The Judge Decides

Justice Malcolm Craig - Land & Environment CourtJune, 2011 - Justice Malcolm Craig visits the site.  In March, 2012, 11 months later, the Justice decrees......... "I have not been left in a state of belief, on the balance of probabilities, that the tree is the cause of that damage"





The undisputed facts...

The undisputed facts

  • No other trees
  • No underground streams
  • No leaking pipes
  • No soil erosion
  • No soil - on top of sandstone ridge
  • No rock slides
  • No subsidence
  • Clearly visible large roots going under home
  • Cracks originating directly above root entry
  • Upward bowing of reinforced beam directly above root entry

The tree did it...

reputable authories say the tree IS the cause

  • AMP/GIO (Mountford Prider - Engineers) - 14 page report
  • Shirley Consulting - Geotechnical Engineers - 20 page report
  • McKee & Associates - Structural Engineer - 14 page report
  • Footprint Green - Arborists - 10 page report
  • Urban Forestry Australia - Arborists - 18 page report
  • GBG Australia - Ground Penetrating Radar - 8 page report

The tree didn't do it...

reputable authories, excluding the Judge, say the tree is NOT the cause

Experts have hypothesised and speculated to cause but not one stated that the tree DID NOT inflict the damage.

Not one person or reputable entity has promoted any viable alternative to the tree causing the damage!

The Judge believed...

...the experts who said.....

  • ...they were unable to identify any evidence of tree roots likely to be causing upward pressure so as to occasion the lifting of the footing that had occurred.
  • ...the likely maximum pressure that a tree root would impose upon rock in which it was growing would be about 860kPa. (actual figure is about 7MPa - over 8 times greater!)
  • ...based on his experience, while tree roots can damage curbs and footpaths, pressure from tree roots is not known to damage foundations.
  • ...explanation for displacement was relative movement of boulders caused by variations in the in-soil water pressure. (what soil? The house sits on top of a sandstone ridge!)
  • ...that uplift of the footing from the pressure of tree roots was not likely.

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We came before the Land and Environment Court (L&EC) on 24th June 2010 concerning a tree on a neighbour’s property, located some 2.9 metres from our home that was causing cracking to external and internal walls. When the judgement was handed down on 4th March 2011, some 10 months after the hearing, the Judge found that "the tree was innocent" despite the convictions of experts and the physical presence of a tree roots burrowing directly under our home.

Many remark justice is blind; pity those in her sway, shocked to discover she is also deaf.  DAVID MAMET, Faustus

An erroneous judgement that has left us with no avenue of appeal. So a bit like a gambler chasing a win, we moved from one legal expert to another seeking a solution to what was initially a "small claim", expending over $200,000 of savings and borrowings and drawing down our superannuation to fund what has been a 5 year legal roller coaster ride to overturn the judgement. Ultimately, no legal expert could provide us with a definitive course of action in the face of “blind justice”.

The fact that damage to our property has continued to escalated in the period since judgement has many asking “if not the tree then what?”

Our journey through the L&EC jurisdiction should be a warning to others and calls into question the powers bestowed upon the L&EC by our legal system. Jocularly referred to by legal practitioners as “The Parks & Gardens Boys” or a “sheltered workshop” by its own peers, this court was established to keep neighbourhood disputes from congesting the “real” court system. This specialist enclave of the justice system has been imbued with significant powers, its judgements are deemed enduring and of equal standing to Supreme Court rulings and ultimately, the rights of the individual have been removed with no genuine appeal process available. We present the facts for your consideration.

The Journey

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The 5 year journey fom the discovery of minor damage to where the the sky is now visible through the brickwork has been full of events, claims and counter claims.  Here, we try and take you through the key events, explain the effects of decisions and show how our life has been impacted.

In the beginning (March 2009)

In early 2009, we identified some hairline cracks in an outer wall of our property.

We contacted our insurance company, GIO, and after a cursory inspection were informed that a neighbouring tree probably was to blame.  As our policy did not cover damage caused by roots from a neighbours tree, GIO did not offer to become involved.

At this point, we wrote to the (non-resident) owners of the adjacent property, indicating their tree was causing damage to our home and inviting them to inspect the issue and to contact their insurance company.  We included our engineer’s report which confirmed "heaving" (lifting), that our home was built on solid rock, there was no erosion or subsidence and the tree roots were the cause of the damage.

The shannigans that went on for the next 12 months as the neighbour tried to avoid their responsibility are local legend but needless to say, after great expense and a raft of "experts", we ended up in the jurisdiction of the Land and Environment Court (L&EC).

The Hearing (June 2010)

The case began with an inspection of the site by the Justice and an Acting Commissioner of the Court; in fact there were some 14 bodies present allowing for the barristers, solicitors and expert witnesses - all for a very clearly visibile tree (the only one), root system, damage and our home standing on rock.  After 2 hours, the court was reconvened in Macquarie Street, Sydney.  Some 2½ days later, the hearing was over.  Typically a judgement from the L&EC takes about 3 months to be delivered "so nowhere to go" for 3 months!  We were confident of justice, the judge saw the extensive and large root system and must surely have seen through the maneuvering and hypotheses of the other sides experts!

The Decision .... well almost! (March 2011)

Four months later and no news!  Five months - still nothing.  With almost 6 months since the completion of hearings  we contacted the court to ask if there was a timetable for the release of a decision.  The answer was "The Justice is aiming for a decision mid February", some 9 months after the close of the hearing.

February comes and goes and we again ask for a timetable.  "The Justice is very busy but will try for March 2nd".

March 2nd comes and we are advised on that day that the Justice is busy but will aim for the 4th.  On the 4th he delivers his judgement in 6 minutes and leaves.

"I have not been left in a state of belief, on the balance of probabilities, that the tree is a cause of that damage."....Justice Malcolm Craig, March 2012.

We have waited 10 months for this decision, the average time is about 3 months.  We and others cannot find another "tree dispute" case that has taken this length of time in the L&EC - and this is only 1 tree!

What next?

To say we were "gobsmacked" would be an understatement and I strongly suspect that our neighbours were equally surprised!

Look at the image gallery if you haven't already done so.

Justice Malcolm Craig couldn't see a connection between the tree and the damage!We even now cannot find anyone of whatever technical persuasion who will say "it is not the tree".  We have offered a case of Grange Hermitage to any respectable engineer who will inspect the site and write a report confirming any cause other than the tree. 3 companies accepted the challenge. None claimed the wine.  Just as well, I am not sure we could have afforded it!

Could we appeal the judgement?  On checking we found there were 2 possible avenues:

  1. There was an "error in law"; in simpler terms, the Justice administered the law incorrectly.  We couldn't find a case to answer but since the court took some 10 months to get there we figured they had lots of time to get it right!.  Incidentally, the typical time to hand down a judgement in the L&EC is 3 months and we can find no other case that took as long as ours from completion of the hearing to delivery of the judgement - and this was just 1 tree, standing all alone!
  2. New evidence has come to light.  Looked like a possibility here so we endeavoured to find more evidence to support the fact that a lone tree, standing on sandstone rock with clearly visible large roots going under our home was to blame or was there some other cause that we had missed.

Needless to say this all cost significantly; engineers, lawyers barristers and we were were running out of funds.  Maybe it was time to say we lost and get on with our lives.

Let's call it quits (August 2011)

The saying "you can't fight city hall" was ringing loud and clear and we decided to pay to have the tree removed and then attempt to fund the repairs, somewhere around $150,000 by this time (remember, the roots are under sandstone that has to be bored through and then the roots treated even before you start on the house).

We contacted our local council whose permission we require to have the tree removed.

Attempts to remove the tree without permission would leave us open to a $1.1 million fine!

The reasons that the council will accept for tree removal are:

  1. A tree is likely to cause substantial property damage to houses or buildings
  2. There is substantial evidence that a tree is structurally unstable and is a high degree of hazard (arborist report and testing may be required for significant trees)
  3. The tree is causing substantial and continuing structural damage to a dwelling or structure (structural engineering assessment may be required)
  4. Where the tree is in poor and declining health (with a short life expectancy) and there are no options to mitigate the decline in health

Item 3 - no problem there and we have lots of engineering assessments!  Time for a quick phone call to the Council.  Here's how it went...

Us: We would like permission to remove a gum tree from a neighbour’s property. They are okay with this.
Council: They will have to make the application as it is on their property. Why do you want to remove the tree?
Us:  Because it is causing damage to my property.
Council: OK. That will be fine, just send details of the damage and how the removal will be accomplished. Where are the properties?
Us:  The addresses are ............
Council: Ahh – aren't those the ones that were in the L&EC?
Us: Yes it was.
Council: Then the application will probably be denied as it was judged that the tree was not causing any damage to the property.

Now we have a tree tearing apart our home and we cannot stop it because the L&EC said it isn't causing any damage!

Ahh - the tree didn't do it - let's check our insurance again! (November 2011)

With a judgement defining that the tree was not to blame, we decide to revisit the insurance company (GIO), not hoping for a payout, but hoping they might join us in seeking obvious justice.

Upon contacting them, we were asked if this was the same damage they ‘ruled’ on in 2009. When advised it was, they repeated their answer along the lines of:

GIO I think we need to remind you – we don’t do trees!
Us Ahh – we have a judgement from the highest court with jurisdiction in our State that states the tree didn’t do it.
GIO Oh – so what caused the damage?
Us Don’t know – but it wasn’t the tree. An act of God?
GIO Ok, we’ll send a builder around to have a look.

The GIO-appointed builder arrives and says “It’s the tree”.

No, it’s not, we say – we have a Judgement that says it isn’t. The builder says that he is overruled by the Judgement and decides he needs to refer this to a higher authority.

Five days later, an engineer and his apprentice from the GIO spend 6 hours and measure every part of the property – nothing is missed and soon afterwards we receive a copy of the report with a letter “Claim Denied. It’s the tree”.

The report is thorough, well prepared and unequivocal – the tree is the cause and the only cause of the damage.

The property rests on solid rock and there is no erosion or subsidence. (We did not allow the GIO engineers to see any of the documents prepared by any engineers for inclusion in the court case as we felt this inspection should be prepared in isolation from preceding events.)

Our issue was next raised with the Insurance Ombudsman. He agreed with GIO – that for us to make a claim (or for them to become interested), we must make a claim for an insurable event. Since we cannot show an insurable event despite the tree being the cause of the damage, we have no further reason to call upon the GIO in this regard (yet!).

Let's ask our local member - we voted for her, surely she will help? (January 2012)

We take stock of where we are...

  • Our home is slowly being destroyed and losing value fast;
  • The L&EC says the tree is not the culprit;
  • Because the L&EC says the tree is not causing the damage the council will not give its permission to remove the cause of the damage;
  • The insurance company says the tree is to blame and since we cannot show any insurable cause they refuse to become involved;
  • All engineers and specialists who have seen the site state the tree is the cause of the damage to our home;
  • The neighbour will not assist us with getting permission to have the tree removed as the only possible reason that will be acceptable to the council is it is damaging our home and they feel this would potentalliy leave them open to litigation.

This situation is commonly referred to as Catch-22.

We write a letter, attaching supporting documentation, to Gladys Berejiklian MP, Member for Willoughby and State Minister for Transport, seeking her assistance as the L&EC is a State Government body.

In our letter we indicate that we were very dissatisfied with the workings and outcome of the L&EC for several reasons, which included:

  • The time between the site inspection and the delivery of a judgement (almost 10 months) raised issues with regards to recollection by the Justice of what he saw during the site visit;
  • We were advised that it was a principle of the L&EC that mediation should be attempted, but this course of action was denied us by the other party and this was apparent in subpoenaed documents presented to the L&EC.

Gladys Berejiklian advised us she would pass our documents to the Attorney General, Greg Smith, for comment.

2 months later and after a little follow-up, we hear from Gladys and the Attorney General.  To say we were fobbed off by our representatives in govenment would be a major understatement!  The Attorney General didn't even bother to read the report or accompanying letter.  If he had he would have known that the opportunity for mediation had been denied us yet he wrote on his response "This matter may have been resolved by mediation".

Thank you for bringing this matter to my attention.  Please do not hesitate to contact me if I can be of assistance to you in relation to any State Government matter - The Hon. Gladys Berejiklian MP

With respect to any further options Ms Smith may have to resolve her situation, I can only suggest that she seek and be guided by independent legal advice.  Should Ms Smith require further assistance she can contact LawAccess NSW - The Hon. Greg Smith SC MP

I appreciate your frustration and will certainly keep your experience in mind when policies about these matters are discussed - The Hon. Gladys Berejiklian MP

Let's do what The Attorney General suggested (April 2012)

So no help from the politicians!  Probably no big surprise there!

Greg Smith did however suggest we try LawAccess so maybe he was giving us a tip about a potential solution.  No harm in giving it a try.

Here's how the conversation went....

Law Access How did you get this number?
Us From the Attorney General.
Law Access Are you Aboriginal?
Us No.
Law Access Oh - OK!  So what is the issue?
Us .... a description of the issue and the outcome in the L&EC.
Law Access Not much we can do to help. We suggest you get a good lawyer and go for the insurance company.
Us OK - Thanks.

Can we Appeal?

To try and find if there was any avenue of appealing the L&EC decision we decided to ask for a report on the evidence of the neighbour's expert witnesses whose primary responsibility is to impartially assist the court and their paramount duty is to the court - not the parties appearing before the court.

The results of the analysis by a firm of consulting engineers was staggering:

  • measurements were incorrect;
  • the analysis was incorrect;
  • the methodologies used to arrive at the result were incorrect;
  • the mathematics were incorrect;
  • the tools selected to derive the results from the measurements were inappropriate; and
  • the results did not fit with the project site.

The report indicated that some consideration should be given to the possibility that the calculations were designed to produce the result desired (that the tree had not caused the damage).

Despite the findings we can do nothing - the engineers who provided the flawed evidence have a Duty of Care to the Court, not to us and you know the Court will surely do something about that!!

Our fears are confirmed.....

  • There is no right of appeal except if there is an error in law (how the law was administered);
  • We cannot get the case reopened unless we can provide new evidence that was not available to us at the time of the hearing;
  • Our GIO, Geotechnical and Ground Penetrating Radar reports do not constitute new evidence as the technologies were available at the time of the hearing but we did not utilise them. It is worth noting that the GIO would not have undertaken the report prior to the hearing as they had no interest in the situation until the handing down of the judgement.

The neighbour wants to remove the tree! (August 2012)

We hear that another neighbour of the owner of the tree has indicated that he is concerned about branches falling into his property from the offending gum tree.  The owner of the tree agrees to see what can be done.

Two companies of arborists are to inspect the tree.

On August 7th, an arborist named Paul turns up unannounced to inspect the tree site.  We know he is there because we can see his bush hat bobbing up and down outside our window.

The initial conversation went something like….

Me: "Who are you?"
Paul: I am an Arborist.  Paul from Plateau Tree Specialists.
Me: Why are you examining the tree?
Paul: Your neighbour wants to cut it down.
Me: OK - got a permit?
Paul: No, that's why I am examining the tree.  So that we can write a report to the council so we can get a permit.
Me: What are you going to give as the reason for removing the tree?
Paul: Don't know yet - that's why I am examining it.
Me: Paul, there can only be two reasons which will cause you to obtain a permit, either the tree is going to fall on a house or it is causing damage to a property.  Since it is a Sydney Blue Gum, one of the most stable trees in Australia and it is located some 50 metres from your principal’s property I'm not sure how you are going to go?
Paul: Yes, but have you seen the damage that the tree is causing to your property?  (Waves his arm up and down the huge gap in my wall.)  If this tree is not removed it is going to cause a lot more damage to your place.

Two days later another man appears, but he has been "wised up".  His name is Ted.

Ted: I hear that this tree was part of a dispute that went to the Land & Environment Court and the judge decided that the tree was not to blame.
Me: That's correct Ted.
  Picture Ted standing in our crater staring at the root going under the cracked wall with hat lifted and scratching his head.
Ted: Did your engineers say what else might be causing the damage to your property?
Me: No.
Ted: I see.

Neither the neighbour nor I have heard anything further about getting the tree removed.  The owners of the tree have been silent.

Final course of action?

We do have one final avenue open to us...

  1. Take the insurance company to the Supreme Court of NSW on the grounds that the tree is not causing the damage and therefore we have a claim;
  2. Due to the overwhelming evidence available, we lose in the Supreme Court which means the court judges that the tree caused the damage (we pay the insurance company’s costs which would be substantial);
  3. We would then have 2 judgements:
    1. From the Supreme Court of NSW that the tree caused the damage;
    2. From the Land and Environment Court that the tree did not cause the damage.

Now you would think the next move is obvious, but NO! The L&EC judgements have equal standing with those of the Supreme Court of NSW! We would have 2 conflicting judgements with no avenue for resolution.

The system wins and we are done!

If we were able to hold the L&EC to account, we would start from one simple point: What evidence (and from what credible source) did you rely on when deciding there was no causal relationship between the gum tree roots and the damage to our home?

From the L&EC website

The Court’s purpose is to safeguard and maintain

  • the rule of law – Perhaps, but without justice
  • equality of all before the law - Failed
  • access to justice - Failed
  • fairness, impartiality and independence in decision making - Failed
  • processes that are consistently transparent, timely and certain – Failed
  • accountability in its conduct and its use of public resources – Failed
  • the highest standards of competency and personal integrity of its judges, commissioners and support staff – Failed

..but wait - there are others in the same boat... (May 2013)

Letter from the Attorney GeneralThis website initiates contacts from people with similar stories who feel they have been betrayed by the arrogance, negligence and incompetance of the L&EC.  Their opinions but cannot say we disagree!

To try and help others and ourselves, we write to the Justice asking if he is aware of any course of action open to us given that we have no avenue to appeal his "career defining" decision.  We copied the Attorney General, Greg Smith and our local MP, Gladys Berejiklian.  The only reply was from Gladys saying "Trusting the matter will be resolved to our satisfaction"!

We then wrote to the Attorney General asking him what avenues he understands are open to us given that he has indicated that we should consult with our legal advisers and that all of our legal advice and that of LawAccess NSW (as recommended by the Attorney General) have stated that there is no opportunity to appeal to any court.

The answering letter is on the right.  The 2nd last paragraph reads "I can only reiterate that you be guided by the advice of your legal representative in relation to pursuing your further oprions in the matter such as appealing the LEC's decision to the NSW Court of Appeal".

We ran the Attorney Generals letter past our legal team.  Their comments included:

I am not sure what we may have missed in relation to the appeal process and I believe the Attorney General’s department is taking the line of least resistance.

As I understand it, the decision of the judge in proceedings in the Land and Environment Court may be appealed to the Supreme Court pursuant to Section 57 of the Land and Environment Court Act 1979 on the question of law only. The hearing of these appeals is by the Court of Appeal. Section 57(4) of the Act provides leave to be granted by the Supreme Court to appeal against orders or decisions. Normally the time limit for lodging an appeal as you are aware is 28 days from the date of determination, however this time limit may be extended to 3 months if a Notice of Intention to Appeal is filed.

We (the Barrister) have reviewed this and there is no way to appeal this decision.

Futhermore, according to LawLink NSW - Types of Appeals......

Appeals in proceedings in Classes 1, 2, 3 and 8 (in which the decision-maker was a Judge)

A party to proceedings in Classes 1, 2, 3 or 8 of the Court’s jurisdiction may appeal against an order or decision of a Judge of the Court on a question of law to the NSW Court of Appeal (s 57(1) of the Land and Environment Court Act). If the order or decision of the Judge is an interlocutory order or decision, the party needs the leave of the Court of Appeal (s 57(4) of the Land and Environment Court Act).

A party may file a notice of intention to appeal or a notice of appeal. The form for a notice of intention to appeal is a notice of intention to appeal (Form 103 (version 2)). The form for appeal is a notice of appeal (Form 105 (version 3)). The form for seeking leave to appeal is a summons seeking leave to appeal (Form 104 (version 3)).

The notice of intention to appeal is to be filed in the Registry of the Court of Appeal within 28 days after the date on which the Court gave judgment (Pt 51 r 51.8 of the Uniform Civil Procedure Rules). If a notice of intention to appeal has been filed, the notice of appeal or summons seeking leave to appeal is to be filed in the registry of the Court of Appeal within 3 months after the date on which the Court gave judgment but if a notice of intention to appeal was not filed, the notice of appeal or summons seeking leave to appeal is to be filed within 28 days after the date on which the Court gave judgment (Pt 51 r 51.9, Pt 51 r 51.10 and Pt 51 r 51.16 of the Uniform Civil Procedure Rules).

We again write to the Attorney General asking upon what basis we can appeal to the NSW Court of Appeal or any other body for that matter - none of his peers, Baristers or Lawyers, can figure out what he obviously knows and why he is keeping it secret!

The Attorney General again answers and decides that despite his previous indications, his letter includes the following:

"I sincerely regret if you interpreted the reply from the Community Relations Unit dated 22 July 2013 to mean that there is an appeal option in your particular case.  The Unit has no knowledge of any such option." 

How else were we supposed to interpret it?

He said take it to the NSW Court of Appeal - YOU CANNOT!!





The judgements applied by Justice Malcolm Craig have now become a quoted benchmark within the legal fraternity dealing in the L&EC.  Examples include:

Judy Fakes - Commissioner, NSW Land & Environment Court

Page 9


Newhouse & Arnold Solicitors

EPLA – Review of annotated Trees Act – Land and Environment Court

Authors Judy Fakes (Commissioner) and Tim Moore (Senior Commissioner)

Pages 9, 20 and 21

A person is morally bankrupt if his actions display a complete disregard for ethical values or principles.  A morally bankrupt person or institution, while not necessarily motivated by evil, is not motivated by goodness, either.

A morally bankrupt person or institution, while not necessarily motivated by evil, is not motivated by goodness, either.

Read more :
A morally bankrupt person or institution, while not necessarily motivated by evil, is not motivated by goodness, either.

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