Savannah FNQ Developments Pty Ltd

[2016] QCAT 141

CITATION: Savannah FNQ Developments Pty Ltd [2016] QCAT 141

PARTIES: Savannah FNQ Developments Pty Ltd (Applicant)

APPLICATION NUMBER: ADL101-15

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 11 April 2016

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application for exemption is refused.

CATCHWORDS:

ANTI-DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF AGE – where manufactured home park – where residents predominately over 50 – where desire to limit future residents to people over 50

Anti-Discrimination Act 1991 (Qld) s 7(d), s 7(f), s 77, s 82, s 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

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).

REASONS FOR DECISION

1. Savannah FNQ Developments Pty Ltd (‘Savannah’) operates Savannah Lifestyle Resort in Mareeba, a complex of 170 homes. The resort is set up under the Manufactured Homes (Residential Parks) Act 2003 (Qld). It has a Council development approval as “Retirement Village – Ancillary Uses”. The first resident entered the complex in 2009. All of its current residents are over the age of 50.

2. Savannah wants to restrict the age of owners and residents to people aged over 55 years. That restriction is discrimination based on age.[1] It may be an unlawful discrimination in the disposition of land[2] and/or the provision of accommodation[3]. Therefore, Savannah filed an application for exemption from the operation of the Anti-Discrimination Act 1991 (Qld) (‘the Act’).

   [1]Anti-Discrimination Act 1991 (Qld), s 7(f).

   [2]Ibid, s 77.

   [3]Ibid, s 82.

3. 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 consider[4]:

   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;

   d)    and whether there are other non-discriminatory ways of achieving the objects or purposes for which the exemption is sought.[5]

   [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.

4. Savannah filed forty-seven letters from residents who support of the application. If that was the only criterion, I might be inclined grant the exemption. The exemption is certainly in the interest of the current residents, but that is not the test. I have to consider whether the exemption is in the community interest.

5. I have a letter from the CEO of the Mareeba Shire Council, noting that Mareeba has become an increasingly attractive destination for retirees due to its climate, good health services and proximity to an international airport. The CEO notes that the Council approved Savannah’s application in 2008 because there was a very real need for retirement-based development in Mareeba, it prevented the migration of retirees to Cairns and attracted new residents to the area.

6. The Queensland Regional Profiles for the Tableland region, published in January 2016, shows that over 5000 people, or 20.6% of the region’s population, is aged over 65. In Queensland generally, 14.0% of the population is over 65. This demonstrates that the Tableland region has a higher than average elderly population. Those 5000 people appear to be serviced by only 196 residential care places and 87 community care places. Clearly, there is a need for additional aged care facilities. I am satisfied that an exemption is in the community’s interest.

7. If I do not grant the exemption, then people under the age of 55 will be able to live in, and own, homes in Savannah Lifestyle Resort. 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.

8. I also have difficulty with the fact that Savannah has been operating as a defacto retirement village for almost six years but only now is there is perceived need for an exemption under the Act. Savannah has not explained what circumstances have recently changed and why these changes led to this application.

9. The last matter that I must consider is whether there is a non-discriminatory way of achieving the same purpose as the application. In the Retirement Villages 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.

10. The Council approved a “retirement village”. In a publication entitled “Tablelands Futures Corporation”, the Council acknowledged the need for “retirement specific accommodation”. I accept the need for retirement accommodation in Mareeba but Savannah FNQ Developments Pty Ltd, its residents, want the benefit of a retirement village without the burden. That is not a valid reason for an exemption under the Act. There is a non-discriminatory way to achieve the purpose for which the exemption is sought and that is to bring the village within the Retirement Villages Act 1991 (Qld). The application for an exemption is refused.