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[2011] QCAT 646
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2011-07-19
Original judgment source is linked above.
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
[1] Burleigh Town Village Pty Ltd is the owner of a manufactured home park known as Burleigh Town Village. Rental Management Services Pty Ltd is the operator of the park. They have applied for an extension of an exemption from the operation of sections 45, 46, 76, , and of the previously granted.
[2] Section 113 of the Anti-Discrimination Act 1991 provides the tribunal with power to grant an exemption from the operation of specified provisions of the Act. The principles to be considered in such an application have been helpfully set out in Palmpoint Pty Ltd[1]. The applicants' evidence, which I accept, shows:
The applicants have operated the park since 1987 as an accommodation service specifically for persons aged 50 years and over ("restricted persons").
The park consists of 202 relocatable homes, most of which are two-bedroom homes. The homes are available for sale to restricted persons but Burleigh Town Village Pty Ltd retains title to the land. Occupancy is protected by a perpetual site agreement under the Manufactured Homes (Residential Parks) Act 2003.
All of the homes are owner occupied and each owner is over 50 years old.
Community facilities available to home owners include: a fully air-conditioned community centre that contains a small library of videos and DVDs, dart boards, a large screen TV and a modern kitchen; a large covered area with a stage and seating which is wheelchair accessible; an outdoor pool; a lawn bowling green; and a covered BBQ facility.
The park has a social club which organises games, musical evenings and bus trips for park residents.
Each resident has telephone access to the park's management during normal business hours and a free call phone number for after hours emergencies.
The park is located close to: a petrol station and mini-mart; tavern and bottle shop; coffee lounge and takeaway food outlets; post office, general store and newsagency; pharmacy; and bus stop.
The park is within a 5-minute drive to a major shopping centre.
[3] The application is supported by the President of the park's residents' association.
[4] The park is one of several manufactured home parks in the Gold Coast/Tweed Heads area that specifically exclude persons under a certain age bracket. The applicants submit that persons under 50 years of age will not be disadvantaged by being excluded from the park because suitable accommodation and facilities already exist in the area. In support of that assertion, the applicants provided the following evidence:
The Bungalows, a manufactured home park at Reedy Creek, does not restrict the age of its residents and is comparable in size and the availability of amenities. Homes are available for sale or rent at The Bungalows for prices that are comparable to the prices charged for homes in the applicants' park.
As at 17 February 2011, there were 74 properties for sale in the Gold Coast area at a price comparable to the price charged for a home in the park.
As at 22 February 2011, there were 100 properties for rent in the Gold Coast area at a rental comparable to the rental charged for a home in the park.
[5] The applicants also submitted that the exemption application was not in conflict with the intentions of the Anti-Discrimination Act 1991 because the purpose of the park was to benefit restricted persons by providing: suitable, affordable housing and accommodation specifically for them; a safe and secure lifestyle; and community living with help nearby if a resident was injured.
[6] By letter of 24 May 2011, the Anti-Discrimination Commissioner advised that he had no objection to the granting of the exemption.
[7] I find that the accommodation and facilities offered by the park are generally attractive to persons over the age of 50. I am satisfied that restricting ownership of homes within the park to persons 50 years and over will be of benefit to persons within that age cohort.
[8] Even though restricting accommodation and use of the facilities in the park to person aged 50 and over will involve treating other persons younger than that cohort less favourably, I find that an exemption pursuant to s 113 of the Anti-Discrimination Act is appropriate:
The defence available under s 104 of the Act may not be sufficient to excuse the otherwise discriminatory behaviour of the applicants, given that persons over 50 are often still in the workforce and, therefore, not necessarily "retired" or "aged".
All owners of homes in the park are aged 50 or over. The residents have expressed a preference for a facility that restricts the age of their fellow residents and offers a particular lifestyle.
There is already recognition, for example in the Retirement Villages Act 1999, that seniors may have special accommodation needs which can be met by limiting available residential accommodation to older and retired persons.
Manufactured home parks provide an affordable option which is particularly attractive to older persons.
Some aspects of the park facilities are designed to support older persons and may not be attractive to a younger demographic.
It is of benefit to the community as a whole to have accommodation and facilities that meet the needs of the older members of the community.
[9] It is appropriate to grant the applicants an exemption from the operation of ss 45, 46, 76, 77, 82 and 83 of the Anti-Discrimination Act 1991 in respect to their ownership and operation of Burleigh Town Village, Township Drive, West Burleigh.
Palmpoint Pty Ltd [2011] QCAT 140