Hunt v Synergy Living Cooroy
[2010] QCAT 449
•14 September 2010
CITATION: PARTIES: | Hunt & Ors v Synergy Living Cooroy [2010] QCAT 449 Mr George Hunt & Others as listed in Attachment B | |
| v | ||
| Synergy Living Cooroy | ||
| APPLICATION NUMBER: | VH011-09 | |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 31 August 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Ken Watson |
| DELIVERED ON: | 14 September 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: |
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| CATCHWORDS : | Manufactured Homes (Residential Parks) Act 2003 – Applications to set aside increase in site rents – consideration of matters set out in section 70(3) of the Act |
APPEARANCES and REPRESENTATION (if any):
Ms Audrey Hull, Malcolm Hull, Audrey Crawford, Karen Lord, C Tyrie, D Cheers, J W Jones, G Jones, J M Timothy, G Schneider, J Willersdorf, P Strohfeldt and Dell Hennessy
And
Synergy Living Cooroy
REASONS FOR DECISION
Background
The Applicants have made application pursuant to section 70 of the Manufactured Homes (Residential Parks) Act 2003 (“the Act”) to set aside increases in their respective site rents of which they have been given notice under section 69 of the Act.
Pursuant to subsection (2) of section 70 of the Act the Tribunal may make any of the following orders:-
a.An order reducing the amount of the increase by a stated amount;
b.An order setting aside the increase;
c.An order confirming the increase on the conditions, if any, the Tribunal considers appropriate;
d.Another order the Tribunal considers appropriate.
The Applicants are home owners of sites at a residential park owned by the Respondent which adjoins Ferrells Road Cooroy in the State of Queensland. The Applicants are the home owners of various sites described as numbers 56, 49, 2, 20, 11, 23, 24, 27, 12 and 51 and which are shown in the site plan which is Exhibit 2.
The increase day has been identified as the 30th of November 2009.
The Act
Under subsection (3) of section 70 of the Act the Tribunal may have regard to the following:-
a.The range of site rents usually charged for comparable sites in comparable residential parks in the locality of the park;
b.The increase site rent compared to the previous site rent;
c.The frequency, and amount, of past increases to the site rent payable under the Agreement;
d.Any increase in the CPI number during the previous site rent period;
e.The amenity or standard of the common areas and communal facilities;
f.Any withdrawal of a communal facility or service previously provided at the park;
g.Any addition of a communal facility or service not previously provided at the park;
h.Any increase in the park owner’s operating costs for the park during the previous site rent period;
i.Whether the increase is fair and equitable in all the circumstances of the case;
j.Anything else the Tribunal considers relevant.
The major thrust of the Respondent’s case for an increase in rent was derived from what it says is the state of the market for manufactured home sites in residential parks reasonably close to the Respondent’s park. This is said to be borne out by the evidence in the report of Mr Jamie Brown a certified practising valuer whose report is Exhibit 5. I found his evidence and report most helpful in arriving at my determination in this matter.
Although there is no strictly comparable residential park to that of the Respondent’s park there are a number which have facilities that make an examination of them reasonable for the purposes of determining whether or not the applications should be allowed. Having regard to Mr Brown’s report and evidence there seems to be no reason to conclude that a site rent for the sites under review in this matter of $120.00 per week cannot be justified on a comparison with other residential parks identified by Mr Brown. It is probably also true to say that site rents at residential parks would be substantially influenced by the laws of supply and demand and in the market for such sites, according to Mr Brown, there is an excess of demand over supply. However market forces are not the only matter the Tribunal needs to take into account as I have identified above. I turn now to consider those other matters.
The increased site rent compared to the previous site rents
It would appear that the Applicants have enjoyed a significant period of time either without an increase in site rent or have come into the subject residential park where the site rent has not been increased for a while. According to Mr. Brown the sites at the subject park may have been, in terms of rent, undervalued for some time.
The frequency and amount of past increases
As Mr Brown has identified there have been minimal site rent increases in the past and those increases have no kept in line with CPI increases.
Any increase in the CPI number
10.Again as Mr Brown has identified the increases in CPI have outstripped past increases in rent and any subsequent increases show that the proposed increase in rent satisfies a comparison with any increase in the CPI number as required by the legislation.
The amenity or standard of the common area and common facilities
11.This is the matter that probably commanded most attention from witnesses called by the Applicants at the hearing of this matter. Ms Hennessy gave evidence concerning a hole in the internal road at the residential park, problems with overgrown bush in the common area, snakes and tics, lack of a working security gate, leaves and dead trees stopping the utilisation of a barbeque area, cracks in pavers, cobwebs being encountered when walking through the bush area that is part of the common area and rotting fence palings in the fence dividing her site from an adjoining site. Ms Strohfeldt also spoke about a fire hazard in the common area, the smell coming from the lagoon adjacent to the residential park, general neglect in the grounds, the lack of the security gate and broken pavers. Ms Lord gave evidence about the smell from the lagoon, deterioration in the cleanliness of the common area since she first became acquainted with the residential park, deterioration in the community hall, inconvenience in the barbeque area and problems with roots and branches from a tree adjacent to her site.
12.It must be remembered that Cooroy is a rural town inland from the Sunshine Coast in South East Queensland. In rural areas one would expect the normal incidents of rural life such as snakes, tics and spiders. One could not expect a park owner to keep common areas which are part of a bush setting in a pristine condition such that they did not contain snakes, tics and spiders. Of course that does not give park owners a licence to neglect those areas and if they did so it would be to their peril in trying to increase site rents.
13.I am not satisfied that the majority of complaints are such as to warrant a setting aside of or a decrease in the amount sought in the rent increase. However Ms Hennessy’s complaint about the rotten palings of her fence and Ms Lord’s complaints concerning vermin (including possums) coming on to her site as a result of adjacent tree or trees in the common area and roots interfering with her site warrant different attention and I will deal with these matters later in this decision.
Any withdrawal of a communal facility or service
14.I am not satisfied that the security gate which was referred to in evidence was ever meant to operate as such since the change in ownership of the park and has not been in use for a considerable time. Indeed given the way in which the entrance to the residential park is now configured it would be wrong to say that it’s a communal facility that has been withdrawn insofar as the Applicants are concerned. Even if I had found that it was a service that had been withdrawn in my opinion it would not have been sufficient on its own or combined with other matters to warrant a decrease in or the setting aside of the rent increase proposed.
Any addition of a communal facility or service not previously provided at the park
15.No one particularly gave evidence of such a facility or service and I do not take this matter into account in arriving at my decision.
Any increase in the park owner’s operating cost for the park during the previous site rent period
16.As this was not a thrust of the Respondent’s case no evidence has been given about it and so this is not a matter I take into account.
Whether the increase is fair and equitable in all the circumstances of the case
17.This is a matter which requires a weighing up of all the issues bought to the Tribunal’s attention by the Applicants together with the case presented for the increase by the Respondent. I have taken this matter in account in arriving at my decision.
Anything else the Tribunal considers relevant
18.There doesn’t appear to be any matter other than those addressed above such as Ms. Hennessy’s fence which needs to be taken into account under this heading.
Conclusion
19.In my opinion save for the applications by Ms Hennessy and Ms Lord I am satisfied that there are no proper grounds for me to either set aside or disallow the increase in the site rents for the Applicants. In coming to this conclusion I am much influenced by the report of Mr Brown which I have previously referred to above and which report seems to me to be a fair and proper analysis of whether these site increases can be justified.
20.Having said that it seems to me that the evidence of the witnesses called by the Applicants demonstrates that there is a lack of communication between the Respondent and the residents of the park. I would urge the Respondent to take particular note of this matter and the complaints that have been voiced by the witnesses particularly in regard to the reluctance to use all the common area of the residential park. It is up to the Respondent as to whether or not it wants to accept this admonition on my part but if it doesn’t then it runs the risk that if further site rent increases are challenged in this Tribunal then these remarks may be taken into account by a subsequent Tribunal member.
21.Having regard to the above I accordingly dismiss the applications of Audrey Hull, Malcolm Hull, Audrey Crawford, C Tyrie, D Cheers, J W Jones, G Jones, J M Timothy, G Schneider, J Willersdorf and P Strohfeldt.
The application of Dell Hennessy
22.It is a matter of concern to me that Ms Hennessy gave evidence that a paling fence between her site and an adjoining site is in a state of disrepair. Accordingly pursuant to section 70(2)(c) of the Act I confirm the increase in the site rent for her site but on the condition that the Respondent repair the fence or fences between Ms Hennessy’s site and the adjoining site or sites. Should the Respondent neglect to do so within six (6) months of the date of this decision the matter should be brought back before the Tribunal.
Ms Karen Lord
23.The position of Ms Lord is different to the other applicants. Her evidence (which I note was not contradicted) was to the effect that her living at her site has been inconvenienced by rats from the neighbouring common area, possums on the roof of her manufactured home as a result of a branch or branches overhanging from the common area and tree roots invading her site from the common area. These are matters unique to her and surprisingly no suggestion came from the Respondent that they would be ameliorated. Therefore I am of the opinion that she has suffered as a result of matters which are under the control of the Respondent. I propose therefore to allow an increase in her rent but to a lesser extent than those of the other Applicants. In her case I consider that her increase should be to $105 per week or $210 per fortnight that being a decrease of $15 per week on the increase sought by the Respondent. Again the Respondent is on notice with respect to her particular site and should it not do anything then it runs the risk that this will be taken into account should there be any further site rental increases.
24.Finally I should say that I did countenance the idea that I agree to the site increases for the other Applicants (whose applications I have dismissed) conditional on the basis that the common areas be brought up to a suitable standard. The difficulty in imposing such condition is to specify with sufficient exactitude what a suitable standard would be, how that could be enforced and since other residents have accepted the new rent without demur, whether it would be just and equitable to impose such a condition on the Respondent. Accordingly, no such condition is imposed.
25.Accordingly the formal orders are:-
1. The applications of Audrey Hull, Malcolm Hull, Audrey Crawford, C Tyrie, D Cheers, J W Jones, G Jones, J M Timothy, G Schneider, J Willersdorf and P Strohfeldt are dismissed;
2. The increase in respect of D Hennessy is confirmed but is conditional upon the Respondent attending to the repair of her fence or fences as set as set in the reasons for decision; and
3. That the site increase in rent for Karen Lord is reduced to the amount of $105 per week or $210 per fortnight being $15 a week less than the increase sought by the Respondent.
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