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Topic
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The Strata Committee as a representative of the Owners Corporation has planned unauthorised changes to common property, including the removal of trees and stands of mature gymea lillies and other plants that are common property. The Owners Corporation can alter the common property only if a special resolution has first been passed by the Owners Corporation that specifically authorises the taking of the particular action proposed. As owner-occupiers, we have sought to resolve the issue through mediation. The Owners Corporation (i.e. the Strata Committee and the Strata Manager) has declined mediation. Is it in the best interest of the Owners Corporation to decline mediation?
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It may be in the best interests of the strata committee and the strata manager but whether or not it’s in the best interests of the Owners corp can only be determined by the owners at a general meeting.
This is a commonly used tactic to try to deflect opposition to a plan – refusing mediation means you now have to take it to the tribunal.
However, in so doing, it opens the door for you to do that – you only need to have attempted mediation – and at the same time you can for an interim order to prevent them from going ahead with the removal of the plants and trees.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Aesthetics
I think more wars have been Fought over Aesthetics than any other issue.
Whilst technically what you describe is alteration to common property, another interpretation could be garden maintenance. Trees and shrubs get larger over time and need trimming. They can also get too large, or just go out of fashion.
Just make sure this is a really important battle you want to take on. And that you have support of a majority of owners lest you get labelled that crazy person.
Get 25% of owners to call a general meeting and put your motion on the agenda. Better than going to mediation since the majority vote is the rule.
The fact that someone is an investor or operates an Air BnB out of their property doesn’t mean they have a conflict of interest. They may have a particular reason for wanting to remove the trees and plants that aligns with their interests, all owners have an interest in the outcome of a decision, but that doesn’t mean they have a conflict of interest.
A conflict of interest is where someone has a material personal interest in the outcome of something – for example if an OC was looking at engaging a contractor and an owner had a financial interest in the contractor, then they should recuse themselves from any decision in that regard because the two interests conflict.
That doesn’t mean that I don’t sympathise with you, I like gardens. But if you want to have a chance of success make sure you have a solid argument.
I take it this post is the same issue as outlined in your other post titled Garden Work. It would be better if you had put your queries in one post. There are a number of elements missing in this post which are relevant, including that the garden works are well advanced. Conversely, there are elements missing in the other post which are relevant. It is not easy to give advice without all the facts.
As Jimmy outlined in his first response, an option was to apply for an interim order to prevent the removal of plants and trees until the matter was resolved. It seems this is no longer viable.
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