Craig v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village

[2017] NSWCATCD 71

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Craig v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village [2017] NSWCATCD 71
Hearing dates:	27 July 2017
Decision date:	18 August 2017
Jurisdiction:	Consumer and Commercial Division
Before:	W Priestley, General Member
Decision:	1.   The application is dismissed.
Catchwords:	Sewerage charge
Legislation Cited:	Residential ( Land Lease) Communities Act 2015 Residential Parks Act 1998
Cases Cited:	Reckless v Silva Pty Ltd NSWCAT 3 August 2017 Parsons v Oaklands Village (Residential Parks) [2006] NSWCTT 223 910 January 2006
Category:	Principal judgment
Parties:	Wilma Craig – applicant Silva Portfolios Pty Ltd t/as Ballina Waterfront Village - respondent
Representation:	Ms Flowers, Northern Rivers Tenants Advisory and Advocacy Service for the applicant Ms Barry,Solicitor, Heydons Lawyers, for the respondent
File Number(s):	RC 17/23503
Publication restriction:	Nil

reasons for decision

The application

1. The applicant seeks an order that a sewerage charge imposed on her by the respondent from 10 December 2015 is unlawful, and a refund of the sewerage charges she has paid.

Jurisdiction

2. The Tribunal has jurisdiction to hear and determine the application under section 157 of the Residential (Land Lease) Communities Act (“the Act”) and sections 28 and 29 of the Civil and Administrative Tribunal Act 2013.

Background

3. The essential facts are not in dispute, rather the interpretation of the transitional provisions of the Act, and the effect of a term about sanitary charges in the site agreement between the parties, are in dispute.

4. In the application of Reckless v Silva Pty Ltd RC 17/11073 published 3 August 2017, the relevant facts were almost identical, and the Tribunal found the sewerage charges were valid, then dismissed Ms Reckless’ application for re-payment of them.

The hearing

5. Leave was granted for both parties to be represented. The applicant was represented by Ms Flowers of the Northern Rivers Tenants’ Advisory and Advocacy Service. Both parties relied on the documents they lodged with the Tribunal in accordance with directions. The respondent’s documents included lengthy submissions. The applicant made oral submissions at the hearing. The Tribunal has taken account of all documents and oral submissions in reaching its determination.

Extension of time

6. The applicant did not lodge her application with the Tribunal until 17 May 2017. The respondent opposes the applicant’s request for an extension of time on the basis section 82 (3) requires the application to have been filed within 30 days of receipt of the notice on or about 10 December 2015. In my view that submission is misconceived because section 82 relates to section 81, which only applies in relation to disputes at sites where the utility is not separately measured or metered. The application appears to be made under section 156 of the Act. The Act, and more particularly schedule 3 of the regulations, do not prescribe any time limit for an application to resolve a dispute such as this. The time limit is therefore regulated by section 14 (1) (d) of the Limitation Act 1969, which prescribes a period of 6 Years. If I am wrong about that, I would grant the applicant an extension of time under section 41 of the Civil and Administrative Tribunal Act 2013, because there is no prejudice to the respondent in doing so.

Findings

7. On 15 June 2015, the parties entered into a site agreement for a period of one year. The Act commenced on 1 November 2015.

8. Clause 5 of the site agreement says;

5.1 any electricity charges agreed to in clause 6 of this agreement (if that clause is not crossed out) or in any other provision of this agreement, and

5.2 for gas, and

5.3 for one of the following classes of water charges:

5.3.1 excess water charges if the site is individually metered, by the relevant water supply authority in accordance with the Plumbing and Drainage Code of Practice or, if that Code of Practice is not in effect, in a manner that meets the requirements of a water supply authority that operates in the area in which the residential site is located, or

5.3.2 any charge for water consumption agreed to in clause 7 of this agreement (if that clause is not crossed out) or in any other provision of this agreement, or Residential Parks Regulation 1999 Standard form residential site agreement (where tenancy is for a term of 3 years or less)

5.3.3 from 1 January 2000, all charges for water consumption, if the site is individually metered in compliance with the regulations, the resident is billed directly by the water supply authority or by the park owner in accordance with the Residential Parks Act 1998, the charge for water is calculated according to the metered amount of water consumed and there is no minimum charge payable, and

5.4 any excess garbage or sanitary charge .(emphasis added).

5.5 – 5.7 are not reproduced.

9. On or about 10 December 2017, the respondent notified the applicant a sewerage discharge charge was to be imposed from 1 November 2015. There is no allegation the notice is invalid.

10. The notice advises the charge is calculated by multiplying the amount of water used by the relevant discharge factor (50%) charged by Ballina Shire Council. This is the same method the Council uses to charge the respondent a sewerage charge. The respondent has not charged the applicant more for the sewerage charge than it was charged by Ballina Shire Council.

11. The applicant’s site is individually metered for the purpose of measuring and charging for water, and also for the purpose of imposing the sewerage charge

12. Ballina Shire Council does not charge residential properties volumetric wastewater (sewerage) charges, but does charge those properties a water access charge based on the water meter.

The law

13. The following provisions of the Act are relevant to this dispute:

Section 6 - Application of Act to site agreements

(1) This Act applies to all site agreements, whether existing immediately before or coming into existence after the commencement of this section, unless a provision of or under this Act provides otherwise.

(2) Where this Act applies to a site agreement, it so applies despite the terms of the agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section.

(3) This Act applies to a site agreement until it is terminated in accordance with this Act.

Section 76 - Limit on amounts payable by home owner

(1) The only fees and charges that may be required or received by the operator of a community from a home owner in connection with the occupation of a residential site, or the use of any of the facilities of a community, are as follows:

(a) site fees, including site fees payable in advance as permitted under section 57,

(b) the cost of registering or recording the site agreement under the Real Property Act 1900 if any fixed term period exceeds 3 years,

(c) a refundable deposit for a key or any other opening device to access the community, not exceeding $25 or another amount prescribed by the regulations,

(d) other fees, charges and deposits required or permitted by this Act or the regulations.

(2) The regulations may require or permit payment of fees, charges and deposits that are specified or of a kind specified by the regulations and, in particular, may (but need not) provide that they are not payable by a home owner unless required by the site agreement to be paid by the home owner.

(3) An operator of a community must not require or permit the payment of any fee, charge or deposit from a home owner in contravention of this section.

Maximum penalty: 20 penalty units.

Section 77 - Utility charges payable to operator by home owner

(1) This section applies if, under a site agreement, the home owner is required to pay utility charges to the operator for the use by the home owner of a utility at the residential site.

(2) The home owner cannot be required to pay for the use unless:

(a) the use is separately measured or metered, and

(b) the operator gives the home owner an itemised account and allows at least 21 days for the payment to be made.

(3) The operator must not charge the home owner an amount for the use of a utility that is more than the amount charged by the utility service provider or regulated offer retailer who is providing the service for the quantity of the service supplied to, or used at, the residential site.

Maximum penalty: 20 penalty units.

(4) The regulations may:

(a) provide for a maximum utility charge payable by home owners to the operator, and

(b) create an offence for an operator to request or receive more than that maximum charge (if any).

(5) The regulations may provide that a service availability charge for electricity payable by home owners to the operator of a community is to be discounted in accordance with the regulations where less than 60 amps are being supplied.

Section 156 Applications to Tribunal relating to disputes

(1) A home owner, former home owner or operator of a community may apply to the Tribunal for determination of any of the following:

(a) a dispute relating to a right or obligation under this Act,

(b) a dispute arising from, or relating to, a site agreement or collateral agreement,

(c) any other matter that may be determined by the Tribunal under this Act.

(2) An application to the Tribunal must be made within the period (if any) specified in this Act or prescribed by the regulations.

Section 157 - Orders that may be made by Tribunal

(1) The Tribunal may, on application by a party to a dispute or other matter before the Tribunal, or in any proceedings under this Act, make one or more of the following orders:

(a) an order that restrains an action in breach of this Act or a site agreement or collateral agreement,

(b) an order that requires a person to comply with an obligation under this Act or a site agreement or collateral agreement,

(c) an order that relieves a party to a site agreement or collateral agreement from the obligation to comply with a provision of the agreement,

(d) an order for the payment of an amount of money,

(e) an order for the payment of compensation,

(f) an order that a party to a site agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,

(g) an order that requires payment of part or all of the site fees payable under a site agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined,

(h) an order that requires site fees paid to the Tribunal to be paid towards the cost of remedying a breach of the site agreement or towards the amount of any compensation,

(i) an order directing an operator to give a former home owner or person authorised by a former home owner access to a residential site or home on the site for the purpose of recovering goods of the former home owner,

(j) an order for anything else necessary or desirable to resolve a dispute.

(2) An order under subsection (1) (a) or (b) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available.

(3) The Tribunal must not make an order for:

(a) the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or

(b) the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section.

(4) An order for the payment of compensation to a party is not to be made for loss or damage to the extent the loss or damage could have been avoided or limited by taking reasonable steps to mitigate the loss or damage.

(5) A provision of this Act that enables a resident to apply for a determination by the Tribunal and the Tribunal to determine a matter or make an order also applies, where appropriate, to a former resident.

(6) The Tribunal does not have jurisdiction to award compensation for damages arising from personal injury.

(7) Except as provided by subsection (6), nothing in this section limits the orders that the Tribunal may make under this Act.

Note : This Act also confers other order-making powers on the Tribunal, including other specific powers to make termination orders and to declare that a residential site has been abandoned.

14. Schedule 2 of the Act sets out its savings and transitional provisions. Clause 5 and 15 of that schedule are relevant.

Clause 5 Existing agreements

(1) Agreements entered into under the repealed Act that have not been terminated remain valid after the commencement of the relevant provisions of this Act.

Note : Accordingly, an existing agreement continues without the need to sign a new agreement once this Act commences.

(2) Without limiting subclause (1), a term of an agreement entered into under the repealed Act that provides for the increase of site fees by a fixed method (however expressed) remains in force after the commencement of the relevant provisions of this Act.

(3) A residential site agreement, moveable dwelling agreement or NPWS agreement (other than an excluded agreement) in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a site agreement between the resident (as or on behalf of the home owner) and the park owner (as operator of the community in which the home is located).

(4) An excluded agreement in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a tenancy agreement.

(5) This clause does not validate a term of an agreement entered into under the repealed Act that was void under that Act.

(6) In this clause: "excluded agreement" means a moveable dwelling agreement or NPWS agreement under which a resident occupies a home that is owned by the park owner. "moveable dwelling agreement" means an agreement of a kind referred to in clause 5 (1) (c) or (d) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act.

"NPWS agreement" means an agreement of a kind referred to in clause 5 (1) (e) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act.”

Clause 15 Fees and charges

(1) Any fees and charges which were validly paid or received under the repealed Act are not affected by this Act.

(2) Any new fee or charge permitted by this Act does not apply to any agreement entered into before the commencement of the relevant provisions of this Act.

(3) Fees for late payment of utility charges are not payable for utilities unpaid at the commencement of the relevant provisions of this Act.

15. Regulations 10 of the Residential (Land Lease) Communities Regulations 2015 is also relevant.

Regulation 10 Sewerage charges payable by home owner

(1) This clause applies to residential sites:

(a) at which water and sewerage services are provided to the operator by a water supply authority, and

(b) at which water use is separately measured or metered but at which sewerage use is not separately measured or metered,

but only where:

(c) the water supply authority charges for water and sewerage services separately, and

(d) the water supply authority specifies a sewerage discharge factor to calculate the sewerage use (however described) either in the bill or in another reasonably accessible way.

(2) If, for a particular period, the operator of a community has paid or is liable to pay the charges levied by the water supply authority for sewerage services in respect of residential sites to which this clause applies, those sites are exempt from the operation of section 77 (2) (a) of the Act, subject to the condition set out in subclause (3).

(3) The condition is that the operator:

(a) may only charge the home owner of a residential site to which this clause applies an amount for sewerage use calculated by multiplying the volume of water used during the particular period as indicated by the water meter reading for the residential site by the relevant discharge factor, and

(b) must not require payment of an amount for sewerage use in respect of the period concerned that is not calculated in accordance with paragraph (a).

16. Sections 36 and 39 of the old Act, and regulation 16 made under, it are also relevant to the applicant’s submissions.

Section 36 Park owner to pay council rates, land tax and other charges

(1) It is a term of every residential tenancy agreement that the resident will pay:

(a) all gas charges in connection with the residential premises that the regulations require the resident to pay, and

(b) all excess water charges payable in connection with the residential premises, but only if the residential site is individually metered by the relevant water supply authority in accordance with the regulations, and

(c) those charges, or those parts of charges, for electricity and water that are required to be paid by the resident under this Division (including any charges that the resident agrees to pay under the agreement), and

(d) any other charges prescribed by the regulations (emphasis added).

(2) It is a term of every residential tenancy agreement that the park owner will pay all other rates, taxes or charges payable in connection with the residential premises.

Section 39 Resident to pay certain charges for water

(1) It is a term of every residential tenancy agreement that the resident must pay all water consumption charges and water availability charges in connection with the residential premises, if the residential premises are individually metered in a manner that complies with the regulations and:

(a) the resident is billed either:

(i) directly by the water supply authority, or

(ii) by the park owner in accordance with this section, and

(b) the resident is not liable to pay a minimum charge.

(2) If the resident is billed by the park owner, the amount that the resident is required to pay in relation to water consumption charges is the lower of the following amounts:

(a) the amount that the resident would have been required to pay for water consumed if the resident were a direct domestic customer of the relevant water supply authority,

(b) the amount prescribed by the regulations.

(2A) If the resident is billed by the park owner, the amount that the resident is required to pay in relation to water availability charges is the lower of the following amounts:

(a) the amount paid by the park owner in relation to the water availability charges for the park divided by the number of residential sites in the park,

(b) the amount prescribed by the regulations.

(3) If a resident is billed by the park owner:

(a) the resident must be billed at the same frequency as the park owner is billed by the relevant water supply authority, but may be billed more frequently if the parties so agree, and

(b) the bill provided by the park owner must include:

(i) the last meter reading taken before the bill was issued, and

(ii) the last meter reading before that (if any), and

(iii) the amount of water supplied during the billing period, and

(iv) the charge per unit of water.

(4) The park owner must provide a resident who has paid any water consumption charges or water availability charges to the park owner with a receipt that is separate from any rent receipt provided to the resident or is identified separately on the rent receipt.

(5) Nothing in this section affects a resident’s obligation under section 36 (1) (b) to pay any charges for excess water consumption in connection with the residential premises, in circumstances where the residential site is individually metered by the relevant water supply authority.

(6) A resident who is required to pay any amount under this section is entitled to inspect any records of the park owner that relate to the payment of water charges by the resident.

Regulation 16 Gas and other charges payable by resident: section 36

(1) A resident is required to pay all gas consumption charges in connection with the residential premises, including gas consumption charges payable under any Act or regulation or under any arrangement authorised by any Act or regulation.

(2) However, a resident is not required to pay any gas consumption charges for gas supplied by a park owner to the resident unless the gas is supplied through a gas meter that has been tested, sealed and stamped in accordance with the Gas Supply (Gas Meters) Regulation 2002 .

(3) The other charges that a resident is required to pay are:

(a) any charges for pumping out a septic system arising from the use of the residential premises by the resident, other than charges included in rates fixed under the Local Government Act1993 , and

(b) any excess garbage or sanitary charges relating to the resident’s use of the residential premises (emphasis added).

Application of the law to the findings

17. Under clause 5.4 of the site agreement, the applicant is required to pay for “sanitary charges”. The Tribunal accepts the respondent’s submissions that the meaning of “sanitary” is wide enough to encompass “sewerage”. The disposal of effluent is related to issues such as cleanliness and health, and is clearly a sanitary measure. In any event, there was no challenge to such an interpretation by the applicant. Rather, the applicant’s case is the sewerage charge is invalid because first, it is a new charge, as it is a charge that was not imposed by the operator until after the Act commenced, and therefore contravenes section 76 of the Act.

18. Secondly, the charge is said to be invalid because it could not have been imposed under the Residential Parks Act (“the old Act”), because it could not meet the requirements of section 39 (2) of the old Act, as Ballina Shire Council, the relevant water supply authority, does not charge its direct domestic customers the sewerage charge.

19. Thirdly, the applicant’s advocate contended that because the second reading speech says one of the objectives of the Act is for rules to be applied consistently amongst all home owners, the intent of the Act was that it be applied equally to all home owners.

20. In my view the applicant’s submissions should not be accepted. Clause 5 of schedule 2 of the Act says existing agreements remain valid after the commencement of the Act. That means the terms of existing agreements remain valid (provided those terms were valid under the old Act). Clause 5 of schedule 2 is not restricted by section 6 of the Act, because section 6 (1) says the section is subject to a provision of or under the Act that provides otherwise (in this case clause 5 of schedule 2). This is to be contrasted with sections of the Act that are intended to take away existing rights, such as section 45 which reduces existing rights of residents to assign site agreements, and enter into tenancy and subletting agreements. Subsection (5) of section 45 says “ This section has effect despite the terms of a site agreement ….” No such express ouster of terms about sewerage charges in site agreements that pre-date the commencement of the Act is contained in the Act.

21. Under clause 5.4 of the agreement, the applicant was required to pay sanitary charges, which I have determined includes sewerage charges. While there was no evidence as to why the respondent did not seek payment of that charge until shortly after the Act commenced, the applicant has always been under an obligation to pay it. It is not a new charge, but one that the applicant was liable to pay before the Act commenced. There was no argument put to the Tribunal the delay of about 16 months, constitutes some type of estoppel.

22. The fact that Ballina Shire Council does not charge a sewerage fee to its direct residential customers, does not mean the charge was invalid under the old Act. Section 39 (2) of that Act deals with water charges, not as here, sewerage charges, and is not relevant. The fact the sewerage charge appears on a water bill does not change the nature of it, nor is the nature of the charge changed because it is calculated by reference to the amount of water consumed. It is not a “water consumption” charge, as that term is used in the section, but a sewerage charge.

23. Finally, the applicant’s submission that the intent of the new legislation that rules should be applied equally to all residents, should mean that all home owners in a community should be subject to the same charges, should not be accepted. That intention was in relation to “community rules” not the terms of site agreements existing before the Act commenced. Read as a whole, the proper construction of the Act is that, some existing rights are varied (such as the right to assign a site agreement, or to sublet a site), and others not specifically dealt with are preserved by clause 5 of schedule 2 of the Act.

24. In summary, the sewerage charge was valid under the old Act, and is valid under the new Act.

25. In reaching these conclusions, I have had regard to the case law submitted by the parties, particularly Parsons v Oaklands Village (Residential Parks) [2006] NSWCTTT 223 910 January 2006). In that case a single member of the Tribunal determined that section 39 (2) (a) of the old Act limited a sewerage charge to the charge that would have been charged by the water supply authority to the resident, if the resident were a direct domestic customer of that authority. As I have said above, in my view that provision relates to water charges, not sewerage charges, which are dealt with by section 36 of the old Act and regulation 16. For this reason, and as I am not bound by that decision, I respectfully decline to follow it.

26. It follows the application should be dismissed.

W Priestley

General Member

Civil and Administrative Tribunal of New South Wales

18 August 2017

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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: 08 September 2017