Tenant 221011 v Martiniello (Residential Tenancies) - [2023] ACAT 81

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

TENANT 221011 v MARTINIELLO (Residential Tenancies) [2023] ACAT 81

RT 1011/2022

Catchwords: RESIDENTIAL TENANCIES – lessor let house that had no planning approval or Certificate of Occupancy and Use – show cause notice issued relating to the internal alterations to the property – property’s address was not recognised by service providers – new rooms that featured on no approved plans – no approval to convert a class 10 structure into class 1 habitable spaces– whether the property was habitable – whether the applicant is entitled to damages –whether a breach of standard term 51 of the standard residential terms had occurred – consequences of breach of standard terms –counter claim for unpaid rent and end of lease cleaning – applicant took no immediate steps to have concerns addressed by raising them with the owner or his agents
Legislation cited: Residential Tenancies Act 1997 ss 8, 57 standard terms 51, 52
Building Act 1972 (repealed)

Cases cited:Cope Mceachern v Walker & Walker [2018] ACAT 65
Fiege & Ors v Wilkinson; Wilkinson v Holbrook & Ors [2023] ACAT 11
Finn v Finato [2004] NSWCTTT 179
Halcombe v Hitchman [2018] ACAT 5
Hampel v South Australian Housing Trust [2007] SADC 64

Tribunal:Senior Member D Mulligan

Date of Orders:  13 December 2023
Date of Reasons for Decision:      13 December 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 1011/2022

BETWEEN:

TENANT 221011
Applicant

AND:

PASQUALE MARTINIELLO
Respondent

TRIBUNAL:Senior Member D Mulligan

DATE:13 December 2023

ORDER

The Tribunal orders that:

The respondent is to pay the applicant the sum of $1,360.73 within 28 days from the date of this decision.
The ACT Office of Rental Bonds is ordered to return the rental bond of $1,600 to the applicant.
………………………………..

Senior Member D Mulligan

REASONS FOR DECISION

Background

The material facts of this matter are as follows.
In 1975, Mr Pasquale Martiniello (the respondent) was the owner of a block of land in Chapman.[1] He remains the owner of the property at the time of the current litigation.
[1] Block 11, Section 43, Approved Plan Numbers 36079 and 36079/A, Chapman
On 8 December 1975, the respondent applied for a building permit to build a dwelling on the property.[2] That application was refused as the respondent failed to establish that he either had the prescribed qualifications as a builder or adequate experience in construction.[3]
[2] Exhibit A9 – Applicant’s ‘Oral submission’ dated 1 June 2023, page 1 at [1]-[2]
[3] Exhibit A9, page 1 at [3], attachments, page 3
The respondent’s brother, Fred Martiniello, was a builder, and he took over the project.
The plan for the dwelling was approved by the National Capital Development Commission on 17 May 1976.[4] The approved plan was for a two-storey house. On the upper floor, there was four bedrooms, a bathroom, a WC, an entrance, a foyer, a living room, a kitchen, a dining room, a family room, and a living room.
[4] Exhibit R7 – ‘Plan 36079’
The basement comprised of a garage, a rumpus room, and a study.
The works were completed in 1976 and a certificate of fitness was issued by the Department of the Capital Territory Building Section on 21 July 1976.[5]
[5] Exhibit R6 – ‘Respondent’s subpoena – ACT Building’, page 1.1
Since the house was initially constructed, there have been several amendments to the plan which have been formally approved by the ACT Government. These occurred on; 23 September 1982,[6] 11 February 1987,[7] and 12 August 1988.[8]
[6] Exhibit R6, page 4
[7] Exhibit R11 – ‘Plan 36079D’ and R6, pages 8-10
[8] Exhibit R6, page 66
The amendments found in the plan of 11 February 1987,[9] are most relevant to this matter, as permission was granted to the respondent to expand and reconfigure the basement, which thereafter comprised: a studio/workshop, which included a sink (the studio on the 1987 plan was marked with the statement “NOT TO BE USED FOR HABITABLE PURPOSES”); a store room; shower room; a repositioned staircase; a garage; a rumpus room; a study; and a sub-floor access door into a large area, where there were no rooms, only “footings”.
[9] Exhibits R11 and R6, pages 8-10
It should be noted that from 8 December 1975 to 6 December 2021,[10] the respondent did not gain any form of permission from the ACT Government to transform the basement into two separate flats. There was no application to add bathrooms, toilets, bedrooms, kitchens, etc. to make the basement into two separate dwellings.
[10] The day the applicant signed the lease for the property
Sometime during that period, the respondent did turn the basement into two flats: Flat B (the property);[11] and Flat C, which he let out to tenants.
[11] Exhibit A12 – ‘Applicant’s submission for hearing 4 of July 2023’, page 10 at [36], annexure B, document 18 – ‘Figure 1 showing main entry doorway and internal/external level discrepancy’
The respondent should have obtained development approval specifically seeking to convert a class 10 structure into class 1 habitable spaces before he constructed the two basement flats.[12]
[12] Exhibit R6, pages 70-71 and Exhibit A12, page 9 at [25], documents 6, 7
No Certificate of Occupancy and Use was issued for Flat B in its configuration as a two-bedroom flat.[13]
[13] Exhibit R6 – pages 70-71
Flat B was made up of the original study and rumpus room (which was at some point modified to include a hard-wired kitchen), together with new rooms that featured on no approved plans.
These new rooms included a master bedroom with walk in robe and ensuite, a second bedroom, a further WC, and separate laundry.
Those new rooms were in the large area which, in the 1987 approved plan, was to the right of the sub-floor access door. The area then comprised only “footings” and no habitable rooms.
In late November 2021, Tenant 221011 (the applicant) was looking to rent a property for her and her two sons. She saw an online advertisement for the property, which was described in these terms:
Neat and tidy home
Two bedroom granny flat, located on the ground floor underneath the main house.
Freshly painted throughout, reverse cycle heating and cooling, laminate flooring to living, LED lighting, electric cooking and dishwasher.
Two good sized bedrooms, main bedroom with walk-in robe and ensuite. Second toilet and separate laundry.
Front courtyard and outdoor parking available/
** Note, there is no energy efficiency rating available.[14]
[14] Applicant’s witness statement dated 8 March 2023, annexure A
The applicant and her elder son went to the property with the estate agent. The applicant, who is disabled and has mobility issues, was unable to manage the slight step up into the property,[15] and she says that she remained outside whilst her son and the agent looked at the property.
[15] Exhibit A12, annexure B, document 18 – ‘Figure 1 showing main entry doorway and internal/external level discrepancy’
On 6 December 2021, the tenant signed a fixed term lease for the property. The lease was fixed for 12 months, commencing on 10 December 2021, and then after the fixed term it ran on a periodic basis.
The rent was set at $400 per week. The applicant paid two weeks in advance and also provided the rental bond of $1,600, which was deposited with the ACT Office of Rental Bonds.
Towards the end of January 2022, the tenant and her children moved into the property. Shortly thereafter, the applicant noticed several issues:
(a)Rainwater flowed into the house via the front door.
(b)The property was very cold.
(c)The toilet sink did not have hot water.
(d)There was mould everywhere.
(e)The paint finish of the walls was flaky with white dust which they feared could be asbestos.
(f)The water from the sink in the bathroom drained via the shower. It did not have its own dedicated waste pipe.
(g)There was no insulation between the property and the flat above and, consequently, the noise the occupants of Flat A made was clearly audible in the property.[16]
[16] Applicant’s witness statement dated 8 March 2023, at [5]
There were also issues that flowed from the fact that a certificate of occupancy had never been issued for the property in its configuration as a two-bedroom flat. According to the applicant, the most significant issue was that the property’s address was not recognised by service providers. These issues included being:
(a)unable to have mail delivered to the property.
(b)unable to have her own dedicated NBN internet connection installed, although the applicant paid for a connection with iiNet.
(c)unable to purchase home contents insurance.
(d)concerned that any ambulance they called would not be able to find her.
In March 2022, the applicant went to the offices of the ACT Planning and Land Authority (ACTPLA) to complain about the property. According to the tenant, she was told by “someone”:
There are no approvals for [Flat B], it is not safe to live there, you live there at your own risk.[17]
According to the tenant, the person went on to say:
There are no approvals for anything including electricity, water, gas sewage etc. for the bottom floor of the house … the bottom floor of the house is only approved to be a garage.
[17] Applicant’s witness statement dated 8 March 2023 at [16]
This ACTPLA employee was not identified and was not called to give evidence.
The applicant’s response to this advice was curious. According to her:
After finding out that there were no approvals for the Property, I feared for my and my children’s safety. I could not cook or shower at the Property. I frequently went to Kaleen to cook, shower do laundry etc. I paid my friend $100 per fortnight ($50 per week) for electricity and water. During school holidays, we went to Sydney to give my friend a break. We sometimes would buy and drink bottled water as opposed to drinking tap water at the Property. We even avoided using the water from the Property to clean our dishes. We would carry toiletries with us everywhere we go (sic). We lived like we were travelling backpackers.[18]
[18] Applicant’s witness statement dated 8 March 2023 at [17]
I can see no emails in all of the material before me, from the applicant to the owner or his agents, and was not directed to any by the applicant, in which she squarely raises the “electricity, water, gas sewage etc.” issues that she says affected her and her children’s safety.
It seems remarkable, given the applicant’s fears about the risks posed by the “electricity, water, gas sewage etc.” at the property, that the applicant took no immediate steps to have those concerns addressed by raising them with the owner or his agents, or by terminating the tenancy on two days’ notice to the respondent.
The applicant had the power to terminate the tenancy under clause 86(1)(a) of the standard residential terms, if in fact the property was uninhabitable. Clause 86(1)(a) provides:
Termination where premises are not fit for habitation
86 (1) The lessor or the tenant may, by written notice, terminate the
tenancy on a date specified in the notice on the following
grounds:
(a) the premises are not fit for human habitation
Had the applicant invoked the termination clause, then she could have left the property in March 2022, rather in March 2023.
On or about 14 April 2022,[19] the applicant made complaints to Access Canberra relating to the fact that the property was an unapproved and uncompliant dwelling. The applicant remained in communication with Access Canberra and the Compliance Management Inspection Unit (CMIT) during the course of the tenancy.
[19] Documents subpoenaed by the applicant from Access Canberra Compliance Management Inspection Unit – ‘Salesforce document number: 20220414-33293’, page 1
On 29 April 2022, Access Canberra’s Rapid Regulatory Response Team (RRRT) prepared a preliminary report.[20]
[20] Witness statement of Pasquale Martiniello dated 4 April 2023 to exhibit R1 – Respondent’s response dated 4 April 2023, attachment A, page 2 at [4]
Also on 29 April 2022, Carolina Gonzalez, a Building Inspector and Compliance Regulator with the RRRT, wrote an advisory letter to the respondent and advised him that he had converted a class 10a structure into a class 1a habitable space without the appropriate approvals.
In part, the letter stated:
The Building Code of Australia (BCA) classifies garages as non-habitable class 10a structures. The conversion of your garage into a unit fit for habitation, changes this classification to a class 1a structure, requiring Development Approval as prescribed under section 1.20(2)(a)(i) internal alterations of buildings – Planning and Development Regulations 2008.
This conversion of a class 10a garage into a class 1a habitable space (kitchen, bathroom, bedrooms) also requires a Certificate of Occupancy and Use (COU). Section 76(1)(a)(b) Occupation and Use of Building, Building Act 2004,k refers to a COU, issued by the Construction Occupation Registrar for works such as the converted garage for habitable use. It is not exempt as refer to in Schedule 1 of the Building (General) Regulation 2008.
Upon review of Access Canberra records, including, including the building file for the subject property, there is no evidence of a COU issued for your converted garage. Therefore it is currently unapproved for habitable use.[21]
[21] Exhibit R6, page 70
As a matter of law, I think the position articulated by Ms Gonzalez relating to the need for a development approval and a COU, for the change of use of the property from a 10a non-inhabitable structure to a 1a inhabitable flat, is correct.
By email of 30 May 2022, the applicant wrote to the respondent’s real estate agency and, in part, complained:
I was rented by your company LJ Hooker Weston a garage. The toilet has no hot water. I cannot receive any mail. My internet modem is upstairs at 59, and except for the kitchen area there is no internet in the two bedrooms. Emergency services can’t come, because the place doesn’t exist. I can’t insure the contents, again because the place doesn’t exist.[22]
[22] Applicant’s witness statement dated 7 March 2023, annexure H, page 3
Nowhere in that email did the applicant complain about the matters raised in paragraph 24 (a)-(g) above, or about her safety concerns about “electricity, water, gas sewage etc.” at the property, which emerged after her visit to ACTPLA.
Likewise, the applicant made no mention of, nor did she seek any recompense for, the payments of $50 per week she was making to her friend.
This appears to have been the applicant’s last email to the real estate agency complaining of any issues relating to the property.
On 16 May 2022, an officer from Access Canberra phoned and spoke with the respondent.[23]
[23] Documents subpoenaed by the applicant from Access Canberra Compliance Management Inspection Unit – ‘Salesforce document number: 20220414-33293’, page 2
On 9 June 2023, the respondent’s real estate agent, Sarah Miller, conducted a routine inspection of the property. According to her, during the course of the meeting:
Tenant 221011 started to become irritated and raising her voice at me, claiming that the home was unliveable and was in fact a garage … Tenant 221011 became extremely unpleasant, raising her voice yelling at me, pointing at me and not allowing me to speak for at least 10 mins before I walked away into the main bedroom to continue the inspection. I asked Tenant 221011 about maintenance, this again started her] yelling at me about the property, saying that there was no hot water in the toilet she was having trouble with the internet connection and that the property was a garage. After another 10 minutes of Tenant 221011 yelling and pointing at me, the tenants son interrupted and said it may be better if I leave.[24]
[24] Exhibit R2 – ‘witness statement of Sarah Miller’ dated 4 April 2023 at [8]
On or About 9 June 2022, the owner spoke to his agent and:
[A]sked that Tenant 221011 vacates the property as soon as possible, due to complaints that she has issued with ACTPLA the owner requires the property vacant to allow access for accessing the premises.[25]
[25] Exhibit R2 at [10]
On 17 June 2022, the applicant was given notice to vacate under which they were to vacate the property in 26 weeks, although she was advised that she could quit the property on giving three weeks’ notice.
The fixed term lease ended on 9 December 2023. Thereafter, the applicant and her children inhabited the property on a periodic tenancy.
On 19 December 2022, the applicant filed an application for resolution of a dispute under the Residential Tenancies Act 1997 (the RTA), in which she sought $18,858.50 in damages and declarations that:
(a)the property is uninhabitable; and
(b)the notice to vacate of 17 June 2022 is retaliatory and invalid in accordance with section 57(1)(b)(ii) of the RTA.
On 20 December 2022, CMIT undertook a site inspection of the property and concluded that:
As the building stands in the current form the building has been modified in a way that partially closes off the internal access of the building and contains more than two (2) kitchens. The alterations made to the building have created three residences within the building, which in turn, may be considered a multi-unit development. As a result, the alterations made to the building will require both Development Approval and Building Approval to be compliant with section 1.20(2)(ai) Internal Alterations of Buildings in accordance with Planning and Development Regulation 2008 and Section 76(a)(a)(b) Occupation and Use of Buildings in accordance with the Building Act 2004.[26]
[26] Witness statement of Pasquale Martiniello dated 4 April 2023, attachment A, pages 3-4 at [13]
The CMIT also issued the respondent with a Show Cause Notice relating to the internal alterations to the property, which were not in accordance with the approved plans and conditions.
The applicant moved into ACT Government housing in January 2023.
The applicant vacated the property and returned the keys to the respondent’s agent on 3 March 2023.
The respondent filed a response on 5 April 2023. In it, he denied the applicant’s claims and made a counter claim of $4,629.14 for unpaid rent from 22 December 2022 to 3 March 2023 ($4,057.14) and end of lease cleaning ($572).
On 28 May 2023, Access Canberra issued a Controlled Activity Order (CAO) to the respondent, requiring him, in part:
[T]o apply for development approval for a building or structure, or part of a structure, which has been constructed without development approval, specifically the dual occupancy development.[27]
[27] See exhibit R16 – ‘Notice of revocation of controlled activity order’ dated 14 June 2023
The applicant had one month to comply with that order.
On 14 June 2023, the CAO was withdrawn by Access Canberra as the respondent had effectively turned his whole property into a single dwelling and had:
(a)removed the hardwired kitchen (in Flat C) that had been located in the class 10 structure.
(b)re-opened the door/access way in Flat B was re-opened allowing for free-flowing access throughout the building.
(c)The workshop and rumpus room are now being used as per the building’s original approval and that no one was residing in either of the rooms.[28]
[28] See exhibit R16
Interestingly, the kitchen in the rumpus room (which forms part of Flat B) was allowed to be retained as each dwelling is allowed to have up to two kitchens installed.

Legal Considerations

The applicant provided written submissions at the end of the hearing dated 1 June 2023,[29] 3 July 2023,[30] and 11 July 2023.
[29] Exhibit A9
[30] Exhibit A12
The submissions of 1 June 2023 were largely unhelpful as they repeated much of what the applicant had pursued during the course of the hearing. In essence, the applicant criticised the content and form of a range of documents from 1975 until 2023. She also alleged that a number of people associated with the creation of those documents had acted in improper ways over the same time frame.

The submissions of 3 July 2023 largely focused on submissions relating to the Building Act 1972 (repealed). Again, these submissions were not helpful.
None of these submissions help in determining whether they are entitled to compensation under the RTA.
The applicant’s submissions were unhelpful in that they did not expressly speak to any of the issues raised in paragraphs 24-25 above. These are the very issues upon which this decision will rest.
I infer that the thrust of the applicant’s submissions is that there was a breach of standard term 51 of the standard residential terms that apply to all ACT residential tenancy agreements.[31] It provides:
The lessor guarantees that there is no legal impediment to the use of the premises for residential purposes by the tenant.[32]
[31] RTA s 8, Schedule 1
[32] RTA standard term 51
Plainly, the letter sent by Ms Gonzalez to the respondent on 29 April 2022 (see paragraphs 32-33 above), clearly demonstrate a “legal impediment to the use of the premises for residential purposes by the tenant”. The property had not been reclassified from 10a to 1a, and no COU had been issued allowing the applicant to lawfully live in the property.
The issue for me to determine is: what are the consequence of the respondent’s breach of the guarantee found in standard term 51 of the RTA?
I infer that the applicant, in essence, submits that such a breach makes the tenancy agreement void from the beginning and consequently she is entitled to a full refund of all monies paid to the respondent, up to the $25,000 jurisdictional limit of ACAT.
The facts in Mansour v Dangar[33] (Mansour) are similar to the present case. The facts in that matter were summarised in the following way:
[33] [2017] ACAT 49
3.     The Tribunal was satisfied the parties had entered into a residential tenancy agreement on 23 November 2015 for premises described in the written agreement as “77b Gwen Meredith Loop Franklin”. The Tribunal found that the premises the subject of the residential tenancy agreement were a freestanding house, properly known as 77 Gwen Meredith Loop Franklin, and that the lessors had entered into two residential tenancy agreements in relation to that building: the downstairs portion of the house being leased to other persons and the upstairs portion of the house being leased to the tenants.
4.     The Tribunal was satisfied that the tenants had encountered problems upon commencing to live in the property. These were summarised as follows:
(a)Australia Post would not deliver mail to the address 77b Gwen Meredith Loop however they would deliver mail to 77 Gwen Meredith Loop into a mailbox shared with the downstairs residents. The lessors’ offer to pay for a PO Box for the tenants was rejected by the tenants as inconvenient.
(b)The tenants were unable to obtain insurance cover for their contents and motor vehicle due to not having a “valid address”.
(c)The tenants were unable to arrange connection of internet and telephone services because “none of the providers are able to find the property I am living in.” 3 The lessors had given evidence, which was conceded by the tenants, that the property was able to have connected to it up to six phone lines and internet connections from the NBN box at the property.
(d)The building had only one heating and cooling system, a ducted air conditioning system, with only one control unit to the entire building located in the upstairs portion. A proposal to change this to a split system for the benefit of the downstairs residents was objected to by the tenants.
(e)The tenants had expressed concerns that the lack of a “proper correct legitimate or registered address” would mean that the premises would not be able to be located by fire and ambulance or police in an emergency.
5.     The Tribunal was satisfied that there had not been any planning approval granted for the property at 77 Gwen Meredith Loop to contain two dwellings.[34]
[34] Mansour at [3]-[5]
In Mansour, Presidential Member Daniel noted:
It was submitted on behalf of the tenants that where there has been a breach of clause 51 of the prescribed terms, this is a breach of such a fundamental term that the correct approach is that the tenancy agreement is considered void ab initio and the affected tenant must be repaid the money they have paid as rent under the non-existent lease. The lessors submitted that the legal situation is more complex, and referred the Tribunal to a number of authorities, some specific to residential tenancy and others involving the law of contract. The lessors submitted that even if it were the case that the lessors had breached ACT planning requirements, this would not of itself render the tenancy illegal.[35]
[35] Mansour at [58]
Further, Presidential Member Daniel held:
I do not accept the legal analysis put on behalf of the tenants. First, I am not satisfied that invalidity always follows from the finding of a breach of clause 51. Legal impediments to use of the premises for residential purposes may come in different shapes or sizes. There is no logical reason why a legal impediment to use of the premises for residential purposes will necessarily make a residential tenancy agreement in relation to such premises void. There is no legislative provision to this effect. The RT Act could easily have provided that a breach of clause 51 made the residential tenancy agreement void, however it does not do so. There is no binding authority for the proposition that invalidity always results from the existence of a legal impediment.[36]
[36] Mansour at [59]
I respectfully adopt the reasoning of President Daniel, as she now is, and can see no logical reason why the lease agreement should be void from the beginning in this case.
Having made that finding, I am nevertheless aware that by leasing the property without going through the DA process and obtaining a COU, the respondent was exposing the tenant to deficiencies in the property, some of which are compensable.
Mr Carl Bunk gave evidence on this issue. He is a technical officer and employee of Access Canberra, who worked in the area of Service Delivery and Engagement, and he mainly worked in the area relating to the issue of certificates of occupancy and use. He gave evidence about what structures would need to be put in place when correctly changing a class 10a structure into a class 1a structure:
SENIOR MEMBER: Okay. All right, so you were talking about the types of things that would be required if the property was going to be changed from single use to multi use and have three separate flats in it.
WITNESS BUNK: Yes.
SENIOR MEMBER: You talked about firewalls. What other important distinctions would there be between a single use property and a multi use property?
WITNESS BUNK: Each space for habitation would have to have its own set of eight or nine BCA requirements for the height of ceilings, no rising damp, ten per cent of the floor area in each room to be light, incoming light, natural light, five per cent of the floor area being able to be opened up for ventilation, good adequate drainage, no termite infestation, and energy rating as well.
SENIOR MEMBER: All right. What about sound insulation, is that a requirement?
WITNESS BUNK: Sound would be something that would be today required in the Building Code of Australia with certain decibel sound rating, which is usually incorporated in the firewall that would be required between separate occupancies.
SENIOR MEMBER: So, as a matter of fact there seem to be two residences on the lower floor, on the ground floor, so they would have to have firewalls between the two of them.
WITNESS BUNK: Vertically or horizontally.
SENIOR MEMBER: Okay, that was my next question. In terms of the unit that was on the top floor, that would have to have some sort of fire floor.
WITNESS BUNK: Yes.
SENIOR MEMBER: And that would have to go across the entirety of the top floor, would it?
WITNESS BUNK: The entirety of wherever someone else is residing below.
SENIOR MEMBER: Okay. All right.
WITNESS BUNK: And smoke alarms is another thing that I forgot to mention in every - in both storeys. Would have to be upgraded. In all areas, for habitation.[37]
[37] Transcript of proceedings dated 4 July 2023, page 83, line 37-page 84, line 35
Having regard to Mr Bunk’s evidence, the application largely falls to be determined on the matters raised in paragraphs 21 and 22 above. I will deal with each complaint in turn.

Rainwater flowed into the house via the front door.

The first allegation made by the applicant is that rainwater entered the property. The applicant gave no details as to when this happened and how often this happened. Likewise, she provided no photos or independent evidence that water ingress had occurred.
The applicant did call an engineer, Mr Tarek El Ansary, who inspected the property and had a regard to the entrance. He did not identify any evidence of water ingress into the flat.
I have also had regard to the ingoing and outgoing condition reports. They do not identify any water ingress issues or damage caused by water entering the property. For example I was not directed to any photographs that showed staining on the walls or floor, at the entrance to the applicant’s flat, caused by water ingress.
There is also no evidence the applicant complained of this issue during the currency of the lease, to either the owner or his agent. This would have allowed the owner to have attempted to resolve the issue.
Looking at the doorway,[38] I am sceptical that rainwater could have entered the property as described. The ramp, installed by the applicant, leading into the flat is resting on concrete. There then appears to be a course of tiles, resting on the concrete. This course of tiles, which appears to be higher than the concrete would have prevented any water entering the flat.
[38] Exhibit A12 – ‘Applicant’s submission for hearing 4 of July 2023’, page 10 at [36], annexure B, document 18 – ‘Figure 1 showing main entry doorway and internal/external level discrepancy’
I find that the applicant has not proved this portion of her claim.

The property was very cold.

The applicant’s next complaint is that the property was cold. She was asked about this issue by Mr Hubert in cross examination:
MR HUBERT: All right. You complained that the unit was cold, or the area was cold.
WITNESS: Yes.
MR HUBERT: But there was a Rinnai split system air conditioner and heater there. Did you use that?
WITNESS: Yes, I used. When you turn on, it doesn’t matter how high you put, it still is cold.
MR HUBERT: So you personally found it cold, but there was a heater provided for you.
WITNESS: Yes. It was cold because there’s no sun coming.[39]
[39] Transcript of proceedings dated 18 April 2023, page 109, lines 22-36
The applicant did not provide details of what the temperature was and it is impossible for me to know whether what she finds cold a normal Canberran would agree is cold.
I note the applicant did not complain to the respondent or his agent about the cold, or the fact that the supplied air conditioning unit was ineffective or not working. This would have allowed for the situation to be remedied.
For those reasons, the applicant has failed to prove this portion of her claim.

The toilet sink did not have hot water.

By email of 30 May 2022,[40] the applicant did complain to the respondent’s agent that there was no hot water in the toilet sink.
[40] See paragraph 34 above
The failure or breakdown of any service on the premises essential for hot water is classed as an urgent repair that needs to be fixed as soon as necessary.[41]
[41] RTA standard term 59
According to a plumber, Scott Andrew, he was tasked with going to the property on 4 July 2022 to fix the problem. He did not find the applicant at home, and she did not answer his phone call. Before departing, he wedged his business card with his phone number into a crack in the door. Mr Andrew did not hear from the applicant.
Mr Andrew said that when he later did get access to the property, the issue was that the hot water valve under the basin was turned off.
In my view, the applicant has made out her case and is entitled to compensation from 30 May 2022 until 4 July 2022, as the issue was an urgent repair and should have been addressed far earlier than 4 July 2022; 35 days after the complaint was made.
The respondent is to pay the applicant $30 per week for the five weeks in question amounting to $150.
It is clear that on 4 July 2022, the applicant found the plumber’s card but elected not to call him back. Her reasoning was explored by Mr Hubert:
MR HUBERT: All right. On 4 July 2022, did you receive a telephone call from a plumber?
WITNESS: No.
SENIOR MEMBER: Sorry, what was the date?
MR HUBERT: 4 July 2022.
WITNESS HUSSAIN: No. I found a card in front of my door.
MR HUBERT: You found a card.
WITNESS: Yes.
MR HUBERT: Did you ring back the plumber?
WITNESS HUSSAIN: No, I did not.
MR HUBERT: Why didn’t you ring back the plumber?
WITNESS HUSSAIN: Because I asked ACTPLA and they said there is no approval plumbing or anything, and no one can do anything until the plan approved.
MR HUBERT: You had complained that there was no hot water in the premises.
WITNESS: Yes.
MR HUBERT: And a tradesman came to fix it up, and you didn’t ring them back.
WITNESS: I got the card. I explained to you. And the reason I didn’t ring is ACTPLA said there’s no approval. Until the approval and certificate of occupancy issued, there is nothing can be done.[42]
[42] Transcript of proceedings dated 18 April 2023, page 109, line 38-page 110, line 26
For the period after 4 July 2022, the applicant is not entitled to any compensation as she acted unreasonably by not calling the plumber to return to the property to investigate and fix the hot water supply.
The applicant seems to have been unreasonably relying on an unknown person at ACTPLA as a reason not to improve her situation by allowing access to the plumber.

There was mould everywhere.

The applicant alleges widespread mould issues.
Unfortunately, she has not supplied any clear evidence as to the location of the mould, its extent, and the dates when it was present. I was referred to some photographs, however, they were of a poor quality and, if they depicted mould, then it was of a small quantity on an unknown date.
In any event, the tenant did not complain of this issue whilst living there and denied the respondent the opportunity to remedy the issue.
For those reasons, this portion of the applicant’s case is not proved.

The paint finish of the walls was flaky with white dust which they feared could be asbestos.

The applicant did provide a photograph of one small area where there appeared to be some flaky paint work. I cannot say what caused the issue.
The applicant did not complain of this matter whilst living there and denied the respondent the opportunity to investigate and remedy the issue.
For that reason, this portion of the applicant’s case is not proved.

The water from the sink in the bathroom drained via the shower. It did not have its own dedicated waste pipe.

I agree with the applicant that the nature of the drain is eccentric. However, she has not pointed to any part of the Building Code of Australia (BCA) or other mandate that makes the drainage system in place improper or contrary to code.
For that reason, this portion of the applicant’s claim is not proved.

There was no insulation between the property and the flat above and consequently the noise the occupants of Flat A made, was clearly audible in the property.

The applicant gave evidence about this issue in the following terms:
WITNESS: So one day come, looks like the elephant going up and down, and it’s night time. They come, they Uber drives, and they come 2 o’clock, one comes 3 o’clock. Every time someone comes, we wake up because they start cooking, they start cleaning, they start - because they sleep in the day time.
SENIOR MEMBER: So these are the people upstairs.
WITNESS: Upstairs.
SENIOR MEMBER: Right. So what was the carpet?
WITNESS: So when I complained to them, I said, ‘Can you please stop cooking and cleaning that time because we’re sleeping.’ They said the other place that’s downstairs - that the one bedroom - complained and Mr Martiniello put the carpet and the complaint stopped. So I ask the real estate. I ask it, nothing happened. So they continues. So the reason they stopped - I’m telling you the truth, senior member - what I did in the morning, when they’re sleeping, I put the music loud. So they came downstairs, and I said if you stop at the night, cook, prepare your food day time, put the microwave, eat, and go bed. Don’t walk and laugh and talk and do noise. Otherwise I do this. They stopped, senior member, when I did that. Because I complain to the real estate, they didn’t stop. So I said, okay, when you’re sleeping, I make a noise, and when I’m sleeping, continue make noise. They stopped. So they prepared their food and they put the microwave, and then didn’t make any more noise. And that’s how they stopped.[43]
[43] Transcript of proceedings dated 18 April 2023, page 123, lines 7-35
I can readily understand how frustrating and annoying it would be to be woken regularly by neighbours who were indifferent to the noise they were inflicting on people who lived below them.
Mr Bunk gave evidence about what physical measures should have been put in place had the property gone through the correct DA and COU process before being leased to the applicant. He indicated that sound control is something required by the BCA, which sets certain decibel sound ratings, which is managed by the firewall that would be required between separate occupancies.
There is no evidence that the respondent put firefalls between the three flats and the loud noise that the applicant experienced from the direction of their upstairs neighbours supports a conclusion that there was none in place.
It appears the applicant was able to control the noise made by their neighbours, albeit by unconventional means. Nevertheless, in my view the unreasonable noise the applicant was subjected to is compensable and I make an award of $30 per week for the period from 10 December 2021 to 22 December 2022 (the day the applicant ceased paying rent), The respondent is to pay the applicant $1,740(58 weeks x $30).

Other complaints made

The applicant also claims compensation for a range of matters that directly flowed from the fact that there was no DA, no COU, and there being no formal address which service providers could locate. The matters complained of are:
(a)being unable to having mail delivered to the property.
(b)Being unable to have her own dedicated NBN internet connection installed, although the applicant paid for a connection with iiNet.
(c)Being unable to purchase home contents insurance.
(d)Having a concern that any ambulance the applicant called would not be able to find her.
All four matters are covered by standard term 52 of the Standard Residential Tenancy Terms; the tenant’s right to the quiet enjoyment.
I find that the applicant has proved their case in relation to all four complaints, as the absence of the items complained of would naturally and substantially affect the quiet enjoyment of the applicant and their children.
For items (a), (c) and (d), the respondent is to pay the applicant $50 per week for the period from 10 December 2021 to 22 December 2022 (the day the applicant ceased paying rent).
The respondent is to pay the applicant (58 weeks x $50) $2,900.
It appears that the applicant reasonably signed up with iiNet in order to have a quality home internet connection. It appears that was not possible, and the applicant was left in a position of having signed up for a connection that she could not cancel.
The respondent argued that it is only possible to have one land line NBN connection per block of units, and that there were other options available to the applicant, including sharing the existing internet connection already in existence in the flat above or using a Wi-Fi connection.

Both of those options may have existed, but they do not diminish the fact that the applicant’s iiNet connection could not be connected because the property did not formally exist and for that reason could not have been connected by iiNet.
The applicant has proved her case and the respondent is to pay $1,199.88 ($99.99 x 12 months).

Was the notice to vacate of 17 June 2022 retaliatory and invalid in accordance with section 57(1)(b)(ii) of the Residential Tenancies Act 1997 (ACT).

In the applicant’s application for resolution of a dispute under the RTA, there was a claim that the 26 weeks’ notice they was given was retaliatory.
The applicant didn’t advance the claim at the hearing and made no submissions relating to this issue and, in any event, ceased living and paying rent for the property well in advance of the termination day.
For those reasons, this portion of the claim is dismissed.

Legal Aid Submissions

Up until shortly before the hearing, the applicant was represented by Legal Aid ACT (Legal Aid). She was not represented by them at the hearing.
Legal Aid did file useful submissions, dated 7 March 2023, before they withdrew. These submissions were not pressed by the applicant, but for the sake of completeness I will address the key issues raised.
Legal Aid made a submission that, at the start of the tenancy, the property had to be in habitable condition.
This submission is not controversial.
Legal Aid referred to a number of cases which speak to the issue of what the term ‘fit for habitation’ means. They referred to Halcombe v Hitchman,[44] Hampel v South Australian Housing Trust,[45] and Fiege & Ors v Wilkinson; Wilkinson v Holbrook & Ors,[46] which were all useful.
[44] [2018] ACAT 5
[45] [2007] SADC 64
[46] [2023] ACAT 11
I was also referred to Cope Mceachern v Walker & Walker (Cope).[47] I found this last case the most helpful. In that case, the Tribunal held:
In McLeish v FT Eastment & Sons Pty. Ltd (1970) 91 WN (NSW) 268 CA the Court in reliance upon Proudfoot v Hart (1890) 25 QBD 42 considered the words “fit for habitation” and “tenantable repair “and whether there was a difference. This is relevant to a consideration of section 25(1) of the Act, which imports both concepts. The Court stated:
“must both import such a state as to repair that the premises might be used and dwelt in, not only for safety, but for reasonable comfort, by the class of persons by whom and for the sort of purpose for which, they were to be occupied ... (emphasis added)
The conclusion I draw... is that the landlord is obliged to hand the premise over to the tenant, at the commencement of the lease, in a reasonable state of repair having regard to its age, rent payable and the prospective life of the premises, and the state of the repair must at least meet the minimum standard inherent in the contemporary understanding of the term “fit for habitation”... (emphasis added)[48]
[47] [2018] ACAT 65
[48] Cope at [14], quoting Finn v Finato [2004] NSWCTTT 179 at [18]-[19]
In support of the submission that the property was not habitable, Legal Aid relied on Mr El-Ansary’s engineers report of 30 August 2022. In that report, Mr El-Ansary was critical of the face that the level of the entrance to the property was lower than the external concrete courtyard, and that the ceiling levels (except for the kitchen) were slightly below the 2.4 metres mandated by the BCA.
In my view, those defects do not make the property uninhabitable. They may be departures from the BCA, but they do not reasonably infringe upon a person’s normal ability to use and enjoy the property.
Having looked at the ingoing condition report, the property seemed clean, in good repair, and suitable for occupancy.
For that reason, this portion of the applicant’s case is not proved.
Legal Aid also sought $2,150 to compensate the applicant for the monies they paid to their friend in Kaleen for electricity and water. In my opinion, this was not a reasonable expense and was not something that the respondent should be asked to pay for.
The basis for the use of the friend’s property was that the tenant had been told by “somebody” at Access Canberra that:
There are no approvals for [Flat B], it is not safe to live there, you live there at your own risk … There are no approvals for anything including electricity, water, gas sewage etc. for the bottom floor of the house … the bottom floor of the house is only approved to be a garage.[49]
Consequently, the applicant submitted that:
After finding out that there were no approvals for the Property, I feared for my and my children’s safety. I could not cook or shower at the Property. I frequently went to Kaleen to cook, shower do laundry etc. I paid my friend $100 per fortnight ($50 per week) for electricity and water.[50]
[49] Applicant’s witness statement dated 7 March 2023 at [16]
[50] Applicant’s witness statement dated 7 March 2023 at [17]
It is difficult to understand the basis upon which “someone” could have concluded that “it is not safe to live there” without, in any way, inspecting the property.
Moreover, if the applicant believed that to be the case then she should have immediately discussed the matter with the respondent or his agent, which she did not do. Alternatively, she could have immediately sought to terminate the tenancy under clause 86 of the Standard Residential Terms, which gives a tenant a right to terminate the tenancy where the premises are unfit for habitation. Clause 86 provides:
86 – Termination where premises are not fit for habitation
(1) The lessor or the tenant may, by written notice, terminate the tenancy on a date specified in the notice on the following grounds:
(a)the premises are not fit for habitation;
It is not reasonable for a tenant to sign a fixed term lease, occupy the property for the period of the fixed term and then claim that the property was not fit for human habitation from the inception of the lease.
If the applicant genuinely believed that the property was uninhabitable then she should have sought to terminate the tenancy when that became obvious not after many months of occupying the property.
I also note that the absence of approvals, such as the DA or COU, does not equate to the normal household services of electricity, water, and sewage being unsafe.
The applicant gave no evidence that, in any way, those services were not operating in the normal way. There were no water leaks or any indication that the water was discoloured or tasted off, which would support a reasonable conclusion that the applicant and her children could not safely drink the water.
Likewise, there was no indication that the electricity supply was in anyway defective. The applicant did not point to short circuits, electrical outages, or other anomalies that would reasonably support the conclusion that the electrical supply was not fit for purpose.
The same can be said for the sewage system and gas supply.
The applicant seems to have placed an unreasonable construction upon what she was told by “someone” and taken it from that discussion that she should not rely on those normal domestic services.
For that reason, this portion of the applicant’s case is not proved.
Legal Aid also sought compensation of $900 for the amount the applicant spent on petrol getting to and from her friend’s place.
For the reasons just given, relating to the claim for the monies they paid to her friend in Kaleen for electricity and water, this portion of the applicant’s case is not proved.
In total, the respondent is to pay the applicant the sum of $5,989.88.

The respondent’s counterclaim

The respondent has made a counter claim of $4,629.14 for unpaid rent from 22 December 2022 to 3 March 2023 ($4,057.14), and end of lease cleaning ($572).
It seems to me that the applicant made a conscious decision to cease paying rent from 22 December 2022 and to retain possession of the property until she returned the keys on 3 March 2023.
The applicant is to pay the respondent $4,629.15 for unpaid rent.
Having regard to the ingoing condition report, it appears as if the property was in good repair, and clean and tidy. The outgoing report and photos show that the applicant did not return the property in substantially the same state as she received it. In those circumstances, the cleaning fee seems reasonable and proportionate.
The applicant is to pay the respondent $572 for the end of lease clean.
In total, the applicant is to pay the respondent $4,629.14.

Summary

The net position is that the respondent is to pay the applicant the sum of ($5,989.88 - $4,629.14) $1,360.73.
The ACT Office of Rental Bonds is ordered to return the rental bond of $1,600 to the applicant.
………………………………..

Senior Member D Mulligan

Date(s) of hearing:	18 April, 2 June, 4 July 2023
Applicant:	In-person
Solicitors for the Respondent:	Mr K Hubert, Capon & Hubert Lawyers and Mediators