Question: A townhouse owner in our complex has a mature gum tree inside their lot that is distorting a common property boundary fence. Who is legally and fiscally responsible for removing this large tree?
A lot owner in our NSW townhouse complex has a mature gum tree growing just inside their lot. The tree is over 20 metres tall and has started to distort a common property boundary fence. This tree’s growth will shortly damage and push the fence further into a common property pathway and impede access to many of our other lots.
Who is legally and fiscally responsible for removing this large tree? Will the local council’s tree preservation scheme influence the tree’s removal?
Answer: As the cause of potential damage will presumably be the roots or the sheer height of the tree (both seemingly within the common property), the removal (if Council consent is obtained) should be the owners corporation’s cost.
You have identified the key issues here. While the tree is technically within the lot, its height and depth will likely be outside the stratum/cubic air space of the lot and penetrate common property air space at both ends (the strata plan will indicate what the lower and upper limits of private air-space are).
You should seek Council consent for the tree removal (and the owner’s) as the specific requirements vary from council to council. In terms of the financial responsibility for the tree removal, the cause of potential damage will presumably be the roots or the sheer height of the tree (both seemingly within the common property). Therefore, the removal (if Council consent is obtained) should be the cost of the owners corporation.
This post appears in the August 2025 edition of The NSW Strata Magazine.
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
“In our view, as the tree is situated on the common property and it is technically in a state of “disrepair” ie dying, the Owners Corporation or its strata committee could resolve to have it removed or replaced without the requirement for a special resolution. This is because, as you correctly state, you are not “enhancing” the common property but merely repairing and maintaining it (depending of course on the cost involved if this exceeds any limit on the spending of the strata committee).”
I feel removal of a dead tree could qualify as improving. Surely the commons is improved by removing the risk exposure. Removing a tree is not repairing or maintaining under the meaning of those terms as espouse by the Court of Appeal.
It is a bit of a strange answer because the model being put forward is that if something is in a state of ‘disrepair’ then the OC can just remove it and we know that is not the case. Try doing that with the fabric of the building and see how you go.
This is what is horribly wrong with strata agents advice that sails very close to being legal advice. It creates greyness where there can be black and white.
The Act is not perfect and the Parliament an [removed by admin] it comes to pressing for a better model. As things stand you arguably should just pass the resolution and remove it.
In a SP with half the owners having email for notifications and with as half competent SC you can have a GM for less than $2 a head.
If you are in a position where the SP relies on the agent to have a GM then the SP has failed the Parliament because “The legislation has always envisaged that generally, strata schemes would be managed by ordinary lot owners for their own benefit.”
J Bordon: Nulama Village P/L v Owners Strata Plan 61788 (Strata & Community Schemes) [2006] NSWCTTT 550 (25 September 2006)
Best practice is to just have the meeting and pass the motion.
Hi Stephen
We have received this response from Leanne Habib, Premium Strata:
We do not follow your reasoning that if you remove a “dead tree” or item in disrepair that its removal enhances the common property. If the Owners Corporation had properly exercised its repair and maintenance functions, the tree would not have died and posed any risk. In other words, the tree’s demise and consequent risk arose directly because of the Owners Corporation’s breach of its own repair & maintenance duties.
It does not appear to be the intention of the Act to require an Owners Corporation to be subjected to a higher threshold of approval (ie special resolution) for something arising from the exercise of its statutory function (eg ordinary resolution for repair & maintenance).
We disagree with your view that the “removal of the tree” would constitute an enhancement due to the elimination of the risk because had the Owners Corporation complied with its duties, the risk would not have been created in the first instance.
Further, we are merely interpreting words on their ordinary interpretation and on the basis of our experience and not as lawyers. This platform is not intended to be or to be relied upon as a substitute for legal advice.
Lastly, we query your statement that “It creates greyness where there can be black and white” – if the matter was “black and white” for you, why post the question at all?
Response from admin: We agree with the above statement from Leanne. Our free Q&A service provides guidance for readers with similar problems. Responders can only rely upon the information provided within the question. The content is not legal advice and should not be relied upon as a substitute for legal advice. Reader’s specific circumstances vary. The number of Q&As contained on the site and the number of queries we receive each week indicate that strata across Australia is very rarely black and white.
Hello Nikki,
I have a situation when a hedge that provided a certain amount of privacy was cut to the base. It was not pruned but butchered.
I am so infuriated, and it may be a case of me asking that the hedges be maintained in the first instance, and requesting that dying plants be replanted as a matter of the OC exercising its obligation to preserve what is there or was there, that the secretary thought it funny to cut the hedge down to nothing.
What can I do in this instance? I don’t want this ridiculous behaviour to continue and hold the secretary accountable if they are breaching their responsibilities.
Thank you.
Hi John
There seems to be more to the situation than simply trimming the hedge. Without trying to read too much onto the question, you may find these videos helpful:
Bullying in Strata: The signs, the facts and some solutions
Challenge Accepted: Challenging People In Strata – And How To Deal With Them
Hi. We are renting a ground floor apartment with a private courtyard in Sydney. This week our strata chopped down a tree in our courtyard without prior notice or consent, under the guise of requiring access to remove a tree on adjacent common property. This has completely eliminated our privacy and our previous green sanctuary is now on public display, directly overlooked by another apartment building. This tree also provided valuable shade of the building in summer, keeping ours and the apartments above cool in summer. This sudden and nonconsensual destruction of our home has also been very distressing to me.
My question is – can they really do that and are we able to make strata replace the tree? If so, how? It feels criminal to me but I would like to know what rights I have, as a renting occupant.
The tree roots were causing a small amount of damage to the boundary fence and was approximately 3 storeys tall.
I think Karina Heinz, in replying whether a strata corporation has to replace a tree they removed, is absolutely wrong in stating, they do not have to replace.
The legislation is clear, they are to renew, maintain, replace, not destroy and remove.
That otherwise is removing a valued common property amenity (the tree), appurtenant to Owners land titles.
Hi James
The following response has been provided by Karina Heinz, Progressive Strata:
For clarification, a tree would be like any piece of common property. Whilst not noted on a strata plan, it can still be considered common property to maintain or replace.
If the tree is older than the strata plan and therefore was present at the time of registration, then it may need repair/replacement like any common property. Or the scheme may have made a special resolution to plant the tree or not maintain it.
Accordingly, there are many factors that determine a scheme’s responsibility here. Another is local govt requirements which vary significantly from council to council, so it is a good idea to pay for legal advice to ensure what you do meets all the laws affecting your scheme. People are often passionate about trees, and so if litigated you want to ensure any resolutions were the right ones at the time authorising your decision.
Excellent comment and let us remember the key thing here is what do the words mean.
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The legislation is clear, they are to renew, maintain, replace, not destroy and remove..
That means what the Court says it means not what you or i think it means. Thinking one knows what words means is a trap for novice players.
Always find meaning for terms in some Court ruling, and the higher the Court the better.
Here is an example of the type of legal jargon you are going to have to wade through.
“However, “maintain” is not so limited in its meaning. Keeping in good repair assumes the continued existence of the property in question; maintaining the property includes preserving it by not removing, replacing or destroying the property. So much is clear from the dictionary definition relied on by McColl JA in Ridis at [158]. ”
There are literally pages on what these terms mean.
Big problem is when it comes to living things with use by dates. They get to a point where they can’t be maintained or repaired.
The strata committee has decided without consultation with the owners to remove all the eucalyptus trees on our common property. They do cause the odd plumbing problem but it is not excessive otherwise they give more than they take. This will leave the strata exposed to both the eastern and western sun and make the units unlivable..
My neighbor is planting vines and bushes in the garden bed in COMMON PROPERTY immediately next to my unit. We are worried about pests growing (we have seen some insects and lizards coming out of the vines). It is a townhouse complex in NSW.
What can we do to stop my neighbor from planting vines and bushes in the COMMON PROPERTY.
Hi E. Law
The following response has been provided by Allison Benson, Kerin Benson Lawyers:
Most schemes will have by-laws dealing with damage to the common property, specifically to common property lawns and plants that prohibits lot owners and occupants from:
(a) damaging any lawn, garden, tree, shrub, plant or flower being part of or situated on common property, or
(b) using for their own purposes as a garden any portion of the common property.
If this type of by-law applies it this means that your neighbour must not plant plants without authority from the owners corporation. I suggest that you have a look at your by-laws to see if you have a by-law along these lines and that either you, or you can ask you strata committee or strata manager to, draw your neighbour’s attention to the by-law and ask them to stop and to remove any plants.
Perhaps, as a compromise, they can be given permission to re-plant the plants elsewhere in the common property gardens.
Great, helpful article, thank you.
I’m looking at purchasing a very old (80 year) ground floor apartment. Two, very large trees are in the courtyard which is on title and tower above the roof of the two storey block. My concern is damage to pipes and/or the building from the roots as one tree is virtually on top of the water pipes to the block and only feet away from the building. Does OC cover repairs or can I take our separate insurance?
Concerned it may cost me many thousands in repairs to mine and other lot owners.
Hi. I have 8 ground units next to my property. There is a huge tree next door and leaves are falling into our yard. We have just paid $35,000 to have the pipe reclined and now it is filling up with leaves. Shade is a big problem. The body corporate have told me the people who own the unit are responsible for that piece of land. Are they obligated to tell me who owns it. It is being rented. Please help
wicks.tricia@yahoo.com.au