Victorian Civil and Administrative Tribunal|2003-12-08

Lifestyle Communities Pty Ltd [2003] VCAT 2013 (8 December 2003)

Anti-Discrimination - exemption - community housing for people aged 50 and over - whether application premature - application of Retirement Villages Act 1986, and Residential Tenancies Act 1997 - Equal Opportunity Act 1995 s83.

Pursuant to section 83 of the Equal Opportunity Act 1995 (Vic) this Tribunal orders-

2. That the Applicant has liberty to make a fresh application to the Tribunal in respect of the proposal which was the subject of the present application, addressing the issues raised by the Tribunal in its reasons for decision dated 8 December 2003.

[1] The decision is that the application be dismissed but that the company has liberty to reapply in relation to this proposal once it has obtained material and advice I have mentioned in my reasons. My reasons are these.

[2] Lifestyle Communities Pty Ltd, ("the company") has applied to this Tribunal for exemption from the Equal Opportunity Act 1995, ("the Equal Opportunity Act") to enable it to provide to people who are over 50 accommodation in its community developments.

[3] By directions dated 6 November 2003 the Tribunal required the company within a set time to publish notice of the application in the Herald Sun newspaper and then to provide to the Tribunal further material in support of the application. The directions set out certain issues which that supporting material had to address. Those issues concerned the nature of the proposal itself and whether or not it was contemplated that the proposal would fall within certain specified legislation.

[4] The notice to be published in the newspaper was to be in a form specified in the directions. The notice invited the public to make submissions about the application to the Tribunal on or before a given date. I now have before me the additional material including a coy of the advertisement as published in accordance with the Tribunal's directions. Also, I have the original application. I have heard submissions on behalf of the company.

[5] I am satisfied that no one has responded to the advertisement making submissions either for or against the application either to the Tribunal or to the applicant. At the end of the oral hearing of submissions I said that I would reserve my decision to enable me to consider, among things, whether it would be possible to grant the exemption subject to appropriate conditions and also to consider the application of the legislation mentioned by the company in its written and oral submissions.

[6] I first summarise the material before me. I then say something about the principles to be applied when considering applications for exemptions. I then consider whether this exemption should be granted at the present time.

[7] The company wishes to establish what it says are affordable independent living communities in Victoria for those who are over 50. It proposes that the first community will be established in Melton and would include some 240 accommodation units. These would be residential accommodation units. It intends that the units will be occupied on a long term basis. Apart from the age range, there will be restriction on who can occupy the units. Those who occupy the units may be in the workforce or retired. The community is not a nursing home or a hostel type accommodation. It will not include facilities to house those who have become unable to care for themselves, and need hospital or nursing home care or other special supported accommodation.

[8] It is intended that each community will have common areas intended for general use by unit holders for communal social functions, recreation, entertainment and other group activities. The community will also have services provided to it as a whole, such as hairdressing services and swimming pools and sporting facilities such as bowling greens. Security services such as security video surveillance at the entrances will be provided to the community as a whole. Common areas and units will be designed so that they can be occupied by those who use support, such as walking sticks and walking frames.

[9] This community development proposes to meet the needs of those who prefer to live in a community with those of a similar age group to themselves; who wish to live in an area which is secure and caters for any mobility difficulties they may have; who want the provision of supporting facilities close by and where those who propose to occupy this facility, do not themselves have to provide separately for their own security or have to seek out communal facilities or recreation.

[10] The community developments aim to attract those to wish to live at a slower pace in a more peaceful environment. The developments aim to provide affordable accommodation which will suit the needs of those who wish to sell their larger homes and move to smaller but secure accommodation, or who wish to sell their homes and use some of the proceeds for lifestyle or other purposes, and to move to more affordable accommodation, or for those who cannot afford to buy into the more expensive community group housing developments. The company believes that the needs of this group are currently unmet or partially met only by available housing. The company also believes that as Australia's aging population increases, so will this group.

[11] The company wishes to develop ten to 12 such communities with the next five years. It anticipates that each community development will be operated by the company and will have homes at a density of approximately 18 to 20 homes per hectare. Each home unit will be approximately ten to 12 squares in area. Each will have an open carport. The common facilities for use by the whole community will include a recreation area and library, a TV lounge, a common hall, a cinema, a kitchen and various other communal facilities.

[12] A person who wishes to live in this community development must purchase from the company what the company calls a manufactured home. The home will be located on an area of land which is then leased to the home owner by the company under a lease of up to 99 years. It is clear that the company intends that the lease will be for a very long term. The company will have the right as landlord to terminate the lease because of misconduct by the tenants, such as damage to the property of others or violence to other community residents, but the landlord will not have the right to terminate the lease without giving a reason. The tenants' rights to terminate the lease are unclear.

[13] It appears that there will be what the company calls an entry fee of between $100,000 to $200,000. The exact fee will be fixed, taking into account median house prices in the area in which the particular community development is located and it is expected that the prices will be somewhere between 60 and 75 per cent of the median house price in the particular area. It seems that part of this amount will be attributable to the purchase of the manufactured home and part may be rental payable under the site lease, but this is still unclear, as is also the percentage of each component of this price that will be attributable to the total price. The resident will be obliged under the site lease to pay a fortnightly fee towards the communal services and facilities and the landlord or lessor will have the right to terminate the site lease if this fee is not paid.

[14] The way in which the units will be constructed is this. The home units will be built with a steel sub-floor structure and have a single skin, but they will be insulated.

[15] The company does not intend the site lease to contain options for renewal, either by the lessor or the lessee. The material mentions a rent of $100 a week, but it is unclear whether this rent relates to the site lease, or whether it represents a charge for the use of common facilities or for the provision of common services such as electricity, and also a charge to pay a person whom the company proposes to appoint as manager of the development.

[16] The company anticipates that there will be resident involvement in the management of the community centres, either by an annual meeting of residents or once the community becomes large enough, through a residents' committee. The maintenance of the common areas at the community centre will ultimately be the responsibility of the company, but this maintenance will be funded from the payments I have earlier mentioned. There will also be a sinking fund to provide for continuous upkeep of the community facilities.

[17] The company will provide each proposed resident, before the resident signs any documents, with disclosure statements and full documentation. It is clear from the material before me that the precise form of the site lease and of the mechanism for involving residents in the operation of the community centre is still to be clarified.

[18] It is clear from the material before me that the company believes and has structured its proposal on the basis of its belief that the Residential Tenancies Act 1997, ("the Residential Tenancies Act"), will apply to the site lease and that Part 14 of that Act will apply to the construction of the manufactured homes and that the Retirement Villages Act 1986 ("the Retirement Villages Act"), will not apply to the development. The company believes that the Residential Tenancies Act will provide the necessary benefits and protections to those who come to live in its community developments. A resident who wishes to leave the community development would sell the manufactured home and transfer the site lease to the purchaser of the home. The company's consent as lessor, to the transfer of the site lease would be required.

[19] I now deal with the law. Under s 83 of the Equal Opportunity Act there is a broad discretion in the Tribunal to grant exemptions from the provisions of the Act. The Tribunal discussed the principles applying to this discretion, originally in a case called Stevens v. Fernwood Fitness Centre, reported (1996) EOC 92-782. It has applied the principles which it there discussed in many subsequent cases. What the Tribunal has said is that it first looks at whether there is a possible breach of the Equal Opportunity Act. If there is not, there is no need to go further. If there is a possible breach of the Act then the Tribunal looks at whether the exemption will promote one of the objectives of the Act, whether it is consistent with the underlying scheme of any of the express exception provisions, although those may not exactly apply to the particular situation, and whether there is some underlying public interest which will justify the granting of the exemption.

[20] I now apply the law to the material as I have summarised it. In my view there is a possible breach of the Act involved here. There is a possibility that the conduct here will involve age discrimination. There are numbers of express exception provisions in the Equal Opportunity Act which permit the application of age based restrictions in particular fields. I mention some of these.

[21] Section 55 of the Act provides that the Act does not apply among other things, where welfare accommodation is provided for those of a particular age, and a person who is not in that particular age range is refused that accommodation. Section 72 of the Act provides that the Act does not apply to discriminatory provisions in pensions. Section 81 of the Act permits benefits and concessions based on age. Section 82 of the Act permits the provision of special benefit services and facilities to those with a particular attribute, for example, age, either to meet their special needs or to redress a disadvantage suffered by them in certain areas.

[22] What underlies these exception provisions is that they cover conduct for the benefit of the people with the particular attribute. I should mention s.47(2) which provides that s.47 of the Act which prohibits discrimination in the disposal of land, does not apply to the disposal or offering of a leasehold interest in land for the purpose of accommodation. In my view it is not so clear that this exception applies that I should not go on to consider this exemption further.

[23] First, the exemption relates to the disposal of a leasehold interest in land or the offering of a leasehold interest in land, not the creation of such a leasehold interest. Second, it is not clear from the material whether in fact the relevant documentation will create an interest in land rather than a mere occupancy right. On this basis then, I go on to consider the application further.

[24] It is clear that apart from the matters which I shall shortly mention, the developments to which this application relates, meet an unmet or partially met community need, and in that sense they are for the general benefit of the particular section of the community. They will provide a housing choice of a kind that at the moment, the community does not have. This is a choice which others who are 50 or below, will not have. But in my view there are so many other housing options available to these people that this factor does not create such an overriding disadvantage that it outweighs the benefits I have just mentioned.

[25] But there are two factors which lead me to dismiss this application in its current form and at this time.

[26] The first is that in my view it is premature. The exact form of the site lease and of the mechanism for community involvement in the community facilities has not been worked out. It is unclear whether the amount payable on becoming a resident relates to the purchase of the manufactured home, the site lease or both. What happens to the site lease if the lessee sells or disposes of the manufactured home is also unclear. In particular, it is unclear in what circumstances the lessor might refuse consent to the transfer of the lease to the new owner of the manufactured home. The circumstances in which either party can terminate the lease are unclear.

[27] It is also unclear what happens if the lessee dies. If the lease is a true lease and creates an interest in the particular land, that interest would be disposable as part of the estate of the lessee. There is no suggestion in the application that the company intends to prevent a person from possessing and using the site, where the lessee's interest has passed to that person under an intestacy or by will, whether or not that person is aged over or under 50. Indeed, there would need to be exceptional circumstances in my view, to permit such a restriction to occur, given that under the Equal Opportunity Act there is an express provision that the prohibitions on discrimination in the disposal of land do not apply to disposal by gift or will. It would appear to be the intention of parliament here, as shown in this provision, which is s.48, not to interfere with a person's freedom of disposition by will.

[28] It is also unclear what opportunity the site lessee will have to sublease.

[29] The proposal then needs to be revised and clarified and then a fresh and more comprehensive application for exemption can be made.

[30] The second factor is what I consider to be the company's fundamental misunderstanding of the application of relevant legislation to this proposal.

[31] I deal first with the application of the Retirement Villages Act. This Act provides various protections for those who live in retirement villages. They can be summarised in this way. The status of the land as a retirement village is noted on title. When a retirement village owner and a proposed resident enter into a contract under which the person is to reside in the village, an enforceable residency right is created which runs with the land. When a resident pays a contribution on or before becoming a resident of a retirement village, a charge is created over the retirement village land to secure the refundable part of that contribution.

[32] The Act contains provision for the involvement of residents through annual residents' meetings and residents' committees. The Act also deals with maintenance charges and their increase. The Act requires disclosure statements and documentation to be given before a resident's contract is entered into. The Act defines a retirement village as a community, the majority of which are retired people and at least one of whom, before or on becoming a resident, pays or is required to pay, an ingoing contribution.

[33] Here, the company clearly believes that the Retirement Villages Act does not apply. But in my view this may well be incorrect, at least in the case of some of the community developments. If an up front amount is payable on or before entry as a resident, and that amount is not directly related to the purchase of the manufactured home, or so far exceeds the cost of the manufactured home and any reasonable return, that it can be said not to genuinely relate to the purchase of that home, either in whole or in part, the amount may well be characterised as an ingoing contribution. Even though there is no requirement by the company that residents be retired people, if in fact the majority of residents in a community development are retired people, the Retirement Villages Act may well apply. It will then be misleading of course for the company to tell residents or proposed residents that the Act did not apply, and also of course the company would be in breach of the Act if it did not afford the protections for which that Act provides.

[34] I then come to the Residential Tenancies Act. The company assumes that the Residential Tenancies Act applies to the site lease, but if the site lease is for a term of more than five years and does not contain a provision under which either the landlord or the tenant may terminate the lease on notice, otherwise than for breach, and that relates to the period of five years from the date on which the lease is made, the Residential Tenancies Act may not apply to the site lease. (See s.6). If the Residential Tenancies Act does not apply to the site lease, the lessee is deprived of the many protections given by that Act, concerning matters such as obligations, including repairs, rents and charges, termination and other matters.

[35] Because VCAT would then have no jurisdiction to grant relief under that Act, one could not come to VCAT for these kinds of relief.

[36] In my view it would be impossible for the Tribunal, whatever conditions it placed on the exemption which it granted, in these circumstances to create a system of protection equivalent to that given under the Residential Tenancies Act.

[37] It is also clear that the company believes that the manufactured homes are regulated by Part 14 of the Residential Tenancies Act. That part applies to moveable dwellings and caravan parks. Section 3 of the Act defines moveable dwelling as, "A dwelling that is designed to be moveable but does not include a dwelling that cannot be situated at and removed from a place within 24 hours". The same section defines caravan park as, "An area of land on which moveable dwellings are situated for occupation on payment of consideration, whether or not immoveable dwellings are also situated there".

[38] First, on reading the material before me, it is unclear if the dwelling which the company proposes to sell to those who wish to come into these community developments, is a moveable dwelling. If these dwellings are not, then s.517 of the Residential Tenancies Act which dis-applies all but a few of the provisions of the Building Act 1993, will not apply, and the dwellings will be subject to normal building regulations. Even if they are moveable dwellings, the amount payable for them may be characterised as the price for the purchase of the manufactured home itself, rather than consideration for its occupation, so that the community development may not constitute a caravan park, but in the meaning of the Residential Tenancies Act. If this is so, many of the regulations made under Part 14 which relate to caravan parks will not apply, because this is not a caravan park.

[39] In addition, if the site lease is a tenancy agreement to which the Residential Tenancies Act applies, and if this development is also a caravan park within the meaning of that Act, consideration will need to be given as to how the differing provisions of the Residential Tenancies Act relating to tenancy agreements and residency rights in caravan parks might apply and how any conflict might be resolved.

[40] These matters will need to be clarified before disclosure statements and documentation can be finally prepared for the information of potential residents. I note in passing that the company may also need to check relevant planning legislation and whether as it suggests in its material, the whole of such a community development will be singly rateable, even though site leases are in place.

[41] The uncertainty of the application of the relevant legislation and the danger that benefits and protections of some of the laws may not apply, leads me to conclude that the proposal as currently formulated in the material before me is not so clearly for the benefit of the age group to which it is targeted, that I should grant the exemption at this time.

[42] Given the number and importance of the legal issues involved and the amount of work that will be needed to address them before a fresh application can be formulated, I conclude that it is appropriate to dismiss the application at this time and to give liberty to the company to make a fresh application when it has more fully prepared its documentation and has considered the legal issues which I have raised.

[44] It is a complex matter. I will take transcript and send you a copy so that this can be taken into account at a future time.

Opportunity Act 1995

Lifestyle Communities Pty Ltd [2003] VCAT 2013 (8 December 2003)

At a glance

Court

Decision date

Source

Judgment (48 paragraphs)

Lifestyle Communities Pty Ltd [2003] VCAT 2013 (8 December 2003)

Legislation Cited (3)