A Win For Owners Corporations: Court Rejects Unproven Tree Damage Allegations

In Armstrong v The Owners of Strata Plan 5548 [2026] NSWLEC 1611, the NSW Land and Environment Court (LEC) refused an application seeking orders to remedy, restrain and prevent damage allegedly caused by trees on neighbouring land.

Background

Catherine Armstrong (Applicant) owns a heritage-listed home in Cremorne, NSW. The Owners of Strata Plan 5548 (Respondent) own the adjoining apartment complex.

The Applicant alleged that six trees on the Respondent's property had caused extensive damage to her 130-year-old home, including cracking to sandstone walls, internal cracking, movement of the front verandah, retaining wall failure, and damage to a boundary fence.

Proceedings

She then brought an application in the LEC under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW), which empowers the Court to make orders where a tree has caused, is causing, or is likely in the near future to cause damage.

The Applicant sought orders for:

1. Removal of six trees and stump grinding;
2. Compensation of approximately $23,650 for repairs;
3. Extensive remedial works on the Respondent's property; and
4. Restoration works to her dwelling following completion of those works.

The Applicant relied principally on arboricultural and engineering evidence suggesting that tree roots, together with abnormal moisture conditions, were contributing to structural movement and cracking.

Decision

The Commissioner dismissed the application, finding that the Applicant had failed to establish the jurisdictional requirement in section 10(2)(a) of the Trees Act that the trees had caused, were causing, or were likely in the near future to cause damage.

Although the Commissioner accepted that damage existed, the evidence did not establish a causal connection between the trees situated on the Respondent’s property and the alleged damage. Importantly, the Respondent had already removed four trees following earlier complaints.

The Commissioner's key findings were:

• The engineering evidence identified several possible causes of the damage. However, possibilities were insufficient. The Applicant was required to establish, on the balance of probabilities, that the trees themselves caused the damage.
• Trenching undertaken in 2022 did not identify roots near the damaged areas at the front of the property. While roots were found near the rear extension, they were not located near the cracked sandstone wall that formed a significant part of the claim.

The Commissioner noted that no root mapping, tracing, microscopic examination, or similar testing had been undertaken to demonstrate that roots from the subject trees were responsible for any structural movement or damage.

• The evidence pointed more strongly to abnormal moisture conditions than to tree-related damage.
• The Applicant also failed to demonstrate that the trees were likely to cause damage in the near future. The Court was not persuaded that decaying roots from previously removed trees would create voids and result in future damage.

The Commissioner nevertheless acknowledged that repair and preventative works were likely necessary to protect the heritage building. However, those issues appeared to arise primarily from the raised garden bed and moisture conditions rather than the trees. As such, they fell outside the Court's jurisdiction under the Trees Act.

Implications

This decision reinforces that the mere presence of trees near a damaged structure will not be sufficient to obtain relief under the Trees (Disputes Between Neighbours) Act. Applicants must establish a clear causal connection between the specific tree and the damage alleged through persuasive expert evidence. The case also highlights the importance of detailed investigations, including evidence identifying relevant root systems, excluding alternative causes and demonstrating how the tree has caused, or is likely to cause, damage.

For strata managers, owners corporations and property owners, the decision serves as a reminder that liability for structural damage should not be attributed to trees without proper investigation of other potential causes, including drainage issues, moisture conditions, irrigation systems and building defects.

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