Land and Environment Court New South Wales

• Medium Neutral Citation: Plevey v Ashcroft & Anor [2011] NSWLEC 1005
• Hearing dates: 4 January 2011
• Decision date: 04 January 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

1. The application is dismissed.

• Catchwords: TREES [NEIGHBOURS] - damage to property; leaf drop causing water damage; compensation.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
• Category: Principal judgment
• Parties: Cheryl Plevey (Applicant); Lisa Ashcroft (First Respondent); Patrick Whale (Second Respondent)
• File Number(s): 20792 of 2010

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Tamworth against the owners of a Jacaranda growing at the rear of an adjoining property.

2 The applicant is seeking the removal of the Jacaranda on the basis that leaves and flowers from the tree have blocked valleys and gutters on the roof of her house leading to internal water damage. She is concerned that unless the tree is removed, or reduced to two thirds of its size, this will continue to occur in the future.

3 The respondents do not want to remove the tree.

4 The applicant is also seeking the sum of $825 in compensation. This amount includes the Court filing fee for the application, a building report and amounts associated with insurance costs.

5 The applicant was informed that Commissioners do not have the jurisdiction to award costs associated with the making of an application and therefore this element of the claim is dismissed.

6 The damage, said to have been caused by the tree, occurred on or about 29 July 2010 during a heavy rain event. Water entered the ceiling of a sitting room located in the central eastern portion of the applicant's dwelling. The water caused damage to the ceiling, walls and floor tiles. Due to the extent of the damage, the applicant made a claim against her insurance policy.

7 The application also includes other areas of the applicant's roof and dwelling where gutters and roof channels become blocked and another room, which previously suffered water damage.

8 In response to a request for a copy of the report from the insurance company's nominated repairer (Daltrak Building Services) who assessed the damage, a letter from the NRMA dated 31 August 2010 states (in part):

...Our inspection confirmed that due to heavy rain water has entered the residence....A roof inspection revealed the corrugated iron roof to be in good order. We noticed debris that was caught in the valley flashing which may be the possible cause....There is water staining down the valley boards. The insured said she does clean the gutters and valleys out quite often but has a problem with the neighbour's jacaranda tree dropping leaves all the time. We did clean out debris out of the valley while we were on the roof as further rain was forecast....

9 The applicant tendered photographs of the wet room as well as images of tree debris caught on top of gutter guard on what appears to be the eastern side of the roof. There is also a photograph of vegetative material collected in a bucket. The applicant states that this was collected from the roof after the leak. The material appears to include leaf stalks, leaves and old flowers. The photographs were taken after the storm damage.

10 The applicant also sought a "Special Purpose Report" from Edwards & Froud Building Services Pty Ltd. An inspection was carried out on 18 August 2010 and the report "reference" is given as Jacaranda tree debris causing blockage and overflow issues to valleys and gutters at the above address.

11 The inspection report states that wind blown debris from the Jacaranda was seen on paths and driveways around the house, on the roof in the valleys, gutters and " blocked into, stacked on top of and compacted underneath gutter guard used on the house guttering ". The author of the report states that "at the time of our inspection the roof had been cleaned down approximately one week previously".

12 The photographs in the Court's copy of the report are black and white photocopies and do not clearly show much if any debris on paving or on the roof.

13 The report from Edwards & Froud concludes:

We are seeing ample evidence at both ground and roof level that debris from the jacaranda tree is building up and blocking surface drains, downpipes, gutters and valleys and pool filters.

This has already caused plaster, paint and carpet damage inside the dwelling. Externally, if blockages continue with water not being dispersed into the surface drainage system around the house, it may over the long term, create structural issues with the foundations of the house as the water cannot drain away.

14 At the hearing, the tree was inspected from both properties. It is a healthy mature specimen located in the rear of the respondents' property close to the dividing fence with the applicant. The tree is to the north-west of the applicant's dwelling. The closest edge of the canopy is some 14m from the nearest corner of the applicant's dwelling and some 26m to the nearest roof valley.

15 The applicant contends that strong winds blow debris from the tree onto her roof for 6-8 months of the year.

16 The relevant roof valleys and gutters were inspected from on top of the applicant's roof. Some fine leaflets from the Jacaranda were seen in the guttering on the north-western section of the roof (closest to the tree) and fine material was dislodged from under the sheets of corrugated iron adjacent to the valleys. Leaves from one or more Silky Oak trees ( Grevillea robusta) were also found in the valleys and in the gutters of the applicant's roof and in the gutter on the western side of the house adjoining the applicant's property to the east. The nearest Silky Oaks are two street trees near the front of the applicant's property.

17 The front portion of the applicant's dwelling is part of the old original cottage with a pitched roof typical of nearby dwellings. The rear of the dwelling is a later addition with a much lower pitch; much lower than all nearby properties. This observation was confirmed when the applicant's roof was viewed from the upper storey of the respondents' house.

18 It also appeared that the lower part of the roof valley on the eastern side, above the damaged room, is of limited width and at an angle that may divert water beneath the roofing sheets to the north. It is the applicant's position that the fine leaves from the Jacaranda prevent water from being effectively removed from the roof. She also stated that she had sought advice on what, if anything, could be done to exclude leaves from the valleys. She stated that the advice she received indicated that no gutter guard would be effective.

19 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

20 Putting the applicant's case at its highest, I am prepared to accept that the long-term build up of leaves from the Jacaranda is likely to have contributed to the water damage that occurred on the 29 July 2010. Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make an order.

21 However, in determining what, if any orders may be made under the discretionary powers enabled by s 9 of the Act, the Court must consider a number of matters under s 12. The relevant clauses in this case are:

(a) The tree is wholly located on the respondents' property.

(b2) The reduction in height by 2/3 as suggested as an alternative by the applicant would radically alter the form of the tree and, given the species' typical response to hard pruning, would most likely result in a larger tree in the long term.

(b3) The tree contributes to the landscaping and general amenity of the land on which it is situated.

(d) The respondents consider the tree contributes to the local ecosystem.

(e) The tree contributes to the scenic value of the land on which it is growing and to the locality.

(f) The Jacaranda can be seen from nearby properties and from the street and therefore contributes to public amenity.

(h)(i) Other contributing factors. In this case the pitch of the roof is very low and the width, slope and configuration of the valleys are such that they are likely to be less effective in dealing with heavy downpours than roofs with a steeper pitch and better defined valleys. It was stated that the damage occurred after heavy rainfall. Leaves from the Silky Oak street trees also blow onto the applicant's roof.

(h)(ii) Actions of the parties. The applicant has installed gutter guard and states that she does clean the gutters but said that wet weather during winter limits the number of times this can be done. The respondents stated that they have not had to clear their roof in the 12 months they have lived there. There is disagreement between the parties as to when the applicant notified the respondents of her concerns about the tree. The respondents contend that the first request to remove the tree was made by the applicant on 8 August 2010. The applicant states that she had discussed the tree with one of the respondents on at least one previous occasion. The applicant stated that she raised the problem with the previous owner of the tree in 2007 but did not receive a positive response.

22 After viewing the evidence and inspecting the situation I make the following observations. The nearest part of the tree's canopy is a considerable distance, more than 26 m, from the roof valley in contention. While I did see some fine leaf material in the gutters, I also saw debris from the Silky Oak street trees. I consider that the fine material dislodged from under the corrugated iron sheets near the valleys would have taken some time to accumulate, certainly much longer than the 12 months that the respondents have owned their property.

23 The photographs said to have been taken immediately after the water damage show that there was a reasonable amount of debris on the roof and that this does not demonstrate 'regular cleaning'. Some of the material appeared to be old flowers. Jacarandas shed most of their flowers in November and December although there may be a second flowering and shedding later in summer. It would therefore appear that the roof might not have been cleared for some considerable time prior to the storm.

24 The 'Special Purpose Report' prepared by Edwards & Froud is narrowly focussed on the debris from the Jacaranda and does not consider any other factors that may have contributed to the water damage. This may reflect the brief from the client but as the author of the report was not present at the hearing, the brief can only be assumed from the written report. Despite the limitations of the photocopied photographs in the report they do not support the conclusions. The conclusions made in the report about possible future damage to foundations are not supported by any substantiated evidence or opinion.

25 The inspection advice from Daltrack cited in paragraph 7 of this judgment states that debris caught in the valley flashing may be a possible cause of the water damage and the assessor relies on the applicant's statement regarding the regularity of roof clearing.

26 The Court has published a tree dispute principle in Barker v Kyriakides [2007] NSWLEC 292. This states that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide.

27 It is the applicant's position that her situation greatly exceeds what would 'ordinarily' be considered a 'reasonable expectation' to maintain her premises.

28 In conclusion, on the evidence before me, I consider that there are no exceptional circumstances that would lead me to depart from the principle in Barker v Kyriakides and no order will be made with respect to the falling of leaves and other debris from this tree. The tree is a considerable distance from the applicant's roof and the roof is safely and easily accessible. In my view, the low pitch of the roof and the configuration of the valleys combined with infrequent clearing of debris over a number of years and a heavy downpour are the main factors contributing to the damage.

29 As a result of the forgoing, the Orders of the Court are:

(1) The application in its entirety is dismissed.

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J Fakes

Commissioner of the Court

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Decision last updated: 31 January 2011