A unit owner sought, among other orders, an urgent order to stay the removal of a eucalyptus tree and required remedial measures be taken to retain the tree.
The executive committee had authorised the removal of the tree (i.e. the facts are the reverse of those in the case of May).
The arguments centred on the risk posed by the tree. The unit owner argued that the tree should be retained as it provided amenity, it may last a great number of years and could be remediated and the risk of dropping limbs alleviated. The owners corporation argued that the owners corporation had a duty to ensure that known risks to life and safety and property are adequately mitigated. Given the tree’s history of dropping limbs, together with the opinion of some experts, the owners corporation argued that the best course of action was that the tree be removed.
ACAT must stand in the shoes of the decision maker (i.e. the executive committee) and make the correct or preferable decision. This review was ‘de novo’ which meant ACAT could consider issues of fact and law, which were decided by the executive committee, completely anew. Indeed, as indicated in May above, ACAT can also neither agree nor disagree with the decision of the executive committee and can make its own order (i.e. unrelated to orders sought by the parties).
In this case, the ACAT member was concerned about the material which had been put before it (competing expert evidence of managing risk, posing different financial and administrative outcomes) and the fact that the matter had come before it hurriedly (not giving everyone an opportunity to participate). Further, to adjourn the matter to give time for more evidence and greater participation by absent owners, was thought to result in prohibitive time and expense.
Consequently, ACAT held that the most efficient and expedient approach for ACAT standing in the shoes of the executive committee was ‘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’. The competing opinions and options were such that the owners as a whole were properly entitled to express a view on and talk about amongst themselves.