Maguire v Crown in the Right of the State of New South Wales (North Ryde Public School)

[2007] NSWLEC 587

Land and Environment Court

of New South Wales

CITATION:

Maguire v Crown in the Right of the State of New South Wales (North Ryde Public School) [2007] NSWLEC 587

PARTIES:

APPLICANT
Joe Maguire

RESPONDENT
Crown in the Right of the State of New South Wales (North Ryde Public School)

FILE NUMBER(S):

20459 of 2007

CORAM:

Hoffman C - Brown C - Fakes AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :- Adverse affectation by trees on school property, damage to roof guttering and sewage pipes, constant maintenance on gutters and costs

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

31/08/07

EX TEMPORE JUDGMENT DATE:

31 August 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Maguire, litigant in person

RESPONDENT
Mr L. Sara, solicitor
of Leitch Hasson Dent

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C
Brown C
Fakes AC

31 August 2007

20459 of 2007 Joe Maguire v Crown in the Right of the State of New South Wales (North Ryde Public School)

JUDGMENT

1 This is an Appeal No. 20459 of 2007 between Joe Maguire v North Ryde Public School and the State of New South Wales in regard to adverse affectation by trees on the school property.

2 In respect of Mr Maguire’s property at No. 167 Lane Cove Road, North Ryde the hearing was held on the site and in the school property on the 31 August 2007. Attending on behalf of the school was Ms Goodsell, principal, Mr L. Sara, solicitor, Mr J. Abouchrouche, solicitor, Mr M. Weekes, asset manager for the Department of Education, Mr S. Martens, regional asset manager for the Department of Education.

3 Attending on behalf of the applicant was Mr Maguire, self represented.

4 At the commencement of the hearing Mr Maguire showed us the house on his property and it was clear that Casuarina needles from the row of trees on the adjoining school property covered part of his roof and the gutters. He also advised of problems with his sewer main through invasion of tree roots. It was clear that there were no other trees any where near the sewer except those on school property and the school did not contest the proposition that the roots must have come from that source.

5 Mr Maguire had been maintaining his property from time to time by cleaning the Casuarina needles off since he brought the property approximately 6 years ago. However, he said it is unreasonable, with the volume of tree leaves blocking his gutters, that he needed to clear them almost monthly and this had become an expensive problem and an excessive amount of maintenance.

6 In regard to the recent costs in maintenance he said that replacement of the gutters on the house had recently be carried out in the amount of $3600.00 including the garage. However this did not include replacement of gutters to the skillion roof section at the rear of the house that is the area which had recently received flood damage by the rains in July.

7 There had also been costs in the order of $900.00 for clearing of the roots on the sewer lines on his property. Due to that he had asked for a quote for the replacement of the sewer which apparently is terracotta pipes and the replacement would be PVC plastic at the cost of $3000.00.

8 In regard to the latest flood damage Mr Maguire said that he had deliberately not cleared the roof because of the pending Court hearing so that the evidence of leaves could be seen by the Court. Unfortunately this meant the heavy rains in July had once again caused flood damage inside the property and his insurance company had refused to pay in that case. On previous occasions the insurance company had paid because of evidence he had been able to furnish about clearing of the leaves on a regular basis. The cost of damage on the most recent occasion was $2389.00.

9 In response to this the respondent’s submissions were that the school sewer that ran beneath the line of Casuarina trees had in fact been broken about the same time as Mr Maguire had his damage, and repairs had to be effected.

10 There was an arborist report prepared by the Education Department saying that the Casuarina trees were probably self seeded, but they have a good life expectancy, and they added substantially to the amenity of the locality. In particular by screening a rather nondescript two-storey Telecom building on the adjoining property to the school immediately on the south side on the line of trees. The arborist said that the trees are perfectly healthy and conforming to their normal growth habit. From a from the technical point of view there is no reason to remove them as Mr Maguire sought.

11 In regard to these matters the Respondent said if there are any costs awarded they should be apportioned in the consideration of the existing house and the sewer being built probably in the 1950’s. Therefore some maintenance and replacement of things like the gutters and sewer lines could be expected. It was also noted that the new guttering is in aluminium extruded section whereas the original appeared from photos to be conventional galvanised steel. Also the gutter of the garage had been replaced at the same time, it being on the northern side of the property away from the trees.

12 Mr Maguire said there were Casuarina needles on the northern side of the house roof gutters but the main concentration appeared to be on the south. Also he had taken the precaution of including leaf-guard in the new guttering to try and minimise the problem in the future, at least on the tiled roof section.

13 The flat roof section of the house would continue to be a problem because of the flat pitch of the roof. The Casuarina needles would continue to gather on that into the future and be a continual source of maintenance.

14 Mr Maguire did say that he had owned the property for only six years. This meant that the trees would be well established at that time and probably nearly at the same height as they are now. To some extent one could say he should have anticipated the potential problems that might occur, and take an appropriate decision based on that when purchasing the property.

15 Aerial photos of the school, although not seen at the hearing, were said to show that in 1985 there were no trees in that particular location so they must have grown since. They are trees that grew after the house had been built, however they were also well established when Mr Maguire made the acquisition.

16 The Court has some sympathy for his position of ongoing maintenance which no doubt will cost some money on a regular basis.

17 In coming to a decision on this matter there was some discussion between the three Commissioners hearing the matter. It was decided on the basis of the planning principal established in appeal No. 20218 of 2007 Barker v Kyriakides [2007] NSWLEC 292 the Court could not sanction the removal of the trees because of:

• their contribution to the local environment and
• the principal which included that in urban environments there must always be an understanding of the need for maintenance and
• ultimately there must be replacement of parts of buildings that do wear out for one reason or another
• the dropping of leaves, flowers, fruits and seeds or small elements of dead wood by urban trees ordinarily would not provide a basis for ordering the removal of or intervention with an urban tree.

18 To a large extent the principle established in the above test case governs the decision made in these proceedings. However it is noted that the Ryde Council had issued a letter advising it has no objection to the trees being removed as they are not covered under the council’s Tree Preservation Order as they were within 3 meters of the Telecom building adjacent. Independent negotiation could take place between the parties if they so chose either for regular pruning of the trees in order to minimise the leaf drop, or any other legal agreement that might be reached between them.

19 In regard to the matters that we are prepared to determine we feel that due to the root damage to the sewer it is appropriate that full compensation be made in respect to those costs which I understand were $819.00. In respect of the replacement of the roof gutters we believe consideration should be given to the fact that the previous gutters were old and would need replacement at some time, probably not too differently than the time it has occurred. As a result we have set a proportion of approximately 10% setting a figure of $350.00 as a component in that respect.

20 In terms of the replacement of the sewer, once again one must appreciate it is a terracotta sewer pipes probably in the order of 50 years old. There is no doubt the tree roots might have expanded any cracks in the collar joints between individual pipes. It is difficult to know just what contribution roots would have made to the deterioration of the pipes. We have made an empirical decision simply to award an amount of $500.00 in that respect.

21 In regard to the recent flood damage, we believe it is unfortunate that the applicant made the decision to leave the Casuarina needles on the roof for the benefit of showing the Court. However, we don’t believe that action is a responsibility of the school, and therefore no award is made in respect to that matter.

22 Therefore the Orders of the Court are:

1. The appeal is upheld in part.

2. The component award for replacement of gutters is $350.00

3. The component award for repairs to sewer is $819.00.

4. The component award for replacement of the sewer pipes is $500.00.

5. No award for the cost of latest flood damage.

6. Payment to be made to Mr J. Maguire within 28 days of presentation of invoice to Leitch Hasson Dent solicitors of Level 12, 162 Goulburn Street, Sydney NSW 2000.

___________________

K G Hoffman
Commissioner of the Court

___________________

G T Brown
Commissioner of the Court

___________________

J Fakes
Acting Commissioner of the Court
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