Devine v The Retreat Village Pty Ltd

[2023] NSWCATCD 71

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Devine v The Retreat Village Pty Ltd [2023] NSWCATCD 71

Hearing dates:

3 May 2023

Date of orders:

27 July 2023

Decision date:

27 July 2023

Jurisdiction:

Consumer and Commercial Division

Before:

J Searson, General Member

Decision:

(1) The application is dismissed.

Catchwords:

RESIDENTIAL (LAND LEASE) COMMUNITIES —whether refusal of consent for solar installation “unreasonable”.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Environmental Planning and Assessment Act 1979

Local Government Act 1993

Residential (Land Lease) Communities Act 2013

Interpretation Act 1987

Texts Cited:

The Cambridge Dictionary (online)

Category:

Principal judgment

Parties:

Ross Devine (Applicant)

The Retreat Village Pty Ltd t/as The Retreat Port Macquarie (Respondent)

Representation:

Applicant (Self Represented)

Mr Page and Mr O’Connor (Respondent)

File Number(s):

RC 23/01114

Publication restriction:

Unrestricted

REASONS FOR DECISION

APPLICATION

1. The applicant (“homeowner”) seeks orders pursuant to s 42(4) of the Residential (Land Lease) Communities Act 2013 (NSW) (“RLLC”) requiring the respondent (“operator”) to give consent to the installation of a solar system on the applicant’s home.

2. The respondent opposes the application.

Background

3. The applicant entered into a Residential Site agreement with the respondent on or about 3 August 2021.

4. The respondent in this matter is an “operator” as defined in s 4 of the RLLC and operates the community known as “The Retreat Port Macquarie” (“the community”) and situated at 3 Lincoln Road, Port Macquarie NSW.

5. The applicant is a “homeowner” as defined in s 4 of the RLLC and occupies site 3 within the community (“the site”).

6. The dispute in this matter is in relation to the giving of consent to the installation of a solar system on the applicant’s home.

Jurisdiction

7. The Tribunal has jurisdiction to hear and determine this matter under sections 42(4) and 157 of the RLLC and sections 28 and 29 of the Civil and Administrative Tribunal Act 2013.

Evidence

8. The homeowner, Mr Devine appeared by telephone and gave oral evidence under affirmation.

9. Mr Page and Mr O’Connor, employees of the operator appeared by telephone and gave oral evidence under affirmation.

10. Each party was provided with an opportunity of submitting documents in support of their case, an opportunity of giving oral evidence and cross examining each other in relation to the evidence presented to the Tribunal.

11. The Tribunal heard the evidence and reserved its decision.

12. Both parties were invited to provide the Tribunal with written submissions after the hearing. Both parties have provided written submissions to the Tribunal.

13. The Tribunal has read and considered all of the documentary and oral evidence of the parties, including the parties written submissions.

The facts

14. The evidence reveals the following facts:

1. Prior to purchasing his home the applicant made enquiries with the respondent about installing a solar system on his home.

2. The applicant signed a site agreement with the respondent on or about 3 August 2021.

3. The applicant moved into his home on or about August 2021.

4. In or about May 2022 the applicant obtained quotes for a 6.6Kw solar system to be installed on his home.

5. On or about 26 August 2022 the applicant signed a contract with SAE Group for the installation of a solar system.

6. On or about 1 September 2022 the applicant was advised by the respondent that his solar installation had been refused.

7. The parties subsequently fell into dispute.

8. The applicant filed this application before the Tribunal on 6 December 2022.

The law

15. The objects of the RLLC Act are:

(a)  to improve the governance of residential communities,

(b)  to set out particular rights and obligations of operators of residential communities and home owners in residential communities,

(c)  to enable prospective home owners to make informed choices,

(d)  to establish procedures for resolving disputes between operators and home owners,

(e)  to protect home owners from bullying, intimidation and unfair business practices,

(f)  to encourage the continued growth and viability of residential communities in the State.

16. Section 37 of the RLLC provides the obligations of the operator as follows:

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

…………………..

(f)  to the extent that it is within the operator’s control, to ensure the continuity of supply of utilities to residential sites occupied by home owners,

…………………..

(j)  to comply with all statutory obligations relating to the community,

………………….

(l)  otherwise, to comply with the site agreements and the community rules.

17. The order sought by the applicant are under section 42 of the RLLC Act which says:

42   Alterations and additions to, and replacement of, homes

(1)  A home owner must not, except with the written consent of the operator of the community or unless the site agreement otherwise provides—

(a)  make any alteration to the exterior of the home (other than painting or minor repairs) or add a fixture to the residential site, or

(b)  replace the home with another home.

(2)  The operator must not unreasonably withhold or refuse the consent.

(3)  The consent may be given with reasonable conditions.

(4)  The Tribunal may, on application by the home owner, order that any alteration, addition or replacement requiring consent can be carried out without consent if the Tribunal finds that the withholding or refusal of consent is unreasonable or that unreasonable conditions were imposed.

(5)  The Tribunal must not make an order under this section if the relevant alteration, addition or replacement is or would be designed, constructed or installed in breach of the Local Government Act 1993, the Environmental Planning and Assessment Act 1979 or any approval, consent or certificate under either or both of those Acts.

(6)  A home located on a residential site is not, for any purpose, to be regarded as a fixture, regardless of the manner in which it is attached to the land. This subsection does not apply to a home that is owned by the owner of the community.

(7)  Without limiting subsection (6), a fixture added to a residential site by a home owner remains the property of the home owner and does not become part of the land, and the home owner may remove it at any time or sell it as part of the home.

18. Section 49 of the RLLC says relevantly:

49   Services, facilities and improvements

(1)  The operator of a community must maintain all services and facilities required by the development consent for the community to be available for the life of the community.

(2)  The operator of a community must give at least 30 days’ prior notice to the residents committee (or if there is no residents committee, to all residents) of any of the following proposals—

(a)  a proposal to remove or substantially restrict a facility or service required by the development consent or otherwise available for a community,

(b)  a proposal to provide a new facility or service for a community.

(3)  Nothing in this section, or in any other provision of this Part, authorises an operator to take any action that is prohibited by law or that is inconsistent with a site agreement.

19. Also of relevance is s 157 of the RLLC Act which states relevantly:

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—

………………………..

(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,

………………………

(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.

………………………

Consideration

20. The main issue for determination by the Tribunal is whether the respondent’s withholding of consent to install a solar system is unreasonable under s 42(4) of the RLLC.

Applicant’s submissions

21. The applicant submitted that the refusal by the respondent to give consent to the installation of a solar system on his property was unreasonable because:

1. He had made enquiries prior to purchasing his home about the installation of a solar system.

2. After purchasing his home and after he had signed a contract for the installation of a solar system he was told that the respondent refused to allow him to install a solar system.

3. There are no reasonable grounds for refusal as there are currently between 50 to 60 solar installations in the community.

4. There have been no electrical incidents, including “brown outs” or failures.

5. Other communities have significantly more installations without suffering any adverse effects.

6. There were no reports detailing any deficiencies in the existing infrastructure or on any infrastructure upgrades which would be required if the installation of solar on the applicant’s premises proceeded.

7. The solar system would decrease the load on the electrical infrastructure during the day and only use minimal standby power at night.

8. The reason given by the respondent for not allowing the installation of solar “so that there won’t be any electrical failures” makes no sense.

9. The respondent had provided no information, expert or otherwise, to validate their decision to refuse all solar installation in the community.

10. That it is in the best interests of the residents to allow them to minimise their ongoing electrical bills by installing solar if they so chose.

Respondent’s Submissions

22. The respondent submitted that their refusal to allow the applicant to install a solar system was reasonable because:

1. The respondent is responsible for maintaining the DNSP’s (“Distribution Network Service Provider”) network and consenting to works that may negatively affect the function of that network is averse to the viability of the community and the respondent’s statutory obligations.

2. Refusing the applicant's request to install solar did not interfere with the applicant’s proper use of the site or the electricity supply. There is no statutory obligation for an operator to provide the capability of solar systems.

3. The applicant does not and has never had a solar system on his premises and has not been deprived of a utility service. The applicant continues to enjoy his rights under the site agreement.

4. In the interest of maintaining community infrastructure, ensuring continuity of supply to all sites, complying with statutory obligations, and ensuring the continued growth and viability of the community, the respondents submitted that withholding consent for the applicant to install solar is reasonable in the circumstances.

5. The respondent sought that the tribunal ought to find the respondent had reasonably withheld consent and should dismiss the application.

Determination

23. The term “unreasonable” is not defined in the RLLC Act nor in the Interpretation Act 1987. Therefore, the common meaning of “unreasonable” applies. The Cambridge Dictionary (online) defines “unreasonable” as “not fair or acceptable” and “nor based on or using good judgement”.

24. After considering all of the information before it the Tribunal finds that the refusal by the respondent was not unreasonable. This is for a number of reasons.

25. Firstly, it was not just the applicant who was refused solar installation but all residents of the village presently seeking to have solar installed. The respondent was not presently giving approval to any further solar installations at this time.

26. Secondly, the respondent said that the present refusal may not be forever and that they were “not saying that it won’t happen in the future”.

27. Thirdly, it appears that the respondent’s refusal was based on genuine concerns about the viability of the present network in the community and their statutory duty to provide a continual supply of electricity to all residents in the community. The residents who currently have solar installations predate the current ownership of the community, so that the operator does not know the present specifications, nor how those installations were approved. Without knowing the present details and specifications, the respondent is at risk of non-compliance with the relevant standards and other residents may be affected as well as affecting supply of electricity within the community.

28. Fourthly, the applicant has never had a solar system on his home and therefore has not been deprived of any facility or service. He continues to enjoy his rights under the site agreement.

29. Fifthly, there is no requirement in relation to solar installations in the development consent for the community dated 29 June 2018 from Port Macquarie Hastings Council. The respondent is not in breach of s 49(1) of the RLLC.

30. Therefore, the Tribunal finds that the respondent has not unreasonably withheld consent under s 42(4) of the RLLC in relation to the applicant’s installation of a solar system. The Tribunal therefore declines to order that the installation of the solar system on the applicant’s premises be carried out without the consent of the respondent.

31. Accordingly, the application is dismissed.

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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: 20 September 2023