NSW: Q&A Strata Title Trees and Hedges – What Can & Can’t the OC do?

This Q&A article is about community schemes and strata title trees and hedges.

Table of Contents:

• QUESTION: Is a special resolution required for the removal of a large hedge at the front of our five lot strata building?
• QUESTION: Two large common property trees are blocking views and sunlight in our 5 lot scheme. The majority want them trimmed, but two owners disagree and say we cannot trim the trees. How do we proceed?
• QUESTION: One townhouse in our complex has a tree growing within their lot that is now covering a section of the roof and contributing to blocked gutters. Can you please confirm whether or not it is the unit owner or the Strata’s responsibility to prune the offending tree?
• QUESTION: A large tree in our garden blocks the view of the harbour for 2 of the units in our building. Who should pay for pruning if the benefit of pruning is for 2 units only?
• QUESTION: What are strata’s legal obligations if there is a dangerous and dead tree on the property requiring removal?
• QUESTION: I’m concerned about the height of the trees in my yard. Should I have insurance other than contents insurance just in case the trees damage my property?
• QUESTION: The owners corporation has removed a tree which provided our apartment with shade and privacy. Does the owners corporation have any obligations to replace the tree?
• QUESTION: In a duplex, we each have exclusive use of our yard and garden. Isn’t this therefore our responsibility to maintain? The other lot owner would like the owners corporation to remove a tree.
• QUESTION: Our boundary hedge overlapped common property. With no consultation, 2 committee members arranged for it to be trimmed severely resulting in damage to the fence. How can this be right?
• QUESTION: One of our lot owners has experienced damage caused by tree roots from a neighbour. Who is responsible for the cost of the remedial works to the adjoining property, the strata neighbour or the strata body?
• QUESTION: A tree is on private property but passes into my airspace and into common property airspace. If it presents a potential threat to the common property roof because it leans over it, who is responsible for the removal of dangerous trees?

Question: Is a special resolution required for the removal of a large hedge at the front of our five lot strata building?

Our block of 5 units has a very large hedge at the front of the property. The hedge provides privacy from the street for two of the apartments. The hedge also provides the building with its streetscape appeal. Is a special resolution required for the removal of the hedge?

Answer: In our view a special resolution would be required.

In our view, yes, a special resolution would be required because you are “changing” the common property for the purpose of improving or enhancing it (as opposed to exercising the owners corporation’s repair & maintenance duty). Additionally, you should ensure you comply with local council’s requirements regarding removal of the hedge.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #559.

Question: Two large common property trees are blocking views and sunlight in our 5 lot scheme. The majority want them trimmed, but two owners disagree and say we cannot trim the trees. How do we proceed?

In a block of 5 units, we have two trees in our common garden. The trees have grown considerably and now block views, light and sunlight.

The majority in the block would like to trim, not remove, the tree. The vote was 3 for and 2 against. The two top units object, as the tree height doesn’t affect them and they are insisting that we cannot carry out works. How do we proceed?

Answer: The common property tree should be pruned by the Owners Corporation as part of its repair and maintenance function.

The common property tree should be pruned by the Owners Corporation as part of its repair and maintenance function. As the Owners Corporation has a positive duty to repair and maintain the common property, it can’t vote against doing so unless a special resolution has been passed to determine that the item of common property is inappropriate to maintain, renew, replace or repair and that that decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

Before any pruning takes place, you should contact your local council, as in NSW, most councils require a permit unless an exemption applies. You need to make these enquiries from Council and also seek the Owners Corporation’s consent for pruning of the tree (the Owners Corporation would likely need Council consent for pruning too). You may not prune the tree without authorisation from the Owners Corporation.

You may have rights against the Owners Corporation to seek Orders that the Owners Corporation maintain the tree through NCAT. You will need to seek legal advice on the issue of obstruction to sunlight, views etc as this may fall under the law of nuisance which may require Supreme Court relief.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #518.

Question: One townhouse in our complex has a tree growing within their lot that is now covering a section of the roof and contributing to blocked gutters. Can you please confirm whether or not it is the unit owner or the Strata’s responsibility to prune the offending tree?

Answer: Once you determine where the tree sits, in lot property or common property, that will then determine the responsible party to prune that tree.

That’s a tricky one because you have to go back to the strata plan. The strata plan will generally define where the common property starts and finishes (the depth). Generally, they might say that the lot owner space is from the upper surface of the hard flooring or the tiled surface in a courtyard, (I’m assuming there’s a courtyard where the street is located), and then it might limit the height to two metres high or three metres high. If the tree exceeds the height limit that’s noted on the strata plan, it now becomes common property.

Let’s say the limited height is two metres and the tree is three metres high. The Owners Corporation will prune it back to two metres, then anything below two metres will be the owners responsibility because it’s going back into their lot space.

You’d need to go back to the strata plan and have a look at what the definition of lot property versus common properties is for the courtyard and the cubic air space within that courtyard to determine where the tree sits. Once you determine where the tree sit, in lot property or common property, that will then determine the responsible party to prune that tree.

This is assuming the tree is in a courtyard that is attached to an individual lot as opposed to a communal courtyard. If the tree is in a common courtyard, then the Owners Corporation is responsible to prune the tree back.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #506.

Question: A large tree in our garden blocks the view of the harbour for 2 of the units in our building. Who should pay for pruning if the benefit of pruning is for 2 units only?

We have a beautiful jacaranda tree in our garden which has grown and now blocks the view of the harbour for 2 of the units in our building. We are a building of 5 units. The 2 units on the ground level do not have a view of the harbour due to the configuration of the garden in relation to those units. The two units on the middle level have partial views which are obstructed by the jacaranda tree. The top unit has views as it is higher than the tree.

The middle 2 units want to prune the tree to give them better views. They want the strata to pay for the pruning under the heading of garden maintenance.

Who should pay for pruning if the benefit of pruning is for 2 units only? The tree itself is healthy and otherwise does nor require pruning.

Answer: If the base of the tree, bush or hedge is on common property, then the Owners Corporation will have a responsibility to keep this managed. If it’s on the individual lot owner’s parcel of land, then the responsibility to trim or maintain it will be theirs.

If the base of the tree, bush or hedge is on common property, then the Owners Corporation will have a responsibility to keep this managed. If it’s on the individual lot owner’s parcel of land, then the responsibility to trim or maintain it will be theirs. Issues, where there are disputes, are addressed under the Trees (Disputes Between Neighbours) Act 2006 (NSW).

There is a process that can assist in this matter. Firstly, a 21-day notice must be provided to the owner of the lot with the tree in question by the affected owner/s, with the notice detailing what orders will be sought if the matter is taken to the Land Environment Court. During this time, the owner of the lot with the obstructing tree in question can attempt to come to an agreement with the affected owner/s. If owners reach a resolution, then the following steps will not be needed.

If no resolution is reached, then an application to the Land Environment Court can be made by the affected owner/s to resolve the matter. The Land Environment Court can make orders that the said tree be pruned and maintained at a specific height.

Michael Smythe
NSW Branch Manager
Civium Communities
E: [email protected]

This post appears in Strata News #460.

Question: What are strata’s legal obligations if there is a dangerous and dead tree on the property requiring removal?

What are strata’s legal obligations if there is a dangerous and dead tree on the property requiring removal?

Are there regulations around how often trees must be inspected and, if so, what is the timeframe for this? Surely there are obligations to inspect and remove any large dead trees that pose a risk. A tree on our common property was noted as dead for 3+ years. It was requested to be removed one week ago and since then it has fallen and damaged 3 cars.

Answer: If the tree is on the common property it is the responsibility of the owners corporation.

If the tree is on the common property it is the responsibility of the owners corporation. Your owners corporation should have taken steps to stabilise/isolate the tree and should have approached local council to obtain permission to remove it. We are not aware of any regulations regarding the frequency of tree inspections, however, the owners corporation does have a duty to repair and maintain the common property including the subject tree.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in the December 2020 edition of The NSW Strata Magazine.

Question: I’m concerned about the height of the trees in my yard. Should I have insurance other than contents insurance just in case the trees damage my property?

I live in a happily managed block of 11 townhouses. In my back courtyard, I have two tall paperbark trees. I’m concerned about their height.

I have been told that if the trees damage either my or my neighbours property, I am solely responsible. Should I have insurance other than contents insurance in case this occurs?

Answer: The basic principle when owning in a strata is to ensure you have contents insurance with a reputable company to avoid any gaps in cover.

The basic principle when owning in a strata is to ensure you have contents insurance with a reputable company to avoid any gaps in cover.

Contents insurance should include cover for Public Liability (also known as legal liability). This is designed to provide cover for legal liability associated with damage to others property.

Legal responsibility is a matter that is determined by legal professionals (and judges if the matter goes to court) factoring all considerations.

At the time of a claim the insurer should indemnify the insured and either seek to settle or defend the claim for damages.

Tyrone Shandiman
Strata Insurance Solutions
E: [email protected]
P: 07 3899 5129

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in Strata News #373.

Question: The owners corporation has removed a tree which provided our apartment with shade and privacy. Does the owners corporation have any obligations to replace the tree?

The owners corporation has removed a tree from our boundary fence. It provided my apartment with privacy.

I was not notified it was being cut down. We now have no privacy and other apartments can see directly into our property.

Can we request a new tree as it has changed the temperature and privacy of our place? Does the owners corporation have any obligations to replace the tree?

Answer: If the tree was on common property there is no requirement to replace it.

If the tree was on common property, there is no requirement by the scheme under the Strata legislation to replace it.

If it is within an owners lot space they probably can remove the part of the tree that has gone into common property (ie is not in the owners air space), but this would not include removal of a whole tree.

Karina Heinz
W: https://www.prostrata.com.au/
E: [email protected]
P: 02 9389 9599

This post appears in Strata News #373.

Question: In a duplex, we each have exclusive use of our yard and garden. Isn’t this therefore our responsibility to maintain? The other lot owner would like the owners corporation to remove a tree.

I live in a duplex. Both units have exclusive use of their yard and gardens.

The owner of the other unit is requesting the owners corporation pay to remove a tree that they have been maintaining for years.

Is the exclusive use of an area the responsibility of the lot owner? Do we each have to maintain our own gardens etc?

Answer: Not always.

Not always.

You will need to review the by-law in question because the terms of the exclusive use by-law will specify who is to repair and maintain the tree (or remove it).

You should double-check your strata plan too, because it is unusual for a duplex to have exclusive use of their respective gardens/courtyards. Generally, these would be on title.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #371.

Question: Our boundary hedge overlapped common property. With no consultation, 2 committee members arranged for it to be trimmed severely resulting in damage to the fence. How can this be right?

We own a townhouse in a strata complex with 17 other units. My husband and I have owned the unit for approximately 8 yrs.

Our townhouse, as documented with the NSW Land & Property Information indicates we are owners of ‘anything within the cubic air space of the lot belongs to that lot and is the responsibility of that lot owner’. This is mainly in reference to our lot private courtyard. The stratum of the courtyard extends between 3 metres below and 5 metres above the upper surface of the ground floor of the respective adjoining respective unit except where covered.

The problem is our back timber fence is only 1.5 meters high. This fence divides our lot between council nature strip, main road and a bus stop in which is approx 2 meters in distance from the dividing fence. My husband and I planted a Lilly Pilly hedge in our lot 4 yrs ago to give privacy, security and improve the courtyard appearance.

My husband is on the Executive Committee as secretary. The hedge’s soft green foliage was thick and beautifully cascading over the road side of the fence and was enhancing our street view for our lot.

Without any prior warning or written consent, 2 members from the executive committee arranged our lawn mowing contract worker to cut off the foliage extending over council property. This was done using a chain saw and was cut 1 metre above the 1.5 meter dividing fence. Our privacy hedge was severely damaged by this chain saw, including damaging the timber fence (common property). This was done and arrange on a Friday evening while we were not home.

Our beautiful foliage was removed and organised to be taken to the local tip using the strata funding.

My husband and I are distressed with the violation of our property and damage to our hedge which took years to achieve a beautiful privacy screen. What is our legal position with this violation of our property that was planted in our lot?

Answer: You may have rights to pursue the Owners Corporation in the Land & Environment Court for damage to your tree.

You may have rights to pursue the Owners Corporation in the Land & Environment Court for damage to your tree. Also, the Owners Corporation is liable for damage caused to your property and to repair the damage caused to the common property.

There may be issues of trespass if they entered your property without your consent. Further, pruning of the trees may be in violation of Council requirements.

You should contact the local council first.

This website has useful information: Find Legal Answers: Neighbours and the Law

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #236.

Question: One of our lot owners has experienced damage caused by tree roots from a neighbour. Who is responsible for the cost of the remedial works to the adjoining property, the strata neighbour or the strata body?

Our strata scheme in NSW self-manages our six properties. I am hoping that you can provide some advice on the following matter.

Each of the six properties has a back garden area within their lot boundary which is maintained and upgraded at the owners expense. One of the properties has a large tree within their lot boundary that was originally planted by the developer. The current owner purchased the property new when the tree was relatively small and over the last few years, the tree has become quite large (over 3 metres).

Recently one of the owners in an adjoining strata property encountered problems due to damage caused by tree roots from a neighbour. The tree roots encroach underground into the boundary of their lot, resulting in the need for remedial works be undertaken. The owner of the damaged property paid to put in a root barrier system and re-laid damaged pavers in their entertainment area within their lot. My questions are as follows:

1. Does the strata body have any responsibility for the tree within the owner’s lot boundary?
2. Who is responsible for the cost of the remedial works to the adjoining property, the strata neighbour or the strata body?
3. Can either the strata body or the neighbour ask the lot owner to remove the tree at their own expense to ensure that other properties are not affected by damage caused by tree roots from a neighbour?

I thank you for your assistance in this matter.

Answer: What is within the lot owner’s boundary is the responsibility of that individual owner.

Does the strata body have any responsibility for the tree within the owner’s lot boundary?

What is within the lot owner’s boundary is the responsibility of that individual owner. However, it appears that the tree has encroached into common property and caused damage to a neighbour’s property.

Who is responsible for the cost of the remedial works to the adjoining property, the strata neighbour or the strata body?

Your strata plan will likely indicate what the stratum of the lot is and how far the tree roots have encroached. If you are certain that that lot owner’s roots have caused damage to the neighbour, then the root lot owner is responsible. In other words, the root lot owner should pay for the remedial works and all other damage caused by his tree.

Can either the strata body or the neighbour ask the lot owner to remove the tree at their own expense to ensure that other properties are not affected by damage caused by tree roots from a neighbour?

Council will have restrictions on the type of planting and whether trees can be removed, so ensure you consult Council first. Also, the development consent for the building may impose requirements for the planting of specific trees. Further, the tree may be subject to a tree preservation order. In any event, you may have rights to sever the roots at the boundary line but you would need both consents of the tree owner and approval of Council.

So, while you may certainly ask, it is unlikely the owner will want the expense and inconvenience of removing the tree and all the approvals must first be obtained.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #204.

Question: A tree is on private property but passes into my airspace and into common property airspace. If it presents a potential threat to the common property roof because it leans over it, who is responsible for the removal of dangerous trees?

I live in an NSW over 55 complex comprised of 12 lots. There is a 20 metre high tree that was there when the development was approved and it grows in a private courtyard on ground level below my unit.

The tree extends beyond the courtyard owners airspace (4.5 metres above ground level as per the survey plan) past my airspace and above my unit over the common property roof. I can touch the branches from my balcony as the tree leans toward the building.

The tree leans over the common property roof and there is quite a large amount of overhang – as assessed by an arborist who said it needs a trim and the dead branches above need lopping. This will give it stability and strength.

Problem: the tree leans toward the building and directly over my living room. I am concerned it will fall in a storm and cause damage to my unit or injury to me or visitors if it falls.

Taking all of this into account, who is responsible for the removal of dangerous trees from common property?

The Strata Manager advised me it is between me and the owner below as he has seen many cases like this in the Land and Environment Court and they have held it depends on where the tree grows from and in this case it grows from a private property so I have to ask the owner to trim the tree. In other words, the removal of dangerous trees is not an Owners Corporation issue.

I think it is of concern to the owners as it may damage the roof and it deposits needles and twigs in the gutters. The owner keeps promising to have it trimmed but does nothing.

I have put two motions on EGM’s under sec 106 Duty of owners corporation to maintain and repair property but the motion was lost both times. Can you shed light on this somewhat complex issue of who is responsible for the removal of dangerous trees?

As the tree is on private property but passes into my airspace and into common property airspace if it presents a potential threat to the common property roof because it leans over it and it may end up in my living room why isn’t it an Owners Corporation issue under sec 106?

Also, I would like to query a further complication in relation to a Lot Owner’s responsibility when the tree was there when the building was approved as part of the DA application. In this case, the original owner passed away and the subsequent owner has rented the property. Does the responsibility for the maintenance of the tree lie in the hands of the Owners Corporation as the owner at the time was compelled to leave the tree in situ as part of the DA?

Answer: The owners corporation is responsible for such parts of the tree in the common property and the lot owner for those parts situated within their lot space.

We agree this a highly technical and complex question raising difficult legal issues and serious outcomes. However, we would argue that that part of the tree which protrudes beyond the stratum of the lot is in common property air-space and therefore the liability of not only the offending owner but also the Owners Corporation.

In any event, the Owners Corporation would have a duty of care to ensure that a liability which poses risk to the Owners Corporation (ie the building) is investigated. The critical issue is that the Owners Corporation’s insurer should be notified of this new risk and the Owners Corporation should seek confirmation that loss, damage, personal injury, death as a result of the tree (albeit emanating from private property but passing through Owners Corporation air-space) is currently insured by the current policy.

If there is a real risk, the Owners Corporation will be under a duty to mitigate damage. Further, depending on the lower boundary strata notation, some parts of the tree (eg roots) might be common property, the trunk to the height of the stratum lot property and the balance the risk of the Owners Corporation because it passes through the common property air-space.

There may be a breach of 151 Owners, occupiers and other persons not to interfere with support or shelter provided by lot or with services

An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not do anything or permit anything to be done on or in relation to that lot so that:

1. any support or shelter provided by that lot for another lot or common property is interfered with, or
2. the passage or provision of water, sewage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil and other services (including telephone, internet, radio and television services) through or by means of any pipes, wires, cables or ducts for the time being in the lot is interfered with.

There will almost certainly, based on your comments, be a breach of Section 153:

STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 153

153 Owners, occupiers and other persons not to create nuisance

1. An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
   
   1. use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
   2. use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
   3. use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.

The needles and pins may be construed as breach of by-law 16 (rubbish on the common property).

The owners corporation would not have been in existence at the time of the lodgement and approval of the original development application.

The owners corporation is responsible for such parts of the tree in the common property and the lot owner for those parts situated within their lot space. We reiterate our recommendation that the owners corporation take such steps as required to mitigate damage and resolve the dangerous tree issue.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #118.

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Are you interested in more information about strata title trees, common property or information particular to strata legislation in NSW? Visit Maintenance & Common Property OR Strata Legislation NSW pages.

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