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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