Suburban Showdown: Neighbours Battle Over Encroaching Tree in Prestigious Sydney Locale
A protracted legal dispute between neighbours in one of Sydney’s most affluent suburbs has finally reached a resolution, concluding a lengthy battle over a towering tree that had become a significant point of contention. The case, which saw homeowners take their strata neighbours to court, centred on a substantial tree encroaching onto a multi-million dollar property.
The homeowners, Sally Armati and David De Coster, residing in a $3.35 million property on Mansfield Street in the inner-west suburb of Rozelle, initiated legal proceedings against their neighbouring strata complex. The dispute, which had been ongoing since August 2024, concerned a willow myrtle tree that had become a persistent nuisance.
At the NSW Land and Environment Court, it was revealed that the couple had initially approached their strata neighbours, requesting the removal of the tree. However, their attempts to resolve the issue amicably were met with limited success, as the strata only agreed to prune the tree, a measure the couple deemed insufficient.
The couple, who had only moved into their Mansfield Street home in June 2024, sought a court order for the complete removal of the tree. Furthermore, they demanded that the strata corporation bear the costs of repairing a damaged timber fence and a compromised retaining wall, both of which they claimed were adversely affected by the encroaching vegetation.
Ms Armati and Mr De Coster expressed grave concerns about the tree’s stability, stating it was “likely to fall onto and damage their property or cause injury to somebody.” The intensity of the dispute necessitated an unusual on-site court session, allowing the presiding member, Acting-Commissioner David Galwey, to personally inspect the tree and both affected properties. This firsthand assessment was crucial in understanding the physical evidence presented by both parties.
Soon after settling into their new home, the couple observed the tree exerting pressure on the top of their fence, causing it to buckle. Further examination revealed that the tree’s stem had also grown against and displaced the bottom of the fence, exacerbating the damage. The court acknowledged the visible “buckling and displacement of the fence” during the site inspection, and crucially, the strata did not contest that the tree was indeed causing damage to the fence.
However, the strata corporation presented a counter-argument, suggesting that if the tree required removal, it was a consequence of actions taken on Ms Armati’s and Mr De Coster’s land. They argued that the couple should therefore be responsible for the cost of its removal and disputed the homeowners’ claims for compensation.
Ms Armati and Mr De Coster formally lodged their claim under the Trees Act, seeking to prevent future damage to their property and potential injury to individuals, as well as to rectify existing damage caused by the tree. The court heard that Acting-Commissioner David Galwey acknowledged the couple had made a “reasonable effort to reach agreement” before resorting to legal action.
The case involved a series of expert opinions from various arborists and a pest control specialist, who provided differing assessments of the tree’s condition. The couple had engaged Kyle Hill, a tree consultant from Growing My Way. Mr Hill’s report highlighted significant concerns, including “cavities in the tree with evidence of termite activity” and a “structurally weak union between the tree’s two main stems.”
His most alarming conclusion was the “potential failure of a co-dominant stem,” raising serious safety issues. In addition to the arborist’s assessment, the couple also enlisted Rentokil to inspect their property and the tree in January of this year. The Rentokil report corroborated the concerns about pest activity, noting “evidence of borer activity in the tree” and suggesting that the “moderate extent of damage was possibly caused by furniture beetle.”
The strata, in their defence, had previously engaged Daniel Heartwood, an expert from Aura Tree Services, to inspect the tree in September 2024. Mr Heartwood recommended the removal of two branches but did not believe a full tree removal was necessary at that time. He observed that the tree was “growing mostly over the neighbouring property and is essentially following the light provided by the space it is occupying.” His report found “no defects observed with the root plate or main trunk” but did note decay and borer damage in two first-order branches.
Later, the strata commissioned Daniel Leonard, an expert from Heartwood Tree Consulting, to assess the tree. Mr Leonard’s inspection last month found the tree’s health to be “fair” but noted a “slight reduction in its vigour” since the previous inspection in September 2024.
Acting-Commissioner Galwey’s summary of Mr Leonard’s findings indicated that the tree was assessed as being “structurally poor due to fungal decay within its lower stem.” Mr Leonard also commented on the potential impact of development works on the couple’s property on the tree’s roots, estimating its “useful life expectancy to be five-to-ten years.” He recommended that the timber fence be “modified or rebuilt to give appropriate clearance” to accommodate the tree’s continued growth. Furthermore, he advised against “further excavation near the tree” and suggested the myrtle be “monitored by an arborist annually.”
Despite the differing expert opinions, Acting-Commissioner Galwey ultimately sided with Ms Armati and Mr De Coster and their arborist’s assessment. He determined that the willow myrtle posed a significant risk of injury if it remained in its current location.
The strata maintained their position that if the tree was to be removed, the cost should be borne by Ms Armati and Mr De Coster. However, Mr Galwey carefully considered several “relevant matters” in his judgment. He concluded that minor pruning would not adequately address the safety concerns. He also noted that the tree held “no historical, cultural, social or scientific value,” was “not indigenous to the area,” and contributed “little to the local ecosystem and biodiversity.”
Moreover, Mr Galwey observed that the majority of the shade provided by the tree benefited Ms Armati and Mr De Coster’s property. He ruled that the tree’s removal was “required to prevent damage or injury.” Crucially, he found that “Ms Armati and Mr De Coster have not contributed to this risk.”
Therefore, the strata corporation was deemed responsible for the tree’s removal and for planting a replacement tree. Mr Galwey stated, “In the absence of any reasonable alternative to mitigate the risk, the tree must be removed. The strata will arrange and pay for tree removal.”
In a compromise, both parties were ordered to share the cost of constructing a new timber fence, bringing a definitive end to the costly and stressful legal battle.
