Sait v Mason

[2007] NSWLEC 293

Land and Environment Court

of New South Wales

CITATION:	Sait v Mason [2007] NSWLEC 293
PARTIES:	APPLICANT Murray Sait RESPONDENT Steven and Judith Mason
FILE NUMBER(S):	20194 of 2007
CORAM:	Moore C - Hussey C - Fakes AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- Claim for compensation
DATES OF HEARING:	24 May 2007
EX TEMPORE JUDGMENT DATE:	24 May 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
HUSSEY C
FAKES AC

24 May 2007

07/20194 Murray Sait v Steven and Judith Mason

JUDGMENT

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

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006. The application was lodged by Mr Sait, an owner of 8 Delando Cresent Marks Point, concerning a number of trees located along the boundary of his property and growing in 6 Delando Cresent. Mr and Mrs Mason own 6 Delando Cresent.

2 When we attended the site, the trees which were the subject of the application had all been removed by Mr and Mrs Mason and no issues remained pressed by Mr Sait with respect to removal of the trees.

3 However, Mr Sait has pressed a claim for compensation for what he says is the damage to his property and costs incurred by him and his wife in rectifying that damage and preventing further damage.

4 The first element of the damage which is the subject of Mr Sait’s claim is said to result from the falling of a variety of material from a number of the trees located in Mr Mason's property. This material comprised foliage, dead branches and fruit, from a number of palm trees, falling into the vicinity of the swimming pool constructed by Mr Sait in his backyard along the boundary with the Mason property.

5 The second element of the damage which is the subject of Mr Sait’s claim is said to result from leaf and other vegetative materials falling into the gutters of Mr Sait’s house from fruit trees, a deciduous tree and needles from a pine tree all located closer to the front of the Sait house - that is to the north of the backyard area.

6 The claim for compensation is in three parts:

• the first is a claim for $1756.00 for installing gutter guard in Mr Sait’s gutters;
• the second is a claim for $104.75 for a high pressure water cleaner which was used by Mr Sait for cleaning the surrounds of the swimming pool and other hard areas because of the impact by the falling fruit and by the droppings of animals feeding on the fruit of paw paw and palm trees; and
• finally, a claim for $625 for the services of persons, described in the claim as “tree loppers”, who have been employed by Mr Sait in the past.

7 The total amount claimed is $2485.75

8 With respect to the final element, no receipt is available for this work and, consistent position taken by the Court in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128, claims which are not supported by any receipt or other forms of adequate supporting documentation will not be entertained by the Court. We, therefore, discard that element of the claim.

9 Concerning the other two elements claimed, in Barker v Kyriakides [2007] NSWLEC 292, a case recently decided under this legislation, we set out the relevant principle which concerns urban trees and ordinary maintenance.

10 This principle is in the following terms:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

11 We are satisfied that this principle applies equally to the question of claims for compensation arising from the dropping of leaves, flowers, fruit, seeds or small elements of deadwood from such urban trees.

12 There are no extraordinary circumstances in this case.

13 On that basis, we do not consider it appropriate to award Mr Sait any compensation for either of the matters that he has claimed and for which receipts are available.

14 If we are wrong in adopting that position, we are also satisfied that Mr Sait chose to locate the swimming pool that has been constructing his backyard adjacent to the boundary of the Mason property with full knowledge that the trees which have occasioned the claimed impacts were already located in that area.

15 Mr Sait located the pool on the Masons’ boundary rather than locating it elsewhere in his back yard where ample space was available and where it would not have been impacted by the Masons’ trees. This meant that the pool came to the nuisance rather than the nuisance coming to it.

16 Similarly, the design and erection of the house has been undertaken with it oriented and located adjacent to the eastern boundary of the allotment towards where the Masons’ trees were already growing. To that extent, the house itself came to these trees which provided the impact of the leaf litter and the like into the gutters.

17 Therefore, on those grounds alone, we would also reject Mr Sait’s claim for compensation.

18 As there is no need to consider the question of orders concerning the trees and as the claim for compensation fails, the application is dismissed.

Tim Moore

Commissioner of the Court

Bob Hussey

Commissioner of the Court

Acting Commissioner of the Court