NSW Land and Housing Corporation v Reisner; Reisner v NSW Land and Housing Corporation

[2016] NSWCATCD 9

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NSW Land and Housing Corporation v Reisner;  ; Reisner v NSW Land and Housing Corporation [2016] NSWCATCD 9

Hearing dates:

15 January 2016

Decision date:

22 January 2016

Jurisdiction:

Consumer and Commercial Division

Before:

K Rosser, Senior Member

Decision:

1. Leave to have a summons issued to the Minister for Housing is refused.

 

2. The application for a stay of proceedings is refused.

 

3. The tenant shall pay the landlord the sum of $229.24 within 14 days of the date of publication of these orders, for water usage charges from 18 March 2015 to 15 January 2016.

 

4. The tenant shall pay water usage charges to the landlord, currently 5.3% of the weekly rent ($5.30 per week), due on the Monday of each week, with the next payment due on 18 January 2016.

 5. The tenant’s application (SH 15/40071) is dismissed.

Catchwords:

SOCIAL HOUSING - Whether tenant required to pay water usage charges in shared meter premises - whether landlord can be ordered to install separate water meter

Legislation Cited:

Residential Tenancies Act 2010
Residential Tenancies Act 1987
Residential Tenancies Amendment (Social Housing) Act 2005
Civil and Administrative Tribunal Act 2013
Income Tax Assessment Act 1997
Social Security Act 1991

Category:

Principal judgment

Parties:

NSW Land and Housing Corporation (Applicant and Cross-Respondent)
Koidu Reisner (Respondent and Cross-Applicant)

Representation:

NSW Land and Housing Corporation – Ms Sue Hook
Ms Reisner – Self-represented

File Number(s):

SH 15/33310 and SH 15/40071

Publication restriction:

Nil

Reasons for decision

Introduction

1. These reasons for decision relate to two applications, SH 15/33310 and SH 15/40071.

Landlord’s application

2. In SH 15/33310, NSW Land and Housing Corporation (the landlord) seeks orders that Koidu Reisner (the tenant) pay arrears of water usage charges and that she pay water usage charges in accordance with the social housing tenancy agreement between them.

3. At the hearing, the landlord limited its claim for arrears of water usage charges to the sum accrued from 18 March 2015 to the date of the hearing and calculated the water usage charges owing for that period at $229.24. The landlord waived recovery of any water usage charges accrued prior to 18 March 2015.

4. In SH 15/40071, the tenant seeks an order that the landlord install a separate water meter in her premises.

5. The landlord and the tenant are parties to a social housing tenancy agreement that has been in place since 1998. The residential premises consist of a unit in a building owned by the landlord in South Coogee. The units in the building, including the unit occupied by the tenant, have a shared water meter rather than separate water meters.

6. The landlord’s case is that the tenant is required to pay water usage charges in accordance with s 139(1) of the Residential Tenancies Act 2010 (the Act).

7. The tenant’s position in respect of the landlord’s case is that she is not required to pay water usage charges, in essence because:

1. The landlord has provided no evidence that she has used water and accordingly has no basis to require her to pay a charge said to be for water usage;

2. The landlord has not proven that it pays for water to be supplied to the premises and

3. The charge constitutes a tax on her “statutory income” (that is, her social security pension), which is prohibited by the Australian Constitution and Commonwealth law.

8. In addition, the tenant argues that there is no evidence that the Commonwealth has consented to NSW imposing a tax on her income, which she argues remains the property of the Commonwealth, even once it has been paid to her.

9. The landlord’s position in respect of the tenant’s case is that the Tribunal has no power to order the landlord to install a separate water meter, as this would constitute an upgrading of the residential premises. Further, the landlord submits that installing a separate water meter is not reasonably required to mitigate any loss suffered by the landlord because of the tenant’s breach of the tenancy agreement, as claimed by the tenant.

10. For the reasons set out below, I have found:

1. The tenant is required to pay water usage charges, including the arrears claimed and

2. The landlord is not required to install a separate water meter at the premises.

Procedural history

11. The landlord’s application was filed on 18 May 2015. It was first listed for conciliation and hearing on 10 June 2015. That hearing was adjourned on the basis of medical evidence provided by the tenant.

12. The landlord’s application was next listed for conciliation and hearing on 23 June 2015. As the dispute between the parties was not settled, directions were made and the matter was set out down for a hearing on 16 July 2015.

13. The tenant’s application was filed on 23 June 2015. It was listed for hearing with the landlord’s application on 16 July 2015. An adjournment application made by the tenant was initially refused. However, the hearing in relation to both matters was adjourned on the day of the hearing because the tenant had commenced proceedings in the High Court, claiming, amongst other things, that s 139 of the Act was unconstitutional. The presiding member gave the tenant leave to amend an application for summons filed on 10 July 2015 and leave to issue a summons to Sydney Water for production of records since 1 January 2005.

14. A directions hearing listed on 22 September 2015 was adjourned because the tenant was required to appear in the Local Court on an unrelated matter.

15. The matters were then listed for directions on 24 September 2015 to consider whether the summons to Sydney Water should issue and whether the applications should be fixed for final hearing. Directions sent to the parties in relation to the directions hearing stated that the summons appeared oppressive on its face.

16. On 24 September 2015, the Tribunal noted the issues for determination and made directions for the filing and service of evidence and submissions.

17. The matters were listed for further directions on 7 October 2015. At that hearing, the Tribunal made further directions in respect of evidence and submissions and dismissed the summons. The Notice of Order states that oral reasons were given for the decision to dismiss the summons. The orders made by the Tribunal were not appealed to the Appeal Panel. There is no record of the Registry receiving any application for written reasons pursuant to s 62(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act).

18. Both applications were listed for hearing on 10 November 2015. That hearing was adjourned on the basis of medical evidence provided by the tenant. They were then listed for hearing on 10 December 2015. Although an adjournment application made by the tenant prior to the hearing had been refused, the tenant did not attend the hearing. The adjournment application was reconsidered on the Tribunal’s own motion, an adjournment was granted and further directions were made, as the tenant had failed to comply with directions made on 24 September 2015 and 7 October 2015.

19. On 31 December 2015, the tenant filed an application for a summons to be issued requiring the Minister for Housing (or the “Executive Delegate”) to attend the hearing to give evidence and to produce the documents specified in an attachment to the application. The documents the tenant sought to have produced are in essence the documents used by the Minister to make guidelines under s 139 of the Act. The tenant was advised that the Tribunal would consider whether leave would be granted for the summons to be issued at the hearing on 15 January 2016 and, in the event that leave was not granted, the hearing of the substantive application would proceed on that day. The parties were put on notice that even if leave were granted, the hearing of the landlord’s case may proceed in any event.

Hearing

20. Both parties appeared at the hearing on 15 January 2015. Ms Hook represented the landlord. The tenant represented herself.

21. The tenant sought a stay of proceedings, as on 14 January 2016 she had filed a summons in the Supreme Court seeking judicial review of the orders made on 7 October 2015.

22. The application for a stay of proceedings was refused. Oral reasons were given. The reasons for refusing the stay are set out below.

23. The Tribunal considered whether to grant leave for the summons to be issued. Leave was refused. Oral reasons were given. The reasons for dismissing the summons are also set out below.

24. The hearing in respect of both applications proceeded by way of the landlord’s representative and the tenant making oral submissions and addressing the written material filed by the parties prior to and at the hearing.

25. At the end of the hearing of the substantive applications, the Tribunal’s decision was reserved.

Evidence and submissions

26. In making a decision in relation to the applications, I have considered:

1. The bundle of documents filed by the landlord prior to the hearing, which includes Ms Hook’s affidavit dated 13 October 2015, with attachments)

2. Documents handed up at the hearing by both parties and;

3. The oral submissions made by the parties.

27. The documents handed up at the hearing by the landlord are:

• Computer printouts showing changes in the rent payable by the tenant since 25 April 2011 and changes in water usage charges payable by the tenant since 12 October 2009. (Exhibit A). These documents show that the tenant’s current rent is $100.30 per week and that she is assessed to pay water usage charges of $5.30 per week.

28. The documents handed up at the hearing by the tenant are:

• A “notice of motion” dated 15 January 2015, setting out submissions in support of the tenant’s application and attaching a copy of the residential tenancy agreement between the parties and an extract from a review of water usage charges paid by social housing tenants, which was conducted by the NSW Energy & Water Ombudsman (EWON) in 2009;

• A document headed “Submissions” attaching a letter to the landlord requesting evidence that that she has used water and that the landlord has paid for water to be supplied;

• A submission attaching extracts from income tax legislation;

• A summons for judicial review and supporting affidavit, filed in the Supreme Court on 14 January 2015.

29. I note that the tenant had not complied with directions requiring her to file and serve evidence and submissions prior to the hearing. However, the documents were received as the landlord did not object to this course of action.

Stay application

30. The tenant’s stay application was refused for the following reasons.

31. In the Summons filed in the Supreme Court on 14 January 2016, the tenant seeks judicial review of orders made by the Tribunal on 7 October 2015, including but not limited to the order dismissing the summons the tenant sought to have issued to the Sydney Water.

32. The Supreme Court did not stay the proceedings in the Tribunal. While the tenant explained this by stating the Court was in recess, I am satisfied that an urgent application for a stay could have been made and considered by the Duty Judge. The tenant is an experienced litigator in person and I am satisfied that it would have been within her ability to seek an urgent order staying the proceedings in the Tribunal.

33. I am satisfied that staying the proceedings pending determination of the tenant’s application in the Supreme Court would not be consistent with the Tribunal’s obligation under s 36(1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings, particularly given that the landlord’s proceedings were commenced some eight months ago. The stay application was accordingly refused.

Summons

34. As noted above, the tenant sought to have a summons issued to the Minister (or the “Executive’s Delegate) to attend the hearing to give evidence and to produce documents.

35. The tenant was refused leave to have this summons issued because the material sought did not go to any issue in the proceedings. The Tribunal has no power to review guidelines issued under s 139 of the Act in the context of these particular proceedings.

36. The tenant submitted that the material she was seeking the Minister is “extrinsic material” that would assist in the interpretation of the relevant legislative provision. However, a court or tribunal may only consider extrinsic material if it is both relevant and capable of genuinely assisting in the task of interpretation. I am not satisfied that there is any ambiguity in the meaning of s 139 of the RT Act.

37. As I am not satisfied that material the Minister used in formulating guidelines made under s 139 is relevant to the issues in these proceedings, leave to issue the summons was accordingly refused and the summons dismissed.

Issues to be determined on the landlord’s application

38. The issues to be determined in the landlord’s application are:

1. Does s 139 of the RT Act apply to the tenancy agreement between the parties?

2. Are guidelines under s 139 in force and if so how do they determine the charges payable under s 139?

3. Do the defences to the application articulated by the tenant have merit?

4. Should an order be made requiring the tenant to pay water usage charges in future?

5. Does the tenant owe arrears of water usage charges and, if so, in what sum?

6. If the tenant owes arrears of water usage charges, how should the arrears be paid?

Consideration of the landlord’s application

Does s 139 of the RT Act apply to the tenancy agreement between the parties?

39. There is no dispute that there is a tenancy agreement between the parties that was entered into in 1998. There is also no dispute that the premises the tenant occupies are shared meter premises and do not have a separate water meter.

40. When the tenancy agreement was entered into, the tenant was not required to pay water usage charges. Those charges were to be paid by the landlord: clauses 3.2 and 4.4 of the tenancy agreement.

41. In October 2005, the Residential Tenancies Amendment (Social Housing) Act 2005 was passed. This legislation amended the Residential Tenancies Act 1987 (the 1987 RT Act). Included in the amendments was s 19A, which provided that social housing tenants were now to pay water usage charges.

42. S 19A of the 1987 RT Act provided:

19A   Social housing tenants to pay water charges

(1)  It is a term of every social housing tenancy agreement that the tenant must pay to the landlord any charges, determined in accordance with guidelines approved by the Minister, in respect of water usage by the tenant.

(2)  Without limiting subsection (1), the guidelines may:

(a)  provide for the determination of water usage charges by reference to any of the following:

(i)  actual usage or estimated usage,

(ii)  the income of the tenant,

(iii)  the rent payable for the premises to which the agreement relates

(whether with or without rent rebate), and

(b)  require water usage charges to be paid by the tenant in advance of actual usage.

(3)  The guidelines are to be made publicly available.

(4)  A copy of the guidelines is to be provided, on request, to any tenant under a social housing tenancy agreement free of charge and to other persons either free of charge or on payment of reasonable copying charges.

(5)  The guidelines may be amended or replaced from time to time.

(6)  The Energy and Water Ombudsman of NSW is to review any guidelines in force under this section as soon as possible after the period of 2 years from the date on which this section commences.

43. A social housing tenancy agreement was defined as “a residential tenancy agreement in respect of social housing premises”, which included premises let by the NSW Land and Housing Corporation. The agreement between the parties is therefore a social housing tenancy agreement.

44. Schedule 4 clause 4 of the 1987 RT Act stated:

11   Existing social housing tenants to pay water charges

Section 19A, as inserted by the amending Act, extends to a social housing tenancy agreement entered into before the section commences.

45. It follows from the above, that s 19A of the 1987 RT Act applied to the agreement between the parties, even though the tenancy agreement entered into in 1998 did not require the tenant to pay water usage charges. The terms of the agreement entered into in 1998 were retrospectively changed by the relevant amendments to the 1987 RT Act.

46. The 1987 RT Act was repealed and the current RT Act came into force on 31 January 2011.

47. Section 139 of the RT Act provides

139 Social housing tenants to pay charges for water

(1) Charges payable

A tenant under a social housing tenancy agreement must pay to the landlord any charges, determined in accordance with guidelines approved by the appropriate Minister, in respect of water usage by the tenant.

(2) Guidelines for payment of charges

The guidelines may provide for the determination of the charges by reference to any of the following:

(a) actual usage or estimated usage,

(b) the income of the tenant,

(c) the rent payable by the tenant (whether with or without rent rebate).

(3) The guidelines may include other matters, including a requirement that charges in respect of water usage be paid by the tenant in advance.

(4) The guidelines are to be made publicly available.

(5) A copy of the guidelines is to be provided, on request, to any tenant under a social housing tenancy agreement free of charge and to other persons either free of charge or on payment of reasonable copying charges.

(6) The guidelines may be amended or replaced from time to time.

48. Under the RT Act, a social housing tenancy agreement is defined as a residential tenancy agreement where the landlord is a social housing provider. The landlord in these proceedings is a social housing provider: s 136 of the RT Act.

49. Clause 3(2) of Schedule of the RT Act provides that the Act applies to residential tenancy agreements in force immediately before the repeal of the 1987 RT Act, despite the terms of the agreement.

50. It follows that s 139 of the RT Act applies to the agreement between the parties, because that agreement was in force immediately before the repeal of the 1987 RT Act. Under that agreement, the tenant was required to pay water usage charges because of the operation of s 19A of the 1987 RT Act.

Are Guidelines under s 139 in force and do they apply to the tenancy agreement between the parties?

51. Included in the bundle of documents filed by the landlord are several documents headed “Ministerial Guidelines for Water Usage Charging”. Relevant to the landlord’s application are two Guidelines.

52. The most recent document is the FACS Housing – Ministerial Guidelines for Water Usage Charging – 2015 (the current Ministerial Guidelines), signed by the then Minister for Family and Community Services and dated 25 February 2015. This document is at Annexure I of Ms Hook’s affidavit dated 13 October 2015.

53. I am satisfied that the current Ministerial Guidelines are guidelines approved by the Minister in accordance with s 139 of the RT Act. In accordance with s 139(2), the Ministerial Guidelines provide for the determination of water usage charges by reference to the rent paid by tenants and set the water usage charge for tenants in shared meter properties at 5.3% of the rent paid by the tenant, from 13 April 2015.

54. The second document is Ministerial Guidelines for Water Usage Charging at Annexure E in Ms Hook’s affidavit (the previous Ministerial Guidelines). This document was also issued by the then Minister and set the water usage charges for tenants in shared meter properties at 5.1% of the rent. The previous Ministerial Guidelines operated from 14 April 2014 until the introduction to the current Ministerial Guidelines. Amendment of guidelines under s 139 is permitted by s 139(2) of the Act.

55. I am satisfied that both the current and the previous Ministerial Guidelines constitute guidelines approved by the Minister for the purposes of s 139 of the Act that apply to the period for which the landlord seeks payment of water usage charges; that is the period between 18 March 2015 and 15 January 2016.

Do the defences to the application articulated by the tenant at the hearing have merit?

56. The tenant argues that s 139 of the RT Act and the Ministerial Guidelines do not apply to her for three reasons. First, she submits that the landlord has provided no evidence that she uses water in the premises at all and no evidence that it pays for any water supplied. Second, she argues that the charge calculated as a percentage of her rent is an impermissible tax on her “statutory income”. Third, she argues that the Commonwealth has not consented to the State taxing its property (that is, her pension payment).

57. In relation to the tenant’s first argument, given that s 139(2) of the Act contemplates charges being determined on the basis of estimated water usage, the tenant’s income, or the rent payable by the tenant, I am not satisfied that there is any obligation on the landlord to establish either that the tenant has actually used any water, or that it has paid for water supplied. This is because it is not a charge for actual use of water by an individual tenant. Rather, it is a charge imposed on social housing tenants in shared meter properties by operation of s 139 of the RT Act. In these circumstances, I find that there is no merit in the tenant’s argument that the landlord cannot recover water usage charges calculated in accordance with the Ministerial Guidelines because the landlord has not proven that she has used any water or shown evidence of payments it has made for water.

58. Further, to the extent that such a finding is necessary, I do not accept that the tenant resides in the premises and uses no water. When the tenant was asked during the hearing whether she was suggesting that she never flushed the toilet, turned on a tap, took a shower or made a cup of tea, the tenant avoided giving a direct answer. Instead, she stated that such things could occur elsewhere than on the premises. While this is undoubtedly true, it is inherently implausible that the tenant resides in the premises and uses no water at all. Further, it is also inherently implausible that the landlord has no obligation to pay for water that is supplied to its tenants.

59. Overall, I do not accept the tenant’s argument that she is not required to pay charges for water usage in accordance with s 139 of the RT Act because the landlord has not established that she uses water or provided evidence of what it pays for water used by its tenants.

60. In relation to the tenant’s second argument, I reject her submission that the charge constitutes a tax on her income. I accept that the tenant is in receipt of a social security pension. While this was not discussed during the hearing, the documents provided by the tenant indicate that she is in receipt of a disability support pension. I accept that the tenant’s pension is exempt up to the tax-free amount for the purposes of the Income Tax Assessment Act 1997: s 52.10. However, the water usage charge payable by tenants to whom s 139 applies is not a tax on the tenant’s income. It is a charge levied by her landlord, a statutory corporation, in accordance with s 139.

61. While s 139 permits guidelines made under that section to set charges by reference to the tenant’s income, the Ministerial Guidelines in fact set the charges by reference to the rent payable by the tenant. A tenant to whom s 139 applies is currently required to pay 5.3% of their rent. This is the case regardless of the source of the tenant’s income. Accordingly, I am not satisfied that a charge calculated in accordance with the Ministerial Guidelines made under s 139 constitutes a tax on the tenant’s income. It is a charge calculated by reference to the rent she is required to pay for the premises. The fact that the tenant is in receipt of an income paid to her under the Social Security Act 1991 that is exempt income for income tax purposes up to the tax free threshold and the fact that the tenant uses money from her pension to pay her rent, amongst other things, do not alter this situation.

62. Given my finding that the water usage charge does not constitute income tax, it follows that there is no merit in the tenant’s third argument; that is, that the Commonwealth has not permitted the State government to tax its property.

Should an order be made requiring the tenant to pay water usage charges in future?

63. I have found above that s 139 of the RT Act applies to the tenant. This means that under her tenancy agreement she is required to pay water usage charges under s 139 of the RT Act, calculated in accordance with the Ministerial Guidelines.

64. A water usage ledger included in the landlord’s bundle of documents indicates that the tenant has paid water usage sporadically since 2006. The ledger indicates that the last payment made by the tenant was a payment of $20 which was credited to the account on 4 February 2014. The ledger also demonstrates that the last time the water usage account was in credit was in May 2012. It is clear that the tenant has not paid water usage regularly at any time.

65. Given the tenant’s longstanding resistance to paying water usage charges, it is appropriate that a specific performance order be made requiring her to pay water usage charges in future, as she is required to do.

66. At present, based on the print out provided by the landlord, the tenant’s rent is $100.30 per week. The Ministerial Guidelines currently in force set the water usage charge at 5.3% of the rent payable. This means that the tenant is currently required to pay water usage charges of $5.30 per week. I have ordered that she do so under s 187(1)(b) of the RT Act.

Does the tenant owe arrear of water usage charges and, if so, in what sum?

67. At the beginning of the hearing, Ms Hook stated that the tenant’s water usage charges account was some $800.00 in debit. However, as noted above, during the hearing she advised that she only sought payment of water usage charges arrears from 18 March 2015 until the date of the hearing, to avoid any part of the landlord’s claim being out of time. Ms Hook calculated the arrears at $229.24, on the following basis:

• For the period from 18 March 2015 to 10 April 2015 = $18.75, based on rent of $99.55 per week and water usage charges calculated at 5.3% of the weekly rent plus.

• For the period from 11 April 2015 to 15 January 2016 = $210.48, based on rent of $100.30 per week and water usage charges calculated at 5.3% of the weekly rent.

68. The tenant did not specifically dispute this calculation (although she did note that she had been given different calculations at different times) and I am satisfied that it is accurate. Accordingly, I find that the landlord has established an entitlement to a payment of water usage charges arrears in the sum of $229.24, being water usage charges accrued between 18 March 2015 and 15 January 2016.

69. Any water usage charges debited to the tenant’s account exceeding $229.24 were abandoned at the hearing and cannot be recovered.

If the tenant owes arrears of water usage charges, how should the arrears be paid?

70. The tenant was asked for submissions on this point during the hearing. She stated that an order that arrears be paid in a lump sum, two weeks after publication of the orders, was acceptable. Ms Hook did not object to such an order. The order has been made under s 187(1)(c) of the RT Act.

Issues to be determined on the tenant’s application

71. The issues to be determined in the tenant’s application are:

1. Does the Tribunal have the power to order the landlord to install a water meter?

2. If so, should it do so?

Consideration of the tenant’s application

72. As noted above, it is not in dispute that the premises do not have a separate water meter. This has been the case since the beginning of the tenancy in 1998.

73. The tenant claimed that the premises were uninhabitable. It is a term of every residential tenancy agreement that the landlord “must provide the residential premises … fit for habitation by the tenant”: s 52 of the RT Act. I am not satisfied that the habitability of the premises is affected by the presence or absence of a separate water meter. A water meter measures consumption of water, it does not affect the supply of water. I am not satisfied that the tenant has established that the premises are uninhabitable because there is no separate water meter.

74. The landlord “must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises”: s 63 of the RT Act. Given that there has never been a separate water meter at the premises, the landlord does not have an obligation to install one in order to comply with its obligation to maintain the premises in a reasonable state of repair.

75. The tenant argued that the landlord should be ordered to install a water meter to bring the premises into a contemporary condition. However, to order the landlord to install a water meter would be to require the landlord to upgrade the premises in the absence of any breach of the landlord’s obligations under the agreement. The Tribunal cannot order the landlord to provide a facility in the premises that was not there at the beginning of the tenancy, unless such action would be required in order for the landlord to meet its obligation to provide habitable premises and/or to maintain the premises. I am not satisfied that installation of a separate water meter where none previously existed is required either to make the premises habitable or to maintain the premises in a reasonable state of repair.

76. The tenant also argued that the lack of a water meter in the premises affects her enjoyment of the premises. I am not satisfied that this is the case. The tenant’s submissions do not suggest that the lack of a separate water meter affected her enjoyment of the premises between 1998 and 2005, when s 19A of the 1987 RT Act was introduced. I conclude that it is the tenant’s statutory obligation to pay water usage charges that affects her enjoyment of the premises, not the fact that the premises do not have a separate water meter.

77. The tenant argued that the landlord could be ordered to install a water meter because doing so would be consistent with the landlord mitigating any loss it suffered arising from a breach of her obligation to pay water usage charges. I accept that the landlord has an obligation to mitigate loss arising from a tenant’s breach of the tenancy agreement. However, I am not satisfied that installation of a separate water meter is something that the landlord is reasonably required to do in mitigation.

78. In my view, reasonable mitigation of loss arising from a failure to pay water usage charges could require the landlord, for example, to commence proceedings to recover unpaid charges without undue delay. Had the landlord not waived water usage charges accruing earlier than 18 March 2015, there may have been not only an issue about whether the landlord’s claim in respect of those charges had been brought within time, but also an issue about whether the landlord had taken reasonable steps to mitigate its loss. However, those issues do not arise on the landlord’s current claim for arrears of water usage charges.

79. Overall, I am not satisfied that the lack of a separate water meter in the premises constitutes a breach of the tenancy agreement between the parties or a failure to mitigate the landlord’s loss. In these circumstances, I am not satisfied that the Tribunal has the power to order the landlord to install a separate water meter in the tenant’s premises. Her application is accordingly dismissed.

80. I note that documents provided to the Tribunal at the hearing include an extract from the review of guidelines in force under s 19A of the 1987 RT Act conducted by EWON, in accordance with s 19A(6) of that Act. The report indicates that tenants who participated in a survey conducted by EWON shared many of the same concerns that the tenant has in respect of water usage charges in shared meter premises. EWON made a number or recommendations in its report, including:

• The provision of additional information to tenants, for example details about increases in the cost of water and reasons for an increase or decrease in the percentage of net rent to be paid;

• Encouraging tenants to reduce their water consumption, through further education and/or water saving campaigns and awareness raising initiatives;

• Further consideration to be given to individual meters being retrofitted as part of any significant upgrade or renovation of existing housing stock, where the plumbing configuration makes this a viable and cost-effective option.

81. The tenant submitted that it was unfair that water usage charges increase as rent increases, even without any increase in use of water. The tenant also submitted that it was unfair that a social housing tenant in shared meter premises who minimises their water usage may pay the same amount of water usage charges as a tenant in the same premises who uses more water.

82. However, the tenant occupies the premises under an agreement that is regulated by the RT Act. The government has made a decision that tenants in shared meter social housing premises are to pay water usages charges and has legislated for that to occur. The fact that the tenant considers the arrangement to be unfair does not give the Tribunal the power to order the landlord to install a separate water meter in her premises.

83. It is likely that at some point the landlord will substantially renovate or re-develop the building in which the tenant’s premises are located. Ms Hook conceded that when this happens, the landlord will be obliged to install separate water meters, as Sydney Water has introduced new rules that require this to occur.

Conclusion

84. I have found that the tenant is required to pay water usage charges under s 139 of the RT Act, including arrears from 18 March 2015. As noted above, the landlord has waived recovery of arrears of water usage charges accrued prior to that date. I am not satisfied that the Tribunal has power to order the landlord to install a separate water meter in the tenant’s premises, as the lack of a water meter does not constitute a breach of the residential tenancy agreement between the parties or a failure by the landlord to mitigate its loss.

Orders

85. I have made the following orders:

1. Leave to have a summons issued to the Minister for Housing is refused.

2. The application for a stay of proceedings is refused.

3. The tenant shall pay the landlord the sum of $229.24 within 14 days of the date of publication of these orders, for water usage charges from 18 March 2015 to 15 January 2016.

4. The tenant shall pay water usage charges to the landlord, currently 5.3% of the weekly rent of $100.30 ($5.30 per week), due on the Monday of each week, with the next payment due on 18 January 2016.

5. The tenant’s application SH 15/40071 is dismissed.

K Rosser

Senior Member

Civil and Administrative Tribunal of New South Wales

22 January 2016

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 07 April 2016