Evidence indicated that the park owners are head lessees of the premises. The applicant stated that park owner paid to its lessor a small rent per site. Neither party gave evidence of running or other outgoings for the facility.

It was agreed that the previous several rent increases had been at a rate greater than the general rate of inflation in Australia. It was also common ground that the rent prior to the present increase had been set by consent of both parties after a process of negotiation.

The applicant tendered a list made available by the Australian Bureau of Statistics ("the ABS") indicating that the Consumer Price Index ("the CPI") for Sydney had increased by 1.3% in the twelve months to the September quarter 2007. The applicants also drew the Tribunal's attention to subsection 58(2A) of the Act (relating to the Sydney CPI as a park owner's no-dispute right of rent increase).

The respondent contended that if the CPI were relevant it should relate to the period between changes in the rent, namely December to December. The respondent also contended that a more appropriate index to consider is the published Property Index, which over 2007 has increased 9.7%. It was also submitted that the Australian Reserve Bank and the Department of Treasury had both in written statements assessed the "underlying rate or inflation" for Australia in early 2008 as 3.8%.

After considering all the evidence the Tribunal found on the balance of probabilities as follows:

There is one residential park located in Port Macquarie which offers a means of comparison of rent.

The photographs of that park tendered to the Tribunal indicated a generally lower standard of amenity as compared with the subject premises; its roads and kerbs (if any) are not finished or maintained to the evident superior standard of the subject premises, and the standard of upkeep and general appearance of tenants' residences is lower.

The above comparison leads to a conclusion that if such comparison were to dominate the present decision, rents at the subject premises would be higher than at the Port Macquarie premises.

The value of the residential premises has not changed since the last rent increase, and for the purposes of the present considerations is not relevant.

The parties having agreed by their conduct that the rent as agreed in the circumstances at the time of the previous rent increase was fair, the Tribunal finds that any perceived unreasonableness in previous rent increases (if any) had been resolved at that time. Accordingly the Tribunal finds it fair and reasonable to assess this application in the light of any changes since the last increase.

The Tribunal is not bound in these circumstances to adopt the Sydney CPI as the measure of fairness (s.58(2A)) as the respondent had not sought that level of increase envisaged as the trigger to invoke that subsection.

1. The Tribunal having considered which index if any is relevant in these particular circumstances of the case declines to adopt the 1.3% contended by the applicant; in any case, it applies to a period not contiguous with the period between actual rent increase dates. The Tribunal also declines to adopt the Property Index as it includes elements (such as real estate commission rates) not in the opinion of the Tribunal relevant to the true costs of operating the park nor, in this case, of the holding costs or opportunity cost of the land itself.

2. Rather, the Tribunal finds that the underlying rate of inflation best reflects the general cost and income movements in the period between rent increases applicable to both parties.

Taking all the above into consideration the Tribunal concludes as follows:

1. Rent at the subject premises was prior to the present notification of rent increase, fairy based at a level as high as, or higher but nor lower than, rents at the Port Macquarie residential park presented in evidence.

2. The appropriate, fair and equitable assessment of rent increase, given the agreed fairness of the previous rent level, and given the unchanged and high standard or the residential park, should reflect the true change over the relevant period - December 2007 to December 2008 - of cost of living on average in Australia, being the underlying level of inflation, that is, 3.8%. In the opinion of the Tribunal this fairly reflects, as is evident on the face of the statistic, the most likely historical increase in costs to the park owner and capacity of the tenant to pay.

An order is thus made for an increase of that amount, 3.8%.

The Tribunal viewed the construction site, and heard argument as to the noise, traffic interruption, dust and vibration effects which have allegedly arisen in the course of the lengthy - as yet unfinished - construction of new sites in the area adjacent to the existing residential park. The Tribunal also inspected what it found to be minor cracks in the premises of Mr and Mrs Auld, who are nearby residents within the residential park.

The applicant contended that the effect of the construction work was sufficiently severe to warrant a significant reduction in rent arising from a reduction in services, being the right to quiet enjoyment, and also contended that dust had from time to time caused dirt etc. to settle in the applicant's premises. The park owner contended that the effects had been significantly exaggerated by the applicant, and that the construction work had always been carried out carefully and with due regard to the rights and sensibilities of tenants. Further, the park owner stated that only a small number of similarly located tenants had ever complained during or after work was carried out.

Having considered evidence from both parties, and taking into consideration its view of the location and configuration of the construction work, the Tribunal considers that a reduction in rent would be out of all proportion to the loss of amenity or inconvenience as evidenced. However the Tribunal finds that over a lengthy period and, from the physical evidence, for some months to come, the applicant has and may in the future suffer minor non-economic loss due to the work.

The Tribunal has power to award damages for non-economic loss. Having considered the evidence it makes an order for such loss in this circumstance in the amount of $100.00.