We own an apartment that has EU garden areas at both front and back. We believe that the back garden area is a riparian corridor and that the D.A. for our complex was based on this riparian corridor remaining untouched. Many of the trees have been tagged for preservation.

A member of the SC (the Garden Committee Chairman) gave us 12 hours notice that he was going to come in to our EU garden and prune a tree that overhangs our garden. He declared that the area was a fire trail. He also said that he had tree loppers coming in to work on common property and that they shouldn’t have to stoop under the overhanging tree.

Five months later, the SC has been unable to furnish any proof that there is a fire trail. There is no fire trail or path marked on the plans we received at the time of purchase of our property. We have made a formal legal complaint and have given the SC the information to show that this particular tree is protected. However, at the last SC meeting we were advised that they intended to prune more of the tree.

We have never denied access for any workers moving through our front or back gardens. However, we do not believe that the SC has the right to prune trees against our wishes.

I am inserting our relevant By Law :

41 Exclusive Use By Law
The Owner for the time being of the lot described in the left hand column of the Schedule below is conferred with the exclusive use and enjoyment of that part of the Common Property identified in the right hand column of the Schedule below for the purpose of a Garden subject to the due observance and performance by the Owner of the following conditions:
41.1.(a) The Garden must be maintained by the Owner in a state of good order and repair. “Maintained” includes replace, add, reinstate or renew the lawn, annual and perennial plants, shrubs, flowers and palm trees, but excludes planting new trees. The Owner shall be solely responsible for all the costs and expenses of complying with this
Clause 41.1 (a);
(b) The Owner must comply with any requirements which may be imposed from time to time by the Owners Corporation or any other competent government agency or authority;
(c) The Owner agrees and acknowledges, that the Owners Corporation and any
person authorised by it, with any tools, implements or machinery for the purposes, may enter upon and within the Garden from time to time for the purpose of installing, laying, inspecting, testing, cleansing, repairing, maintaining or renewing any service/s for the Common Property or the Common Property.
(d) (i) In the event the Owner fails to comply with any of his obligations under this By-Law then the Owners Corporation has the right at any time and from time to time to serve a written notice on the Owner requiring the Owner to comply with that obligation;
(ii) If the Owner fails to comply with any such notice within a reasonable
time of service of the notice (having regard to the type of work required) the
Owners Corporation has the right to carry out the work or perform the act it
required to have carried out or performed by the notice;
(lii) The Owner must pay the Owners Corporation within 7 days of a written
demand from the Owners Corporation all costs incurred by the Owners
Corporation under this Clause 41.1 (d) for undertaking the work or performing
the act the Owner has failed to carry out:
(iv) The Owners Corporation may enter and remain on/in the Garden with
necessary machinery and equipment for the purposes of exercising the
Owners Corporation’s rights under this By-Law.
(e) The Owner shall use the Garden only for the purposes of a Garden. The Owner must obtain approval from the owners corporation to erect or construct any fences or barriers or retaining walls in or around the Garden.
(f) The Owner shall not use the Garden or do anything so as to cause a nuisance or hazard to any other owner or occupier of the Building including but not limited to not restricting/preventing any other owner or occupier from using any common property pathway or NSW Fire Brigade Egress Path situated within or passing through the Garden.
(g) The Owner shall not misuse or permit the Garden to be misused.
(h) The Owner shall not obstruct or damage the Garden.
(i) The Owner shall ensure that, at all times, no rubbish, litter or other unsightly materials or substances be allowed to accumulate in or upon the Garden.
(g) The Owner shall ensure that the Garden is kept in a clean and tidy condition at all times.
(k) In respect of any moneys payable by the Owner under this By-Law, the Owner is liable jointly and severally with any person who was previously liable to pay those moneys in respect of the Lot (such as a previous owner of the Lot) when that Owner became the Owner of the Lot, to pay such part of those moneys as are unpaid when he/she became the Owner of the Lot.
41.2. Indemnity and Insurance
The Owner shall indemnify the owners corporation against the following:
(a) any sums payable by the Owners Corporation by way of increased premiums for effecting and maintaining building damage insurance and/or public liability insurance, where such increase in premiums is the direct or indirect result of the use of the relevant area of the common property;
(b) any liability for damage to the Garden caused by the Owners Corporation in
undertaking any work referred to in s 65 of the Strata Schemes Management Act 1996 (‘’the Act”) or in exercising the power of entry for purposes of or related to this By-Law.
41.3. Definitions
(a) In this bylaw, unless the content indicates otherwise, the following tenns and expressions are defined to mean:
(i) “Act” means the Strata Schemes Management Act 1996;
(ii) “Garden” means that part of the common property identified in the right
hand column of the Schedule below for each Lot and as drawn and depicted
on the attached Sketch of Usher & Company Pty Limited dated 11 March 2010
marked Annexure C, including the lawn, plants, trees and flowers located
herein but excluding any common property pathway or NSW Fire Brigade
Egress Path situated within or passing through the Garden;
(iii) “Lot” means the Lot described in the left hand column of the Schedule
below;
(iv) “Owner” means the owner for the time being of the Lot described in the left hand column of the Schedule below;

41.4. This By-Law shall not be amended, added to or repealed without the written consent of the Owner for the time being of the Lots referred to in the Schedule below.
41.5.
(a) The benefit of the use of the Garden by the Owner conferred by this By
Law is subject to any easements or rights of way that have been created on
the Common Property and any water, drainage and electricity services that
pass through or over the Garden.
(b) The Owners Corporation may enter and remain on/in the Garden with
necessary machinery and equipments for the purposes of carrying out any
necessary works in respect of the matters referred to in Clause 41.5 (a).

So, our questions:

1. Does the garden committee chairman have the right to enter our EU area at any time on gardening business?

2.Does the SC have the right to maintain a path through our EU area?

3. Is there a method to have an individual barred from an owner’s EU area?