Sabellano v Velevski [2022] NSWLEC 1471

Sabellano v Velevski [2022] NSWLEC 1471

The roots from the respondents' Lemon Scented Gum and Spotted Gum caused damage to the applicants' sewer pipes. Compensation is payable for qualifying plumbing damage within the six-year limitation period, discounted for age and condition of the structure. Removal of the trees is necessary as no viable alternative (such as a root barrier) exists that would prevent future damage without unduly harming or destabilising the trees. Fence replacement costs are to be equally apportioned between the parties due to the primary cause being age and deterioration rather than tree damage.

Parties
First Applicant: Giselo Sabellano; Second Applicant: Gertrudes Sabellano; First Respondent: Saso Velevski; Second Respondent: Mira Velevska
Jurisdiction
Australia
Judgment Date
08 September 2022
Procedural Posture
Trees (disputes Between Neighbours) Application / Judgment After Final Hearing
Outcome
Orders made for payment of compensation, tree removal, fence replacement, cost sharing, and access and compliance requirements.
Legal Topics
Tree Disputes, Neighbour Disputes, Damage to Property, Compensation for Damage, Dividing Fences, Remedies
Environmental Law Property Law Tree Disputes Neighbour Disputes Damage to Property Compensation for Damage Dividing Fences Remedies

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Parties

Giselo Sabellano

First Applicant

Gertrudes Sabellano

Second Applicant

Saso Velevski

First Respondent

Mira Velevska

Second Respondent

Procedural Posture

Trees (disputes Between Neighbours) Application / Judgment After Final Hearing

Legal Issues

  1. 1 Whether tree roots from the respondents' property caused or are likely to cause damage to the applicants' property within the meaning of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether the applicants are entitled to compensation for plumbing damage
  3. 3 Whether the trees should be removed

Ratio Decidendi

The roots from the respondents' Lemon Scented Gum and Spotted Gum caused damage to the applicants' sewer pipes. Compensation is payable for qualifying plumbing damage within the six-year limitation period, discounted for age and condition of the structure. Removal of the trees is necessary as no viable alternative (such as a root barrier) exists that would prevent future damage without unduly harming or destabilising the trees. Fence replacement costs are to be equally apportioned between the parties due to the primary cause being age and deterioration rather than tree damage.

Court Disposition

Orders made for payment of compensation, tree removal, fence replacement, cost sharing, and access and compliance requirements.

Orders

  • Within 28 days, respondents to pay applicants $10,176.00 by E.F.T. or Bank Cheque as compensation for plumbing damage.
  • Within 60 days, respondents to remove the Lemon Scented Gum and the Spotted Gum to near ground level and poison their stumps at their expense, using AQF Level 3 arborists with appropriate insurances.