State of Queensland through the Department of Housing and Public Works v Gray

CITATION:	State of Queensland through the Department of Housing and Public Works v Gray [2017] QCAT 475
PARTIES:	State of Queensland through the Department of Housing and Public Works (Applicant)
v
Jessica Gray (Respondent)
APPLICATION NUMBER:	MCDT2275-17
MATTER TYPE:	Residential tenancy matters
HEARING DATE:	8 December 2017
HEARD AT:	Brisbane
DECISION OF:	Member Dr Collier
DELIVERED ON:	22 December 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The lease agreement dated 1 October 2014 between the parties is terminated from a date to be fixed by the Tribunal. 2. The parties are to make written submissions by 14 January 2018 in respect of the date when the lease agreement should be terminated and a warrant of possession become effective. 3. The Tribunal shall make a decision on the papers after 14 January 2018 in respect of the termination date. 4. The Tribunal may issue a Warrant of Possession in its discretion consistent with the dates of termination.
CATCHWORDS:	LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – GENERALLY – where applicant let property to respondent – where applicant received complaints against respondent – where applicant issued notices concerning anti-social behaviour and objectionable behaviour – where respondent holds protection order against former partner – where applicant brought application for termination and warrant of possession – whether respondent engaged in objectionable behaviour – whether objectionable behaviour justifies termination – whether balancing of interests weighs in favour of termination Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 297A, s 345A, s 527E, s 527A State of Queensland through the Department of Housing and Public Works v Simonova [2017] QCAT 328 State of Queensland Through the Department of Housing and Public Works v Turnbull [2014] QCAT 442
APPEARANCES:
APPLICANT:	Kierstene McNeil, Senior Housing Officer, DHPW
RESPONDENT:	Jessica Gray, supported by Peter Murphy of Tenants Queensland

REASONS FOR DECISION

Introduction

The Applicant manages a property at 8 Horwitz St Zillmere (the “subject address”) in Brisbane which it lets to the Respondent.
The Respondent is a single mother who is the principal carer for her 8 year-old son who resides with the Respondent at the subject address. The lease agreement permits only two people to reside at the subject address.
Since at least 1 March 2016 (from dates on a copy of the earliest DVO available to the Tribunal) the Respondent has the benefit of a Protection Order in her favour against a former partner.
The Respondent is the tenant at the subject address, which is provided as social housing. The Respondent pays $65.10 rent per week.
The lease agreement between the parties was for a fixed term that commenced on 1 October 2014 and expired on 30 September 2017. At all times when this Application has been considered by the Tribunal the Respondent has been a periodic tenant at the subject address.
This Application, dated 18 September 2017, was first brought before the Tribunal on 8 November 2017. The Applicant sought the following relief arising from the alleged objectionable behaviour of the Respondent at the subject address under sub-par. 297A(1)(a)(ii), par. 297A(1)(b) and par. 297A(1)(c) of the Residential Tenancies and Rooming Accommodation Act 2008 (the “RTRAA”):
a)A Termination Order; and
b)A Warrant of Possession.
At the first hearing on 8 November 2017 the Tribunal adjourned the matter to permit the parties to peruse records concerning Police attendance at the subject address.
The matter was listed and heard in full by the Tribunal on 15 December 2017.

History of the Complaints

On the basis of complaints made by nearby residents of the subject premises, the Applicant has issued the following notices to the Respondent concerning objectionable or anti-social behaviour:
a)14 October 2015: Warning Notice about anti-social behaviour at your property; and
b)18 July 2017: Notice to Remedy Breach (other than rent arrears), including a Form 11.
Based on the Applicant’s concern arising from the complaints of neighbours relating to objectionable or anti-social behaviour of the Respondent, the Applicant required the Respondent to enter into an Acceptable Behaviour Agreement on 17 July 2017, and the Respondent entered into this Agreement.
On 13 September 2017 the Applicant issued the Respondent with a Notice of application to QCAT to end your tenancy.
In addition to the formal notices noted above, the history of the Respondent’s alleged objectionable behaviour is contained in four principal documents tendered to the Tribunal:
a)The statement of Ms Kierstene McNeil dated 18 September 2017;
b)The affidavit of Sharon Rau, Housing Officer of the Applicant, dated 18 September 2017;
c)The affidavit of Ms Kierstene McNeil dated 11 December 2017; and
d)The bundle of Queensland Police Service (“QPS”) reports relating to attendance at, or reports pertaining to, the subject address.
The statement of 18 September by Ms McNeil documents the following alleged facts:
a)21 September 2015 to date: the Applicant has received 17 complaints from neighbours of the subject premises concerning, inter alia, fighting, males coming and going all day and night, yelling, screaming, obscene language, domestic disturbances, disputes, excessive noise, banging and crashing noises, loud music, intoxicated behaviour, intimidating behaviour, racial abuse of a neighbour, abuse of her child, and threats to burn down a neighbour’s house.
b)Complaints from neighbours have been received on the following dates: 21 September 2015; 20 February 2017; 10 March 2016; 24 October 2016; 7 November 2016; 8 November 2016; 18 November 2016; 29 November 2016; 15 December 2016; 5 January 2017; 14 April 2017; 29 June 2017; 7 July 2017; 24 July 2017; 28 August 2017;
c)Complaints were obtained from neighbours as the result of a door-knock conducted by the Applicant and, as at the end of August 2017, while loud music had diminished, the Respondent continued to be aggressive to some neighbours and abuse and swear at her son.
The affidavit of Ms Rau dated 18 September 2017 concerned a complaint received by the Applicant alleging a noise disturbance from the subject premises that continued on 14 September 2017 until 2:00 am.
The affidavit of Ms McNeil dated 11 December 2017 lists details of complaints by five informants concerning conduct at the subject premises supplied. Ms McNeil also supplied a summary of the QPS records relating to 23 occasions of objectionable behaviour within the control of the Respondent (that is, not relating to possible domestic violence involving Ms Gray’s former partner).
The QPS documents disclose 42 occasions when there have been reports relating to the subject premises since 21 September 2015. These relate to numerous matters including noise disturbances, domestic and other violence, threats against others, threats to a child, break and enter, welfare checks, trespassing and loitering. Many of these QPS call-outs relate to the Respondent’s concerns over the potential for domestic violence or intimidation arising from her former partner, but a majority arise from the other causes mentioned above.
Ms McNeil, in her evidence, described occasions when the Applicant had sought to find alternative accommodation for the Respondent, but that the Respondent was unreceptive to offers that were made.
The Respondent states in her affidavit dated 3 November 2017 that many of the complaints about her conduct come from two main sources: the occupants of 9 and 14 Horwitz St, who she describes as having a vendetta against her.
The Respondent asserts that she was particularly upset by the release this year of her former partner from prison and the risk of domestic violence that this presented to her, and that this stress resulted in some of her objectionable behaviour.

What Constitutes Objectionable or Anti-social Behaviour?

Over a period of time the Applicant has issued to the Respondent various warnings and notices that refer to the Respondent’s:
a)Anti-social behaviour: 14 October 2015
b)Disruptive behaviour: 18 July 2017
In respect of particular leases by the State and community housing providers, Section 297A of the RTRAA defines anti-social behaviour as:
antisocial behaviour includes making excessive noise, dumping cars or excessive rubbish, vandalism and defacing property.
Antisocial behaviour by a tenant may oblige a tenant to enter into an Acceptable Behaviour Agreement (RTRAA s.527D), serious or persistent breach of which allows the lessor to apply to this Tribunal to terminate the lease (RTRAA s.527E).
Disruptive behaviour is not defined in the RTRAA.
The Applicant now seeks to terminate the lease on the basis of the objectionable behaviour of the Respondent.
Section 297A of the RTRAA defines what constitutes objectionable behaviour in public or community housing:
(1) The lessor may apply to a tribunal for a termination order because the tenant, an occupant, a guest of the tenant or a person allowed on the premises by the tenant—
(a)       has harassed, intimidated or verbally abused—
(i) the lessor or lessor’s agent; or
(ii) a person occupying, or allowed on, premises nearby; or
(b)       is causing, or has caused, a serious nuisance to persons occupying premises nearby; or
(c)       has intentionally or recklessly endangered another person at the premises or interfered with the reasonable peace, comfort or privacy of a person occupying premises nearby.
Despite the different terms used in the various documents noted, the Tribunal is sufficiently satisfied that the nature of the Respondent’s conduct now complained of by the Applicant was sufficiently clear to the Respondent at all relevant times. However, the differing terminology used in the Applicant’s various documents may leave it open to criticism in other cases on the basis of uncertainty.
In this Application the Applicant has not sought to terminate the lease with the Respondent on the basis of a breach by the Respondent of the terms of the Acceptable Behaviour Agreement, although such a ground may be open to it, so this ground of termination is not considered by the Tribunal.
As noted earlier, the present lease appears to be a periodic tenancy. On its face it appears that the Applicant should be entitled to terminate the lease with appropriate notice, which would normally not exceed one month. However the Applicant has sought a Termination Order of this Tribunal based on the claimed objectionable behaviour of the Respondent and is entitled to have this ground considered.

Has the Respondent Engaged in Objectionable Behaviour?

The weight of evidence satisfies me that the Respondent has engaged in objectionable behaviour in terms of s.297A of the RTRAA. I am further satisfied that this behaviour has continued for at least two years, and has persisted after 18 July 2017 when the Respondent entered into an Acceptable Behaviour Agreement.
However, before it may grant a termination of the lease in this case, the Tribunal must be satisfied that the objectionable behaviour justifies terminating the agreement (RTRAA s.345A(1)(b)).

Does the Objectionable Behaviour Justify Terminating the Lease?

The relevant provisions in regard to whether objectionable behaviour is sufficient to justify terminating a lease agreement as allowed in s.345A of the RTRAA are as follows:
(2) In deciding if the behaviour justifies terminating the agreement, the tribunal may have regard to—
(a)       whether the behaviour was recurrent and, if it was recurrent, the frequency of the recurrences; and
(b)       for behaviour in the form of harassment, intimidation or verbal abuse—its seriousness; and
(c)       for behaviour in the form of intentional or reckless endangerment—its seriousness; and
(d)       for behaviour in the form of interference with a person’s reasonable peace, comfort or privacy—its seriousness.
(3) Also, in deciding if the behaviour justifies terminating the agreement, the tribunal must have regard to—
(a)any serious or adverse effects on neighbouring residents or other persons, including whether neighbouring residents or other persons are likely to be subjected to objectionable behaviour if the agreement is not terminated; and
(b)any evidence regarding the tenancy history of the tenant; and
(c)if the tenant is a tenant under a State tenancy agreement—
(i) the department's responsibility to other tenants; and
(ii) the needs of persons awaiting housing assistance from the State.
(4) Subsections (2) and (3) do not limit the issues to which the tribunal may have regard.
The evidence demonstrates that at least 5 neighbours were prepared to provide information concerning the Respondent’s objectionable behaviour. The behaviour described in the evidence includes offensive words spoken loudly on a frequent basis, offensive racial comments to neighbours, threats of violence to neighbours’ property, frequent loud arguments involving the Respondent and other parties, and the playing of loud music including into late night hours.
Informants made complaints, including some written complaints, to the Police and the Applicant on many occasions.
I am satisfied that the objectionable behaviour occurred with regularity, included intimidation and verbal abuse, and constitutes an unreasonable and serious interference with the peace and comfort of the Respondent’s neighbours within the terms of s.345A(2) of the RTRAA.
The Respondent is a State tenant within the meaning of that term in the RTRAA and the Housing Act 2003. Given the history of the objectionable behaviour of the Respondent over three years, the inability of the Respondent to cease the objectionable behaviour despite her signing an Acceptable Behaviour Agreement, the nature and variety of the objectionable behaviour, the refusal of the Respondent to consider alternative accommodation offered by the Applicant, the extent of the Police reports, and the fact that five neighbours have been prepared to provide details to the Applicant of their complaints against the Respondent, I am satisfied that, if the lease is not terminated, neighbouring residents will continue to be adversely affected by the continuing objectionable conduct of the Respondent within the terms in s.345A(3) of the RTRAA.
The final issue in making a decision as to whether the lease should be terminated concerns the need to balance the rights of the neighbours to protection from objectionable behaviour against the interests of the Respondent. This need was expressed by Adjudicator Trueman in Department of Housing and Public Works v Turnbull [2014] QCAT 442 at [31] where she said, in a case involving an application to terminate a tenancy:
I find that the difficulty that exists with these types of cases is the delicate balancing act of weighing up the competing interests of the parties. The interests of the Department and other neighbouring tenants against the interests of Mr Turnbull [the tenant].
In addition to oral evidence, the following documents have been provided to the Tribunal in support of the Respondent:
a)The affidavit of Jessica Gray dated 3 November 2017;
b)The affidavit of Peter Murphy dated 12 December 2017; and
c)An email and statement from Peter Murphy dated 19 December 2017.
In her affidavit of 3 November 2017 Ms Gray responds to a number of the claims made by the Applicant, in particular by Ms McNeil. Only two matters require comment. The first concerns Ms Gray’s claim of a vendetta against her by one of the complainants; and the second is that Ms Gray received only two notices concerning breach of her lease agreement relating to objectionable behaviour.
In respect of the first matter, making a record of objectionable behaviour and making this known to the Applicant does not constitute a vendetta unless the behaviour complained of did not occur. A person seriously affected by objectionable behaviour could well keep detailed records in order to make a compelling case and, since there is no evidence that any complaint has been fabricated, no vendetta is evident. Further, the fact that five neighbours in total were prepared to offer details of objectionable behaviour to the Applicant suggests that concern was widespread among the Respondent’s neighbours.
The Respondent did receive two breach notices relating to objectionable behaviour. She also signed an Acceptable Behaviour Agreement. However, it seems that none of these actions had the result of causing the Respondent’s objectionable behaviour to cease.
In his affidavit of 12 December 2017 in support of the Respondent Mr Murphy conducted an analysis of the Police attendances at the subject property, and identifies several occasions when Police attended for reasons relating to the safety of Ms Gray, either from her former partner, or from unknown trespassers. But, as noted earlier, there remain a large number of calls for Police attendance that relate solely or substantially to the conduct of Ms Gray.
In his email and statement dated 19 December 2017 Mr Murphy recounts that, in accordance with an Order of this Tribunal, Ms Gray attended a meeting on 18 December 2017 with the Applicant to discuss RentConnect as an option that could provide alternative accommodation. Mr Murphy makes the point that if forced into the private rental market Ms Gray would be financially disadvantaged, with her rent rising from $65.10 per week, to between $183.16 and $366.34, on an income of around $610 per week. At the same time, there remain some social housing options, in the event that premises are available and Ms Gray is eligible.
Of particular concern are the effects of a termination of the lease on Ms Gray’s 8 year-old son. He is attending a local school at Zillmere and it is always preferable to offer children stability when this is feasible.
In her evidence Ms Gray tendered a letter dated 7 November 2017 from Emma Matthews, a Family Support Practitioner with Act for kids, an organisation that appears to support families in stress. This letter details some of the stresses under which Ms Gary has laboured, notes that Ms Gray has made progress in her parenting skills, and the desirability of residential stability.
Ms Gray also tendered a letter dated 6 November 2017 from Ian Kershaw, a psychologist who has been counselling Ms Gray. Mr Kershaw notes that, as of the date of his letter, he had conducted eight counselling sessions with Ms Gray, and that Ms Gray, who suffers from several psychological and emotional conditions, had made progress in improving her life and relationship skills.
However, this Tribunal has been prepared to terminate leases in the past where vulnerable people are involved, as long as the balance of interests favours termination. The recent decision of Magistrate Tonkin in State of Queensland through theDepartment of Housing and Public Works v Simonova [2017] QCAT 328 is relevant here. In this case the learned Magistrate said, at [17]:
Objectionable behaviour as a manifestation of mental illness, where the tenant lacks insight into the impact of their behaviour on neighbours, has been found by QCAT to be caught by the scope of the provisions relied on in the present case, and affirmed on appeal. The fact that the tenant would thereby likely be rendered homeless has not been a bar to the making of the termination order in such circumstances.
In the case of Department of Housing and Public Works v Turnbull [2014] QCAT 442, cited earlier, Adjudicator Trueman granted an application to terminate a residential lease even though the tenant was a vulnerable person. She said, at [33]:
I accept the medical evidence that Mr Turnbull is ‘intellectually handicapped’ and that his ‘capacity for impulse control and behavioural regulation has been adversely affected as a result of brain injury’ yet I am satisfied from the evidence that he was aware of the content of the box that his friends left in his property [which led to adverse consequences].

Ms Gray is a vulnerable person: she suffers psychological and emotional issues, she has an 8 year-old son, and she has been, and may yet again, be the subject of domestic violence. However, she has refused earlier attempts by the Applicant to find alternative accommodation for her and, whether or not she is the architect of all the objectionable behaviour arising at the subject premises (some arising from events outside her direct control), there has occurred significant objectionable behaviour that results from her conduct.
The Applicant has taken reasonable steps to assist the Respondent: it has offered alternative accommodation which Ms Gary has declined; it has not acted precipitately, the objectionable conduct having occurred over several years; it has entered into an Acceptable Behaviour Agreement with the Respondent, yet the objectionable behaviour has continued.

Conclusions

The Respondent has engaged in objectionable behaviour within the meaning of that term in the RTRAA.
The interests of the Respondent in remaining in her leased premises, balanced against the interests of her neighbours fall, in this case, in favour of the neighbours. A Termination Order and Warrant of Possession should be granted.
Granting immediate termination of the lease and issuing a warrant would be a hardship upon the Respondent. For this reason the Tribunal will consider submissions by the parties concerning the dates on which termination should occur and a warrant of possession be made effective.

Decision

The following Orders are made:
1.    The lease agreement dated 1 October 2014 between the parties is terminated from a date to be fixed by the Tribunal.
2.    The parties are to make written submissions by 14 January 2018 in respect of the date when the lease agreement should be terminated and a warrant of possession become effective.
3.    The Tribunal shall make a decision on the papers after 14 January 2018 in respect of the termination date.
4.    The Tribunal may issue a Warrant of Possession in its discretion consistent with the dates of termination.

[2017] QCAT 475

22 December 2017