Townhouse schemes typically have actual gardens — common gardens, private gardens inside courtyards, and trees of various sizes. Apartment buildings rarely have any of this. The basic rule is simple: if it's growing on common property, it's the owners corporation's. If it's growing inside your lot, it's yours. But there are some surprises with mature trees and overhanging branches.
What we're talking about
In a townhouse scheme this covers:
- Common gardens around buildings and along driveways
- Lawns on common property
- Private gardens inside individual courtyards
- Trees of all sizes — small ornamental, mature shade trees, eucalypts
- Overhanging branches between lots, or onto common property
- Trees on the boundary that affect both the scheme and the neighbour next door
Typical position
Usually OC
- Common gardens and lawns
- Common-area shrubs and trees
- Pruning and care of common trees
- Damage caused by trees on common property
- Replacing dead plants on common property
- Garden maintenance contractor
Usually owner
- Gardens inside your courtyard or lot
- Trees and shrubs you planted in your courtyard
- Mowing courtyard lawn (where the lawn is in your lot)
- Damage caused by trees on your lot
- Owner's own plants and pots
Often grey
- Large mature trees originally planted by builder
- Roots travelling under the lot boundary
- Branches overhanging from common property into a lot
- Trees near sewer lines
- Significant trees requiring council permission to remove
⚠ Apartments rarely have this issue
This is almost a townhouse-only topic. Apartment buildings have planter boxes and the occasional landscaped surround — not large trees, root systems and overhanging branches. In townhouses, mature trees are a routine source of disputes: roots in driveways, branches over fences, leaves in everyone's gutters, and the cost of removing a 15-metre eucalypt that's now too close to a building.
The starting point is the strata plan — where is the tree growing? If it's on common property, the OC is generally responsible (including for damage caused). If it's growing in a lot, the owner of that lot is generally responsible.
Grey areas and common disputes
Trees on common property causing damage to a lot
This is one of the most common disputes. A large gum tree on common property drops a branch on a townhouse roof, or its roots crack a courtyard. The general position:
- The OC is responsible for maintaining the tree (pruning, removal if dangerous)
- The OC is also generally responsible for damage the tree causes to a lot — but only if it was reasonably foreseeable
- If the owner reported the tree as a concern and the OC failed to act, the OC's exposure is much higher
- If the tree dropped a branch in a storm without prior warning signs, it may be an "act of God" rather than negligence
This is why arborist reports matter. If the committee has had a tree inspection and acted on the recommendations, it's much harder for an owner to make a case. If the tree was visibly diseased and nothing was done, the OC has a problem.
Roots in pipes and driveways
Tree roots get into sewer lines and crack driveways. The cost of clearing roots out of a sewer is normally borne by whoever owns the pipe (lot or OC), but if a common-property tree caused the damage, the OC may need to deal with the root cause as well as the symptom. Same with driveways — see Driveways & paths.
Owner-planted trees that are now too big
A previous owner planted a sapling 20 years ago. It's now a 12-metre tree pressing against a building. The owner of that lot today is generally responsible for the consequences — even though they didn't plant it. If the tree needs to come out, the cost falls on the lot, not the OC.
Trees on the boundary with the neighbour next door
This brings in the Trees (Disputes Between Neighbours) Act 2006 (NSW). If a tree on the neighbour's land is causing damage to the scheme, or vice versa, the affected party can apply to the Land and Environment Court for orders. Mediation through the Community Justice Centre is often the better starting point. The owners corporation is the legal owner of the scheme's land, so it deals with the neighbour — owners shouldn't be negotiating directly.
Overhanging branches
If a branch from a common-property tree overhangs into a lot, the OC should prune it. If a branch from a lot owner's tree overhangs onto common property or into another lot, the owner of the tree should prune. The general law allows the person whose space is being invaded to cut back to the boundary, but doing this without notice tends to make disputes worse, not better.
Council tree preservation orders
Many councils have rules about removing trees of a certain size or species. Even when the OC or owner is technically responsible for a tree, you may need council approval before removal — and unauthorised removal can result in significant fines. Always check with the local council before any tree comes down.
The arborist is your friend
For trees of any size, a one-off arborist report is one of the best investments a small scheme can make. It tells you which trees are healthy, which are at risk, and what pruning or works are needed. Acting on a written recommendation also greatly reduces the OC's liability if something later goes wrong.
Sources
Strata Schemes Management Act 2015 (NSW), s4 (definition of common property), s106 (strict duty to repair and maintain common property — applies to common-property trees and gardens).
Trees (Disputes Between Neighbours) Act 2006 (NSW) — governs disputes about trees on adjoining (non-strata) land; jurisdiction with the Land and Environment Court.
Seiwa Pty Ltd v The Owners — Strata Plan No 35042 [2006] NSWSC 1157 — strict duty principle.
Local council Tree Preservation Orders and Development Control Plans — many trees of significance require council approval before pruning or removal.
NSW Fair Trading — Strata living and dispute resolution guidance.