Bates v Seachange (Land) Pty Ltd as trustee [2012] QCAT 289

CITATION: Bates v Seachange (Land) Pty Ltd as trustee [2012] QCAT 289 PARTIES: Graham John Bates (Applicant) v Seachange (Land) Pty Ltd as trustee (Respondent) APPLICATION NUMBER: OCL123-11 MATTER TYPE: Other civil disputes matters HEARING DATE: 16 December 2011 HEARD AT: Brisbane DECISION OF: Dr B Cullen, Member DELIVERED ON: 9 July 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The Application is dismissed. CATCHWORDS: Manufactured homes – utility costs – Allconnex waste water charges Queensland Civil and Administrative Tribunal Act 2009, s 32 Manufactured Homes (Residential Parks) Act 2003, ss 99, 99A APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION Background [1] The Applicant, Graham Bates, is a retiree who, along with his wife Shona, resides in the Seachange Village in Arundel, on the Gold Coast. The Respondent is the owner of the Seachange Village which falls within the purview of the Manufactured Homes (Residential Parks) Act 2003 (“the Act”). -- 1 of 5 -- 2 [2] Mr Bates filed an Application in the Tribunal on 19 September 2011, alleging that the Respondent was billing him for Allconnex waste water charges in contravention of those sections of the Act that deal with utility costs. Following a compulsory conference, Mr Bates and Mr Philip Goodman (the Project Director for the Respondent), agreed to my resolving the dispute “on the papers” with the assistance of the written materials and submissions they had each filed in the Tribunal. Waste Water Charges and Allconnex [3] The dispute relates to the introduction of Allconnex waste water charges, commencing in January of 2011. Presumably, the introduction of Allconnex was not without challenges, as the government has since enacted the SEQ Water (Distribution and Retail Restructuring) and Other Legislation Amendment Act 2011. This Act will permit the Gold Coast Council (amongst others) to establish its own council water businesses. It is likely that this will result in further billing changes for these parties. [4] When Gold Coast waste water billing was taken over by Allconnex, the effect was that waste water charges no longer formed part of the council rates notices. Pursuant to the parties’ Site Agreement, the site rent paid by Mr Bates includes “outgoings” as that term is defined in the “Dictionary” portion of the Site Agreement. Relevantly, “outgoings” includes the cost of “all municipal (federal, state or local) rates, taxes, charges and other levies payable”. [5] Following the introduction of Allconnex, as waste water charges were no longer part of the council rates notice, the Respondent began passing along the cost of the waste water to Seachange residents as a “utility”. Section 9 of the parties’ Site Agreement “Utilities Charges” requires: (a) The Home Owner must pay electricity, gas, water and other utilities charges for the Site Area: (i) if charged directly to the Home Owner, to the relevant authority or supplier on time; or (ii) if the same is supplied by the Park Owner, to the Park Owner within seven (7) days of being billed. (b) If the Park Owner installs (or has installed) separate meters for the Site Area, the Home Owner must pay any relevant meter rental when required. [6] It is not disputed that at Seachange Village, water meters exist, and that these meters measure the water usage of individual residents. It is also not in dispute that the waste water charges incurred by individual residents have been fixed at 80% of the water usage for each individual property. Therefore, waste water is capable of separate measurement, at least on the basis of the billing formula for waste water utilised by Allconnex. -- 2 of 5 -- 3 [7] At the time that the parties entered into their Site Agreement, Allconnex did not exist, and the waste water charges disputed appeared on the Gold Coast City Council rates notices. There was no scope for the Respondent to pass these charges along under the Act while these charges were part of the municipal rates. Importantly, at this point in time, the Gold Coast City Council billed a flat fee for waste water. [8] On the Respondent’s behalf, Mr Goodman explained that once Allconnex extended its tentacles into the water arena, the Respondent was simply unable to absorb the hugely increased costs of waste water. [9] For his part, Mr Bates is understandably peeved that there has not been a corresponding reduction in his site rental, on account of the waste water fees now being passed along to the home owners. Mr Bates says that this is “double dipping” by the Respondent, and that home owners should not be expected to pay an additional charge with no additional benefit. The Parties’ Site Agreement [10] Mr Bates relies upon Section 3.5.2 of the Site Agreement, which states: “Where the site rent includes utility charges (e.g. gas, water, electricity) and separate metering is introduced or where, through no fault of the home owner, a utility stops being available, the site rent should be reduced by the amount factored into the site rent for the utility charge. If there are any disputes about the amount involved, the matter may be determined by the Tribunal.” [11] Following on from this, the resolution of this dispute requires a determination as to whether the “site rent” paid by home owners prior to Allconnex included “utility charges” as that term is understood within the context of Section 3.5.2 of the Site Agreement. [12] “Site rent” is defined in Section 5 of the Site Agreement by reference to what the set rate of $155.00 per week includes. Namely, it includes 2 persons, with an additional charge to be applied for additional persons, and also includes “outgoings” as that term is defined (and as explained, above). [13] Section 6 of the Site Agreement contains a “Table of costs for utilities and services,” and reflects that electricity, gas, water, telephone, and mowing are not included in rent. In such circumstances, and now that waste water is no longer part of “council rates,” I cannot see any lawful basis to prevent the Respondent from recovering those waste water charges that are capable of separate measurement. [14] It seems to me that “waste water” is now a service akin to electricity and gas, and that the effect of Allconnex’s birth is to make what was once part of “council rates” a utility instead. It also appears that after disbanding Allconnex, the Gold Coast City Council intends to issue separate waste -- 3 of 5 -- 4 water notices to rate payers1, and will not be including the waste water as part of the council rates as it did in the past. Again, this suggests that waste water is now being treated as a separate utility. Decision [15] For these reasons, I find that the Respondent is entitled to charge home owners for waste water that is capable of separate measurement. Having made this decision, however, I do share Mr Bates’ view that home owners residing in manufactured home parks are not enjoying particularly fair treatment with respect to waste water charges. [16] The reason for my saying this relates to the rates that are applied for waste water charges – residential rates are significantly lower than commercial rates. The current provisions of the Act allow, as explained above, manufactured park owners to pass along the cost of waste water to home owners. [17] Self evidently, the home owners residing in manufactured parks are not engaged in commercial enterprises. Most are trying to carefully manage a limited income to facilitate coverage of basic living expenses. In this case, the Respondent’s classification was changed from “residential” to “commercial” following a Land Court Decision2. The decision to reclassify the land at Seachange Village as “commercial” was made on the basis that there is a sales office located onsite at Seachange Village. [18] Sections 99 and 99A of the Act endeavour to ensure that home owners are not unfairly charged for utility services, by requiring utility charges to be separately measured or metered (and I consider waste water here to be capable of separate measurement), and in not allowing park owners to profiteer in passing along utility charges. [19] However, the Act is silent on the issue of commercial versus residential charges, and simply makes reference to generic utility charges. “Utility” is defined (relevantly) to include “water,” “sewerage” and “another service prescribed under a regulation” within the Schedule to the Act. I would consider “waste water” to fall within the ambit of this definition. [20] Insofar as waste water charges are concerned, it makes absolutely no sense to me that the provisions of the Act do not prevent park owners from passing along charges to home owners that are commercial in nature. That is, however, the effect of the Site Agreement here, and it may well be that Gold Coast Council officials and state legislative officers have simply not had this inequity drawn to their attention. [21] As one of the objects of the Act is to “protect home owners from unfair business practices,”3 it would be ideal if, as a consequence of this 1 http://www.goldcoast.qld.gov.au/t_standard2.aspx?pid=10135. 2 Seachange GC Pty Ltd v Chief Executive Officer, Gold Coast City Council [2010] QLC 113 (10 August 2010). 3 Manufactured Homes (Residential Parks) Act 2003, s (4)(1)(b). -- 4 of 5 -- 5 decision, consideration could be given to the interplay between commercial waste water charges and the Act, such that the matter is clarified for both park and home owners. Order [1] The Applicant, Mr Bates’, Application is dismissed. -- 5 of 5 --