Age restriction rule allowed

Tribunal decision overturned by Appeal Panel

In our 2020 edition of Outasite we reported on the challenge by a home owner to a new community rule introducing an age restriction at Tweed Billabong Holiday Park. The operator wanted to introduce the following rule:

Age Restriction

The age restriction for the community is that a person must be at least 55 years of age to occupy a residential site. A homeowner must not allow a person to occupy a residential site unless that person meets the age restriction.

Home owners at Tweed Billabong did not want the rule introduced for a number of reasons: (i) they believed it to be discriminatory; (ii) home owners should have the freedom to choose who lives with them; and (iii) Tweed Billabong is a holiday park used mainly by families with young children. Home owners thought the rule unfair and nonsensical in such a situation. The Tribunal agreed with the home owners and found the rule was inconsistent with the Anti Discrimination Act 1977 NSW (ADA) and that it was not fair nor reasonable nor clearly expressed as required by the Residential (Land Lease) Communities Act 2013 (RLLC Act). The rule was set aside.

The operator appealed the decision of the Tribunal and the Appeal Panel heard the matter on 18 June 2020. The decision of the Appeal Panel was handed down on 23 December 2020.

The Appeal Panel decision

In a long and complex decision, the Appeal Panel determined the rule was not inconsistent with the Anti Discrimination Act (ADA) and that any conduct done in compliance with the rule is 
not unlawfully discriminatory.

Firstly, the Appeal Panel interpreted the relevant provision of the ADA to mean that conduct is unlawful “if that conduct involves a person who provides a service and who refuses to provide another person with those services or provides services but on terms which discriminate on the ground of age.” The Appeal Panel said “This means that the Rule itself is not unlawful, rather conduct in conformity with the Rule may be unlawful.”

Section 54 of the ADA provides that anything done by a person is not unlawful if it was necessary for the person to do it in order to comply with a requirement of any other Act, any regulation, ordinance, by-law, rule or other instrument made under any such Act. The Appeal Panel considered whether a Rule made under the RLLC Act was a rule for the purposes of section 54 of the ADA. It determined that it was and that consequently “any conduct done in compliance the Rule made under the RC Act [RLLC Act] is not unlawfully discriminatory and therefore, the Rule is not “inconsistent” with the ADA within the meaning of s 87 of the RC Act”.

The second question the Appeal Panel considered was whether the Tribunal was wrong to find the rule was not clearly expressed. The Tribunal had made this finding because home owners had argued the meaning of “occupy” was unclear. The Appeal Panel disagreed and said that “the word “occupy” has no technical meaning and is easily understood to include “reside”.”

Finally, the Appeal Panel considered whether the rule was fair and reasonable. The home owners had argued that it was not because it applied only to home owners. The effect of the rule would be that home owners could not allow anyone under the age of 55 years to occupy their site but there could be a family with small children in a holiday cabin next door, or in the next street. The home owners said that, to be fair and reasonable, the rule had to apply to everyone in the community. Once again, the Appeal Panel disagreed with the Tribunal. In reaching this position the Appeal Panel said “Community rules relevantly only apply to residents, occupants and invitees of a resident: s 92”. The Tenants’ Union respectfully disagrees with this finding because s 92 also requires the operator to try to ensure compliance with community rules by “any employees of the operator and any other persons who are in the community at the operator’s invitation”. The Act would not contain this additional requirement if it was intended that community rules apply only to residents.

The home owners were very disappointed with the decision of the Appeal Panel, but after seeking legal advice on the merits of a further appeal they decided to accept it.

What does this mean for residents?

The new rule does not apply to home owners who were already living at the community when it was introduced; the challenge to its introduction was to protect future home owners. Unfortunately, the challenge failed and new home owners and their occupants must be over 55 years of age despite the community being a holiday park marketed at families with young children. We agree with the home owners, an age restriction rule in such communities is nonsensical.

This article was published in Outasite magazine issue 7. Outasite is published annually. Outasite Lite email newsletter, is sent several times a year – subscribe here. All past issues are available in the archive.