Keep & Ors v Cabana Holdings P/L (Residential Parks) [2007] NSWCTTT 595 (10 October 2007)

CONSUMER, TRADER AND TENANCY TRIBUNAL
Residential Parks Division

APPLICATION NOS:	
07/31197; 07/31208; 07/31214; 07/31217; 07/31219; 07/31225; 07/31228; 07/31242; 
07/31246	

APPLICANTS:	
Marie Keep; Barbara Evans and Benjamin Evans; Helen Conkin; Annie Morton; Beverley Scott; Shirley Johnson; June Lohmann; Bridget Sharp; Malcolm Quinton.	

RESPONDENT:	
Cabana Holdings Pty Ltd	

APPLICATION:	
Review of Rules	

REPRESENTATION:	
Mr Plimmer on behalf of applicants
Mr Virgona on behalf of the respondents	

DATE OF HEARING:	
30 August 2007

ORDER

The Tribunal makes the following orders in respect of the rules dated 1 August 2007.

The Tribunal declares that the Rule Nos 2, 15,16 & 18 are unfair pursuant to Residential Parks Act 1998 (the Act) S.88(4) and are set aside pursuant to Residential Parks Act S. 88(6A)(a).

The Tribunal declares that the Rules Nos. 1,3,4,5,6,7,8,9,10,11,12,13,14,17 are upheld pursuant to the Act S 88(6A)(c). 

PRELIMINARY MATTERS

The Act S. 88 makes reference to the capacity of the Tribunal to make orders in respect of new or amended Rules.  The Tribunal may declare the Rule to be unfair. (S. 88 (4).

Section 90 makes reference to existing Rules and applications in respect of the legal validity of the Rule.

The Rule proposed by the respondent is a replacement set of rules for the residential park. The Tribunal accepts the proposition by the applicants that it should take a broad view to the consideration of whether the new or amended rule is to be considered unfair and this consideration would include any claim that there is some issue as to legal validity. 

Unfair according to the Oxford Dictionary “not equitable, unjust, not according to the rules, partial”

There is no requirement of the Tribunal to consider the legal arguments put forward in respect of Section 90 as any question as to legal validity of the new or amended rules may be considered in the light of Section 88.

In respect of the powers of the Tribunal the Member agrees with the findings of Ms Ransome, Chairperson, Consumer, Trader & Tenancy Tribunal on File No. 03/01157 & ors on 31 March 2003. 

The Tribunal does not have the power to modify a park rule by changing its wording so as to alter the content of the rule. The power expressed in S. 88 (6A) is expressed to enable the Tribunal to modify the operation of the rule. 

Both parties filed written submissions and evidence in accordance with procedural directions and witnesses were called and gave evidence in chief and were subject to cross-examination.

Having regard to all the evidence filed and presented the Tribunal made the following findings.

FINDINGS

Rule 1

The rule does have some conflict in that there is an expectation that the residents must maintain their dwelling and be compliant with Local Government Regulations and the plumbing and drainage code.

Further, it states that all carports & garden sheds must have gutters and drains piped underground out to the roadway guttering. If the plumbing and drainage code did not have the expectation that a garden shed must have gutters and drains piped underground out to the roadway guttering then the section of Rules that require this is in conflict with the relevant code. 

In order to enforce such a rule the park owner would have to demonstrate that the plumbing and drainage code has been breached.

Different types of sheds have different impacts on the amenity of the park and a simple shed may not require any plumbing or drainage where it would be required for a more complex carport. 

The above does not render the rule as a legal invalidity and therefore unfair, it is an attempt to ensure drainage does not impact on neighbouring premises. 

If a resident proposed an alteration or addition which included the construction of garden shed which approval was unreasonably withheld on plumbing or drainage grounds, the Tribunal could determine such matter on the merits.

The balance of the rule does not appear to be unfair. The fact that some of the rule is covered in the legislation does not render a rule unfair providing the rule is an accurate reflection of the legislation.

Rule 2

The covenant as to colours that premises may be painted is not an issue of maintenance and not an item within the Section 62 for which Rules can be made.

The rule should be deleted.

Rule 3

The consensus at the hearing is that this rule does not apply to outdoor hanging of clothes under the verandah or carport and is not a breach of the rule and that there is no expectation that dwellings that do not have sufficient room in the rear would be expected to go without a clothes line.

On that basis the rule could not be considered unfair.

Rule 4

The Tribunal does not believe that the rule that requires noise which could disturb other residents to cease after 10.00pm is unreasonable.

The submission that this may restrict residents watching television or enjoying the company of others at their home after 10.00pm is clearly not the case and this is not the intention nor should it be the outcome of the rule. It is not unreasonable to expect residents to have regard for others after 10.00pm on the question of noise.

Rule 5

There is no objection to rule 5

Rule 6

There is no objection to rule 6

Rule 7

There is no objection to rule 7

Rule 8

There is no objection to Rule 8

Rule 9

There is no objection to Rule 9

Rule 10

The objection is on the basis that the park owner has abrogated his responsibility for common trees to the park resident. 

The Tribunal cannot read this implication into the rule and as such it does not appear to be unfair.

The Tribunal accepts the park owner’s proposition that it is better to take a general view on what should be stored under the premises. To attempt to allow certain item as such as lawn mowers and banning others such wooden items is too difficult and the rule in it current form appears to be fair.

Rule 11

There is no objection raised to Rule 11.

Rule 12 

The main impact of the rule in respect of parking was raised by the witness Barbara Evans.  The main concern is that some residents have more than one vehicle and insufficient parking space and further, that some residents are allowed to park in the visitors parking spaces and some are restricted from this informal benefit.

The question for the Tribunal is whether this rule is unfair.  The rule appears to facilitate parking within the residential park and make allowances for some deficiencies in the site parking by allowing parking on the roadside but still maintain the free flow of traffic.

The Tribunal is not satisfied that the rule is unfair.

Rule 13 

There are no objections to Rule 13

Rule 14

There is no objection to Rule 14

Rule 15

This rule does not appear to be in accordance with the Rule making powers as set out in Section 62. The rule is deleted.

Rule 16

There is clear contradiction in the rule to govern the use of the Social Club Hall.

The rule states that the hall is for the use of the residents only.  Then it states that written permission is required from persons, other than residents, who have been invited to attend a meeting or function.

The management has not disclosed any policy on when they will waive the rule that it is for residents use only.  There is no attempt at accountability or transparency in the decision making process. 

The concept that the hall should be pre-booked for functions makes sense, but the hall is for the residents use and the rule or policy should be re-considered by negotiation between park residents and the park owner. 

In its current form it is unfair and should be deleted.

Rule 17

There is no objection to rule 17

Rule 18

There is no “Broadlands Rainwater Tank Policy”.  The evidence form Mr Virgona is that upon receiving an application from a resident for a rainwater tank, the park owner would develop a rainwater policy for that particular premises on an individual basis.

This is a misconception on what a “policy” is and the rule is deleted as not only is it unfair it is inoperable.

The Tribunal is satisfied that the applicant has been able to establish on the balance of probabilities that the following rules are unfair pursuant to the Act, Section 88(4).

Rule	2
Rule	15
Rule	16
Rule	  18.

PR Smith
Member
Consumer, Trader and Tenancy Tribunal

10 October 2007