Lees & Ors v Mona Enterprises Pty Ltd (Residential Parks) [2010] NSWCTTT 359 (2 August 2010)

CONSUMER TRADER AND TENANCY TRIBUNAL
Residential Parks Division

APPLICANTS:	10/13606	
Brian Lees	

10/13611	
Kenneth Blakely	

10/13616	
Kevin McIntosh	

10/13620	
Ray De Luca	

10/13623	
Enid Watt	

10/13628	
Jack Marginson	

10/13632	
George Ivison	

10/13634	
Marguerite Ross	

10/13645	
Jon Holden & Syndith Holden	

10/13647	
Donald Trennery	

10/13648	
Alice McIntosh & Graham McIntosh	

10/13652	
Graeme Caffrey 	

10/13681	
Alex Banks & Janet Banks	

10/13688	
Mildred Bellamy	

10/13695	
Maxwell Eric Bellamy	

10/13698	
Jim Chaney	

10/13701	
Allan Graham	

10/13703	
Gregory Skinner & Maggie Jones	

10/13713	
David Donnelly	

10/13721	
Tom Pierce	

RESPONDENT:	
Mona Enterprises Pty Ltd	

APPLICATION:	
Excessive rent increase and further orders	

REPRESENTATION:	
Dr Martin for the applicants
Mr Moore for the respondents	

HEARING:	
1 July 2010 at Hurstville	

LEGISLATION:	
Residential Parks Act 1998	
______________________________________________________________

ORDER

1.	Pursuant to the Residential Parks Act 1998 Section 58, the rent payable per week by the applicants from 26 April 2010 for a period of 12 months from that date is as per the following schedule.

2.	Stay of proceedings made on this file pursuant to Residential Parks Act 1998 Section 60 on 5 May 2010 is vacated.

3.	Balance of orders sought dismissed.

SCHEDULE

	Name	Rent	
10/13606	Brian Lees	$123.70	
10/13611	Kenneth Blakely	$123.70	
10/13616	Kevin McIntosh	$123.70	
10/13620	Ray De Luca	$123.70	
10/13623	Enid Watt	$123.70	
10/13628	Jack Marginson	$106.50	
10/13632	George Ivison	$106.50	
10/13634	Marguerite Ross 	$118.60	
10/13645	Jon Holden & Syndith Holden	$123.70	
10/13647	Donald Trennery	$120.20	
10/13648	Alice & Graham McIntosh	$120.20	
10/13652	Graeme Caffrey	$120.20	
10/13681	Alex Banks & Janet Banks	$111.67	
10/13688	Mildred Bellamy	$119.58	
10/13695	Maxwell Eric Bellamy	$117.89	
10/13698	Jim Chaney	$123.70	
10/13701	Allan Graham	$123.70	
10/13703	Gregory Skinner & Maggie Jones	$123.70	
10/13713	David Donnelly	$123.70	
10/13721	Tom Pierce	$123.70	

REASONS FOR DECISION

The Tribunal is satisfied that that the agreement between the parties is pursuant to the Residential Parks Act which vests jurisdiction in the Tribunal and that a valid notice of increase of rent has been served in accordance with Residential Parks Act, Section 53.

The applicants filed applications pursuant to Residential Parks Act, Section 55 seeking orders that the rent increase is excessive.  The parties have filed the evidence in accordance with procedural directions of 5 May 2010.

Residential Parks Act, Section 57 identifies the matters which the Tribunal may take into consideration when determining an application that a rent increase is excessive.

The Tribunal indicated to the parties that the matter would be determined in accordance with the provisions of Section 57.

Excessive rent increase

S. 57(a) the general market level of rents for comparable premises in the same residential park and in other residential parks in the same locality or a similar locality.

The market rent in the same park

There are 21 permanent residents in the park and 20 are applicants to this matter.

Rents range from $103.50 to $120.10.  The outcome of the proposed rent increases is to fix a common rent at $160.00.

Parks in a same or similar locality

The parks submitted as comparable locality are Harts Caravan Park, Miranda, Heathcote Tourist Park, and Cronulla Caravan Park.

These 3 parks are located on the main arterial roads throughout Sutherland Shire.  The respondent park is in a relatively isolated region of Woronora.  Cronulla is a beach side suburb with very few or no residential sites.  The fact that these parks are in the Sutherland Shire does not satisfy the Tribunal that they are in a same locality and there is no geographical similarity in locality.  Regardless of the difference in locality Heathcote is a superior park to Woronora and the rent is $120.00 per week.  Harts Caravan Park is superior in all facets and the rent is $160.00 per week.  

These parks are far better maintained than the respondent’s park. 

S. 57(b) the value of the residential premises

There is no real relevant evidence on the criterion The applicant submits that the land valuation is 1.6 million dollars and this is not disputed by the respondent. Dividing the valuation by the number of sites to obtain a return per site is not a submission that is given any weight by the Tribunal

S. 57(c) the frequency and amount of past rent increases under the residential tenancy agreement or previous residential tenancy agreements between the same park owner and resident.

The parties agree that since the respondent became owners of the park, there was a rent increase by consent of $5.00 per week in 2008.

S. 57(d) a general price index (such as the Consumer Price Index)

The rent increase letter was issued in February to take effect on 26 April, 2010.

The Consumer Price Index (Sydney) for December 2008 Quarter was 2.2% and for the March 2010 Quarter was 2.9%.

This criterion must be considered in conjunction with all items in Section 57 and there is no basis for the proposition that the price index is an isolated figure that binds the parties.

S. 57(e) the conduct of the parties

The Tribunal does not give any weight to the submission that issuing of rent increase notices and their subsequent withdrawal is a matter that should be taken into account.

S. 57(f) the amount of outgoings in respect of the residential premises required to be borne by the park owner under the residential tenancy agreement or proposed agreement.

S. 57(g) the estimated cost of any services provided by the park owner or the resident under the residential tenancy agreement or proposed agreement.

S. 57(h) the value and nature of any fittings, appliances or other goods, services or facilities provided with the residential premises.

S. 57(i) the accommodation and amenities provided in the residential premises and state of repair and general condition of the premises.

S. 57(j) any work done to the premises by or on behalf of the resident, to which the park owner has consented.

The applicants submit that the park owner has not provided proper maintenance to the residential park.  The park owner has constructed numerous cabins which are rented out pursuant to the Residential Tenancies Act. 

On the evidence of the applicants, the residential park component appears to be in a dilapidated condition.  The park owner outlines increases in the cost of utilities such as water and the expenses in upgrading electrical services.  The applicants state that they have seen little or no benefit in expenditure on electricity with lighting being inadequate over a long term. 

The park owner appears to have committed resources to the construction of the cabins and this has been at the expense of the maintenance to the residential sites.  Cleaning of the amenities block has been an issue that has been the subject of enquiries by Sutherland Shire Council in 2009 but does not currently appear to be an issue.

Overall the evidence suggests that the accommodation and amenities provided and state of repair and general condition is not what could reasonably be expected by the residents. 

The garbage service has been varied from a bin system to the provision of two common skips for use by residents. This is not seen by the Tribunal as a reduction in services. 

S. 57(k) any other relevant matter

The applicants have concerns that the occupants of the cabins do not contribute to a peaceful environment and the Police have been called on numerous occasions.

The park owner has appointed a new park manager who has been pro-active in the management of the park as a whole and action is being taken in respect of people who are not complying with their residential tenancy agreement.

It is not appropriate to deal with the issue of park rules within this application but the park owner has undertaken to seek advice and consult with the residents on a variation of the park rules.

CONCLUSION

Having regard to the evidence provided, the Tribunal is satisfied that the rent increase is excessive.

Much of the increased expenses outlined by the park owner are related to the construction of the cabins and the increased impact on the whole of the premises including all the provided accommodation.  These costs include provision of infrastructure and services and the proposed rent increase to the residential site component and are not reflected in the evidence provided.  

The explanation for the differentiation of the amount of the rent for the residents is that it seems to relate to the date that they entered the residential site agreement rather than any difference for location within the park.

The Tribunal is not satisfied that the rent increase should exceed the CPI for the March Quarter of 2.9% and orders are made accordingly.

FURTHER APPLICATIONS

The applicant seeks further orders as follows:-

Order be made under section 56 that the rent is excessive

The Tribunal is not satisfied that the claim in respect of the alteration of garbage services is a withdrawal or reduction of services for which an order should be made that the rent is excessive.

Order under Section 16 relating to a breach of dispute under residential tenancy agreements
Order under Section 20 the park owner must not interfere or cause or permit interference, with the reasonable peace, comfort or privacy of the resident in using the residential premises

The applicant seeks compensation as the park owner has built cabins on the site and entered residential tenancy agreements with occupants of the cabins. They state the tenants have caused disturbances, breaches of the peace and criminal activity and Police have been called on numerous occasions.  They state park owner should bear responsibility for the subsequent disturbance to the residents.

The park manager has been pro-active and park owner has taken action in the Tribunal in respect of the conduct of the tenants and breaches of the residential tenancy agreements.  Often these types of cases take time to prepare evidence sufficient to substantiate the application.  The evidence is that the park owner supports the residents and Police involvement and has not condoned any of the anti-social or criminal activity.  On the material provided I am not satisfied it is appropriate to make the orders sought.

Order under Section 24 that the park owner is responsible for cleanliness and repairs

The issues of the amenities block appear to be resolved and there is insufficient evidence to make order sought.

Order under Section 71 relating to tree maintenance
71   Responsibility for maintenance of trees in residential parks
(1)	A park owner must ensure that trees in a residential park are maintained so as to protect the safety of residents, moveable dwellings and other property in the residential park.

The trees are not in the residential park and not the responsibility of the park owner under this section. 

Order under Section 20 of the Consumer, Trader and Tenancy Regulations in regards to costs

The costs sought are the costs of application fees filed by the application for notices that have been subsequently withdrawn.  The Tribunal could not make orders for costs on this application in respect of prior matters. 

On the material provided the Tribunal is not satisfied that the applicant has established the grounds upon which the further orders should be made. 

P R Smith
Member
Consumer, Trader & Tenancy Tribunal
2 August 2010