Commissioner for Social Housing in the Act v Crockford & Anor (Residential Tenancies)
[2015] ACAT 31
•16 April 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR SOCIAL HOUSING IN THE ACT v CROCKFORD & ANOR (Residential Tenancies) [2015] ACAT 31
Case Number: RT 1094 of 2014
Catchwords: RESIDENTIAL TENANCIES – termination and possession order – premises at high risk in bushfires – whether decision to terminate residential tenancy agreement was a breach of the Human Rights Act 2004
Legislation cited: Human Rights Act 2004 (ACT) ss 12, 28, 30, 40B, 40C
Legislation Act 2001 (ACT)
Residential Tenancies Act 1997 (ACT) ss 6A, 8, 9, 10, 15, 36, 47, sch 1, cl 54, 55, 72, 88, 94, 95, Dictionary
Cases cited:Commissioner for Social Housing in the ACT v Massey [2013] ACAT 41
Manchester City Council v Pinnock (Secretary of State for Communities and Local Government and another intervening) [2010] UKSC 45
LM v Childrens Court of the Australian Capital Territory and the Director of Public Prosecutions for the ACT [2014] ACTSC 26
Law Society of the ACT & Treasury Directorate and NRMA Insurance (Appeal) [2013] ACAT 36
Tribunal: Ms W. Corby – Senior Member
Date of Orders: 16 April 2015
Date of Reasons for Decision: 16 April 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL RT 1094 of 2014
BETWEEN:
COMMISSIONER FOR SOCIAL
HOUSING IN THE ACT
Applicant
AND:
ROBERT CROCKFORD
PAMELA CROCKFORD
Respondents
TRIBUNAL: Ms W. Corby – Senior Member
DATE: 16 April 2015
ORDERS
The application for a termination and possession order pursuant to section 47 of the Residential Tenancies Act 1997 (ACT) is granted.
The tenancy agreement is terminated at 5pm on 16 April 2015.
The Tenants are required to vacate the premises by 5pm on 16 April 2015.
If the Tenants fail to vacate the premises as required by order 3 of these orders then the lessor may request the Registrar of ACAT to issue a warrant for eviction.
Pursuant to section 47(2) of the Residential Tenancies Act 1997 the operation of orders 2, 3 and 4 is suspended until 5pm on 7 May 2015.
………………………………..
Ms W. Corby
Senior Member
REASONS FOR DECISION
The Commissioner for Social Housing in the ACT (the Lessor/Applicant) has applied to the ACT Civil and Administrative Tribunal (‘ACAT’) for a termination and possession order pursuant to section 47 of the Residential Tenancies Act 1997 (the RT Act) in relation to premises that the Lessor manages (the ‘premises’). The respondents to the application, Mr and Mrs Crockford (the Tenants/Respondents), are the tenants of the premises. The premises are known as ‘Yalgum’.
In these reasons for decision, the term ‘Tribunal’ refers to the ACAT member making this decision.
The Tenants submit that the order sought by the Applicant should not be made. They provided evidence about their long-term tenancy. Further, the Tenants submit that the Lessor’s actions and/or decisions, in making the application to ACAT for the order, are in breach of the Tenants’ human right pursuant to section 12(1)(a) of the Human Rights Act 2004 (the HR Act). That section states:
12 Privacy and reputation
Everyone has the right—
(a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
(b) ...
Specifically, the Tenants submit that the Lessor’s application to end the tenancy amounts to ‘unlawful or arbitrary interference’ with the Tenants’ ‘home’. The Tenants submit that after taking into account this and the other matters raised by the Respondents, the Tribunal should not exercise the discretion given by section 47 of the RT Act to grant the order sought by the Lessor. Section 47 of the RT Act states:
47 No breach of standard residential tenancy terms
(1)On application by a lessor, the ACAT may make a termination and possession order if satisfied that—
(a)a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms); and
(b)the lessor has served a termination notice on the tenant based on that ground; and
(c)the tenant has not vacated the premises as required by the termination notice.
(2) If—
(a) the ACAT makes an order under subsection (1); and
(b) the ACAT is satisfied that—
(i)were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and
(ii)that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period;
the ACAT may suspend the operation of the termination and possession order for a specified period of no more than 3 weeks.
The relevant legislative provisions
The other legislative provisions referred to in these reasons for decision are set out in full in the attached Schedule.
The hearing
The matter was heard on 23 and 24 February 2015.
Ms Holley from the ACT Government Solicitor’s office appeared for the Applicant instructed by Mr Butler from the Applicant’s office.
Ms Gould from Canberra Community Law appeared for the Respondents. Both Mr and Mrs Crockford attended on 23 February 2015. Mr Crockford also attended on 24 February 2015. Mr Crockford gave oral evidence and his signed statement was tendered (Exhibit R2).
Mr Potts gave oral evidence on behalf of the Applicant and his signed statement was tendered (Exhibit A1).
Evidence
A written tenancy agreement dated 3 November 1988 was signed by the parties (the ‘tenancy agreement’). A copy of the tenancy agreement is attached to the Lessor’s application filed in ACAT on 4 December 2014.
The following documents were tendered as exhibits during the hearing:
Exhibit A1
Written statement of Gregory Stephen Potts signed 27 August 2014
Exhibit A2
Bushfire Risk Assessment report prepared by GL Swain dated 20 April 2013 (the ‘2013 Bushfire Report’)
Exhibit R1
Aerial photograph of premises and roads
Exhibit R2
Written statement of Robert Crockford signed 14 July 2014
Exhibit R3
Covering letter enclosing Notice to Vacate sent by Applicant to Respondents dated 14 April 2014
Exhibit R4
Timeline prepared by Mr Crockford in relation to his efforts to contact the Applicant and Territory and Municipal Services (‘TAMS’) concerning purchase of the premises by the Respondents
Exhibit R5
ACT Housing Bushfire Assessment 2006 Yalgum (the ‘2006 Bushfire Report’)
Exhibit R6
Bushfire Risk Assessment Report for Yalgum prepared by GL Swain dated 6 August 2010 (the ‘2010 Bushfire Report’)
The ‘Bushfire’ reports
Three reports were tendered. These reports about the premises had been prepared for, or at the request of, the Lessor. In summary these reports state as follows:
a) The ACT Housing Bushfire Assessment 2006 Yalgum (the ‘2006 Bushfire Report’ - Exhibit R5) – no author is identified:
i. there is a need to undertake action to reduce the risk of ember attack to the sub-floor and roof of the residence at the premises; there are water pressure and water availability issues;
ii. at the time of this report the driveway/access road from the premises met the Kings Highway and there was access in both directions - east and west - along the Kings Highway. The conclusion in this report was that there was adequate vehicle access from and around the structures on the premises;
iii. the Tenants at the time, according to this report, accepted they would not attempt to save the property but would evacuate in case of fire; and
iv. the report concludes by identifying some recommended actions of the Tenants to reduce risk, and some recommended actions of the Lessor to reduce risk to roof and sub-floor and improve water pressure and supply.
b) The Bushfire Risk Assessment Report for Yalgum prepared 27 July 2010 and issued 6 August 2010 by GL Swain (the ‘2010 Bushfire Report’ - Exhibit R6):
i. at the time of this report the access road to the premises still met the Kings Highway however this report concludes that due to the risk that the Kings Highway could be ‘cut’ by fire in both directions, it would not be safe;
ii. the report concludes that due to the risk of fire, the risks involved in the event of fire, the poor state of the premises and the lack of a safe access/escape route, alternative accommodation should be found for the Tenants’ family and the building should be demolished.
c) The Bushfire Risk Assessment Report for Yalgum prepared 8 April 2013 and issued 20 April 2013 by GL Swain (the ‘2013 Bushfire Report’ - Exhibit A2)
i. at the time of this report the ‘new’ Kings Highway had been opened. As a result the road that met the driveway/access road from the premises was renamed Sparrow Hill Road (the ‘old’ Kings Highway). However, to the east of the junction with the access road from the premises, the ‘old’ Kings Highway was fenced off and no longer in use as a public road. A new section of the Kings Highway had been opened. Access to the ‘new’, re-routed section of the Kings Highway was gained by travelling from the premises west along Sparrow Hill Road to the intersection with the ‘new’ Kings Highway, which can then be used to travel east or west;
ii. the conclusion of this report is that the structures at the premises are not defensible and survival possibility is 0% whether the fire is attended or not;
iii. it is recommended that alternative accommodation be found for the Tenants and the buildings be demolished. If this outcome is not possible then the Tenants should vacate the premises on ‘Total Fire Ban’ days, and the Tenants should be advised of the extreme risk should they not do so.
Applicant’s witness - Gregory Stephen Potts
At the hearing Gregory Stephen Potts was called as a witness by the Applicant. Mr Potts’ signed statement dated 27 August 2014 was tendered (Exhibit A1). He did not make any amendments to this statement and endorsed its contents when he gave oral evidence under oath.
Mr Potts is currently employed as the ACT RFS (presumably Rural Fire Service) Manager of Community Bushfire Protection. In this role he audits Bushfire Operational plans, inspects premises for ‘bushfire safety’ and provides advice to Government in relation to various matters including suburban development applications and construction.
Mr Potts has provided details of the work he has done and training he has undertaken in NSW, SA and ACT since 2001.[1]
[1] Exhibit A1 at paragraph 4 and in the Training Transcript attached to Exhibit A1
The substance of Mr Potts’ evidence is that, at the Applicant’s request, he inspected the premises in September 2013. He concluded that the dwelling tenanted by the Respondents was in poor condition and at risk – due to gaps in and below the structure - of ‘wind borne embers’. He concluded that the structure was at risk when the fire rating was ‘High’ to ‘Severe and above’. If ignited, the structure would likely be destroyed as it was unlikely – due to isolation - that firefighters could attend and there was a lack of firefighting equipment and available water at the premises.
Mr Potts considered the one ‘exit’ path available to the Tenants, west via Sparrow Hill Road to the Kings Highway, would be hazardous as neither Sparrow Hill Road nor the Kings Highway may be safe if there was a fire.
Mr Potts concluded that in his opinion, in the event of fire, the premises could not protect residents. Due to the ‘nature of the surrounding vegetation’ there is significant ‘risk to life at these premises even in Low-Moderate fire danger ratings’. There is no safe escape route and thus it is too dangerous for the dwelling ‘to be occupied in Total Fire Ban, Severe FDR [presumably Fire Danger Rating] and above’.[2]
[2] See paragraphs 6 and 7 of Exhibit A1
In oral evidence, Mr Potts confirmed that when he undertook the inspection at the Lessor’s request in September 2013 he had with him the Bushfire Risk Assessment Report prepared 8 April 2013 and issued 20 April 2013 by G.L. Swain (the ‘2013 Bushfire Report’ - Exhibit A2).
Mr Potts said that during his inspection of the premises in September 2013 he checked and confirmed the information appearing in the 2013 Bushfire Report. Based on his inspection of the premises Mr Potts said he agreed with the conclusions of the 2013 Bushfire Report. Namely that the ‘cottage’ was not safe under bushfire attack and should not be tenanted.
Mr Potts confirmed that Kowen Forrest and the premises are in a ‘mapped’ ‘bushfire prone’ area. There are standards that apply (Australian Standard 3959) which dictate the requirements for construction of buildings in bushfire prone areas. Mr Potts applied this standard when he inspected the premises.
Mr Potts said he had inspected the premises on three occasions. About four years ago, again in September 2013 and most recently on 4 February 2015. Mr Potts said that he had inspected the premises in relation to the audit by him and review of the annual Bushfire Operation Plan – Fire Assessment, and also as part of the risk assessment of ACT Government assets in relation to bushfire risk. Mr Potts manages the ‘ACT Elevated Fire Danger Plan – Whole of Government Response’.
Mr Potts gave evidence about the measurements he took and what he observed on 15 February 2015.
Mr Potts considered that the premises were vulnerable to ember attack if there were a fire in the forest. Because of the poor maintenance and construction of the buildings, they were vulnerable. He considers that it would be a ‘costly and major undertaking’ to bring the buildings up to minimum ‘fire safety standards’. For example ‘basic fire proofing’ would require the entire sub-floor to be protected by a ‘stainless steel or bronze – as these do not corrode - mesh’ with maximum 2mm gaps to prevent entrance of windborne embers. In addition, due to the poor state of the exterior of the building, with flaking paint etc, it would need to be re-clad.
Mr Potts said that he could not accurately assess the prospects of ‘survivability’ if people were to remain at the premises during a fire. However in his view, taking into account public safety, he concluded that the property should not be tenanted unless it were rebuilt to a safe standard and this would be a major undertaking.
Mr Potts provided this opinion to the Applicant, in relation to his inspection of the property in September 2013, in terms of his statement in August 2014. In reaching this conclusion Mr Potts had considered the 2013 Bushfire Report and its conclusions which Mr Potts agreed with.
Cross Examination of Mr Potts by the Respondents' representative
Mr Potts was asked if his opinion would change if there were alternative routes for viable safe egress from the premises. Mr Potts said he was not aware of any alternative to the route he had identified when he inspected the premises in September 2013. However he did say that in his view the only available alternative would be to escape, not shelter from, fire.
Mr Potts confirmed that he had referred to the 2013 Bushfire Report and had not referred to the earlier 2006 or 2010, Bushfire Reports.
Mr Potts was asked whether given the proximity to Queanbeyan and the social use of the nearby Kowen Forest he regarded the premises as ‘remote’ as he had set out in his statement. Mr Potts said that ‘remote’ related to distance from, what in NSW is referred to as, ‘a neighbourhood safe place’. It does not refer to geographic remoteness.
Mr Potts confirmed that he does not hold Tertiary Bushfire Qualifications. He is currently undertaking a Certificate course in Community Bushfire Protection and will then undertake a Diploma course. Mr Potts agreed that the qualifications he holds would not meet the ‘Fire Protection Association’ (the relevant private industry body in Australia) requirements for someone to provide an expert opinion.
Mr Potts was shown an aerial view photograph (Exhibit R1) of the premises and surrounds including the roads. On the picture he was shown the Respondents’ had indicated –
a)by crosses:
i. where the access to the ‘old’ Kings Highway had been fenced to now exclude access from Sparrow Hill Road;
ii. the ‘T’ junction of Sparrow Hill Road with a road marked TSR (‘travelling stock route’) – there is a gate blocking access to TSR ; and
iii. the ‘T’ junction of Sparrow Hill Road with Block 9 Road – there is a gate blocking access to Block 9 Road.
b)by circles - two areas on the Kings Highway under which are constructed concrete underpasses or shelters which, apparently, are large enough to accommodate 12 vehicles, These concrete underpasses would be used by forestry workers in the event of an emergency for shelter.
Mr Potts was advised that the Respondents had obtained formal permission from Mark Sweeney of Land Management to destroy the fence which currently blocked access to the ‘old’ Kings Highway to the East and to access the land as an emergency route. In addition the Respondents had arranged with Colin Scofield of Parks and Conservation Services to attach specific locks for use by the Respondents in a bushfire emergency so that they could open the gates and access TSR or Block 9 Road.
Mr Potts said he considered that only a bitumen road would provide safe escape. None of the other roads referred to, whether or not maintained by TAMS, offered a safe alternative.
Mr Potts was referred to email correspondence sent by Peter Langdon – Forestry Coordinator, ACT Parks and Conservation Services to Mr Crockford on 17 June 2014 in which Mr Langdon comments that forest thinning ‘is one of the factors in our bushfire mitigation strategy’. [3] Mr Potts said he strongly disagreed with this statement. He said that what remains on the ground after commercial pine forest thinning contributes to increased fuel loads for 2-3 years and does not have the effect of bushfire mitigation.
[3] Paragraph 2 in Attachment E to Exhibit R2
Mr Potts confirmed that he had the 2013 Bushfire Report available to him when he inspected the premises in September 2013 and had checked and agreed with the information and conclusions appearing in that report.
The Respondent objected to the 2013 Bushfire Report being tendered as an exhibit as the author was not called to give evidence. The Tribunal considered that the report was relevant to the matters in dispute. The 2013 Bushfire Report was made an exhibit.
Respondents’ witness - Mr Crockford
Mr Crockford gave sworn evidence. He confirmed the information appearing in his signed statement dated 14 July 2014 which was tendered (Exhibit R2).
The Respondents had seen the premises some time before 3 November 1988. They had approached the Applicant (as it then was) about the possibility of the Respondents tenanting the premises. After some discussion between the Applicant and the Respondents, the Applicant agreed to lease the property to the Respondents on condition that the Applicant was not obliged to contribute towards renovation, maintenance or repair of the premises. This was agreed.
In his statement and oral evidence, Mr Crockford described the condition of the structure on the premises when the tenancy commenced on 3 November1988. Mr Crockford described what was, really, just a vandalized ‘shell’ with no water, cooking or bathroom facilities; no appliances or fittings; no doors on rooms etc. The Respondents initially lived in a caravan on the property, until they had sufficiently renovated or constructed the residence on the premises so that they could move into it.
In the subsequent 26 years, the Respondents have renovated, added to, repaired and maintained the premises at their own expense. During this period they have made regular rental payments and are currently some 26 weeks in advance in rental payments. In oral evidence Mr Crockford confirmed that the amount of rent they had paid throughout the tenancy had been minimal and was calculated to reflect administration costs incurred by the Lessor in managing the tenancy. The Tenants would like to purchase the property and are currently making enquiries in that regard.
Mr Crockford confirmed that by letter dated 21 September 2012, the Tenants were provided with a copy of the 2010 Bushfire Report.
During a client service visit conducted by the Lessor on 3 October 2013, the Respondents were given a Bushfire Survival Plan and were given a copy of the 2013 Bushfire Report. Mr Crockford considered this report to be in similar terms to the 2010 Bushfire Report.
On 3 October 2013, the Tenants were given a Bushfire Abatement Client Service Visit Checklist which they signed confirming that they had been provided with the information referred to and agreed to the undertakings in it about vacating and maintaining the property.
Mr Crockford said that at the meeting with representatives of the Lessor on 3 October 2013, the Tenants also agreed to some additional matters that were not recorded in writing, including agreeing to save lives and not property, and to leave the property at the earliest opportunity at a sign of fire.
Mr Crockford confirmed that the Tenants and their family had, in response to their undertakings, vacated the premises on occasions in the October 2013-March 2014 fire season.
Mr Crockford said that he had considered obtaining, but could not afford the cost of, a report as to the cost of bringing the building on the premises up to standard. It was his understanding that after the 3 October 2013 meeting the Lessor was arranging to obtain quotes for the construction of a shed and the installation of a water tank (to address pressure issues and lack of water on the premises).
Whilst Mr Crockford believes that quotes were obtained by the Lessor, he has heard nothing further about this since the 3 October 2013 meeting. Mr Crockford said that there was no discussion at that meeting about physical changes to the residence. Mr Crockford said that he considered that the Lessor had not undertaken work to maintain or work to better protect the premises from fire because of the Tenants agreement to undertake maintenance at the premises.
Mr Crockford said that on 11 April 2014 one of the Lessor’s officers rang to arrange a client service visit. Mr Crockford was about to travel and so he was not available to meet. In a second call from the same officer on 11 April 2014 the officer advised Mr Crockford that a Notice to Vacate would be issued as the residence on the premises was to be demolished.
Mr Crockford said that there had been no prior consultation. Mr Crockford was shocked. He considered that although he was about to travel and did not have time for the proposed meeting, as the bushfire season does not commence until October, he did not understand the urgency or why a meeting could not have been arranged after his return from travel to allow for further discussion.
A Notice to Vacate was served on 14 April 2014 with a vacation date of 2 May 2014. The ground for this notice was clause 86 of the tenancy agreement.[4] In the covering letter to the notice, the Tenants were advised that they could apply to ACAT in relation to the notice. Mr Crockford said that he did file an application with ACAT about this Notice, but because he was about to travel he then withdrew the application.
[4] Clause 86 of the Standard Residential Tenancy Terms – schedule 1 to the RT Act
The Tribunal notes that the Applicant later filed an application in ACAT in relation to the Notice served 14 April 2014 - application RT14/426. This application was also listed for hearing, but was withdrawn by the Applicant on the hearing date of 23 February 2015. Although there is some information relied on by the parties in the current application – RT 14/1094 – which was also relevant to the application RT14/426, the 14 April 2014 application is not otherwise relevant to these proceedings.
Mr Crockford disputes that the premises are not defensible. Further, he says that the ‘old’ Kings Highway (east of their property and the continuation of Sparrow Hill Road) is still maintained as an access road. Mr Crockford said that he and his wife had recently walked the length of it and it was negotiable by car. Mr Crockford has obtained permission to destroy the fence which blocks access to the ‘old’ Kings Highway east of the premises, and to use Parks and Conservation access roads and land in case of fire emergency. The Respondents are not restricted to Sparrow Hill Road as an escape route.
Based on information provided to Mr Crockford by Peter Langdon (Forestry Coordinator of the ACT Parks and Conservation Services) Mr Crockford considers that actions by the forest management, for example thinning, have not been taken into account adequately or correctly by the Lessor’s advisers. If they had it may have resulted in the Lessor coming to different conclusions about the fire risk and need for response.
Mr Crockford also noted that recent clearing that had been undertaken in the forest had increased the buffer zone between forest and dwellings on the premises to more than the 80m recorded in the reports prepared for the Applicant by Mr Swain and 64m according to Mr Potts. In oral evidence Mr Crockford estimated the distance had now increased to approximately 100m and this buffer meets the Australian Standard in relation to ‘direct flame’. Mr Crockford also raised doubts as to the measurements taken by Mr Potts which, says Mr Crockford, related to the gap between a shed – which is not a dwelling - and the forest. The distance between the residence on the premises and the forest is greater.
Mr Crockford concludes that the Termination and Possession order should not be made based on untested evidence of a risk that can be mitigated.
Mr Crockford described the emotional attachment he and his family have to the property. He said that they do not feel unsafe and have adhered to the undertaking to evacuate the property when there is a High Fire Danger reading. Mr Crockford says this response is more to demonstrate responsible parenting than because he feels unsafe.
Mr Crockford says that if it is unsafe then it is equally unsafe for the recreational users and forest workers who are regularly in the neighbouring forest.
Mr Crockford does not agree the property is remote. He says the property is a short drive from Queanbeyan. Also the Tenants have a good relationship with neighbours and with forest management who keep the Tenants well informed. The Tenants have permission to knock down the fence and have made arrangements to access the ‘old’ Kings Highway, the TSR and Block 9 Road access roads and to use the concrete ‘underpasses’ under the Kings Highway which are part of the emergency response plan for forestry and parks workers and members of the public. The Tenants have their own emergency plan and have discussed this with Parks and Conservation management.
Mr Crockford described, and provided details in a list which was tendered, the efforts he has made to pursue the option of purchase of the property.[5] As at the hearing date he had not received a definitive response. Mr Crockford noted that efforts he had made to contact the Lessor to get the Lessor to participate in this process had not been responded to.
[5] Exhibit R4
Mr Crockford said that the first time he saw the 2006 Bushfire Report (Exhibit R5) was when it was provided to him at an ACAT Directions Hearing (on 26 August 2014 in Matter RT 14/426).
Submissions by Applicant
The Applicant is the lessor and the Respondents are the tenants of premises that are the subject of a residential tenancy agreement. The tenancy agreement commenced on 3 November 1988. From the commencement of the tenancy it could be ended by either party providing 14 days’ notice. Thus from the outset this was a periodic tenancy and not a fixed term tenancy.
The Applicant submits that the Respondents, in relying on section 40B(1) of the HR Act, ignore section 40B(2) of the HR Act.
The premises are held as a Territory Asset by Territory and Municipal Services (‘TAMS’). The Applicant is a proper party to the application because it manages the premises pursuant to an arrangement with TAMS and is authorized to do so. The Applicant is the lessor named in the tenancy agreement with the Respondents.
As lessor the Applicant has complied with section 47(a),(b) and (c) of the RT Act. The ground for the Notice to Vacate was clause 94. The Notice to Vacate provided the requisite 26 weeks’ notice and required the tenants to vacate on 22 December 2014. As at the date of the hearing the Tenants had not vacated.
Whilst the Lessor accepts that section 47 of the RT Act provides the Tribunal with a discretion, the Lessor submits that the exercise of that discretion is limited by the scope and purpose of the RT Act. The Lessor says the correct approach is that adopted by the Tribunal in Commissioner for Social Housing in the ACT v Massey [2013] ACAT 41. Although available, the exercise of the discretion to refuse the application is narrow.
The Lessor submits that the interpretation of section 47 of the RT Act when the ground for the issue of the Notice to Vacate – namely a clause 94 ‘no cause’ Notice - means that the circumstances relevant to the exercise of the discretion do not include incompatibility with the human right in section 12(1)(a) of the HR Act. The Lessor’s right to issue the notice does not rely on any act or event.
The right exercised and action taken by the Lessor is ‘lawful’. It is an express mechanism for a lessor to end a tenancy. It does not require a ‘reason’ and is therefore inherently ‘arbitrary’. There is no consistent interpretation of section of the 47 RT Act and section 12(1)(a) of the HR Act available where the lessor relies on clause 94 of the tenancy agreement, being clause 94 of the Standard Residential Tenancy Terms (schedule 1 to the RT Act).
In considering the limitation on section 12(1)(a) of the HR Act of this interpretation and section 28 of the HR Act, the Lessor submits that clause 94 of the tenancy agreement and section 47 of the RT Act provide a process to a lessor to end a tenancy that is demonstrably justified as a balance between safeguard and flexibility. The RT Act does not distinguish between public and private lessors in this regard. Although the Lessor as a public authority has its own obligations, these are not relevant to the decision in this matter. The Tribunal should avoid collateral review. ACAT also has an administrative review function, but not under the RT Act.
The Lessor submits that even though the Lessor does not have a policy in relation to the circumstances of this matter, this does not mean the Lessor’s decisions and actions are arbitrary.
The Lessor says that sub-sections 47 (a), (b) and (c) of the RT Act have been complied with. The discretion in section 47 of the RT Act should be narrowly construed having regard to its context in the RT Act. An application based on a ‘no cause’ notice pursuant to clause 94 of the tenancy agreement leaves very little scope for the exercise of the discretion short of unconscionable conduct by the Lessor. There is nothing in the current matter to suggest that occurred.
The Lessor does not dispute that termination of a tenancy agreement interferes with ‘home’ within the meaning of section 12(1)(a) of the HR Act. The Lessor agrees that it is a public authority and obliged to comply with section 40B of the HR Act. However the Lessor submits that its action is neither ‘unlawful’ nor ‘arbitrary’ within the meaning of section 12(1)(a) of the HR Act. The Lessor says that the issue of the Notice to Vacate and the application to the Tribunal by the Lessor are sanctioned by the RT Act.
The only question then, says the Lessor, is whether the action was ‘arbitrary’. This expression is not defined in the RT Act or the HR Act. The Applicant says the question has been considered in the UK in Manchester City Council v Pinnock (Secretary of State for Communities and Local Government and another intervening) [2010] UKSC 45 (‘Pinnock’) where the court said that it must be determined whether the response is considered a proportionate means to achieve a legitimate aim. However, the Lessor submits that this is difficult to assess where it is a ‘no cause’ notice. How can that be ‘proportionate’?
The Lessor’s representative said that in an online dictionary ‘arbitrary’ was defined as ‘random choice; unrestrained or autocratic use of authority’. This means that what is required by the Lessor is a ‘considered reason’ however that does not mean ‘beyond dispute’ or even ‘correct and preferable’. Even if aspects of the reports relied on by the Lessor were incorrect, that would not be sufficient to conclude that the decision or action was arbitrary.
The Lessor had been provided with a number of reports that raised safety issues such as fire risk. These were discussed with Mr Crockford. The Lessor did not have a specific policy. The nature of this tenancy, a rural lease, is not common for this Lessor. The reports raised safety concerns. This Lessor also has obligations to protect public funds and the safety of tenants. The decisions and actions by the Lessor were consistent with these obligations and were not arbitrary.
The Lessor says that section 40B(2)(b) of the HR Act is relevant in relation to the issue of a clause 94 ‘no cause’ Notice to Vacate. The clause 94 and section 47 of the RT Act process operates as a ‘reasonable limit’ (re section 28 of the HR Act) on the right in section 12(1)(a) of the HR Act. Clause 94 provides a necessary measure of flexibility for landlords in how they deal with assets and this is balanced with a tenant’s right to remain in occupation.
The extensive 26 period of notice was proposed in the Law Reform Commission Report which predated and was adopted into the RT Act and schedule 1 by the inclusion of clause 94.
In answer to final submissions by the Tenants, the Lessor submitted that it was not possible to interpret the operation of clause 94 and section 47 of the RT Act in a way that is consistent with section 12(1)(a) of the HR Act.
Whilst the Lessor accepts that the discretion in section 47 of the RT Act may bring into play section 12(1)(a) of the HR Act, because clause 94 intentionally and expressly requires no reason to be provided by a lessor, then it is incompatible with section 12(1)(a) of the HR Act. As ‘no reason’ is required, then there is no basis for asserting that the decision or action is ‘arbitrary’.
As the RT Act makes no relevant distinction between a private and a public lessor, then this distinction should not be brought into the consideration of section 47 of the RT Act.
In this regard section 47 should be distinguished from section 48 and 49 of the RT Act. These provisions, unlike section 47, contain within them, a necessary component for the exercise of the discretion to refuse the application by a lessor for termination.[6] This element is missing from section 47 of the RT Act.
[6] Sections 48(1)(a)(v) and 49(2)(b) of the RT Act
The Lessor says that section 40C of the HR Act provides the mechanism whereby a tenant can apply to the Supreme Court if there was an exercise of the right under clause 94 and section 47 of the RT Act by a ‘rogue’ representative of the Applicant and which the tenant asserts was in breach of section 12(1)(a) of the HR Act. The onus would rest on the Tenants to establish the alleged breach, not on the Lessor to prove ‘consideration’ within the meaning of section 40B(1)(b) of the HR Act.
Submissions by Respondent
The Tenants submitted that the information obtained by Mr Potts following his inspection of the premises on 15 February 2015 could not have informed the Applicant’s decision to issue the Notice to Vacate on 4 June 2014 and therefore is not relevant to the consideration of the question of whether that decision and action was arbitrary.
The Tenants accepted that if the Lessor does not have a policy this does not necessarily demonstrate ‘arbitrariness’, however the existence of a policy would help demonstrate that decisions and actions were not arbitrary.
Based on the similarity of the 2006 Bushfire Reports, 2010 Bushfire Report and 2013 Bushfire Report it is apparent that the Lessor had, for some time, had information about the risks. The decision to seek vacant possession in 2014 can be characterized as ‘arbitrary’ within the concept of proportionality discussed in the decision in Pinnock.
Section 47 of the RT Act provides the Tribunal with a discretion. Taking into account section 30 of the HR Act and the Lessor’s obligations under section 40B(1) of the HR Act and because of section 40C(1) and (2)(b) of the HR Act, the Tenants are entitled to rely on the alleged breach by the Lessor of section 12(1)(a) of the HR Act in these proceedings.
The Tenants say the breach of section 40B of the HR Act arises because the Lessor’s ‘action’ in issuing the clause 94 Notice to Vacate was arbitrary.
The Tenants rely on the definition of ‘arbitrary’ in the Macquarie Dictionary ‘subject to individual will or judgment; discretionary; not attributable to any rule or law; capricious; uncertain; uncontrolled by law; selected at random or by convention’.
The Tenants say that the Lessor, when relying on clause 94, either needs to reference some policy or needs to demonstrate a basis for, or reason for, the decisions.
The Tenants agree that section 40B(2)(a) of the HR Act does not apply in this matter, but says that the interpretation of section 47 of the RT Act and section 40B(2)(b) of the HR Act do not preclude the operation of section 40B(1) of the HR Act. The discretion available in section 47 of the RT Act enables it to be interpreted consistently with section 12(1)(a) of the HR Act.
Whilst the Tenants agree that the question of whether the Lessor’s decision was ‘arbitrary’ should not amount to a full administrative review of the merits of the decision, they argue that because the Lessor has no policy, the Lessor must show that the decision was not ‘arbitrary’.
The Lessor needs to demonstrate some ‘proportionality’ between the decision and the reasons for the decision. In this case, the lack of documented reasons suggests that prima facie the decision is arbitrary. This characterisation is not displaced by the Lessor providing ‘some’ evidence about ‘bushfire risk’.
The Lessor had been aware of the risks since 2006. The 2006 Bushfire Report sets out a number of steps that the Lessor needed to take at the premises in relation to the fire risk. There is no evidence that any of these steps were taken by the time of the 2010 and 2013 Bushfire Reports since all three reports were substantially the same.
The main difference in the reports is that subsequent to 2006 the Kings Highway was rerouted. This escalated, for the Lessor, the issue of access to the premises.
The Tenants challenge the conclusions reached in the 2006 Bushfire Report, 2010 Bushfire Report and 2013 Bushfire Report Bushfire Reports. The Tenants say –
a)the Lessor has been aware of the risks since 2006;
b)the reports provided to the Lessor were prepared by someone who was not called to give evidence;
c)Mr Potts (the Lessor’s witness), has no expertise in forest management, and he drew conclusions about the impact of forest ‘thinning’ without consulting with forestry management;
d)Mr Potts is not qualified to give an expert opinion; and
e)the Lessor’s conclusions were made without knowledge of the informal arrangements made by the Tenants in relation to additional exit possibilities by using the ‘closed’ section of the ‘old’ Kings Highway (to the East of the access road to the premises) and the forestry access roads TSR and Block 9 Road; and or use as emergency shelter of the ‘bunkers’ under the ‘new’ Kings Highway.
In short, the Tenants say the Lessor did not have sufficient information about the actual risks to conclude that termination of the tenancy agreement and vacation of the premises by the Tenants was the appropriate response.
The Lessor had not consulted with or explored with the Tenants alternative solutions such as purchase of the property by the Tenants.
The Tenants say that the Lessor does not own the premises and did not want to continue to manage the premises. The Lessor has therefore relied on the fire risk to issue the clause 94 notice and end the tenancy. The eviction of the Tenants is not a proportionate means to achieve this aim.
The Lessor has not assisted the Tenants in their efforts to explore the possibility of purchasing the premises. The Lessor has known since 2006 of its need ‘to take steps’ to minimize the fire risk. If the Lessor no longer wants to manage the premises and it cannot facilitate the sale of the property to the Tenants, then it should have at least worked in a consultative way with TAMS to support this process. Despite a 26 year tenancy there was no evidence of the Lessor’s provision of assistance or desire to resolve these issues.
The Tenants have taken steps and sought to make arrangements in a way that addresses the risk without the need for the current application by the Lessor.
The Tenants submit that reliance by the Lessor on clause 94 of the tenancy agreement is, prima facie, arbitrary. Thus section 12(1)(a) of the HR Act is engaged. The Tenants have relied on section 40C(2)(b) of the HR Act to assert that section 40B(1) of the HR Act applies to the Lessor. The evidence provided by the Tenants shows that the Lessor’s actions were arbitrary and therefore incompatible with section 12(1)(a) of the HR Act. This action is therefore unlawful because of section 40B(1) of the HR Act.
Whilst accepting that the exercise of the discretion in section 47 of the RT Act does not have the ‘built in proportionality’ of section 48(1)(a)(v) and section 49(2)(b) of the RT Act, the Tenants say that this is imposed by section 28 of the HR Act. In particular in relation to section 28(2)(e) of the HR Act as there is available a less restrictive means of achieving the purpose that the limitation on the human right seeks to achieve.
If the Lessor’s stated purpose is to no longer manage the premises then a less restrictive option is to allow the Tenants to pursue other avenues of tenure. In addition, the Lessor’s decision is made on a wrong premise, namely the assessment by a non-expert witness.
Finally, Mr Crockford submitted that if the Termination and Possession Order is granted the Tenants would need to move all of their belongings out. Then, if alternative arrangements can be made for them to reside at the premises, they would have to move all of their possessions back into the premises. The Respondents submit that the Tribunal should not make the order sought by the Lessor so that the Tenants have more time to explore these alternative options for tenure.
Consideration by Tribunal
Lessor and Tenancy Agreement
A tenancy agreement was signed on 3 November 1988. It provided (clauses 18 and 19) that it could be ‘determined’ by either party giving 2 weeks written notice.
The Applicant is not the ‘owner’ of the premises. There was some discussion at the hearing about whether the Applicant is the ‘lessor’ for the purpose RT Act.
The Tribunal is satisfied that a ‘Tenancy Agreement’ as defined in section 6A of the RT Act exists between the Applicant and Respondents. In the written tenancy agreement dated 3 November 1988, the Respondents are identified as the ‘lessees’ and the Applicant is the only other party to the agreement. After the enactment of the RT Act in 1998, the Standard Residential Tenancy Terms (schedule 1 to the RT Act) form part of the agreement.[7] There was no evidence that any inconsistent term, relevant to the Tribunal’s consideration of this matter, has been endorsed by the Tribunal pursuant to section 10 of the RT Act. Any inconsistent term is void.[8] The tenancy agreement is not a ‘fixed term’ agreement, and is therefore a ‘periodic tenancy’ as defined in the RT Act.
[7] Section 8 of the RT Act
[8] Section 9 of the RT Act
ACAT is authorised and has exclusive jurisdiction to determine tenancy disputes under the RT Act.[9] This jurisdiction is akin to that of a court and is not within the administrative review function of ACAT.
[9] Section 76 of the RT Act
In-so-far as the premises are owned by the ACT Government and the Applicant is the named lessor in the tenancy agreement, the Tribunal is satisfied that for the purpose of this application, the Applicant is the lessor of the premises within the meaning RT Act and that the Tribunal’s decision in relation to this application will bind the owner of the premises.
The term ‘tenancy dispute’ is defined in section 72 of the RT Act. This application is made by the Lessor pursuant to section 47 of the RT Act which is in Part 4 of the RT Act and is a ‘tenancy dispute’.
The Tribunal is satisfied that the Lessor is entitled to make an application to ACAT pursuant to section 47 of the RT Act. The Lessor has served a Notice to Vacate relying on clause 94 of the tenancy agreement (clause 94 of Schedule 1 to the RT Act).
The Lessor has utilized the clause 94 process and has applied for a Termination and Possession order pursuant to section 47 of the RT Act.
Interpretation of section 47 of the RT Act and section 12(1)(a) of the HR Act
The Tenants submit that the Lessor’s actions or decisions were ‘unlawful’ pursuant section 40B(1) of the HR Act because they are incompatible with section 12(1)(a) of the HR Act. The Tribunal is satisfied that it has jurisdiction to consider this submission by the Tenants pursuant to section 40C(2)(b) of the HR Act. This approach has been adopted by ACAT in other matters and was confirmed in the Supreme Court decision of LM v Childrens Court of the Australian Capital Territory and the Director of Public Prosecutions for the ACT [2014] ACTSC 26 at paragraph 27.
Section 47 of the RT Act permits a lessor who has utilized the procedures set out in the tenancy agreement to serve a Notice to Vacate relying on clause 94 and then to apply to ACAT for a termination and possession order. The only requirement is for the Lessor to provide 26 weeks’ notice and, at the time the matter is determined by ACAT, to show that the tenant has not vacated by the vacation date.[10] If satisfied as to section 47(1)(a)(b) and (c) of the RT Act the Tribunal then has a discretion to make the termination and possession order.
[10] Section 47(a)(b) and (c) of the RT Act
The Tribunal is obliged by section 30 of the HR Act to interpret section 47 of the RT Act, so far as is possible, compatibly with human rights, here section 12(1)(a) of the HR Act. The normal approach to statutory interpretation including the requirement of section 30 should be undertaken. If the interpretative process results in a limitation on a human right, then, an analysis of the operation of 28 of the HR Act in relation to that limitation is required.[11]
[11] See Law Society of the ACT & Treasury Directorate and NRMA Insurance (Appeal) [2013] ACAT 36 at paragraphs 110-112
The Tribunal must consider -
a)whether there is an interpretation of section 47 of the RT Act that is compatible with section 12(1)(a) of the HR Act rights; and
b)if not, then the limitation must be considered in light of section 28 of the HR Act;
c)whether after undertaking this exercise it can be said that the Lessor’s decision or action/s is/are ‘unlawful’ pursuant to section 40B of the HR Act; and
d)to what extent this and other matters raised by the Tenants should be taken into account by the Tribunal in the exercise of the discretion in section 47 of the RT Act.
Is the Lessor’s action ‘unlawful’ and incompatible with section 12(1)(a) of the HR Act?
Section 6A(1)(b) of the RT Act specifically identifies that a feature of a residential tenancy agreement is that it will be used by the tenant as their ‘home’. The Tribunal accepts that an order under section 47 of the RT Act would have the consequence of ‘interfering’ with the Tenants’ home.
Section 47 of the RT Act provides a legal process for ‘interference’ with the Tenants’ home. To the extent this ‘interference’ may be considered a limit on the Tenants’ right under section 12(1)(a) of the HR Act, the Tribunal accepts the Lessor’s submissions that the operation of clause 94 and section 47 of the RT Act achieve a balance of the respective parties’ rights so that the ‘limitation’ effected is ‘justifiable’ in light of section 28 of the HR Act. The Tribunal accepts that the process is not therefore ‘unlawful’ and is not incompatible with section 12(1)(a) of the HR Act. Nor are the Lessor’s actions ‘unlawful’ pursuant to section 40B(1) because of section 40B(2)(b) of the HR Act.
The Tribunal is satisfied that the action of the Lessor in making the application to ACAT is not an ‘unlawful’ interference with ‘home’ within the meaning of section 12(1)(a) of the HR Act.
The Tribunal accepts, and the parties did not dispute, that the Tribunal is not permitted to undertake a merits review into the decisions or actions by the Lessor prior to the application to ACAT in relation to the matters set out in section 47(1)(a) and (b) of the RT Act. The Tribunal must be satisfied as to section 47(1)(a), (b) and (c) of the RT Act before the discretion under section 47(1) of the RT Act arises.
There is no dispute that the Lessor served the Notice to Vacate dated 4 June 2014 relying on Clause 94 and the Notice to Vacate provided the requisite 26 weeks notice. The vacation date was 22 December 2014. As at the hearing date, the Tenants had not vacated the premises.
The Tribunal is satisfied as to section 47(1)(a)(b) and (c) and is able to consider the exercise of the discretion to make the Termination and Possession Order under section 47(1) of the RT Act.
Is the Lessor’s action ‘arbitrary’ and incompatible with section 12(1)(a) of the HR Act?
The Tenants assert that the Lessor is a public authority within the meaning of section 40 of the HR Act and section 40B(1) of the HR Act operates so that section 12(1)(a) of the HR Act protects the Tenants from actions and decisions by the Lessor that would result in ‘arbitrary’ interference with the Tenants’ home. This would be ‘unlawful’ within the meaning of section 40B(1) of the HR Act. The Tenants assert that this is relevant to the Tribunal’s exercise of the discretion in section 47(1) of the RT Act.
The Lessor argues that because a ‘no breach’ Notice to Vacate relying on clause 94 is, by its very nature, a ‘no cause’ and therefore a ‘no reason’ process, it is by its nature arbitrary and therefore section 12(1)(a) of the HR Act is not enlivened. The Tribunal should not, for that reasons, even consider, let alone be persuaded on the basis of the HR Act incompatibility alleged by the Tenants. Section 40(2)(b) operates to confirms there is no breach and the limitation is justified under section 28 of the HR Act.
In the Tribunal’s view, the interpretation of section 47 of the RT Act, taking into account section 30 of the HR Act, is consistent with section 47 of the RT Act operating so that only part of section 12(1)(a) of the HR Act is addressed by the operation of section 47(a),(b) and (d) of the RT Act. Insofar as section 12(1)(a) of the HR Act refers to ‘arbitrary’ interference it is appropriate for Tribunal to consider this aspect of this Lessor’s actions in response to the Tenants’ submissions.
The Tribunal accepts that, if ‘arbitrary’, then actions by the Lessor may be ‘unlawful’ pursuant to section 40B(1) of the HR Act because they are incompatible with section 12(1)(a) of the HR Act. Whilst this may not taint the process up to the point of consideration by ACAT, it is a factor that the Tribunal can take into account when exercising the discretion under section 47(1) of the RT Act.
In the Tribunal’s view this interpretation is consistent with the legislature providing a mechanism for ensuring that the Lessor acts in a way that is consistent with the obligations under the HR Act, but without the need to distinguish the Applicant from other lessors in the RT Act.
This interpretation means that the ‘lawful’ interference achieved by the operation of section 47(a), (b) and (c) of the RT Act is in effect ‘tempered’ for the purpose of section 28 of the HR Act because of the discretion given to ACAT and the ongoing operation of an element of section 12(1)(a) of the HR Act which protects these Tenants from ‘arbitrary’ action by this Lessor.
In considering this aspect of the matter the Tribunal is satisfied that it should not undertake a review of the Lessor’s decision-making or conduct in the way of an administrative review. Rather the Tribunal should consider whether the action taken by the Lessor has the character of arbitrariness that section 12(1)(a) of the HR Act identifies and section 40B(1) would make unlawful.
The Representatives for the parties provided various dictionary definitions for the meanings of the word ‘arbitrary’. This term is not defined in the RT Act, HR Act or Legislation Act 2001 (ACT). The dictionary definitions were similar. The Tribunal is satisfied that consideration of this aspect of the matter does not require or permit the Tribunal to investigate the merits of any decision or action taken, but rather be satisfied that it was not arbitrary.
The Tenants say that, for reasons they have provided, including the –
a)lack of appropriate expertise of those providing information to the Lessor;
b)the response and arrangements made by the Tenants to address the concerns apparently held by the Lessor about fire risk;
c)the alternative means of ‘escape’ identified and available to the Tenants and their family in the event of a need to evacuate;
d)the availability of alternative measures the Lessor could adopt or undertake to reduce the fire risk;
that the Tribunal should be satisfied that the Lessor acted in an arbitrary way in applying to end the tenancy. If it was arbitrary then it will not meet the requirement of section 12(1)(a) and therefore of section 40B(1)(b) of the HR Act.
The evidence available to the Tribunal included the evidence of Mr Potts and the Bushfire Reports. The Tenants challenged the expertise of Mr Potts and also that of the person who had provided the 2013 Bushfire Report relied on by Mr Potts. Similarly, the fact that the author/s of the Bushfire Reports that had been provided to the Lessor in 2006 and 2010 did not give evidence means, the Tribunal should give little weight to these reports.
Mr Crockford said that the Tenants had made enquiries, but were not able to afford to obtain an expert witness report about the fire risk or the cost of undertaking work at the premises to address or reduce this risk.
The Tenants provided information about alternative escape routes and the relationship they had with adjoining property owners including those managing the Kowen Fo rest areas. This is information the Tenants say could have been relevant to the Lessor’s decisions and actions in this matter, but the Lessor had not consulted with the Tenants and therefore the Lessor did not know about this information.
The Tribunal was not provided with any specific evidence as to the basis for the decision made by the Lessor to issue the Notice to Vacate. However the Tribunal is satisfied that the Lessor was aware of, and had reports dating back to 2006 assessing, the fire risk to the premises and Tenants.
The measures that would need to be taken, as an alternative to the Notice to Vacate, to address the concerns raised in the various Bushfire Reports were, according to Mr Potts, essential, costly and major if the tenancy was to continue.
The Tenants assert that in reality the Lessor’s real aim in seeking to end the tenancy is motivated by a desire to no longer manage the premises. There was no direct evidence about this. Thus the Tribunal is unable to say what the future arrangements are concerning the hand-back of the premises by the Applicant to TAMS.
The Tribunal notes, from the discussion at the hearing, that it is likely that the Lessor will no longer manage this property if the termination and possession order is made by the Tribunal and the Tenants vacate the premises. It appears likely that the property will not be used to meet the objectives of the Applicant in its role as the lessor of last resort, nor does it seem that the premises will be included in the pool of public housing rental properties. It is likely that the property will not be re-tenanted and it is possible that it will be returned to TAMS and it may be demolished.
Although Mr Crockford said he felt ‘safe’ at the premises he agrees that he would abandon the premises and would not attempt to fight a fire. He agreed that although there is adequate water on neighbouring land and the Tenants are permitted to use this water, the pressure is not sufficient to use for firefighting and there is no sufficient water supply for fire-fighting purposes at the premises.
The Tenants deny the premises are ‘isolated’ which is a premise relied on by Mr Potts and which influenced several of his conclusions. The Tenants say they have a good relationship with neighbours and are only a short drive from Queanbeyan. Mr Potts was cross-examined on this aspect of his evidence and repeated his conclusion. He said the term ‘isolated’ was not based on ‘distance’ or time needed to travel to the premises, but rather its location off the Kings Highway and the possibly dangerous access should a fire situation occur.
The Tenants submit that as Mr Swain – who prepared the 2010, 2013 and possibly the 2006 Bushfire Reports - was not called to give evidence and because Mr Potts’ and Mr Swain’s expertise is not apparent, that the Tribunal should not be persuaded by the reports and Mr Potts oral evidence that the information relied on by the Lessor is sufficient to displace the characterization of ‘arbitrary’ in relation to the Lessor’s actions.
The Tenants provided evidence about alternative escape routes; the failure by the Lessor to assist the Tenants in the purchase or re-leasing – from TAMS -of the premises; the failure of the Lessor to undertake the steps – such as protection of the sub-floor and installation of a water tank – which were identified in the various reports and which are a less restrictive means of achieving increased fire safety.
The Tenants do not deny the fire risk. The Tribunal is persuaded that the information available to the Lessor was such that the Lessor’s action in undertaking the process of applying to ACAT for a Termination and Possession order was not ‘arbitrary’.
The Tribunal does not consider that the question of ‘expertise’ of the Lessor’s witness, Mr Potts, or the author/s of the Bushfire Reports relied on by the Lessor affects this conclusion. There may be debate about how high the risk is or what exact measures are needed to reduce the risk and what escape routes should be used, but the risk is real and current.
The agreement between the Lessor and the Tenants at the outset and throughout this periodic tenancy agreement was that the Tenants were permitted to undertake whatever construction work they wanted, but the Lessor would not contribute to that construction or maintenance of the premises. Whilst this may not be an enforceable term of this tenancy agreement, nonetheless the reality is that the current residence at the premises, which is the structure that would need to be modified to meet safety standards, is likely the product of this construction by the Tenants more than it is the ‘shell’ that they first leased in 1988.
The Tribunal considers that it could not decline to end this tenancy unless it could be satisfied, at the very least, that it was safe for the tenancy to continue. The Tribunal does not have sufficient information before it to even begin to assess what would be needed to achieve that.
In the Tribunal’s view it would not be appropriate for the Tribunal to order, and the Lessor cannot require, the Tenants to make the necessary changes to adequately fire protect the premises.[12]
[12] Section 15(3) of the RT Act
Whilst the Tribunal accepts that the Tenants have an enormous attachment to this property where they have lived, raised their family and made improvements and undertaken maintenance at their own expense for 26 years, the Tribunal does not accept that the Lessor’s actions in making the application to the Tribunal can be described as ‘arbitrary’.
The Tribunal accepts that the circumstances of this matter are, likely, unique in the supply of housing managed by the Lessor. It is not surprising that there are no policy or other documents to address this ‘unique’ situation. The Tenants agreed that the mere absence of such documents is not proof that actions were arbitrary.
Although there was no specific evidence as to the actual decision making process prior to the Lessor’s application to ACAT in this matter, the Tribunal is satisfied that the Lessor had available the information set out in the Bushfire Reports as well as the opinion of Mr Potts following his inspection of the premises in September 2013. This information raised real questions as to the safety of the Tenants. Since the 2010 Bushfire Report, it was recommended that the property should not be tenanted due to the safety risk. The Lessor’s action in seeking to end the tenancy is consistent with the available information. The Tenants were provided with the 2010 Bushfire Report in 2012, and 2013 Bushfire Report at the 3 October 2013 meeting. In the Tribunal’s view the action taken by the Lessor is not arbitrary and is not incompatible with section 12(1)(a) of the HR Act.
In the Tribunal’s view, to the extent that it is ‘enlivened’, the Tribunal considers that the Lessor has not ‘unlawfully or arbitrarily interefered with the Tenants’ home’, the Lessor’s actions are compatible with section 12(1)(a) of the HR Act and are therfore not unlawful pursuant section 40B(1) of the HR Act.
Other factors relevant to exercise of discretion in section 47(1) of the RT Act
The Tribunal must therefore consider other aspects of this matter that are relevant to the exercise of the discretion in section 47 of the RT Act.
The Tribunal accepts the longstanding tenancy and intimate connection these tenants have with the premises. Given the terms of this tenancy agreement from its outset, it is likely that such an agreement would not be enforceable under the RT Act.[13] However the Tribunal accepts that this tenancy did survive the passage of the RT Act and now incorporates the Standard Residential Tenancy Terms and is governed by the RT Act.
[13] See for example clause 54 of schedule 1 of the RT Act
The Tenants have expressed concern about what will happen if the order is made by the Tribunal. The Tenants have, in effect, constructed, rebuilt or added to the structure at the premises converting it from an uninhabitable ‘shell’ to the current ‘residence’. The Tenants are concerned about what is to become of their fixtures?[14] Are they required to ‘make good’ at the time of vacation etc? The Tribunal accepts that in the circumstances of this matter these are major concerns for the Tenants.
[14] Clause 68 in Schedule 1 to the RT Act
The Tenants have also raised issues about the possible Heritage value of the premises and are concerned about the prospect of it being ‘bull dozed’ if they vacate. In the Tribunal’s view these are not matters that are relevant to this application.
The operation of the process for a lessor to obtain vacant possession of premises in the ACT, in relation to a clause 94 ‘no cause’ application pursuant to section 47 of the RT Act, is based on the service of a 26 weeks Notice to Vacate. Arguably this is a substantial period of notice. Under the RT Act and the Standard Residential Terms, tenants are provided with some additional ‘rights’ and ‘opportunities’ in relation to ending the tenancy agreement within this notice period.[15] If the tenant does not vacate, the lessor must apply to ACAT for a Termination and Possession order pursuant to section 47 of the RT Act.
[15] See clauses 88 and 95 of the Standard Residential Tenancies Terms
This process balances the right of the lessors to vacant possession of their property, and the right of tenants who meet their tenancy agreement obligations to remain in the premises until the agreement is ended in some way that is endorsed by the tenancy agreement and the RT Act. However, a tenancy agreement is not a right to indefinite occupation. Notwithstanding that a tenant has entirely met their obligations under a tenancy agreement, they may nonetheless be required to vacate the premises provided the lessor has done, if an order is necessary, that which is required to satisfy ACAT that it should make an order under section 47 of the RT Act. That is what has happened here.
The Tribunal is mindful that the Applicant provides social housing. This may be relevant to the Tribunal’s exercise of discretion when balancing the interests of the parties. The Tenants ask the Tribunal to be satisfied that it should not make the order sought and thereby the tenancy agreement will continue. That alternative raises real issues for the Tribunal in the circumstances of this matter. The Tribunal cannot be satisfied that these premises are safe or meet the requirements RT Act and Schedule 1 of the RT Act.[16]
[16] For example see clause 54 of the tenancy agreement
Mr Crockford gave a moving description of the impact that eviction would have on the Tenants and their family. The Tribunal without question accepts that the prospect is, as Mr Crockford described it, ‘heartbreaking’. The family has an emotional attachment to the property. They have expended considerable financial and physical resources at the premises and they are part of a local community.
The Tenants have raised concerns about the need to leave their long-term home. The Tribunal considers this is unfortunately a consequence which becomes more relevant as the duration of a tenancy continues. Nonetheless, the Tribunal considers that, most unfortunately for the Tenants, it should exercise the discretion to grant the application in this matter.
Although the Tribunal is satisfied that the Tenants are very attached to and have an enormous investment, in many ways, in the premises, the Tribunal does not consider that any of the matters raised by the Tenants outweigh or alleviate the concerns for the Tenants’ safety that have been raised in this matter.
The Tribunal appreciates that there will be many ‘logistical’ matters to be worked out in the termination of this tenancy. As the Tribunal understands it, the premises will not be re-tenanted. Therefore the Tribunal is confident that mutually acceptable arrangements can be made about the removal of the Tenants’ fixtures and additions to the premises.
The Lessor also indicated at the hearing that the Lessor did not have any objection, if the Tribunal did grant the order sought under section 47 of the RT Act, if the Tribunal were to suspend the operation of the Order for 3 weeks pursuant to section 47(2) of the RT Act.
Conclusion
After consideration of the submissions of the parties and the evidence, the Tribunal considers it appropriate to exercise the discretion in section 47 of the RT Act to grant the Lessor’s application and make a Termination and Possession order effective at 5pm on 16 April 2015.
Taking into account the nature of this tenancy and the impact of these orders on these Tenants, pursuant to section 47(2) of the RT Act, the Tribunal suspends the operation of these orders for 3 weeks.
………………………………..
Ms. W Corby
Senior Member
Schedule 1
Human Rights Act 2004 (ACT)
Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
40BPublic authorities must act consistently with human rights
(1)It is unlawful for a public authority—
(a)to act in a way that is incompatible with a human right; or
(b)in making a decision, to fail to give proper consideration to a relevant human right.
(2)Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and—
(a)the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b)the law cannot be interpreted in a way that is consistent with a human right.
NoteA law in force in the Territory includes a Territory law and a Commonwealth law.
(3)In this section:
human rights do not include the economic, social and cultural rights in part 3A.
public authority includes an entity for whom a declaration is in force under section 40D.
40CLegal proceedings in relation to public authority actions
(1)This section applies if a person—
(a)claims that a public authority has acted in contravention of section 40B; and
(b)alleges that the person is or would be a victim of the contravention.
(2)The person may—
(a)start a proceeding in the Supreme Court against the public authority; or
(b)rely on the person’s rights under this Act in other legal proceedings.
(3)A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.
(4)The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.
(5)This section does not affect—
(a)a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or
(b)a right a person has to damages (apart from this section).
NoteSee also s 18 (7) and s 23.
(6)In this section:
public authority includes an entity for whom a declaration is in force under section 40D.
Residential Tenancies Act 1997 (ACT)
6AWhat is a residential tenancy agreement?
(1)An agreement is a residential tenancy agreement if, under the agreement—
(a)a person gives someone else (the tenant) a right to occupy stated premises; and
(b)the premises are for the tenant to use as a home (whether or not together with other people); and
(c)the right is given for value.
(2)The agreement may be—
(a)express or implied; or
(b)in writing, oral, or partly in writing and partly oral.
(3)The right to occupy may be—
(a)exclusive or not exclusive; and
(b)given with a right to use facilities, furniture or goods.
(4)This section is subject to the following sections:
· section 6D (Certain kinds of agreements not residential tenancy agreements)
· section 6E (Certain people given right of occupation not tenants)
· section 6F (Certain kinds of premises mean no residential tenancy agreement).
Standard residential tenancy terms
(1)A residential tenancy agreement—
(a)must contain, and is taken to contain, terms to the effect of the standard residential tenancy terms mentioned in schedule 1; and
(b)if the lessor and tenant agree—may contain a fair clause for posted people; and
(c)may contain any other term—
(i)that is consistent with the standard residential tenancy terms; or
(ii)that is inconsistent with a standard residential tenancy term if the term has been endorsed by the ACAT under section 10.
(2)In this section:
fair clause for posted people means the following clause:
Termination because of posting
(1)The tenancy agreement may be terminated—
(a)if the lessor is posted to Canberra in the course of the lessor’s employment—by the lessor giving the tenant at least 4 weeks written notice; or
(b)if the tenant is posted away from Canberra in the course of the tenant’s employment—by the tenant giving the lessor at least 4 weeks written notice.
(2)The tenancy ends—
(a)4 weeks after the day a notice is received under subclause (1); or
(b)if a later date is stated in the notice—on the stated date.
Inconsistent tenancy terms void
(1)A term of a residential tenancy agreement is void if—
(a)it is inconsistent with a standard residential tenancy term; and
(b)it has not been endorsed by the ACAT under section 10.
(2)A term of a residential tenancy agreement is void if it is inconsistent with this Act (other than a standard residential tenancy term).
Endorsement of inconsistent tenancy terms by ACAT
(1)The parties to a residential tenancy agreement may apply in writing to the ACAT for endorsement of a term of the agreement (the inconsistent term) that is inconsistent with a standard residential tenancy term.
(2)If the parties apply for endorsement of the inconsistent term, the ACAT must do 1 of the following:
(a)endorse the inconsistent term;
(b)substitute the equivalent standard residential tenancy term for the inconsistent term.
(3)In making a decision under subsection (2), the ACAT must consider—
(a)the criteria determined under subsection (6); and
(b)whether the inclusion of the inconsistent term in the residential tenancy agreement was obtained by fraud or undue influence.
(4)The ACAT must not endorse a term that is inconsistent with this Act (other than a standard residential tenancy term).
(5)The ACAT must not endorse a term mentioned in section 15 (5) in relation to a tenant unless satisfied that the tenant owes an amount to the housing commissioner.
(6)The Minister may determine criteria for subsection (3) (a).
(7)A determination is a disallowable instrument.
NoteA disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.
Rent or a bond only
(1)In consideration for giving a tenant a right to occupy premises, a lessor may only require or accept rent or a bond.
(2)A lessor must not require or accept any consideration for—
(a)agreeing to enter into, extend or renew a residential tenancy agreement; or
(b)agreeing to the assignment or transfer of a tenant’s rights and obligations under a residential tenancy agreement; or
(c)consenting to a tenant entering into, extending or renewing a residential tenancy agreement with a subtenant; or
(d)vacating premises; or
(e)giving a tenant a key to premises; or
(f)informing a tenant about the availability of premises for occupation under a residential tenancy agreement.
(3)For subsection (1), a requirement that a tenant make alterations, improvements or repairs to the premises is taken to be consideration.
(4)In subsection (1), a reference to a bond includes a reference to a guarantee or an indemnity under section 16.
(5)This Act does not prevent the housing commissioner from requiring a tenant to agree to pay an outstanding amount owed by the tenant to the housing commissioner in relation to a previous tenancy in consideration for giving the tenant a right to occupy premises if the ACAT has, under section 10, endorsed the term of the residential tenancy agreement requiring the payment.
(6)The inclusion in a residential tenancy agreement of a term requiring payment of an outstanding amount owed by the tenant to the housing commissioner does not prevent—
(a)the commissioner and the tenant agreeing to the tenant repaying the outstanding amount over a period of time longer than the period set out in the term; or
(b)the commissioner from taking action against the tenant in relation to the outstanding amount.
Termination
Despite anything to the contrary in any territory law, a residential tenancy agreement must not terminate or be terminated other than in the following circumstances:
(a)if a fixed term agreement ends and the tenant vacates the premises on or after the end of the agreement;
(b)if a tenant notifies the lessor in the form approved under section 133 (Approved forms—Minister) for a termination notice, and vacates the premises in accordance with the notice;
(c)if the ACAT terminates an agreement under division 4.3 or division 4.4;
(d)if the ACAT makes a termination and possession order in relation to the premises that are the subject of the agreement under division 4.4 or division 4.5;
(e)if the tenant abandons the premises that are the subject of the agreement;
(f)if a person takes action in accordance with section 64;
(g)if the tenant and lessor agree in writing to terminate the agreement and the tenant vacates the premises in accordance with the agreement to terminate;
(h)if the tenant and the lessor are the same person;
(i)if—
(i)a party to the agreement repudiates the agreement; and
(ii)the other party accepts the repudiation; and
(iii)the tenant vacates the premises;
(k)for crisis accommodation—if the lessor—
(i)gives the tenant 4 weeks notice to terminate the agreement; and
(ii)has given the tenant information about alternative accommodation; and
(iii)needs the premises to use as crisis accommodation for someone other than the tenant.
No breach of standard residential tenancy terms
(1)On application by a lessor, the ACAT may make a termination and possession order if satisfied that—
(a)a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms); and
(b)the lessor has served a termination notice on the tenant based on that ground; and
(c)the tenant has not vacated the premises as required by the termination notice.
(2)If—
(a)the ACAT makes an order under subsection (1); and
(b)the ACAT is satisfied that—
(i)were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and
(ii)that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period;
the ACAT may suspend the operation of the termination and possession order for a specified period of no more than 3 weeks.
Lessor to provide premises in a reasonable state at the start of the tenancy
(1) At the start of the tenancy, the lessor must ensure that the premises, including furniture, fittings and appliances (unless excluded from the tenancy agreement), are—
(a)fit for habitation; and
(b)reasonably clean; and
(c)in a reasonable state of repair; and
(d)reasonably secure.
(2)An exclusion must be in writing and may, but need not, be included in the tenancy agreement (if in writing).
(3)The lessor or the tenant may change locks (at his or her own cost unless otherwise agreed) with the agreement of the other party (which will not be unreasonably withheld).
(4)The lessor or the tenant may change locks (at his or her own cost) in an emergency without the agreement of the other party.
(5)If a lock is changed, a copy of the key to the changed lock must be provided to the other party as soon as possible.
Lessor to make repairs
(1) The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
(2)The tenant must notify the lessor of any need for repairs.
(3)This section does not require the tenant to notify the lessor about anything that an ordinary tenant would reasonably be expected to do, for example, changing a light globe or a fuse.
The lessor is not obliged to repair damage caused by the negligence or wilful act of the tenant.
Subject to clause 55, the lessor must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed).
Meaning of tenancy dispute
(1) For this Act, a dispute is a tenancy dispute if it—
(a)is between the parties to a residential tenancy agreement; and
(b)is about, arises from, or relates to, the agreement.
(2)A tenancy dispute includes—
(a)a dispute if an application relating to the dispute may be made under part 4 (Termination of residential tenancy agreements) or part 5 (Rental rate increases); and
(b)an application for compensation under this Act.
Termination on or after end of fixed term
(1) The tenant may give notice to terminate a periodic tenancy by giving the lessor not less than 3 weeks notice of the date when the tenant intends to vacate the premises.
(2)The tenancy ends on the date specified by the tenant.
(1) The tenant may give notice to terminate a fixed term tenancy at or after the end of the tenancy by giving 3 weeks notice of the date when the tenant intends to vacate the premises.
(2)The tenancy ends on the date specified by the tenant.
Termination of tenancy without cause
The lessor may serve a notice to vacate during the term of a tenancy requiring the tenant to vacate the premises at the end of the notice provided that—
(a)the notice is for 26 weeks; and
(b)the notice does not require the tenant to vacate the premises during a fixed term.
(1) If a tenant is required to vacate the premises in accordance with clause 94, the tenant may vacate the premises at any time during the 2 weeks before the date specified in the notice to vacate provided the tenant gives the lessor 4 days notice of intention to vacate.
(2)In this case, the tenancy terminates on the date that the tenant vacates the premises.
Relevant terms in the Dictionary
fixed term agreement means a residential tenancy agreement under which a tenant has a right of occupation for a fixed term.
periodic agreement means a residential tenancy agreement that is not a fixed term agreement.
HEARING DETAILS
FILE NUMBER: | RT14/1094 |
PARTIES, APPLICANT: | Commission for Social Housing in the Australian Capital Territory |
PARTIES, RESPONDENT: | Robert Crockford and Pamela Crockford |
SOLICITORS FOR APPLICANT | Ms Holley (ACT Government Solicitor’s Office) |
SOLICITORS FOR RESPONDENT | Ms Gould (Canberra Community Law formerly Welfare Rights and Legal Centre) |
TRIBUNAL MEMBERS: | Ms W. Corby – Senior Member |
DATES OF HEARING: | 23 and 24 February 2015 |
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