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 most common questions we receive, apart from questions we field regarding the Courts competence and integrity are:

Question 1: Why don’t you poison the tree?

Given what we know now we wish we had. Our motivation in not undertaking this action was our concern that if the tree fell as a result someone could be injured or killed.

Answer 1: Poisoning the tree would certainly eventually kill it. Arborists estimate it would take up to 5 years to completely die, during which time the roots would be active as the tree attempted to sustain itself.

Answer 2: The damage to our property would remain and would in fact get worse during the dying process.

In the initial case we were simply seeking repairs of one end room. Subsequent reports have identified additional rooms and even a bathroom that have been subjected to tree damage. It would take some time before the tree would be “authorised” for removal, getting “stronger” as the sail effect caused by the wind on the leaves is diminished as the leaves become sparser and therefore normal branch depletion all but ceases. The damage to our property would remain.

Answer 3: Given the location of the tree and our 6 years of endeavour to have it removed, it would be fairly obvious who poisoned it!  We do not have the $1.1 million to pay Willoughby Council fine.

Question 2: Why don’t you cut the roots?

Answer 1: The roots, of which there are estimated to be 4 or 5 main trunk roots according to arborists, have a circumference of a typical adult humans waist, are not just under the property, they are located 3 meters (6 feet) under a solid rock that supports the house. Getting to and severing the roots, excluding damage remediation, would be a significant engineering process that would probably exceed $100,000.

Answer 2: Located on a precipice, the only roots emanating from the tree travel under our property with no roots on the “other side” which is a cliff face. If we cut the roots the tree will fall on the neighbours properties – not just the owners home, with potential to cause property damage and probable human injury. We have been advised that it would be judged that as we were aware of this potential outcome it could be deemed a criminal action and we could be prosecuted accordingly.

Question 3: Can tree roots cause damage to foundations?

The quick answer is yes despite what you might of been told. Just take a little time to wander through some of our older cities and see the damage caused by the roots of various species of tree.  Here are a few engineering reports that support this:

Question 4: So why do engineers and arborists lie about tree root damage when giving evidence in the Land and Environment Court?

Many don't lie but unfortunately some do. Competent Engineering companies acting as witnesses in court cases have found there are 3 types of specialist witness:

  1. Those who lie, usually for reward;
  2. Those who pretend to be qualified but are not;
  3. Qualified and competant exponents of their trade who judiciously keep their knowledge current.

We met 1, 2 and 3 in our case. Here are the issues with the first 2:

1.  The fraudsters

The L&EC doesn't care if you lie through your teeth.  Perjury would be unacceptable in most courts but the L&EC let's it through and just remember, the specialists appearing for the other side have a Duty of Care primarily to the Court and also to their clients, NOT to you.  Because they have no Duty of Care to you, you do not have any right to challenge them on their "negligence" once proceedings have finished.

These individuals will provide calculations or make statements that are incorrect or modified to achieve the outcome desired.  Want a "gun for hire"?  These are your boys and there's no shortage of them.

For example, the Respondents in our case had to go through 4 arborists before they found the 5th one who would say under oath that the tree was not the cause of any damage.  Hugh Taylor went one better - he couldn't see any kind of damage!!  He was the best money could buy.

No cracking, subsidence, movement or damage of any type of the retaining wall was visible.  There was no similar evidence visible on the outer eatern wall of the residence....

Hugh Taylor and Julia Sullivan - Australian Tree Consultants


Heaving of retaining wall

Click for larger image & comments

... but wait there is more "under oath" stuff that the Court believed!  Remember, Justice Malcolm Craig inspected the site yet he swallowed these statements!

There was no visual evidence such as cracking or subsidence of the outer wall of the applicant's residence to suggest that the tree root or roots could have exerted sufficient pressure to damage the foundations

Hugh Taylor and Julia Sullivan - Australian Tree Consultants

Cracks and outward movement of the wall

Click for larger image & comments

... and yet more for the gullible judge to swallow ......

There were no visual signs on the outer wall of the applicant's residence to suggest that there may have been any disturbance to the foundations or through physical tree root damage or from any other causes such as soil subsidence.

Hugh Taylor and Julia Sullivan - Australian Tree Consultants

Cracks in wall above root

Click for larger image & comments

... and then the ultimate misdirection of Justice Malcolm Craig... (remember, the property is built on soilid rock!)

It can only be assumed that the applicant's residence has been contructed on shallow sand based soil derived from the Hawkesbury sandstone that is found in the topograhic area of....

Hugh Taylor and Julia Sullivan - Australian Tree Consultants

Built on very solid rock

Click for larger image & comments

ALL of the other Respondents arborists (that were not hired) stated that the tree was the cause of the problem and some even suggested that we may be in some danger if the damage was allowed to continue.

2. The Pretenders

Engineers with RET after their name.  Watch out for these!  RET means far more than retired!  Queensland calls them "non-practising professional engineers". It also means that, unlike engineers who achieved their qualifications some years ago and due to their membership of Engineers Australia, have continuosly upgraded and honed their skills by keeping abreast of current science and engineering principles, the RET engineer has no such obligations.

Typically the RET will be negligent is his or her calculations and will be very casual with the facts of their submissions.  The RET will typically be oblivious to changes in engineering principles and discoveries; they have no obligation to keep their knowledge current and, unfortunately, do not always understand the consquences of this negligence.

Arborists who fit into this category are a little harder to identify; they are not obliged to put RET after their name. They are not obliged to keep their knowledge current and most in fact don't.  A perfect example of this is that the further education establishmemnts such as TAFE used to teach that tree roots could not cause damage to building foundations.  Science has subsequently shown this to be untrue and these establisments now ensure that a significant component of their curriculum includes educating new and current arborists and engineers in the cause and effects of tree roots on various structures.

The number of arborists who have not kept their knowledge current is extremely concerning and the fact that L&EC blindly accepts the credentials of these individuals in frightening.

Unfortunately, the Land and Environment Court lacks the capability, knowlege level or desire to adequately pick the difference between these charlatans and the State of New South Wales doesn't care!

Queensland has acted to stop Shonky Engineers - why hasn't New South Wales?

A 66-year old New Zealand man referred to Australian Federal Police by Engineers Australia in 2012 for misrepresentation has confessed to using a stolen identity and falsified credentials to pursue a lengthy and prolific engineering career.

Gerald Shirtcliffe, currently a resident of Victoria Point near Brisbane, appeared before the Queensland Magistrates Court on 12 June to plead guilty to 146 charges related to the performance of engineering work in both Australia and New Zealand using counterfeit qualifications. This has raised grave concerns about the safety of the many projects in which he participated.

These charges included making “false and misleading” statements to the Board of Professional Engineers of Queensland (BPEQ), as well as performing engineering work without being a registered professional.  For the full report click here.

Queensland has come down hard on shonky engineers, introducing new laws to name and shame them online for five years.  What has New South Wales done - absolutely nothing!

Under the Professional Engineers and Other Legislation Amendment Bill 2014 which was passed in state Parliament last week (Ocober 2014), a new clause allows for a person other than a registered professional engineer found guilty of an offence whether a conviction is recorded or not to have their full name published for five years on the board’s website.

The information will include details of the offence committed and the person’s full name and business address. This information will only be removed if the conviction has been quashed on appeal.

The legislation also replaces the term of “registered professional engineer” with “practising professional engineer”. The Bill also clarified types of practising engineers.  For more details click here.