Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Clayton v The Salvation Army (New South Wales) Property Trust T/as Aged Care Plus [2019] NSWCATAP 233 Hearing dates: 20 May 2019; Further written submissions of the respondent dated 13 June 2019 and of the applicant dated 1 August 2019 Date of orders: 17 September 2019 Decision date: 17 September 2019 Jurisdiction: Appeal Panel Before: D Charles, Senior Member R Perrignon, Senior Member Decision: 1. Appeal allowed. 2. The decision of the Tribunal at first instance is set aside. 3. Order that the appellant's claim be remitted to the Tribunal at first instance for determination by the Tribunal as originally constituted, or by such other member as may be available, with fresh evidence allowed. Catchwords: APPEAL – Retirement Village – alternative road access to Village via a boom gate - whether service or facility in Village reduced or withdrawn by operator – failure to take into account access to visitors and service vehicles such as ambulances Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Retirement Villages Act 1999 (NSW) The Salvation Army (New South Wales) Property Trust Act 1929 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 6 Category: Principal judgment Parties: Peter Charles Clayton (Appellant) The Salvation Army (New South Wales) Property Trust T/as Aged Care Plus (Respondent) Representation: Both parties self-represented File Number(s): AP 19/12927 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 18 February 2019 Before: G Sarginson, Senior Member File Number(s): RV 18/26752 REASONS FOR DECISION Overview 1. This is an internal appeal under s 80 of the Civil and Administrative Tribunal Act (NSW) (the "NCAT Act"). In addition to relying on an error of law, the appellant ("Mr Clayton") seeks leave to appeal against a decision of the Consumer and Commercial Division because the decision of the Tribunal was not fair and equitable and was against the weight of the evidence. 2. The decision of the Tribunal at first instance is dated 18 February 2019 and was received by the parties on 20 February 2019. The decision was to dismiss an application for orders under the Retirement Villages Act 1999 (NSW) (the "RV Act"). The application was brought by Mr Clayton in his capacity as a resident of a retirement village, Woodport Retirement Village, at Erina NSW (the "Village") operated by the respondent. 3. The Notice of Appeal was lodged on 15 March 2019 and within the time required for appeals from applications to the Tribunal under RV Act: Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). 4. For the reasons set out below, we have decided to allow the appeal and remit the matter for determination by the Tribunal as originally constituted, or by such other member as may be available, with both parties being given the opportunity to file additional evidence. Some Background Facts 1. The Village opened in 1991. It presently has about 60 independent living residents including Mr Clayton. He has lived there since July 2008. 2. There are other persons living in an aged care facility within the Village site, but they are not "residents" for the purposes of the RV Act. 3. The independent living residents of the Village are hereinafter referred to as the Village residents. 4. The Village site occupies part of a larger area of land at Erina owned by The Salvation Army (New South Wales) Property Trust ("TSAPT"), a statutory corporation constituted under The Salvation Army (New South Wales) Property Trust Act 1929 (NSW). 5. The site is now constituted by two (2) lots within a deposited plan (referred to as Lots 44 and 45). The creation of Lots 44 and 45 followed a subdivision and sale of some parts of what was previously a larger lot (Lot 101), all done by TSAPT during the period from July 2017 to April 2018. 6. The frontage of the Village is on a major thoroughfare. The access (including for vehicles) to and from Lot 45 is onto The Entrance Road, Erina. 7. Other than the homes of the Village residents, there are other buildings on the Village site, including the aged care facility and a church for the Gosford congregation of The Salvation Army. 8. There are also two (2) areas for visitor parking within the Village site. 9. The visitor parking is used by the Village residents and their visitors, including services such as trades people making deliveries (e.g. food, mail, or medical supplies), taxis picking up or setting down residents, or ambulance officers attending residents in case of a medical emergency. The visitor parking may also be used by other people attending any of the buildings on the Village site, including employees of The Salvation Army and members of the congregation of the church. 10. Prior to the subdivision, there was access to the visitor car parks from James Sea Drive onto the previous Lot 101, in addition to the access provided via The Entrance Road. The subdivision also brought the creation of a multiple lot residential development at the rear of the Village, which meant the other access to the Village from James Sea Drive was closed. On completion of the residential development, a new road link was incorporated into the local road network in and around the residential development, now connecting Peckham Place to the Village car parks. A boom gate was installed. 11. For reasons of convenience and safety, most Village residents prefer to access the Village from James Sea Drive and Peckham Place, rather than from the front entrance onto The Entrance Road. The access from the rear of the Village is quieter and has much less traffic than The Entrance Road, which is a busy divided road with multiple lanes and a median strip. 12. When Mr Clayton's application was lodged with the Tribunal on or about 6 June 2018, none of the Village residents had been given "swipe" (or access) cards to operate the boom gate. However, by the time of the hearing at first instance (on 13 November 2018), access cards had been issued to those of the Village residents who had requested one. That included Mr Clayton. It is acknowledged that he now has an access card to operate the boom gate. The first instance decision 1. The respondent had been incorrectly named in the original application filed on 6 June 2018 as 'The Salvation Army, The Territorial Commander, Eastern Territory'. Having considered the respondent's documentary evidence, including a copy of the Retirement Village Self-Care Residence and Service Contract dated 7 July 2008 signed by Mr Clayton as resident (the "Residence and Service Contract"), the Tribunal was satisfied that the correct legal entity of the respondent as the Operator of the Village was The Salvation Army (New South Wales) Property Trust T/as Aged Care Plus. 2. Mr Clayton as applicant in the original application had sought orders under s 62 and s 128 of the RV Act. Mr Clayton stated in the original application that he wanted: The restoration of vehicular access, from James Sea Drive to the Village Carpark, to the same standard that has been in use for the past 26 years i.e. free access for all vehicles visiting the Village, with suitable signage to deter locals using this access as a 'short cut' to The Entrance Road. 1. Mr Clayton submitted to the Tribunal that free access (i.e. unimpeded by a boom gate) for all vehicles visiting the Village from James Sea Drive was a service or facility within the meaning of s 62(1) of the RV Act. He further submitted that such service or facility had been reduced or withdrawn under the present arrangements. 2. In his original application under the heading 'Reasons For Asking For Orders', Mr Clayton said that to achieve the outcome sought in his application, the respondent should be required to remove all signage indicating 'Salvation Army vehicles only', to deactivate the Boom Gate System, to place a sign at the Peckham Place entry point 'No Through Road, offenders may be fined', and for the convenience of visitors to the Village, to place a sign at the end of the road nearest the car park 'To James Sea Drive, via Peckham Place'. 3. The respondent challenged the jurisdiction of the Tribunal to hear and determine the original application. It argued that the land at the rear of the Village which had been subdivided and built upon by TSAPT for the residential development was not part of the Village. It said that in those circumstances, what had been done on that land (including the installation of the boom gate) did not bear upon the contractual relationship between Mr Clayton and the Village Operator as regards the provision of service and facility in the Village to the Village residents. Therefore, it was submitted that there had been no breach of the Residence and Service Contract or of the Village Rules. 4. The respondent further pointed out that the previous private road through Lot 101 no longer existed because a drainage easement had been created which followed the general area of the old private road. In fact, a differently located private road from James Sea Drive to the Village car parks via Peckham Place had been constructed. This was within a road system created as part of the residential development of most of the previous Lot 101. 5. The respondent also submitted that in any event, there had been no reduction or withdrawal of a service or facility in the Village because vehicle access between the Village and James Sea Drive could still occur despite the installation of the boom gate (to which all independent living residents including Mr Clayton now had an access card), and there had never been any restriction on access via The Entrance Road. 6. The Tribunal found that although the sub-divided land on which the alteration of road access and installation of a boom gate occurred may not have been part of the land on which the Village was located (and accordingly not falling within the definition of "retirement village" under s 5 of the RV Act), it nevertheless had jurisdiction by reason of s 62(1)(a) of the RV Act if satisfied that the respondent Operator had "permitted" a reduction or withdrawal of a facility or service in the Village: Reasons [11]. 7. However, the Tribunal was not satisfied that, assessed objectively, there had been a reduction or withdrawal by reason of the installation of the boom gate and the necessity that "swipe" cards be used to operate the boom gate. The Tribunal stated: 17 Residents, visitors, members of the public and taxi drivers can access the retirement village without any relevant restriction from The Entrance Road, Erina. Residents of the retirement village can continue to access the village by car via Pelham Place and James Sea Drive by way of being issued with a pass card. Residents who drive, and who do not wish to use The Entrance Road can still enter and leave the village via Pelham Place and James Sea Drive. There is no evidence before the Tribunal that the operator of the village has unreasonably refused to issue any resident with a pass card to operate the boom gate or that The Salvation Army (NSW) Property Trust has unreasonably refused to issue pass cards to residents in its capacity as the owner of Lot 101. If there were such evidence, the issues in dispute may have taken a different complexion. 18. Although it may be slightly more inconvenient to residents who wish to enter and leave the village by road via Pelham Place and James Sea Drive to use a pass card at the boom gate, the Tribunal is not satisfied that this minor inconvenience constitutes a withdrawal or reduction of services by the operator. Residents who wish to be picked up in a car by visitors or by taxi can arrange to be picked up in the car park of the village and leave by The Entrance Road. There also appears from the evidence in the proceedings no reason why, if a resident taking a taxi or leaving with a visitor (such as a relative) wishes to leave the retirement village via Pelham Place and James Sea Drive, the resident cannot use his or her access card to operate the boom gate. 19. As the applicant has failed to establish the respondent has breached s 62 of the RV Act, the application is dismissed. 1. In its Reasons at [12], the Tribunal also referred to the respondent's argument that the Operator of the Village is not the same legal entity as the landowner, and made this observation: Further, if it is necessary to order the operator to take action to make another party who is not the operator perform an action, there may be compelling discretionary reasons why such an order should not be made particularly where the previous private road through Lot 101 has been replaced with a different private road now accessing Pelham Place. 1. Because it determined there was no reduction or withdrawal of a service or facility in the Village within the meaning of s 62 of the RV Act, the Tribunal did not have to consider any "discretionary reasons" as it was not required to mould relief to give effect to a finding in Mr Clayton's favour under s 62. Accordingly, the Tribunal left open whether or not the landowner and the operator of the Village are in fact the same legal entity. The notice of appeal 1. In his notice of appeal the appellant asserted that the Tribunal had erred in law in dismissing his claim. 2. In Mr Clayton's submission, to the extent the Tribunal had any regard to the respondent's submission that the landowner of the Village and the operator of the Village were different legal entities, this was an error. In this respect, he relied upon the Residence and Service Contract naming TSAPT as operator and submitted that TSAPT trades under the business name "Aged Care Plus" as the Operator of the Village. 3. Mr Clayton's principal submission on the appeal was that the Tribunal had not assessed whether there was a reduction or withdrawal of a service or facility in the Village within the meaning of s 62 of the RV Act, because visitors of the Village residents could not enter and leave the Village via Pelham Place and James Sea Drive. He argued that the Tribunal's Reasons for Decision did not address his evidence and submissions at the hearing as regards a reduction or withdrawal of a service or facility in the Village by reason of the exclusion of residents' visitors, such as trades people making deliveries to residents or ambulance officers attending residents in the case of a medical emergency. 4. In his written submissions for the appeal, Mr Clayton stated that service vehicles such as ambulances were "frequent visitors" to the Village. His submissions received by the Appeal Panel on 24 April 2019 referred to 14 visits by ambulances during the first quarter of 2019. Mr Clayton submitted that the loss of access to the Village via Pelham Place and James Sea Drive for such service vehicles meant there were unreasonable delays and that health and safety issues arise for the Village residents particularly in the case of attendance by ambulance officers. 5. Further and alternatively, Mr Clayton sought leave to appeal on the ground that the Tribunal's decision to dismiss his application was not fair and equitable and was against the weight of the evidence, because in his submission the Tribunal did not consider properly, or at all, his evidence as to the effect on the service and facility of the Village residents by reason of residents' visitors being excluded from vehicular access.to the Village via James Sea Drive and Peckham Place. 6. In cases where leave to appeal is sought with respect to the decisions of the Consumer and Commercial Division (CCD) of the Tribunal clause 12 of Schedule 4 of the NCAT Act relevantly provides that – (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. 1. For a discussion of these provisions see Collins v Urban [2014] NSWCATAP 17 at [77] – [79]. The reply to the appeal 1. The respondent submitted that the appeal is wholly misconceived and must be dismissed. 2. Without lodging any cross appeal, the respondent nevertheless argued that the Tribunal did not have jurisdiction under s 62 of the RV Act to make orders and provide relief as sought by Mr Clayton in his application. On the respondent's case, the Operator of the Village is a different legal entity to the landowner, TSAPT, which is responsible for the installation, and operation, of the boom gate 3. Further, it argued that Mr Clayton had not suffered a substantial miscarriage of justice on any grounds, including the grounds set out in clause 12(1)(a) – 12(1)(c) of Schedule 4 of the NCAT Act. 4. To the extent the Tribunal had found it had jurisdiction to hear and determine the application under s 62 of the RV Act (which was not accepted), the respondent supported the finding that there had been no reduction or withdrawal in the Village within the meaning of s 62 of the RV Act. In written submissions filed and served subsequent to the appeal hearing (under directions of the Appeal Panel), and addressing whether the Tribunal's Reasons at first instance, had taken into account all relevant considerations, the respondent said it was not necessary for the Tribunal to deal with any considerations bearing upon the exclusion of the Village residents' visitors from access to the road via Pelham Place and James Sea Drive. In this respect, the respondent argued that "inconvenience to visitors does not equate to a withdrawal or reduction of services for residents of retirement villages" (see paragraph 15 of the respondent's written submissions received on 17 June 2019). Is there an error of law in the Tribunal's decision? 1. In the present case the notice of appeal does not precisely articulate a claimed error of law. 2. However, a failure to take into account a relevant consideration which the decision-maker was bound to take into account is an error of law: see, for example, Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 6 at [18]. 3. Central to Mr Clayton's argument is s 62 of the RV Act and his submission that the Tribunal failed to properly apply it when dismissing his claim. The section provides: (1) If an operator reduces or withdraws, or permits the reduction or withdrawal of, a service or facility otherwise than in accordance with section 60, a resident of the village concerned may apply to the Tribunal for an order for any one or more of the following: (a) the reinstatement of the service or facility concerned, (b) the payment of compensation in relation to the reduced or withdrawn service or facility, (c) a reduction in the recurrent charges payable by any one or more of the residents, (d) the payment of the whole or part of those recurrent charges to the Tribunal until the service or facility concerned is reinstated. (2) In determining an application made under this section, the Tribunal may make the order sought or any other order of a kind set out in subsection (1). 1. The Tribunal expressly identified that section of the RV Act (and s 128) as those relied on by Mr Clayton. 2. We do not accept the respondent's submission as to the absence of jurisdiction. We are satisfied that the Tribunal has jurisdiction to hear and determine the application under s 62 of the RV Act. A finding on whether or not the landowner and the operator are the same legal entity was not necessary to found jurisdiction under s 62; however, such a finding is material if the Tribunal is otherwise satisfied of a reduction or withdrawal of service or facility in the Village and then proceeds to the next stage of exercising its discretion, to make orders or grant other relief pursuant to the Tribunal's powers in s 62 and s 128 of the RV Act. The power to make ancillary orders (s 126) is also relevant. 3. We have considered the written material before the Tribunal at first instance. We are satisfied that Mr Clayton's evidence and submissions raised the issue of a reduction or withdrawal of service or facility in the Village in the context of visitors to the Village residents not having vehicle access to the Village via James Sea Drive and Pelham Place: see, for example, Mr Clayton's written submissions dated 10 August 2018 at [3.7] – [3.10]. 4. It is true that the Tribunal considered (Reasons, [18]) the position of the Village residents' visitors; but to a limited extent only. It noted that Village residents leaving the Village in a taxi or in a private car with a visitor (such as a relative) could use an access card to operate the boom gate in order to depart via Pelham Place and James Sea Drive. This addressed, to some extent, the exit journey (i.e. egress) for visitors but not necessarily the entry journey (i.e. ingress) of visitors to the Village. Further, the Tribunal's Reasons did not address the other evidence and submissions of Mr Clayton as regards visitors and service vehicles not having ingress to the Village via James Sea Drive and Pelham Place. It made no finding with respect to whether that circumstance amounted to a reduction or withdrawal of a service or facility in the Village within the meaning of s 62 of the RV Act. 5. We find that the Tribunal's failure to do so constitutes an error of law. We are satisfied that issues in respect of service or facility bearing upon the ingress and egress to the Village of the visitors of Village residents and of service vehicles for the benefit of Village residents were all live issues before the Tribunal. We are further satisfied that these issues needed to be determined for the Tribunal to decide whether or not there had been a reduction or withdrawal of service or facility in the Village within the meaning of s 62 of the RV Act. 6. In our opinion, there was written material before the Tribunal at first instance which, if accepted, might have led it to conclude, in the circumstances, that there had been a reduction or withdrawal of service or facility in the Village within the meaning of s 62 of the RV Act. In that instance, the Tribunal must then determine in the exercise of its discretion what orders or other relief, if any, are appropriate in the particular circumstances of this case. Conclusion 1. For the foregoing reasons, we have concluded that as a consequence of the error of law we have identified the appeal should be allowed and that Mr Clayton's claim for orders or other relief under the RV Act should be remitted for further hearing before the Tribunal as originally constituted, or such other member as may be available. However, the remittal is with further evidence allowed, particularly as to the position of persons (including those in service vehicles) who seek to enter the Village as visitors to the Village residents and also as to the issue of whether or not the landowner of the Village and the Operator of the Village are the same legal entity. As to the latter issue, this is pertinent to the Tribunal's discretionary considerations in respect of making orders or granting relief under s 62, s 126 and/or s 128 of the RV Act, if it is found that by reason of the former issue there is a reduction or withdrawal of service or facility in the Village within the meaning of s 62 of the RV Act. 2. We do not consider it feasible to determine these outstanding issues ourselves. This is because we are not satisfied that all relevant material concerning these issues is before us on this appeal. The parties should have an opportunity to provide that further material to the Tribunal at a remitted hearing. 3. Furthermore, because we have identified an error of law which merits a remitted hearing by the Tribunal, we see no benefit in considering whether (in the absence of such error) we would have granted Mr Clayton leave to appeal. Orders 1. The Appeal Panel makes the following orders: 1. Appeal allowed; 2. The decision of the Tribunal at first instance is set aside; 3. Order that the appellant's claim be remitted to the Tribunal at first instance for determination by the Tribunal as originally constituted, or by such other member as may be available, with fresh evidence allowed. ********** 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: 17 September 2019