Laurel Springs No 14 [2011] QBCCMCmr 21 (25 January 2011)

Last Updated: 21 February 2011

REFERENCE: 1060-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3837
Name of Scheme:	Laurel Springs No 14
Address of Scheme:	18 Doolan Street NAMBOUR QLD 4560

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Bruce and Joan Browning, the owners of lot 7

I hereby order that within 2 months of the date of this order, the body corporate is required to engage a suitably experienced contractor to cut down the mango, slash pine and camphorlaurel trees at the rear of lot 7 (unit 81), referred to in the committee resolution dated 10 April 2010.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1060-2010

“Laurel Springs No 14” CTS 3837

APPLICATION

This is an application dated 15 November 2010 by Mr & Mrs Browning, (the Applicants) owners of Lot 7 against the body corporate for the scheme (the body corporate) seeking the following outcomes:

To nullify Motion 14 Alternative B, of AGM on 26 August 2010, to cut down trees above unit 81 to 50% and order the body corporate to immediately put into effect the Motion Item 4 Committee Meeting 10 April 2010 to cut down three trees above unit 81 using the lowest quote (Branch Creek Tree Services quote for $1210.00) and set a time limit for this.

BACKGROUND

“Laurel Springs No. 14” Community Title Scheme 3837 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 ( the Act) and the Body Corporate and Community Management(Standard Module) Regulation 1997 (Standard Module). There are 13 lots in the scheme created under two Building Unit Plans of subdivision and re-subdivision.

The applicants state that in a letter dated 8 April, addressed to the committee meeting on 10 April 2010, they requested the body corporate to remove certain trees near their unit. The reasons why they sought to have the trees removed, are set out in the letter and include the following:

• They believe that the trees, particularly the pine tree, could fall on their unit;
• The lack of sunlight on their unit has caused moisture to remain in their unit leading to mould growth;
• The bank in which the trees are planted is eroding and after the trees are removed, native shrubs and ground covers should be planted.
  

Attached to the letter was a quote for $1,700 (Tauro) and a quote for $2,640 (Horizon).

The minutes of that committee meeting record the following:
“Letter and 2 quotes from Bruce & Joan Browning with problems experienced by the trees on the property line between BC#14 and Reid Charity House. They request these trees be removed as per the 7 reasons in their letter”. The minutes also record that this request was approved by the committee meeting.

However, subsequent to the committee meeting, the applicants received a letter from the committee Chairman stating that there were “problems” with removal of the trees. Negotiations regarding the trees occurred at the July committee meeting where it was agreed to submit a motion with alternatives to the AGM, with funds allocated for this purpose in the budget.
At the AGM it was resolved that the body corporate approve to engage a tree lopper to lop by 50% 2 Mango trees, 1 Camphorlaurel, 1 Slash Pine and 1 Cadagi.

Subsequently, the body corporate manager advised that contractors would not “cut trees to 50%” as this is not permitted by Australian Standard 4373-2007 – “Pruning of Amenity Trees”. Consequently, as at the date of the application, nothing further had been done.

The applicants subsequently obtained two more quotes to have 3 trees cut down in accordance with the decision made at the committee meeting on 10 April 2010. One quote was for $2,530 from Treesafe Australia Pty. Ltd. and one quote was for $1,210 from Branch Creek Tree Services. Both contractors recommended that the trees be cut down rather than lopped and that they should be replaced with native shrubs to guard against future erosion.

The body corporate has not rescinded the resolution from the April 10 committee meeting and therefore the trees cannot be removed while that resolution remains in force. The trees are on common property and the applicants believe the trees present a danger to their lot.

SUBMISSIONS

Pursuant to section 243 of the Act, the body corporate and all lot owners were invited to make submissions concerning the application.

Submissions made by lot owners including the body corporate secretary, included the following:

• It is obvious that the applicants want 3 trees cut down completely as per their original request to the committee meeting on 10 April 2010. However, by the time the matter reached an AGM on 26 /8/2010, it had escalated to 5 trees;
• The matter was considered at the AGM where 11 votes were cast with the following results:

5 voters did not want the trees touched at all;

1 owner voted to have the trees completely cut down

3 . voters were in favour of a 50% reduction in height

2 voters were in favour of complete felling of 2 trees plus a 50% reduction in the height of only 1 tree.

• It was not until 27 October 2010 when the body corporate manager was arranging the tree lopping that she became aware that lopping of 50% was no longer allowed. The committee is seeking to resolve the matter but the applicants will not accept that advice needs to be obtained and that this takes time;
• They have requested the body corporate manager to seek professional reports regarding the trees and whether it would be permissible or safe to lop the trees by 30%;
• It will then be necessary to convene an EGM to rescind the AGM motion (and 10/4/10 committee decision) and vote on an alternative motion.
• The motion dated 10/4/10 actually referred to a quote by Tauro for an amount of $1,700 and the Branch creek quote for $1,210 was not obtained until November 2010, but is certainly the lowest quote for felling 3 trees;
• No “unauthorised” letter was sent to the applicants;
• It is difficult to negotiate with the applicants who insist that any issue raised by them be dealt with first even though other owners have matters requiring attention;
• Between August 2008 and April 2010 the committee had little regard for the obligations placed upon the body corporate by the Act and Standard Module.
• A new body corporate manager was appointed in March 2010 with the following objects:

To do everything in accordance with the Act and Standard Module;

To arrange, attend and minute all meetings;

To hold only 2 committee meetings per year;

To manage the maintenance plan.

• These objects are good in principle but presents some practical problems such as the delay in the resolution of this matter;
• Reasons given for wanting the trees to be completely felled, i.e. safety, condensation, mould, and bank stabilisation have always been open to conjecture but this does not mean that they were not taken seriously. The body corporate manager is currently in the process of obtaining further detailed reports.
• She voted in favour of removing the pine tree as it could pose a threat. A young cadagi tree would probably become a nuisance as it aged. A prune was all that was necessary for the camphor laurel;
• The applicants now wish to revert to the “three tree” application lodged in April so the Cadagi tree is no longer in contention.
  

Submissions made by another lot owner included the following:

• There are many maintenance issues that require attention including seven owners with retaining wall problems;
• The committee has been slow to deal with maintenance issues within the scheme;
• Motions dealing with tree removal were left off the 2010 AGM agenda due to time constrains and were to be dealt with at a later EGM;
• They feel that the resolution carried at the committee meeting on 10/4/10 to cut down the three trees behind the applicants’ unit was made in haste because and two committee members subsequently voiced concern that removal of the trees could lead to erosion;
• The trees were there when the applicants purchased their lot and have grown little since that time;
• The applicants are very demanding and expect the committee to “jump to attention” whenever they have a perceived problem.
  

Another owner who was present at the committee meeting in April does not believe there was a valid resolution by the committee to have the trees cut down. This is because 2 of the 5 committee members who were present and eligible to vote, were opposed to cutting down the trees, and a third committee member did not vote on the motion.

Submissions made in response by the applicants included the following:

• At the committee meeting held on 10 April 2010, four of the five committee members voted in favour of cutting the trees down;
• They are not aware of the committee seeking professional reports;
• The trees have grown substantially in the three and a half years that they have resided in their unit and would quickly grow back if trimmed;
• They believe that certain committee members have been vindictive;
• The Skyline quote was not obtained for the AGM on 26 August 2010.
  

JURISDICTION

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

DETERMINATION

As mentioned above, the Applicants are seeking the following outcomes against the body corporate:

To nullify Motion 14 Alternative B, of AGM on 26 August 2010, to cut down trees above unit 81 to 50% and order the body corporate to immediately put into effect the Motion Item 4 Committee Meeting 10 April 2010 to cut down three trees above unit 81 using the lowest quote (Branch Creek Tree Services quote for $1210.00) and set a time limit for this.

I have perused the material submitted by the applicants and note that the minutes of the committee meeting held on 10April 2010 record the following:

4. Letter and 2 quotes from Bruce & Joan Browning with problems experienced by the trees on the property line between BC#14 and Reid charity House. They request these trees be removed as per the 7 reasons in their letter.
Quote from Rory Tauro 24/2/2010 $1,700 which includes removal of mango, pine and camphor laurel trees with all green waste mulched (to be kept on site if requested) and stumps poisoned
(Cost breakdown is $400 per tree and $400 for chipper).
Quote from Horizon tree services 1/3/2010 $2,640. All trees to be cut as low as possible to ground, mulch to stay on pre-determined site.
Ruling: Bud Towne proposed that Rory Tauro’s quote be accepted. Seconded by Gary Dickson. Carried

I also note that the matter was revisited at the EGM on Thursday 26 August 2010, the minutes of that meeting record the following:

Motion 14 Tree Lopping U81 (Ordinary Resolution)
Submitted by Committee – Motion with alternatives
That the body corporate agree to engage a tree lopper to reduce the shade and risk of damage to Lot 7 (unit 81) using one of the options below funded from the sinking fund up to $2000
This Motion was carried. Yes (6) No (5) abstain (1)

The voting on the alternatives was as follows:

ALTERNATIVE A
That the body corporate approve to engage a tree lopper to completely fell 2 Mango trees, 1 Camphorlaurel, 1 slash Pine and 1 Cadagi.
This alternative was lost. Yes (1)

ALTERNATIVE B
That the body corporate approve to engage a tree lopper to lop by 50% 2 Mango trees, 1 Camphorlaurel, 1 slash Pine and 1 Cadagi.
This alternative was carried. Yes (3)

ALTERNATIVE C
That the body corporate approve to engage a tree lopper to completely fell 1 slash Pine, 1 Cadagi and lop by 50% 1 Camphorlaurel,.
This alternative was lost. Yes (2)

Quotes were subsequently sought, including a quote from Treesafe Australia stated:

Remove Camphorlaurel, Pine tree and Mango at rear of unit 81.
Mulch & remove debris
$2300 & GST = $2530.
Australian Standard 4373-2007 doesn’t allow lopping/ 50% reduction of trees due to the liability created when the tree re-grows structurally poor. Stumps to be poisoned and left in ground to retain bank stabilization. Can be replaced with more suitable native species- will ensure bank stabilization and reduced maintenance.

A second quote from Branch Creek Tree Services dated 8/11/2010, read as follows:

To take down 1 mango tree, 1 slash pine tree and 1 camphorlaurel to 1 metre above ground level.
To chip and remove all branches and logs and leave mulch on site $1,210

NB: Please refer to Aus. Standards 4373-2007 for unacceptable tree pruning practices.
The trees named on this quote CANNOT be lopped by 50% as this contravenes the Australian Standard 4373 for Pruning of Amenity trees. If a tree needs to be lopped by 50% it is recommended that the tree be removed and replaced with a smaller species.

Having regard to the advice obtained from the two contractors and my own perusal of Australian Standard 4373-2007, it would appear to me that reputable contractors are unable to lop the subject trees by 50% as contemplated. The relevant Australian Standard states that the practice of “topping” is unacceptable because, inter alia, the resulting re-growth is weakly attached and becomes prone to failure or collapse.

However, I believe that the resolution made by the committee on 10 April 2010 to remove 3 trees i.e. the mango, pine and camphor laurel trees, remains valid and should be enforced. Section 100 of the Act provides that a decision of the committee is a decision of the body corporate while subsection 101(2) of the Act provides that the committee must put into effect the lawful decisions of the body corporate. To date, no application has been made to have that committee resolution invalidated and in any event section 242 of the Act provides that such an application should be brought within 3 months after the date of the committee meeting.
In the circumstances I believe it would be just and equitable to order that within 2 months of the date of this order, the body corporate is required to engage a suitably experienced contractor to cut down the mango, slash pine and camphorlaurel trees referred to in the committee resolution dated 10 April 2010.

While the subject motion referred to a quote by Tauro for an amount of $1,700, I note that some 9 months have now elapsed since that quote was obtained and that a further quote for $1,210 was obtained in November 2010, from Branch Creek Tree Services. I will therefore leave it to the discretion of the committee to decide which contractor is the most suited to undertaking the task.

Finally, I note that concerns have been raised regarding the potential for erosion to occur after the trees have been removed. While I appreciate that preventative measures such as planting of shrubs may need to be taken, I can see no good reason why the removal of the trees should be delayed any longer.