LLCP Pty Ltd t/as Ballina Seabreaze Holiday Park v Gillham; LLCP Pty Ltd t/as Ballina Seabreaze Holiday Park v Cox
[2015] NSWCATCD 143
•01 December 2015
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: LLCP Pty Ltd t/as Ballina Seabreaze Holiday Park v Gillham; LLCP Pty Ltd t/as Ballina Seabreaze Holiday Park v Cox [2015] NSWCATCD 143 Hearing dates: 14 October 2015 Decision date: 01 December 2015 Jurisdiction: Consumer and Commercial Division Before: W Priestley, General Member Decision: 1. The application is dismissed.
2. The application to be listed before the presiding member to determine the issue of costs.Catchwords: Change of use Legislation Cited: Residential Parks Act 1998
Residential Parks Regulation 2006
Residential (Land Lease) Communities Act 2013
Civil and Administrative Tribunal Act 2013Category: Principal judgment Parties: LLCP Pty Ltd t/as Ballina Seabreaze Holiday Park (applicant) RP 15/45753
LLCP Pty Ltd t/as Ballina Seabreaze Holiday Park (applicant) RP 15/45754
Lynette Cox (respondent) RP 15/45753
Kim Gillham (respondent) RP 15/45754Representation: Mr Glenn Wright for the applicant (LLCP Pty Ltd t/as Ballina Seabreaze Holiday Park)
The respondents in person
File Number(s): RP 15/45753 and RP 15/45754 Publication restriction: Unrestricted
Reasons for Decision
The applications
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The applications in this matter were lodged with the Tribunal on 2 August 2015. The applicant seeks orders under section 113 of the Residential Parks Act 1998 terminating the residential site agreements it has with the respondents. The applicant gave the respondents termination notices dated 30 July 2014, in response to which the respondents have not delivered up vacant possession.
Jurisdiction
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On 1 November 2015 the Residential Parks Act 1998 was repealed, and the Residential (Land Lease) Communities Act 2013 commenced. Clause 6 of Schedule 2 of the Residential (Land Lease) Communities Act 2013, states that proceedings commenced in the Tribunal before 1 November 2015, are to be determined under the Residential Parks Act 1988 (“the Act”). Sections 28 and 29, and Schedule 4 of the Civil and Administrative Tribunal Act 2013, give the Tribunal jurisdiction to determine matters arising under the Act.
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For reasons which appear below, the Tribunal is of the view it has no jurisdiction to determine the matter, or alternatively cannot make the orders sought by the applicant.
The hearing
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The applicant was represented at the hearing by Mr Glenn Wright the Director of the applicant company. The applicant submitted a large folder of documents, and Mr Wright, gave oral evidence on its behalf. The respondents represented themselves, and each submitted a folder of documents, and both gave oral evidence. The respondents were assisted at the hearing by Ms Elgazza, from the Tenants’ Union of New South Wales. Ms Elgazza did not represent the respondents, but made some additional brief submissions on their behalf at the end of the hearing. The Tribunal has considered all of the evidence provided by the parties in reaching its determination. Because the Tribunal has determined it has no jurisdiction, or power, to grant the orders sought, it is not necessary to make findings of fact about the substance of the application, but only findings relating to the jurisdictional issue.
Findings
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Both respondents have residential site agreements with the applicant, which permit them to occupy sites at the respondent’s park at South Ballina. Under those agreements Ms Cox has occupied site 12 since 31 December 2004, and Ms Gillham has occupied site 5 since 1 February 2005.
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The applicant purchased the park and commenced managing it, on 19 May 2005. Since that time the applicant has made at least 5 applications to the Tribunal seeking to terminate Ms Gillham’s residential tenancy agreement, and has given Ms Cox at least 8 Notices of Termination. None of the applications for termination orders in respect of Ms Gillham have succeeded, and none of the Notices of Termination given to Ms Cox, have resulted in the tenancy agreements being terminated.
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The applicant gave Notices of Termination dated 30 July 2014 to both respondents on or about that date. The Notices require the respondents to deliver up vacant possession by 1 August 2015.
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The Notice given to Ms Gillham is page 1 in the folder of documents she submitted. The Notice given to Ms Cox was not put into evidence, but the Tribunal infers from the application lodged in respect of that respondent, and the way the parties approached the hearing, that it is identical in all relevant respects.
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The Notices purport to be given under section 102 of the Act.
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The evidence of Mr Wright about the use to which the respondents’ sites were to be put, was that the use did not require development consent under the Environmental Planning and Assessment Act.
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The Tribunal’s consent was not obtained under section 102AA of the Act (or any other section) for the issue of the Notices.
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The Director-General of the Department of Housing was not notified within 7 days (or at all) of the Notices being issued. In relation to this issue, the respondents placed in evidence a letter to the Right to Information Unit of the Department of Family and Community Services, Housing, dated 15 September 2015. The letter seeks copies of correspondence the Department has received from the applicant. The letter explains the reason for the request. The letter was included in the documents the respondents gave to the applicant, and in the Tribunal’s view, puts the applicant on notice that the applicant’s obligation to advise the Director was an issue. In the absence of any evidence that the applicant did notify the Director, the Tribunal finds no such notice was given. If that finding is found to be wrong, the Tribunal determines it is not satisfied on the balance of probabilities, that notice to the Director was given, as required by section 102 (1C) of the Act.
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The applicants wrote to Mr Wright by letter dated 20 September 2015, contending that the Notice issued to her was invalid because it failed to comply with section 102 AA of the Act. The applicants asked the respondent to withdraw the Notice and discontinue the application, and advised they would seek costs against the applicant if it did not do so.
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No compensation for the cost of relocating the respondents’ homes to other sites has been determined.
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The park owner has not agreed to buy the respondents’ dwellings at a price no less than their value, as determined by the Tribunal under section 128 of the Act.
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The parties have not reached an acceptable negotiated settlement.
Application of the law to the facts
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Section 102 of the Act relevantly states;
“(1) A park owner may give notice of termination of a residential site agreement to the resident on the ground that the residential site is to be used (whether by the park owner or some other person) for a purpose other than that of a residential site.
(1B) Notice of termination may not be given on the ground of a change of use that does not require development consent under the Environmental Planning and Assessment Act1979 unless consent for the issue of the notice has been obtained under section 102AA.
(1C) Within 7 days after giving a notice of termination under this section, the park owner must cause written notice of that fact to be given to the Director-General of the Department of Housing.
(5) A resident whose residential site agreement is terminated under this section is entitled to be paid compensation by the park owner in accordance with section 128.
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Section 102 AA of the Act states;
“(1) A park owner may apply to the Tribunal for consent to the issue of a notice of termination in respect of a residential site on the ground of a change of use of the land on which the residential site is situated, being a change of use for which development consent is not required under the Environmental Planning and Assessment Act1979 .
(2) Consent to the issue of the notice is not to be granted unless the Tribunal is satisfied that the park owner genuinely intends to use the land for a purpose other than that of a residential site.
(3) Before determining an application under this section, the Tribunal:
(a) must ensure that both the park owner and the residents are given a reasonable opportunity to make submissions to the Tribunal with respect to the proposed change of use, and
(b) must give proper consideration to any such submissions that are duly made.”
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Section 113 states;
“(1) If:
(a) a park owner or a resident gives notice of termination of a residential tenancy agreement under this Part, and
(b) the resident fails to deliver up vacant possession of the residential premises on the day specified,
the park owner may, not later than 30 days after that day, apply to the Tribunal for an order terminating the agreement and an order for possession of the premises.
(3) Except as provided by section 115, the Tribunal must not make an order terminating a residential tenancy agreement under this section unless it is satisfied that notice of termination was given and that it was given in accordance with this Part.
(3A) The Tribunal must not make an order for possession as a consequence of an order terminating a residential tenancy agreement pursuant to a notice given by the park owner on the ground referred to in section 102 (Termination by park owner for change of use) unless it is satisfied that:
(a) compensation for the cost of relocating the dwelling to its new location has been determined under section 128, or
(b) the park owner has agreed to buy the dwelling from the resident at a price no less than its value, as determined by the Tribunal under section 130A, or
(c) the park owner and the resident have reached an acceptable negotiated settlement, and that agreement is bona fide.”
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As can be seen, the Tribunal must not make a termination order unless the notices of termination were given in accordance with Part 12 of the Act.
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The notices were not given in that way because;
The applicant did not obtain the consent of the Tribunal before issuing them, as is required by section 102 (1B).
The Director-General of the Department of Housing was not notified of the termination notices within 7 days (or at all), as required by section 102 (1C).
No compensation has been determined, and no agreement or settlement has been made between the parties, as required by section 113 (3A).
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Accordingly, the Tribunal cannot make the orders sought and has no jurisdiction to do so. The application is dismissed.
Costs
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Section 60 of the Civil and Administrative Act states the Tribunal must not make an order for costs, unless there are special circumstances that justify doing so. In the Tribunal’s view there may be such circumstances, and the respondents should have an opportunity to make oral submissions about that issue, and the nature and amount of costs that they seek. The applicant should also be given an opportunity to make oral submissions in reply. The applications are to be listed before the presiding member to hear such submissions.
W Priestley
General Member
Civil and Administrative Tribunal of New South Wales
1 December 2015
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: 14 January 2016
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