1. Within 21 days the Respondent shall remove the split Eucalyptus Cypellocarpa tree which is situated on common property close to the north east corner of the Applicant's Lot.

1. The Respondent shall comply with all relevant laws in relation to the removal of the tree (including those as to the safety of the person who does the work and those which require any permit).

1. The Respondent shall bear the expense of removing the tree.

1. The Respondent shall levy all of the Lot Owners for the expense of removing the tree, in proportion to their lot liability.

1. In default of the Respondent complying with paragraph 1, the Applicant may engage a contractor to remove the tree, as agent for the Respondent, and the Respondent shall bear the expense of removing the tree.

Ms. C. Loveson and Mr. G. Rebbeck, Committee Member

1. The Owners Corporation affects a rural property of around 61 hectares, which is divided into 15 individual Lots each of around 719 sq metres clustered in a 'village' area, and a large amount of common property much of which is natural forest. 12 Lots have dwellings, and 3 are vacant. The Applicant Mr Muir, and Ms Loveson who appeared on behalf of the Owners Corporation, own adjoining Lots.

1. The Owners Corporation has a professional manager, and an elected Committee of 4 Lot Owners, including Ms Loveson.

1. The parties describe the landscape as idyllic but there is long standing animosity between Mr Muir and Ms Loveson, and perhaps with other lot owners. The animosity doubtless diminishes the enjoyment by Mr Muir and Ms Loveson of their respective properties.

1. A "mountain grey gum" tree [Eucalyptus Cypellocarpa] grows on common property, very close to the north east corner of Mr Muir's Lot. As at July 2012 the tree was around 25 to 30 metres high, with a spread of around 20 metres. It has the potential to grow to a height of over 50 metres.

1. The tree is "split", meaning that it has two trunks which are joined in a "V" at the bottom. Mr Muir's dwelling is near the tree: the dwelling's north east corner is around 17 metres, and the dwelling's south west corner is around 25 metres, from the tree. Mr Muir says the tree is dangerous and capable of falling on to his dwelling, and should be removed. Mr Muir relies on a report by Mr Rob Wall, who holds an associate diploma in horticulture, dated 23 July 2012 in support of his contention.

1. Mr Muir produced a diagram[1] in the hearing, which showed that the residence of Mr Moodie, on Lot 4, could also be struck by the tree if it fell to the south west. The north east corner of Mr Moodie's dwelling is around 25 metres from the tree, and the centre of his dwelling is 30 metres from the tree. The same diagram shows that small areas of land, but not structures, on Lots owned by Ms Loveson and a person called Nicol could be struck if the tree was 30 metres in height and fell in the direction of their Lots.

1. Mr Muir seeks Orders to the effect that the tree be removed by the Owners Corporation at its expense.

1. The Owners Corporation's Committee considered Mr Muir's request, and responded with the suggestion that Mr Muir remove the south east trunk, at his expense, but that the other trunk be left in place.

1. The Owners Corporation resists Mr Muir's application on several bases, not all of which are relevant and some of which are symptoms of the animosity between Mr Muir and Ms Loveson. The Owners Corporation does not have its own arborist's report, but interprets Mr Wall's report as saying that the tree is not dangerous. The Owners Corporation points out that in a recent severe storm many roadside trees fell in the area but that this tree stood firm.

1. The thrust of the irrelevant points is that Mr Muir is an unfair and unpleasant individual whose bad behaviour disentitles him to relief before the Tribunal. Mr Muir denies those allegations and submits, quite rightly, that they are irrelevant. I listened to the 'evidence' of the complaints against Mr Muir, which included broad assertions, hearsay, supposition and the like. They do not warrant repetition.

1. I make no findings on the allegations and counter allegations of unpleasant behaviour between Ms Loveson and Mr Muir, save to say that they are irrelevant to this proceeding.

1. The relevant, arguable points in the Owners Corporation's defence were that

the Owners Corporation and its Committee have obligations to all Lot Owners and the conduct of the Committee in this matter has been consistent with those obligations;

the Owners Corporation has not breached any obligation under the Owners Corporations Act 2006;

the removal of the tree's south east trunk by Mr Muir, at his own expense, is the appropriate course;

Mr Muir knew there were trees on the property when he purchased in 2002, so he waived his right to complain about trees;

lot owners should not be allowed to seek the pre-emptive removal of trees. All trees are dangerous, to an extent, and they should not be removed simply to avoid risk. If lot owners continually demanded the removal of trees, the expense to the Owners Corporation would be crippling.

1. It was not argued in the hearing that this tree was special or particularly deserving of protection. In some urban areas of course trees are protected and are recognised as giving an area character. Objectively, this tree is just one of many in a 61 hectare rural property, with the disadvantage of being structurally unsound.

1. Before turning to the Owners Corporations Act 2006, let us examine Mr Wall's report.

1. It is not in the form required by Practice Note PNVCAT2, but there has been no direction given by the Tribunal for the filing of reports in that form and it would be inappropriate for the Tribunal to disregard the report on that basis.

"I inspected the site on Monday, 7 June 2010 and again on Tuesday, 17 July 2012 and found a large mountain grey gum (Eucalyptus cypellocarpa) adjacent to unit 12. This is a semi mature tree in excellent health that is growing vigorously. It is currently around 25 m in height and has a spread of around 20 m. A fully grown grey gum could be expected to easily exceed 50 m in height.

The tree's structure is very poor as it has codominant stems from ground level and then both of those stems again fork to each create another codominant stem. Of greatest concern is the lowest fork which shows sign of splitting, including bark and dieback of the camium. In my opinion this tree is going to fail at this point. The splitting shows that there is an inherent weakness in the tree at this point and at some time in the past the trunks have started to fail, only to have the tree's defence system grow over the split in the trunk. The included bark shows that the trunks are growing hard up against one another and that the growth of the diameter of each of the trunks is in fact creating a force away from each other. This force has created the splitting of the fork and will eventually result in catastrophic failure of the tree. The dying of the cambium will allow the dead tissue (wood and bark) to begin the decomposition process which involves rotting of wood, hollows and eventual failure of the fork.

In my opinion, I reckon that the tree is highly likely to fail at this bottom fork. The next question that needs to be addressed is what would the tree hit if it failed?

If the trunk to the south west failed it would fall across the road and create a nuisance. There is a slight possibility that it might hit someone but there are no houses or other structures in its line of four. If the trunk to the north east[2] failed unit 12 is in direct line of fall. The tree is large enough to cause significant damage and could cause injury or death to the occupants of (Mr Muir's Lot) unit 12. In my opinion, it is a 60/40 chance as to which trunk would be the most likely to fail, with a slight leaning towards the trunk to the south-west.

I would recommend this tree be removed as I believe it poses an unacceptable risk to the occupants of unit 12 and its inhabitants".

1. Against this, the Owners Corporation has not commissioned its own report, but it argues that the report does not warrant Mr Muir describing the tree as "dangerous".

1. I beg to differ. The juxtaposition of the phrases "will eventually result in catastrophic failure of the tree", "highly likely to fail at this bottom fork", a 40% chance of the trunk closest to Mr Muir's dwelling falling, "large enough to cause significant damage and could cause injury or death to the occupants of unit 12" and "unacceptable risk to the occupants of unit 12 and its inhabitants" amply justifies the description "dangerous".

1. In the absence of any expert report to the contrary, I accept the evidence of Mr Wall.

1. Mr Wall said the whole tree must be removed. The Owners Corporation's suggestion that only the south east trunk be removed is not supported by an expert opinion. As Mr Wall refers to the rotting of wood at the area of likely failure, as well as saying that the tree could grow to over 50 metres, it is unlikely that the tree would be rendered safe if only the south east trunk was removed. Accordingly, I find that the whole tree must be removed.

1. In the face of this finding the Owners Corporation's defences that it has obligations to all Lot Owners, and that it has not breached any obligation under the Owners Corporations Act 2006, have no merit. As I set out below, section 46 of the Act obliges the Owners Corporation to remove the tree. Section 5 of the Act obliges the Owners Corporation to act in good faith, and its refusal to remove a tree which is dangerous to a lot owner cannot be reconciled with that duty.

1. The Owners Corporation's defence of waiver has no basis. In the tort of nuisance, it is no defence to say that the plaintiff arrived after the nuisance. Mr Muir's claim is not even based on the tort of nuisance. In this case, the Owners Corporation's duty to maintain and repair is relevant. Mr Muir purchased Lot 12 in 2003. The tree has grown over that period. One cannot waive the right to complain about a dangerous tree because in years gone by it was not dangerous.

1. The Owners Corporation's defence that Mr Muir seeks the mere pre-emptive removal of a tree is disingenuous because it ignores Mr Wall's report. It is not the case that Mr Muir is seeking the removal of healthy vegetation, or spitefully seeking to change the bush character of the development.

1. The issue then is who should pay for the removal of the tree. The Owners Corporations Act 2006 dictates that the controversy is between whether the removal of the tree is for the benefit of the Owners Corporation as a whole, in which case all lot owners would contribute in proportion to their respective lot liabilities, or whether the removal is mostly for the benefit of some lot owners. The relevant sections are these:

1. Owners corporation to repair and maintain common property

_An owners corporation must repair and maintain - _

(b) the chattels, fixtures, fittings and services related to the common property or its enjoyment.

The tree is a fixture to common property, which the Owners Corporation must "repair and maintain". That obligation is wide enough to include removal of dangerous aspects of common property. That is, the words "repair and maintain" do not limit the obligation to repair and exclude the power to demolish. In an appropriate case the power to repair can be exercised by removing an item of common property.

(1) The owners ... (of) a lot are liable to pay any outstanding fees, charge, contribution or amount owing to the owners corporation in respect of that lot.

(2) A lot owner is not liable to pay or contribute to the funds of the owners corporation a proportion of any amount required to discharge a liability of the owners corporation exceeding the lot owner's lot liability.

(3) Subsection (2) does not apply to an amount payable to an owners corporation for repairs, maintenance or other works that are undertaken by the owners corporation on common property or a lot and which are wholly or substantially for the benefit of some or one, but not all, of the lots affected by the owners corporation.

1. Cost of repairs, maintenance or other work

(2) An owners corporation may recover as a debt the cost of repairs, maintenance or other works undertaken wholly or substantially for the benefit of some only of the lots from the lot owners, but the amount payable by those lot owners is to be calculated on the basis that the lot owner of the lot that benefits more pays more.

(3) The works referred to in subsection (2) may be to the common property or a lot.

1. Mr Muir argued that removal of the tree would benefit the Owners Corporation as a whole because it would relieve it of liability in tort to compensate Mr Muir for property damage or personal injury, and that it would assist the Owners Corporation to comply with its obligations to its public liability insurer to take reasonable precautions to avoid dangerous events.

1. The Owners Corporation, whilst maintaining its denial that the tree was dangerous, submitted that because Mr Muir was seeking to impose a pre-emptive measure, in circumstances where the tree may never collapse on his dwelling, the work was solely for his benefit. The Owners Corporation did not make any submissions on whether any benefit would be derived by Mr Moodie, Ms Loveson and Mr/Ms Nicol even though their properties may also be in the path of a falling trunk.

1. I conclude that sections 28(3) and 49(2) of the Owners Corporations Act do not apply.

1. If this case had arisen in the context of the tree having collapsed and damaged only Mr Muir's dwelling, the Owners Corporation would be liable to compensate Mr Muir and sections 28(3) and 49(2) would not apply. The repair to Mr Muir's dwelling would literally benefit him more than other lot owners, but he would recover the cost of repair as damages and all lot owners would have to contribute to the sum required in proportion to their respective lot liabilities.

1. Sections 28(3) and 49(2) are directed to a situation where, for example, in a multi storey building the owners corporation replaces the carpet in a common area on one floor, which can only be accessed by the occupants of Lots on that floor, who gain entry using a key. The sections could require the owners of those Lots to pay a higher proportion of the expense.

1. Continuing with the example of a multi storey building, sections 28(3) and 49(2) may not have that effect where the owners corporation refurbishes the common property comprising the main entrance to the building, even if some owners argue that they usually use another entrance. In that example all lot owners benefit from the enhancement of their building's appearance and utility.

1. The removal of the tree in this case is akin to that latter example. It does benefit all owners because, by removing the likelihood of catastrophic failure of the tree, and the 40% chance of the south-east trunk falling towards and on to Mr Muir's dwelling, the Owners Corporation - and thus indirectly the Lot Owners - are relieved from an exposure to substantial damages. By way of contrast, it would be unfair if the whole cost of removing the tree was imposed on Messrs Muir and Moodie, Ms Loveson and Mr/Ms Nicol.

1. Section 165 of the Owners Corporations Act empowers the Tribunal to order the removal of the tree and to recover the cost of doing so from each Lot Owner in proportion to their lot liability. The relevant sub sections are -

_(1) In determining an owners corporation dispute, VCAT may make any order it considers fair including one or more of the following - _

(a) an order requiring a party to do or refrain from doing something;

(b) an order requiring a party to comply with this Act ...

1. For the above reasons I will order, under section 165 of the Owners Corporations Act, that the Owners Corporation removes the tree at its own expense, within 21 days.

1. Subject of course to the Owners Corporation taking steps to ensure that when felling the tree it does not fall on Mr Muir's Lot, there is no obligation to hire a 'professional'. Ms Loveson spoke in the hearing of arrangements having previously been made with local farmers for this sort of work. It is however up to the Owners Corporation to comply with the law when removing the tree, and it must have regard to health and safety issues.

1. Similarly, Mr Muir does not complain of any danger from the roots of the tree. It is up to the Owners Corporation to decide whether to go to the added expense of grubbing out the roots.

1. The expenses incurred by the Owners Corporation in removing the tree must be levied to all of the Lot Owners in proportion to their respective lot liabilities.

1. In view of the ill will between Mr Muir and Ms Loveson, and perhaps some other Lot Owners, I urge the parties to comply with the Orders in a mature fashion.

1. I will also order that if the Owners Corporations fails to remove the tree, Mr Muir can engage a contractor to do so as agent for the Owners Corporation, which would be liable to pay the contractor's invoice.

[1] The diagram has "north" at the top. That may be inaccurate but where I describe the property I adopt Mr Muir's version of "north"

[2] I suspect that Mr Wall meant "south-east". Nevertheless it is clear that Mr Wall refers to the trunk facing Mr Muir's dwelling.