The Owners Units Plan 2737 v Ryan & Anor (Unit Titles)

The Owners Corporation of Unit Plan 2737 (the Owners Corporation) brought proceedings against Mr and Ms Ryan (the Ryans) under section 129 of the Unit Titles (Management) Act 2011 (the UTM Act). The Owners Corporation sought orders for the Ryans to comply with a rules infringement notice. The Ryans, who were largely self-represented, disputed the validity of the notice and refused to comply with its terms. The central issue before the court was whether the Ryans were required to remove a tree planted in their courtyard under the terms of the rules infringement notice. The court also had to determine whether the air space above the Ryans' unit constituted subsidiary common property. Further, the court had to decide if the trees constituted a nuisance or substantial annoyance under the UTM Act.

The court found that the air space above the Ryans' unit constituted subsidiary common property. The registered units plan indicated that the air space above each unit was subsidiary common property. The court accepted that the trees constituted a nuisance or substantial annoyance, as they had grown to a size that obstructed the balcony of the unit above the Ryans' unit. The court considered the evidence provided by the parties and the site visit it undertook. The court held that the trees constituted a nuisance or substantial annoyance and ordered the Ryans to remove the central tree from their courtyard within three months of the order.

The court ordered the Ryans to remove the central tree (variety Albizzia julibrissin) from their courtyard within three months of the order. The court found that the Ryans had planted the tree in their courtyard in 2006, and that it had grown to a size that obstructed the balcony of the unit above their unit. The court held that the air space above the Ryans' unit constituted subsidiary common property and that the trees constituted a nuisance or substantial annoyance. The court ordered the Ryans to remove the tree within three months of the order, and noted that the Ryans had the right to appeal the decision to the Supreme Court of Western Australia.