VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Residential Tenancies DIVISION
Residential Tenancies LIST	
vcat reference No. R2023/11102	
CATCHWORDS	
Breach of obligations in caravan park; Residential Tenancies Act 1997 (Vic) s 452/472 application for breach of s 206ZV, 206ZVA; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 75, repairs	

APPLICANT	Robert Mark Irwin	
RESPONDENT	Drouin Caravan Park	
WHERE HELD	Melbourne	
BEFORE	S Webb, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	2 May 2023; 4 September 2023		
DATE OF ORDER	4 September 2023	
DATE OF REASONS	12 September 2023	
CITATION	Irwin v Drouin Caravan Park (Residential Tenancies) [2023] VCAT 1058	

Order
VCAT finds:
The parties agreed to a course of action regarding the removal of trees on the site that have been identified as an immediate or near immediate risk to the site resident and other residents of the caravan park.
By consent
The parties have agreed the following. 
Arrangements have been made for the removal of the trees, commencing on 25 September 2023, with an estimated 5 days required for the works to be conducted.
That the site operator Mr Greg Miller will be onsite occasionally in the lead up to the tree removal to oversee preparations for the works. Mr Miller will endeavour to advise Mr Irwin through an intermediary as to when he will be in the communal areas during these preparations.
The site operator Mr Greg Miller will be onsite to oversee the work of the arborists from 25 September 2023 to the completion of the tree removals.
Mr Irwin will remove himself from the vicinity of the tree removal works and not interfere with or obstruct the workers in their removal of the trees. This includes not attending the restricted access sites as the works are being undertaken.
Mr Miller and Mr Irwin will attempt, to the best of their abilities, to avoid interaction during the preparation works and the tree removal works, and communicate through intermediaries should that be required. 
There may be alterations to the works to remove other trees that have been identified in the report, as directed by Mr Miller on advice from the arborists.
Other matters in the application that were determined not by consent
The remedial works that have been undertaken by the site operator regarding dirty water onto the property through pipes have adequately ameliorated this issue.
The run-off of water onto the site does not appear to be an ongoing issue. 
The Tribunal does note that the removal of trees in the vicinity of the site may impact on the way water enters the site. These findings do not preclude future applications regarding water issues
VCAT orders:
The section 75 application by the respondent to dismiss the original application is dismissed.
That the works described as option 1 and option 2 in the Victorian Vegetation Management quote dated 19 June 2023 will be conducted by the qualified arborists, commencing 25 September 2023. An estimated 5 days will be required to complete the works.
There is to be no interference with the tree works as they are being prepared or undertaken. This includes no admittance to restricted sites fenced off by or under the control of the arborists for the purpose of conducting the works unless permitted by Mr Greg Miller or the lead arborist.
The application for further repairs to the resident’s site, including the issues of dirty water and water entering the site are dismissed.

S Webb
Member			

APPEARANCES:		
For the applicant 	Robert Irwin
Alisa Breheny – Tenants Victoria	
For the respondent 	Greg Miller
Cameron Findlay – Securitec
Steve Bartlett – Securitec	

Reasons
Applications
1	On 12 April 2023 the applicant lodged the following application.
s 209; s 452/472 for breach of s 206ZV; 206ZVA: 
There are dangerous fallen trees and flooding around the site. There are rotted trees that remain standing and are hazardous in strong winds. Fallen trees and leaf and bark litter present a fire risk. There is dirty water in the water supply to caravans. The electrical meter has not been sufficiently maintained, it has exposed wiring. There is flooding around the site.
2	The applicant had provided a breach of duty notice regarding these items on 30 March 2023.
3	On 2 May 2023 I conducted a hearing with Mr Irwin, Ms Breheny and Mr Miller in attendance. Subsequently I made orders for:
To adjourn the matter to return before me and allow 2 hours for the hearing. 
The site owner is to inspect and repair where required:
i.	The hot water service and the water entering it, ensuring that it is clean water;
ii.	Investigate and remedy where required the drainage of water onto the site tenant’s property;
iii.	Replace the cover to the electrical meter;
iv.	A qualified tradesperson is required to do the work.
Remediation work on the trees in the park
The Tribunal recognises that all parties have identified the significant risk arising from proximity of trees in various states of health close to dwellings on the caravan park. It has been recognised by all parties that these trees present a potential risk to life and property and that steps need to be taken to remediate this risk.
The site owner advises a significant arborist report is being prepared regarding the trees and will be available for dissemination in the near future.
A comprehensive plan will be prepared once the recommendations of the arborist’s report is received, in conjunction with residents of the caravan park, the local council and Worksafe Victoria.
The next scheduled hearing will consider the works that will be recommended from the report and any plan that has been developed.
4	On 19 July 2023 the respondent lodged an application to the Tribunal for a Summary Dismissal of the application pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
5	On 4 September the Tribunal heard the section 75 application and the substantive application.
A brief history
6	The applicant is a site resident of the Drouin Caravan Park, owned by Knot 4 Reel Pty Ltd. He has provided evidence of a series of issues regarding his site, including particular issues with the site, and more broadly, concerns with the conditions of trees in and around his site and other locations in the park. He has documented a series of limbs falling in and around his site, and in other locations on the site. The failure of limbs and the state of the trees presented a clear risk to the safety of site residents and their property.
7	The applicant, Mr Irwin, and the site manager, Mr Greg Miller, have a difficult relationship.
8	On 17 April 2023 an expert arborist attended the Drouin Caravan Park. The arborist provided a report, dated 17 April 2023 but provided on 9 May 2023, detailed 102 trees over 5 metres tall and provided a commentary on the state of health of each tree. 
9	The report identified nine trees that had to be removed as soon as possible due to their present state (the high risk trees). 
10	The report identified that the series of cypress trees that ring the park and in a central location needed to be removed (the cypress trees). The report stated: 
The cypress are of fair structure, are at the end of their useful life expectancy. The codominant unions are of poor quality and should be removed in the short term to improve safety on the site.
11	On 19 June 2023 the arborist provided a quote for works to remove trees. Included in this quote were various options, including option 1 for the removal of the high risk trees, and option 2 for the removal of a series of cypress trees in close proximity to Mr Irwin’s site. The respondent advised that they had agreed to go ahead with option 1 and option 2. They have booked the arborists to attend on 25 September 2023. The arborist quote predicts that it will take five days to complete the works, it may be faster than that but is dependent on appropriate weather conditions for the safe removal of the trees.
12	There remains the prospect that more trees may be removed on the guidance of the arborist, given the presence of the equipment to remove trees. This is at the discretion of the arborist and Mr Miller.
13	The removal of the trees requires site preparation, including the moving of various structures in the lead up to the removal. Mr Miller will be onsite occasionally to oversee the preparation works.
14	Once the arborists are on site, the locations around the trees will need to be excluded from all site residents while the work is being undertaken.
15	Mr Miller will be on site to oversee the removal of the trees from 25 September 2023 until completion.
16	Mr Irwin undertook to avoid the works and not involve himself in the conduct of the arborists or Mr Miller while they were onsite.
Section 75 application
17	In July 2023 the respondent lodged an application to summarily dismiss the application by Mr Irwin. At the 4 September 2023 the respondent stated that they wished to pursue the s 75 application, but that they were also willing to reach a consent agreement regarding the removal of the trees.
18	The Tribunal proceeded to reach a consent agreement regarding the removal of the trees. The Tribunal made a determination regarding further issues with the site. 
19	The section 75 application made the following arguments.
a.	The application was lacking in substance due to insufficient details.
i.	In summary, the respondent argued that the application had made vague references to various sections of the Residential Tenancies Act 1997 (Vic) (the ‘Act’) and that it was not apparent what the applicant was seeking.
b.	The application was lacking in substance or misconceived due to failure to comply with section 208 and 209 of the Act.
i.	In summary, the respondent argued that section 209 of the Act can only be relied on for compensation or compliance if a valid Notice of Breach of Duty had been served. It was argued that the notice was invalid. 
c.	References to section 452 and 472 of the Act in the VCAT application.
i.	In summary, the respondent stated that the application’s references to section 452 and 472 did not provide any detail as to what was being sought pursuant to these sections. It was submitted that the use of these sections were misguided where a breach of duty notice was not properly provided. It was argued that these sections should not be used when alternative sections were available to use for the purpose of breaching the duties of the respondent.
Consideration of the section 75 application
20	The Tribunal notes the detailed jurisprudence regarding the consideration of section 75 applications. The Tribunal is conscious of the very high bar required to satisfy the requirements of section 75 and that orders under section 75 must be made with great caution. It must be ‘very clear indeed’ that the action is ‘absolutely hopeless’; or the action must be ‘so clearly untenable that it cannot possibly succeed’.
21	While the Tribunal agrees that the level of specificity in the application is limited, it does not agree that the information included does not provide enough information that the respondent is unaware of what was being sought by the applicant. 
22	The contributions of the respondent in the course of the hearing demonstrate an acceptance that there was something worth responding to in the arguments of the applicant. In their entirely appropriate approach to resolving this proceeding, the respondents willingly engaged in establishing a consent agreement that allowed for the respondent to administer the removal of trees whose state were arguably in contravention of the respondent’s duties under sections 206ZU and 206ZV(1) of the Act. The orders of the Tribunal, made pursuant to the provisions of s 472 of the Act, assist the respondent in their actions to ensure the caravan park is safe for all residents. The Tribunal considers this demonstrates that the application was not absolutely hopeless or clearly untenable.
23	The Tribunal has considered the technical issues with the applicant’s application and the deficiencies in the documents as provided by the applicant. The Tribunal acknowledges that there are issues with relying upon the notice as provided by the applicant for the site owners’ purported breach of duty. 
24	However the Tribunal has considered the wording of the duty provisions as found in the Act. A relevant example of this is section 206ZV, which has been referred to by the applicant. This section states:
206ZV	 Site owner must keep Part 4A park clean
	(1)	A site owner must keep common areas, facilities, gardens, roadways, paths and recreation areas in the Part 4A park clean and in a safe condition.
	(2)	A site owner must arrange for the collection of garbage of site tenants and other garbage from the Part 4A park.
Note
This section is a duty provision and a contravention of this section may be dealt with as a breach of a duty under Part 5 and other provisions of this Act.
Note to s. 206ZV inserted by No. 45/2018 s. 210(3).
25	The Tribunal has deliberately included the note and date that this note has been included in the Act. The Tribunal observes that this note has been added to the duty provisions of the site tenants and site owners consistently through this part of the Act. 
26	While the breach of duty may be pursued by an application under Part 5 of the Act, which are broadly the compensation and compliance provisions of the Act, the Tribunal recognises the addition to the note that states ‘and other provisions of the Act’. Relevant to the present discussion are sections 452 and 472, which are other provisions of the Act that reference duty obligations of site tenants and site owners. 
27	Section 452(3A) states:
(3A)	A site owner or site tenant may apply to the Tribunal if—
(a)	a dispute arises in respect of a site agreement or an agreement relating to a site agreement; or
(ab)	a dispute arises in respect of the rescission of a Part 4A dwelling purchase agreement under section 206JA; or
(b)	there has been a breach of a duty under the site agreement provisions.
28	The Tribunal observes that there are no references in this section to notices that have or have not been provided to a party.
29	Section 472 states:
(1)	The Tribunal, on an application to or in proceedings before it, may make any orders it thinks fit—
… 
(da)	to restrain any action in breach of a site agreement or the provisions of this Act relating to a site agreement;
(db)	to require any action in the performance of a site agreement or of duties under this Act relating to the site agreement;
…
(2)	The powers of the Tribunal under this section are in addition to all other powers of the Tribunal under this Act.
30	It would appear that the drafters of the Act, when adding this provision, contemplated the use of these sections to resolve disputes between site residents and site tenants where the performance of a site agreement or duties are in question. The present circumstances appear to be such an example whereby the ‘any orders it thinks fit’ assists all parties to this application to resolve the particular set of circumstances that confront the parties. The Tribunal was able to craft orders that met the needs of the parties that did not rely on compensation or compliance requirements, demonstrating the basis by which the application using s 452 and s 472 were relevant to these proceedings.   
31	The Tribunal accordingly does not accept that there are no grounds to proceed to hear this matter.
32	The application for summary dismissal of the application pursuant to s 75 of the VCAT Act is dismissed.
The removal of trees from the site
33	There was broad consensus that there were a number of trees that were required to be removed due to their current state. Nine trees have been deemed hazardous by the arborist and require immediate removal. A further 15 cypress trees were recommended to be removed that were in the vicinity of the applicant’s site and were deemed to be at the end of their life and should be removed to ensure the safety of site residents.
34	Evidence was provided of trees in the caravan park losing limbs in the near vicinity of sites, a clear risk to life and property of the residents of the park.
35	The site owner has agreed to a quote of the arborists, option 1 and option 2, for the removal of the identified trees. 
36	By consent, the Tribunal drafted orders to allow for the supervised removal of these trees that meets the requests of the applicant in his application, and provides authority for the site owner to ensure the safe removal of these trees.
Other proceedings
37	The order of 2 May 2023 directed the site owner to investigate and repair where required several issues affecting the applicant’s site. Some of these items were completed by the site owner to the satisfaction of the applicant. Two items were outstanding and were pursued by the applicant at the hearing.
Dirty water coming to the site.
38	The applicant claimed that dirty water was still coming to his site and silting up his hot water service.
39	The respondent provided a brief email dated 3 September 2023 from an individual identifying themselves as ‘Michael Ablett Plumbing & Gas Fitting’. The email stated that:
I, Michael Ablett attended the Drouin Caravan Park on request from the owner Greg Miller. I tested for water quality, along with ensuring that at the time of inspection there were no drainage issues that could be seen at the in the vicinity of Site 70. 
After repairing the burst water pipe, we ran numerous taps around the park to clear any debris that may have got in the water lines, until it ran clear.
40	The respondent stated that there had been several interventions in the park for the plumber to fix broken water pipes and that they had completed the requested works.
41	The applicant’s representative was concerned by the delay in the work being completed and stated that they did not believe that the works had rectified the issue of dirty water coming into the appliances on the site. They also queried whether the writer of the email was a suitably qualified person as required by the 2 May 2023 order, as the email was not a report and did not provide the qualifications of this person.
42	While the Tribunal appreciates the frustration of the applicant in having dirty water coming into his appliances over an extended period, the Tribunal accepts the evidence of Michael Ablett that works have been completed to rectify the problem. The Tribunal notes that the work completed was not cursory, it included fixing a broken pipe, and then testing to see if there was still dirty water flowing through the pipes. 
43	On the evidence before the Tribunal it is satisfied that the repairs have been completed.
Water draining onto the site
44	The applicant stated that water had been coming onto the site and that rectification works were required to stop this water. The applicant provided images of the water coming onto the site with the application. No report was provided in conjunction with the images, which the Tribunal accepts is reasonable given the circumstances of the applicant.
45	Further images of the site and the surroundings were provided by the applicant and the respondent in the course of the proceedings. None of these images showed water entering the site. The email of Michael Ablett stated that there were ‘no drainage issues that could be seen in the vicinity of site 70’.   
46	The Tribunal notes that water draining onto the site is subject to weather conditions and rain, allowing for the issues of drainage to be properly observed and documented. Documentary evidence, including images, other than as provided with the original application, have not been provided. The Tribunal would expect this information as demonstrating ongoing issues with drainage on the site. The evidence is not before the Tribunal that this is an ongoing issue for the applicant.
47	The Tribunal determines that the drainage of water onto the site has been remedied.  
48	The Tribunal recognises that the work of the arborist in the vicinity of site 70 may impact on the movement of water in and around the applicant’s site. The removal of a number of significant trees may lead to changes in the water courses across the park, and the site owner will need to ensure that these conditions do not cause drainage issues for the applicant and his fellow park residents in the future. The applicant is at liberty to pursue this matter further in the future with appropriate evidence should that be required.     

S Webb
Member