Adams v Tweed Heritage Park Pty Ltd (Residential Parks) [2013] NSWCTTT 12 (15 January 2013)

CONSUMER TRADER AND TENANCY TRIBUNAL
Residential Parks Division

APPLICATION NO: 	RP 12/50451

APPLICANT: 		Morrie Adams

RESPONDENT: 		Tweed Heritage Park Pty Ltd

APPLICATION: 	Excessive rent increase and park maintenance issues

APPEARANCES: 	Ms F Urquhart for the applicant; Mr and Mrs D Long for the respondent

HEARING: 			3 December 2012 at Banora Point

LEGISLATION:		Residential Parks Act 1998
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ORDERS

On 3 December 2012 the following orders were made:

1.	The rent increase is excessive.

2.	The rent increase is not to exceed $7.00 per week. Those residents currently paying $125.00 per week are not to be charged rental exceeding $132.00 per week for the period 14-Nov-2012 to 13-Nov-2013. Those residents currently paying $127.00 per week are not to be charged rental exceeding $134.00 per week for the period 14-Nov-2012 to 13-Nov-2013.

3.	The park owner’s rent ledgers are to be adjusted to give effect to order 2.

4.	The park owner is to maintain the roads at the park.

5.	The park owner is to have the trees pruned and cleaned as required.

REASONS FOR DECISION

APPLICATION

1.	By an application filed 5 October 2012 the applicant sought orders that a rent increase was excessive and that the park owner maintain the trees and common areas at the park.

2.	On 4 September 2012 the respondent gave notice to the applicant of a rent increase of $10.00 per week effective 14 November 2012.

JURISDICTION

3.	The Tribunal has jurisdiction to hear and determine this application pursuant to the Residential Parks Act 1998 (“the Act”).

PROCEEDINGS

4.	The application was listed for hearing at Banora Point on 3 December 2012. There were 27 related matters and this file was designated the master file. The Tribunal provided for a conciliation session facilitated by Mr Butler. The cases could not be settled via conciliation and a hearing took place thereafter. The hearing was sound recorded. After the hearing, I had a site visit of the park. The respondent has now asked for written reasons to be provided in respect of the decision.

EVIDENCE

5.	Both parties filed written material setting out their evidence and the representatives of the parties made oral submissions.

THE LAW

6.	Section 55 of the Act allows a resident to seek an order that a rent increase is excessive. Section 57 sets out the matters to be considered in determining whether or not the rent increase is excessive, namely (a) the general market level of rents for comparable premises in the same park or other parks; (b) the value of the residential premises; (c) the frequency and amount of past rent increases; (d) the Consumer Price Index; (e) the conduct of the parties; (f) the amount of outgoings in respect of the premises required to be paid by the park owner; (g) the estimated cost of services provided by the park owner or the resident; (h) the value or nature of fittings or appliances provided with the premises; (i) the state of repair and general condition of the premises; (j) any work done to the premises by the resident with the consent of the park owner and (k) any other relevant matter. Section 58 provides that if the Tribunal determines that a rent increase is excessive, the Tribunal may order that the rent is not to exceed a specified amount for a period not exceeding 12 months.

FINDINGS

7.	It was common ground that the park owner was prepared to maintain the roads at the park. The site visit to the park revealed that the roads are generally in good condition. There is a small section which needs some repair and the park owner’s managers will attend to that section in accordance with general maintenance as scheduled. It was also common ground that the park owner was prepared to maintain the trees at the park. There are hundreds of trees involved and it is a major task and costly task to prune and clean these trees many of which are palms. Orders were made for the maintenance as agreed between the parties.

8.	The issue in contention was the rent increase. There are 310 residents of the park. Many residents were given notice of a rent increase. The park owner’s evidence is that 121 residents accepted the increase and that the 28 residents opposing the increase is a small proportion of the park population. There may be several reasons why other residents might not have come to the Tribunal. The Tribunal cannot speculate as to those reasons and it has to determine the applications before it having regard to the evidence and the section 57 factors referred to above.

9.	Those residents currently paying $125.00 were facing an eight per cent increase. Those residents currently paying $127.00 were facing an increase of 7.87 per cent.

10.	In these applications the Tribunal is not being asked to determine whether the rent being charged is excessive. It is arguable that $135.00 and $137.00 per week are not excessive rents. However, the Tribunal is not being asked to determine whether $135.00 and $137.00 per week are excessive. What the Tribunal is being asked to determine is whether the rent increase is excessive and that requires a consideration of the section 57 factors, the current base rent and the percentage increase that is being sought to be imposed by the respondent.

11.	The significant factors were (a) the rentals being paid in other parks; (b) the frequency and amount of past rent increases (which have ranged between 4.4% and 6.1%); (c) the consumer price index which was 1.3% to June 2012 and (d) the moneys which have been spent by the park owner in park improvements and increases in outgoings that the park owner has to pay. Other factors were considered to have lesser significance.

12.	The park was generally of a considerably lower standard than a park inspected in Ballina which had a $10.50 per week increase. The park was of a similar standard to a park in Alstonville which had an 8 per cent increase because there was no increase between 2010 and 2012.

13.	There was a 4.95 per cent increase in rentals at the park in 2011. An increase of 8.00 per cent or 7.87 per cent in 2012 is excessive.

14.	A finding was made that the rent increase of $10.00 per week was excessive. A finding was made that the rent increase should be $7.00 or 5.60 per cent for those residents currently paying $125.00 and 5.51 per cent for those residents paying $127.00.

15.	A finding was also made that it was appropriate for the rental increase to operate for a period of twelve months.

Kim Holwell
Member
Consumer, Trader & Tenancy Tribunal

15 January 2013