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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sait v Mason

Details

AGLC: Sait v Mason [2007] NSWLEC 293
Case: [2007] NSWLEC 293
Decision Date: 24 May 2007

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Murray Sait, the applicant, sought compensation from Steven and Judith Mason, the respondents, for damage to his property allegedly caused by trees growing on the Masons' property. The Masons removed the trees in question before the hearing, leaving only the compensation claim. Sait's claim included expenses for installing gutter guards, using a high-pressure water cleaner, and employing tree loppers. However, the Court discarded the claim for tree lopper services due to lack of receipts, following a precedent. The Court applied the principle that urban residents should expect to maintain their properties despite the natural effects of nearby trees.

The central legal issue was whether Sait was entitled to compensation for the damage caused by the falling tree debris from the Masons' trees. The Court considered whether the damage was due to ordinary maintenance or if it was extraordinary. The Court concluded that the damage was part of the ordinary maintenance expected in an urban environment with trees nearby. Additionally, the Court found that Sait had intentionally located his swimming pool and house in areas where the Masons' trees would inevitably cause some impact.

The Court held that the damage resulting from the trees' natural effects did not warrant compensation because it was part of the expected maintenance in an urban setting. Furthermore, the Court noted that Sait had chosen to place his swimming pool and orient his house in a way that brought them into close proximity to the Masons' trees, thus contributing to the problem. Therefore, the Court rejected Sait's claim for compensation and dismissed his application.

The final orders of the Court were that the application was dismissed, and no compensation was awarded to Mr. Sait. The Court did not find it necessary to make any orders concerning the trees since they had already been removed by the Masons.

Orders