Seibright v NSW Land and Housing Corporation

[2015] NSWCATCD 22

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Seibright v NSW Land and Housing Corporation [2015] NSWCATCD 22
Hearing dates:	9 February 2015
Decision date:	23 February 2015
Jurisdiction:	Consumer and Commercial Division
Before:	C R Xuereb, General Member
Decision:	1 The respondent must, within 28 days of the date of these orders, investigate the light reflection emanating from the common area lighting and entering Unit 18 and, where possible, limit such light reflection into Unit 18, including, if necessary the installation of a lampshade. 2 The application is otherwise dismissed.
Catchwords:	Reduction in rent Compensation Quiet enjoyment – peace, comfort and privacy Disability discrimination
Legislation Cited:	Residential Tenancies Act 2010 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Category:	Principal judgment
Parties:	Jason Seibright (applicant) NSW Land and Housing Corporation (respondent)
Representation:	Mr Jason Seibright, applicant in person Mr John Dauth for the respondent
File Number(s):	SH 14/53357
Publication restriction:	Nil

Reasons for Decision

APPLICATION

1. The applicant filed an application on 28 October 2014. The orders sought were those in a two-part submission filed contemporaneously with the application. The two-part submission comprises 220 pages.

2. Distilling the substantial submissions filed with the application, the applicant seeks variously:

1. An Order reducing the rent payable under the Residential Tenancy Agreement (the Lease) ;

2. An Order that the respondent refunds of all rent paid under the Lease (which commenced in October 2005);

3. An Order awarding the applicant compensation;

4. An Order that all future rent be paid to the Tribunal until the issues bringing the applicant and the respondent into dispute are determined by the Tribunal;

5. An order requiring the respondent to ensure the applicant’s quiet enjoyment of “peace, comfort and privacy”;

6. An order declaring that the respondent has discriminated against the applicant by reason of the applicant’s disability;

7. An order that the respondent is in breach of the lease as the common areas are so configured as to impact on the applicant’s peace, comfort and privacy;

8. An order that the respondent replace the premises’ kitchen bench, currently 400mm wide, to one which is 800mm wide;

9. An order that the respondent rectify plumbing pipe noise within the premises;

10. An order that the respondent rectify the common area lighting so as to reduce its impact on the applicant’s peace, comfort and privacy.

JURISDICTION

3. The dispute between the applicant and the respondent arises from their relationship as tenant and landlord under a Lease governed by the Residential Tenancies Act 2010 (the Act). Part 10 of the Act confers jurisdiction on the Tribunal to hear and determine disputes.

4. The jurisdiction of the Tribunal, in this instance, is limited to making orders which may be made under the Act. The jurisdiction does not extend beyond the powers given to the Tribunal by the Act. Section 188 of the Residential Tenancies Act provides:

188   General order-making power of Tribunal

The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders:

(a)    an order that the Tribunal may make under this Act,

(b)       an order that varies or sets aside, or stays or suspends the operation of, any order made in proceedings or earlier proceedings,

(c)     any ancillary order the Tribunal thinks appropriate,

(d)     an interim order.

5. The jurisdiction of the Tribunal does not extend to dealing with complaints about discrimination, except in certain limited circumstances. A complaint about discrimination cannot be lodged directly with the Tribunal. A complaint must first be made to the Anti-Discrimination Board. The Administrative and Equal Opportunity Division of the Tribunal deals with complaints referred to it by the President of the Anti-Discrimination Board.

BACKGROUND

6. The applicant occupies premises in St Marys, pursuant to a Lease dated 12 October 2005 between the applicant and the respondent. The premises comprise a residential unit in a complex containing 30 units. The complex conforms with State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP). Thus, people over the age of 55 and people with a disability are permitted to be, and are in fact, accommodated in the various units in the complex.

7. The initial term of the Lease commenced on 17 October 2005 and ended on 15 April 2007. The term of the Lease was extended in April 2007 to end on 15 April 2012. The Lease was further extended in April 2012 so that the current termination date is 16 April 2017.

8. The applicant has previously brought proceedings in the Consumer, Trader and Tenancy Tribunal (the CTTT) raising substantially the same issues concerning the applicant’s contention that he is being discriminated against by the respondent.

9. On 1 November 2013, the applicant’s application to the CTTT was dismissed. The CTTT determined that the CTTT had no jurisdiction to determine the discrimination issues which the applicant sought to try before it.

10. In the application before this Tribunal, the applicant’s primary contention is that the respondent, in housing him in accommodation constructed to conform with the SEPP, discriminates against him. The applicant asserts that he does not fall within the definition of “people with a disability” in cl 9 of the SEPP.

11. Clause 9 provides:

9   People with a disability

In this Policy, people with a disability are people of any age who have, either permanently or for an extended period, one or more impairments, limitations or activity restrictions that substantially affect their capacity to participate in everyday life.

12. The applicant contends that although he receives a Disability Support Pension, he does not have impairments, limitations or activity restrictions that substantially affect his capacity to participate in everyday life. He says that premises built to comply with the SEPP are generally smaller than units built for general use. He says that his housing in the over-55s complex because of his disability discriminates against him because he would not be placed in such small accommodation if he was not classified by the respondent as having a disability. He considers that the majority of the other residents in the complex have a bias against him. He states that he is uncomfortable living in an over-55s residential complex.

13. The applicant also asserts that the respondent’s accommodation of him in premises is illegal.

14. The applicant also complains about the state of the facilities of the unit and state of the facilities of the complex generally.

EVIDENCE

Applicant’s evidence

15. The applicant gave oral evidence at the hearing. He also relied on the two volume submission which he filed with the application. He also relied on a further volume of documents comprising 103 pages which was provided in accordance with the Tribunal’s directions on 24 November 2014 regarding the submission of evidence.

16. A substantial part of the applicant’s evidence focussed around what he considered to be a violation of his rights as a person with a disability. Mr Seibright tendered a document entitled “Convention on the Rights of Persons with Disabilities” (the Convention). The Convention document comprises 27 pages. The applicant also tendered a 12-page submission in relation to the Convention. Mr Seibright spent a considerable amount of the time allocated for the hearing in addressing the Tribunal on the principles set out in the Convention and the breaches of those principles he perceived to have been committed by the respondent.

17. The other aspects of his claim concerning allegations that his peace, comfort and privacy were being impinged upon were advanced by his oral testimony.

18. He asserted that by the configuration of the common areas his privacy was compromised.

19. He claimed that the 400mm wide kitchen bench top installed in his unit did not conform to Australian standards.

20.  The applicant also gave evidence about a water pipe noise which he asserted affected his comfort and quiet enjoyment within his living room. He said that there is, in his lounge room, a vertical services duct containing piping. He said that when the services are used by other units in the building, noise occurs in the piping passing through the services duct. This noise affects his quiet enjoyment of the premises.

21. Mr Seibright said that the common area lighting reflects into his unit and this causes him discomfort and anxiety.

22. The applicant asserts that even though he suffers from a disability, he is not a person with a disability within the meaning of cl 9 of the SEPP and should therefore be accommodated in general social housing. He claims a refund of all rent paid since he occupied the premises. He also seeks substantial compensation.

23. The applicant relied upon a medical assessment made by his psychiatrist, Dr Mark Walker, written in March 2007 to support his claim of discrimination. Dr Walker, in that assessment (made at the request of NSW Department of Housing), indicated that the applicant had a past history of trauma/abuse by his father and felt uncomfortable relating to people in the over-55s development. Dr Walker gave an opinion that the applicant should be housed ideally not in a residential community (such as residential units). The psychiatrist also indicated that the applicant’s poor motivation and drive and poor interpersonal functioning affected the applicant’s ability to look for other suitable or affordable housing.

24. To support the applicant’s contention about the common area lighting affecting him, he relies on a medical report dated 29 May 2008 by a general practitioner, Dr A S Gabrael. Dr Gabrael’s report states:

The solution to Mr Seibright’s dilemma and worsening medical anguish is to have window coverings that block out all light, both natural and electrical. Lampshades over existing external lights would help also. He does, however, need fresh air during the summer months so installation of air conditioning will be essential.

25. The psychiatrist’s report is some eight years old and the report of Dr Gabrael is now almost seven years old. Even if weight could be given to such outdated reports, the issues raised by the reports are not matters over which this Tribunal has jurisdiction to determine.

26. The thrust of the applicant’s claim under the discrimination head which he raised before the Tribunal is that he is not so disabled as to be unable to “participate in everyday life” and should therefore be allocated housing accommodation in the general sector.

Respondent’s evidence

27. Mr John Dauth gave evidence on behalf of the respondent.

28. Mr Dauth said that the applicant has occupied the premises under the Lease since October 2005. The applicant had been on a waiting list for social housing for some time before October 2005. When the premises at St Marys became available, Mr Seibright was invited to inspect the premises before he made a decision to accept or reject the offer of the accommodation. Mr Seibright accepted the offer and entered into a Lease on 12 October 2005.

29. During the course of the hearing, Mr Dauth requested an adjournment for 15 minutes to enable him to make enquiries about whether or not any complaints had been made by the applicant in respect of the water pipe noise and lighting. Mr Seibright did not oppose the adjournment application.

30. On resumption of the hearing following the short adjournment, Mr Dauth gave evidence that no recent complaint had been made by the applicant in relation to the water pipe noise. Mr Dauth said that a water pressure test was undertaken in 2012 and no subsequent complaint has been recorded as being received by the respondent.

31.  In relation to the common area lighting, Mr Dauth indicated that the respondent would investigate and, where possible, limit the light reflection into Unit 18 and investigate the option of installing a lampshade.

32. The respondent’s evidence in relation to the applicant’s claim for a reduction in rent is that there has been no reduction in facilities or services during the applicant’s occupation of them. Mr Dauth gave evidence that the common area configuration has not been altered and the kitchen benchtop is the one installed at the time Mr Seibright took possession of the premises.

33. Mr Dauth gave evidence that the respondent’s policy in relation to housing for seniors or people with a disability was that clients who receive a Disability Support Pension (regardless of age) are eligible to be housed in “Over-55s” accommodation.

DETERMINATION

34. Section 44 (3) of the Act provides:

(3) Applications on withdrawal of goods or servicesA tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement.

35. The applicant has been occupying the premises for about nine and a half years. The applicant has failed to prove that during the course of his occupation of the premises, there has been a reduction or withdrawal of goods, services or facilities (except some modification of the external common area lighting).

36. The kitchen benchtop has not been altered since the applicant took possession of the premises in 2005. The configuration of the common area has not been altered during the applicant’s tenancy of the premises. Accordingly, the claims in relation to the kitchen benchtop and the common area configuration are dismissed.

37. The Tribunal accepts the evidence of Mr Dauth that there has been no report of any complaint in relation to the water pipe noise since a water pressure test was conducted in 2012.

38. Section 65(3) of the Act provides:

(3)  The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that:

(a)    the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair, and

(b)     the landlord failed to act with reasonable diligence to have the repair carried out.

39. The Tribunal accepts Mr Dauth’s evidence that there has been no recent report of any complaint in relation to the water pipe noise, the applicant has failed to prove this claim. Having accepted Mr Dauth’s evidence in this regard, the Tribunal must not determine that the respondent has breached any obligation under the Lease or the Act. Accordingly, the claim in relation to the water pipe noise is dismissed.

40. The applicant’s claim for a reduction of rent is dismissed.

41.  Mr Dauth gave evidence that the respondent would investigate the impact of the common area lighting on Mr Seibright’s comfort and amenity. The Tribunal will make an order to require the respondent to investigate the ability to modify the impact of the lighting on Mr Seibright’s amenity.

42. Mr Seibright’s claims of discrimination allegedly resulting from the respondent’s application of its policy in accommodating the applicant in an over- 55s complex are outside the jurisdiction of this Tribunal. Orders which the Tribunal can make in relation to applications before it under the Residential Tenancies Act are limited to those powers conferred in Part 9 of the Act. Those claims in relation to acts of alleged discrimination are dismissed.

ORDERS

1. The respondent must, within 28 days of the date of these orders, investigate the light reflection emanating from the common area lighting and entering Unit 18 and, where possible, limit such light reflection into Unit 18, including, if necessary the installation of a lampshade.

2. The application is otherwise dismissed.

C R Xuereb

General Member

Civil and Administrative Tribunal of New South Wales

23 February 2015

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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: 05 May 2015