JOYCE MARY LUCAS & COMMISSIONER for SOCIAL HOUSING in the AUSTRALIAN CAPITAL TERRITORY (Residential Tenancies) - [2010] ACAT 71

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

JOYCE MARY LUCAS & COMMISSIONER FOR SOCIAL HOUSING IN THE AUSTRALIAN CAPITAL TERRITORY (Residential Tenancies) [2010] ACAT 71

AA 09/35
Catchwords: Residential Tenancies – Termination and Possession order – general order made under section 83 of Residential Tenancies Act 1997 – Breach of general order as basis for making a termination and possession order – elderly person complex – discretionary considerations.

List of Legislation referred to in decision
Residential Tenancies Act 1997
List of Cases referred to in decision
Commissioner for Social Housing in the ACT v Angela Clarkson 2010 ACAT 30

Tribunal: Mr C.G Chenoweth, Acting Presidential Member

Date of Orders: 8 October 2010
Date of Reasons for Decision: 8 October 2010

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 35 of 2009

RT 09/803

BETWEEN:

JOYCE MARY LUCAS

Appellant

AND:

COMMISSIONER FOR SOCIAL HOUSING
IN THE AUSTRALIAN CAPITAL TERRITORY
Respondent

TRIBUNAL: Mr C.G Chenoweth, Acting Presidential Member

DATE: 8 October 2010

ORDER

Re: PREMISES AT 11/48 Wyselaskie Circuit, Kambah ACT 2902

That the Tenancy Agreement has been breached.

That the Residential Tenancies Agreement is terminated and possession of the premises is to be given to the lessor at 4.00pm on Friday the 22nd day of October, 2010.

That the said tenant and any other person claiming right of possession through the tenant’s tenancy is to vacate the premises in accordance with this Order.

That if the tenant fails to vacate the premises in accordance with Order 2 & 3 above, the lessor may apply to the Registry of the ACT Civil & Administrative Tribunal for a Warrant for Eviction.

That any goods remaining on the premises after the date for vacant possession will be deemed uncollected goods and the Uncollected Goods Act applies to their storage and disposal.

………………………………..
Mr C.G Chenoweth
Acting Presidential Member

REASONS FOR DECISION

This is an appeal against a decision by a member of the Tribunal dated 24 November 2009 ("the Termination Order"), terminating the lease granted by the Commissioner for Social Housing in the ACT ("Commissioner") to Joyce Mary Lucas ("Appellant") in respect of unit 11, Valleyfield Court, 38 Wyselaski Circuit Kambah ACT ("the Premises").
History of the Proceedings.
On the 10th July 2009 an application for a general order requiring the Appellant to comply with her residential tenancy agreement was filed. This is matter RT09/515. As part of the evidence in the application for a general order, the Commissioner provided a statement of particulars by Ms Merran Huntly, an officer of the Commissioner. This statement annexed a copy of the residential tenancy agreement of 23 April 2008 signed by the Appellant ("the Agreement"), together with a notice to remedy dated 23 September 2008 and a further notice to remedy dated 29 April 2009. Both of these notices to remedy were for matters other than debt, and alleged substantial breaches of the Agreement. Statements from Commissioner's officers indicated that both notices had been served personally by delivering them to the Appellant at the Premises.
The notice of 23 September 2008 referred to the Appellant breaching clause 70 of the Agreement and also referred to undeclared residents living at the premises. The notice of 29 April 2009 again referred to unauthorised residents, and to breaches of clause 70 and 73 of the tenancy agreement. Both notices gave the appellant 14 days to remedy the breach, in each case in the manner specified in the notices.
A hearing notice for 13 August 2009 was issued by the Tribunal and the file indicates that it was served on the appellant by post on 14 July 2009. The matter was heard on that day, and the formal order was issued on 17 August 2009 ("the General Order"). The order was made under section 83 of the Residential Tenancies Act 1997 ("RT Act"). The order required the Appellant to comply with clauses 70 (b) and (c) and 73 (a) and 73 (b) of the Agreement.
At the hearing on the 13 August 2009 there was no appearance by the Appellant and the matter proceeded ex-parte. Evidence produced to the Tribunal indicated that there had been a number of disturbances in and around the Property, attributable to people associated with the Appellant. The order made by the member at that hearing directed the Appellant to comply with clauses 70 and 73 of the Agreement and further ordered that only the Appellant was permitted to reside at the Premises.
This order was served by post on the Appellant on 17 August 2009.
Further proceedings between the parties were undertaken in matter number RT 09/803. The application was dated 14 October 2009, and sought a termination and possession order to have effect as a warrant, together with an order that the Appellant comply with the Agreement. This application was supported by a statement of particulars by Mr Kane, an officer of the Commissioner dated 14 October 2009. It annexed the General Order, together with a copy of a letter to the Appellant from the Commissioner dated 23 September 2009. Evidence from the Federal police was also annexed, relating to attendances by the police at the Premises. The file indicates that the Appellant was served with the hearing notice and other documents on 19 October 2009, by post. The matter was set down for hearing on 24 November 2009 and the formal order issued the following day.
It was as a result of this hearing and the material produced to the Tribunal that the Termination Order was made. The order required that possession of the premises was to be given to the Commissioner at 4 PM on 24 November 2009. The order was suspended for a period of 21 days, with liberty to the Appellant to apply to the Tribunal on seven days notice. The file of the original hearing indicates that the Appellant was present in person together with Ms Corinna Roberts. The Member noted that he was satisfied that the General Order dated had been breached, and the application for possession and termination was granted. The Member also directed that a copy of the order and the papers was to be referred to the Public Advocate's office.
On 16 December 2009, the Welfare Rights and Legal Centre Ltd ("WRLC") by its advocate Mr Emerson - Elliott filed a notice of appeal and stay of warrant for an eviction in respect of the Termination Order. The grounds of appeal were that the applicant had not breached her tenancy agreement, and therefore there was no breach of the General Order which could justify the Termination Order. With the notice of appeal was an affidavit by the Appellant dated 15 December 2009.
There were then the number of interlocutory orders made for a conference and in relation to the confidentiality of witnesses. An interlocutory application in the appeal was filed on 3 February 2010 by the Commissioner, seeking confidentiality orders under section 39 of the ACT Civil and Administrative Tribunal Act ("the ACAT Act.") There were a number of witness statements filed in support of this interlocutory application, copies of which were provided to the Appellant's advocate. Prior to the hearing on 4 February, WRLC delivered an extensive request for further and better particulars in respect of the witnesses, who were only identified by capital letters in the statements delivered in support of interlocutory application.
On 4 March 2009, I made orders relating to the confidentiality of witness statements filed by the Commissioner. Orders were made to preserve the confidentiality of the witnesses at the appeal hearing by de-identifying their statements and ensuring that their evidence was to be given in the absence of the Appellant, but in the presence of the Appellant's legal representative. Detailed reasons for those orders were handed down on 11 March 2010.
On 30 March 2010, WRLC on behalf of the Appellant sought to appeal the orders made by me in relation to confidentiality of witnesses and their statements. The matter was referred to the Appeals President of the Tribunal, who decided that as the order made by me was in the appeals division hearing of the matter, there was no separate right of appeal in respect of the order. The matter was not pressed at the hearing.
The matter was heard finally on the 16th and 17th of August 2010. As I had indicated in my reasons for decision of 11 March 2010, the appeal was to be dealt with as a new application under section 82 (a) of the ACAT Act.
The Premises
The Premises forms part of the Valleyfield complex in Kambah. It has been developed by the ACT government as aged persons accommodation, and consists of about 20 duplex units in close proximity to each other, but with separate yards and facilities. The paths within the complex enable residents and other people to move freely between the different units in the complex, and to obtain access to the surrounding car parks and streets. It is all managed by the Commissioner, who is the lessor for the units.
All of the units are provided for aged persons who are eligible for public housing. The minimum age limit for female tenants in April 2009 was 63 years and 6 months, and the minimum age limit for male units tenants at that time was 65 years. The evidence before me indicates that a number of these tenants are considerably older than the minimum age, and a number have significant medical problems. Officers of the Commissioner provide general support services to the residents, although all of the units are self-contained independent living units, where the residents cook for and look after themselves. The Appellant lives in unit number 11, which is approximately in the middle of the complex.
The Terms of the Agreement.
The Agreement includes the terms of the standard residential tenancy terms constituted by schedule 1 to the RT Act.
Clause 70 provides as follows:
The tenant must not:
(a)use the premises, or permit them to be used, for an illegal purpose to the detriment of the lessors interest in the premises; or
(b)cause or permit nuisance; or
(c)interfere, or permit interference, with a quiet enjoyment of the occupiers of nearby premises.
Clause 73 provides as follows:
(a)The tenant is personally responsible for the actions or omissions of visitors, guests or other people on the premises if:
(b)the action or omission would if performed by the tenant had constituted a breach of this tenancy agreement; and
(c)the person is on the premises with the permission of the tenant.
The agreement also includes the Housing Commissioners Additional Terms clause 1. This is as follows:
·   Persons who may live at Property.
·   The only persons who may reside at the Property are:
nthe Tenants and other residents named in item 1; and
nany other dependents, borders or other residents for whom the Housing Commissioner has given prior written permission.
·   The Property must be the principal residence of all Tenants. A Tenant will be deemed not to reside at the Property if he or she is absent for a period of more than one month without the Housing Commissioner's prior written consent.
The Legislation.
Section 83 of the RT Act allows the Tribunal to make certain orders in relation to an application about a tenancy dispute or occupancy dispute. Under section 83 (b) of the RT Act the Tribunal may make
"an order requiring performance of a residential tenancy agreement or occupancy agreement:"
It should be noted that the opening words of the section allows the Tribunal to make any of the orders set out in the clause "without limiting the orders the ACAT may make."
Division 4.4 of the RT Act provides for the Tribunal to make a termination and possession order under certain circumstances. Section 48 (1) allows the making of a termination and possession order if the Tribunal is satisfied with the matters set out in that subclause. These are:
(1)On application by a lessor, the ACAT may make a termination and possession order if --
(a)satisfied that --
(i)the tenant has breached the standard residential tenancy terms, (other than by failing to pay rent that has become payable); and
(ii) the lessor has served a termination notice on the tenant based on the breach; and
(iii) the tenant did not vacate the premises in accordance with the notice; and
(iv) the breach of the standard residential tenancy terms was not in accordance with a term of these residential tenancy agreement endorsed by the ACAT; and
(v) the breach justifies the termination of the tenancy; or
b.the ACAT --
(i)has made an order under section 83 (b); and
(ii)is satisfied that the tenant has breached that order; and
(iii) is satisfied that the breach justifies the termination of the tenancy.
In a letter dated 16 August 2010, and received by the Tribunal on 18 August 2010, the Appellant's advocate has argued that the Tribunal should require the Commissioner to prove the alleged breached notified in the breach notice of 23 September 2008 before the Tribunal can order a termination of the tenancy. The argument is made that the steps set out in section 48 (1) (a) of the RT Act must be complied with, and that the alternative procedure contemplated by section 48 (1) (b) is not of itself sufficient.
The letter includes the argument:
"It is our submission that this power needs to be read in the light of the structure of the Act requiring lessors to give notice of, and to prove, a specific breach or specific breaches of a tenancy agreement before an eviction can be ordered (see Commissioner for Social Housing in the ACT and Angela Clarkson (Residential Tenancies) 2010 ACAT 30 10th of May 2010.
It is our submission that any alternative interpretation would mean that the significant protection is provided to tenants under section 48 of the Act and in clause 93 of the SRTT could be circumvented by seeking termination of a tenancy, following the breach of any General Order, including for example a General Order made for failure to cut the lawn."
The Appellant's advocate argued that the decision of the Tribunal in the case of Clarkson required that the Tribunal find that a breach of the residential tenancy agreement had occurred that was the subject of the termination notice. In that case the Senior Member found that there was no evidence of such a breach.
The provisions of section 48 of the RT Act under which Clarkson was decided are different from in this case. The provisions of section 48 (1) (b) as an alternative to section 48 (1) (a) was not referred to in Clarkson, presumably because the Tribunal in that case had not previously made a general order under section 83 of the RT Act. Once that order has been made, the issue for the Tribunal is whether or not there has been a breach of the order. In this case the evidence satisfies me that there has been such a breach.
The notice to remedy served on the appellant by the letter of 23 September 2008 did contain in the last paragraph a direction to remedy the alleged breaches within 14 days notice from the date of service. It indicated that a failure to remedy the breach would result in Housing ACT commencing legal action through the Residential Tenancies Tribunal to terminate the tenancy. The role of the Residential Tenancies Tribunal has now been taken over by this Tribunal. The notice of 29 April 2009 did the same, although referring to proceedings in the Tribunal.
Section 48 (1) (a) provides for certain processes and protections for a tenant. However, I do not read it as requiring those processes to be followed where the Tribunal has already made an order under section 83 (b). Sub-clauses (a) and (b) of section 48 (1) are alternatives: section 83 empowers the Tribunal to make an order in cases where it thinks fit, and section 48 (1) (b) then allows the termination of a tenancy where the Tribunal is satisfied that the tenant has breached that order and that the breach justifies the termination. If section 48 (1) (a) had been intended to apply in cases where the Tribunal was considering making an order under section 48 (1) (b), it presumably would have said so.
Section 48 (1) (a) only contemplates a single consideration by the Tribunal, whereas the steps contemplated under section 48 (1) (b) not only require consideration twice, but a necessary requirement of an order made under section 83 (b) would be that there are grounds (i.e. defaults in performance of agreed terms) by a tenant under a residential tenancy agreement or occupancy agreement.
I am satisfied that the Tribunal may proceed to make an order under section 48 (1) (b) without going through all of the considerations set out in section 48 (1) (a). The Tribunal must still be satisfied that “the breach justifies the termination of the tenancy". In weighing all of the factors involved in the serious decision to terminate a person's occupancy of their home, the suggestion that this might be done for failure to cut a lawn does not give due weight to the factors that have to be taken into account.
While the advocate for the Appellant argues that the making of a general order under section 83 of the RT Act followed by a termination under section 48 (1) (b) provides a lesser protection to the tenant, and that therefore the only procedure that can be followed is under section 48(1) (a),in my opinion this is not the proper interpretation of the section and fails to recognise the alternatives that the section provides.
The Commissioners evidence.
A number of the other residents of Valleyfield complex gave evidence on the first day of the hearing. In accordance with my earlier orders, that evidence was given in person without the witnesses being identified by name in the hearing. The Appellant was not present. While the witnesses had filed statements which were available to the Appellant’s advocate, these had been de-identified.
There was obviously a great deal of tension and concern in the minds of a number of people who gave evidence. Both in their statements and in oral evidence, they said that they would not have given evidence about things happening at the complex unless their identity was protected. They were scared of retribution from friends or family members of the Appellant. A number of the witnesses were quite elderly and had significant medical problems. The giving of evidence increased the stress on them, and had made them more reluctant to give evidence.
In September 2009, a petition was circulated amongst the number of residents of early field. It was addressed to ACT Disability, Aged and Carer Advocacy Service. It was admitted as exhibit 2. The petition sought the advocacy of the service so that the petitioners could have the quiet enjoyment of the units that they were occupying. It complained about the Appellant as a person who appeared to be challenged and helpless in the face of young people who were forcing themselves on her home. The petition indicated that there were a number of children and young people who occupied the unit from time to time and that the occupier yells and screams at them to try and get them to “leave her alone." The petition also recounted the fears that the residents had because of their perceived risk from these young people including the use of threats, break-ins and robbery, riding a trail bike through the complex to vandalism of motor vehicles and breaking into homes.
There were nine witness statements filed on behalf of the Commissioner in the interlocutory application for a confidential hearing.
Witness A gave evidence that she had lived in Valleyfield complex for several years. She had had items stolen from the front garden, she had seen teenage males apparently trying to forcibly enter a neighbour's front door and when she stopped and watched them they ran off to the Appellant's unit. The witness also said that on several occasions she had seen various people entering the Appellant's unit with sleeping bags, pillows and sheets. The witness gave evidence that on a number of occasions she had been in woken by screaming and yelling from unit 11, including multiple voices and the use of disturbing language which would often continue until early morning. The witness also reported that another resident had told her that all of the people who complained about unit 11 would “cop it”. She recounted an experience when another resident approached her in a shaken state, claiming that he had just been threatened. The identity of the people who did this is not known.

The witness acknowledged that the statement had been sought and typed up by the Commissioner’s officers, but maintained the truth of the statement. The witness stated that she did not know the Appellant personally and had not exchanged gestures with her. The witness also told of a situation where another resident had been threatened by a boy riding a motorcycle through the complex.
Witness B was an elderly woman with significant mobility issues. In her statement she said that she had recently applied for a transfer from the complex due to the disturbances and incidents that have occurred from unit 11. She gave evidence of a large number of males and females walking up the path to unit 11, and of frequent fighting and yelling from the unit which may continue throughout the night. The witness also recounted seeing people leave unit 11, crossing the road and starting a fire. When the fire fighters arrived and put the fire out the children ran off and the witness saw them go into unit 11. The witness also gave evidence of young teenagers leaving unit 11, going across the road and beginning to have sexual relations. Both teenagers appeared to be affected by alcohol. The witness gave evidence of young people drinking alcohol out the front of unit 11, of screaming and yelling and smashing of glass at all hours of the day and night. She confirmed her fear of giving evidence publicly because of the threat of reprisals. The witness confirmed that her statement had been typed up by the Commissioner’ office following an interview, and that her statement was accurate.
Witness C gave evidence. He also confirmed that his statement had been typed up by the Commissioner for, but that it represented his view of what had taken place. There had been numerous occasions of up to 15 males and females walking up the path to unit 11 and entering and leaving the premises. He said that he had seen and heard fighting and yelling from unit 11 on an almost daily basis, with people taking items to smoke marijuana into unit 11. He also gave evidence that he had seen people leaving unit 11, crossing the road and starting a fire. When the Fire Brigade attended the people ran off back towards unit 11. On a recent occasion, the smashing glass and screaming and yelling from unit 11 were so bad that the police were called. The witness also recounted seeing children drinking alcohol out the front of unit 11, on an almost daily basis. The witness also said that there was a general fear amongst residents of the complex that if they talked to the Commissioner’s officers and complain they may not be safe.
Witness D gave evidence. She had lived at complex for approximately 6 months. In her statement she referred to people riding motorbikes and leaving unit 11, riding at an unacceptable speed and over people's lawns and pathways in an unacceptable and intimidating manner. This witness also confirmed the noise from screaming and yelling from unit 11. The witness maintained that the problems arising from unit 11 have had a significant effect on her health.
When pressed in cross examination, she could only recall one incident involving a motorbike. She did complain of her car cover having been slashed, and that petrol had been drained from her car. This happened a couple of months ago, after the petition had been signed. There was no direct connection with the Appellant.
The witness confirmed that officers from the Commissioner had taken her statement and had typed it up.
Witness E had given a statement but was now reluctant to be called to give evidence.
During the hearing, one of the potential witnesses was having a stress attack in the Tribunal's offices. After discussion between counsel for the Commissioner and the Appellant's advocate, it was agreed that the remaining statements that had been filed in the interlocutory application should go in as evidence, with such probative value as the Tribunal considered appropriate.
Evidence was given by Ms Kellie Laggner, a team leader in tenancy management for the southern Canberra region in the Commissioner's office. She set out in detail in a statement the extensive history of complaints that she had been personally aware of concerning the Appellant and unit 11. In summary, these recounted reports of antisocial behaviour, drinking and offensive behaviour. Acts of vandalism against the complex and motor vehicles were also reported, together with the riding of unregistered trail bikes through the complex. Ms Laggner’s statement and oral evidence confirmed that there had been complaints regarding people attending at unit 11 with sleeping bags and pillows and apparently staying overnight. The effect of the conduct has been that a number of residents feel unsafe leaving their units, and felt intimidated by people that they believed were associated with unit 11 and the Appellant.
Ms Laggner’s statement also recounted steps that the Commissioner's staff had taken to support the Appellant in trying to relocate into more suitable accommodation. In paragraph 33 of her statement, Mrs Laggner reported that the efforts to relocate the Appellant into more suitable accommodation had been "often at her request.” The statement also recounted significant attempts that had been made to try and resolve the issues that arose in relation to the Appellant and unit 11, without success. A number of the residents have reported significant medical problems arising from the stress. Ms Laggner also acknowledged that things had been calmer recently. Whether this is as a result of the Tribunal proceedings, with their potentially serious outcome, or a general improvement in relation in the behaviour of people in the area is a matter for conjecture.
Ms Laggner confirmed that she and another officer had taken details of the statements from witnesses who had given them. The statements have been taken separately, typed up and printed off at the office and signed next day.
The Appellant's evidence.
The Appellant had filed an affidavit in the matter on 15 December 2009. In that affidavit she denied receiving any documents concerning matter number RT09/515, and she made no reference to her appearance in the proceedings of 25 November 2009. The affidavit of the Appellant recounted a small social gathering at her home in June 2009, where there were a number of children who were excited and noisy but there was no bad language or rough play.
The Appellant also recounted an incident in about late July 2009 when the children of one of her guests were knocked over by a motorbike being wheeled by three or four young people. The Appellant attested that nobody lived in the flat except her and that nobody stated the flat overnight. The Appellant confirmed that there had been a gang of young people who came around including nieces and nephews of hers but they did not do so any more since her son had told them to stop. She didn't seek to encourage them, but if they start shouting and get angry she tries to get them to be quiet. She found it hard to get them to take any notice and they wouldn't leave when told. She maintained that the stories told by the other residents were exaggerated because they did not like her. The Commissioner's representatives had sided with the other residents, who continually ring up Housing to complain about her. The Appellant denied that the police had been called two weeks ago as a result of shouting and aggressive behaviour at the unit, and maintained that she had no knowledge of any threat of retribution.
The Appellant did confirm that her son had stayed there several weeks ago when he needed support, and as now that she is finding it hard to manage she was seeking to have him registered as her carer.
The Appellant agreed that she was aware of a petition by the other residents of the complex, and that she was “aware of the people who put me in." She maintained that she had never threatened anyone in the complex but she was under threat herself. She did confirm that she would be looking to transfer out of the complex if she could do so but she wanted to continue to live independently and do her own cooking.
The Appellant filed a second affidavit dated 13 August 2010. In that she said:
a)   the gang of young people who had been causing trouble in the area had moved on:
b)   friends of her relatives have followed her son's directions to not come around to her unit.
c)   her dog has now gone to the RSPCA
d)   her medical problems need the assistance of her son Michael, and she is taking steps to have him recognised as
e)   her carer
f)   there are steps in train with the Commissioner's office for a transfer to a bigger home where her son could live with her
g)   she is still subject to harassment from neighbours.
It may be that a transfer to another property will meet the needs of the Appellant, but that of itself is not a reason for making a termination and possession order. The situation at the complex may have quietened down at present but there have been breaches of the General Order which would justify the termination of the tenancy, and the effects of these breaches are ongoing for the other residents.
Consideration of the evidence
There is a stark contrast between the evidence given by the other residents of the complex and the Appellant herself. In assessing the evidence, I need to take into account the possibility that there has been a "ganging up" on the Appellant, driven by anxiety and fear of older people many of whom have significant medical problems that will make them feel vulnerable. To confirm a termination notice, requiring the Appellant to be re-housed or to obtain accommodation with relatives, is a serious matter and is not to be undertaken without a comfortable degree of satisfaction on the evidence.
I give considerable weight to the evidence of the Commissioner's officer who has recounted the details of the many complaints and attempts to resolve the interpersonal difficulties at the complex. It is understandable that with elderly people who are not used to, or have the opportunity, to record detailed notes of particular incidents that their evidence is imprecise about dates and other details. Having considered the written statements of the witnesses and their demeanour in the witness box, I am satisfied that those who gave evidence did so truthfully and after overcoming anxiety about their fear of risks to their personal safety -- whether overstated or not.
Even allowing for some degree of overstatement, the evidence of the Appellant in the matter is so much at variance with the rest of the evidence that I find it difficult to accept. The evidence indicates that there were a number of people staying in the unit from time to time, engaging in antisocial and threatening behaviour both in the Appellant's property and in the complex general. Whether the Appellant agreed with this conduct, or whether she felt helpless to stop it and could only shout at the people perpetrating it until they decided to leave, still leaves the conduct as a major concern.
It must be remembered that this is a complex for aged people who understandably wish to live out their retirement in peace and without a sense of threat. To this extent their reaction may not be as robust as could be expected amongst the general community, but they are also entitled to live without continued interruption, shouts of argument and fighting and abuse.
The conduct emanating from people present from time to time in and around unit 11, and the evidence is that the Appellant was either condoning it or was unable to take the steps necessary to prevent it. There is no indication that the Appellant herself ever call the police to prevent the ongoing problems. While this may have been hard for her to do, the consequence of her failure has been a significant loss of amenity for the other residents.
I find that the evidence supports the conclusion that over a substantial period of time the Appellant has permitted her unit to be the site of a significant nuisance to other occupants of the complex. There has been underage drinking in her yard, and damage to the unit. There has been an atmosphere of threat to the other residents generated to some extent by the people who have visited the Appellant. This amounts to a breach of clauses 70 (a) and (b) of the Agreement.
I also find that the actions of the people gathering at the unit and surrounds and engaging in this conduct is attributable to the Appellant under clauses 73 (a) and (b).
In considering whether the breaches justify the termination of the tenancy, I have had regard not only to the evidence of the witnesses but also the nature of the complex itself. The effect of these breaches is clearly greater on a group of older people living in a complex designed specifically for them, and where their age, medical conditions and general insecurity makes them more vulnerable to behaviour which in other contexts such as a group of detached houses with a younger age group -- might not warrant the termination of the tenancy. However, it is in the context of this particular housing complex that these conflicting interests must be weighed, and I am satisfied that the breaches justify the termination of the tenancy.
The evidence relating to a breach of the additional terms clause 1 of the Agreement prohibiting unapproved residents is less conclusive. I note the argument of the advocate for the Appellant that "residence" requires something more than the occasional overnight stay. Indeed, a number of other tenants of the complex may have had members of their families or friends to stay overnight in their units, without those people becoming "residents" or being said to "reside" at those properties. There is no clear line between a person occasionally staying overnight at the unit, and being said to "reside" at the unit but I am not satisfied that the evidence enables me to say that there has been a breach of this clause. Having said that, I note that the Applicant conceded that some members of her family had stayed in the unit or the shed from time to time.

Decision

For the reasons set out above, I make a termination and possession order pursuant to section 48 (1) (b) of the RT Act, terminating the tenancy agreement between the Appellant and the Commissioner and granting possession of unit 11 at the Valleyfield complex to the Commissioner. Termination and possession will take effect at 4.00pm on Friday, 22 October 2010.

………………………………..

Mr C.G Chenoweth
Presiding Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO:

APPLICANT:
RESPONDENT:

COUNSEL APPEARING: APPLICANT:

RESPONDENT:

SOLICITORS: APPLICANT:

RESPONDENT:

OTHER: APPLICANT:

RESPONDENT:
TRIBUNAL MEMBER/S:

DATE/S OF HEARING: PLACE: CANBERRA

DATE/S OF DECISION: PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: