Sabellano v Velevski - [2022] NSWLEC 1471

Land and Environment Court

New South Wales

Medium Neutral Citation: Sabellano v Velevski [2022] NSWLEC 1471
Hearing dates: 26 May 2022
Date of orders: 8 September 2022
Decision date: 08 September 2022
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders:
(1) Within 28 days of the date of these orders, the respondents shall pay the applicants $10,176.00 by E.F.T. or Bank Cheque, as compensation for plumbing damage.
(2) Within 60 days of the date of these orders, the respondents, at their expense, shall remove the Lemon Scented Gum and the Spotted Gum to near ground level and poison their stumps. These works shall be undertaken by AQF level 3 arborists, with all appropriate insurances.
(3) Within 90 days of the date of these orders, the existing boundary fence between the properties shall be replaced with a green Colorbond fence, matching the existing green Colorbond fence on the applicants’ land. In the first instance, the respondents shall pay the fencing contractor.
(4) To facilitate the works in Order 3, each party shall procure up to two quotations from licenced fencers or landscapers with all appropriate insurances. The apportionment of the cost for these works shall be based on the cheapest of these quotations, subject to the chosen contractor satisfying the licencing and insurance requirements of the said order.
(5) Within 7 days of the completion of the works in Order 3, the respondents shall provide the applicants with a copy of an itemised paid invoice for the fencing works.
(6) Within 7 days after receipt of the paid invoice in Order 5, the applicants shall reimburse the respondents by E.F.T. or Bank Cheque, for a quantum of 50% of the cheapest of the acceptable quotations from licenced, insured contractors, regardless of whether the respondents chose to proceed on the basis of a more expensive quotation.
(7) Where access is required to complete these works, or for the purpose of gaining quotations, the applicants shall provide access to the respondents, or contractors employed by the respondents, who have all appropriate insurances, upon receipt of no less than 48 hours written notice of date and approximate time of works.
(8) All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(9) All works shall be completed during normal work hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property - apprehension of further damage, and risk of injury - tree removal and compensation sought

Legislation Cited:
Dividing Fences Act 1991
Environmental Planning and Assessment Act 1979
Limitations Act 1969
Native Vegetation Act 2003
Trees (Disputes Between Neighbours) Act 2006 s7, 8, 9, 10, 12

Cases Cited:
Moroney v John [2008] NSWLEC 32
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS4790:2009 - Protection of Trees on Development Sites
Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category: Principal judgment
Parties: Giselo Sabellano (First Applicant)
Gertrudes Sabellano (Second Applicant)
Saso Velevski (First Respondent)
Mira Velevska (Second Respondent)
Representation:

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 Sabellano v Velevski

Details

AGLC: Sabellano v Velevski [2022] NSWLEC 1471
Case: [2022] NSWLEC 1471
Decision Date: 08 September 2022

CaseChat Overview and Summary

Sabellano v Velevski is a case before the Local Court of New South Wales where the applicants, the Sabellanos, are seeking compensation and remediation from the respondents, the Velevskis, for damage caused to their property. The applicants allege that the respondents' trees have caused significant damage to their property, including a fence and plumbing infrastructure. They seek financial compensation and remediation of the damage caused by the trees.

The primary legal issue before the court was whether the respondents were liable for the damage caused by the trees on the applicants’ property and, if so, what the appropriate remedy should be. The applicants argued that the roots of the trees had caused significant damage to their property, and that the respondents were responsible for the damage under the common law principles of nuisance and negligence. The respondents argued that they were not responsible for the damage, and that the applicants had not provided sufficient evidence to support their claims.

The court found that the applicants had provided sufficient evidence to establish that the respondents were responsible for the damage caused by the trees on their property. The court found that the respondents were liable for the damage caused by the trees under the common law principles of nuisance and negligence. The court also found that the appropriate remedy was for the respondents to pay compensation to the applicants and to undertake remediation works to remove the trees and replace the fence. The court ordered the respondents to pay the applicants $10,176.00 in compensation, remove the trees to near ground level and poison their stumps, and replace the boundary fence between the properties. The court also set out detailed provisions for the apportionment of the cost of the fencing works, the provision of access for the works, and compliance with safety regulations.

In conclusion, the court found in favour of the applicants and ordered the respondents to pay compensation and undertake remediation works to address the damage caused by the trees on the applicants’ property. The court set out detailed provisions for the apportionment of the cost of the fencing works, the provision of access for the works, and compliance with safety regulations. The respondents have been given specific timeframes to complete the works and to reimburse the applicants for their share of the cost of the fencing works.

Orders

Orders of the court

The Court orders:

(1) Within 28 days of the date of these orders, the respondents shall pay the applicants $10,176.00 by E.F.T. or Bank Cheque, as compensation for plumbing damage.

(2) Within 60 days of the date of these orders, the respondents, at their expense, shall remove the Lemon Scented Gum and the Spotted Gum to near ground level and poison their stumps. These works shall be undertaken by AQF level 3 arborists, with all appropriate insurances.

(3) Within 90 days of the date of these orders, the existing boundary fence between the properties shall be replaced with a green Colorbond fence, matching the existing green Colorbond fence on the applicants’ land. In the first instance, the respondents shall pay the fencing contractor.

(4) To facilitate the works in Order 3, each party shall procure up to two quotations from licenced fencers or landscapers with all appropriate insurances. The apportionment of the cost for these works shall be based on the cheapest of these quotations, subject to the chosen contractor satisfying the licencing and insurance requirements of the said order.

(5) Within 7 days of the completion of the works in Order 3, the respondents shall provide the applicants with a copy of an itemised paid invoice for the fencing works.

(6) Within 7 days after receipt of the paid invoice in Order 5, the applicants shall reimburse the respondents by E.F.T. or Bank Cheque, for a quantum of 50% of the cheapest of the acceptable quotations from licenced, insured contractors, regardless of whether the respondents chose to proceed on the basis of a more expensive quotation.

(7) Where access is required to complete these works, or for the purpose of gaining quotations, the applicants shall provide access to the respondents, or contractors employed by the respondents, who have all appropriate insurances, upon receipt of no less than 48 hours written notice of date and approximate time of works.

(8) All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(9) All works shall be completed during normal work hours.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sabellano v Velevski [2022] NSWLEC 1471
Hearing dates:	26 May 2022
Date of orders:	8 September 2022
Decision date:	08 September 2022
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders: (1) Within 28 days of the date of these orders, the respondents shall pay the applicants $10,176.00 by E.F.T. or Bank Cheque, as compensation for plumbing damage. (2) Within 60 days of the date of these orders, the respondents, at their expense, shall remove the Lemon Scented Gum and the Spotted Gum to near ground level and poison their stumps. These works shall be undertaken by AQF level 3 arborists, with all appropriate insurances. (3) Within 90 days of the date of these orders, the existing boundary fence between the properties shall be replaced with a green Colorbond fence, matching the existing green Colorbond fence on the applicants’ land. In the first instance, the respondents shall pay the fencing contractor. (4) To facilitate the works in Order 3, each party shall procure up to two quotations from licenced fencers or landscapers with all appropriate insurances. The apportionment of the cost for these works shall be based on the cheapest of these quotations, subject to the chosen contractor satisfying the licencing and insurance requirements of the said order. (5) Within 7 days of the completion of the works in Order 3, the respondents shall provide the applicants with a copy of an itemised paid invoice for the fencing works. (6) Within 7 days after receipt of the paid invoice in Order 5, the applicants shall reimburse the respondents by E.F.T. or Bank Cheque, for a quantum of 50% of the cheapest of the acceptable quotations from licenced, insured contractors, regardless of whether the respondents chose to proceed on the basis of a more expensive quotation. (7) Where access is required to complete these works, or for the purpose of gaining quotations, the applicants shall provide access to the respondents, or contractors employed by the respondents, who have all appropriate insurances, upon receipt of no less than 48 hours written notice of date and approximate time of works. (8) All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (9) All works shall be completed during normal work hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property - apprehension of further damage, and risk of injury - tree removal and compensation sought
Legislation Cited:	Dividing Fences Act 1991 Environmental Planning and Assessment Act 1979 Limitations Act 1969 Native Vegetation Act 2003 Trees (Disputes Between Neighbours) Act 2006 s7, 8, 9, 10, 12
Cases Cited:	Moroney v John [2008] NSWLEC 32 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4790:2009 - Protection of Trees on Development Sites Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	Giselo Sabellano (First Applicant) Gertrudes Sabellano (Second Applicant) Saso Velevski (First Respondent) Mira Velevska (Second Respondent)
Representation: