Ball And Others as per Annexure A and Aspen Tourist Parks Pty Ltd - [2010] WASAT 44

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)

CITATION: BALL AND OTHERS as per Annexure A and ASPEN TOURIST PARKS PTY LTD [2010] WASAT 44

MEMBER: MR C RAYMOND (SENIOR MEMBER)
MR A MACNAGHTEN (SESSIONAL MEMBER)

HEARD: 8 FEBRUARY 2010

DELIVERED : 31 MARCH 2010

FILE NO/S: CC 811 of 2009

BETWEEN: PAULINE BALL AND OTHERS as per Annexure A
Applicants
AND
ASPEN TOURIST PARKS PTY LTD
Respondent

Catchwords:

Residential Parks (Longstay Tenants) Act 2006 (WA) - Whether the State Administrative Tribunal has jurisdiction to determine rent - Whether jurisdiction limited to determining on a review of rent on a market rent basis that the park operator had regard to a report obtained for that purpose from a person licensed under the Land Valuers Licensing Act 1978 (WA)

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA)
Conciliation and Arbitration Act 1904 1930 (Cth), s 40
Interpretation Act 1984 (WA), s 19
Land Valuers Licensing Act 1978 (WA)
Residential Parks (Long-stay Tenants) Act 2006 (WA), Pt 5 Div 1, Pt 5 Div 2, Pt 5 Div 3, Pt 5 Div 4, s 6(2), s 6(7), s 7(3), s 31, s 42, s 42(h), s 62, s 63, s 63(1), s 64, s 65, s 68(5)
Residential Parks (Long-stay Tenants) Bill 2005 (WA), s 31
Residential Tenancies Act 1987 (WA), s 32

Result:

Application granted

Category: A

Representation:

Counsel:

Applicants: Ms P Ball and Mr S Watt (Representatives)
Respondent: Mr Julius Skinner

Solicitors:

Applicants: Self-represented
Respondent: Jackson McDonald

Case(s) referred to in decision(s):

Anthony Horden and Sons Limited v Amalgamated Clothing and Allied Trade Union of Australia (1932) 47 CLR 1
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322
Western Australian Trustees v Poon (1991) 6 WAR 72

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants applied under s 62 of the Residential Parks (Longstay Tenants) Act 2006 (WA) for a determination of the amount of rent payable under their respective long-stay agreements.
The Tribunal rejected the respondent's submissions that:
a)the Tribunal had no jurisdiction to determine the amount of rent payable on the basis asserted by the respondent that the respective agreements provided that the rent was to be varied on 1 July in every odd numbered year, by reference to 'a market review' without the agreements requiring the rent to be set at a market rent; and
b)the Tribunal's jurisdiction was limited to a consideration of whether the park operator had regard to a report obtained for a review of rent on a market rent basis from a person licensed under the Land Valuers Licensing Act 1978 (WA).
The Tribunal held that it had jurisdiction and power under s 62(2) of the Residential Parks (Long-stay Tenants) Act 2006 (WA) to determine a dispute under or in connection with the agreements, concerning the amount of rent payable, and to make an order to determine the amount of rent payable under the respective long-stay agreements, having regard to the terms thereof.
The Tribunal held that the agreements provided for a review to a market rent and after analysing the evidence provided by the parties' respective expert valuer witnesses, determined that the market rent in respect of each agreement, as at the review date, was $142 per week.

The application and issues for determination

By an application lodged on 3 June 2009, an order was sought seeking:
Review rent increase which is 14% from 1 July 2009 for three Aspen Parks in Perth.
The application was originally brought by Ms Ball under s 63(1) of the Residential Parks (Long-stay Tenants) Act 2006 (WA) (RP(LST) Act). The application was subsequently amended to reflect that it was brought only under s 62 of the RP(LST) Act and all of the current applicants, other than Ms Ball, were formally joined.
The parties have conducted the matter on the basis that the only residential park under consideration is the Woodman Point Holiday Park (Woodman Point), although the application originally also sought the review of the rentals set for Coogee Beach Holiday Park and the Perth Vineyards Holiday Park, which are also operated by the respondent. In the circumstances, we shall treat the application for any relief in relation to Coogee Beach Holiday Park and Perth Vineyards Holiday Park as having been abandoned. Quite clearly the applicants, who are all residents of Woodman Point, have no standing to attack the rent review applied to other residential parks.
The parties have filed statements of issues, facts and contentions and based thereon, the following issues will be determinative of the application.
1)Whether on a proper construction of the RP(LST) Act, the Tribunal has jurisdiction to determine a dispute concerning the rent payable?
Subsumed within this issue, it is necessary to consider whether, as contended for by the respondent, the Tribunal's jurisdiction is limited to determining whether, following a review of rent on a market rent basis, the rent payable on and after the review date has been calculated by the park operator by having regard to a report obtained for that purpose from a person licensed under the Land Valuers Licensing Act 1978 (WA) (LVL Act), and if so, whether the report obtained by the respondent from Mr Graham Packer is such a report and whether the respondent had regard to the report in calculating the amount of rent to be payable on and after the review date.
2)If the Tribunal has jurisdiction to determine the rent payable, what is that rent?
Only during the course of closing submissions, did it become clear that there was a fundamental issue which had not been clearly identified in the parties' statements of issues, facts and contentions as reflected in the third issue below.
3)Whether the terms of each long-stay agreement provide that on 1 July in every odd numbered year the rent is to be reviewed to a market rent, or by reference to a market review, without the rent having to be set at a market rent?

The factual setting and status of the tenancies

The facts which are set out below are not in dispute, except where expressly stated to the contrary.
The respondent is the park operator of Woodman Point, which is situated at No 132 Cockburn Road, Munster.
The following applicants have written periodic site only tenancies at Woodman Point that were entered into between the applicants and the respondent under the provisions of the Residential Tenancies Act 1987 (WA) (RT Act) prior to the commencement of the RP(LST) Act, namely: Eric Hartwell and Marie Glover (Site 10), Lorna Henderson and John Johnson (Site 21), Barry Lucanus and Sandra Lucanus (Site 22), Corrine Smyth and Paul Smyth (Site 23), John Horridge and Susan Horridge (Site 27), Peter Kileff and Hazel Kileff (Site 28), Jan Watkins (Site 38), Lorraine Webb (Site 39), Joan Warwick (Site 46), Len Castle (Site 55), Eileen Spence (Site 56), Wendy Jones (Site 60), Liliana Poklepovich (Site 61), Rosalyn Toop (Site 63), Agnes Ledingham and Norman Ledingham (Site 80), Robert Dobson (Site 83), Trevor Buck and Olive Buck (Site 101), Jennifer Parker (Site 105), Tony Fraser and Wendy Fraser (Site 106), Heather Sorrell (Site 107), Teresa Jo Fiddles (Site 108), Lorraine Fyvie (Site 111), Pat Moonie (Site 112), Kaye Shanley Eastwood and Lois Eastwood (Site 202), Nita Peake (Site 210), Venetia Valberg (Site 216), Jock Gladstone and Faye Gladstone (Site 218), Barry Kalbus (Site 231), Brian Kirby and Carol Kirby (Site 232), Phyllis Smith (Site 237), and Raymond Austen and Glenis Austen (Site 238).
It is common cause that under s 6(7) of the RP(LST) Act, the above tenancies are existing periodic long-stay agreements for the purposes of the RP(LST) Act.
The remaining applicants have unwritten periodic site only tenancies at Woodman Point, some of which were entered into prior to, and some after, the commencement of the RP(LST) Act. It is common cause that under s 6(2) (read with s 7(3) of the RP(LST) Act), all of the tenancies are subject to the RP(LST) Act which applies to, and in respect of, each long-stay agreement to the extent that it can be applied, as if each agreement had been made in accordance with the RP(LST) Act.
The respondent has adopted a practice of reviewing the rent payable for sites at Woodman Point as from 1 July in every even numbered year, by reference to CPI plus 1%.
As indicated, an issue arises as to the manner in which the rental is to be reviewed as from 1 July in every odd numbered year. Mr Lino Brolese, the Chief Executive Officer of the respondent, stated in his witness statement (Exhibit 1) that in every odd numbered year, the review was 'by reference to a market review of the rent payable'. In closing submissions, counsel for the applicant indicated that the review by reference to a market review of the rent payable did not constitute a review to a market rent.
Ms Ball, for the applicant, pointed to the terms of a draft agreement distributed by the respondent to all of the applicants. A full copy of that draft agreement is attached to a valuer's report procured by the applicants, to which reference is made further below. It provides relevantly as follows.
The Division 2 - details schedule - sets out the relevant details to be read with particular identified clauses of the agreement. Section (5) states:
Rent Review Dates (clause 2):
Market Rent Review Dates 1st of July every odd year
CPI plus 1% - 1st of July every even year.
Clause 2 deals with rent variation. Clause 2.3(c)(ii) provides:
Market Rent means the best annual rental that can reasonably be obtained for the site whether occupied and the unoccupied.
The draft agreement is in a form of long-stay agreement which appears to comply with the RP(LST) Act. For reasons not relevant to the proceedings, the parties have never entered into a complying form of long-stay agreement.
At the commencement of the hearing, counsel for the respondent confirmed that it was the respondent's position that, by conduct, there was, in effect, an agreement to review and that was accepted by Ms Ball. It emerges, however, that the parties have in mind a slightly different basis of review as having been agreed.
In effect, therefore, by conduct, it is a term of each long-stay agreement that the variations to rent will be made as from 1 July in each year, with the variation in each even numbered year being calculated by reference to CPI plus 1% (no attention was directed to this terminology, but it is consistent with the difference identified in relation to the market rent basis of review that it might be contended by the applicants that the review must be to CPI plus 1%), and the variation in each odd numbered year being either by reference to a market review of the rent payable, or to a market rent, and the Tribunal will have to determine which applies.
On 7 April 2009, the respondent engaged Mr Graham Packer, a licensed valuer under the LVL Act, to carry out a market review of the rent payable for sites at Woodman Point as from 1 July 2009 and to prepare a report as to the market rent payable for sites at Woodman Point as from that date.
The instructions to Mr Packer also required him to carry out the same task in respect of the other two residential parks operated by the respondent.
On 17 April 2009, Mr Packer provided a report in which he concluded:

Valuation

Accordingly, having regard to the above factors and our perception of the comparability of other park evidence considered, we propose the following rates as appropriate for the respective parks as at proposed date of review, viz. 1 July 2009:
•Woodman Point Holiday Park $152 per week
•Coogee Beach Holiday Park $150 per week
•Perth Vineyards Holiday Park $148 per week

The above rates all net of GST if charged.

The factors referred to above are a reference to reasons given for placing less weight on, firstly, the rental structure applied at the Banksia Tourist Park, which range from $143.10 per week to $250 per week depending upon the percentage payable by way of a deferred rental component payable at the end of the lease or at the time of sale of the park home, and secondly, the rental payable at the five star Perth International Tourist Park of $118.52 per week where the park operator had waived a review to market in 2007/2008 in favour of a CPI increase. The 'comparability of other park evidence' is a reference to a schedule attached to the report which sets out the rentals applicable at 11 residential parks, including the Banksia Tourist Park, and Perth International Tourist Park.
On 17 April 2009, the respondent gave notice by letter to the applicants that in accordance with the rental review procedure, a market review of the site rentals in the park had been carried out and had valued the market rent at $152 per week. In the letter, the respondent stated:
While it is our intention to bring our rentals in line with the current market, we are prepared to work with the residents of the park to achieve this over the next few years. Therefore, we are proposing a new rental figure slightly below the suggested market rental recommended in the valuation.
The proposed rental figures are set out below.
Valuation (Market Rental): $152 pw
Aspen Proposed Rental: $147 pw.
Although clear on the undisputed facts, to the extent that it is necessary, we find that in so setting the rent payable, the respondent had regard to a report obtained for the purpose of reviewing the rental on a market rent basis from Mr Packer who is a person licensed under the LVL Act.
The applicants procured their own report from Mr KL Eaton, also a licensed valuer, which is undated, but was filed with the Tribunal on 13 October 2009. Mr Eaton concluded that 'a fair weekly rent' for Woodman Point sites from 1 July 2009 is $133 per week. Although Mr Eaton referred to a fair rent, it became clear as a result of the joint expert reports, filed in accordance with the Tribunal's standard practice, that Mr Eaton understood that the issue was to determine the market rent and the report is consistent with Mr Eaton maintaining a position that the market rent payable is $133 per week in respect of each site.

The terms of the rent review provision

Given the terms of the draft long-stay agreement which was distributed to all tenants, which have been quoted above, and for the reasons which follow, we find that the rental review of the rent payable from 1 July in every odd numbered year is a review on a market rent basis, that is, to a market rent.
It appears to have been the respondent's consistent position that it wished to bring rentals in line with current market rent, but that, to minimise the impact on tenants, it would achieve that progressively. The letter of 30 April 2009, which is also quoted above, reflects that approach, whereby having obtained a report to establish the market rent, a lower rental was proposed in order to achieve rentals in line with the current market 'over the next few years'.
In any event, if contrary to our above finding, the provision is to be regarded as being one by which the rental would be set 'by reference to a market review of the rent payable' as asserted by the respondent, we do not consider that to mean anything different. A provision for review, with reference to CPI plus 1%, or with reference to a market rent, would be too vague to have any binding effect if it were to be interpreted as meaning that the review is ultimately entirely within the discretion of the park operator. We note that the respondent's conduct in proposing a lower rental than it might be entitled to, as explained in its letter of 30 April 2009, is consistent with the waiver of an existing right to assert a market rental.
Further, the importance in the distinction drawn by the respondent became clear only in closing submissions and is entirely inconsistent with its primary submissions, dealt with more fully below, relying on s 31 of the RP(LST) Act. The operation of s 31 is premised upon there being a provision in a long-stay agreement 'for a review of rent on a market rent basis'. The issue was teased out only when the Tribunal pressed the respondent's counsel on why, if the agreement provided for a review to market rent, a tenant could not use s 62(2) of the RP(LST) Act to assert that a dispute had arisen under or in connection with the agreement. The following exchange occurred at T: 74:
Raymond, Mr: Yes. The starting point is does the lease provide for a market rent review?
Skinner, Mr: So far as is able to be discerned from the evidence, the lease provides for a review by reference to a market rent. I think there is a small but perhaps significant difference between a lease that says, 'there shall be a market review' and one that's by reference to a market review. But that's not the distinction perhaps that I rely upon.
Although not stated to be relied upon by counsel, it became an issue necessary to be determined.

The correct statutory construction

Unless otherwise stated, all references below are to sections of the RP(LST) Act.
Section 62 provides as follows:
62. Breaches of agreement and other disputes
(1)This section applies in relation to a party to any of the following -
(a)an agreement for an option to enter into a long-stay agreement;
(b)a long-stay agreement;
(c)a selling agency agreement.
(2)The party may apply to the State Administrative Tribunal for relief if -
(a)a breach of the agreement has occurred; or
(b)any other dispute has arisen under or in connection with the agreement or in connection with any payment to be made under or in connection with the agreement.
(3)On hearing an application under subsection (2) or another provision of this Part, the State Administrative Tribunal may give such directions and make such orders as it considers appropriate.
(4)Without limiting subsection (3), the State Administrative Tribunal may do any or all of the following -
(a)restrain any action in breach of a long-stay agreement;
(b)require any action in performance of a long-stay agreement;
(c)revoke or alter a park rule, or give directions modifying the operation of a park rule in relation to a long-stay tenant;
(d)order the payment of any amount payable under a longstay agreement;
(e)order the payment of compensation to a long-stay tenant or prospective long‑stay tenant for loss arising from a failure of the park operator to comply with section 11(1);
(f)order the repayment to a party to a long-stay agreement of an amount paid by the party to the other party under a mistake of law or fact;
(g)order the payment of compensation for loss or injury (except personal injury) caused by a breach of the agreement or by breach of an order of the tribunal or a court;
(h)determine the amount of rent payable under a long-stay agreement, having regard to the terms of the agreement;
(i)authorise the payment to the tribunal of an amount of rent payable under the agreement until the agreement has been complied with, or an application for compensation has been determined;
(j)order that rent paid to the tribunal is to be paid out, towards the cost of remedying a breach of the agreement, or towards the amount of any compensation, or otherwise as the tribunal considers appropriate;
(k)make such other orders as the tribunal considers appropriate.
The respondent submits that s 62 does not provide the Tribunal with jurisdiction to resolve a dispute concerning whether or not rental has been fixed at the market rate.
The respondent points to s 31 and asserts that, provided a park operator complies with those provisions, the rental calculated by the park operator to be payable, is not subject to review.

Section 31 provides as follows:
31. Variation of rent on the basis of current market rent
If a long-stay agreement provides for a review of rent on a market rent basis then, when calculating the amount of rent to be payable on and after the review date, the park operator must have regard to a report obtained for the purpose by the park operator from a person licensed under the Land Valuers Licensing Act 1978.
Penalty: a fine of $5 000.
We are unable to agree with the respondent's assertion. Section 31 is a procedural requirement which obliges a park operator to apply a market rent in calculating the rental payable, having regard to a report obtained from a licensed valuer for that purpose. It means that there must be a reasonable and logical basis for the park operator to stipulate the market rent to be applied from the review date. It avoids an arbitrary stipulation being made. The failure to comply with the provisions of s 31 gives rise to a criminal sanction.
The respondent submits that the language of the section which requires that the park operator 'must have regard to' a report means that the respondent retains a discretion, which is not subject to review, relying upon R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; Western Australian Trustees v Poon (1991) 6 WAR 72 at 79 - 83.
We agree that a discretion is retained to calculate the rent by taking into account the valuer's report. The park operator may have knowledge of other comparables not referred to by the valuer or be aware of some errors contained in the report which may affect the calculation of the correct market rate. But, the question remains whether or not the rent calculated by the park operator may be challenged before this Tribunal. That issue cannot be answered by a mere examination of s 31 because it is trite that a provision of a statute must be construed consistently with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 69.
The Tribunal's powers are set out under Pt 5. Part 5 Div 1 deals with general provisions. Part 5 Div 2 deals with orders relating to vacant possession, Pt 5 Div 3 deals with orders relating to termination of agreements and Pt 5 Div 4 deals with orders relating to abandoned goods.
Within Div 1, s 62 as set out above, is the only section which expresses the Tribunal's powers in a general way. Section 62(3) provides the Tribunal may give such direction and make such orders as it considers appropriate and s 62(4) then provides that without limiting s 62(3), the Tribunal may do any or all of the things then set out. By contrast, the remaining sections under Pt 5 Div 1 expressly state the form of order which may be made by the Tribunal. Section 63 enables an order to be made reducing the amount of rent payable on grounds, in effect, that there has been a reduction as to the size or the quality of the agreed premises, or in the chattels or facilities provided, or where the rent has been determined based on a desire for the tenancy to be terminated. Section 64 provides that an order may be made declaring that a long-stay tenant has abandoned agreed premises. Section 65 enables an application to be made for the determination of compensation to be paid in certain circumstances. Similarly, under Pt 5 Div 2 to Div 4, each section expressly provides for the order for which application may be made to the Tribunal.
The respondent contends that the wide general powers conferred under s 62(2) must be read as excluding a right to determine the rental payable on a review to a market rental by reason of the existence of a specific power under s 63 to reduce the amount of rent payable only in particular circumstances, relying upon Anthony Horden and Sons Limited v Amalgamated Clothing and Allied Trade Union of Australia (1932) 47 CLR 1 (Horden) at 7. In that case, the High Court had under consideration the validity of an order made by the Commonwealth Court of Conciliation and Arbitration which required employers to give preference to unionists in employing female operators. The provisions of the order did not conform with the conditions of s 40 of the Conciliation and Arbitration Act 1904 - 1930 (Cth) which prescribed a power to direct that, among persons offering or desiring service or employment at the same time, members of organisations should be preferred 'other things being equal', whereas the order had been made unconditionally. The Court said, at 7 of the judgment: 'when the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise had been relied upon for the same power'.
As the decision in Horden makes clear at 8 of the judgment: 'an affirmative grant of such a power, so qualified, appears necessarily to imply a negative. It involves a denial of the power to do the same thing in the same case free from conditions and qualifications prescribed by the provision.'
The issue therefore is whether an attempt to challenge the park operator's calculation of the rental payable, where a long-stay agreement provides for a variation by way of a review to a market rent, is an attempt to obtain a reduction of rent, which, it is argued, can only be achieved under s 63.
As already observed, s 63 permits the making of an order reducing the amount of rent payable where there has been a reduction in some of the benefits which the long-stay tenant was otherwise entitled to enjoy, or where a rental has been determined as a result of a desire to have the tenancy terminated.
Can a dispute of the rent calculated to be payable by the park operator be said to be 'the same thing in the same case' free of the conditions imposed by s 63? We do not think so, for the reasons which follow. Section 62(4)(h) is an express recognition that in the exercise of the Tribunal's general powers under s 62(3), it may 'determine the amount of rent payable under a long-stay agreement, having regard to the terms of the agreement'. The identical phrase 'the amount of rent payable' is used in s 31, which is premised upon the review being on a market rent basis. In context, it cannot govern the resolution of a dispute about an amount claimed to be payable because that is covered by s 62(4)(d), which permits an order to be made for payment of any amount payable under a long-stay agreement. The determination of the amount of the rent payable therefore has a different meaning and in our view covers a dispute about whether the rent has been set in accordance with the terms of the agreement.
Under s 63, the entitlement to a reduction of rental is not based on the terms of the agreement, but on the reduction of benefits provided by it or a determination of rental aimed at achieving a termination of the tenancy. There is in place a rental determination which is binding on the parties and the tenant seeks to have the rental reduced. Clearly s 62(4)(h) has a different operation to that which is provided for under s 63. It requires a determination of the rental payable in circumstances in which the tenant disputes the rental asserted to be payable by the park operator.
None of the things which the Tribunal may do as provided for under s 62(4) are repeated under any of the more specific provisions which follow so that it would be inconsistent with the structure of the legislation if s 62(h) was intended to cover the same circumstances as set out in s 63.
What the applicants are endeavouring to achieve in this case is not a reduction of a rent which they are currently bound to pay, as is the case under s 63. The respective long-stay agreements provide that the rental is to be reviewed to a market rent. The park operator is not bound by the valuer's report obtained for that purpose, but it is nevertheless only the market rate which the long-stay tenant is obliged to pay under the terms of the agreement, and the park operator must therefore ultimately be able to justify any change to the rate fixed in the valuer's report.
We conclude that the Tribunal does have power under s 62, as made clear in particular by s 62(4)(h), to determine a dispute which arises under or in connection with the long-stay agreement and, in particular, as to the amount of rent payable, having regard to the terms of the agreement.
In arriving at the above conclusion, we have taken into account a possible counter-indicator, which is that the legislature has provided protection to a long-stay tenant from a termination of the longstay agreement without grounds when an application has been made under s 63 for the reduction of rent, or where an order has been made to that effect (s 42). It might be thought that there should be a like protection contained within s 42 in respect of a long-stay tenant who has challenged a rental variation made by the park operator. However, we note that a similar form of protection is achieved under s 68(5) in that the Tribunal may refuse to make an order terminating the agreement, and for vacant possession to be provided, if satisfied that the park operator was wholly or partly motivated to give notice by the fact that the tenant had taken steps to secure or enforce his or her rights as a tenant under the agreement.
We have also had regard to the respondent's submissions, firstly, to the effect that s 32 of the Residential Tenancies Act 1987 (WA) (RT Act) provides a tenant with a means by which to seek a reduction in rental in circumstances similar to those set out in s 63 of the RP(LST) Act without any general power to review rent; and, secondly, that the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (CT(RS)A Act) is an example of the way in which the legislature gave an express power to determine rent payable.
We do not accept that these submissions support the interpretation for which the respondent contends. Many residents residing in park homes were previously covered by the RT Act. The written tenancies that were entered into, as outlined above, were entered into under this legislation. Quite clearly, the RP(LST) Act intended to provide greater protection to park residents than was previously the case. So much is readily apparent from a reading of the second reading speech of the Minister for Consumers and Employment Protection, the Honourable Mr JC Kobelke, when introducing the Residential Parks (Longstay Tenants) Bill 2005: Hansard, 20 October 2005, at 6735b - 6738a. The Honourable Minister stated towards the conclusion of the speech:
This bill delivers on the Gallop government election commitment to provide more certainty for residents in the caravan parks and for home park owners. The bill puts into action protection needed for all the Western Australians living in caravans and residential parks, which was highlighted in the government's active ageing strategy. The bill also gives effect to findings of the government's state homelessness taskforce, which highlighted the need to protect people living independently of public housing and lower cost accommodation in caravan parks.
It cannot therefore be inferred that because no right to review a rental variation was provided under the RT Act, that the RP(LST) Act should be read consistent with that state of affairs. To the contrary, we consider that the language of s 62 and in particular s 62(4)(h) clearly indicates the grant of a jurisdiction that the courts do not have under the RT Act.
It should be borne in mind that, on our findings, there is no broad general power for the Tribunal to review rental in all circumstances. It is only where the agreement contains a provision for variation of the rental by way of a set formula that the Tribunal has a right to determine the amount payable, having regard to the terms of the agreement.
In relation to reliance on the CT(RS)A Act, we consider that, for the reasons given, the meaning of the RP(LST) Act is sufficiently clear, and that no purpose is therefore served by pointing to other legislation, which merely illustrates another way in which a clear right of review has been granted.
Section 19 of the Interpretation Act 1984 (WA) permits reference to extrinsic material in order to confirm or determine the meaning of a provision where there is ambiguity or obscurity in its meaning. We do not consider the legislation to be ambiguous or sufficiently obscure, to require reference to extrinsic material. In any event, reference to the parliamentary debate in the Legislative Assembly, during consideration of the bill in detail Hansard, 17 November 2005 7534(c) 7540(a) - tends to confirm our interpretation of the legislation. The Honourable Minister for Consumer and Employment Protection, to whom we have already referred, dealt specifically with cl 31 of the Bill (now s 31 of the RP(LST) Act) in the context of an interjection that the clause insofar as it provided that the park operator 'must have regard to' a valuer's report did not mean that the park operator must comply with the report, as follows.
Mr JC Kobelke: I do not think it will. We should keep in mind that these matters would be judiciable by the State Administrative Tribunal. SAT would make determinations based on the act. If the owner said 'we have reviewed the rent and, on a market basis we believe it should be such and such' that will simply have no standing before SAT if it did not have the proper evaluation required, as this specifies.
We therefore hold that the Tribunal has jurisdiction to determine the rent payable, having regard to the terms of the respective long-stay agreements.

Market rental

The respondent's instructions to Mr Packer for the carrying out of the rent review are set out in an email dated 7 April 2009 in respect of Woodman Point, Coogee Beach Holiday Park and Perth Vineyards Holiday Park. Mr Packer was specifically instructed that, with regard to the parks located near the ocean, he should review all 'permanents across the board with no differentiation with regard to location of sites within the properties'.
In our view, this instruction was contrary to the individual site agreements and s 31 of the RT(LST) Act. The agreements apply individually and s 31 of the Act specifically states that if a longstay agreement provides for review of rent on a market rent basis, then the rental payment is to be calculated in the manner stipulated.
Mr Packer's valuation report reflected the instructions given.
Both valuers maintained that it was not appropriate to provide any differential in rental assessments between the various sites, but readily conceded that their reports should have contained a rationale explaining why that was so. Mr Packer stated, at T: 36:
… I don't consider it appropriate here because there's no view, the difference in position within the park in relation to amenities, in my view, virtually cancels itself out. Distance to the beach is an immaterial difference, difference to any other amenities within the park is immaterial. So I thought that approach I didn't query it when I was given those instructions because I felt that that genuinely [sic] speaking a middle of the road rate was fair to apply to all the sites across the board.
Mr Eaton agreed with that statement. We accordingly proceed on the basis that it is appropriate to determine an across the board rental which will apply to each of the applicant's respective sites at Woodman Point.
As outlined above, Mr Packer's report reflects his reasoning for having little regard to the rentals applying at the Banksia Tourist Park and Perth International Tourist Park. Greater weight was placed upon the other properties identified in the Schedule attached to his report in arriving at his assessment. The appropriate rental to be applied was determined to be $152 per week for the Woodman Point sites, $150 per week for the Coogee Beach Holiday Park sites and $148 per week for the Perth Vineyard Holiday Park sites. The Schedule reflects the following rentals applying at each park as set for the period indicated:
•Ascot Central Caravan Park
$137 per week (2008/2009), $145 per week (2009/2010);
•Fremantle Village
$137 per week (2008/2009), $142 per week (2009/2010);
•Lake Joondalup Lifestyle Village
$150 per week (2008/2009);
•Pineview Lifestyle Village
$150 per week (2008/2009);
•Hillview Lifesstyle Village
$150 per week (2008/2009);
•Perth International Tourist Park
$118.52 per week (2008/2009);
•Cherokee Village Mobile Home and Tourist Park
$104.60 per week (2008/2009);
•Kingsway Tourist Park
$131.80 per week (2008/2009);
•Burns Beach Sunset Village
$130.50 per week (2008/2009);
•Banksia Tourist Park
$250 per week (option 1)
$143.10 per week (option 2)
$208.10 per week (option 3) (2008/2009); and
•Swan Valley Tourist Park
$121.90 per week (2008/2009).
Mr Eaton, in his report, referred to the following comparables and gave the date upon which the rent came into, or will come into, effect:
•Banksia Tourist Village
$129.21 per week (1 July 2009);
•Riverside Garden Estate
$115.35 per week (20 February 2009);
•Cherokee Village Mobile Home and Tourist Park
Current rent $104.60 per week increasing to $109.60 per week (1 November 2009);
•Discovery Holiday Park
$127.50 per week (1 September 2009);
•Ascot Central
$145 per week (date set not established);
•National Lifestyle Villages
$153 per week (date set not stated); and
•Burns Beach Sunset Village Park
$135.80 per week (7 September 2009).
Mr Eaton's conclusion was that the rental for Woodman Point should be set at $133 per week with effect from the review date of 1 July 2009.
In accordance with the Tribunal's usual practice, the expert witnesses prepared a joint report. The following matters were agreed.
•The valuers will not take into account the rental evidence from the premises operated by National Lifestyle Villages:
a)Lake Joondalup Lifestyle Village Ashby;
b)Pineview Lifestyle Village Tapping; and
c)Hillview Lifestyl Village High Wycombe.
These are purpose built retirement villages with superior amenities to other multi use parks.
•The valuers are agreed that Cherokee Village and Mobile Home and Tourist Park, at the lower end of the standards and fees for park homes should not be considered.
•Kingsway Tourist park, corner Wanneroo Road and Kingsway, Landsdale, which is closing its park home section to convert to a full tourist park, will not be considered in the evidence.
•Whilst some of the rental evidence to be submitted by the valuers to the Tribunal is preJuly 2009 and later than July 2009, the valuers are agreed that the market is little changed within a period of three to four months either side of 1 July 2009.
•Within the basket of evidence to be submitted to the Tribunal, the valuers are agreed that the Perth International Tourist Park, Hale Road, Forrestfield, a five star park comprising 55 dedicated park homes sites separate from the tourist/camping areas, has the highest standard facilities. This park offers 20 year fixed term site leases, and the rent is $127.50 per week with effect 1 September 2009.
The report also reflects the issues not agreed and why that was so. Mr Packer and Mr Eaton gave concurrent oral evidence at the hearing and expanded to some extent on the areas of difference.
Mr Packer placed a higher emphasis on the location of the parks, which he considered played a far more significant role for a long-stay tenant than for a short-stay or touristoccupant for whom the facilities or amenities of the park might be considered more important. Importantly, he emphasised that recognised locational advantages of river or beach precincts would have a major bearing on choice, as borne out by property values in those precincts. He regarded the best evidence as being Coogee Beach Holiday Park (assessed by him at $150 per week, but fixed by the respondent at $145 per week) and Fremantle Village ($142 per week).

Mr Packer also relied on two new lettings at Perth Vineyards Holiday Park (set by him at $148 per week, but fixed by the respondent at $143 per week). Reliance was also placed on the Perth Central Caravan Park at Ascot, which offered fishing and walking along the Swan River, similar to the features offered by Woodman Point, Coogee Beach Holiday Park and Fremantle Village ($145 per week).
Mr Eaton regarded Fremantle Village as something of an anomaly. He pointed out that Fremantle Village is privately operated, is not part of a chain operating any number of residential parks which he suggested carried a greater risk of closure in order to develop the site and that the operator tended to have an attitude of 'take it or leave it'. He considered that the rental was inflated because of this attitude.
In a statement of evidence signed subsequent to the expert report, Mr Packer referred to three new long-stay tenancies concluded at Coogee Beach Holiday Park at a rate of $145 per week, and one long-stay agreement concluded on 23 April 2009 for an amount of $150 per week. He also referred to two new longstay tenancy agreements entered into at Perth Vineyards Holiday Park at a rate of $143 per week. Mr Brolese referred to these new tenancies in his evidence and, under crossexamination by Ms Ball, disclosed that he had overlooked informing Mr Packer about a long-stay tenancy entered into at Perth Vineyards Holiday Park at a rate of $189 per week.
We have given due regard to all of the material provided in relation to the comparables used by the valuers concerning location, the terms of tenancies and facilities and do not think that it will serve any useful purpose to set out that detail more fully. As the hearing progressed, the focus shifted towards a concentration on those parks located close to the ocean, which we accept to be the best comparisons. That said, we do consider that the Perth Central Caravan Park provides some assistance, given its riverside location.
We are unable to agree with Mr Packer's assessment of a market rate of $152 per week in respect of Woodman Point. When regard is had to the comparables upon which he relied to justify that assessment, those parks which had rents at a level which might support his assessment were effectively all disregarded by the time of hearing, or, in the case of Banksia Tourist Park, the rental options available, and differences in the evidence of the valuers concerning the options and terms applicable meant that it was not a useful or reliable comparable. Mr Packer agreed that the three lifestyle villages were not useful comparables because they were purposebuilt retirement villages with superior amenities to other multiuse parks.
Once that conclusion is reached, it highlights the difficulty in relying at all on subsequent evidence of long-stay agreements entered into at either Coogee Beach Holiday Park or Perth Vineyards Holiday Park, given that the rentals fixed by the respondent at those parks was based upon the same evidence. In relation to the one other letting at Perth Vineyards Holiday Park at a rate of $189 per week, that evidence was not produced as part of the respondent's case and emerged only in cross-examination. Both valuers were completely unaware of the letting, and neither Mr Eaton nor Mr Packer knew sufficiently about the transaction to address it in any useful way. In the circumstances, we place no weight on this evidence.
In all the circumstances, we consider that the best guidance can be obtained from a comparison with Fremantle Village and Burns Beach Sunset Village Park.
We consider the Woodman Point facilities to be better than those at Burns Beach Sunset Village Park in that there is a below ground pool and a meeting room. But, we accept Mr Packer's view that longstay tenants are likely to place more importance on location than facilities. Burns Beach Sunset Village borders directly with the ocean, whereas Woodman Point is set back some distance. Woodman Point has available to it within reasonable proximity all of the amenities of Fremantle, theatres and restaurants. Burns Beach has similar, if not as well recognised, facilities in Joondalup. It is likely that the facilities at Fremantle would be regarded by most as being more attractive. We also accept that Woodman Point is closer to the city of Perth. Mr Eaton endeavoured to establish otherwise, and tendered a directions chart and map produced by (Exhibit 4) showing the route from Woodman Point, stated to be a distance of 32.2 kilometres and to take 30 minutes, compared with a corresponding map from Burns Beach showing a distance of 31 kilometres and a travel time of 27 minutes (Exhibit 5). However, scrutiny of the maps shows that the destination selected in both cases is Newcastle Street in West Perth, as opposed to, say, a central point, such as the post office. In the end, the maps do little more than to establish that Burns Beach is not as remote as it might appear in comparison with Woodman Point.
Burns Beach Sunset Village Park tenancies have five year fixed term leases, as opposed to the periodic monthly tenancies applicable at Woodman Point. However, the expert witnesses could not point to any obvious relationship between increased security of tenure and rental levels. We therefore place no weight on this factor.
Fremantle Village has a more difficult beach access than Woodman Point and a fairly unattractive outlook. Its facilities are not as good as Woodman Point, but offset against these factors is its closer proximity to Fremantle and the City of Perth. The fact that the park is able to operate and command a rental of $142 per week, which tenants are willing to pay, suggests that its close proximity to Fremantle and a range of industrial and commercial worksites holds some attraction for existing and potential tenants.
In weighing the comparisons with Fremantle Village and Burns Beach Sunset Village, we take into account the opinion expressed in D Fischer, Property Valuation Methodology (2002) at 31:
Location differences are the most delicate traits to deal with since location covers so many interrelated characteristics. It is quite unrealistic to try to adjust for location. The safest approach is to avoid making such adjustments by pinpointing comparables that are physically as close as possible to the subject property.
Mr Packer did not share Mr Eaton's strong criticism of Mr Fischer and of the above view in particular. He thought the statement was valid, and we agree. It is, however, a matter of degree. Residential parks are more often than not unlikely to be in close proximity. The map depicting the location of each of the comparable properties (Exhibit 2) reflects this. It makes sense that, subject to adjustment for other factors, it should generally be safer to rely on comparables which are in closer proximity with each other.
Given the limited number of comparables and that many of them are spread throughout the wider metropolitan area, it means that a wider location of comparables has to be used. But, it also indicates to us that, because of the difficulties in making adjustments, we should apply a greater weighting, as Mr Packer stated, to the parks south of the river, being Coogee Holiday Park (which we have discounted for reasons given above), Fremantle Village and Ascot Central Caravan Park.
In this context, we revert to consider the Ascot Central Caravan Park which commands a rental of $145 per week. Mr Packer's schedule reflects the park has frontage to the Swan River Reserve, although there is no outlook from the sites. They are limited privately owned park homes with the majority being owned by the park for letting to tourists. The joint expert report reflects that the park is within 5 kilometres of the central business district of Perth.
Taking all factors into account, we find that the market rental for longstay tenant sites in Woodman Point as at 1 July 2009 is $142 per week.

Order

For the above reasons, the Tribunal will issue an order as follows.
1.The amount of rent payable in respect of each of the applicants' longstay agreements for sites at Woodman Point Holiday Park as at and from 1 July 2009 is the sum of $142 per week.

I certify that this and the preceding [87] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER