Parker v Owners Units Plan No 36
[2014] ACAT 37
•27 June 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PARKER v OWNERS UNITS PLAN No 36 (Units Title) [2014] ACAT 37
UT 13/24
Catchwords: UNIT TITLES – owners corporation executive committee decision to remove tree – merits review of decision – assessment of tree experts’ evidence – whether hearing should be reopened to consider documents filed subsequent to hearing – features of merits review under section 129(f) of the Unit Titles (Management) Act 2011 – hearing to be de novo – the Tribunal is able to consider evidence not available to the executive committee when committee made its decision – no threshold question of reasonableness or unreasonableness of original decision – balancing of risk posed by tree, amenity provided by tree and cost of removing tree or taking remedial measures – referral of the matter to general meeting to allow owners to consider decision
Legislation:Unit Titles (Management) Act 2011, s 129
Cases: Meaney v The Owners Corporation Units Plan 40
[2013] ACAT 72
Tribunal: Ms M-T. Daniel – Member
Orders and Ex Tempore Reasons: 11 December 2013
Edited Ex Tempore Reasons: 27 June 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL UT 13/24
BETWEEN:
RUTH AMY PARKER
Applicant
AND:
THE OWNERS – UNITS PLAN NO 36
Respondent
TRIBUNAL: Ms M-T. Daniel – Member
DATE:11 December 2013
ORDER
The Tribunal Orders that:
- The resolution of the executive committee to remove the tree located in the carpark of Units Plan 36 is amended to require that the expert reports of Mr Mann and Mr Bowen, together with associated quotes and a summary of ongoing costs over the current sinking fund plan period be provided to the owners at a special general meeting called on an urgent basis to consider a resolution whether to remove or remediate the tree.
- The stay on removal of the tree by order 1 of the orders of 13 September 2013 is lifted.
Sgd. Ms M-T Daniel – Member
EDITED EX TEMPORE REASONS FOR DECISION
Background to hearing of urgent application
On 9 September 2013, Ms Parker filed an application against The Owners Corporation of Units Plan 36, a unit complex within which she resides, seeking among other things, urgent orders to stay removal of a eucalyptus tree at the unit complex and requiring remedial measures be taken to retain the tree. The tree was scheduled for removal on 16 September 2013.
While other issues were canvassed and orders sought by Ms Parker’s substantive application, only the matters regarding the tree were the subject of the urgent hearing before the Tribunal and consequently, these reasons for decision.
On 13 September 2013, the Tribunal made interim orders staying the removal of the tree, pending determination of Ms Parker's application. The hearing was brought on urgently on 17 October 2013 and at the conclusion of the hearing I continued the interim orders and reserved my decision.
On 11 December 2013, I provided my decision to the parties and made certain orders. At that time, I also provided the parties with a verbal summary of the reasons for my decision.
Due to the lack of published decisions in relation to such matters arising under the Units Title (Management) Act 2011, the parties requested that written reasons be provided and made publically available for future reference. This then is the edited reasons for the decision that was made on 11 December 2013.
The hearing
Ms Parker represented herself at the hearing. She filed a great deal of documentation in relation to the matter, including minutes from Annual General Meetings of the owners corporation, a statement by a person who had seen a limb fall from the tree and correspondence between herself and other persons and the owners corporation. The most significant of the documents filed by Ms Parker was a report about the tree from a consultant arborist, Mr Mann. Mr Mann gave evidence in relation to his report.
The owners corporation was legally represented at the hearing. The owners corporation relied on reports and evidence of two expert witnesses, Mr Coleman an accredited tree surgeon and Mr Bowen a qualified arborist, both from Trees R Us, who also gave evidence in relation to their reports.
The chronology of events in the matter was largely agreed, however there was a disparity of expert opinion on the extent of risk posed by the tree and what action would amount to adequate mitigation of that risk.
Consequently, the hearing focussed on the disparity of opinion between the three experts, and the parties’ submissions as to the findings and orders the Tribunal should make having had regard to that expert evidence.
Facts
Units Plan 36 is a 12 unit residential development located on the corner of Basedow and Beasley Streets in Braddon. The tree the subject of these proceedings is situated substantially within the common area of Units Plan 36, with some of its roots extending to the neighbouring property.
The tree is around 40 years of age, 25 to 30 metres in height, with a large canopy which overhangs the Units Plan 36 car park and a large LPG tank located near the car park.
There has been one reported incident where a tree branch fell off the tree onto a car in the car park. There was a passenger in the car. Fortunately no injury occurred.
Concerns over the safety hazard posed by falling tree branches were raised at the 2012 Annual General Meeting of the owners corporation on 26 June 2012 (the 2012 AGM), and again at the Annual General Meeting in February 2013 (the 2013 AGM).
At both of the AGMs it was suggested that an expert should be engaged to assess the condition of the tree. At the conclusion of the 2013 AGM the owners corporation directed the executive committee to engage an expert to inspect the tree with a view to providing an opinion on what, if anything, should be done.
The executive committee engaged Trees R Us to advise in relation to the tree.
On 25 February 2013, Mr Darren Coleman from Trees R Us, identified the tree as having certain defects and recommended that the tree be removed. Trees R Us provided a quote in the range of $7000 for removing the tree.
The executive committee, acting promptly on receipt of that recommendation, made an application to remove the tree to the Conservator of Flora and Fauna on 1 March 2013.
On 17 April 2013, the Conservator granted the owners corporation approval to remove the tree, noting that if the tree was to be retained, certain remediation actions should be undertaken.
The executive committee obtained a second quote for removal of the tree from Treetops ACT Pty Ltd which estimated the cost of removing the tree at some $9,000.00.
After considering the two quotes they had received, in late May 2013 the executive committee approved the quote from Trees R Us to remove the tree. This decision of the executive committee to direct removal of the tree is the decision that Ms Parker sought to have reviewed by the Tribunal.
Expert evidence about the tree
I had before me for this hearing evidence from a number of sources, but most importantly evidence from Mr Mann, a consulting arborist from Canopy Tree Experts, Darren Coleman, a tree surgeon from Trees R Us, and Matthew Bowen, an arborist, also from Trees R Us. These experts, while in agreement about the physical condition of the tree, each provided a very different prognosis.
By the end of the hearing Mr Mann and Mr Bowen were in agreement that the tree is in relatively good condition, other than for the presence of some fruiting growths. Mr Mann thought the tree could be remediated, while Mr Coleman and Mr Bowen recommended that the presence of those growths should lead to removal of the tree.
The Conservator's decision, while approving removal, did not require removal. The decision stated that if the tree were not removed remediation measures should be undertaken.
There is a consensus from all sources that inaction in relation to the tree in its current state is not an option.
When one looks at deciding between different expert opinions about a matter, one first needs to identify the area of expertise of each expert, their qualifications and experience. One will then consider the facts upon which the expert opinion is based, including the adequacy of physical inspections or testing.
Mr Coleman is an accredited tree surgeon, not an arborist. He was not retained to provide expert opinion in the context of ACAT proceedings. It was his opinion, provided on 25 February 2013, that started the executive committee on the path to seeking approval for removal of the tree.
The second expert from Trees R Us, Mr Bowen, is a qualified arborist possessing a Certificate (Level II) in Arboriculture. At the time of his obtaining this qualification 10 years ago, this was a higher level qualification, achieved largely by recognition of prior experience. Mr Bowen stated he had not undertaken refresher courses or any courses to upgrade his qualification. Instead, Mr Bowen described himself as a working arborist with expertise in climbing, tree trimming and removal. He stated that he did not profess any expertise in diagnosis of health of trees. He inspected the tree in around June or July 2013. He did not climb the tree but visually inspected it. He said he had never used the ‘cobra cables’ which had been recommended in this matter by Mr Mann. Mr Bowen’s opinion was that the tree appeared healthy but due to the presence of the fruiting bodies, in his experience, the inside of the tree would be rotting and the safest option would be to remove the tree entirely.
The applicant's expert in this matter, Mr Mann, has much greater expertise in the area of arboriculture than the respondent's experts. Mr Mann has a Bachelor of Agricultural Science from the University of Melbourne awarded in 1974, a Certificate of Arboriculture from the CIT in 1994, a Certificate of Horticulture from the CIT in 1996, and a Diploma of Arboriculture with distinction from Richmond TAFE in December 2012. Mr Mann acknowledged that the tree had previously had fruiting bodies, however it was his opinion that the tree could be remediated to reduce risk and retained for the future with trimming and the use of cobra cabling.
Having assessed the credentials and the expertise of Mr Mann, Mr Coleman and Mr Bowen; I have to say that I consider that Mr Mann certainly has a higher level of education and qualifications, a greater degree of experience and is more reliable in providing expert opinion in the area of arboriculture. Where there is a conflict of their views on matters of arboriculture, I would tend to prefer the evidence of Mr Mann over that of the other experts.
In addition to the professional backgrounds of these witnesses, it was clear from the evidence at the hearing that Mr Mann had conducted a detailed examination of the tree, including the use of a special composition hammer to determine the extent of decay and hollowness and an observation through climbing inspection.
These measures were not undertaken by Mr Bowen in his inspection, and his inspection of the tree occurred after the recommendation of removal of the tree had been provided and the course of events leading to the application for removal of the tree was underway.
I am satisfied then that Mr Mann's expert opinion provides a more informed, reliable and accurate assessment of the tree's condition, the risk it poses in the future, and available mechanisms to reduce and manage that risk.
Submissions of the parties
Ms Parker argued in these proceedings that the tree should be retained as it provides amenity, it may last a great number of years, and it could be remediated in accordance with the opinion of Mr Mann and the risk posed of dropping limbs thereby alleviated.
The owners corporation drew the Tribunal’s attention to the common law and statutory duties of an owners corporation to ensure that known risks to life and safety and property are adequately mitigated. It was submitted on behalf of the owners corporation that the tree’s history of the dropping of limbs, coupled with the opinion of Mr Coleman and Mr Bowen, meant that the best course of action was that the tree should be removed.
The subsequently filed documents
Subsequent to the hearing, a number of further witness statements or documents were filed with the Tribunal in support of Ms Parker's case. While I was aware of these being filed, I did not read them, and did not have regard to their content in making my decision.
The respondent had no opportunity to cross‑examine those persons or bring any evidence in reply. One option for dealing with that material would be to reopen the hearing to admit the further evidence, allow the respondent to file any material in response and reconvene the hearing to allow that evidence to be tested and further submissions to be made.
While I did not have regard to the content of these documents, in making the decision the Tribunal was aware that there were other persons presumably wishing to give evidence in relation to the tree in support of Ms Parker's case. It is an indication that persons may hold strong views in relation to preservation of the tree. It might also be assumed that other members of the Units Plan, and not only the members of the executive committee, may hold equally strong views that the tree should be removed.
Given the decision I had reached on the material before the Tribunal for the hearing, as set out below, I decided that the better course was not to reopen the evidence to admit those statements and documents.
The legislative framework
The application by Ms Parker is for orders under section 129(1)(f) of the Unit Titles (Management) Act 2011, which provides that:
ACAT may make an order repealing or amending a resolution of a general meeting or executive committee based on a merits review of the resolution by the tribunal.
In other recent matters, the Tribunal has outlined what a merits review involves.[1] The approach is often summarised as requiring the reviewing body to stand in the shoes of the decision maker and make the correct or preferable decision.
[1] Meaney v The Owners Corporation Units Plan 40[2013] ACAT 72
There are some accepted features of merits review which warrant mention. First, the review is essentially de novo, that is, the Tribunal is able to consider issues of both fact and law anew. Secondly, the Tribunal is considering and determining these issues as at the date of the hearing before the Tribunal, not as at the time of that original decision, which means in this case the Tribunal is able to consider evidence not available before the executive committee in reaching its decision. Thirdly, and this is particularly relevant for section 129(1)(f), there is no threshold question of reasonableness or unreasonableness of the original decision to be determined before the Tribunal may proceed to make an order.
In that respect, section 129(1)(f) is different to section 129(1)(g), which also requires the Tribunal to undertake a merits review but limits action taken by the Tribunal after conducting the merits review to only allow orders to be made where the opposition to the motion was unreasonable.
In looking at the decision of the executive committee in May 2013 to authorise removal of the tree, the Tribunal is entitled to consider all of the facts and the evidence as at the time of the Tribunal’s decision. In some senses, this can feel a little unfair to the executive committee because the Tribunal has before it a report of Mr Mann that the executive committee did not have in May 2013, and they may well have made a different decision if they had had that report.
There is nothing in section 129(1)(f) that requires the Tribunal to find that the original decision was unreasonable on what the executive committee had before it, or reasonable on what it had before it. The Tribunal is simply conducting a merits review of the decision but as at the current date and with reference to the evidence that is currently available.
Another interesting feature of merits review is that the tribunal is not obliged to choose either the orders proposed by Ms Parker or approve the original decision of the Owners Corporation. Rather, the Tribunal is to make the correct or preferable decision on the merits of the case.
What is the correct or preferable decision in this case?
The starting point for consideration of the correct or preferable decision in this matter must be a recognition of the legal framework within which the owners corporation operates. As submitted by the respondent, the tribunal needs to consider all of the circumstances of this case and, particularly, the law relating to owners corporations and the obligation to suitably address issues of safety.
After having regard to all of the evidence about the tree, on the key issue of the risk posed to safety of persons or property by this tree, in my view removal of the tree is not at this time clearly necessary. Alternative measures could be taken that would mitigate the risk, but those measures would not remove all risk.
Mr Mann in his evidence said, effectively, that every tree poses a risk of dropping limbs. As soon as you have a tree you have a risk, and the only way to obliterate risk entirely is to remove all trees. Mr Mann also pointed out in his evidence that the presence of trees provides amenity both to the individual owners and the neighbourhood.
The question that confronted the executive committee in May 2013, and now the Tribunal in reviewing the decision, was how to balance the risks posed by this particular tree, the amenity it provides, and the cost of alternative actions in relation to the tree.
If the tree is removed all risk of damage to people and property is gone, but so also is the amenity which this tree poses. The immediate cost of removal (around $7000) is certainly much more expensive than the immediate cost of remediation (around $4000). The issue of immediate costs is something that some residents may feel quite strongly about.
Further, if the tree is retained there is no certainty that something will not happen in three or four years that means this tree needs to come down at that time; that it is not a matter of balancing, it is just clearly necessary that it must be removed to protect safety to persons or property. If this happens, the owners corporation will have been put to greater cost than if the tree had simply been removed at the outset.
If the measures to remediate the tree are taken, the overall financial cost to the owners corporation may be greater in the long term, however, the amenity provided by the tree, and there may be different views by residents as to the extent of that amenity, will remain for the enjoyment of all residents.
It’s not just the financial cost of the different approaches that is relevant, but also the administrative costs. If the tree is retained, the owners corporation will need to ensure that the recommendations of Mr Mann are followed and that the tree is being checked every year or every two years. Even though the remediation measures seem cheaper in the short term, they may be greater in the long term, over 20 or 40 years, and they will come at an administrative cost.
Even if the remediation measures are taken, there will be a residual risk of injury or harm to persons or property. While ever the tree is there it will continue to pose some risk.
At the time the executive committee was making the decision, it had a report from Trees R Us which they believed was of a certain level of expertise, recommending removal. The Tribunal, however, has an additional report from another expert who has a higher level of expertise and a different view.
Looking at the background to how the executive committee came to be faced with making a decision in May 2013, it seems to me that the approach originally proposed by the owners at the AGM in February 2013 was that the executive committee should obtain expert opinion and be advised by that opinion. The Tribunal has competing expert opinions. While the Tribunal would prefer the opinion of Mr Mann as to whether it is necessary that the tree be removed, the financial and administrative consequences of adopting either course of action vary dramatically.
When merits review is conducted, the role of the tribunal is to make the correct or preferable decision. Having had regard to all of the factors that I have outlined in these reasons, I consider it is appropriate for the owners as a whole to consider the report of Mr Mann together with the quotes provided and the report of Mr Bowen so that they consider the two alternative approaches. All owners should be involved in making a decision as to how they wish to balance amenity versus risk versus financial and administrative costs. I do not consider that it is appropriate for the Tribunal to impose its view of how those factors should be balanced in the absence of the owners themselves having first had the opportunity to consider those matters.
In other words, the better decision for the executive committee to make, when now confronted with competing expert evidence of managing risk, posing different financial and administrative outcomes, would be to refer the matter back to the owners corporation at an urgently called special general meeting. That is the order that I will make at the conclusion of this matter.
I can understand that the participants in these proceedings may feel disappointed that they have not received an outcome today which asserts the correct decision to be made in relation to removal or retention of this tree in this Units Plan. However, because of the way in which the matter and evidence has urgently come before the Tribunal, I do not consider it is appropriate for the Tribunal to make that decision on the material before it at this time.
As I noted above, I gave consideration to adjourning these proceedings, admitting the additional witness statements into evidence, inviting the owners corporation to advise the owners of these proceedings and the Tribunal’s desire to hear from any of them who wish to express a view about the correct way to balance the amenity that is given to them by the tree versus the amount of money they want to put into the sinking fund over the relevant sinking fund plan period of time to manage the tree. Although tribunal proceedings are designed to be informal and accessible in nature, the reality is that in a matter of this kind even the most informal of ‘hearing’ processes will usually require the preparation and exchange of witness statements, attendance at the tribunal and the making of oral arguments. The time and expense to everybody by taking that course of action was prohibitive.
It seems to me that is more efficient and expedient for the Tribunal standing in the shoes of the executive committee, to refer this matter back to the owners at a special general meeting and allow that democratic process to occur in a more informal and dynamic way at that grass roots level. There is competing expert opinion and there are competing options on the table with different financial ramifications over a certain period of time of the sinking fund plans. Those are things that the owners as a whole are, I think, properly entitled to express a view on and to talk about amongst themselves. Some owners of unit plans may consider "We want to be prudent. While we're going to enjoy the amenity of trees in the courtyard area, we don't care about a tree in the car park, so we'll take it out." But other owners corporations may be made up of people who strongly want to retain trees and are willing to bear the risk and pay the extra money to proactively manage them, and that is a matter that is best ventilated first at a general meeting of the Owners Corporation.
Orders to be made
Consequently, the order I make is that the resolution of the executive committee to remove the tree is amended to provide, instead, that the reports of Mr Mann and Mr Bowen be provided to the owners together with the competing quotes, and a summary of ongoing costs over the applicable sinking fund period, at a special general meeting urgently called to determine the question of whether the tree is to be removed or remediated.
It follows from this that I will set aside the interim order staying removal of the tree. I anticipate the executive committee, having heard what I have said, is unlikely to take any action to remove the tree in the period of time between this decision and the special general meeting that will be held. However, it needs to be clear to everybody that should something happen in the meantime that means that the tree poses an immediate danger or an unacceptable danger, in other words, should the fact situation change or should new information come to light that means that tree clearly poses a danger, the owners, through their executive committee, should feel free to act appropriately at that time to deal with that risk.
………………………………..
Ms M-T. Daniel - Member
PUBLICATION DETAILS
FILE NUMBER: | UT 13/24 |
PARTIES, APPLICANT: | Ruth Amy Parker |
PARTIES, RESPONDENT: | The Owners Units Plan No. 36 |
TRIBUNAL MEMBERS: | M-T. Daniel - Member |
DATES OF HEARING: | 11 December 2013 |
PLACE OF HEARING: | ACAT Canberra |
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