The respondents owned and occupied a ground floor unit and in 2006, were given written permission to plant two trees in their courtyard.

In fact, three trees were planted. These trees flourished and soon began to interfere with the amenity of the unit directly above that owned and occupied by the respondents.

On 11 March 2015, the owners corporation issued a rule infringement notice requiring the trees to be pruned. That notice was not complied with, and these proceedings were commenced. The question was, whether the trees amounted to a considerable (or ample) displeasing / troubling / irritating disturbance (noting that rule 7 of the rules for the complex provided that a unit owner must not use a unit … in a way that causes a nuisance or substantial annoyance to an owner, occupier … of another unit). ACAT held that the centre tree caused substantial annoyance to the occupants of the unit above the respondent’s unit.

Default rule 7 did not apply if written permission for the particular use has been provided by the executive committee. If the centre tree was treated as a third tree, then there would be no permission for it to be planted and as a substantial annoyance, it could be the subject of a rule infringement notice.

ACAT ordered that the respondents remove the central tree from their courtyard within 3 months of the order.