Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village and Tourist Park [2017] NSWCATCD 57 Hearing dates: 29 June 2017 Decision date: 03 August 2017 Jurisdiction: Consumer and Commercial Division Before: W Priestley, General Member Decision: 1. The application is dismissed. Catchwords: Utility charges, electricity, sewerage Legislation Cited: Residential (Land Lease) Communities Act 2013, sections 6, 76, 77, 156, 157, schedule 2 clauses 5 and 15. Residential (Land Lease) communities Regulations 2015, clauses 10, 11 and 12. Residential Parks Act 1998 (repealed), sections 36, 37 and 39. Residential Parks Regulations 2006 (repealed), clauses 16 and 17. Electricity Act 1964 (Qld) Cases Cited: Emmetlow Pty Ltd t/as Colonial Village v Pomroy [2015] QCATA 131 Category: Principal judgment Parties: Margaret Reckless – applicant Silva Portfolios Pty Ltd t/as Ballina Waterfront Village and Holiday Park- respondent Representation: Ms El Gazaar, Advocate from the Northern Rivers Tenants Advice and Advocacy Service on behalf of the applicant. Ms Barry, Solicitor, Heydons Lawyers Byron Bay on behalf of the respondent: File Number(s): RC 17/11073 Publication restriction: Nil REASONS FOR DECISION The application 1. In her application lodged on 24 February 2017, the applicant seeks the following; 1. An order declaring that an additional term of the agreement is void; 2. Access to bills or other documents to be provided in relation to utility charges payable by homeowners to the operator; and 3. An order resolving a dispute concerning an operator's compliance with ensuring unimpeded vehicular access to homes in the community at all times. 1. Order (a) relates to the imposition of a sewage charge on the applicant by a notice dated 10 December 2015, which the applicant has subsequently paid. The applicant contends this charge is not payable, because it was not payable under the Residential Parks Act 1998 ("the old Act"), or the residential site agreement, and cannot be imposed after the Residential (Land Lease) Communities Act 2013 ("the Act") commenced on 1 November 2015. 2. The applicant's purpose for seeking access to documents about utility charges (order (b)), was to enable her to determine if she had been overcharged for electricity by the respondent. At a directions hearing on 29 March 2017, the Tribunal ordered the respondent to provide those documents to the applicant. At a further directions hearing on 26 April 2017, the Tribunal granted leave to the applicant to include in her application a claim for reimbursement of electricity charges, for which she alleges she has been overcharged. The basis of the applicant's challenge to the electricity charges imposed by the respondent, is that the charges have been calculated by reference to the "standing offer" per kilowatt hour ("kWh") provided by the local energy provider, Origin Energy, when they should be calculated by reference to an average of the varying rates the respondent is charged by Origin Energy. The applicant alleges the method of calculating the charges, results in amounts that are greater than those charged by Origin Energy to the respondent, and this is prohibited by section 77 (3) of the Act. 3. At the hearing on 29 June 2017, the parties resolved the issue about access (order (c)), and advised the Tribunal no orders needed to be made about that. The hearing 1. At the hearing, the parties relied on documents and written submissions they had lodged with the Tribunal and given to each other, in accordance with directions made by the Tribunal. Due to the large number of documents, it is not practicable to list all of them, and only documents of significant importance are specified. Both parties gave additional oral evidence at the hearing. All of that evidence, and the written submissions, have been taken into account by the Tribunal in reaching its findings and decision. jurisdiction 1. The Tribunal has jurisdiction to hear and determine the application under section 157 of the Act and sections 28 and 29 of the Civil and Administrative Tribunal Act 2013. EXTENSION OF TIME 1. The applicant sought an extension of time, as there was a delay of about 12 months in lodging the application. The Act requires the application to have been made within three months, and time started to run from 10 November 2015 when the applicant was advised of the imposition of the sewerage charge. The applicant's reason for the delay was that although she had doubts about the validity of the charge (and the amount charged for electricity), she sought information from the operator in early 2016, and then advice from the Northern Rivers Tenants' Advice and Advocacy Service in mid 2016. That service then made further investigations, and conducted research on the applicant's behalf, before lodging the application in February 2017. There was some delay in obtaining documents from the respondent, and the service has limited resources and a large workload. The respondent's representative, while opposing an extension of time, conceded there was no prejudice caused to the respondent by the late lodgement of the application. The Tribunal finds there is delay is reasonable, there is no prejudice to the respondent, and the time for lodging the application is extended until 24 February 2016, under section section 41 of the Civil and Administrative Tribunal Act. Findings 1. The essential facts are not in dispute. The interpretation of various sections of the Act and the old Act, and the meaning of clauses relating to utility charges in the residential site agreement between the parties, are in issue. The residential site agreement 1. The applicant entered into a site agreement with the respondent on 2 April 2014 (pages 1- 23 of the respondent's documents). The initial term was for 12 months, and the agreement has, in accordance with clause 1, continued on the same terms since. 2. Clause 4 of the site agreement relevantly says the park owner agrees to pay, in connection with the residential site, for electricity and water, other than electricity and water the resident agrees to pay. 3. Clause 5 says; "The resident agrees to pay, in connection with the residential site: 5.1 any electricity charges agreed to in clause 6 of this agreement (if that clause is not crossed out) or in any other provision of this agreement, and 5.2 for gas, and 5.3 for one of the following classes of water charges: 5.3.1 excess water charges if the site is individually metered, by the relevant water supply authority in accordance with the Plumbing and Drainage Code of Practice or, if that Code of Practice is not in effect, in a manner that meets the requirements of a water supply authority that operates in the area in which the residential site is located, or 5.3.2 any charge for water consumption agreed to in clause 7 of this agreement (if that clause is not crossed out) or in any other provision of this agreement, or Residential Parks Regulation 1999 Standard form residential site agreement (where tenancy is for a term of 3 years or less) 5.3.3 from 1 January 2000, all charges for water consumption, if the site is individually metered in compliance with the regulations, the resident is billed directly by the water supply authority or by the park owner in accordance with the Residential Parks Act 1998, the charge for water is calculated according to the metered amount of water consumed and there is no minimum charge payable, and 5.4 any excess garbage or sanitary charge .(emphasis added). 5.5 – 5.7 are not reproduced. 1. Clause 6 says; "The resident agrees to pay all electricity charges in connection with the residential site where; 6.1 The residential premises are individually metered in compliance with the Code of Practice for Electricity Supply to Long-term Residents of Caravan Parks prepared by the Department of Energy, and 6.2 any charges for the supply or resupply of electricity to the resident are calculated in accordance with the Code (whether by reference to a published domestic tariff or otherwise.)" 6.3 and 6.4 are not relevant and have not been reproduced. 1. Clause 7 says; "The resident agrees to pay for all water used in connection with the residential site where: 7.1 the residential site is individually metered in accordance with the Plumbing and Drainage of Practice (sic), or if the Code of Practice is not in effect, in a manner that meets the requirements of a water supply authority that operates in the area in which the residential site is located, and 7.2 the resident is billed either directly by the water supply authority or by the park owner in accordance with section 39 of the Residential Parks Act 1998, and 7.3 the charge for water is calculated according to the metered amount of water consumed and there is no minimum charge payable." 1. Additional terms to the site agreement were agreed, including an additional term numbered 4 which says "Electricity is charged in accordance with the Local Electricity Authorities (sic) Published Domestic Tariff. The monthly service fee is payable if no electricity is used." (Page 18 of the respondent's documents). 2. "Further Additional Terms" to the agreement were also included, which fix the method of determining increases of rent, by reference to the age pension rate for a couple, divided by 2.095 (page 23 of the respondent's documents). The electricity charges 1. The applicant paid electricity charges to the respondent before and after the Act commenced. The respondent charges the applicant for electricity by reference to two components. The first component is calculated by measuring through the meter at the applicant's home, the amount of electricity consumed, then multiplying that amount by the standing offer per kilowatt hour ("kWh") provided by the local energy provider, Origin Energy, to exempt energy suppliers. 2. The second component is a daily supply charge. The applicant does not dispute this component, so there is no need to comment on it further. 3. The applicant's residential site is separately metered for both water and electricity, and was separately metered before 1 November 2015. There is no allegation those meters have not been installed, or do not operate in accordance with, the relevant regulatory requirements. The electricity meter is not a "smart" meter, in that it does not differentiate between electricity consumed at different times and at different prices, such as "off-peak", "shoulder" and "peak". The respondent takes a reading from this meter on a monthly basis, and then calculates the charge and issues an account to the respondent. To illustrate by example, the Origin Energy Price Fact Sheet effective from 1 July 2016 (page 48 of the respondent's documents) states the standing offer for usage of the first 10.9589 kWh of domestic use, is at a price of 26.62 cents per kWh. The corresponding account given to the applicant for the period 1 December 2016 to 31 December 2016 (page 44 of the respondent's documents), shows her meter recorded usage of 166 kWh, which has been charged at 26.62 cents per kWh for a monthly total of $44.19. Added to this is the daily supply charge (which is not disputed) of $22.44. The total is $66.63. 4. The respondent has a smart meter connected to the electricity mains coming into the community, which measures the total amount of electricity being consumed in the community. The power which is measured, includes power provided through the respondent's private network to the various homes in the community, and also to community facilities and common areas, such as street lighting, the swimming pool, power to the communal toilets. Power is also provided to holiday or short term sites of which, according to the evidence of the respondent's operator, Ms Christine Silva, there are "six or seven". There are 70 residential sites in the community. 5. The respondent receives monthly electricity bills for the power supplied to it by Origin Energy. As well as setting out the charge for the electricity passing through its meter under the heading "Energy Charges", the bill sets out the myriad "Network" charges that are also imposed on the respondent. These charges are for use of the network to get the electricity to the respondent's meter. There are then 10 further types of charges in a third category, which appear under the heading "Other". 6. Again, to illustrate by example, and using the period 1 December 2016 to 31 December 2016, the respondent in an account issued on 3 January 2017, was charged a total of $3,574.05 by Origin Energy (unnumbered document in respondent's first folder of documents refers). The first component – "Energy Charges" - has been imposed at the "Peak" rate of 6.2377 cents per kWh for 2094.395 kWh, at an "Off Peak" rate of 4.2107 cents per kWh for 7246.282 kWh, and at a "Shoulder" rate of 6.2377 cents per kWh for 4639.749 kWh. GST is then added and the total is $797.58. Under the second component "Network", 7 different charges are imposed which total $2186.14. Under the third component "Other", the ten different charges total $590.23. The sewerage charge 1. By notice dated 10 December 2015 ("the notice"), the respondent advised the applicant a sewerage charge was being introduced from 1 November 2015, in addition to the existing charge for water (the notice is at page 50 of the respondent's submissions). Prior to that, only water consumed and measured by the meter at the applicant's home, had been charged. The notice tells the applicant the charge has been introduced "as per your agreement" which I infer is the residential site agreement. It also advises the charge is calculated by multiplying the amount of water used by the relevant discharge factor (50%) charged by Ballina Shire Council. This is the same method the Council uses to charge the respondent a sewerage charge. 2. Ballina Shire Council does not charge residential properties volumetric wastewater (sewerage) charges, but does charge those properties a water access charge based on the water meter size (page 26 of the applicant's documents refers). The Law 1. The relevant sections of the new Act for determining this dispute are as follows. 6 Application of Act to site agreements (1)This Act applies to all site agreements, whether existing immediately before or coming into existence after the commencement of this section, unless a provision of or under this Act provides otherwise. (2) Where this Act applies to a site agreement, it so applies despite the terms of the agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section. (3) This Act applies to a site agreement until it is terminated in accordance with this Act. 76 Limit on amounts payable by home owner (1) The only fees and charges that may be required or received by the operator of a community from a home owner in connection with the occupation of a residential site, or the use of any of the facilities of a community, are as follows: (a) site fees, including site fees payable in advance as permitted under section 57, (b) the cost of registering or recording the site agreement under the Real Property Act 1900 if any fixed term period exceeds 3 years, (c) a refundable deposit for a key or any other opening device to access the community, not exceeding $25 or another amount prescribed by the regulations, (d) other fees, charges and deposits required or permitted by this Act or the regulations. (2) The regulations may require or permit payment of fees, charges and deposits that are specified or of a kind specified by the regulations and, in particular, may (but need not) provide that they are not payable by a home owner unless required by the site agreement to be paid by the home owner. (3) An operator of a community must not require or permit the payment of any fee, charge or deposit from a home owner in contravention of this section. Maximum penalty: 20 penalty units. 77 Utility charges payable to operator by home owner (1) This section applies if, under a site agreement, the home owner is required to pay utility charges to the operator for the use by the home owner of a utility at the residential site. (2) The home owner cannot be required to pay for the use unless: (a) the use is separately measured or metered, and (b) the operator gives the home owner an itemised account and allows at least 21 days for the payment to be made. (3) The operator must not charge the home owner an amount for the use of a utility that is more than the amount charged by the utility service provider or regulated offer retailer who is providing the service for the quantity of the service supplied to, or used at, the residential site. Maximum penalty: 20 penalty units. (4) The regulations may: (a) provide for a maximum utility charge payable by home owners to the operator, and (b) create an offence for an operator to request or receive more than that maximum charge (if any). (5) The regulations may provide that a service availability charge for electricity payable by home owners to the operator of a community is to be discounted in accordance with the regulations where less than 60 amps are being supplied. Applications to Tribunal relating to disputes 156 Applications to Tribunal relating to disputes (1) A home owner, former home owner or operator of a community may apply to the Tribunal for determination of any of the following: (a) a dispute relating to a right or obligation under this Act, (b) a dispute arising from, or relating to, a site agreement or collateral agreement, (c) any other matter that may be determined by the Tribunal under this Act. (2) An application to the Tribunal must be made within the period (if any) specified in this Act or prescribed by the regulations. Orders that may be made by Tribunal 157 Orders that may be made by Tribunal (1) The Tribunal may, on application by a party to a dispute or other matter before the Tribunal, or in any proceedings under this Act, make one or more of the following orders: (a) an order that restrains an action in breach of this Act or a site agreement or collateral agreement, (b) an order that requires a person to comply with an obligation under this Act or a site agreement or collateral agreement, (c) an order that relieves a party to a site agreement or collateral agreement from the obligation to comply with a provision of the agreement, (d) an order for the payment of an amount of money, (e) an order for the payment of compensation, (f) an order that a party to a site agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement, (g) an order that requires payment of part or all of the site fees payable under a site agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined, (h) an order that requires site fees paid to the Tribunal to be paid towards the cost of remedying a breach of the site agreement or towards the amount of any compensation, (i) an order directing an operator to give a former home owner or person authorised by a former home owner access to a residential site or home on the site for the purpose of recovering goods of the former home owner, (j) an order for anything else necessary or desirable to resolve a dispute. (2) An order under subsection (1) (a) or (b) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available. (3) The Tribunal must not make an order for: (a) the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or (b) the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section. (4) An order for the payment of compensation to a party is not to be made for loss or damage to the extent the loss or damage could have been avoided or limited by taking reasonable steps to mitigate the loss or damage. (5) A provision of this Act that enables a resident to apply for a determination by the Tribunal and the Tribunal to determine a matter or make an order also applies, where appropriate, to a former resident. (6) The Tribunal does not have jurisdiction to award compensation for damages arising from personal injury. (7) Except as provided by subsection (6), nothing in this section limits the orders that the Tribunal may make under this Act. Note : This Act also confers other order-making powers on the Tribunal, including other specific powers to make termination orders and to declare that a residential site has been abandoned. 1. Schedule 2 of the Act sets out its savings and transitional provisions. Clause 5 and 15 of that schedule are relevant. "5 Existing agreements (1) Agreements entered into under the repealed Act that have not been terminated remain valid after the commencement of the relevant provisions of this Act. Note : Accordingly, an existing agreement continues without the need to sign a new agreement once this Act commences. (2) Without limiting subclause (1), a term of an agreement entered into under the repealed Act that provides for the increase of site fees by a fixed method (however expressed) remains in force after the commencement of the relevant provisions of this Act. (3) A residential site agreement, moveable dwelling agreement or NPWS agreement (other than an excluded agreement) in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a site agreement between the resident (as or on behalf of the home owner) and the park owner (as operator of the community in which the home is located). (4) An excluded agreement in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a tenancy agreement. (5) This clause does not validate a term of an agreement entered into under the repealed Act that was void under that Act. (6) In this clause: "excluded agreement" means a moveable dwelling agreement or NPWS agreement under which a resident occupies a home that is owned by the park owner. "moveable dwelling agreement" means an agreement of a kind referred to in clause 5 (1) (c) or (d) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act. "NPWS agreement" means an agreement of a kind referred to in clause 5 (1) (e) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act." 15 Fees and charges (1) Any fees and charges which were validly paid or received under the repealed Act are not affected by this Act. (2) Any new fee or charge permitted by this Act does not apply to any agreement entered into before the commencement of the relevant provisions of this Act. (3) Fees for late payment of utility charges are not payable for utilities unpaid at the commencement of the relevant provisions of this Act. 1. Regulations 10, 11 and 12 of the Residential (Land Lease) Communities Regulations 2015 are also relevant. 10 Sewerage charges payable by home owner (1) This clause applies to residential sites: (a) at which water and sewerage services are provided to the operator by a water supply authority, and (b) at which water use is separately measured or metered but at which sewerage use is not separately measured or metered, but only where: (c) the water supply authority charges for water and sewerage services separately, and (d) the water supply authority specifies a sewerage discharge factor to calculate the sewerage use (however described) either in the bill or in another reasonably accessible way. (2) If, for a particular period, the operator of a community has paid or is liable to pay the charges levied by the water supply authority for sewerage services in respect of residential sites to which this clause applies, those sites are exempt from the operation of section 77 (2) (a) of the Act, subject to the condition set out in subclause (3). (3) The condition is that the operator: (a) may only charge the home owner of a residential site to which this clause applies an amount for sewerage use calculated by multiplying the volume of water used during the particular period as indicated by the water meter reading for the residential site by the relevant discharge factor, and (b) must not require payment of an amount for sewerage use in respect of the period concerned that is not calculated in accordance with paragraph (a). 11 Maximum service availability charge generally (1) The maximum service availability charge payable, in respect of any period, by a home owner to the operator for the provision of a utility (other than electricity) at a residential site is the service availability charge for the period billed to the operator by the utility service provider or regulated offer retailer for the provision of the utility to the community in which the residential site is located divided by the number of residential places in the area of the community. (2) In this clause, "residential places" in the area of the community means all the following sites which are located in that area and in relation to which the operator is billed: (a) residential sites as defined in the Act, (b) other sites (if any) connected to the relevant utility which: (i) are used or are ordinarily used for accommodation, or are intended to be used for accommodation, or (ii) are, or ordinarily are, or are intended to be, the subject of any arrangements referred to in section 7 of the Act. 12 Maximum service availability charge-water and sewerage Despite clause 11, the service availability charges payable by a home owner to an operator of a community for both water and sewerage must not exceed $50 in total for all those service availability charges payable by the home owner in any calendar year. 1. The relevant sections of the old Act are; "36 Park owner to pay council rates, land tax and other charges (1) It is a term of every residential tenancy agreement that the resident will pay: (a) all gas charges in connection with the residential premises that the regulations require the resident to pay, and (b) all excess water charges payable in connection with the residential premises, but only if the residential site is individually metered by the relevant water supply authority in accordance with the regulations, and (c) those charges, or those parts of charges, for electricity and water that are required to be paid by the resident under this Division (including any charges that the resident agrees to pay under the agreement), and (d) any other charges prescribed by the regulations. (2) It is a term of every residential tenancy agreement that the park owner will pay all other rates, taxes or charges payable in connection with the residential premises. 37 Resident may agree to pay certain electricity charges (1) The park owner and resident under a residential tenancy agreement may agree that it is a term of the agreement that the resident will pay electricity charges (including availability charges, but not including installation costs) in connection with the residential premises, if: (a) the residential premises are individually metered, in compliance with the relevant code, and (b) any charges for the supply or resupply of electricity to the resident are calculated in accordance with the relevant code, and (c) the resident is provided with a receipt for any amount paid to the park owner for electricity consumption or availability, and that receipt is separate from any rent receipt provided to the resident or is identified separately on the rent receipt, and (d) the resident is issued with accounts that comply with this section, and with any relevant provisions of the relevant code that are not inconsistent with this section. (2) However, a resident who is required to pay the park owner an amount for electricity consumption or availability under such a term is not required to pay an amount that is greater than either: (a) the amount calculated in accordance with the relevant code, having regard to the resident's electricity consumption, or (a1) the maximum amount that a person who consumed the same amount of gas or electricity would have to pay if the person were in other residential premises (not in a residential park) in the same locality, or (b) any maximum amount prescribed by the regulations. (3) Any account issued to a resident in relation to electricity charges must contain details of the following: (a) the name of the resident, (b) the date of the account, (c) the date of the second meter reading in respect of which the account is issued, (d) the second meter reading in respect of which the account is issued, (e) the previous meter reading, (f) the number of days in the meter reading period, (g) the method by which the charge for electricity was calculated (showing total electricity consumption and appropriate rates), (h) the total amount payable, (i) any other matter required by the relevant code. (4) It is a term of every residential tenancy agreement that the park owner will pay all electricity charges in connection with the residential premises other than those that the resident agrees to pay, and is required to pay, under this section. (5) A resident who is required to pay any amount under this section is entitled to inspect any records of the park owner that relate to the payment of electricity charges by the resident. (6) In this section, "the relevant code" means: (a) in relation to gas, the code prescribed by the regulations for the purposes of this paragraph with respect to gas, and (b) in relation to electricity, the code prescribed by the regulations for the purposes of this paragraph with respect to electricity." 39 Resident to pay certain charges for water (1) It is a term of every residential tenancy agreement that the resident must pay all water consumption charges and water availability charges in connection with the residential premises, if the residential premises are individually metered in a manner that complies with the regulations and: (a) the resident is billed either: (i) directly by the water supply authority, or (ii) by the park owner in accordance with this section, and (b) the resident is not liable to pay a minimum charge. (2) If the resident is billed by the park owner, the amount that the resident is required to pay in relation to water consumption charges is the lower of the following amounts: (a) the amount that the resident would have been required to pay for water consumed if the resident were a direct domestic customer of the relevant water supply authority, (b) the amount prescribed by the regulations. (2A) If the resident is billed by the park owner, the amount that the resident is required to pay in relation to water availability charges is the lower of the following amounts: (a) the amount paid by the park owner in relation to the water availability charges for the park divided by the number of residential sites in the park, (b) the amount prescribed by the regulations. (3) If a resident is billed by the park owner: (a) the resident must be billed at the same frequency as the park owner is billed by the relevant water supply authority, but may be billed more frequently if the parties so agree, and (b) the bill provided by the park owner must include: (i) the last meter reading taken before the bill was issued, and (ii) the last meter reading before that (if any), and (iii) the amount of water supplied during the billing period, and (iv) the charge per unit of water. (4) The park owner must provide a resident who has paid any water consumption charges or water availability charges to the park owner with a receipt that is separate from any rent receipt provided to the resident or is identified separately on the rent receipt. (5) Nothing in this section affects a resident's obligation under section 36 (1) (b) to pay any charges for excess water consumption in connection with the residential premises, in circumstances where the residential site is individually metered by the relevant water supply authority. (6) A resident who is required to pay any amount under this section is entitled to inspect any records of the park owner that relate to the payment of water charges by the resident. 1. The relevant regulations under the old Act are: "16 Gas and other charges payable by resident: section 36 (1) A resident is required to pay all gas consumption charges in connection with the residential premises, including gas consumption charges payable under any Act or regulation or under any arrangement authorised by any Act or regulation. (2) However, a resident is not required to pay any gas consumption charges for gas supplied by a park owner to the resident unless the gas is supplied through a gas meter that has been tested, sealed and stamped in accordance with the Gas Supply (Gas Meters) Regulation 2002 . (3) The other charges that a resident is required to pay are: (a) any charges for pumping out a septic system arising from the use of the residential premises by the resident, other than charges included in rates fixed under the Local Government Act 1993 , and (b) any excess garbage or sanitary charges relating to the resident's use of the residential premises." "17 Prescribed code with respect to electricity: section 37 The code published by the Department under the title Customer Service Standards for the Supply of Electricity to Permanent Residents of Residential Parks , as published in August 2006, is prescribed for the purposes of section 37 (6) (b) of the Act with respect to electricity." Application of the law to the findings The sewerage charge 1. Under clause 5.4 of the site agreement, the applicant is required to pay for "sanitary charges". The Tribunal accepts the respondent's submissions that the meaning of "sanitary" is wide enough to encompass "sewerage". There was no challenge to such an interpretation by the applicant. Rather, the applicant's case is the sewerage charge is invalid because first, it is a new charge as it is a charge that was not imposed by the operator until after the Act commenced, and therefore contravenes section 76 of the Act. Secondly, the charge is said to be invalid because it could not have been imposed under the old Act, because it could not meet the requirements of section 39 (2) of the old Act, as Ballina Shire Council, the relevant water supply authority, does not charge its direct domestic customers the sewerage charge. 2. In my view the applicant's submissions should not be accepted. Clause 5 of schedule 2 of the Act says existing agreements remain valid after the commencement of the Act. That means the terms of existing agreements remain valid (provided those terms were valid under the old Act). Clause 5 of schedule 2 is not restricted by section 6 of the Act, because section 6 (1) says the section is subject to a provision of or under the Act that provides otherwise. Under clause 5.4 of the agreement, the applicant was required to pay sanitary charges, which I have determined includes sewerage charges. While there was no evidence as to why the respondent did not seek payment of that charge until shortly after the Act commenced, the applicant has always been under an obligation to pay it. 3. The fact that Ballina Shire Council does not charge a sewerage fee to its direct residential customers, does not mean the charge was invalid under the old Act. Section 39 (2) of that Act deals with water charges, not as here, sewerage charges, and is not relevant. The fact the sewerage charge appears on a water bill does not change the nature of it, nor is the nature of the charge changed because it is calculated by reference to the amount of water consumed. It is not a "water consumption" charge, as that term is used in the section, but a sewerage charge. 4. It follows the applicant's claim in relation to the sewerage charge should be dismissed. The electricity charges 1. I have considered the submissions of the applicant (pages 8-10 of the applicant's documents), and the case referred to of Emmetlow Pty Ltd t/as Colonial Village v Pomroy [2015] QCATA 131. I do not regard that case as on point for two reasons. First, the "Ready Reckoner" by which Emmetlow, the park operator, had calculated electricity charges, was a guide published by the Queensland government to assist on-suppliers of electricity to comply with obligations under the Electricity Act 1964 (Qld). Unlike the code prescribed by section 37 and regulation 17 of the old Act, it was not a code prescribed by the relevant Queensland legislation. As such it had no legislative authority, and was made redundant with the introduction of section 99A of the Manufactured Homes (Residential Parks) Act 2003, Qld, which prohibited a park operator charging more than it was charged for the electricity it on-sold to home owners. Secondly, it is not clear from the applicant's submissions, or the decision in Emmetlow, whether the homeowner in that case had an existing site agreement that by force of the transitional provisions of the Queensland Act, continued after its commencement. I have also had regard to the second reading speech of the Residential (Land Lease) Communities Bill, however there was no discussion of the relevant clauses of the Bill, nor any policy intent relating to utility charges. 2. In the Tribunal's view, the electricity charges imposed on the applicant were valid under the old Act. They were calculated in accordance with section 37, and clause 17 of the regulations made under the old Act which prescribes that the "code" is the Customer Service Standards for the Supply of Electricity to Permanent Residents of Residential Parks, as published in August 2006. Section 3.1.1 of that code is as follows; "3.1.1 Maximum charge per kWh The charge for electricity consumption, expressed as a price per kilowatt hour (kWh),can be no more than the standing offer price that would be charged by the relevant local area retailer for new connections, if the local area retailer were to supply that quantity, or estimated quantity, of energy directly to the premises of the resident." (page 8 of applicant's documents, emphasis added). 1. The "standing offer price" is the per kWh cost that the respondent has used in calculating the electricity cost to be charged to the applicant (see example in paragraph 17 above). 2. As the charges were valid before the commencement of the Act, they continue to be valid under clause 6 of the site agreement and clause 5 of schedule 2 of the Act. The charges do not fall foul of section 77 of the Act, even if they exceed what the operator was charged for the quantity of electricity that has been charged to the applicant, because they are still in accordance with clause 6 of the agreement, and the old Act, regulations, and the standing offer price in the code. The situation would most likely be different with site agreements that are not affected by the transitional provisions, as on the evidence it seems more likely than not, that the park operator is charging more for the electricity it is on-selling, than it is being charged. As the meters at the home owners' sites are not equipped to differentiate between the various prices at various times of the day Origin Energy charges the respondent, it would seem difficult, if not impossible, for the respondent to charge the home owner exactly what it has been charged for the same electricity. Nevertheless it should be possible to devise a method that ensures the cost complies with section 77 (3) of the Act. 3. The application in respect of electricity charges should also be dismissed. W Priestley General Member Civil and Administrative Tribunal of New South Wales 3 August 2017 ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2017