Re Caloundra Gardens Village Body Corporate Committee
[2012] QCAT 98
•23 March 2012
| CITATION: | Re Caloundra Gardens Village Body Corporate Committee [2012] QCAT 98 |
| PARTIES: | Caloundra Gardens Village Body Corporate Committee (Applicant) |
| APPLICATION NUMBER: | ADL002-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 25 November 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Bridget Cullen, Member |
| DELIVERED ON: | 23 March 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the applicant, Caloundra Gardens Village Body Corporate, is exempt from the application of sections 7(f), 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 for the period from 23 March 2012 until 22 March 2017 in respect of the residences located within Caloundra Gardens Village, 96 Beerburrum Street, Caloundra. 2. It is a specified condition of this exemption that any residents of Caloundra Gardens Village Body Corporate, as at 23 March 2012, are exempt from the requirement to be over 50 years of age in order to reside at Caloundra Gardens Village, for the duration of their lives. |
| CATCHWORDS: | Application for exemption from discrimination on the basis of age – goods and services, disposition of land and accommodation – former retirement village now owned as freehold – proposal to restrict entitlement to purchase homes and rent to persons aged over 50 Anti-Discrimination Act 1991, s 113 Palmpoint Pty Ltd [2006] QADT 12 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | The Applicant was self-represented |
REASONS FOR DECISION
Background
The Applicant, Caloundra Gardens Village Body Corporate Committee, seeks a five year exemption from the application of the Anti-Discrimination Act 1991. An exemption, if granted, would allow Caloundra Gardens to limit residential accommodation to persons who are over 50 years of age.
The limitations proposed by Caloundra Gardens would provide clear scope for discrimination on the basis of age and family responsibilities, in the realm of accommodation. There is further concern about the impact this might have upon Caloundra Gardens’ residents who wish to subsequently dispose of their units, which are held as freehold properties. An exemption would limit the market to purchasers who are also over 50 years of age.
There is a significant history with respect to the categorisation of Caloundra Gardens, which was originally constructed as a retirement village under the Retirement Village Scheme (Retirement Villages Act 1999), having been granted a 99 year lease by the Government.
According to the Caloundra Gardens Body Corporate, the period during which Caloundra Gardens was categorised as a retirement village was fraught with difficulty, including financial exploitation of the residents. As such, re-registering the scheme as a retirement village is not an option that the residents now wish to pursue. Moreover, they have been advised by solicitors that the legal and accounting paperwork that would need to be submitted to the Office of Fair Trading (which administers the Retirement Villages Act 1999) would cost in the vicinity of $250,000.00. The complexities involved in this process are succinctly outlined in the Office of Fair Trading’s August 2011 Discussion Paper on Retirement Villages.[1]
[1]Available online at as at 21 March 2012.
Despite the residents’ concerns regarding the manner in which Caloundra Gardens functioned whilst a retirement village, there did exist the ability to exclude persons who were younger than 50 from residence.[2]
[2] Retirement Villages Act 1999, s 26.
Caloundra Gardens wants to openly declare that it is an ‘over 50’s’ facility in order to avoid uncertainty amongst property managers, real estate agents, and the North Coast Body Corporate Management Services (which provides administrative services to Caloundra Gardens). Caloundra Gardens is concerned that real estate agents and property managers, in particular, have begun promoting the sale and rental of property within Caloundra Village to people under the age of 50 years. This, they say, is for the reason that the agents and managers fear they may otherwise expose themselves to complaints arising under the Anti-Discrimination Act 1991.
The trouble with teenagers
There is a further reason that the Caloundra Gardens residents desire to restrict occupation to those over 50. The residents submit that the absence of younger persons, and teenagers in particular, will positively impact residents aged 50 years or older should the exemption be granted. They complain of noise, the overtaking of the pool and recreational areas to the exclusion of the over-50s, and less careful use of common equipment leading to more frequent repairs.
I dare to suggest that there are many areas of life where the teenage combination of raging hormones, modern fashion and unfathomable music is unwelcome. This, I am reasonably certain, is the reason that some shopping centre managers play classical music, as a deterrent.
As I pointed out to the residents during the hearing, even if this Tribunal were to grant the exemption sought, there will still be teenagers and children present at Caloundra Gardens. Whilst an exemption might prevent young people from becoming permanent residents, it will not (and cannot) prevent them from visiting grandparents or friends who are residents, including overnight. In fact, these grandparents may be delighted to host their grandchildren in the community pool, lending weight to the proposition that one’s own children and teenagers are always more delightful than someone else’s.
The trouble with agents
Caloundra Gardens is located next-door to a hospital and other health services, specifically designed to support the needs of older persons. In the ordinary course, one might think that teenagers and older persons might act as a “natural repellent” to one another, such that an exemption would not be necessary. On the evidence before me this however appears not to be the case. Caloundra Gardens submits that the facilities at the Village are an attractive alternative to youths due to a current shortage within the local housing market, and because the Village facilities are very close to the beach.
Whatever the case, the residents who spoke at the hearing of this matter explained that real estate agents and property managers seek to sell or rent units to persons that are under 50 (as one would expect when there are no constraints in place). Caloundra Gardens seeks an exemption in order to prevent the age composition of what began as a retirement village from altering significantly due to Caloundra Gardens’ claims that the shortage of affordable housing should be the Government’s problem, and should not be something that impacts on the quality of life of the owners and residents of the Village.
Exemptions under the Anti-Discrimination Act
This Tribunal, upon application, may grant exemptions from the operation of a specified provision of the Anti-Discrimination Act 1991.[3] Before deciding an application, the Tribunal is required to consider submissions made by the Anti-Discrimination Commissioner with respect to the application, including but not limited to the following matters:
(a) whether the application should be considered by way of public hearing;
(b) identification of persons who may be affected by a decision to grant the application;
(c) whether the public should be consulted;
(d) how consultation with identified persons or the public should be conducted.
[3] Anti-Discrimination Act 1991, s 113.
The Anti-Discrimination Commission, in a submission to the Tribunal dated 14 June 2011, expressed concerns about the impact of the proposed exemption upon Caloundra Gardens’ residents who are under the age of 50, and what would happen to them if an exemption were granted. The Commission would not, for example, support “the forced, or constructive, removal of people from the homes because of their age.”[4]
[4] Letter from Anti-Discrimination Commissioner dated 14 June 2011.
In this matter, the Tribunal conducted a public hearing, on site at Caloundra Gardens. Hearing Notices were sent to all residents of Caloundra Gardens, by the Tribunal, in an effort to identify any residents under the age of 50, as well as any property owners, who wished to ventilate concerns about the restraints that would be placed upon sale of their freehold residences should the exemption be granted.
In circumstances where the Tribunal determines that an exemption will not defeat the purpose of the anti-discrimination legislation, it may grant same “subject to such terms as the tribunal provides,” and “only in such circumstances, or in connection with such activities, as the tribunal determines”.[5] The maximum duration of an exemption is five years, after which time an applicant may seek renewal, again, for further periods of not more than five years.[6]
[5] Anti-Discrimination Act 1991, s 113(6).
[6] Ibid.
I will return to the concept of granting an exemption, but upon specified conditions, later in these reasons for decision.
Previous exemptions granted
There have been several “over-50s accommodation” exemptions granted by this Tribunal, and by QCAT’s predecessor, the Anti-Discrimination Tribunal. The only real difference between what Caloundra Gardens proposes here, and the previous exemptions, relates to the categorisation of the property, on which the accommodation sits.
The exemptions granted in Palmpoint Pty Ltd [2006] QADT 12 and in J&D Richards Developments Pty Ltd as Trustee for the Little Mountain Trust [2005] QADT 13 related to “manufactured home” parks. In the specific case of “manufactured homes”, ownership of the land is retained in freehold by the park operator, and residents who place their home upon the land are then granted a “site agreement,” for which they pay fees. The exemption granted in J&D Richards was renewed for a further five year period by this Tribunal on 25 August 2010.
The question then becomes, given that the residents do not want to become a retirement village, whether the difference between owning their land in freehold, and the park operators retaining ownership of the land in an exempt manufactured home park is so material that an exemption should not be granted.
Self-evidently, when the manufactured home park owner retains control of ownership of the land, they also retain significant control over the running of the park. Indeed, they are running a business, the purpose of which is to make money, in general contrast with the situation that pertains in the case of either a retirement village, or an aged care scheme.
Managed properly, a restriction limiting residence in the park to those over 50 can create a competitive advantage for the park owner, inspiring older persons who do not want to live in the midst of children and teenagers, to seek solitude in the confines of the park.
Improperly managed, there are numerous disputes that can arise between older residents of the park and management. Indeed, this Tribunal sees many such disputes given its jurisdiction with respect to the Manufactured Homes (Residential Parks) Act 2003. For example, if the park is one where the older residents are subsisting on a pension, any proposal to increase site rent or utility charges (even legitimately) may lead to conflict for the reason that the older person has not enjoyed a corresponding increase in their aged pension. These older persons can be at great peril of finding themselves part of the demographic whereby the “poor become poorer”.
It is clear that if Caloundra Gardens were a manufactured home park, that this Tribunal could grant an exemption whereby Caloundra Gardens could become an “over-50s” accommodation park. It is also clear that by virtue of their status as freehold land owners, the Caloundra Gardens residents also enjoy greater consequential status than do persons who possess a mere “site agreement”. In both cases, the residents themselves have the same ultimate purpose – to enjoy their older years surrounded by a similar demographic, and to avoid having to deal with those “pesky youth” that are believed to disrupt their quiet enjoyment.
As a matter of practicality it is strongly arguable that like-minded older persons who are freehold land owners should be allowed to be granted the exemption requested in order that they may control their surrounds without having to succumb to the expensive paperwork requirements associated with retirement villages, or by abandoning their status as freehold land owners and taking up residence in exempt manufactured homes parks. Of course, this is only arguable if their objectives are permissible at law (here the Anti-Discrimination Act 1991) and is for a non-discriminatory objective, such as ensuring that there is appropriate housing available for older persons.
Potential difficulties with an exemption
Body Corporate By-Laws
The Anti-Discrimination Commissioner, in his submissions, asked the Tribunal to consider the impact of the Body Corporate and Community Management Act 1997 (“BCCM Act”). The Commissioner suggested that the place for an age limitation for residents might be the by-laws of the community title scheme. However, section 180 of the BCCM Act relevantly provides as follows:
(3) If a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.
* * *
(5) A by-law must not discriminate between types of occupiers.
In Gardenia Homes Pty Ltd v The Body Corporate for Williams Retreat CTS 23581 [2009] QCCTBCCM 43, Member Dorney (as he then was) explained what is meant by “occupier” within the context of BCCM, s 180(5):
39.As noted, the definition of “occupier” in Schedule 6 relevantly defines an occupier as meaning a resident owner or resident lessee of the lot, or someone who lives on the lot (or even a person who occupies a lot for business purposes or works on the lot in carrying on a business from the lot).
40.What that definition emphasises is that the provision in question refers to discrimination between occupiers according to their type. And “type” of occupier is not directed to a question of whether the person is an original owner or a later owner, but what kind of occupation it is that is the subject of the particular By-Law.
41.In such circumstances, the example shows the notion in question. That is, the concern is with a type of occupier who cannot be discriminated against (such as a tenant) in contrast to another type of occupier (such as an owner).
As becomes clear from the foregoing, the BCCM Act does not use the word “discrimination” in the same statutory context to that within which the same word has come to be used in the Anti-Discrimination Act 1991. For this reason, I do not consider there to be any difficulty in housing age-requirements for Caloundra Gardens residents within their community by-laws, so long as there is also an exemption from compliance with the Anti-Discrimination Act 1991.
The risk in invoking the desired “over-50’s” requirement is not in any contravention of the BCCM Act, but rather the risk is that the proposal might be in breach of the anti-discrimination legislation. However, because there is a discretion that may be exercised within the Anti-Discrimination Act 1991, I am of the view that the proposal can be advanced in a manner that does not offend the Anti-Discrimination Act 1991.
Resale upon death or “vacation” of existing residents
Caloundra Gardens states that, should the exemption be granted, current residents aged under 50 years may remain residents until their death. Certainly this would alleviate the concerns expressed in this regard by the Anti-Discrimination Commissioner, and this will be a “specified condition,” of the exemption, as I foreshadowed above.
Only the effluxion of time will identify whether owners who desire to sell or rent their units will experience any difficulties because of the “over-50’s” requirement, or will instead enjoy a “competitive advantage” in the market.
Irrespective of the ultimate market response to this exemption, it is important to note that there was no dissention at the hearing, save for concerns expressed by North Coast Body Corporate Management Services to ensure they comply with their legislative obligations.
Further, I note that at the July 2009 Extraordinary General Meeting of Caloundra Gardens owners, a unanimous vote was cast in favour of limiting future residency to persons over 50.
Discretion Exercised
The facts of the application before me are similar to the circumstances in Palmpoint Pty Ltd and J&D Richards Developments Pty Ltd as Trustee for the Little Mountain Trust [2005] QADT 13. The only significant difference is the manner in which the residents stand legally in relation to the land upon which their homes are situated: in this case, Caloundra Gardens owners hold their land in freehold, and in Palmpoint and J&D Richards, the residents had a “site agreement” entitling them to situate their homes on the land in exchange for rent. This does not, at least in my view, provide sufficient justification for treating the groups differently vis-à-vis the anti-discrimination law.
Although it is undoubtedly the case that a discretionary exemption may be granted under s 113 of the Anti-Discrimination Act 1991, I caution to add that the fact of that discretion is still ultimately a matter that must be carefully considered, on a case-by-case basis. Because grounds are found in one case to exempt an applicant from the operation of anti-discrimination laws should not then be construed subsequently as affording unthinking justification for a similar exemption in another case, where the facts and circumstances then applying are different in kind or context to the previous case, then alluded to as precedent for the requested exemption.
Having now considered all the circumstances in the present case, I am satisfied that these afford sufficient basis for an exemption and I am prepared to exercise my discretion so as to allow the application for an exemption, and make the following order:
That the applicant, Caloundra Gardens Village Body Corporate, is exempt from the application of sections 7(f), 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 for the period from 23 March 2012 until 22 March 2017 in respect of the residences located within Caloundra Gardens Village, 96 Beerburrum Street, Caloundra.
It is a specified condition of this exemption that any residents of Caloundra Gardens Village Body Corporate, as at 23 March 2012, are exempt from the requirement to be over 50 years of age in order to reside at Caloundra Gardens Village, for the duration of their lives.
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