Body Corporate for Village Green (Caloundra) [2015] QCAT 101

CITATION: Re Body Corporate for Village Green (Caloundra) No 1 CTS 22630 [2015] QCAT 101 PARTIES: Body Corporate for Village Green (Caloundra) No 1 CTS 22630 (Applicant) APPLICATION NUMBER: ADL034-14 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 23 February 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for exemption is refused. CATCHWORDS: ANTI-DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF AGE – where body corporate – where residents predominately over 50 – where desire to limit future residents to people over 50 Anti-Discrimination Act 1991 (Qld) ss 7(d), 7(f), 77, 82, 113 Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198 City of Brunswick; Re Application for exemption from provisions of Equal Opportunity Act (1992) EOC 92-450 Re Caloundra Gardens Village Body Corporate Committee [2012] QCAT 98 J & D Richards Developments Pty Ltd [2005] QADT 13 APPEARANCES This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Village Green Caloundra is a complex of 64 homes conveniently located in Golden Beach, close to the hospital, shopping centre, local tavern and the beach. All of its current residents are over the age of 55. The committee of the body corporate wants to restrict the age of owners and residents to people aged over 55 years. That restriction is discrimination based on age1. It may be an unlawful discrimination in the disposition of land2 and/or the provision of accommodation3. Therefore, the body corporate filed an application for exemption from the operation of the Anti-Discrimination Act 1991 (Qld). [2] Section 113 of the Act gives the tribunal power to grant an exemption from the operation of specified provisions of the Act. In considering whether to grant an exemption, the tribunal must consider4: a) whether any other persons or bodies other than the applicants support the application; b) whether the exemption is in the community interest; c) the effect of not granting the exemption; and whether there are other non-discriminatory ways of achieving the objects or purposes for which the exemption is sought5. [3] Fifty-eight of the sixty-four residents have signed a pro forma letter in support of the application. If that was the only criterion, then I should grant the exemption. However, I have to consider whether the exemption is in the community interest. It is certainly in the interest of the current residents, but that is not the test. [4] The Older People Statistics filed with the application do not support a finding that the community benefits from quarantining older people, or people over the age of 55, in their own community away from the general population. They simply recite that older people have a diverse range of needs, interests, health and income and, therefore, enjoy a diverse range of lifestyle and accommodation choices. [5] The body corporate submits that the current by-laws make it difficult for a younger person to live in the community. It submits that a younger person would still be employed, and therefore need a second car which cannot be accommodated in the Village. That submission relies on two assumptions – that a younger people are employed when people over 55 are not and that the employed person must drive to work. There is simply no evidence to support either proposition. 1 Anti-Discrimination Act 1991 s 7(f). 2 Ibid s 77. 3 Ibid s 82. 4 Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198. 5 City of Brunswick; Re Application for exemption from provisions of Equal Opportunity Act (1992) EOC 92-450. -- 2 of 4 -- 3 [6] The body corporate states that younger people do not need to access the accommodation in the Village because there is a sufficient number and variety of free standing houses in the Caloundra area that can cater to this need. I have no evidence to support that proposition. [7] The body corporate also states that Caloundra is known for its family friendly environment and any person under the age of 50 can find more suitable accommodation than the Village. Again, there is no evidence to support that submission. [8] The body corporate submits that there are no playgrounds or any supporting facilities for children with parents under the age of 50. Because no specific information was provided to me, I have no idea what facilities exist in the Village. The aerial photos filed with the application do show, however, that the Village is adjacent to a large sporting facility that, presumably, could cater to the needs of active children. [9] The body corporate seems to suggest that people over 50 cannot be the parents of children. I assume, for the purposes of this discussion, that is a reference to young, or non-adult, children. The submission as framed is, in fact, an application for exemption on the basis of parental status6, rather than age. Again, this submission is not supported by any evidence. [10] I have not been provided with any evidence to support a finding that the exemption would be in the community interest. [11] If I do not grant the exemption, then people under the age of 55 will be able to live in homes in the Village. The residents express concerns about the noise and disruption that young residents may bring to the Village. That, in itself, is not a reason to grant the exemption. [12] The body corporate relies on a previous decision of Re Caloundra Gardens Village Body Corporate Committee7 to support this application. The circumstances are very different. Caloundra Gardens once was a retirement village, so residents had an expectation that it would be a facility catering for older residents. This body corporate was formed in 1998, with no restrictions on its use or the demographic of its residents. The only indication that this Village might have been intended for retirement living is a one page promotional document, which is undated and simply refers to the concept of “freehold retirement units”. [13] The body corporate also refers to the exemption granted in J & D Richards Developments Pty Ltd8. Again, the circumstances were quite different. The applicant in that case was proposing a new manufactured homes park, not seeking an exemption for a pre-existing facility. The difference is important. All the residents in the J&D facility were able to make investment decisions in the certain knowledge that they were buying into a 6 Anti-Discrimination Act 1991 s 7(d). 7 [2012] QCAT 98. 8 [2005] QADT 13 (J&D). -- 3 of 4 -- 4 retirement community. Any purchaser of a home in this Village who conducted proper searches must have known that the Village never had the legal or operational structure that brought it within the retirement village regime. [14] That leads me to the last of the matters that I must consider when determining this application; whether there is a non-discriminatory way of achieving the same result. In the Retirement Village Act 1999 (Qld), Queensland has a sophisticated regime for creating residential complexes that cater for the needs of its older citizens. The regime is expensive to set up and expensive to run, but that is because it provides residents with certain protections. The residents of this Village want the benefit of a retirement village without the burden. That is not a valid reason for an exemption under the Anti-Discrimination Act. The application for an exemption is refused. -- 4 of 4 --