Dodge, Clark and Ors v Hacienda Holiday Park Pty Ltd (Residential Parks) [2013] NSWCTTT 626 (11 December 2013)

CONSUMER, TRADER AND TENANCY TRIBUNAL
Residential Parks Division

APPLICATION NO:
	RP 13/48721	
APPLICANTS:
	D Dodge & B Clarke & Ors	
RESPONDENT:
	Hacienda Holiday Park Pty Ltd	
HEARING:
	26 November 2013 at Tweed Heads	
APPLICATION:
	An order that a rent increase is excessive	
APPEARANCES:
	Mrs F Urquhart for the applicants
Ms T Hickling for the respondent	

LEGISLATION:	
Residential Parks Act 1998	

ORDER

1.	The site fee per week shall not exceed the amount for each lot as stated in Schedule A of these orders as from 1 April 2013 to         31 March 2014.

2.	Any credit in site fees is to be paid to the resident on or before      31 December 2013 unless otherwise agreed between the resident and the park owner.

3.	Application No RP 13/55376 is dismissed as the Tribunal on the evidence before it is not satisfied the amount of the rent increase is excessive.

4.	No site fee increase applies to site 27 as the resident did not receive a notice of rent increase.

5.	Applications No RP 13/55350, RP 13/55373, RP 13/ 55419 and RP 13/55613 are dismissed as the applicants no longer reside in the park.

6.	All other claims are dismissed because having considered the evidence placed before it, the Tribunal is not satisfied (at the civil standard of proof, the balance of probabilities) that the grounds required to make the order sought have been established.

REASONS FOR DECISION 

1.	The park owner issued a notice of rent increase to the applicants dated 17 January 2013. The residents lodged applications with the Tribunal on 19 February 2013 seeking orders;

(i)	Pursuant to sections 55 and 57 of the Residential Parks Act 1998 (the Act) that the proposed rent increase is excessive;

(ii)	Pursuant to section 71 of the Act that the park owner maintain the trees; and

(iii)	Pursuant to section 24 of the Act the park owner maintain common areas of the park.

2.	The Tribunal matter came before the Tribunal and a decision was made on 14 June 2013. An application was made for the matter to be reheard and that application was granted. The orders made by the Tribunal were set aside. This matter is the rehearing.

3.	No challenge was made as the time the application was lodged, the form or service of the notice of rent increase.

4.	Section 57 of the Act provides;

57   Matters to be considered in determining rent applications

The Tribunal may, in determining whether or not a rent increase or rent payable under a residential tenancy agreement or a proposed residential tenancy agreement for residential premises is excessive, have regard to each of the following factors:

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

(b)  	the value of the residential premises,

(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,

(d)  	a general price index (such as the Consumer Price Index),

(e)  	the conduct of the parties,

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

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

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

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

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

(k)  	any other relevant matter.

5.	I shall deal with each of these separately.

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

The applicants nominated four other parks and the park owner nominated one. The table below sets out both the differences and common areas of these parks. These are provided to the Tribunal in the submissions of the parties’ representatives and the documents tendered. 

HACIENDA HOLIDAY PARK	
PYRAMID HOLIDAY PARK	
DRIFTERS HOLIDAY VOLLAGE	
POTTSVILLE NORTH	
COLONIAL TWEED HOLIDAY & HOME PARK	
HOMESTEAD	

PERMANENT SITES	
98	
124	
56	
83	
82	

TOURIST SITES	
68	
68	
68	
189	
0
	
0	

SITE FEES	$169.50*
$254.70*	
$139.50	
$163.40**	
$132.00	
$129.00	$169.50
$220.50	

WATER	
P/O PAYS	
P/O PAYS	
P/O PAYS	
P/O PAYS	
P/O PAYS	
P/O PAYS	

BOOM GATE			
YES				

POOL	
2	
2	
2	
2	
YES	
YES	

GARBAGE	
YES	
2 P/W					

MAIL BOXES	
YES	
YES	
YES	
YES	

BBQ	
YES	
YES	
YES	
YES			

MOBILE KITCHEN	
		
YES				

COMMUNITY HALL			
YES				

RECREATION ROOM			
YES				

PUBLIC TRANSPORT	
AT DOOR	
AT DOOR					
* Includes proposed rent increase
**Rent in dispute.

Parks that have tourist accommodation have a varying population particularly during holiday periods when holiday makers occupy the park. The facilities in these parks are also geared to accommodate these persons. The residents are required to share recreation facilities during these periods. Parks where there is no tourist accommodation tend to be quieter and there is little or no difference in the life style within the park. The Tribunal therefore does not view parks without tourist accommodation to be comparable with parks that have tourist accommodation. Pyramid Holiday Park offers very similar facilities and has a similar number of tourist sites to Hacienda Holiday Park. It has a larger number of permanent resident sites. Homestead Holiday Park is next door to Hacienda Holiday Park. The two parks while being owned by companies have common directors and the rents are similar.

The evidence does not show whether there is a range of site fees within each park. The site fees between Hacienda Holiday Park and Pyramid Holiday Park are much different with the site fees in Hacienda Holiday Park being the highest of all the other parks and Tweed Holiday Park may be comparable on a facilities basis but the rents are not comparable.

Within Hacienda Holiday Park the site fees vary. The reason for this is mainly historical with the most recent resident paying the higher fee. Some of the sites also have “ensuites” which attract a higher fee. The majority of tourist sites are located near the entrance of the park with the permanent sites being located to the north and the rear end of the park. In addition, the site fees within the park reflect their location. Generally those sites with water frontages attract the higher fees while those located to the southern end of the park and nearer the tourist sites have lower site fees.

It is noted that while all the permanent residents received increase notices, more than half have accepted the increased fees.

(b)  the value of the residential premises,

The applicants argue that the dwellings on the land belong to the resident and the land value is no benefit to them. Therefore any benefit from its value is a benefit to the park owner.

It is noted that there is an exemption from land tax where more than 50% of the sites in a residential park are occupied by persons over 55 years of age and they occupy under residential site agreements.

(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

A list of site fee increases since 2005 was tendered. Only one increase has been determined by the Tribunal and that was in 2012. The range of the increases is 6% to 8.8%. The average amount of the increase as a percentage for the years 2005 – 2012 is 6.51%. The figures tendered do not show whether there was a range of increases as per the current increases which are 4.2%, 7.9%, 13.9% and 20.2%.

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

Both parties tendered “downloads” from the web site of the Australian Bureau of Statistics. The applicants claim the CPI increase at the time the notice of increase was issued for Sydney was 2.8%. This is to be compared with the range of increases which commence at 4.2%.

The park owner on the other hand argued that the CPI is based on a regimen of items that do not reflect the costs in operating a residential park. The park owner however did not tender any other index which this sub sections accommodates.

(e)  the conduct of the parties

No evidence was tendered on this head of consideration.

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

The residents claimed that the outgoings of the park owner have been reduced. This is based on a reduction in ground staff and variation to the garbage collection arrangements. One bin is to be shared between two sites with the bin being placed in a designated place for collection. The residents argue that it imposes on arrangements on residents as to garbage collection. In addition some of the residents require assistance in walking and these arrangements are not suitable. They argue that the cost has been reduced and shifts the burden on the residents for cleaning costs.

The residents claim that the pool is not maintained and chemical levels checked daily. This is denied by the park owner. They further claim that the lack of maintenance has resulted in the park falling into disrepair. There has been no upgrade of any of the services or facilities in the park.

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

No evidence was tendered by the applicants on this head of consideration.

The park owner however tendered a list of outgoings over the past two years for the periods 6 June 2011 to 5 January 2012 as compared with the period 6 January 2012 to 5 January 2013. The list prepared by an accountant comprised the heads of outgoings for the park and concludes the increase is 8.2%. The costs did not include those incurred arising from the tourist operations.

The applicants disputed the figures in the document on the grounds that no supporting accounts were provided.

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

The applicants argue that they own their own homes, maintain them, mow their own lawns and tend their gardens. Apart from water usage the applicants pay for all other services.

It is the view of the Tribunal that it is under this head that the issue of the garbage collection should be considered.

The park owner did not tender any documents on this matter.

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

No evidence was tendered by the applicants on this head of consideration.

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

No evidence was tendered by the applicants on this head of consideration.

(k)  any other relevant matter

The applicants raised three matters here. They are tree maintenance, internal roads, water and electricity meters.

The applicants claim the park owner has declined to maintain trees on sites occupied by a resident because they were considered not be park property. The applicants rely on section 71 of the Act which provides;

6.	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.

(2)  	However, a park owner is not required under this section to take any action that is prohibited by law.

(3)  	The Tribunal may, on application by a resident of a residential park, 
make an order resolving a dispute concerning a park owner’s compliance with this section.

7.	The residents tendered a number of images of palm trees in the park showing their proximity to power lines, dwellings and the windfalls from the trees.

8.	The park owner claimed to be addressing maintenance of the trees.

9.	In regard to the roads the residents showed images of areas of the bitumen surfaces that appear to be breaking up. The park owner repaired the roads in July- August 2013.

10.	Similarly some of the meter boxes were rusting but these were also repaired in July 2013.

11.	In consideration of the evidence before it the view of the Tribunal is that this park has accepted rent increases of an average of 6.51%. The market rent for this park is greater that similar parks. The Tribunal accepts that site fees throughout the park should be varied on the grounds that the location of some sites, such as those with water frontages, attract a higher site fee. The Tribunal is also mindful that more than half the residents of the park have accepted the increase.

12.	There is no evidence of any upgrading or proposed upgrading of any services and facilities in the park. The evidence shows that in respect of garbage disposal there is some diminution of service.

13.	The maintenance of the park has been modest and any delay in maintenance should be a matter of separate application rather than allowing the problem to remain unresolved but then raise it at a rent increase. As parties to a residential site agreement are required to mitigate any loss the matter of maintenance and repair does not carry a great weight in this decision.

14.	The Tribunal accepts that the outgoings of the park have increased. The proposed increase is spread out over a range of 4.2% to 20.2%. Only one site is affected by an increase of 4.2%, one of 13.9% and one other of 20.2%. The remainder are 7.9% which are less than the average of the increase in outgoings of 8.2% as claimed by the park owner.

15.	The Tribunal in consideration of the evidence before it determines that a rent increase of 6.51% is reasonable. There is one application where the increase is less that 6.51% and that is dismissed as that increase is not found to be excessive.

16.	The Tribunal is not of a mind to make the other orders sought except to remind the park owner of its obligation under sections 24 and 71 of the Act. Where there is a failure of the park owner to address these matters the resident(s) may make separate application and seek a remedy for the problem.

J McMillan
Member
Consumer, Trader and Tenancy Tribunal

11 December 2013

SCHEDULE A

SITE No	SITE FEE	SITE No	SITE FEE	SITE No	SITE FEE	SITE No	SITE FEE	SITE No	SITE FEE	
5	 $210.41 	88	 $172.97 	123	 $177.87 	165	 $173.29 	188	 $187.30 	
6	 $208.87 	95	 $187.30 	124	 $166.26 	168	 $173.29 	193	 $186.07 	
7	 $210.41 	96	 $187.30 	125	 $196.67 	170	 $167.33 	194	 $186.07 	
8	 $210.41 	97	 $167.33 	126	 $186.39 	171	 $188.74 	197	 $198.59 	
9	 $210.41 	99	 $166.26 	130	 $172.97 	172	 $186.07 	198	 $196.56 	
10	 $210.41 	103	 $167.33 	136	 $209.88 	174	 $186.07 	199	 $200.08 	
26	 $167.33 	104	 $167.33 	139	 $209.88 	181	 $188.74 	200	 $208.49 	
41	 $167.33 	105	 $171.85 	154	 $210.41 	183	 $186.07 	201	 $198.59 	
70	 $168.61 	111	 $167.33 	156	 $167.33 	185	 $186.07 	XXX	XXX	
87	 $167.33 	113	 $186.07 	159	 $167.33 	186	 $187.30 	XXX	XXX