A unit owner sought, amongst other orders, an order from ACAT for the removal of a large Brittle Gum from the common property near his premises. When the matter first came before ACAT for directions, it was established that the question of removal of the tree was best pursued in the first instance before the owners corporation in general meeting.
A general meeting was then held and the motion to remove the tree was unsuccessful. The matter then proceeded as a merits review of the unsuccessful motion whereby ACAT could make an order giving effect to the unsuccessful motion, either as originally proposed or as amended by ACAT, if ACAT was satisfied after a merits review of the motion, that opposition to the motion was unreasonable.
In this case, the argument centred on the risk posed by the tree and the damage which had been allegedly caused by the tree to the property of the unit owner. The key paragraph from this case which led to the conclusion by ACAT that opposition to the motion was reasonable was:
‘The question of whether this tree should be retained or not is a question upon which reasonable minds may differ. It poses a theoretical 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 with a view to taking such action that should be considered necessary in the future.’
Consequently, ACAT was not satisfied that opposition to the motion to remove the tree was unreasonable and it was not open to ACAT, in such a circumstance, to interfere with the outcome of the general meeting.