| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA) CITATION : WESTON and FOURMI PTY LTD [2011] WASAT 112 MEMBER : MS L WARD (MEMBER) HEARD : 21 JUNE 2011 DELIVERED : EDITED REASONS DELIVERED ORALLY ON
21 JULY 2011 FILE NO/S : CC 648 of 2011 BETWEEN : ROGER WESTON Applicant
AND
FOURMI PTY LTD
Respondent
Catchwords: Residential park - Tenant's application to install solar panels to generate electricity - Tenant's right to alter premises - Park operator must not withhold consent unreasonably - Was the park operator reasonable in its refusal? - Internal and external aesthetics of the residential park Legislation: Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 10(1)
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Residential Parks (Long-Stay Tenants) Act 2006 (WA), s 32(1), s 62(2)(b), Sch 1, Sch 1 cl 14(2)(b), Sch 1 cl 14(3)(a)
Strata Titles Act 1985 (WA) Result: Application dismissed Category: B
Representation: Counsel:
Applicant : Selfrepresented
Respondent : Ms S Zahedi
Solicitors:
Applicant : Self-represented
Respondent : Chalmers Legal Studio Pty Ltd
Case(s) referred to in decision(s):
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Taj Coffee Company Pty Ltd v Plaza Arcade [2009] WASAT 107
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The application concerned whether or not the refusal of a park operator to consent to an alteration of premises was reasonable under cl 14(3)(a) of Sch 1 to the Residential Parks (Long-Stay Tenants) Act 2006 (WA). 2 The applicant, Mr Roger Weston, lives in a mobile home at Riverside Gardens Estate, No 2462 Albany Highway, Gosnells. He is a tenant of the residential park. Mr Weston has a carport adjacent to the southern facing side of his mobile home. The respondent owns the residential park and is the park operator. 3 Mr Weston wishes to install solar panels, which generate electricity, on the north facing roof of his mobile home in the residential park. He sought the park operator's written permission to do this on 2 March 2011. This request was refused by the park operator in a meeting with Mr Weston and the refusal was confirmed in a letter to him dated 22 March 2011. The park operator permitted the solar panels to be installed on Mr Weston's carport roof. 4 The park operator refused to have the solar panels on the roof of Mr Weston's mobile home as it was concerned about the aesthetics of the panels being on the mobile home roof and how this would look both, from within the park and externally from Tonkin Highway. 5 Mr Weston claims that the park operator has unreasonably withheld its consent to the alteration to his mobile home for a number of reasons including: the solar panels are less efficient if they face south; other mobile homes have other structures on their roof; and, none of his neighbours object to the panels being on the north facing roof of his mobile home. 6 Clause 14(3)(a) of Sch 1 to the Residential Parks (Long-Stay Tenants) Act 2006 applies and it does not require the Tribunal to determine if the decision by the park operator was correct. It only requires that the Tribunal determines if the park operator's decision was reasonable. 7 The Tribunal applied the relevant test for determining whether consent was withheld unreasonably in this case and found on the evidence before it that the park operator's decision was one which was reasonably (Page 4)
open to it and one based on the information available. A reasonable person could have come to the same decision based on the same facts. Accordingly, the park operator did not withhold its consent unreasonably. 8 Accordingly, the application is dismissed. 9 Below is an edited and revised version of the reasons for decision of the Tribunal which has been taken from the transcript of proceedings of the decision and the oral reasons for decision given on 21 June 2011.
The application 10 Mr Weston seeks a finding that the refusal by the park operator to consent to him placing solar panels on the north facing roof of his mobile home is unreasonable. 11 The application was lodged with the Tribunal on 30 May of 2011. It is an application under s 62(2)(b) of the Residential Parks (Long-Stay Tenants) Act 2006 (WA) (RP Act). At the time of application, Mr Weston informed the Tribunal that the matter was urgent as the 'residential net feed in tariff scheme' subsidy is reduced after 1 July 2011. 12 The matter first came before the Tribunal on 16 June 2011 for a directions hearing. On 16 June 2011, the Tribunal satisfied itself that it did have jurisdiction under the RP Act to determine the application. The matter was adjourned to a mediation conference to occur at 10 am on 21 June 2011 and a final hearing at 12 noon on 21 June 2011 if the matter was not settled at mediation. The mediation conference took place on 21 June 2011. The matter was not settled at mediation and so a final hearing was held on the same day. 13 At the final hearing on 21 June 2011, several documents were tendered to the Tribunal, and were received into evidence and considered by the Tribunal. Mr Weston and Mr Bill Walker, a director of the park operator, both gave oral evidence at the hearing and were crossexamined.
Facts 14 The factual background giving rise to the application is summarised below. 15 The applicant, Mr Weston, lives in a mobile home in the Riverside Gardens Estate, No 2462 Albany Highway, Gosnells. (Page 5)
Mr Weston has a carport adjacent to the southern facing side of his mobile home. The respondent owns the residential park and is the park operator. 16 Mr Weston wishes to install solar panels on the north facing roof of his mobile home in the residential park. In accordance with his lease, he sought the park operator's written permission to alter his premises on 2 March 2011 in a letter stating as follows: We wish to install Solar Powered Panels on the northern aspect of our house to enable us to produce electricity for our own use. If I were to fit the system on my [carport] (which has a southerly aspect) the efficiency will drop by 50% according to a major solar company that I have inquired with. They also said that they would not install panels on a southerly aspect. 17 This request was refused by the park operator in a meeting with Mr Weston. Mr Walker's evidence at the hearing is that he spent some time going through the reasons why the park operator did not consent to the solar panels going on the roof of his mobile home, but did consent to the panels going on the carport adjacent to his home. 18 The park operator refused to have the solar panels on the roof of the mobile home as it was concerned about the aesthetics of the panels being on the northern roof and how this would look, both from within the park and externally from Tonkin Highway. 19 The park operator's refusal to allow the installation on the roof of Mr Weston's mobile home was confirmed in a letter to him dated 22 March 2011, which stated: Thank your [sic] for your recent letter concerning your request to install solar panels which was discussed at length with you and the Directors today. I confirm that approval will be granted to install the solar panels providing they are only installed flat onto your [carport] roof as confirmed during the meeting. I hope all goes well with installation.
Evidence and contentions 20 On 21 June 2011, the parties made oral submissions at the hearing, gave oral evidence, were cross-examined and gave short closing submissions. (Page 6)
21 The Tribunal took all of this information and evidence into account in making its decision. The submissions of the parties are summarised below. 22 Mr Weston claims that the park operator has unreasonably withheld its consent to the alteration to his premises for a number of reasons including: • The panels are up to 30% less efficient on a south facing roof. • The panels would need to be installed tilted to 32 degrees for maximum efficiency. • Other residents in the park have structures on their roofs, such as: air conditioning, hot water systems, satellite dishes and whirlybird fans. • The hot water system which is on the roof of one of the mobile homes is very similar looking to solar panels and it cannot be seen from the ground. • None of his neighbours object to the panels being on his north facing roof. 23 At the hearing, Mr Weston said that he intended to install about eight solar panels on the roof of his mobile home. 24 The park operator submitted that it did not unreasonably withhold its consent to the alteration to Mr Weston's premises. The reasons for refusal related to the aesthetics of how the solar panels will look from both within the park, and externally, due to the size, shape, colour, location and number of the panels on the roof. 25 At the hearing, Mr Walker's evidence was that there are 300 bays within the caravan park and that it is bound by Albany Highway and Tonkin Highway. Tonkin Highway is elevated and the park is highly visible from Tonkin Highway. The park has also won several awards for its gardens. Mr Walker stressed that how the park looked was very important to the respondent and to the business overall. 26 Mr Walker considered that the angle of the roof on the mobile home made the panels too visible to people walking in the park and to passersby on Tonkin Highway. Mr Walker said that as an owner and director of the respondent and the caravan park he was required to (Page 7)
consider the needs of the park as a whole. He said that he was very much in favour of solar panels, however, given his concerns about the aesthetics in the park, he was not prepared to consent to the panels being placed on the roof of the mobile home. 27 Mr Walker also said that no one else in the park has approval to put solar panels for electricity generation on their mobile home roof, although 30 to 40 people have the electricity generating solar panels operating on the roof of their carports. 28 Mr Walker is not concerned with the visual aspects in relation to whirlybirds, air conditioners or satellite dishes on the roof. This is because these objects are relatively small in size when compared to having eight or so solar panels on a roof. 29 The Tribunal will now deal with the statutory framework of the RP Act and then apply the evidence before it to the RP Act.
Statutory scheme and application to Mr Weston's lease 30 Section 32(1) and Sch 1 of the RP Act deal with the terms of a longstay agreement. Section 32(1) of the RP Act permits the terms of the agreement in Sch 1 of the RP Act to be modified. 31 In this matter, Mr Weston's lease has been provided to the Tribunal. Clause 19.1 of Mr Weston's lease states that '[t]he tenant agrees ... not to attach any fixture or renovate, alter or add to the premises without the landlord's written permission'. 32 Due to the presence of cl 19.1 in Mr Weston's lease, cl 14(2)(b) of Sch 1 to the RP Act applies and thereby imports cl 14(3)(a) of Sch 1 to the RP Act. 33 Clause 14(3)(a) of Schedule 1 to the RP Act states that: 34 Accordingly, the main issue that has to be determined by the Tribunal is whether the respondent park operator has withheld consent unreasonably. (Page 8)
What is meant by the term 'not withhold consent unreasonably'? 35 The Act does not define what is meant by the term 'not withhold unreasonably'. Therefore it is for the Tribunal to determine whether the park operator has withheld consent unreasonably based on the legal principles expressed by the courts and applying those principles to the facts of this matter. 36 The reasonableness of withholding consent was previously considered by the Tribunal in the case of Taj Coffee Company Pty Ltd v Plaza Arcade[2009] WASAT 107 (Taj Coffee). Taj Coffeeconsidered the term, '… withhold consent … on reasonable grounds', which is in s 10(1) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA). The Tribunal considers that while Taj Coffeeinvolved a slightly different term, the general principles in relation to the concept of the reasonableness of withholding consent are equally applicable to the RP Act under consideration in this matter. Accordingly, this Tribunal adopts and applies the test of reasonableness as set out by the Tribunal in Taj Coffeeat [29]: The test of what constitutes 'reasonableness' is not merely whether the Tribunal may have come to a different conclusion to that of the landlord. The test is therefore not what the 'best and preferable decision' is as in the case of administrative review, but whether a refusal from the perspective of the landlord was reasonable. The Tribunal must therefore be satisfied that the refusal from the landlord was 'unreasonable' before it may make an order that consent for assignment is given. The test of reasonableness is a much more stringent test than whether the decision was 'correct'. 37 In Taj Coffeeat [36] and [37], the Tribunal quoted The Macquarie Concise Dictionary (3rd ed, 2004) definition of 'unreasonable' and its application as follows: (Page 9)
rise to a question whether a strata company had acted unreasonably to allow alterations of common property pursuant to s 85 of the said Act, the Tribunal laid down the following general criteria (with emphasis): 38 The Supreme Court of Western Australia also considered the issue of not withholding consent unreasonably in EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd[2008] WASC 275(EDWF Holdings), which is also cited in Taj Coffee at[39]. In EDWF Holdings at [191], his Honour Chief Justice Martin summarised a number of principles in relation to consent being unreasonably withheld, taken from the High Court decision in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596and considered that the word 'unreasonably' can be equated to 'arbitrarily' in the sense that consent was withheld without reasonable cause. 39 In Taj Coffee at [37], the Tribunal then went on to look at what was unreasonable in the context of other legislation such as the Strata Titles Act 1985 (WA). In that context, the Tribunal considered that as long as the reasons for refusal by the respondent are cogent when judged in the context then this Tribunal would be slow to find there has been an unreasonable refusal. The task is for the Tribunal to assess whether there was good sense or logic to support the dissenting view.
Was consent unreasonably withheld? 40 The Tribunal will now apply the test as applied in Taj Coffee, and the cases cited in it, to the facts of this matter.If the Tribunal finds that consent was not unreasonably withheld then the application must be dismissed. 41 The test is if a reasonable person 'could' have come to the same decision as the park operator on the basis of the same facts. If a (Page 10)
reasonable person could have come to the same decision then the application must be dismissed. 42 The park operator must show that it had taken into account all of the information before it, that its decision was logical and open to it and that the refusal was not arbitrary. 43 In this matter, the park operator identifies the reasons for the refusal of consent as being due to the concerns regarding the size, shape, colour, location and number of the panels on the roof and how the solar panels would look both from within the park and externally. 44 The Tribunal has considered the reasons put forward by the park operator and concludes that the reasons are objectively reasonable; that is, a reasonable person could have refused consent for the reasons given. The park operator's reasons for refusal are indeed cogent, logical and not arbitrary. The Tribunal is satisfied that a reasonable person could on the basis of the same facts refuse consent for the installation of solar panels on the roof of Mr Weston's mobile home. 45 This conclusion is made based on all of the evidence before the Tribunal and, in particular, the matters summarised below. The park operator's overriding concerns are in relation to the aesthetics in relation to the park. The respondent also distinguished the one mobile home in the park which does have a solar hot water system on the roof and says that that came about because it is required to have the plumbing go under the hot water system which would not be possible if it was on a carport. The park operator also noted that the size and number of panels involved in a solar heater differ to Mr Weston's proposal for eight or so panels on the roof of his mobile home. The park operator said there are no solar panels for generating electricity on any mobile home roof in the park and that all such requests had been refused to date for similar reasons.
Conclusion 46 Having considered Mr Weston's application in relation to how he says that the park operator unreasonably withheld consent for placing the solar panels on the roof of the mobile home and having considered Mr Walker's reasons for withholding consent, the Tribunal formed the view that the refusal of the park operator to consent to Mr Weston's proposal was reasonable and one which was open to it. (Page 11)
47 Based on the information available to the park operator, the Tribunal is satisfied that the park operator acted reasonably. The application must therefore be dismissed.
Orders 48 The Tribunal orders that: 1. The application is dismissed. |