Jobson and ORS v Weeroona Holiday Park (Residential Parks) [2013] NSWCTTT 391 (7 August 2013)

CONSUMER, TRADER & TENANCY TRIBUNAL
Residential Parks Division

APPLICATION NO:	

RP 13/14749 & ors	

APPLICANTS:	
Violet Jobson and Thomas Jobson & Ors	

RESPONDENT:	
Sondau Pty. Ltd. t/as Weeroona Holiday Park	

APPLICATION:	
That the rent increase from 21 April 2013 is excessive. That the respondent has breached the applicants’ entitlement to quiet enjoyment	

APPEARANCES:	
Leslie Wakeling and Allan Wilkinson for the applicants. Guiseppe Pileggi for the respondent
	
HEARINGS:	24 April 2013 and 26 June 2013 at Taree	

LEGISLATION:	
Residential Parks Act 1998
 (the “RP Act”) sections 20,53, 55, 57 and 58
	
KEYWORDS:	Excessive rent increases; Quiet enjoyment	

ORDERS

On 26 June  2013 the Tribunal made the following orders:

1.	Pursuant to Section 58 of the Residential Parks Act 1998 the rent payable by the applicants on rent of $96.60 per week prior to 21 April 2013, is not to exceed the sum of $103.00 per week from 21 April 2013 for a period of 12 months.

2.	Any amount of rent which has been overpaid as a result of order 1 is to be credited to the applicants’ rent account.

3.	The application for orders under Section 20 of the Residential Parks Act 1998 is dismissed.

REASONS FOR DECISION

1.	These written reasons are requested by the applicants, pursuant to section 49 (2) of the Consumer Trader and Tenancy Tribunal Act 2001 (the “CTTT Act”) at the request of the applicants. The Tribunal gave oral reasons on 26 June 2013. All parties were present at the hearing. The hearing was sound recorded, however the reasons are produced from the Member’s notes and recollections.

2.	The Tribunal received 15 applications which claimed that a proposed rent increase for sites at Weeroona Holiday Park at Manning Point, were excessive. The applications were listed for hearing at Taree on 24 April 2013 and 26 June 2013.

3.	The parties were given an opportunity on 24 April 2013 to reach agreement in conciliation pursuant to section 54 of the “CTTT Act”. Although the parties worked hard in conciliation they could not reach agreement and the matter proceeded by way of an informal hearing on 26 June 2013.

4.	Leslie Wakeling of the Affiliated Residential Park Residents Association was granted leave to represent the applicants. Ms Wakeling was assisted in this process by Allan Wilkinson. The respondent was represented by Guiseppe Pileggi, the director of Sondau Pty. Ltd.

5.	The applicants each occupy a site within “Weeroona” upon which is located their own relocatable home and which is occupied as their principal place of residence. The parties have each entered into a “residential site agreement" under the “RP Act”. Schedule 1 of the “CTTT Act” establishes that the Tribunal’s jurisdiction in respect of any matters arising under the “RP Act” is to be exercised in the Tribunal’s Residential Parks Division. The present matters have proceeded in the Tribunal’s Residential Parks Division, therefore the Tribunal has jurisdiction to hear and determine the applications.

6.	There are 27 permanent sites in the park and 15 of these residents have made applications to the Tribunal seeking orders. Generally the applications are of a pro forma type and each seeks the same orders. The orders sought are;

a.	An order pursuant to section 55 of the “RP Act” that the rent increase notified in the notice dated 15 February 2013 is excessive.
b.	An order pursuant to section 57a-k of the “RP Act” that the rent increase is excessive.
c.	An order pursuant to section 58 (1 & 2) of the “RP Act” declaring rent to be excessive and specifying an amount the rent must not exceed for a period of 12 months from the date of the orders.
d.	An order pursuant to section 20 (1) (a), (b) and 2 (a) of the “RP Act” regarding the applicants’ right to quiet enjoyment.

7.	The parties provided submissions and documents pursuant to the procedural directions issued by the Tribunal on 24 April 2013.

8.	The notice of the increased rent payable under each residential site agreement was dated 15 February 2013. It required the increased rent to be payable from 21 April 2013. The applications were lodged together on 15 March 2013, and within the time allowed under section 55 of the “RP Act”.

9.	The 15 residents received notice of a rent increase of $19.40 pw, on an existing rent of $96.60 pw, to make a proposed rent of $116.00 pw. I understand there are no clauses in the applicants’ residential site agreements relating to rent increases.

10.	The “RP Act” under section 57 sets out the factors to which the Tribunal may have regard in determining whether the rent increase is excessive.

Section 57(a) -  General market level of rents for comparable premises.

11.	The evidence is that all existing residents are paying rent of $96.60 pw, except for four new residents, who I understand are paying rent of $140.00 pw. The Tribunal has consistently held that the rent paid by new residents to a park, does not establish the market rent for the park. The park appears to have 27 long term / permanent sites, 91 short term sites and 115 camp sites, being 233 sites in total. It also appears that the permanent sites are scattered throughout the park among the short term sites.

12.	The applicants argue the respondent is seeking a “catch up” rent, but the respondent denies this. However the rent increase notice clearly state: “This increase is to bring the permanents rent in line with the semi permanents.” Clearly the park owner is seeking to establish some parity in the park.

13.	The applicants suggest the only comparable park is “Easts”, which has recently increased its rent from $106.00 pw to $110.00 pw, an increase of $4.00 pw. “ Weeroona” and “Easts” are the only parks situated at Manning Point, which is quite an isolated area.

14.	The park owner suggests possibly some seven other comparable parks. All of these are some considerable distance from Manning Point. “Beachfront Holiday” is a resort type park which appears to have facilities well beyond “Weeroona ”. Other than “Riverside Holiday Park” at Failford, the rents for the  suggested comparable parks range from $102.00 pw to $110.00 pw. I leave “Oxley Anchorage” out as this, as in my view it is not comparable.  Weeroona” and “Easts” both appear to be 4 star parks.

15.	Although I accept that the park owner, has since owning the park, carried out considerable work in “Weeroona”, I find “Easts” to be a marginally superior park. I do accept ‘Easts” to be the most appropriate comparable park.

Section 57 (b) - Value of the residential premises.

16.	I note the park owner’s details of its rent for the land. However, nothing really turns on this issue.

Section 57 (c) - Frequency and amount of past increases 

17.	The park owner presents a schedule of rent increases in four parks including ‘Weeroona”. Mr Pileggi claims the rent in “Weeroona” increased by $17.10 since 2007, before the rent increase in question. The applicants present evidence that the rent increases for 2011 and 2012 were $3.00 each year, which was slightly above C.P.I.

Section 57 (d) A -  General price index

18.	The relevant C.P.I all groups Sydney is 2.5 %. For the reasons I have expressed in previous cases, I adopt 2.5 % as the general price index.

Section 57 (e) - The conduct of the parties 

19.	Considerable comment has been put by both parties under this heading. The comments are not common and are clearly in conflict with each other. Much of what is presented in this factor is not corroborated. Unfortunately, the comments put, point to a significant deterioration in the relationship between the parties.

Section 57 (f) - Amount of outgoings.

20.	I agree with the applicants that this is a factor into which the applicants can put little evidence. The respondent has presented a letter from its accountant in relation to operating costs at the park. I note the applicants’ concerns as to the professionalism of the letter, but I do not agree with this position.  The letter causes me to accept that the park owner is experiencing reasonable increases in the park’s outgoings.

Sections 57 (g) (h) (i) (j)

21.	Both parties have made a number of comments under these headings. There is little relevant evidence under these factors which would influence the issue to be determined, being whether the notified rent increase is excessive. However I do acknowledge that the park owner has undertaken considerable works in the park in the last 18 months approximately, and that the park is maintained in a good condition.

Section 57 (k) -  Any other relevant matter

22.	The applicants raise a number of issues as to works/improvements/ conditions in the park and an issue as to the storage of boats, trailers, etc, and the action of the park owner to residents. The park owner argues that the rent of $116.00 pw sought, is affordable on a reasonable measure, and claims that as it is affordable it cannot also be deemed excessive. I respectively disagree with this preposition, especially as it is the rent increase I have to consider, not the rent itself.

Conclusions

23.	The “RP Act” sets out in section 57 a number of factors which the Tribunal is to have regard to in determining whether a rent increase is excessive. The factors are not ranked and none of the factors are predominant. The role of the Tribunal is to take into account the evidence presented and to decide on balance whether the rent increase is excessive. What is under consideration is not the rent itself, but the increase in the rent.

24.	The onus is on the applicants to prove on the balance of probabilities that the rent increase is excessive.

25.	On considering all the evidence presented, the more relevant factors appear to me to be:

a.	Comparable residential parks and their rents pw are:

•	Weeroona		$96.60
•	Easts			$110.00
•	Range of others 	$102.00 to $106.20

b.	The relevant general price index is 2.5 %

c.	The park owner has presented evidence that causes me to accept that the park owner is experiencing reasonable increases in outgoings

d.	The proposed rent increase from $96.60 pw to $116.00 pw is an increase of $19.40 pw being a percentage increase of 20.1 %.

26.	After having regard to the evidence, I am satisfied that besides other issues the rent increase significantly exceeds the general price index, and is well beyond the normal or usual, as regards a rent increase in the circumstances. I declare that the rent increase is excessive.

27.	I determine an appropriate rent increase to be $6.40.  Therefore I order that the rent payable pw is not to exceed to the sum of $103.00 pw from 21 April 2013 for a period of 12 months. Any overpaid rent is to be credited to the applicants’ rent account.

28.	I turn to the issue of the park owner’s alleged breach of the residents’ entitlement to quiet enjoyment (s 20 “RP Act”). Effectively I have before me generally unsubstantiated statements and comments by the 

applicants. The park owner strongly refutes such accusations. The applicants’ case is well short of proving a breach of section 20, on the balance of probabilities. This claim fails and is therefore dismissed.

Mark Gilson
Member 
Consumer, Trader & Tenancy Tribunal

7 August 2013