TJ & RC Walsh Pty Ltd (as trustee) t/as Durack Gardens Caravan & Relocatable Home Park v Anti-Discrimination Commission Queensland
[2013] QCAT 418
| CITATION: | TJ & RC Walsh Pty Ltd (as trustee) t/as Durack Gardens Caravan & Relocatable Home Park v Anti-Discrimination Commission Queensland [2013] QCAT 418 |
| PARTIES: | TJ & RC Walsh Pty Ltd (as trustee) t/as Durack Gardens Caravan & Relocatable Home Park (Applicant) v |
| Anti-Discrimination Commission Queensland (Respondent) |
| APPLICATION NUMBER: | ADL045-13 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 1 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. An exemption is granted to TJ & RC Walsh Pty Ltd as trustee for the Trevor Walsh Family Trust No. 2 from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(f) of the Act from 1 August 2013 to 31 July 2018 in respect of its activities in relation to the property known as the Durack Gardens Caravan and Relocatable Home Park situated at 758 Blunder Road, Durack, in the State of Queensland. |
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APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The applicant carries on business as Durack Gardens Caravan and Relocatable Home Park. Durack Gardens is referred to in the application as a Manufactured Home Park.
The applicant is seeking an exemption from the operation of specific sections of the Anti-Discrimination Act 1991 (“the Act”) so as to be able lawfully to limit accommodation in Durack Gardens to residents over the age of 50 years. Section 113 of that Act provides discretionary power to QCAT to grant such an exemption. One precondition to the exercise of that power is set out in paragraph 113(2) of the Act, namely the requirement for QCAT to give to the Anti-Discrimination Commissioner a copy of the exemption application and supporting material filed with that application. The Commissioner has informed QCAT that he has no objection to the proposed exempted being granted.
According to the information filed by the applicant, Durack Gardens has fully self-contained relocatable homes with landscaping and car accommodation and that this type of accommodation is becoming the first choice of many mature age couples. At the date of the application, there were relocatable homes at Durack Gardens for sale at prices ranging from $105,000 to $168,000. Most of the homes advertised for sale had two bedrooms although there were also three bedroom homes advertised for sale. From the pictures in the advertisements, the homes appeared to be relatively basic in design and on small sites.
Information provided by the operator of Durack Gardens describes the Park as situated on 34 acres of landscaped parklands some 14 kilometres from the central business district of Brisbane. It is stated that the residents have a quiet country lifestyle while being in close proximity to a medical centre, major shopping centres, bowls club, golf club and other recreational facilities, have a bus stop at the front entrance and are within close proximity to train stations.
The information published about Durack Gardens describes a village lifestyle which is appealing to mature aged residents looking for a comfortable lifestyle in a home requiring minimum upkeep. Durack Gardens has a swimming pool, tennis court and an onsite convenience store. The published information promotes the site as catering for a popular trend for single and couple pensioners who want to sell their existing larger home and move into a low maintenance home where eligible pensioners can receive rental assistance, a rates rebate and power rebate.
The applicant provided details of the age of current residents in about 130 homes at Durack Gardens who range from 50 to 97 years of age. Most of the disclosed ages were well over 60 years of age.
The applicant provided statistical information about the area in which Durack Gardens is located. According to the 2011 Census, approximately 25,000 people reside in the general area of postcode 4077 and that 28.6% of these people were over 50 years of age. There are over 9,200 dwellings of differing types and sizes available for people to occupy in the area. At the time of the Census, there were over 400 unoccupied dwellings.
According to a popular real estate website in March 2013, houses for rent in Durack alone were mainly comprised of larger family homes with 3 bedrooms. The rents varied but were between $200 and $450 per week. The information provided by the applicant revealed that there was accommodation available to the general public at rates that would be affordable by both lower and higher income earning persons and families.
The applicant stated that there are several manufactured home parks and retirement villages in the Brisbane area which have in place restrictions that exclude persons under a certain age bracket (usually between the ages of 50 and 55). The applicant submitted that residents in these properties want the lifestyle that is specifically targeted at the senior and elderly age group. The Commissioner identified five manufactured home parks where exemptions had been granted to permit a similar restriction against residents under a specific age.
The applicant submitted that there is ample suitable accommodation available within Brisbane and the wider Brisbane area for persons under the age of 50 and that granting the exemption in this case would not disadvantage those persons by being excluded from residing at Durack Gardens.
The evidence of the applicant is accepted by the tribunal. It is accepted that the accommodation and facilities in Durack Gardens are generally attractive to persons over 50 years of age as the residences are of a manageable size, require low maintenance and are close to services and recreational facilities more likely to be used by persons over 50 than by persons under 50 years of age. Restricting accommodation in Durack Gardens to persons aged 50 years and over would be of benefit for persons within that particular demographic as there is likely to be more of a commonality of interests and activities than would be found in the general community with all age groups living side by side.
In restricting accommodation in the manner intended persons younger than 50 years of age will be treated less favourably due to their age. The question to be determined is whether granting an exemption under section 113 from the operation of the Act is appropriate.
It has been recognised that the purpose of section 113 is to allow people the protection and security of a shield against complaints of unlawful discrimination in circumstances where their proposed actions would constitute a prima facie case of unlawful discrimination.[1] In considering whether to grant an exemption from the operation of the Act, it is necessary to consider whether an exemption is necessary as the intended restriction of accommodation might already be excused by specific exemptions or defences in the Act.
[1] J & D Richards Developments Pty Ltd [2005] QADT 13
One such exemption is contained in section 104 of the Act where a defence is provided to a complaint of unlawful discrimination if the actions complained of have been done to further the welfare of a group of persons and if the actions are not inconsistent with the Act. However, the Tribunal has in other cases been satisfied that this section does not readily lend itself as an effective defence to a complaint where a manufactured home park has sought to restrict residence in the park to persons aged over 50.
People aged between 50 and retirement age of 65 have needs and interests that are not wholly identical with persons over retirement age. It would be wrong to assume that a defence based on protecting actions designed to further the welfare of persons over 65 would necessarily be available to defend those same actions when applied to persons just over 50. Age as an attribute in the Act is not restricted to old age but includes every age group in society. Age, unlike the other attributes in the Act, cannot clearly identify a person as belonging to a particular group.[2]
[2] TJ & RC Walsh Pty Ltd [2013] QCAT 25; Palmpoint Pty Ltd [2011] QCAT 140.
I am satisfied there is no other specific exemption or defence in the Act that would be available to the applicant to permit a restriction against persons aged under 50 residing in Durack Gardens. I am satisfied that the application should be considered under section 113 of the Act.
Previous decisions made under this section have set out the types of matters to which the tribunal should have regard when considering an exemption application. These matters include whether it would be appropriate and reasonable to grant an exemption, whether there are any non-discriminatory ways of achieving the purposes for which the exemption is sought and whether there is support for the exemption being granted.[3]
[3] Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
I find that the evidence has established that the majority of residents in Durack Gardens are over 60 years of age and that a significant proportion of residents are aged over 70. It would be appropriate for persons generally described as seniors to have available for their use accommodation and facilities that specifically meet the needs and requirements of seniors. I find that the evidence has established that the accommodation and facilities at Durack Gardens specifically meet the needs and requirements of seniors.
The State has recognised in passing the Retirement Villages Act 1999 that the special needs and requirements of seniors, including appropriate accommodation, may be catered for in such a way that age restrictions can be lawfully applied to residents in one segment of accommodation provided for seniors. Section 26 of the Retirement Villages Act 1999 provides that it is not unlawful to discriminate on the basis of age if the discrimination merely limits residence in a retirement village to older members of the community and retired persons.
However, manufactured home parks do not come within the scope of the Retirement Villages Act 1999 and there is no automatic exemption provided to manufactured home parks from the operation of the Anti-Discrimination Act. I am satisfied from the evidence that this type of affordable accommodation is particularly attractive to seniors. It would be incongruous if one segment of the accommodation market specifically designed to appeal to seniors is permitted to restrict residency to older persons while another segment is not.
I consider that the objects of the Anti-Discrimination Act to educate the community to appreciate and respect the dignity and worth of everyone are not inconsistent with, in an appropriate case, permitting seniors to reside in accommodation which caters for their specific needs and requirements. I am satisfied that this is one such case.
I find that the evidence establishes that there is ample suitable accommodation available within the Brisbane area, and in particular within the area where Durack Gardens is located, for persons under the age of 50. I am satisfied that granting the exemption in this case would not disadvantage those persons by being excluded from residing at Durack Gardens. Granting an exemption would be both appropriate and reasonable in this case.
There are no obvious ways to restrict residents to person over the age of 50 which are non-discriminatory in nature. I consider that granting an exemption is necessary to achieve the purpose disclosed in the application.
An exemption is granted to TJ & RC Walsh Pty Ltd as trustee for the Trevor Walsh Family Trust No. 2 from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(f) of the Act from 1 August 2013 to 31 July 2018 in respect of its activities in relation to the property known as the Durack Gardens Caravan and Relocatable Home Park situated at 758 Blunder Road, Durack, in the State of Queensland.