May v Owners Units Plan No. 116 (Unit Titles)
[2014] ACAT 38
•27 June 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MAY v OWNERS UNITS PLAN No. 116 (Unit Titles) [2014] ACAT 38
UT 13/25
Catchwords: UNIT TITLES – merit review of unsuccessful motion before the general meeting of owners corporation to remove tree – whether tree root was the cause of damage to water pipe and carport slab – no reimbursement of cost of replacing water pipe and obtaining an occupational health and safety report about the risk posed by tree – opposition to motion before general meeting is not unreasonable – no interference with outcome of general meeting
Legislation:Unit Title (Management) Act 2011, s 129
Cases: Owners Units Plan 768 v Lokusooriya[2013] ACAT 80
Meaney v The Owners Corporation Units Plan 40
[2013] ACAT 72
The Owners Units Plan No 116 & Nicholson and Ors
[2012] ACAT 63
Tribunal: Ms M.T Daniel - Member
Orders and Ex Tempore Reasons: 2 April 2014
Edited Ex Tempore Reasons: 27 June 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL UT 13/25
BETWEEN:
DR MURRAY MAY
Applicant
AND:
THE OWNERS UNITS PLAN NO 116
Respondent
TRIBUNAL: Ms M.T Daniel - Member
DATE:2 April 2014
ORDER
The Tribunal Orders that:
1. Application dismissed.
Sgd. Ms M.T Daniel – Member
REASONS FOR DECISION
The proceedings were commenced on 18 September 2013 by Dr May by application pursuant to the Unit Titles (Management) Act 2011 (the Act). In that application Dr May requested that ACAT make orders pursuant to section 129 of the Act to require that the Owners Corporation:
(a)remove a large Brittle Gum and its sucker on common ground at the front of his premises;
(b)reimburse to Dr May the cost of replacing a drinking water pipe which he felt had been disrupted by tree roots from the tree; and
(c)reimburse to Dr May the cost of an occupational health and safety (OH & S) report he had obtained in relation to safety issues posed by the tree for the purposes of his application to the Conservator of Trees for approval of tree removal.
When the matter came before the tribunal for directions on 11 October 2013, it was established that the question of removal of the tree was best pursued in the first instance before the owners corporation at a general meeting. The general meeting was arranged to be held on 9 December 2013 at which proposed motion 1 read as follows:
That the Owners - Units Plan No. 116 RESOLVE to remove as soon as is practicable a large brittle gum Tree on common ground and a sucker next to it at the front of unit 20 Wybalena Grove in view of the following:
(a) The ACT Government Conservator of Flora and Fauna approved removal of the tree based on a decision of 12 June 2013 that the location of the tree is inappropriate given its potential size and growth habit.
(b) A professional safety report (21 May 2013) taking into account the Work Health and Safety Act 2011 states that: 'To not take this course of action[(remove the tree] would be irresponsible and would place the owners and their representatives at risk of liability either at Common Law or at Statute Law'.
(c) The two owners who live closest to the tree, at Units 20 and 21, consider from their lived experience that this tree, which is still grown, poses an obvious risk. Pruning in 2010 has been an ineffective strategy as far as potentially dangerous limb drop is concerned. The tree is close to both units and directly over the driveway of Unit 20, which is regularly used by residents and visitors.Both Dr May and the Wybalena Grove executive committee provided briefing papers to the owners in relation to motion 1.
It transpired that the motion was unsuccessful. The preferred approach of the Owners Corporation at this time was to continue monitoring and taking advice in relation to the tree because of its value to neighbours and the landscape. Consequently, the matter came before the Tribunal on 13 December 2013 for directions to be made to prepare the matter for hearing.
It was confirmed at the directions hearing that the application would proceed as an application for merits review of the unsuccessful motion and an application for orders for payment of the costs of a new water pipe and the obtaining of the OH & S report. The matter was given a hearing date of 15 January 2014 to commence with a view of the tree and the relevant area outside unit 20, and thereafter, continue at the ACAT for the remainder of the day. As it transpired, the hearing took over a day and was completed the following day.
At the conclusion of the hearing the decision was reserved. I delivered oral reasons for decision, and made orders dismissing the application in its entirety, on 2 April 2014. Subsequently, one of the parties requested that the oral reasons for decision be published to enable future reference in similar matters. What follows is an edited summary of the reasons for decision provided on 2 April 2014.
What is the relevant law in this case?
Section 129 of the Unit Titles (Management) Act 2011 (the Act) provides the orders that the ACAT may make in hearing a dispute under that legislation. Relevantly, in relation to an unsuccessful motion, paragraph 129(1)(g) provides that the ACAT may make an order giving effect to an unsuccessful motion for a resolution of a general meeting, either as originally proposed or as amended by the ACAT, if the ACAT is satisfied after a merits review of the motion, that opposition to the motion was unreasonable.
The operation of paragraph 129(1)(g) and the considerations that the Tribunal has regard to in determining the question of reasonableness have been fully discussed by the Tribunal in the matters of the Owners Units Plan 768 v Lokusooriya[1], Meaney v The Owners Corporation Units Plan 40[2] and The Owners Units Plan No 116 & Nicholson and Ors[3]. It is well established that the question of reasonableness is to be considered objectively, taking into account all relevant circumstances at the time.
[1] [2013] ACAT 80
[2] [2013] ACAT 72
[3] [2012] ACAT 63
In relation to the claims for reimbursement of the costs of the new water pipe and the obtaining of the OH & S report, it is clear that the Tribunal has a power under subsection 129(2) to make such orders. However, it must first be established that there is an entitlement of the applicant or a reason at law or equity for such an order to be made. The Tribunal's broad power provided by subsection 129(2) to make “any other order” is not to be exercised merely in some unfettered discretion of the Tribunal, but because there is a cause of action which has been made out, or a legal obligation or right which necessitates the making of such an order.
Evidence
Both parties filed a large amount of documentary evidence for the purposes of the hearing and submitted additional documents during the course of the hearing. Before the Tribunal, filed on behalf of the applicant, were:
(a)the application of 17 September 2013 with its attachments;
(b)the witness statement of Dr May dated 18 December 2013;
(c)the witness statement of Mr Segrott, an OH & S expert dated 9 December, attaching his initial report of 21 May 2012;
(d)the supplementary report of Mr Segrott dated 16 December 2013;
(e)a witness statement of Mr Casselden, who I will refer to as “the plumber”, dated 16 December 2013;
(f)a witness statement of Miss Hamilton, the neighbour at unit 21, dated 15 December 2013;
(g)an ABC News Report of 31 December 2013 reporting the death of a four-year-old girl in a park at Bendigo after a tree fell on her;
(h)a one page document from Dr May filed 10 January 2014 providing additional information;
(i)an email from an ACT Government employee dated 13 January 2014 to Dr May providing information about the assessment of the tree by the advisory panel assisting the conservator;
(j)a letter of Dr May dated 12 January 2014 in relation to the proposed extent of the view which was to be conducted on the first day of the hearing;[4]
(k)a 15 page document written by Stephen Hughes entitled “Safe and Sustainable Trees for the Bush Capital - An Asset Management Strategy for Canberra's Urban Trees” which was presented at the Seventh National Street Tree Symposium in 2006;[5]
(l)an extract from a newspaper article[6] published by Cedric Bright about fire threats to houses posed by trees; and
(m)an extract of a document entitled “6 Site Classification”,[7] which addresses the Australian standard performance requirements and specific designs for common foundation conditions.
[4] Exhibit A9
[5] Exhibit A10
[6] City News, October 31 – November 16, page 23
[7] Exhibit A11
Documents before the tribunal on behalf of the respondent were:
(a)the witness statement of Mr Thomas, who is a member of the executive committee, dated 7 January 2014;[8]
(b)the witness statement of Miss Taws, a unit owner assisting the executive committee with tree issues, dated 6 January 2014 (I note that Ms Taws has a bachelor’s degree in forestry);[9]
(c)a letter written by Mr Carrigan, the owner of unit 18, dated 8 January 2013;[10]
(d)a witness statement of Dr Campbell, a unit owner and member of the executive committee, dated 8 January 2014, incorporating a timeline and attaching annexures A to Q which were other documents I was asked to consider;[11]
(e)documents relating to the meeting held 9 December 2013 consisting of the general meeting notice and the covering letter and briefing papers;[12]
(f)a letter of 11 May 2013 by the executive committee to the conservator for the purpose of the reconsideration of the decision to refuse removal of the tree, setting out the asserted value of the tree and advising as to the future management of the tree;[13]
(g)a further submission of Dr Campbell dated 16 January 2014 in relation to Eucalyptus mannifera and habitat trees;[14]
(h)a further submission of Dr Campbell, also dated 16 January 2014, advising that the executive committee does not disagree with the conservator's finding that the location of the tree was inappropriate;[15] and
(i)a document dated 17 January 2014 prepared by Tony Ashton, another unit owner, commenting on the assessment of risk provided by Mr Segrott.[16]
[8] Exhibit R1
[9] Exhibit R2
[10] Exhibit R3
[11] Exhibit R4
[12] Exhibit R5
[13] Exhibit R6
[14] Exhibit R7
[15] Exhibit R8
[16] Exhibit R9
I then had before me at the hearing oral evidence and submissions from the parties. Mr Casselden, the plumber, gave evidence in support of the applicant, as did Mr Segrott and Dr May himself. On behalf of the respondent, Ms Taws, Dr Campbell and Mr Thomas all gave evidence.
As I have already noted, the hearing commenced with a view of the tree, the cracking to the carport slab at unit 20 and the driveway, and a view of neighbouring carports which I noted also exhibited cracking.
The respondents had provided a list of items for the view which was largely covered during the view. Dr May had, in writing, objected to the site visit including views of the tree from other units, on the basis that this was irrelevant and a waste of time. However, given the owners corporation's submission that the tree was important to the landscape and provided amenity to other owners, for example, Miss Carrigan at unit 18 who had provided a letter in support of keeping the tree, the tribunal did have a more extensive view of the area. At the conclusion of the view, I was satisfied that I had seen everything that I needed to see without straying into irrelevant information.
The submissions of the parties
At the conclusion of the hearing, both parties provided written submissions in support of their case to which I had regard in reaching my decision.
On behalf of his application, Dr May said that the Tribunal should be satisfied that the tree had caused cracking in the carport and would continue to do so unless removed, and should be satisfied that the tree root had caused the leaking pipe which he had to have replaced. Dr May submitted that the Tribunal should be satisfied that there was no mitigation that could be undertaken in relation to the carport cracking which was preferable to the mitigation of simply removing the tree.
Further, Dr May submitted that this issue of the cracking in the carport had been misrepresented in the owners corporation's material to the general meeting by the reference to "minor damage and superficial damage", while the evidence of Mr Casselden, the plumber, was that the damage to the carport slab was more significant. Dr May said that because the information placed before the owners corporation was inaccurate in this respect, the decision based on that information was unreasonable. Although the issue had been ventilated at the general meeting, Dr May explained that only a smaller number of owners attended the meeting. Much of the voting was by proxy and would have been based, in his view, on inaccurate information. It seems to me that, if owners choose to not attend a general meeting but to give a proxy, it is to be anticipated that their proxy will have regard to further information discussed at the general meeting.
In relation to removal of the tree, Dr May submitted that the tribunal should adopt Mr Segrott’s assessment of risk and the accepted approach to address occupational health and safety of eliminating, or taking all steps to eliminate, such risk. He sought orders that the tree be removed; that there be an order for compensation of $1,580.00 for the water pipe and an order that the owners corporation reimburse the cost of the OH & S report of Mr Segrott which was obtained as part of the application for tree removal to the conservator.
Dr Campbell, on behalf of the respondent, said that in relation to the tree root, the evidence before the tribunal was not sufficient for the Tribunal to be satisfied that the cracking to the carport was caused by the tree root. He recommended the Tribunal adopt Mr Thomas' view as set out in his document, that there were other causes for the cracking such as the slope of the ground on the carport floor, shrinkage, or the application of an external load which might have contributed to or caused the hairline cracks which, in his view, did not affect the structural integrity of the carport floor. Further, whether the tree had damaged the water pipe was a matter that, in his submission, could not be known without excavation. He submitted that the Tribunal should not be satisfied that the tree had caused the problem.
The owners corporation submitted that if the Tribunal was satisfied that the tree was doing damage to the carport, nonetheless the owners corporation's view should be adopted, that is, that when the damage got to a point of not being superficial then at that time the owners corporation would decide to remove the tree or take other rectification measures. Dr Campbell reiterated that the preferred approach of the owners corporation at this time was to continue monitoring and taking advice in relation to the tree because of its value to neighbours and the landscape.
In relation to the assertion that the tree posed a risk of serious harm through the dropping of limbs or catastrophic failure, the owners corporation asserted that there was no evidence that this tree presented an unacceptable risk or any risk greater than any other trees receiving attention from arborists within the complex. It was pointed out that the conservator had not found that the tree was such a risk and did not find that it was in an inappropriate location because of safety issues. The tree was found by the conservator to be inappropriate in its location, only because of the potential that it was doing damage to property.
It was also submitted by the owners corporation that the Tribunal should be aware that in 2010 Dr May had agreed with two aborists' advice, that appropriate risk mitigation would be to remove the overhanging, heavy limb over the carport and to prune to reduce the weight of the tree. The owners corporation believed that these actions, which had been undertaken, were a reasonably practicable course of action because the fee for these actions was not exorbitant and it addressed the already small risk to public safety by making it lower still.
Findings of fact
I will not set out in full in these reasons all of the evidence that is contained in the documents and the oral evidence received by the Tribunal, but will focus on those areas where there is a difference of opinion about the facts or the conclusions to be drawn.
I should say that this matter was distinguished by an almost complete lack of properly qualified expert evidence in relation to the subject tree and the issues of concern. Much was made of information available in publications and on the internet in relation to the Brittle gum, the tendencies of these trees, and what is or is not an appropriate location for such a tree. While the internet can be a useful resource in general, it is no substitute for properly informed expert opinion in relation to the particular case. A number of witnesses also proffered their opinions on matters which were outside their areas of expertise, but no properly qualified experts in carport slab construction or gum trees were called.
Units Plan No. 116, known as Wybalena Grove, was constructed in the mid to late 1970's. Sometime around then the subject tree is considered to have been planted as part of a revegetation program undertaken by owners. The tree is what is known as a Brittle Gum or Eucalyptus mannifera. I have viewed the carport and I am satisfied that there clearly is what I would term minor cracking to the carport slab.
Dr May moved into unit 20 in March 2009 and, on 11 August 2010, Dr May wrote to the executive committee about the tree located on common property near his carport, asking that a large limb extending over the carport be removed and other pruning undertaken. Advice of two arborists was obtained at around that time. It is not contested the tree was found then to be, and remains today, healthy and stable without obvious defects. Pruning was undertaken in a remedial manner as requested by Dr May and the large limb extending over the carport was removed.
It was in February 2013 that Dr May replaced the drinking water pipe from the water meter on the street to the house because he had discovered that there was a leak at some point in the pipe. It was not clear what the nature of the leak was nor, what the cause of the leak was.
In early 2013, Dr May applied to the Conservator of Flora and Fauna seeking permission to remove the tree on the basis it was causing or threatening to cause substantial damage to a substantial building structure or service, that the tree represented an unacceptable risk to public or private safety and that the location of the tree was inappropriate given its potential size and growth habitat. That application was refused. Dr May applied for reconsideration of the decision and supplied to the Conservator both legal advice on liability and the first report of Mr Segrott, an expert in occupation health and safety.
The Conservator, on 12 June 2013, then determined that the tree might be removed on the basis that the location of the tree was inappropriate given its potential size and growth habitat. The reasons for decision referred to a trip hazard due to driveway damage, which was substantial and likely to be ongoing, and damage to the carport slab which was likely to increase over time given that the tree is still healthy and growing.
The Conservator did not find that the tree posed a risk to public safety and did not require the tree be removed.
Despite the Conservator having granted permission for the removal of the tree, the executive committee was not minded to undertake that course in 2013. The executive committee felt that it should adopt, what it called, "a wait and see approach." And, as I have noted, the issue was ultimately put to the owners corporation at the general meeting in December 2013 and that approach was adopted.
I am satisfied that there is cracking to the carport consistent with the cracking one could expect from a tree root, however, this cracking could also have other causes or could be caused by a different tree.
In the view of the plumber, the cracking to the carport slab was most likely caused by the tree root. However, the plumber could not rule out other causes and he is not an expert in carport slabs, he is an expert in plumbing. While the Conservator found that the tree had caused cracking to the carport, the Tribunal is not bound to adopt the opinion of the Conservator.
I am not comfortably satisfied on the evidence before me that a root from the tree is the cause of the problems with cracking to the carport slab.
Even if the tree was the cause of the cracking to the carport, from a visual inspection I do not consider the cracking that is present appears such as to make the carport unsafe or structurally unsound, and there was no appropriately qualified expert evidence before the Tribunal which would support that conclusion. I would describe the cracking as minor or superficial.
I noted at the view that similar cracking to the slab was present in other carports. I should note that I have considered the trip hazard on the driveway, which may be rectified by other methods, and I have also classed that with the cracking to the carport as not a significant source of damage to property which would necessitate removal of the tree.
I am satisfied that there was a leaky water pipe somewhere at the front of the premises, potentially under the slab, and situated, in any event, between the house and the water meter. This leaky pipe could have been caused by a tree root. It could also have other causes which have not been ruled out and, as the plumber explained, without removing the slab and digging up that water pipe, we will simply never know. Although the plumber gave it as his opinion that the leaky water pipe was most likely caused by a tree root, there is no reason why it should have been a root from that particular tree rather than any other tree located on the common property, and there were other physical causes for the leaky water pipe that could not be ruled out.
The plumber has advised that the leaky water pipe has been rectified by simply circumventing that part of the pipe. It remains to be seen whether removal of this water source will have any effect upon cracking of the carport slab.
So, I am not sufficiently satisfied that the leaky water pipe was caused by a tree root from that tree on common property.
I am satisfied that the tree is in good health and has significant years of growth ahead of it. I am not satisfied, in terms of public safety, that the tree is an inappropriate species to be planted where it has been planted, nor am I satisfied that this tree itself poses a risk to public safety as it is at the moment.
I am satisfied that the tree, as is the case with all trees and all trees of its type, poses a risk of dropping limbs or of completely falling down. However, I am not satisfied that it is such a risk to public safety that it requires immediate removal and I note that that was the same conclusion reached by the Conservator.
In relation to the Conservator's finding, I should put on the record that the Tribunal is not bound to adopt the same conclusions of fact that the Conservator adopted. I have based my decision on the evidence before me and, as you will have seen, I have reached a different view in relation to the cause of the carport cracking to that that was reached by the Conservator. It seems likely that the Conservator did not have the detailed information as to potential causes of water pipe leakage and carport slab cracking that was contained in the voluminous documents and statements filed in this matter.
Applying the law to the facts
In order for the Tribunal to make an order that Dr May be reimbursed the costs of replacing his water pipe, the Tribunal will need at the least to be satisfied on the balance of probabilities that the damage to the water pipe was caused by something under the control of the owners corporation, and, in this case, that is asserted to be the subject tree.
I am not satisfied, on the balance of probabilities, that the damage to the water pipe was caused by the tree and I decline to make an order that the owners corporation pay the costs of replacement of the water pipe.
In order for the Tribunal to make an order that Dr May be reimbursed the costs of the report of Dr Segrott, which was obtained for the purposes of the application to the Conservator for removal of the tree, the Tribunal would need to be satisfied that the making of that application was the proper responsibility of the owners corporation or should have been undertaken by the Owners Corporation, and that the report was necessary for that application. I am not satisfied that it was the responsibility of the owners corporation to apply to the Conservator to remove the tree. It follows from what I say next, that there is no need, in my view, for the Owners Corporation to proceed to remove the tree, therefore, it was not necessary to make an application for removal of the tree. Consequently, I decline to make an order that the owners corporation reimburse Dr May the costs of Mr Segrott's report.
In relation to the review of motion 1, which was unsuccessful at the general meeting on 9 December 2013, the Tribunal has, in previous matters, discussed the necessity that the tribunal first be satisfied that opposition to the motion was unreasonable before the tribunal may interfere with the outcome of the general meeting.
There is no doubt that the subject tree has dropped limbs in the past and it poses a risk of injury or damage to property. Any tree of any kind poses a risk. The question for an owners corporation is whether, and if so when, that risk becomes unacceptable, and how best to manage that risk with due regard to the amenity provided by the tree and the financial and administrative costs of management.
The report of Mr Segrott, which was conducted through the prism of Occupational Health and Safety legislation, rates the risk posed by the tree to persons very highly. Dr May submitted that in the light of that report it was unreasonable for the owners corporation, with its potential liability for injury or damage caused by the tree, to keep the tree rather than having it removed. The owners corporation said that the tree significantly contributed to amenity in the unit complex and should be retained under the current program of management with a close eye to whether any further damage to property occurred or any risk to public safety evolved.
Mr Segrott, himself, gave evidence that various of his clients differ in what he called their “appetite for risk" in relation to such matters. It certainly seems clear that the owners corporation for Units Plan No.116 has a greater appetite for risk in relation to the maintaining of significant trees in the streetscape or landscape than the individual unit owners in this case who are most closely located to the tree. I do not consider that this makes either the Owners Corporation's decision unreasonable, neither does it make the position of Dr May unreasonable.
The question of whether this tree should be retained or not is a question upon which reasonable minds may differ. It poses a theoretic risk to public safety, however, there is no evidence that it poses any greater risk than any other tree. It may possibly have damaged the carport slab, but even if it has, the damage appears to be minor and superficial. It provides amenity to the area and to a number of residents in particular. It is important to note that the owners corporation does not intend to retain the tree indefinitely but only to retain it while closely monitoring its condition and the condition of nearby property with a view to taking such action that should be considered necessary in the future.
Considering all of the evidence that was before the tribunal for this matter, I am not satisfied that opposition to motion 1 was unreasonable and it is not open to the Tribunal, in such a circumstance, to interfere with the outcome of the general meeting in relation to motion 1.
As a result, I have declined to make the orders that are sought in the application and I dismiss the application.
………………………………..
Ms M-T. Daniel - Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: |
PARTIES, APPLICANT: |
PARTIES, RESPONDENT: |
COUNSEL APPEARING, APPLICANT |
COUNSEL APPEARING, RESPONDENT |
SOLICITORS FOR APPLICANT |
SOLICITORS FOR RESPONDENT |
TRIBUNAL MEMBERS: |
DATES OF HEARING: |
PLACE OF HEARING: |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
3
1