Vasiliki Stratiotis v Georges River Council [2026] NSWDC 142
Key takeaways
- Plaintiffs must establish foreseeability, knowledge and subsequent damage to succeed against Councils which have adopted or continued a private nuisance.
- A Council will not be liable to pay damages for continuing or adopting a private nuisance where the evidence fails to establish that:
- it had knowledge of the risk
- it failed to cease the nuisance within a reasonable time once notified, and
- further damage arose during that time.
Overview
In Vasiliki Stratiotis v Georges River Council [2026] NSWDC 142 (19 May 2026), His Honour Justice Russell SC found that the plaintiff had failed to establish a private nuisance claim against Council for damage allegedly caused to her dwelling by the roots of a Council-owned tree located on the nature strip outside her property.
The plaintiff alleged that the roots of the tree had caused structural damage to her dwelling, which had been constructed at least 50 years earlier.
The tree was a large Eucalyptus, commonly known as a ‘tallowwood tree’. Although the precise date the tree was planted was unknown, the evidence established that it had been in place for at least 45 years. The height of the tree was not established on the evidence, although the mature height of this species can exceed 20 metres. The tree was located less than three metres from the boundary fence and less than seven metres from the external wall of the dwelling.
The plaintiff purchased the premises in 1981, when the tree was already present. On 9 April 2019, the plaintiff notified the Council that the tree’s roots were causing damage to the dwelling. This was the first time the Council was notified of the issue. The tree was removed in October 2025.
Claim and Legal Principles
The plaintiff pursued a claim in private nuisance. To succeed, the plaintiff was required to prove an unreasonable interference with the use and enjoyment of land. Where the alleged nuisance is ongoing (as in the case of tree root damage), and a defendant has adopted or continued the nuisance, liability depends on the defendant’s knowledge of the risk, whether the harm was reasonably foreseeable, and whether reasonable steps were taken to prevent further damage.
The judgment contains a useful summary of the law of private nuisance in the context of street trees (His Honour does not mention the recent High Court decision in Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53, which addresses private nuisance caused by construction works of a public authority). His Honour set out the following propositions (among others):
- Liability for nuisance is not strict or absolute, even where the defendant has created, continued or adopted the nuisance (City of Richmond v Scantelbury [1991] 2 VR 38 at 40) (Supreme Court of Victoria) (the Scantelbury decision)
- A plaintiff must establish that a risk of damage from the nuisance is reasonably foreseeable, and
- An occupier of land will be liable for continuing a nuisance if, with actual or presumed knowledge of the relevant state of affairs, the occupier fails to take reasonable steps to bring it to an end within a reasonable time.
Decision
His Honour found that:
- There was no evidence that the Council had created the nuisance by planting the tree or giving permission for the tree to be planted. The timing and origin of the planting were unknown. While it was possible that the Council may have planted the tree, it was equally possible that it had been planted by a third party, or was self-sown. There was no evidence that the street was uniformly planted with the same species of tree, which would support an inference that the Council planted it.
- The Council continued or adopted the nuisance from April 2019, when it was first notified of the alleged damage caused by the tree roots. However, the plaintiff failed to produce any evidence that the damage had worsened between the date of notification and the removal of the tree in October 2025. As a result, there was no evidence that Council’s failure to act (which was actionable) had caused any loss to the plaintiff.
- There was no evidence that, prior to the plaintiff’s notification in April 2019, the Council had actual or constructive knowledge that the tree roots were damaging the dwelling. The plaintiff did not call any arborist evidence to establish that tallowwood trees were somehow notorious for having roots which damage structures, that they are unsuitable as street trees due to their root structure and characteristics, or their roots in general posed a foreseeable hazard affecting building structures.
Accordingly, the plaintiff failed to establish the necessary elements of the tort of nuisance. Judgment was entered in favour of the Council.
Why this decision matters
This decision is a useful reminder of the evidentiary burden faced by plaintiffs seeking to establish a private nuisance claim against a Council for damage allegedly caused by tree roots.
Had the plaintiff called evidence of the tendency for this tree species to cause structural damage – for example, from an expert arborist or engineer, a Council employee (such as an arborist), or relevant Council tree management policies – the outcome may have been different.
Given the approach of the Supreme Court of Victoria in Scantelbury to imputing knowledge on a Council of the risks posed by tree roots to private dwellings, this decision is unlikely to carry significant weight in Victorian Courts. Nonetheless, it serves as a practical reminder of the importance of expert evidence in establishing foreseeability and knowledge in tree root nuisance claims.
It is worth noting that Council’s removal of the tree during the proceedings suggested some measure of practical success on the plaintiff’s part, which His Honour considered relevant to the question of costs.
This article was written by Special Counsel Andrew Ray and Principal Lawyer David Randazzo. For further information or advice on any related matters please contact Andrew or David.
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