Hampel v South Australian Housing Trust - [2007] SADC 64

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
HAMPEL & HAMPEL v SOUTH AUSTRALIAN HOUSING TRUST
[2007] SADC 64
Judgment of His Honour Judge Millsteed
26 June 2007
REAL PROPERTY
Appeal pursuant to s53 of the Housing Improvement Act 1954 - rental property owned by appellants declared sub-standard for the purpose of s52 on the ground that the property was "undesirable for human habitation" - walls affected by rising damp - remedial work carried out after restoration - following remedial work no evidence of damp on the external surfaces of affected walls - structure and stability of walls not comprised - no effect on occupants' enjoyment of property - property not undesirable for human habitation though not "free of damp" as required by Reg 13 of Housing Improvement (Standards) Regulations 1992 - appeal allowed - declaration revoked.
Housing Improvement Act 1954 s5, s51, s52, s53, s54, s55, s85, Part 7; Housing Improvement (Standards) Regulations 1992 Part 2; Residential Tenancies Act 1994 (Qld) s7(a)(ii) s103(2); Manchester Corporation Water Works and Improvement Act 1867 (UK) s41; Housing of the Working Classes Act, 1885 (UK) s12, referred to.
In Re Residential Tenancies Act (1985) 38 SASR 147; Gray v Queensland Housing Commission [2004] QSC 276; Smith V Marrabel (1843) 11 M & W 5; Bird v Lord Greville (1884) C & E 317; Collins v Hopkins [1927] 2 KB 617; Wilson v Lord Hatton (1877) 2 Ex D 336; Hall v Manchester Corporation 84 LJ Ch 732; Walker v Hobbs (1889) 23 QBD 458; Fisher v Walters [1926] 2 KB 315; Morgan v Liverpool Corporation [1926] 2 KB 131; Summers v Salford Corporation [1943] AC 283; Weeks v Bond [1999] 1 Qd R 134; Fine v Geier [2003] QSC 073; Birchall v Wirrall (1953) JP & LGRR 384, considered.

HAMPEL & HAMPEL v SOUTH AUSTRALIAN HOUSING TRUST
[2007] SADC 64
Introduction

This is an appeal by Mr Ian Hampel and Ms Rosemarie Hampel (“the appellants”) against a declaration by the South Australian Housing Trust (“the Trust”) that a rental property owned by the appellants is sub-standard for the purposes of Part 7 of the Housing Improvement Act 1954 (“the Act”). The appeal is brought pursuant to s53 of the Act.
Legislative scheme
Before I turn to the relevant facts, it is appropriate to set out the relevant provisions of the Act and its regulations.
The objectives of Part 7 of the Act include the improvement of sub-standard housing and regulation of the rental of sub-standard housing. The scheme is to encourage landlords to bring sub-standard houses up to an acceptable standard by pegging the rents until they are improved: In Re Residential Tenancies Act (1985) 38 SASR 147 at 150. In the result tenants pay rents commensurate to the standard of housing provided.
Pursuant to s51, the “housing authority” may from time to time fix classifications into which sub-standard housing may be classified for the purposes of rental control. The powers and duties of the housing authority have been vested in the Trust by proclamation pursuant to s5.
Section 52 provides:
(1)     Where the housing authority, after making due inquiries and obtaining such reports as it deems necessary, is satisfied that any house is undesirable for human habitation or is unfit for human habitation, the housing authority may serve upon the owner and upon any registered mortgagee of the land on which the house is situate, a notice in writing stating that the housing authority intends to declare the house to be sub-standard for the purposes of this Part.
(2)     A notice served pursuant to subsection (1)—
(a)must state the housing authority's reasons for forming the view that the house is undesirable or unfit for human habitation; and
(b)must fix a period of at least one month from the service of the notice during which the person served with the notice may submit to the housing authority any matters that he wishes the authority to consider before making a declaration under subsection (3).
(3)     After considering all matters submitted to it pursuant to subsection (2)(b), the housing authority may, by notice published in the Gazette, declare the house to be substandard for the purposes of this Part.
(4)     The housing authority may, without proceeding to make a declaration under subsection (3), withdraw a notice served under subsection (1).
Section 53(1) provides that any owner of a house or mortgagee of the land on which a house is situate may appeal to the Administrative and Disciplinary Division of the District Court against a decision by the housing authority to declare a house sub-standard for the purposes of Part 7.
After the expiration of one month from the publication in the Government Gazette of any declaration relating to a house, or if any appeal against a declaration is disallowed the housing authority may by notice in the Gazette fix the classification of the house and the maximum weekly rental payable in respect of the house (s54).
Pursuant to s55 the Trust may after making due inquiries and obtaining such reports as it deems necessary, by notice in the Gazette, vary the classification of, or alter the maximum rental payable in respect of any house. Furthermore, the housing authority may revoke a declaration made pursuant to s52 if it is of the opinion that a house has ceased to be undesirable for human habitation or unfit for human habitation (s55(2)).
Section 85 provides for the making of regulations in relation to housing standards. The section states:
For the purpose of prescribing standards on non-compliance with which any house may be declared to be undesirable for human habitation or unfit for human habitation, the Governor, on the recommendation of the housing authority, may make regulations for or with respect to—
(a)     the drainage, sanitation, ventilation, lighting, cleanliness and repair of houses:
(b)     the construction, condition and situation of houses:
(c)     the dimensions, cubical extent and height of rooms of houses:
(d)     the protection of houses from damp:
(e)the provision in houses of adequate water supply, and bathing, laundry, and cooking facilities and sanitary conveniences:
(f)    the freedom of houses from infestation by vermin and rats:
(g)     generally, prescribing standards of sanitation and hygiene for houses.
(my emphasis)
Part 2 of the Housing Improvements (Standards) Regulations 1992 (“the Regulations”) prescribe standards by which a house may be declared sub-standard under the Act. The Regulations prescribe standards for drainage (reg 7), sanitation (reg 8), water supply (reg 9), lighting and ventilation (reg 10), internal surfaces of rooms (reg 11), room heights (reg 12) and maintenance and amenity (reg 13).
Regulation 13 states:
A house must be maintained in a good state of repair and in particular—
(a)     must have footings adequate to prevent movement in the walls of the house; and
(b)     must be weatherproof; and
(c)     must be free of damp; and
(d)     must be provided with adequate electrical outlets; and
(e)     a gas or electrical installation contained in the house must be approved by the authority having jurisdiction over such an installation; and
(f)    must, along with its grounds, be maintained to prevent—
(i)    accumulation of rubbish; and
(ii)    fire hazard; and
(iii)     infestation by vermin.
(my emphasis)
It should be observed that the Act does not define the expressions “unfit for human habitation” or “undesirable for human habitation”(s52). I will return to that issue later. It should also be observed that the word “damp” (s85) and the expression “free of damp” (reg 13) are not defined. But clearly, in my view, they refer to, or at least include, what is known as rising damp or salt damp.
Background facts
The house
The subject house is located on a rural property at Magdalla near Hamley Bridge. The house is a pug and stone cottage with a brick extension. The cottage was constructed in about 1860 and currently contains the kitchen, lounge room and laundry. The external and internal walls of the original cottage were constructed without a damp course.
The prevention or reduction of damp rising from the ground into the walls was substantially dependent on ventilation of the base of the walls by air passing under the timber floors of the cottage. However, these floors were later removed and replaced by concrete floors despite the absence of a damp course.
The brick extension was constructed approximately 50 years ago with a damp course. The extension contains the front left room (bedroom), front centre room (main bedroom), bathroom/toilet, study and sleep-out. These rooms have timber floors except the bathroom which has a concrete floor.
Events leading to declaration
In December 2004 the appellants leased the property for a period of 12 months after having lived there for several years.
On 14 October 2005 the Trust received a complaint from the tenants in relation to the standard of the house. The complaint was handled by the Housing Improvement Branch (HIB) which is responsible for administering the requirements of Part 7.
On 29 November 2005 the house was inspected by Mr G Smith, (HIB Housing Inspector). As a result of his inspection, Mr Smith recommended to the Trust Board that a notice of intention to declare the house sub-standard under s52 be issued. The appellants were provided with a “List of Sub-Standard Defects” (LSSD) compiled by Mr Smith.
By notice in writing dated 14 December 2005 the Trust informed the appellants that it intended to declare the house sub-standard on the ground that it was “undesirable for human habitation” by reason of its failure to comply with standards prescribed by the Regulations. The defects were listed in a schedule to the notice set out hereunder.
Schedule
HOUSING IMPROVEMENT ACT 1940
TO: Mr IK and Mrs R Hampel
OF: PO Box 1638, GAWLER
Reasons referred to in the NOTICE and dated 14 December, 2005 in respect of the property situated at Section 424 Magdalla Road, MAGDALLA inspected on 29 November, 2005 are as follows
EXTERNALLY
Cement render requires repair
Damp proof course to walls bridged
Hot water relief valve drain lines incorrectly installed
Insect screens not provided to windows
Plumbing drains require upgrading (waste from bathroom & kitchen contrary to regulations)
Roof downpipes missing to some sections (back verandah area)
Underfloor ventilation is inadequate (in part)
Walls damp and fretted indicates lack of adequate damp proof course
INTERNALLY
BATHROOM/TOILET
Inadequate floor drainage (bath waste contrary to regulations)
Insect screens not provided to windows
Tiles to room require repair (no skirting tiles in part)
Walls damp (in part – suspected behind panelling)
LAUNDRY
Drainage to wash trough not to regulations (not to septic tank)
Inadequate floor drainage, not capable of draining away spillage water
Inadequate ventilation
Trough inadequately sealed to wall
Wall surface not impervious to the height required (above trough)
Wall tiles require repair (skirting tiles missing)
KITCHEN/DINING/LOUNGE
Inadequate ventilation (to lounge area)
Insect screens not provided to windows (kitchen)
Sink and drainer inadequately sealed to wall
Sink and drainer waste pipe not connected to an approved drainage system
(not to septic tank)
Walls damp and fretted and plaster finish deteriorated
FRONT SLEEPOUT
Walls damp and fretted and lack adequate damp proof course (main section of dwelling)
FRONT CENTRE ROOM
Inadequate natural light
Inadequate ventilation
Walls damp (back of kitchen/bathroom corner)
Underfloor ventilation restricted
FRONT ROOM LEFT
Insect screens not provided to windows
Walls damp and fretted and lack adequate damp proof course
FRONT LOBBY
Walls damp
PLEASE NOTE:
A certificate of damp wall repairs is required.
A certificate of compliance from a licensed plumber is required – RE: drains
A certificate of compliance from the local council will be required for the septic system.
All building works undertaken must conform to the Development Act requirements as administered by your Local Council.
This list has been prepared for the purposes of administering Part 7 of the Housing Improvement Act. The Housing Trust assumes no obligation towards any present or future owner or tenants of the subject property for the comprehensiveness of the list. The list does not replace any independent assessment obtained by an owner or agent.
Dated this 14^th day of December, 2005.
…
In summary, the defects comprised faults associated with the plumbing and septic system, internal and external wall damp and fretting, bridging of damp proof course by external walls, inadequate ventilation and natural light in some rooms, inadequate underfloor ventilation in parts of the house, windows without insect screens and damaged tiles in the bathroom and laundry.
By late December 2005 the tenants had vacated the property and the appellants arranged for work to be carried out on the plumbing and septic system.
On 12 January 2006 Mr Smith carried out a further inspection of the house. He was satisfied that the defects in the plumbing and septic system had been rectified but considered that the house remained sub-standard by reason of the other defects. Mr Smith prepared and provided the appellants with an updated LSSD.
On 2 March 2006, the Trust published a notice in the Government Gazette declaring the property sub-standard for the purposes of Part 7 (“the declaration”). The Trust informed the appellants of the declaration by letter that day. The appellants were further advised that if they made any significant improvements to the house before 11 April 2006, a further inspection could be arranged to determine whether the declaration should be revoked pursuant to s55(4).
Events following declaration
On 31 March 2006 the appellants filed in the District Court a Notice of Appeal against the declaration.
On 10 April 2006 Mr Smith re-inspected the house as a result of further work carried out by the appellants. Mr Smith observed that the appellants had repaired damaged tiles in the bathroom and laundry, defective plumbing fixtures and areas of fretting on the surfaces of walls attributable to rising damp. However, Mr Smith considered that the house remained sub-standard and provided the appellants with an updated LSSD.
On 21 April 2006, Mr Smith and Ms Waters, HIB Manager, inspected the house at the request of the appellants. The appellants had carried out further work prior to the inspection. In particular, they had repaired damaged cement render on an external wall(s) and areas of fretting on external and internal walls that the appellants had not been able to repair by the time of the previous inspection.
Despite these improvements Ms Waters and Mr Smith remained concerned about areas of wall damp, inadequate ventilation in the “front centre room” and laundry and, to a lesser extent, the absence of flyscreens on some windows. The Trust refused to revoke the declaration and the appellants were provided with an updated LSSD.
At this point it is necessary to elaborate on the nature and extent of the damp found by Mr Smith during the inspection on 21 April 2006. The affected walls were constructed of either pug and stone or brick. All of the affected internal walls were plastered and painted, though a section of wall in the study suspected of being damp affected was covered by gyprock panelling to a height of about 1200 mm above the level of the floor.
Using an instrument called a Moisture Encounter Plus (MEP), Mr Smith detected damp inside the walls of the lounge room, laundry and bathroom. There were also areas of damp in walls that separated the lounge room from the front left bedroom, the front centre bedroom from the bathroom and the study from the bathroom. There were also pockets of damp in the pug and stone external walls.
The level of damp varied from room to room. In the main the damp had reached a height of no more than about 300 mm - 400 mm above floor level. However, the damp had reached heights of about 1200 mm in the laundry and lounge room, 600 mm in the bathroom and about 900 mm in sections of the external walls above floor level. Significantly, there was no evidence of any damp or moisture on the surface of any of the walls. As earlier observed, the areas that had previously shown signs of fretting due to damp had been repaired and repainted.
It is not in dispute that prior to the inspection on 21 April 2006 the appellants went to significant effort and expense to correct the damp problem by injecting a “silicone damp course” in the walls of the laundry, bathroom/toilet, lounge room, and kitchen/dining room (except for an area rendered inaccessible by cupboards and the gyprock panelling referred to above).
If effective the treatment should prevent new damp rising from the ground into the treated walls. The appellants believe that ventilation under the timber floors of the front left bedroom, front centre bedroom and study will assist to prevent damp rising up the walls shared by these rooms with the lounge room/dining room and bathroom respectively.
On 10 May 2006 the Court conducted a preliminary hearing to determine if the appellants were ready to list the hearing of the appeal. Upon the appellants’ application, the Court adjourned the preliminary hearing until 6 December 2006 to see if the damp affected walls had dried out.
On 22 November 2006 Ms Waters and Mr Smith undertook a further inspection of the house in the presence of the appellants. The walls were again checked by Mr Smith with an MEP. It was noted that the level of dampness in the lounge room walls had improved. However, the level of damp had not decreased significantly in the other affected areas.
On 27 November 2006 Ms Waters advised the appellants that the HIB was unable to recommend revocation of the declaration.
On 6 December 2006 the Court adjourned a further preliminary hearing to allow time for Mr Hampel to receive a response from the Honourable Mr J Weatherill, Minister for Housing, to a letter written on behalf of the appellants by the Honourable Mr J Dawkins MLC in relation to the Trust’s refusal to revoke the declaration.
By letter dated 21 December 2006 Mr Weatherill informed Mr Dawkins that the Trust would not lift the declaration. The letter states in part:
On 22 November 2006 the Manager and inspector from the Housing and Improvement Branch undertook a further inspection of the property with Mr and Mrs Hampel to determine the current situation regarding the dampness. It was noted the level of dampness had not decreased significantly.
The Housing Improvement (Standards) Regulations 1992, in Part 2, Clause 13 (c) require that a house ‘must be free of damp’. I am advised that, until the level of dampness at the property has receded to a sufficient level to meet these regulations, the Housing Improvement Branch is unable to recommend revocation of the substandard declaration.
After being informed of the Minister’s response, the appellants decided to proceed with the appeal.
The appeal
The appeal was heard on 24 January 2007. The appellants represented themselves. Ms Waters and Mr Smith appeared on behalf of the Trust.
On the hearing of the appeal the Trust maintained that the house was undesirable for habitation for the reasons expressed by the Minister in his letter of 21 December 2006. The Trust conceded that, but for the damp present in the walls, the declaration should be revoked. Currently the premises are clean and well kept and provide all the requisite facilities. Indeed, Ms Waters described the property as “lovely”. The Trust concedes that the other remaining defects are quite minor and irrelevant to the disposition of this appeal.

The appellants argued that the declaration should be revoked for the following reasons. They have repaired and repainted the surfaces of walls that were affected by damp. Furthermore they have injected into the affected walls a silicone damp course that should prevent any new damp rising from the ground into the walls.
The appellants have suggested that any remaining damp is likely to dry out over time. In support of that submission they rely on the fact that, at the time of the last inspection on 22 November 2006, the level of damp in the lounge room had decreased significantly, although there had been no marked change to the level of damp in the other affected rooms.
The appellants also rely on the fact that there is currently no evidence of damp on the surfaces of the walls. The paint and plaster work remains intact. In summary, the appellants contend that the house should not be categorised as undesirable for human habitation by reason of the damp that remains inside the walls. It should be further observed that it has never been suggested by the Trust in any of the material before me, or in submissions on the hearing of the appeal, that the wall damp has affected the general stability of the house or caused the house to have a musty, stale atmosphere often encountered in damp affected premises.
In summary, the appellants contend that the damp remaining within the walls does not, standing alone, render the house undesirable for human habitation.
Analysis of issue
In order to determine this issue it is necessary to consider the meaning of “unfit for human habitation” and “undesirable for human habitation”. As earlier observed, the Act fails to define either expression. Furthermore, as far as my research indicates neither expression (in the context of the Act) has been the subject of judicial interpretation.
In my view, these expressions are not synonymous but posit different tests.
In other words a house may be fit for habitation though it might be undesirable to live in it. This view accords with the second reading speech which accompanied the introduction of the Housing Improvements Bill into Parliament: Hansard, Government Gazette September 1940, p 634-6.
The second reading speech defined the objective of the Bill as follows:
[T]o improve the adverse housing conditions under which many people are living, especially in the metropolitan area of Adelaide. These adverse conditions consist of dilapidated, inconvenient, and unhealthy buildings. The Bill is founded on the conclusions and recommendations of the second progress report of the Building Act Inquiry Committee.
The speech disclosed that the classification of houses in the Bill was based on a survey of sub-standard housing conditions conducted by the Building Act Inquiry Committee:
Every house with regard to which sufficient information was obtained has been classified in one of four categories, A, B, C or D. In class A were placed houses which were found on inspection to be structurally sound, in good order and provided with reasonable amenities, though possibly needing repairs or renovations. These A houses are not regarded as sub-standard. Sub-standard houses are in the B, C and D categories. Class B comprises houses which are undesirable to be used for habitation by reason of structural condition, bad state of repair or lack of amenities. Although many of these are very little better than those in the unfit category, the majority could, by renovation and the provision of amenities, be lifted out of the undesirable category. In class C are the houses found to b (sic) unfit for habitation. The great majority of C class houses can never be made fit for habitation and should be demolished as soon as possible. In class D are placed houses of the very worst type.
It follows from this classification dichotomy that in order to determine the meaning of “undesirable for human habitation” it is necessary to understand when houses are to be regarded as “unfit for human habitation”.
The meaning of unfit for human habitation
The expression “unfit for human habitation” is exactly synonymous with “unfit to live in”: Gray v Queensland Housing Commission [2004] QSC 276 at 10]. Some guidance as to the meaning of this expression can be gained from cases that have considered it in the context of the common law and similar legislation.
Common law
At common law there is an implied condition in a tenancy of a furnished house that the premises shall be fit for habitation at the commencement of the tenancy: Smith v Marrable (1843) 11 M&W 5. Examples of defects which have been held to render a house unfit for habitation are: infestation with bugs: Smith v Marrable (above); defective drainage as a result of which the tenant could not “safely enter and live in the house”: Bird v Lord Greville (1884) C & E 317; previous occupation by a person suffering from pulmonary tuberculosis where there was an actual and appreciable risk of infection: Collins v Hopkins [1927] 2 KB 617, also see Wilson v Lord Hatton (1877) 2 Ex D 336 - infection by measles. The common feature of these cases is that the defects put at risk the health and safety of the tenant. They involved more than mere inconvenience or aesthetic deficiencies.
Statutes
In Hall v Manchester Corporation 84 L.J. Ch 732, the House of Lords held that a building is “unfit for human habitation” within the meaning of s41 of the Manchester Corporation Water Works and Improvement Act 1867 if it is so unfit for “any reason”. But this begs the question of what is the standard by which a house is to be gauged unfit for human habitation?
Section 12 of the Housing of the Working Classes Act, 1885 (UK) implied a condition in the letting of a house or part of a house that it was “in all respects reasonably fit for human habitation” at the commencement of the holding. In Walker v Hobbs (1889) 23 QBD 458 a part of a house which was in a ruinous and dangerous condition and fell down, was characterised as one which was not reasonably fit for habitation. The same conclusion was reached in Fisher v Walters [1926] 2 KB 315 - a case dealing with a collapsed ceiling in the context of similar legislation. In those cases the nature of the defect presented an appreciable risk to the safety of the occupants.
The Housing Act 1925 (UK) contained a similar provision in respect of low rental houses. The relevant section implied a condition at the commencement of the tenancy, and an undertaking that the house would be kept by the landlord “in all respects reasonably fit for human habitation”. In Morgan v Liverpool Corporation [1926] 2 KB 131 the tenant’s hands were severely injured when he unlatched a window which fell down by reason of a broken sash cord. A majority of the English Court of Appeal considered that the house was “in all respects reasonably fit for human habitation” despite the broken cord.
In his dissenting judgment Lord Atkin approved the following test (at 145):
[I]f the state of repair of a house is such that by ordinary user damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation.
In Summers v Salford Corporation [1943] AC 283 the House of Lords held that a two bedroom house was not “in all respects reasonably fit for human habitation” for the purposes of the Housing Act because the only window in the house had a broken sash cord. The Law Lords applied Lord Atkin’s test in Morgan and found that the house was unfit for habitation because the window could not be opened without danger and impaired the ventilation of the house: see Lord Atkin at 289, Lord Thankerton at 290, Lord Russell at 291, Lord Wright at 294.
I now turn to some Queensland authorities.
Pursuant to s7(a)(ii) of the Residential Tenancies Act (Qld) (now repealed) a tenant may terminate a tenancy by reason of the landlord’s failure to provide and maintain a house in “good tenantable repair” and in a condition “fit for habitation”. In Weeks v Bond [1999] 1 Qd R 134, the Court of Appeal (Qld) held that these statutory obligations were to be construed as imposing a standard of reasonableness having regard to the age, character and locality of the house and to the effect of the failure on the state or condition of the house as a whole.
In Gray v Queensland Housing Commission [2004] QSC 276, Chesterman J considered that these principles applied in the context of section 103(2) of the Residential Tenancies Act 1994 (Qld) which provides that at the start of the tenancy the lessor must ensure (a) that the premises and inclusions are reasonably clean; (b) the premises are “fit for the tenant to live in”; and (c) the premises and inclusions are in a reasonable state of repair, having regard to the age of, rent payable for and the suspected life of, the premises and inclusions.
Chesterman J also approved of Lord Atkin’s test as a basis for determining whether premises are fit to live in. After referring to Summers Chesterman J said (at [11]):
The test approved by the House of Lords may be paraphrased: if the state of repair is such that injury is to be expected, or will naturally occur, from the ordinary use of the premises they cannot be regarded as fit for human habitation.
A similar approach was taken in Fine v Geier [2003] QSC 073 where Wilson J considered that the house was “fit to live in” under s103(2) because it did not contain any “dangerous defects” and was sufficiently safe for ordinary, everyday use (see [56]).
Conclusion
In my view the principles expressed above are applicable to s52 of the Act. In my opinion a house is unfit for human habitation if an occupier could be expected to suffer physical injury or injury to health from the ordinary use of the premises. It may be so unfit for any reason. The risk to health or safety may arise because the premises are in a state of disrepair or dilapidation or because of a lack of facilities such as the provision of adequate water, light, ventilation and so on.
The meaning of undesirable for human habitation
As far as I am aware, the expression “undesirable for human habitation” is unique to the Act. Accordingly, there are no cases which have considered its meaning in any statutory context.
It follows from the meaning that I have attributed to “unfit for habitation” that a house may be undesirable for habitation in circumstances where its defects do not give rise to an appreciable risk to the health and safety of an occupant. However, it is neither possible nor desirable, in my view, to attempt to refine the test any further. The question of whether a house is undesirable for habitation must be answered by reference to the circumstances as a whole including the age, character and locality of the house, the standards required under the Regulations and the effect of any defect on the state or condition of the house as a whole.
The regulations
This brings me to the Trust’s contention that if a house is not “free of damp” as required by reg 13, it must be regarded as sub-standard. That is, it must be classified as either unfit or undesirable for habitation depending on the nature and extent of the damp.
This argument must be rejected.
In determining whether a house is sub-standard under s52, regard must be had to the standards prescribed by the Regulations. However, not every failure to comply with the Regulations will result in a declaration that a house is sub-standard. As earlier observed, s85 provides for the making of Regulations for the purpose of prescribing standards on non-compliance by which any house “may” be declared to be unfit or undesirable for human habitation. In my view, a house cannot be declared sub-standard by reason of a breach of the Regulations unless it is so far defective that the house can properly be characterised as either unfit or undesirable for human habitation.
In Birchall v Wirrall (1953) JP & LGRR 384, the English Court of Appeal rejected an argument similar to the one presented by the Trust in the present case. The Court held that in considering whether a house was “unfit for human habitation” for the purposes of the Housing Act 1936, it was relevant to take into account breaches of the requirements of public health statutes and bylaws but they were not to be regarded as decisive of the question.
If the Trust’s argument were to be accepted it would mean that any breach of the Regulations no matter how minor (for example the presence of a very small patch of damp behind a skirting board in one room of a very large house or a stove temporarily out of order - see reg 8) would result in a declaration that the house is sub-standard. In my opinion, that cannot be right. As I say, it is necessary to consider all of the circumstances, including the nature of the breach and its impact on the state or condition of the house as a whole. The requirements of the Regulations are relevant to the question of whether or not a house is sub-standard, but they are not decisive.
Is the house undesirable for human habitation?
In my opinion the Trust has erred in failing to revoke the declaration that the house is undesirable for human habitation. It is not in dispute that the house has all of the requisite facilities and amenities. It is not suggested that the remaining damp has affected the stability of the walls. There are no signs of damp or moisture on the surface of any of the walls. The paint and plaster on the walls have remained intact months after the remedial work was carried out. There is no smell emanating from the damp. In short, the damp is not affecting the structure or appearance of the house. Indeed, on the material put before me, there is no evidence that the damp, as it stands, would in any way affect an occupant’s enjoyment of the premises. I suspect that there would be many houses in Adelaide that fall into that category.
In my view the house in its current condition should not be classified as undesirable for human habitation. The declaration should be revoked. Of course, all of this might change. Subsequent inspections by the Trust may reveal deterioration in the state of the house due to damp. Should that occur, it would be open to the Trust to consider whether any such deterioration warrants a declaration that the house is sub-standard for the purposes of Part 7.
Order
1. Appeal allowed.
2. Declaration of 2 March 2006 revoked.