Commonwealth of Australia (As Represented By the Department of Infrastructure and Regional Development) v Young
[2015] FCCA 3277
•11 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) v YOUNG & ANOR | [2015] FCCA 3277 |
| Catchwords: ADMINISTRATIVE LAW – Commonwealth tenancy dispute – termination of a periodic tenancy agreement under s.85 Residential Tenancies Act 2010 (NSW) – respondents in possession of the premises for less than 20 years – whether termination of the tenancy agreement is granted – original tenancy agreement expired – respondents notified of termination – termination of tenancy agreement granted – consideration of competing interests – order for vacant possession suspended. |
| Legislation: Airports Act 1996 (Cth) |
| Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development) v Foster [2015] FCCA 2663 Commonwealth of Australia (As Represented by the Department of Infrastructure and Regional Development) v Hevers & Anor [2015] FCCA 1814 |
| Applicant: | COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
| First Respondent: | JASON YOUNG |
| Second Respondent: | LOUISE YOUNG |
| File Number: | SYG 1804 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 29 September 2015 |
| Date of Last Submission: | 29 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr D.W. Rayment |
| Solicitors for the Applicant: | Australian Government Solicitor |
| The Respondents appeared in person |
ORDERS
The residential tenancy agreement in relation to the premises at 404804, 10 (formerly Lot 2) Jackson Road, Luddenham New South Wales 2745 (“Premises”) be terminated with effect from 11 December 2015.
Vacant possession of the Premises be given to the applicant on or before 15 December 2015.
The order for vacant possession be suspended until 1 February 2016.
There be no order as to costs in relation to the proceedings.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1804 of 2015
| COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) |
Applicant
And
| JASON YOUNG |
First Respondent
| LOUISE YOUNG |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The respondents have been in occupation of the property situated at 10 (formerly lot 2) Jackson Road, Luddenham New South Wales 2745 (“Premises”) since about October 1997. The respondents most recently entered into a residential tenancy agreement (“Agreement”) with the Commonwealth on 21 May 2007, for a term of 52 weeks.
Luddenham is part of the semi-rural western edge of the greater metropolitan area of Sydney. The Premises are owned by the Commonwealth and are part of a site which is proposed to be developed as a new airport. In order to proceed with the development of the site, the Commonwealth wishes to obtain vacant possession of the Premises.
In order to do so, it served on the respondents a notice of termination of the Agreement nominating 22 June 2015 as the date of termination and by which vacant possession was required to be given. When the respondents did not vacate the property by that date, the Commonwealth commenced these proceedings seeking orders terminating the Agreement and for vacant possession of the property.
The parties later tendered an Agreed Statement of Facts, part of which relate to the circumstances relied on by the respondents in support of their desire to remain on the property until 1 February 2016. The respondents also relied on the facts set out in a submission filed on 22 September 2015 and tendered in Court on 29 September 2015.
Given that the respondents have been in possession of the property for less than 20 years, the Court must make a termination order if it is satisfied that a termination notice was given in accordance with s.85 of the Residential Tenancies Act 2010 (NSW) (“Tenancies Act”) and the respondents have not vacated the premises as required by the notice. In making such an order, the Court must make an order for vacant possession and specify the date upon which the order is to take effect.
An order for possession may be suspended if the Court considers that it is desirable to do so having regard to the relative hardship likely to be caused to the parties by the suspension: Tenancies Act, s.114.
I accept that a proper notice of termination has been served and the Agreement must be terminated.
The Commonwealth says that it needs occupation of the land in order to proceed with the proposal to develop the whole site as an airport. I accept that the proposal is considered to be in the national interest and that the Commonwealth has a genuine need for possession in order to pursue that interest.
However, the personal circumstances of the respondents are such that it is desirable that an order for immediate possession ought to be suspended until 1 February 2016.
The relevant statutory framework
As I explained in Commonwealth of Australia (as Represented by the Department of Infrastructure and Regional Development) v Hevers & Anor [2015] FCCA 1814 (“Hevers”), this Court has jurisdiction pursuant to s.10AA of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) in relation to Commonwealth tenancy disputes in which the Commonwealth is the lessor and a person other than the Commonwealth is the lessee. In exercising that jurisdiction in respect of land in New South Wales, the Court is to apply the Tenancies Act subject to some modifications and to the extent necessary to determine the dispute: Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (“Tenancy Disputes Instrument”), s.7.
A Commonwealth tenancy dispute includes a matter involving a lease, licence or other arrangement to possess, occupy or use land and a dispute about the termination of the lease, licence or other arrangement in which the Commonwealth is a party: FCCA Act s.5.
There is no question that these proceedings involve a Commonwealth tenancy dispute. In Commonwealth of Australia (as Represented by the Department of Infrastructure and Regional Development) v Foster [2015] FCCA 2663 (“Foster”), I explained the relevant statutory scheme as well as the background to that scheme. There is no need to repeat that discussion here except to note that the Tenancies Act relevantly commenced operation on 31 January 2011 and applies to residential tenancy agreements in respect of residential premises before or after that date: s.7. Essentially, for the reasons given in Foster, if a notice of termination has been served and the tenants have not already given vacant possession, the Court must terminate the lease and to nominate a day by which vacant possession must be given. Section 8(2) of the Tenancy Disputes Instrument amends the Tenancies Act so that the date for possession is the date that the Court considers appropriate. That date can be postponed to a later date having regard to the relative hardship to each of the parties.
Evidence
As I noted in Foster, the first step of the approach to this case is to determine whether the duty to make a termination order arises. That requires consideration of whether a notice of termination has been given in terms required by the Tenancies Act and whether the respondents have vacated the property as required by the notice. The second step is to determine what the appropriate date is for vacant possession to be given. This involves a balancing of the parties’ interests. Part of this consideration could also involve the application of s.114 of the Tenancies Act to suspend the date of the order for vacant possession.
It is convenient to set out the facts agreed by the parties before turning to each relevant consideration.
The agreed facts
There was no dispute about any of the contents of the affidavits relied upon by the Commonwealth which included the following matters.
The Commonwealth is the owner of the Premises being part of Lot 1 DP 838361 which was acquired by the Commonwealth (together with a large number of other individual titles in the area) in the 1980s and 1990s for the purposes of a proposed airport site.
The proposed airport site comprises a single allotment formed from the consolidation of a large number of titles effected by a Plan of Consolidation registered on 12 April 1995 together with other individual titles generally adjoining, or nearby, the consolidated title area.
[repeats points immediately below]On 15 April 2014 the Australian Government announced that the site for a proposed Western Sydney airport would be Badgerys Creek.
The Premises are part of the Commonwealth-owned land proposed to be the “Sydney West Airport”, as it was described when declared as an “airport site” for the purposes of the Airports Act 1996 (Cth) by the Airports Regulations 1997 (Cth) (as amended by the Airports Legislation Amendment (2015 Measures No. 1) Regulation 2015 (Cth)).
As noted earlier, the Respondents have been in occupation of the Premises since October 1997. The respondents last made a residential tenancy agreement for the Premises with the Commonwealth on 21 May 2007 using the form prescribed by the Residential Tenancies Act 1987 (NSW) (“1987 Act”).
While the nominated termination date of the Agreement was 18 May 2008, the Agreement expressly provides on its front page for “continuation” until the agreement is terminated in accordance with the 1987 Act.
The tenancy agreement contained a special condition in cl.44.1 that stated: “The tenant acknowledges that the premises form part of the proposed site for Sydney West Airport”. (Emphasis in original)
On 29 October 2014 a letter was sent to the Respondents (at the address noted in the tenancy agreement) by the Commonwealth’s agent Preston Rowe Paterson (“PRP”) which informed them:
The Australian Government on 15 April 2014 announced that land owned by the Australian Government at Badgerys Creek will be the site for Western Sydney’s airport. I am writing to provide information about what this decision means for you, as an occupant on the Australian Government owned land at Badgerys Creek.
…
Since the date of acquisition, the land has been owned by the Australian Government in anticipation of a future decision on the location of an airport. The Government has now made that decision. The Government has recently commenced consultation with the Sydney Airport Group about developing and operating an airport at Badgerys Creek.
To implement the Australian Government’s decision, all properties on the site, including the property you occupy, will need to be vacated. …
…
In the coming weeks, you will receive a formal notice of termination of your tenancy. That notice will provide a specific date by which you will be required to vacate the property. It is likely that this date will be in June 2015 – but it will not be earlier.
The letter invited the respondents to contact the “Place Manager” by email or phone to discuss the contents of the letter or if they had any questions about the process.
On 24 November 2014 a further letter was sent to the respondents (at the address noted in the tenancy agreement) by PRP which informed them inter-alia:
The Government requires that all tenants vacate the site by 15 June 2015.
The letter went on to invite the Respondents to contact the “Place Manager” “if anything in this letter or the attachment is unclear”. The letter was accompanied by a document entitled “Tenant’s Responsibilities and Vacating Checklist”.
On 19 March 2015 PRP, as agent for the Commonwealth, issued a Notice of Termination addressed to the respondents (at the address noted in the Agreement). The Notice of Termination was personally delivered to the first respondent on 19 March 2015 by a licensed process server.
The Notice of Termination notified the respondents:
The Commonwealth hereby gives you notice under section 85 of the [Residential Tenancies Act 2010];
1)terminating the Tenancy Agreement in respect of the Premises on 22 June 2015 (the Termination Date); and
2)that You are required to give vacant possession of the Premises to the Commonwealth by the Termination Date.
(Emphasis in original)
On 10 June 2015 a letter was sent to the Respondents (at the address noted in the tenancy agreement) by PRP which reminded them of the requirement to vacate the Premises on or before 22 June 2015 and informed them that if they failed to do so, the Commonwealth “will apply to the Court for an order for possession of the property in accordance with the law.” The letter enclosed an attachment entitled “Vacate Information for Residential Tenants on Commonwealth-owned Land at Badgerys Creek”. This included information about the initiation of court processes should the respondents fail to leave by the required vacancy date.
The respondents have not given vacant possession of the Premises.
The Agreed Statement of Facts then included a number of facts relating to the Respondents’ circumstances relevant to relocation from the Premises:
[16]The Respondents’ middle daughter, grandson and son-in-law live at the Premises. The Respondents’ 18-year-old daughter also resides at the property sporadically.
[17]The Respondents’ middle daughter has recently given birth to twins who are also living at the Premises. The Respondents’ daughter suffered complications whilst giving birth and currently sees a nurse daily at their home to assess her health and the health or her newborn twins. The Respondents’ daughter and her twins are recovering. Having to relocate so soon after giving birth will cause their daughter and her babies stress, especially in circumstances where they have been in poor health. The Respondents do not wish to move into a regular suburban property as they currently own thirteen head of cattle, fourteen goats (to which they have special emotional attachment), three horses and numerous chickens.
[18]The Respondents are also in possession of a substantial amount of large farm equipment including but not limited to cattle yards, loading ramps, cattle pens and shipping containers that the respondents would like to store at the next property they secure.
[19]The Respondents are currently looking for a suitable property that is within their price range to purchase. Until they find such property they wish to continue to rent the Premises or another property.
[20]Properties that can accommodate the Respondents’ livestock, farm equipment and eight people, are not in large supply in the Badgerys Creek area. There are no such rental properties in the Badgerys Creek area that can accommodate the Respondents’ livestock, farm equipment and eight people for the same rental as the Respondents are paying for the Premises.
[21]The First Respondent’s elderly parents are unwell. They live in Fairfield West. The First Respondent is their only child. He attends their home several times a week to provide them domestic assistance. For this reason, the Respondents do not consider themselves able to look for premises outside of the Sydney region.
[22]The Respondents state that they have observed vandalism occurring to vacant houses on the proposed airport site near the Premises.
[23]The Respondents have been consistently looking for a property they consider suitable since receiving the Notice of Termination but have, despite their best efforts, not been able to locate a property they consider suitable.
[24]The Respondents commit to vacating the Premises permanently by 1 February 2016 irrespective of whether they locate another property. If they secure an alternative property prior that time they intend to vacate immediately.
Further facts relied upon by the Respondents
At the hearing of this matter, the respondents tendered a written submission which also contained a number of facts outside the scope of the Statement of Agreed Facts referred to above. In particular, this document explained the importance of the animals on the Premises to the respondents and their family. This and the other factual parts of the submission were taken into evidence. The most germane part is as follows:
In 1990 we gave birth to twin girls named Alice and Jessica. Alice was severely handicapped and struggled most of her life. Despite Alice’s struggles, we were and are a very close-knit family and loved her very much. In 2001, four years after we began renting the property, Alice passed away suddenly due to complications associated with her disabilities. This was an incredibly traumatic time for our family. We found solace in our home, and to help our young children deal with the grief of losing Alice, we bought two goats, a Nanny goat and a Billy goat, to serve as a constant reminder of Alice. It was our plan that the goats, Ellie and Billy, would have offspring, and that way us and the children would care for the goats and have a constant reminder of Alice in our lives always. The goats we have now are all offspring of Ellie and Billy, and some fifteen years later we still have Ellie. If we are forced to leave the property without finding a property they can house our animals, will be forced to have them destroyed. We are desperate for this not to happen.
The Commonwealth’s reasons for possession
The matters relied upon by the Commonwealth were set out in its affidavits and were not in dispute. They can be summarised as follows.
The first steps towards construction of an airport
In the late 1980s and 1990s the Commonwealth undertook a land acquisition program in the Badgerys Creek area to acquire and reserve the land needed for an airport in Western Sydney. The land acquisition program resulted in the acquisition by the Commonwealth of a large number of individual titles in the suburbs of Badgerys Creek, Luddenham and Greendale.
A 2012 Joint Study on aviation capacity in the Sydney region, commissioned jointly by the Commonwealth and NSW Governments, identified that the demand for passenger journeys in the Sydney region was forecast to more than double over the next 20 years and to double again by 2060.
On 15 April 2014, in a joint release with the then Prime Minister Tony Abbott, the Minister for Infrastructure and Regional Development, Warren Truss announced that the site for Western Sydney’s new airport would be Badgerys Creek. He announced that, although the airport would not be fully operational for a decade, planning for the new airport would start immediately and construction should start in 2016. He also said that, because of the time it takes to plan and build an airport, the Government’s approach would be to build the roads first and the airport second. It was envisaged that most of the cost of the airport would be met by a private sector operator.
The evidence in respect of the development of the site for the airport was given on behalf the Commonwealth by Peter Robertson, a General Manager at the Department of Infrastructure and Regional Development. He is one of three Senior Executive Service staff members managing the proposed Badgerys Creek airport project and has been engaged on it since the establishment of the Western Sydney unit which is tasked with the management of the proposed airport. Mr Robertson is responsible for management of policy development for the project and project timeframes.
In an affidavit affirmed on 26 June 2015, Mr Robertson set out a number of reasons why vacant possession was urgently required by the applicant. These reasons included: enabling the Commonwealth to comply with its contractual obligations and project timetable; the growing incompatibility of continued residential accommodation and the ongoing investigation and demolition works both in terms of cost and delay impacts on the work at the site; and, concerns as to the safety and security of the remaining tenants and the site.
Mr Robertson explained that planning for an airport requires substantial on-site technical work including extensive investigations to support environmental assessment and geotechnical work by engineers and other consultants.
In light of the occupation of parts of the site by a number of remaining tenants, the work had been either been tailored to parts of the site of which the Commonwealth had possession, or, alternatively, liaising with tenants to ensure that testing could be conducted safely without unnecessary disturbance. Mr Robertson explained that the additional work and costs that have resulted from working around tenants were “considerable”, although he did not give any further detail in that respect. Notably, his evidence did not deal directly with the part of the site on which the respondents’ home is located. Indeed, his evidence was that the planning, assessment, site management and preparation activities for the airport site were being undertaken on a “whole of site” basis for all of the land to be included in the airport site.
Mr Robertson described the process for accessing residential tenant blocks as being “extensive and time consuming”. The steps usually followed in accessing residential properties were:
(1)Identify sites for access: contracted specialists would identify access requirements for all specialist investigations on the site and then submit a request for access to the Department. That request would then reviewed by the Department in considered consultation with the property manager. Alternative access options would be identified should there be tenancy considerations.
(2)Seek consent from tenants: once the final list of survey sites was determined then the Department would liaise with existing tenants by way of letters prepared by lawyers and follow-up telephone calls.
(3)Where tenants refuse access: a new survey site would need to be identified in accordance with the previous steps.
(4)Finalise access to the sites: when tenants are notified and consent is received the lists of sites for access is finalised, mapped and sent to contracted specialists to be given to the survey team.
(5)Access to sites on the day of investigations.
Mr Robertson explained that the constant requirement to seek consent had implications for the achievement of the projects timeframes and generated substantial costs with uncertainties relating to access causing “serious obstacles to planning, delay and costs for the work on site”.
Mr Robertson stated that as at June 2015 a minimum of 9 to 12 months was expected to be required to clear the airport site and that that timeframe was only achievable with multiple contractors working concurrently on the site with limited unfavourable weather. The expectation was also based on the assumption that there were multiple structures requiring demolition on 182 remaining properties after June 2015.
In an affidavit affirmed on 10 August 2015, Mr Robertson gave evidence that the entire site had now been declared as an airport site under the Airports Act 1996 (Cth) by operation of the Airports Legislation Amendment (2015 Measures No. 1) Regulation2015 (Cth) which was registered on 24 July 2015. He explained that one of the consequences of that declaration was that airspace could now be declared to aid in the prevention of any incompatible development taking place around the airport site that might limit its potential development as an airport.
As at 6 August 2015, 68 of an estimated 233 properties had been demolished, and 33 further properties had been allocated for demolition to be completed before mid-September 2015, weather permitting. Mr Robertson said that there were still approximately 165 properties requiring clearance of structures and that only 45 of the 165 properties were available for demolition. Over 45% of the properties on site that require demolition had been cleared of structures. Further, 103 of an estimated total of 163 tenants had vacated the site, noting some tenants have occupancy arrangements over multiple properties.
Preparation for development by a private sector operator
As was mentioned in the 15 April 2014 joint press release, the Commonwealth envisaged that the costs of the airport would be principally met by a private sector operator. Mr Robertson gave evidence about the contractual processes being undertaken by the Commonwealth in connection with that operator.
Mr Robertson stated that when the Commonwealth sold Sydney (Kingsford Smith) Airport to the Sydney Airport Group in 2002, the sale agreement included terms granting an opportunity to the purchaser to develop and operate any second major airport in the Sydney region within 100 kilometres of the Sydney GPO. That sale agreement detailed the process and timeframes for consultation between the government and owners of the Sydney airport on the development and operation of a second airport. The specific details of those processes were not in evidence before me.
As Badgerys Creek is located approximately 56 kilometres from the Sydney GPO, the “Right of First Refusal” in the airport sale contract were applicable. That Right of First Refusal includes a number of phases including a consultative phase and a contractual phase. Those phases are expected to take between one and two years to complete.
On 30 September 2014 the Commonwealth government issued a “Notice to Consult” to the Sydney Airport Group advising that the consultative phase of the process would commence on 1 October 2014. The notice specified that the consultative phase would take nine months and so expire on 30 June 2015.
Mr Robertson explained that, following the consultative phase, the Government may enter a contractual phase which would involve the issuing of a “Notice of Intention” to the Sydney Airport Group which would include detailed terms for the proposed development and operation of an airport at Badgerys Creek including technical specifications, contractual terms and a timetable. The Sydney Airport Group would then have the opportunity to exercise its option to develop and operate the airport at Badgerys Creek. If it declined that opportunity, the Commonwealth would be entitled to approach the market, or develop and operate the airport itself.
Mr Robertson gave evidence that while consultation was currently underway and a final decision on the airport proposal had not yet been made, a clear site was necessary to allow for investigations of the site to inform any proposal that could be made to the Sydney Airport Group or the market or in order to determine whether development would be carried out by the government itself. Essential to any proposal is the outcome of the Environmental Impact Assessment process, geotechnical and engineering investigations, archaeological surveys, and other site interrogations.
Mr Robertson said that any second airport for Sydney would be a substantial piece of national transport infrastructure utilising a site measuring in the order of 1700 hectares and would be a key resource for the operation of the New South Wales and national economies because of its significance to air transport and a number of associated industries. That must be correct as a matter of common experience and I accept it.
Consideration
First issue: Notice of termination
The respondents commenced possession of the Premises in October 1997. The Agreement was entered into on 21 May 2007. The term of the Agreement was for 52 weeks beginning on 21 May 2007 and ending on 18 May 2008.
Another term of the Agreement was that at the end of that term the tenant could stay in the residential premises at the same or increased rent but otherwise under the same terms unless or until the agreement was ended in accordance with the 1987 Act. The effect of s.18 of the Tenancies Act is that a fixed term agreement that continues after the day on which the fixed term ends, continues to apply as if the term of the agreement were replaced by periodic agreement. For that reason, the agreement between the respondents and the Commonwealth was a periodic agreement from 19 May 2008.
As the respondents have not been in continual possession of the Premises for 20 years or more, s.85 of the Tenancies Act applied to the termination of the agreement by the Commonwealth.
A termination notice under the Tenancies Act must set out the following matters:
i)the residential premises concerned;
ii)the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given;
iii)if the notice is not given under ss.84, 85, 96 or 97, the ground for the notice; and
iv)any other matters prescribed by the regulations, in this case the Residential Tenancy Regulations 2010 (NSW).
The termination notice must be in writing and be signed by the party giving the notice or the party’s agent and a termination notice for a periodic agreement must specify a day other than the last day of the period for the payment of rent as the termination date: s.82.
The notice of termination in this case was dated 19 March 2015 and served on the first respondent personally at his home on the same day. It correctly identified the property, set out the day on which the agreement was to be terminated (22 June 2015) and the date on which vacant possession of the premises was to be given, being the same date as the date of termination. It was in writing and signed by an agent for the Commonwealth. There were no relevant regulations.
In those circumstances I am satisfied that a notice of termination was given in accordance with the requirements of the Tenancies Act.
Second issue: Have the respondents vacated the premises as required by the notice?
It is clear from the Agreed Statement of Facts tendered by the parties that the respondents have not vacated the premises as required by the notice of termination.
For those reasons, the matters in s.85(3) of the Tenancies Act have been established and the residential tenancies agreement between the parties must be terminated.
Third issue: The appropriate date on which vacant possession is to be given to the landlord
Having considered the circumstances of this case as outlined above, I am satisfied that the appropriate date on which the respondents are to give vacant possession of the Premises is 1 February 2016.
First, I accept the general importance of the development of a further airport in Sydney for both the economic and social wellbeing of this state, if not, this country.
Secondly, significant time, effort and money has already been put into preparation of the site for the future development of the airport and the continued presence of tenants on the airport site is to increase the amount of costs likely to be incurred by the Commonwealth in that development.
Thirdly, the safety of individual tenants will decrease as more and more tenants vacate the site.
Fourthly, the respondents have been on notice since at least the beginning of the current residential tenancy agreement of the possibility of the use of the land in Badgerys Creek as an airport and the consequent need for them to give vacant possession to the Commonwealth if and when the land is required for that purpose.
Fifthly, the respondents have made some effort to obtain suitable alternative accommodation. While there was no evidence as to the extent of that effort, the Commonwealth agreed to the fact that they had made inquiries and that no suitable property had been found. The respondents say that they will vacate the Premises as soon as they find a new place to live. I accept that statement of intention and also that their personal circumstances will make it difficult to move very quickly. In particular, I accept the important part that the respondents’ goats play in the life of their family and that, if at all possible, they ought to be able to keep those animals when they move.
Sixthly, I accept the respondents’ submission that it will be more difficult to find alternative accommodation over the impending holiday period.
Seventhly, at least the respondents’ daughter and their very young grandchildren will need to be accommodated along with the respondents themselves.
The Commonwealth submitted that no hardship would be inflicted on the respondents if they were required to vacate the Premises earlier than February 2016. I disagree. The effects of first finding alternative accommodation and then moving animals, children and grandchildren from a house that has been a family home for almost 20 years can, and in this case, almost certainly will give rise to some hardship. In any event, the issues are to be resolved by balancing the circumstances of the parties. The nature of the effect of the Court’s orders will be very different for each of the parties. While I accept that the Commonwealth will be affected by a delay in obtaining vacant possession, the evidence shows that this effect will, and has been, effectively restricted to questions of cost and planning. While these cannot be ignored, they do not necessarily outweigh the personal effects that will be felt by the respondents and their extended family.
Further, the parties’ submissions were made at a hearing on 29 September 2015. The fact that judgment was reserved and then delivered over two months has changed the complexion of some of the Commonwealth’s arguments. There is, for instance, the impact of the holiday period to take into account. Also, the delay from the date of judgment to 1 February 2016 is considerably less than it would have been had judgment been able to be given immediately after hearing.
For those reasons, in spite of the relative urgency of the Commonwealth’s need for vacant possession, I consider that it is appropriate that the respondents have until 1 February 2016 to give vacant possession of the Premises.
Conclusion
For those reasons, I make the following orders:
(1)The residential tenancy agreement in relation to the premises at 10 (formerly Lot 2) Jackson Road, Luddenham, New South Wales, 2745 (“Premises”) be terminated with effect from 11 December 2015.
(2)Vacant possession of the Premises be given to the applicant on or before 15 December 2015.
(3)The order for vacant possession be suspended until 1 February 2016.
(4)There be no order as to costs in relation to the proceedings.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 11 December 2015
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