ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CAMPBELL v BLACKSHAW & EVANS (Appeal) [2017] ACAT 64

AA 54/2016

Catchwords: APPEAL – civil dispute – nuisance – trees – whether the Tribunal erred in finding that the trees on the appellants property caused a nuisance from tree roots blocking the drain and from overhanging branches – whether the Tribunal erred in finding that the removal of the trees was the only practicable option to remedy nuisance – discretionary decision – no absolute proof that the trees caused the drain blockage – adequacy of written reasons – appeal procedure – refusal to adjourn hearing of appeal

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 5, 28, 60, 82Legislation Act 2001 s 179

Cases cited: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621Blackshaw & Evans v Campbell [2016] ACAT 80Blackshaw & Evans v Campbell (No. 2) [2016] ACAT 108B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219Collector of Customs v Pozzolanic (1993) 43 FCR 280Collins v Urban [2014] NSWCATAP17Gary Nigel Roberts v Westpac Banking Corporation [2016] ACTCA 68Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207House v R (1936) 55 CLR 499Mansour v Dangar [2017] ACAT 49Mifsud v Campbell (1991) 21 NSWLR 725NSW Police Force v Newby [2009] NSWWCCPD 75Rathchime Pty Ltd v Willat [2017] NSWCATAP 87Robson v Leischke [2008] NSWLEC 152Warren v Coombes (1979) 142 CLR 531

Tribunal: Presidential Member M-T Daniel

Date of Orders: 30 August 2017Date of Reasons for Decision: 30 August 2017

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 54/2016

BETWEEN:

MARYANNE CAMPBELLAppellant

AND:

ADAM BLACKSHAWROBYN EVANS

Respondents

TRIBUNAL: Presidential Member M-T Daniel

DATE: 30 August 2017

ORDER

The Tribunal orders that:

1. The appeal is dismissed.

………………………………..Presidential Member M-T Daniel

REASONS FOR DECISION

Introduction

1. On 16 September 2016 the ACT Civil and Administrative Tribunal (Tribunal)

after considering a nuisance application (the nuisance application) made

orders requiring Ms Campbell (the appellant) to remove nine evergreen trees

growing on her property (the nuisance orders).1 The trees are located on or

adjacent to the boundary between the appellant’s property and the property of

Mr Blackshaw and Ms Evans (the respondents). The Tribunal ordered removal

of the trees because it was satisfied that the trees were causing a nuisance to the

respondents, and that removal of the trees was the only practicable option to

remedy that nuisance.

2. The parties had been in dispute over the need to repair their boundary fence, and

the trees situated on the boundary, since around 2010. In separate proceedings

under the Common Boundaries Act 1981 between the same parties2, the

Tribunal on 14 May 2014 and 31 July 2014 had made orders for the

construction of a replacement fence between the two properties (the first fence

orders). Those orders had not been complied with, and the respondents applied

to the Tribunal for orders varying the first fence orders to give effect to the 2014

decision of the Tribunal.

3. It was originally proposed that the Tribunal would hear the nuisance application

and the application to update the first fence orders (both filed 3 December

2015), together. However, when the matters ultimately came on for hearing3 on

24 June 2016 the appellant was unable to attend due to ill health. The Tribunal

granted the appellant’s application, through her solicitor, for the nuisance

application to be adjourned to another date. The Tribunal proceeded however to

hear the application to vary the first fence orders, and on 21 July 2016 made

comprehensive orders varying the first fence orders to ensure that the fence

1 Matter XD 1362/2015 published as Blackshaw & Evans v Campbell (No. 2) [2016] ACAT 108

2 Matter XD 323/2014 published as Blackshaw & Evans v Campbell [2016] ACAT 80

3 After a number of delays which are detailed in the Tribunal’s decisions

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would be constructed and costs shared, in principle as originally determined by

the Tribunal (the varied fence orders).4

The nuisance application and decision

4. The Tribunal heard the nuisance application on 4 August 2016, having the

preceding day dismissed a further adjournment application brought by the

appellant. The decision was made, and written reasons given, on 16 September

2016. The Tribunal commenced:

1. This application concerns a dispute between neighbours arising from nine cypress trees planted on the respondent’s land close to the common boundary between the applicants’ and respondent’s respective properties. The trees are approximately 20 years old and have grown to approximately 10 metres in height. The trees have the potential to grow to between 20 and 30 metres in height.

2. A survey plan shows that the centres of the trunks of the trees are between 18cm and 67cm from the boundary with the applicants’ land. The trunks have an average diameter of 30cm.

5. The Tribunal was satisfied, and it was not disputed, that the trees were planted

alongside the stormwater pipes which run on the respondents’ land, on top of

the sewerage pipes on the appellant’s land, and close to the sewer line from the

respondents’ property. The trees were approximately ten metres high at the time

of the hearing, and could grow to twice or three times that height. From

photographs of the trees the Tribunal was able to estimate that the trees

overhang the respondents’ property by two to three metres, and in any event

much more than they extend over the appellant’s property.

6. After commencing by summarising the relevant principles of nuisance the

Tribunal noted six bases on which the respondents asserted that the trees

constituted an actionable nuisance and should be removed:

23. …

(a) The trees are preventing construction of a new boundary fence.(b) The tree roots are causing damage to the [respondents’] stormwater drains.(c) The tree roots are blocking the drains causing plumbing and other costs on the [respondents’] land.

4 The second fence orders are also the subject of a separate appeal by the appellant file number AA 44/2016

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(d) The trees are damaging the [respondents’] house by causing rising damp and have the potential to damage the sewerage pipes and the foundations of the house.(e) The trees are encroaching onto the [respondents’] land in a way that is adversely impacting upon their use and enjoyment of their land.(f) The trees are having an adverse impact on the [respondents’] solar access.

7. The Tribunal was not satisfied that the interference with the construction of the

boundary fence amounted to an actionable nuisance. The Tribunal also was not

satisfied on the evidence that the risk of property damage through rising damp

or falling nuts or interference with solar access was such as would amount to

nuisance.

8. In relation to interference with the drains, however, the Tribunal outlined the

evidence from various expert and lay witnesses and concluded:

42. Having regard to the whole of the evidence, I am satisfied on the balance of probabilities that tree roots have on many occasions over the past six years invaded and blocked the stormwater main, although I accept that there is no evidence that roots are presently in the main or the extent of any present root invasion. The CCTV footage suggests the main is presently clear, although the [respondents] rely on the footage as showing where the roots were entering the drains before they were cleared out.

43. I accept also that there is no proof that the roots, previously or presently, are from the cypress trees. However I find on the balance of probabilities that the roots are from those trees. It is wholly improbable that the roots are from the street trees, which I estimate to be approximately 15 metres from the stormwater main where there are numerous cypress trees planted parallel and adjacent to the main.

9. The Tribunal noted the evidence and made findings of fact about the trees as

follows:

52. … The delegate to the Conservator noted that the cypress trees in issue “have an extensive root system and are opportunistic when it comes to clay or concrete pipes. If there’s a crack or dislodgment of the service, roots will intrude into the pipe work regularly.”54. Also, there does not appear to be any alternative long-term practical solution such as a root guard on the [appellant’s] land because there is no space between the tree trunks and the boundary to install the guard, either at all or in a manner that would not cause loss of all the root structure on the southern side of each trunk.…

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55. I have also taken into account the minimal if any environmental value of the trees, noting that the trees are recognised under the Tree Protection Act 2005 as a ‘problematic tree species’.56. I recognise that the [appellant] values the trees for the privacy and shade they offer her among other things, but she enjoys those benefits entirely at the [respondents’] cost.

10. In addition to interference with drains, the Tribunal was also satisfied that the

trees’ branches encroached upon the respondents’ property, and that the

respondents were entitled to abate that encroachment by trimming the trees.

However, the Tribunal found that in the circumstances given the type, size and

placement of the trees, trimming was not a realistic option:

68. There is no dispute that the trees encroach upon the [respondents’] land. The [respondents] are entitled to abate the encroachment by trimming the trees to the boundary. That is not a practical option where the centre of the trunks of the trees are between 18cm and 67cm from the boundary. To trim the trees to the boundary would almost certainly render the trees highly unstable and perhaps kill them.

11. The Tribunal considered whether the encroachment was so substantial as to

amount to a nuisance at law, by “unduly interfering with a neighbour in the

comfortable and convenient enjoyment of his or her land.”5 In finding that the

encroachment did constitute such a substantial interference the Tribunal stated:

70. In support of the claim that the encroachment is actionable, the [respondents] refer to the serious and significant manner in which the trees encroach on their land. They refer to dangerous branches overhanging their land where they would otherwise park their car and where they walk. They refer to the tree roots which prevent the [respondents] from completing paving works on their driveway. They refer to hard nuts that would land on their car if it were parked under the tree branches. They refer to trees 1 – 3 that overhang the roofline of their house.

71. They refer to the significant overshadowing of their house and garden caused by the trees along most of the northern boundary. It was difficult to determine what portion of the overshadowing is caused by the height of the trees as opposed to the encroachment of branches onto the [respondents’] land. However, as a matter of logic, the overhanging branches must contribute to at least some overshadowing particularly when the sun is overhead or primarily in the east or west.

72. Mr Kozaric, on behalf of the [appellant], did not suggest that the encroachment was acceptable in the sense of being within the bounds of

5 Robson v Leischke [2008] NSWLEC 152

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‘reasonable give and take’ between neighbours. Implicitly he agreed that the encroachment needed to be addressed, and sought an order that the [appellant] be able to access the [respondents’] property to trim the trees both as to their height and to address the encroachment of the branches onto the [respondents’] property. This, he said, was the preferable approach. He submitted that the [appellant] wants to trim the trees and “that has been denied”.

12. The Tribunal then considered in detail the appellant’s proposal that the

encroachment be periodically abated by trimming both the height and

overhanging branches. The Tribunal stated:

80. For several reasons I am satisfied that the trees should be removed, rather than trimmed and pruned to reduce their height and to remove their encroachment onto the [respondents’] land.

81. First, the cypress trees should never have been planted along the boundary between the [respondents’] and [applicant’s] land. They have become very large trees and will continue to grow to a height of approximately 20m. They have been planted in a sewer easement on the [appellant’s] land, and close to a stormwater easement on the [respondents’] land.

82. Second, the trees are unsuited for the [respondents’] and [appellant’s] comparatively small blocks, both of which are little more than 500m2. In his decision dated 24 December 2014, the delegate of the Conservator gave approval for removal of tree 4 on the basis that “the location of the tree is inappropriate given its potential size and growth habit.” The delegate also refused approval for major pruning or lopping because the criteria for that approval had not been satisfied. In other words, the only option is removal.

83. Third, trees 5- 9 are listed in Schedule 2 to the Tree Protection (Approval Criteria) Determination 2006 (No 2) as ‘problematic tree species for the purposes of criterion 1(2) of the Determination. Criterion 1(2) of the Determination permits the Conservator to give approval for removal of a tree listed in Schedule 2, including a regulated tree, ‘if the tree is located on a block of less than or equal to 1200m2’. The [respondents’] and [applicant’s] blocks are less than half that size. In an email sent on 9 May 2016, the delegate of the Conservator explained that trees listed in Schedule 2 ‘are generally approved for removal as they have detrimental effects on energy, building structural integrity, solar access and services interference.’

84. Fourth, the [respondents] are entitled to trim the trees to their boundary, but that is not a practicable option. The trees have been planted so close to the boundary that to trim them to the boundary would leave nothing but the bare trunks, and would not resolve the ongoing

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problems with root invasion. In his email sent on 9 May 2016, the delegate of the Conservator said “generally residents are permitted to trim trees to the boundary however in this case it would not be wise as the cuts would be major and could cause irreversible damage to the trees.” In his report dated 23 June and 8 July 2016 prepared for the [appellant], Stephen Griffiths, per Treeworks (ACT/NSW) Pty Ltd, states that to trim the trees to that extent would kill them. Mr Griffiths notes that the canopy would need to be 2.5m from the trunk, but that would only be possible if the [respondents] consented to continuing encroachment of the trees onto their land because the centres of the trunks of all nine trees are between 18cm and 67cm from the boundary.

85. Fifth, if trimming the trees was to be done, it would need to be done gradually over time. In an email sent to the [appellant] on 29 July 2016, a delegate of the Conservator commented on pruning options, noting that the trees’ susceptibility to dieback would mean that the 10% method’ should be used meaning successive pruning events limited to 10% of the tree to facilitate recovery. Where the trees are approximately 10m high, trimming or pruning to more appropriate heights and scales would take many years. Mr Griffiths noted that the first trim would need to be ‘conservative’. He stated that the trees will be able to be trimmed to 1/3 of their height ‘eventually’. Meanwhile, the numerous problems with root encroachment would continue.

86. I have concluded that the encroachment of the trees’ branches is an unreasonable interference with the [respondents’] enjoyment of their land and that removal of the trees is the only practicable option to address that interference.

13. Being satisfied that the trees were causing a nuisance by virtue of the past

incursion of tree roots into the drains, and by the overhanging of branches into

the respondents’ property, and being satisfied that removal of the trees was the

only practicable option to address the current interference and risk of future

interference, the Tribunal made orders that within 28 days all nine trees be

removed by the appellant at her own cost, failing which the respondents would

be entitled to remove the trees and be reimbursed their costs of doing so by the

appellant.

14. On 13 October 2016 the appellant filed an application for appeal from that

decision (the nuisance appeal).

The conduct of the nuisance orders appeal

15. In the nuisance appeal as originally filed the appellant sought that the orders of 16

September 2016 be set aside and that “the orders in appeal AA 44 of 2016

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prevail.” This was a reference to an appeal from the varied fence orders which

the appellant had instituted on 12 August 2016. The appellant also sought as an

interlocutory order, that the nuisance appeal be heard together with the varied

fence orders appeal.

16. There is no appeal as of right from a decision of the Tribunal, an appeal lies only

on ‘a question of fact or law’. The questions referenced in the nuisance appeal

were:

(a) Whether the Tribunal has the power, in an application other than an

application under the Common Boundaries Act 1981, to order the removal

of trees growing on or adjacent to the boundary between the appellant’s

property and the respondents’ property, and to make consequential

mandatory orders to that effect.

(b) Whether the Respondents were issue estopped from bringing [the nuisance

application] by reason of the same, or substantially the same, issues

having been heard and decided in 2014 and 2016.

17. Because the issues raised on appeal were limited to the Tribunal’s jurisdiction, the

Appeal Tribunal made directions for the parties to file written submissions and

listed the matter for mention on 24 October 2016 to enable the parties to

consider and make submissions on whether a face to face hearing was required.

18. At the mention on 24 October 2016, the appellant’s solicitor sought that the matter

be listed for mediation. The Tribunal encourages parties to resolve disputes by

agreement wherever possible, by facilitating their participation in alternative

dispute resolution processes such as mediation, conciliation or neutral

evaluation. While participation in these processes is usually undertaken at an

early stage in the proceedings, it can occur at any point at which it would be

productive. However, given the protracted history of this matter and underlying

dispute, I did not see that referring the parties to mediation at this stage would

do anything other than cause further delay and expense, contrary to the

Tribunal’s objectives of efficiency and timeliness as set out in section 5 of the

ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). Further, it is a

fundamental principle of mediation that the parties engage in the process in

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good faith.6 I doubted that this prerequisite could be met in this case. I declined

to refer the parties to an accredited mediator for mediation.

19. The solicitor for the appellant also sought that the hearing of the nuisance appeal

be delayed until after a decision had been made in relation to the appeal from

the varied fence orders. I was not persuaded that the resolution of the questions

raised in the nuisance appeal depended in any respect upon the outcome of the

varied fence orders appeal, and refused that application.

20. The nuisance appeal was listed for hearing on 21 November 2016, prior to the

hearing of the varied fence orders appeal. As it transpired, I heard both appeals.

21. At the hearing on 21 November 2016, the appellant was represented by a different

solicitor. The appellant had not filed the submissions as previously directed.

22. The new solicitor for the appellant commenced by seeking an adjournment of the

hearing of both of the appeals. In a letter to the Tribunal tendered by the new

solicitor at the hearing of the appeal, the previous grounds for the nuisance

appeal were abandoned and different bases put forward for the assertion that the

Tribunal had fallen into error. There remained no clarity as to the orders sought

if the appeal was successful.

23. The matter was stood down to allow the appellant to instruct her new solicitor as

to the orders she would seek if the nuisance appeal was successful. When the

matter resumed, the solicitor for the appellant tendered a handwritten note of

orders sought, being that orders 1-7 made by the Tribunal be set aside, the

nuisance application dismissed, and the trees be kept trimmed by the appellant.

24. The solicitor for the appellant pressed the application for an adjournment of the

hearing of the appeals. He said that the hearing of the appeals should be put off

to another day, as he had only met with the appellant on 3 November 2014 and

for various reasons had only the previous week examined the Tribunal file. He

advised that he had taken some time to get across the two different appeals and

was not well prepared to advance the appellant’s case.

6 At the least, this requires a willingness to participate in the process with an open mind, put forward realistic options and give real consideration to options put forward by others

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25. The appellant’s solicitor submitted that the appellant needed the adjournment so

that she would have the opportunity to properly prepare her case, and that it

would be unfair to require her to proceed to a hearing of the appeals that day.

26. I declined to adjourn the hearing of the appeals because of the following matters.

27. First, the appellant had engaged the appeal jurisdiction of the tribunal. It is

incumbent upon a party who engages the tribunal’s jurisdiction to prepare their

matter in a timely fashion. The appellant had been legally represented for the

bulk of the period leading to the hearing, including retaining counsel. There had

been directions hearings at which directions were made to prepare the

appellant’s case. Those directions were not complied with, with no explanation

other than that the appellant had changed solicitors. In this respect, it must be

remembered that the tribunal is a forum which does not require that parties will

have legal representation. The procedures of the tribunal are designed with the

self-represented litigant in mind. The majority of matters in the tribunal, even in

the appeal jurisdiction, are conducted, effectively and efficiently, by persons

representing themselves. I was satisfied that the appellant had been given

adequate opportunity to prepare her appeal, that opportunity had not been taken.

28. Secondly, the appellant was present at the hearing of the appeal, with her new

solicitor, she was currently able to provide instructions, and had first provided

instructions two weeks earlier. The solicitor had read the Tribunal file and

prepared new draft grounds of appeal. I considered it was possible for the

hearing of oral submissions to proceed that day, albeit with provision for further

written submissions to be filed after the event.

29. Thirdly, I had no confidence that, if an adjournment of the hearing of the appeal

was granted, the hearing would be any more likely to proceed on a future

occasion.

30. Accordingly, the hearing of the appeal proceeded that day with oral submissions

of the parties. To accommodate the difficulties experienced by the appellant’s

new solicitor, and to give the respondents a fair opportunity to respond to

arguments which they had heard only for the first time that day, I directed that

the appellant file an amended application for appeal setting out the new grounds

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relied upon in the nuisance appeal, and written submissions by 23 November

2016, and gave the respondents leave to file written submissions in reply.

31. The appellant filed the amended application for appeal and written submissions as

directed.

32. The respondents, who represented themselves throughout the proceedings, filed

their submissions in reply in accordance with the Appeal Tribunal’s directions.

In those submissions they expressed concern at the procedural irregularities in

the conduct of the matter. They queried why the appellant’s documentation for

the appeal was submitted multiple times, including completely new bases for

appeal. There is no easy or satisfactory answer to this query. The appellant’s

conduct of her appeal was disorganized and non-compliant, notwithstanding

that she was most of the time assisted by legal representation, including having

retained the services of a barrister. In the end it is in the discretion of the Appeal

Tribunal how to balance the competing imperatives of efficiency, fairness,

informality and justice when confronted with non-compliance with directions or

adjournment requests. At times, erring on the side of caution by giving priority

to the requirement to provide natural justice results in delay and administrative

cost to the other parties, and to the Tribunal.

The amended grounds of appeal

33. The amended nuisance appeal sought that the orders of 16 September 2016 be set

aside, and the nuisance application instead be dismissed.7 The amended

application for appeal asserted 11 errors of law and fact. These were expanded

upon in the written submissions.

The process for hearing the nuisance appeal

34. Section 82 of the ACAT Act provides that the Appeal Tribunal may either deal

with the appeal as a new application (a hearing de novo/new hearing) or as a

review (rehearing).8

7 The appellant apparently having abandoned the idea that the trees be kept trimmed by her

8 The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 at [14]; B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219 at [11] & [12]

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35. Given that the matter had at first instance been conducted as a full hearing, at

which both parties were legally represented, and taking into account the nature

of the issues raised on appeal, the matter was dealt with as a review/rehearing.

36. The principles applying to the conduct of such an appeal are set out in paragraph

22 of the decision of Mansour v Dangar [2017] ACAT 49:

… for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal is not at liberty to interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion. (Footnotes omitted)

37. There are multiple authorities setting out the bases on which a superior court or a

tribunal conducting such a review/rehearing may interfere with findings of fact

or law9, or an exercise of discretion.10 It is within this framework that the

Appeal Tribunal approached this appeal.

38. The grounds of appeal and written submissions raised questions which could

broadly be categorized as challenging:

(a) the factual findings about the tree roots;

(b) the factual findings about the overhanging branches;

(c) the conclusion that either branches or roots or both constituted nuisance;

and

(d) the decision that the trees should be removed rather than other action being

taken.

39. It is convenient to address the grounds, and the arguments made by the appellant,

in this order.

The Tribunal erred in law in finding, in the absence of evidence “it is wholly improbable that roots are from the Street trees, which I estimate to be approximately 15 metres from the stormwater pipe.”

9 For example see Warren v Coombes (1979) 142 CLR 53110 House v R (1936) 55 CLR 499

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40. The Tribunal noted at paragraph 43 that there was ‘no proof’ that the offending

roots had been from the cypresses, and proceeded to infer that fact from the

other established facts. This is not a finding made in the absence of evidence,

but rather the entirely regular drawing of an inference of fact from other

established facts. It was open to the Tribunal to make that inference. To the

extent that the Appeal Tribunal might also draw inferences of fact, it would

reach the same conclusion. There is no error in this finding.

The Tribunal erred in law in accepting the speculation of the respondents that the tree roots may break into the sewer pipes in the absence of evidence

41. Having concluded that the cypresses were responsible for the past incursions into

the stormwater drains, it was open to the Tribunal to infer that such invasions

were likely to occur in the future in relation to the sewerage pipes given their

proximity, construction and age. The Appeal Tribunal would make the same

inference. There is no error in this finding.

The Tribunal erred in law because there was no evidence to support the Tribunal’s findings at paragraph 54 that the installation of root guard was impracticable, or that more radical solutions, such as replacing the pipe with an impervious material were not considered

42. The appellant submitted that the Tribunal had erred by relying upon its own

expertise rather than evidence in making the findings at paragraph 54. It was

conceded that there was no evidence put before the Tribunal by the appellant or

from any other source that root guard would be a practical solution. Nonetheless

it is argued by the appellant that the Tribunal was in error in finding in the

absence of evidence that root guard was unviable and would have to be

constructed on the boundary. The respondents submit that common sense would

suggest that root guard being installed at the boundary was not an option, as it

would destabilise each tree in the same way as cutting off the branches at the

boundary.

43. Section 28 of the ACAT Act provides that the Tribunal may inform itself in any

manner in which it sees fit. This includes, where appropriate, relying upon its

own expertise and applying a healthy dose of common sense. It was open to the

Tribunal to draw upon its own knowledge to consider possible means of

managing the incursion of roots, and then to apply that knowledge to discount

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those means, given the absence of any evidence that root guard would be

effective. There was no error in the Tribunal’s findings on this point.

The Tribunal erred in law in finding that the mere overhanging of the branches on to the respondents’ property, amounted to a nuisance as being an ‘unreasonable’ interference in their use of the land, particularly in the absence of any evidence as to the use the respondents put to that piece of land

The Tribunal erred in law and in fact in finding that reasonable trimming of the trees on the part of the respondents would not have alleviated any problems

The Tribunal erred in law in finding that the only practical solution to the interference caused by the overhanging was the complete removal of all of the trees

44. Contrary to the appellant’s submission, there was evidence before the Tribunal of

the location of the tree branches, and the impact that the branches had on the use

of that area of the land by the respondents, which the Tribunal considered at

paragraph 70. The Tribunal noted at paragraph 72 that the then lawyer for the

appellant acknowledged implicitly that mitigation action was required. It was

open to the Tribunal to conclude that the branches were an unreasonable

encroachment which amounted to a nuisance. The Appeal Tribunal reaches the

same conclusion, particularly when regard is had to the approximate area

covered by the branches, in relation to the size of the respondents’ land.

45. At paragraphs 68, and 84-86, the Tribunal considered the proposal to trim the

trees and was satisfied that the encroachment could not be alleviated by

trimming. The appellant did not develop any argument as to why this conclusion

is said to be affected by error of law or fact. On appeal the appellant submitted

that the overhanging trees were “part of the ‘give and take’ of ordinary suburban

living”, that the respondents had been aware of the trees when they bought their

house, and that if there were limbs in danger of falling, the respondents “had

their remedies in abatement.”

46. The appellant’s submissions do not disclose any error by the Tribunal. In

particular, in relation to the question of abatement, there was evidence before

the Tribunal that if the respondents were to abate the nuisance caused by the

branches by trimming to the boundary, this would both destabilise and likely

kill the trees. The Tribunal was correct to discount trimming of the trees as a

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solution to the nuisance caused by overhanging branches. The Appeal Tribunal,

as set out in more detail at paragraph 51 of this decision, reaches the same

conclusion.

47. The appellant has not demonstrated any error in the Tribunal’s conclusions on this

point.

The Tribunal erred in fact in finding that the benefits the appellant had from the trees were entirely at the respondents’ cost

48. This comment was made by the Tribunal at paragraph 56. While it is a finding

with which the appellant may take issue, no argument was put by the appellant

either before the Tribunal or upon appeal to demonstrate the cost which the trees

posed to her. In any event, this aside by the Tribunal was in no way material to

the outcome in the matter, which was reached after systematically determining

the facts and applying the law of nuisance to those facts.

The Tribunal erred in law in finding that the actions of the respondent in allowing the trees to remain was other than a reasonable use of the land

The Tribunal erred in law in finding that the actions of the tree roots amounted to nuisance at law

49. The respondents submitted “a question of reasonableness is at the heart of the

tort” of nuisance. It was submitted that the appellant is simply letting the

existing trees live, which is a reasonable use of her property, and that the

Tribunal therefore erred in finding that the presence of the trees amounted to a

nuisance.

50. The Tribunal discussed the ‘reasonableness’ aspect of the law of nuisance at

paragraphs 13 – 15, and 46. The Tribunal then applied that test to the facts as

found at paragraph 47, in relation to the tree roots, and at paragraphs 72 and 86

in relation to the branches, in each respect concluding that the claim in nuisance

was made out.

51. For the reasons set out above the Appeal Tribunal is not satisfied that there was

any error in the facts found by the Tribunal. Applying the legal test for nuisance

to those facts, the Appeal Tribunal reaches the same conclusion as the Tribunal.

Given the type, size, location and dimensions of the trees and the size of the

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respondents’ land, the physical extent of branches overhanging and impact of

that encroachment on use of neighbouring land, the past history of pipe

blockages which had caused flooding, the finding that the trees were the source

of those blockages, the risk of future blockages and consequent risk of damage,

the Appeal Tribunal is satisfied that a reasonable occupier given notice of these

concerns would take action to prevent both the substantial encroachment of

overhanging branches and ongoing risk of another root incursion. In each

respect, the only effective and practicable preventative action was, and remains,

removal of the trees. The appellant had been well aware of these events and

ongoing concerns, but no effective preventative action had been taken. It

follows that the appellant had permitted a nuisance to occur, and the

respondents were entitled to seek relief from the Tribunal.

The Tribunal erred in law in finding that, if the actions of the tree roots amounted to nuisance, that the appropriate response was to order the removal of any of the trees, let alone all nine, particularly when the Tribunal had accepted “there is no evidence that roots are presently in the main or the extent of any present root invasion. The CCTV suggests the main is presently clear…” (paragraph 42) and further “I accept that there is no proof that the roots, previously or presently, are from the Cypress trees (paragraph 43)

The Tribunal erred in law in finding that the only practical solution to the risk of the roots causing damage was the complete removal of all of the trees

52. Having at paragraph 51 considered all of the factors in relation to the tree roots,

the Tribunal at paragraph 52 concluded that on balance it was appropriate to

order the removal of the trees.

53. The decision as to what orders should be made having found that the trees

amounted to a nuisance was a discretionary one. The ways in which a

discretionary decision might be affected by error are set out in House v R (1936)

55 CLR 499 and Australian Coal and Shale Employees’ Federation v The

Commonwealth (1953) 94 CLR 621. The phrasing of this ground of appeal

suggests that the error alleged is a failure by the Tribunal to give sufficient

weight to certain evidence. Perusal of the Tribunal’s reasons demonstrates the

Tribunal considered the current situation, and noted that there was no absolute

proof that the trees which had been the cause of drain blockage were in fact

from the cypresses. The Tribunal took the referenced matters into account in

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inferring, from the other known facts11 that the cypresses were responsible for

the past blockages and were likely to cause future blockages. It was open to the

Tribunal to draw that inference. It is clear from the reasons that in reaching

these conclusions, the Tribunal considered and gave weight to the evidence

adverted to by the appellant.

54. In relation to the conclusion that the appropriate solution to the risk of root

damage was to order removal of the trees, the appellant did not demonstrate to

the Tribunal that there was any other practicable preventative action for the risk

of future root incursion. For the reasons set out at paragraph 50 of this decision,

the Appeal Tribunal reaches the same conclusion. The Appeal Tribunal is not

satisfied that there was any error in the Tribunal’s findings in this regard.

Other issues raised in the submissions

55. The argument that the Tribunal gave insufficient weight to the evidence put

forward by the appellant appears at numerous points in the written submissions

filed on behalf of the appellant. The appellant also submitted that the Tribunal

erred in preferring the respondents’ expert witnesses over those of the appellant

‘without providing sufficient explanation’.

56. This submission raises the vexed question of how comprehensive the Tribunal

must be when providing oral or written reasons for its decisions. Decisions in

civil applications, such as the nuisance orders, are rarely the subject of written

reasons.12 In this case the Tribunal reserved its decision and chose to give

written reasons. It is accepted that reasons should demonstrate the Tribunal’s

reasoning process by setting out the relevant findings of fact and the evidence

on which the findings are based, identifying the relevant law and explaining

how the law has been applied to the facts to result in the orders that are made.

This is not to say that the Tribunal must provide a doctoral thesis to justify

every decision made.

11 such as the type and location of the cypresses and other trees, the history and location of blockages

12 There is an obligation on the Tribunal to provide written reasons when reasons are requested in accordance with section 60 of the ACAT Act, and the content of such reasons is prescribed by that section and section 179 of the Legislation Act 2001

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57. There are many authorities in relation to the adequacy of reasons in the judicial

context. In Gary Nigel Roberts v Westpac Banking Corporation [2016] ACTCA

68 the Court of Appeal stated:

It is unnecessary for a judge to refer to all evidence led in proceedings or to indicate which of it is accepted or rejected: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA. Nor is it necessary for reasons to be lengthy or elaborate: Ex Parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5. No mechanical formula can be given in determining what reasons are required: Beale v Government Insurance Office of NSW [1997] 48 NSWLR 430 at 443 per Meagher JA.

58. These authorities are increasingly applied in a Tribunal context, where some

decisions historically made by Courts are now made.13 While the public interest

in the provision of reasons remains the starting point14, the objectives of

timeliness and efficiency mandated by section 5 of the ACAT Act oblige the

Tribunal to approach the preparation of written or oral reasons in a

proportionate manner.

59. In NSW Police Force v Newby [2009] NSWWCCPD 75 Keating J stated:

To succeed in having the Arbitrator’s decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247). Reasons must set out the judge’s (Arbitrator’s) reasoning process and merely incorporating counsel’s submissions is not appropriate (Sourlos v Luv a Coffee Lismore Pty limited & anor [2007] NSWCA 203 at [30]).

The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).

When considering the adequacy of the reasons the decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443-444 (‘Beale’)). A Presidential member on review is not required to comb

13 See for example Collins v Urban [2014] NSWCATAP17; Rathchime Pty Ltd v Willat [2017] NSWCATAP 87

14 See Mifsud v Campbell (1991) 21 NSWLR 725 (at 728)

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through the Arbitrator’s findings and reasons in search of error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:

If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36.

60. The cautions expressed in Collector of Customs v Pozzolanic (1993) 43 FCR 280

as to overzealous scrutiny of reasons for administrative decisions also resonate

in the quasi-judicial Tribunal context. It is not the role of the Appeal Tribunal to

pore over written or transcribed oral reasons searching for possible inadequacies

but rather to consider whether, taken as a whole, the reasons disclose that the

Tribunal fell into error. A Tribunal at first instance should not feel obliged to

slavishly record every detail of the evidence given by every witness, or to set

out fine nuances or points of distinction, in order to demonstrate to a

hypothetical Appeal Tribunal or Court that due consideration and weight has

been given. The primary audience for reasons remains the parties, and reasons

which set out the necessary elements in a manner proportionate to the context of

the matter will ordinarily be sufficient.

61. In this matter the Tribunal made findings having reserved its decision after an

eight hour hearing. Written reasons extending to 24 pages were provided, which

detailed expert and other evidence. The expert witnesses’ opinions were

different, but not absolutely contradictory. It is clear from the reasons that the

Tribunal considered the expert’s opinions, including not only the views

expressed but also the factual basis for the opinions, such as the time at which

the experts had attended the property. Expert evidence is provided to assist a

Tribunal in making findings of fact, not to replace the Tribunal in that task. In

this case the Tribunal weighed up the competing views and reached conclusions

about the facts, as it was required to do, and then set out its consideration over a

number of paragraphs. I am not satisfied that the written decision in relation to

the expert witnesses discloses any failure to consider evidence or error by the

Tribunal.

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62. The appellant also submitted that the Tribunal erred in ordering removal of the

trees because the requirements for a quia timet injunction were not made out.

This submission misunderstands the basis on which the Tribunal made its

orders. The Tribunal was satisfied that a nuisance had occurred in the past by

way of the roots and branches, and currently by way of the branches. The cause

of action was complete, and accordingly the stricter requirements of ‘imminent

risk of substantial or irreparable damage’ for a quia timet injunction were

inapplicable. It was open to the Tribunal in the exercise of discretion to order

the trees be removed to prevent a recurrence of the nuisance which had

previously occurred and could re-occur (in relation to the roots) and was

ongoing (in relation to the overhanging branches).

Conclusion

63. The appellant has failed to satisfy the Appeal Tribunal that there is any error of

fact or law in the nuisance decision. It follows that the appeal must be

dismissed.

………………………………..Presidential Member M-T Daniel

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HEARING DETAILS

FILE NUMBER: AA 54/2016

PARTIES, APPELLANT: Maryanne Campbell

PARTIES, RESPONDENTS: Adam Blackshaw & Robyn Evans

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPELLANT Peter Christensen

SOLICITORS FOR RESPONDENTS N/A

TRIBUNAL MEMBERS: Presidential Member M-T Daniel

DATES OF HEARING: 21 November 2016

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