How should the Tribunal's discretion be applied?

[7] There is no guidance in the Act about when it is right to grant an exemption, but case law has established that when considering an application for exemption it is normally right to consider:-

• (a) whether it is appropriate and reasonable;

• (b) whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought, in other words whether the exemption is necessary to avoid contravening the Act;

• (c) whether the exemption is in the community interest;

• (d) whether any persons or bodies other than the applicant support the application;

• (e) whether an exemption can be granted to ensure maximum consistency with the legislation.[2]

[8] When considering the question posed in (a), (b) and (c) above, regard may be had to the preamble of the Act which gives its aims and objects. Of relevance are paragraph 1 which recognises the need to protect and preserve the principles of dignity and equality for everyone, and paragraph 7 which says that the Act intends to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity.

[9] The reference to "unfair discrimination" in paragraph 7 of the preamble suggests that in this case, one approach would be to consider the respective positions of the two groups, that is the under 50s and over 50s, upon the granting of the exemption or the refusal to grant it. Each group may be advantaged or disadvantaged depending on the outcome of that decision, and it would be relevant to decide whether the discrimination which would result from an exemption would be disproportionately unfair between the two groups.

[10] Such an exercise would not necessarily be conclusive however, because the Tribunal has been given an unfettered discretion to grant an exemption and that must mean that the Act's aims and objects may not be achieved if an exemption is granted.[3]

[11] In a nutshell, we need to consider whether the objects or purposes for which the exemption is sought are in the community interest and not disproportionately unfair, and if so whether an exemption is necessary to achieve those objects or purposes.

The objects or purposes for which the exemption is sought

[12] From the evidence submitted by the developer it is possible to identify two stated aims of the restriction of ownership of the dwellings to those aged 50 and over:-

• (a) to promote the social, economic, health and other needs of that group;[4] and

• (b) to provide an affordable residential option to an aging population.[5]

[13] It is said that aim (a) would be achieved by providing facilities, security and accommodation designed to support seniors in independent living. Social activities will be organised providing a satisfying and communal environment of likeminded individuals.

[14] The developer says that there will be an outdoor pool and spa, tennis court, bowling green, barbecue and entertainment areas, a communal garden and a community vegetable garden. There will be organised activities making use of these facilities, and there will be other activities organised such as arts and crafts, fishing and boating and community chess.

[15] The developer says that there would be clubhouse facilities including dining room, bar, library, large screen TV, recreation room and age appropriate gymnasium.

[16] The developer says that it is finalising a service agreement with RSL Care to provide an onsite health care programme in the Park. This would provide individualised in home services as required and this would be subsidised by the Government for those residents holding a health care card.

[17] The developer says that the siting of the Park is appropriate for those aged 50 and over. There are local services and facilities in close proximity to the Park which are appropriate to the over 50s age group.

[18] Most of the proposed dwellings will have two bedrooms and two bathrooms in an open plan style with a dining area and either a study nook or separate study. Most will be single story but there will also be 6 two storey and 12 split level dwellings.

[19] On the question of security, the site will have gated access with an intercom system. The site agreement will provide that residents must identify visitors prior to allowing access, and maintenance persons will be required to register in and out with Park management.

[20] There will be a live-in Community Manager.

[21] The developer intends to prohibit renting in the Park, allowing owner occupation only.

[22] Aim (b) is to provide an affordable residential option to the aging population. The retail price for the dwellings in the Park is to be $395,000 to $520,000. There is also a site rent payable.

[23] The evidence suggests however, that these prices are in the upper bracket for manufactured home parks.

[24] The developer says that if the age exemption is not granted it would not be able to offer the dwellings at this price. It says that this is because it would change its business model and build townhouses instead. These would be $50,000 more expensive.[6] However, the only explanation why the business model would have to be changed in this way if the age exemption were not granted is that the developer would be selling "on the open market" and not just to the over 50s.

[25] There were five respondents to the consultation exercise. All were in favour of the age exemption. The reasons given for support were generally that the respondents liked the security offered by a gated community and by a dedicated manager, and they liked the community facilities. It is notable that none of the respondents explained why they preferred to have the development restricted to those aged 50 and above.

[26] Support for the restriction to those aged 50 and above has also come from Councillor Donna Gates (Councillor Division 1 and Deputy Mayor for the City of Gold Coast). As a local elected representative her comments should be given considerable weight.

[27] She emphasised the suitability of the development for older persons in the area bearing in mind the local facilities and support services and the likelihood of continued increase in the over 50's age group. She was of the view that younger people would not be disadvantaged because there were other options for them locally.

Are the aims in the community interest and not disproportionately unfair?

[28] There are nine current age exemptions granted by the Tribunal in respect of manufactured homes sites. When granting one of these age exemptions in Re Caloundra Gardens Village Body Corporate Committee [2012] QCAT 98 Dr Bridget Cullen pointed out however, that each application must be considered carefully on a case by case basis. She said it does not mean that every application will succeed.

[29] In Re: Body Corporate for Village Green (Caloundra) No 1 CTS 22630 [2015] QCAT 101 Senior Member Stilgoe OAM refused an application for age exemption in the case of a manufactured home park because it was not shown that such an exemption would be in the community interest.

[30] In this case the developer's consultant's evidence shows that in the studied catchment area around the Park (a 20km radius), there are already 13 villages offering 1,838 dwellings promoted to retired and ageing persons, and there were more in the pipeline.[7] This is a penetration of 11% of the 65 plus population. This was stated to be "very high", and compared with a penetration of 8% of the 65 plus population in the South East of Queensland generally.

[31] For this reason the consultants advised that any further village development in the Park's catchment area would have to 'offer a unique product that meets the market, and not just another retirement or seniors village, to draw persons from the wider South Coast region'.

[32] This evidence suggests that there is already adequate provision of dwellings more suited to the older age groups in the area of the Park.

[33] On the question of disproportionate unfairness to other age groups, whilst it would appear that the design of the development would naturally make it more attractive to older persons (to which we refer below), it might also attract those under the age of 50 - in particular single people and young couples starting a family. The size of the dwellings however, would mean generally they would not be suitable for larger families.

[34] The developer has adduced evidence that accommodation and facilities for those under 50 is otherwise appropriately catered for in the area. The developer relies on reports and emails by Korda Mentha[8] and internet research.[9] These show that the vast majority of new dwellings being marketed within a 20 kilometre radius of the Park are available to all age groups and comparable in price to those in the Park. Councillor Gates supports this saying that there are a variety of dwelling types for this age group in the northern growth corridor.

[35] Judging from the statistics which we refer to in the next section, if no age exemption is granted it would appear that the take up in the younger age group is likely to be low. And a low level of take up seems likely if as the developer says, there is adequate provision for the younger age group in the area of the Park.

[36] Bearing in mind therefore the high level of penetration of dwellings designed for older persons in the area, and the likely low take up of dwellings in the park by younger people, it is difficult to say that allowing an age restriction by granting the age exemption would be in the community interest.

Is an exemption is necessary to achieve the aims?

[37] This is another matter which causes difficulty for the developer. It is quite unclear why an age exemption is needed.

[38] The size and type of dwellings proposed, the fact that they are within a gated village arrangement, and that the development includes community buildings facilities and activities, make these dwellings naturally more attractive to older people than to younger.

[39] This is borne out by the developer's own evidence given on 15 May 2015[10] where it is said that:-

The Applicant has not received any expressions of interests, or requests for information about the Park, from any prospective purchasers who are under the age of 50. This is illustrative of the expected outcome that persons under the age of 50 will have little or no interest in residing in accommodation marketed and designed specifically to cater for the needs of people who are aged 50 years and over.

[40] The Tribunal is informed that the above continued to be the case. By 21 August 2015, despite there having been over 100 requests for more information about the Park, not one of these was from a person under the age of 50.[11] This must be understood in the light of the fact that the development has become widely known and understood to be for the "over 50's"[12], but from the excerpt above it can be seen that the developer itself is of the view that the development will not attract many younger people.

[41] The fact that such developments tend naturally to attract the older sections of the community is supported by the statistics put in evidence by the developer. Excerpts from a consultant's aged care report from O'Hara Wells are relied on[13]. This report surveyed accommodation within a 20km radius of the Park promoted to retired and older persons. There are 6 villages operated under the Retirement Villages Act 1999 (Qld) with in total 606 dwellings, and 7 manufactured home parks with 1,232 dwellings. We note that the consultant was prepared to assume that both these types of dwellings were all, or mostly, occupied by older people.[14]

[42] For our purposes we note that none of the 7 manufactured home parks referred to just above were exempted from the age provisions of the Anti-Discrimination Act (the retirement villages do not need such exemption since they can limit residence to older members of the community and retired persons anyway[15]).

[43] The statistics in the O'Hara Wells report are also reflected in Queensland as a whole. This can be seen from the Department of Housing and Public Works survey of manufactured home parks of 2013, relied on by the Commission in its submissions.[16] This shows that only 2% of respondents to the survey who lived in manufactured home parks were aged below 55 and 88% were over 65.

[44] We have to allow here for the fact that many respondents to this survey will have entered the park years before, and also the survey relied on "self selection" (only those interested responded, being 6% of residents), but there is no reason to think that the response rate would differ much by age. The fact that the results are consistent with the statistics and views in the O'Hara Wells report, lead us to the view that the statistics can be relied on.

[45] The departmental survey disclosed that there were 168 manufactured home parks in Queensland. However, of those, we know that only 9 have been granted an age exemption by QCAT.[17] Therefore, the remaining 159 manufactured home parks have achieved the age demographic shown by the statistics because of other factors.

[46] These statistics demonstrate that even without a formal age restriction there is a very small take up of manufactured home parks by younger persons. Most likely, this happened naturally by the type and design of the dwellings, their situation, the facilities offered, and the marketing material.

[47] This is indeed the view expressed by the authors of the departmental survey:-

Residential parks have become de facto retirement villages and senior's lifestyle resorts for many older Queenslanders. People are attracted to the social aspects of park living, the security it provides, and the package of services typically included such as clubs, facilities, transport, and maintenance of shared areas. People are also attracted to the idea of lower ongoing costs, lack of exit fees, greater sense of independence and personal control, and higher degree of ownership compared to some other options for retirement living.

[48] In the circumstances, it is difficult to see why an age exemption is necessary in this case. The aims of the development to provide dwellings, lifestyle and environment for older persons at a reasonable cost does not require such an age exemption. Instead it can be achieved naturally, by the size and type of dwellings proposed, the gated village arrangement, the provision of community buildings facilities and activities, and if necessary by targeted marketing methods.

[49] The developer has expressed concern that it wishes to be able to promote the Park to the older population without contravening the Anti-Discrimination Act 1990.[18] We are confident that this can be done without contravening the Act. There would of course be a contravention if the developer treated an applicant for a dwelling less favourably on the basis of age (direct discrimination), or imposed an unreasonable terms on an applicant which had a disparate impact because of the applicant's age (indirect discrimination).

[50] There is also a suggestion in the developer's evidence that should the age exemption not be granted, it might have to apply for new development approval or an amendment of the existing approval from the Council of the City of the Gold Coast.[19] It is said that this is because the 'land use development approval is specific and conditional upon the age restricted nature of the proposed accommodation' because the specific land use is for "over 50's accommodation". We do not think that we should take into account such planning considerations in our determination of this matter.

[51] We conclude that it is neither in the community interest nor necessary to grant an age exemption from the provisions of the Anti-Discrimination Act 1991 in this particular case and we refuse this application.

[1] Submissions of 15 October 2015 citing the words used in the QCAT decision Re: Body Corporate for Village Green (Caloundra) No 1 CTS 22630 [2015] QCAT 101.

[2] These tests were identified from the cases by Walter Sofronoff QC, then President of the Queensland Anti-Discrimination Tribunal in Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21, and approved by the QCAT appeal Tribunal in Downer EDI Mining [2013] QCATA 276.

[3] A prospect contemplated in the helpful decision of the South Australian Equal Opportunities Tribunal in BAE Systems Australia Ltd [2008] SAEOT 1 at [49].

[4] paragraph 8(c) of the affidavit of David Gallagher sworn on 15 May 2015.

[5] paragraph 13(c) of the affidavit of David Gallagher sworn on 30 July 2015.

[9] paragraphs 50 to 52 of the affidavit of David Gallagher sworn on 15 May 2015.

[11] paragraph 4(d) of the affidavit of David Gallagher sworn on 21 August 2015.

[12] This can be seen from paragraphs 13 to 14 of the affidavit of Nicole Willis of Taylor Willis Pty Ltd sworn on 24 August 2015 and the exhibits thereto.

[14] This appears to be the premise upon which the penetration rates were calculated on page 4 of 40 of the report.

[15] section 26 Retirement Village Act 1999 (Qld).

[17] Commission's submission of 3 July 2015.

[18] paragraph 8(b) of the affidavit of David Gallagher sworn on 15 May 2015.

[19] paragraph 9 of the affidavit of Nicole Willis of Taylor Willis Pty Ltd sworn on 24 August 2015.