the facts although both also accepted that removal of the tree would prevent the nuisance as a matter of certainty. 4. The defendant seeks, if, contrary to its submissions, a nuisance is found and the court believes injunctive relief is required, an amendment to paragraph 2B(c) of the relief in the Amended Statement of Claim in the following form: "The arborist, if necessary, in consultation with the engineer, is to prepare a plan, identifying any modifications of the palisade fence and entrance gate as originally constructed and located, to enable retention of the camphor laurel tree." It says that this reasonably contemplates the need for potentially minor above ground alterations to the plaintiff's fence. 5. The plaintiff opposes this: he says the defendant's proposal places retention of the camphor laurel tree above the plaintiff's rights, it avoids finality and it will likely cause further extensive dispute. 6. In my view, there is force in the plaintiff's submissions. First, in my opinion it is important to obtain some finality and certainty in the litigation. Secondly, it is likely the suggested change will give rise to further dispute as to the need for changes to the fence and in what degree. Thirdly, it is relevant that I have found that the tree has only about a 15 year life expectancy. It is not as if a tree with a 50 year likely life may be removed. Fourthly, the proposal does seem to place the tree and its roots above the plaintiff's private rights to seek to avoid further unreasonable physical damage to his property. Fifthly, while community assets and amenity are important, the plaintiff's property rights must be balanced in the relief granted. 7. In my view, paragraphs 2A-2C in the injunctive relief sought in the Amended Statement of Claim are appropriate subject to the following changes. Paragraphs 1 and 2 do not, in my view, take into account the possibility of saving the tree following further investigations. The size of the tree, its prominence and its canopy support this conclusion. The term TRAQ in paragraph 2B(b) should be defined in paragraph 2B(b). In 2C(c) the wording should be changed to avoid double compensation to: "(c) costs of reconstructing the palisade fence, entrance gate and the path being costs in excess of the amount for damages awarded for these items." Having regard to the amount of work to be undertaken and the current COVID-19 public health issues, the period in paragraph 2A should in my view be changed to four months from three months and the right to apply to extend the four month period should be incorporated. 8. The parties should bring in short minutes of order within 14 days to reflect these reasons. 9. In my view, the court has power to grant an injunction in these terms where there is an action for common law damages in tort before the court: ss 44 and 46 of the District Court Act 1973 (NSW) and Care Park Pty Ltd v Universal One Communication Pty Ltd [2009] NSWSC 1405 at [46]. Having regard to the wide terms of s 46(1), I do not believe the heading to the section which refers to "ancillary equitable relief" would prevent an injunction as ancillary in common law proceedings for damages. An injunction is in general terms equitable in nature although common law courts in New South Wales have for some considerable time been able to grant injunctive relief. 10. I thank counsel for their submissions which were helpful and comprehensive. 11. As the plaintiff has been substantially successful, my preliminary view is that the plaintiff is entitled to his costs of the proceedings subject to further submissions and evidence. Determination 1. For the above reasons, I make the following orders: 1. Judgment for the plaintiff in the sum of $35,470.33. 2. The parties are to bring in short minutes of order within 14 days to reflect the reasons of the court. 3. Liberty to the parties to approach the Associate to Dicker DCJ to relist the matter if necessary for further argument about the costs of the proceedings and the precise form of the injunctive order to be made. ********** Amendments 07 April 2020 - 1. Paragraph 100: deleted "Campbell JA"; inserted "Campbell J". 2. Paragraph 117: second last line, deleted "loss and enjoyment"; inserted "loss of enjoyment". 3. Paragraph 126: deleted "(46)(1); inserted "46(1)". 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: 07 April 2020