Beadle v Barnes Property Investments Pty Ltd T/A Bayside Gardens

[2021] NSWCATCD 93

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Beadle v Barnes Property Investments Pty Ltd T/A Bayside Gardens [2021] NSWCATCD 93
Hearing dates:	21 July 2021
Date of orders:	28 September 2021
Decision date:	28 September 2021
Jurisdiction:	Consumer and Commercial Division
Before:	S Hanstein, General Member
Decision:	(1) The Operator is to maintain the roads in a reasonable state of repair. (2)The Operator is to ensure the trees are properly maintained and the gardens are reasonably tidy.
Catchwords:	RESIDENTIAL (LAND LEASE) COMMUNITIES — Common areas — Maintenance — Whether reasonable state of cleanliness and repair —Trees — Whether properly maintained — Whether site fees should be reduced
Legislation Cited:	Residential (Land Lease) Communities Act 2013 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Jannette Beadle (Applicant) Barnes Property Investments Pty Ltd T/A Bayside Gardens (Respondent)
Representation:	Applicant (Self represented) Respondent (Self represented)
File Number(s):	RC 21/05584
Publication restriction:	Nil

reasons for decision

1. The applicant (“Home Owner”) seeks orders pursuant to the Residential (Land Lease) Communities Act 2013 (NSW) (“Act”) requiring the respondent (“Operator”) to maintain the common areas in a reasonable state of cleanliness and repair, and to properly maintain the trees in the community. The applicant also seeks a reduction in site fees.

Background

2. The parties entered into a site agreement commencing on 16 December 2011. I am satisfied the Tribunal has jurisdiction to hear and determine the application.

Legislation

3. Section 37 of the Act provides, relevantly:

37 Operator’s responsibilities

(1) The operator of a community has the following responsibilities—

…

(c)  to maintain the community’s common areas in a reasonable state of cleanliness and repair, and so as to be fit for use by the home owners,

…

(2)  With regard to the operator’s obligation to maintain the community’s common areas (in subsection (1)(c))—

(a)  any necessary work must be carried out as soon as is reasonably practicable and in a way that minimises disruption to residents, and

(b)  the work is to be carried out at an appropriate standard having regard to the age and prospective life of the community and to the level of fees and charges payable by residents, and

(c)  if there is a failure to carry out the work at all or to an appropriate standard, the Tribunal may, on application by a home owner, make any of the following orders in respect of the failure—

(i)  an order requiring work of a specified kind to be carried out,

(ii)  an order that the operator pay compensation to the home owner and any other home owners,

(iii)  any ancillary order that the Tribunal, in the circumstances, thinks appropriate.

4. Section 48 of the Act provides, relevantly:

48   Maintenance of trees

(1)  The operator of a community must—

(a)  ensure that all trees in the community are properly maintained, and

(b)  take reasonable action if a home owner reports that a tree has caused or is likely to cause injury to a person or damage to property.

Note—

For example, the operator may be required to trim dead tree branches or remove tree roots causing damage to driveways, pipes and other property.

…

(4)  The Tribunal may, on application by a home owner, make an order resolving a dispute concerning an operator’s compliance with subsection (1).

...

5. Section 64 of the Act provides, relevantly:

64 Power of Tribunal to reduce site fees

(1) The Tribunal may, on application by the home owner under a site agreement, make an order that the site fees payable under the agreement be reduced by an amount the Tribunal considers appropriate if it is satisfied—

(a) the amenity or standard of the community’s common areas has decreased substantially since the agreement was entered into, or

(b) a communal facility or service provided at the community when the agreement was entered into has been withdrawn or substantially reduced, or

…

(2) The Tribunal may consider any of the following documents for the purposes of subsection (1)—

(a) the site agreement,

(b) a disclosure statement or other document containing information about the community and provided to the home owner by the operator,

(c) any relevant advertising made available to the home owner by the operator before the site agreement was entered into,

(d) any other document that the Tribunal considers is relevant.

Home Owner’s case

6. The Home Owner’s evidence and submissions included the following.

7. Over the last two years, services have been withdrawn and the common areas in the park have fallen into a state of disrepair. The park is “a dirty overgrown mess”, and roads are dangerous and causing ingress of grit and dust into houses. Handy man services have been cut from full time to eight hours per week.

8. The Home Owner submits that the work needed includes the following:

1. maintenance of gardens, trees and lawns, including regular mowing, weeding, removal of dangerous branches, palm fronds and seed pods, and cutting back of vines; and removal of mulch pile at entrance

2. repairs to roads

3. maintenance of storm water drain including removal of debris and weeds

4. improvement of drainage

5. cleaning of library , TV room and BBQ area

6. cleaning up of area outside office, including removal of cigarette butt bucket, egg water feature cleaned of slime, external office window cleaned and path swept

7. relocation of waste point from office to end of parking lot

8. installation of a concrete path to the laundry.

9. The Home Owner gave oral evidence and relied on photographs and other documentary evidence, including statutory declarations from other residents.

Operator’s case

10. The Operator’s evidence and submissions included the following.

11. Trees are pruned and lawns mowed on a regular basis by park workers. An arborist assesses the trees annually to advise on what needs to be removed, and removes seed pods and dead branches from the palm trees.

12. The park is cleaned and maintained regularly. The roads are repaired as needed. The part of the road that was dug up for the sewer connection was then concreted. The part of the road that is not concreted has never been concreted. Potholes are not repaired with dirt, only road base (crushed concrete) or tar.

13. The storm water drain is cleared on a regular basis. The water flows with the natural fall of the land and the drain runs into Cockle Creek. The water does not stagnate, and there is no smell.

14. The Home Owner has not established a reduction in services. Mr Barnes is currently working in the park on a full time basis, as well as a casual employee who is working around 15 hours per week. Some of the items sought, such a concrete path to the laundry, a fence around the pond, more carparks, additional drainage and additional garbage collection, have never existed.

15. The Home Owner is the only applicant, and is not seeking orders on behalf of the owners of sites 8 and 14 (who have complained of inadequate drainage affecting their sites).

16. Mr Barnes gave evidence for the respondent, and the respondent also relied on photographs and other documentary evidence.

Consideration

Maintenance of common areas and trees

Roads

17. I am satisfied, on the balance of probabilities, that some of the roadways are in a state of disrepair. For example, some have gravelled areas with potholes and the surface appears uneven, which could constitute a hazard to residents walking on the roadways. I note the Operator’s evidence that the photographs provided by the Home Owner are taken during or shortly after rain, and that any potholes appearing after rain would be repaired. I am satisfied however on the evidence from the Home Owner and other residents that, from time to time, the repairs are not done in a sufficiently timely manner. I am not satisfied an order should be made to replace the roads, noting the likely cost of that and that it would be impractical when further development is taking place in particular areas of the park which is likely to cause damage to roadways. However, I am satisfied an order should be made in respect of the repair of roadways.

Drainage

18. I am not satisfied, on the evidence before me, that any order should be made in relation to drainage.

19. The Home Owner relies on lay evidence to the effect that drainage is inadequate because pools of water remain, sometimes for days, after rainfall; and that the existing storm water drains become blocked and do not adequately remove water from the park. The Park Owner disputes these contentions, notes that the park is in a low lying area and submits that all water does move away, and that it does not take days for this to occur.

20. In the absence of some evidence from a suitably qualified or experienced person to provide expert opinion on the issue of drainage, I am not prepared to find that the existing drainage is inadequate or not working as intended. The photographs provided by the Home Owner do show a considerable amount of water in the storm water drains, but that water has not breached the banks of the drain. The photographs also show water pooled on roads but I am not prepared, on the evidence before me (including the denials by the Operator and the absence of a clear time record by the Home Owner) to find that the water remains for an unreasonably long amount of time, noting the topography of the park.

Trees, gardens and lawns

21. There are a large number of trees and vegetated areas in the park. I accept the Operator’s evidence that the trees are assessed annually by an arborist, and that a number of the trees on the northern side are on neighbouring land rather than situate on the Park itself. I accept also that there is regular mowing undertaken, and I am not prepared to find on the evidence before me that the mowing is inadequate. On the evidence before me, however, in particular the photographs provided, I am satisfied that from time to time further work is needed to maintain the appearance of the gardens including trees in what would be considered a reasonable or proper state for the purposes of sections 37 and 48 of the Act. This would include removing dead branches from trees and shrubs and dead fronds from palm trees, and removing excessive vegetative waste from garden beds and lawns, in order to remove any safety hazards and to maintain the appearance of the gardens to a reasonable standard.

Cleanliness

22. I am not satisfied on the evidence before me that any other order should be made in respect of cleanliness. The Home Owner accepted that, by the time of the hearing, the state of the library had improved, with the complaint being only about the presence of the mop and bucket and rubbish bin. The evidence about the barbeque area not being clean was limited to a photograph of a pot with a dead plant. The Home Owner also requested that the cigarette butt bin be removed from reception, and the egg water feature be cleaned of slime. I accept the Operator’s submission that removal of the cigarette butt bin may in fact result in increased cigarette butts being on the ground. I note too the Operator’s submission that the water feature is intended to have a “mossy” appearance. In my view, these are all relatively minor issues and do not warrant the making of an order in respect of cleanliness. To the extent a complaint is made about undeveloped areas of the park, I am not satisfied an order under section 37 would be warranted in those circumstances as could not reasonably be expected to be used by the Home Owner. I am also not satisfied any order should be made for the relocation of the garbage unit or mulch pile, as I am not satisfied their location constitutes a failure to maintain the common areas in a reasonable state of cleanliness.

Reduction in site fees

23. I am not satisfied, on the evidence before me, that the amenity or standard of the community’s common areas has decreased substantially since the Home Owner’s site agreement was entered into, or that a communal facility or service provided at the community when the agreement was entered into has been withdrawn or substantially reduced, warranting a reduction in site fees. The applicant’s application is put on the basis that there is no longer a full time employee attending to park maintenance, but the respondent contends Mr Barnes now works in the park on a full time basis in addition to a casual employee. I accept the Operator’s submissions that some of the items sought by the Home Owner (including laundry path, a fence around the pond, additional drainage) are new items rather than being items that previously existed and have been withdrawn.

24. I am not satisfied, on the balance of probabilities, that the applicant has established that a reduction in site fees is warranted. I am satisfied it is appropriate to make orders for maintenance referred to above, rather than to make an order for the reduction of site fees.

Other matters

25. There are a number of other matters raised by the Home Owner, including matters that are of more concern to other home owners rather than the Home Owner herself. Other home owners would need to make their own application if there are orders they seek. I am not satisfied any other orders should be made on this application.

Conclusion

26. The orders are:

1. The Operator is to maintain the roads in a reasonable state of repair.

2. The Operator is to ensure the trees are properly maintained and the gardens are reasonably tidy.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 November 2021