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Miami Recreational Facilities Pty Ltd[2017] QCAT 253

Miami Recreational Facilities Pty Ltd[2017] QCAT 253

CITATION:

Miami Recreational Facilities Pty Ltd [2017] QCAT 253

PARTIES:

Miami Recreational Facilities Pty Ltd

(Applicant)

APPLICATION NUMBER:

ADL033-17

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

26 July 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

Miami Recreational Facilities Pty Ltd is exempt from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute referred to in section 7(f) of the Act from 27 July 2017 to 26 July 2020 in respect of the occupation of units at the property known as Miami Village Residential Complex situated on land comprised in seven plans being GTP428, GTP531, GTP530, BUP3994, BUP4093, BUP4130 and BUP 4291.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION ON THE BASIS OF AGE – where further period of exemption sought from age discrimination provisions – where accommodation for persons over 50 years of age – where no change in circumstances – where no evidence of decline in availability of affordable housing in particular area – whether non-discriminatory way to achieve same result – where previous findings of need for exemption – where not fair to residents to not grant a further exemption because of a recent shift in emphasis of Tribunal decisions and after exemptions have been granted on three previous occasions, without proper notice

Anti-Discrimination Act 1991 (Qld), s 7(f), s 45, s 46, s 77, s 81, s 82, s 83, s 113

ABC Business Australia Pty Ltd ATF ABC50plus Trust [2013] QCAT 719

Burleigh Town Village Pty Ltd and Anor [2011] QCAT 646

Ghostgum Developments Pty Ltd ATF Coomera Development Trust [2015] QCAT 500

Miami Recreational Facilities Pty Ltd [2013] QCAT 635

Palmpoint Pty Ltd [2011] QCAT 140

Re Body Corporate for Village Green (Caloundra) No 1 CTS 22630 [2015] QCAT 101

Savannah FNQ Developments Pty Ltd [2016] QCAT 141

APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

What is this Application about?

  1. [1]
    On three previous occasions, the Tribunal has exempted Miami Recreational Facilities Pty Ltd from the operation of the Anti-Discrimination Act 1991 (Qld), to allow it to discriminate on the basis of age in providing accommodation services and in disposing of interests in land.[1]
  2. [2]
    Miami has applied to the Tribunal to extend the exemption for a further period of five years. Although Miami has had no change in circumstances, the Anti-Discrimination Commission Queensland has expressed concerns.

What are the relevant considerations?

  1. [3]
    The Tribunal may grant an exemption from the operation of a specified provision of the Act.[2] Relevant considerations[3] not in dispute were:
    1. (a)
      Miami has operated the complex as an accommodation facility with the same facilities and services for persons over 50 years of age since 1980;
    2. (b)
      The complex comprises 134 units sub-let to 200 residents;
    3. (c)
      All residents are aged between 53 years and 106 years;
    4. (d)
      Community facilities include: a community hall for bingo, indoor bowls, craft, darts, table tennis and snooker; a heated swimming pool; a croquet lawn; a bowling green; a golf putt green; a tennis court; two gazebos and barbecue areas; a boat ramp; a caravan storage area;  and a plant nursery;
    5. (e)
      The complex provides “for the needs of residents in their senior years by providing affordable accommodation and associated facilities coupled with the the association of like minded people of similar ages in such circumstances and which are of benefit to all residents which are not usually available to them in the general community;”[4] and
    6. (f)
      The general community “is well served by nearby accommodation and in particular one complex located in the same street has 60 accommodation units and another 230 accommodation units”.[5]
  2. [4]
    Complex residents support restricting the age of residents.

What about the Commission’s concerns?

  1. [5]
    The Commission was concerned about housing affordability and submitted strong grounds were needed to limit affordable housing by imposing age restrictions.[6] The Commission cited reports by the Senate and the Department of Housing relating to housing affordability.[7] However, the Commission did not provide evidence of current availability of affordable housing on the Gold Coast.
  2. [6]
    As noted above, Miami submitted that the general community is well served by nearby accommodation including large complexes in the same street. Without evidence of any decline in the availability of affordable housing on the Gold Coast,  the Tribunal finds no basis to depart from its previous finding of ready availability of affordable housing in and around the complex and in the wider area of the Gold Coast.[8]
  3. [7]
    The Commission was also concerned to ensure that homes and facilities cater for an ageing demographic.[9] However, the Commission did not provide specific evidence of Miami not catering for its age demographic. The uncontested evidence is that Miami provides care services to attend the complex on a regular basis to assist residents.
  4. [8]
    The Commission also queried the public interest in segregating people on the basis of age and noted that temporary exemptions should not be used to circumvent existing legislation or government policy.[10] Certainly, recent Tribunal decisions have emphasised non-discriminatory ways to achieve the same result in shifting away from granting exemptions.[11] The Tribunal has in particular refused applications for exemption that effectively seek de facto retirement village status without the commensurate responsibilities:

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 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).[12]

  1. [9]
    However, unlike these recent Tribunal decisions, the Tribunal has exempted Miami on three previous occasions. The Tribunal has previously accepted that the proposed exemption does not conflict with the purpose of the Act and that the community would not be disadvantaged.
  2. [10]
    This means that residents have purchased into the village based on the age restriction and other age related benefits. People have arranged their affairs and made significant investments in the belief that the village caters only for residents aged over 50 years. I therefore do not consider it would be fair to residents to not grant a further exemption because of a recent shift in emphasis of Tribunal decisions and after exemptions have been granted on three previous occasions, without proper notice.
  3. [11]
    Since the lapse of the most recent exemption, no complaints have been made to the Tribunal[13] and the evidence and submissions are essentially the same. With that evidence continuing, there is no reason to depart from the Tribunal’s previous findings. This includes limiting the exemption to three years, because of recent Tribunal decisions curtailing the availability of exemptions and the changing availability of accommodation.[14]
  4. [12]
    Both Miami and its residents are now on notice that the Tribunal may not grant future exemptions if other non-discriminatory ways are available to achieve the purpose of providing age specific accommodation.    

What is the appropriate Order?

  1. [13]
    The appropriate Order is that Miami Recreational Facilities Pty Ltd is exempt from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(f) of the Act from 27 July 2017 to 26 July 2020 in respect of the occupation of units at the property known as Miami Village Residential Complex situated on land comprised in seven plans being GTP428, GTP531, GTP530, BUP3994, BUP4093, BUP4130 and BUP 4291.

Footnotes

[1] Exemption application re: Miami Recreational Facilities Pty Ltd, Application EXE06/113; Miami Recreational Facilities Pty Ltd, Application ADL012-10; Miami Recreational Facilities Pty Ltd [2013] QCAT 635.

[2] Anti-Discrimination Act 1991 (Qld), s 113.

[3] Burleigh Town Village Pty Ltd and Anor [2011] QCAT 646, [2], citing with approval Palmpoint Pty Ltd [2011] QCAT 140.

[4] Application for exemption filed 29 March 2017.

[5] Ibid.

[6] ADCQ submissions dated 9 June 2017, 2.

[7] Ibid.

[8] Miami Recreational Facilities Pty Ltd, Application ADL012-10, [13].

[9] ADCQ submissions dated 9 June 2017, 3.

[10] ADCQ submissions dated 9 June 2017, 3.

[11] ABC Business Australia Pty Ltd ATF ABC50plus Trust [2013] QCAT 719; Re Body Corporate for Village Green (Caloundra) No 1 CTS 22630 [2015] QCAT 101; Ghostgum Developments Pty Ltd ATF Coomera Development Trust [2015] QCAT 500; Savannah FNQ Developments Pty Ltd [2016] QCAT 141.

[12] Re Body Corporate for Village Green (Caloundra) No 1 CTS 22630 [2015] QCAT 101, [14].

[13] Application for exemption filed 29 March 2017.

[14] Exemption application re: Miami Recreational Facilities Pty Ltd, Application EXE06/113, [7].

Close

Editorial Notes

  • Published Case Name:

    Miami Recreational Facilities Pty Ltd

  • Shortened Case Name:

    Miami Recreational Facilities Pty Ltd

  • MNC:

    [2017] QCAT 253

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    26 Jul 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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