Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kaho v Parklea Operations Pty Ltd t/as Myrtle Glen [2022] NSWCATCD 189 Hearing dates: 23 June 2022 Date of orders: 30 September 2022 Decision date: 30 September 2022 Jurisdiction: Consumer and Commercial Division Before: S Sutherland, Tribunal Member Decision: The application is dismissed. Catchwords: LEASES AND TENANCIES – Residential site community – quiet enjoyment – substantial interference with quiet enjoyment Legislation Cited: Residential (Land Lease) Communities Act 2013; ss 38, 157 Cases Cited: Potaczek v Discovery Holiday Parks Pty Ltd [2015] NSWCATCD 129 Advance Fitness v Bondi Diggers [1999] NSWSC 264 Texts Cited: Nil Category: Principal judgment Parties: Margaret Carol Kaho (applicant) Parklea Operations Pty Ltd t/as Myrtle Glen (respondent) Representation: M Preston and Mr Finlayson, authorised to appear for the applicant, and the applicant (applicant) J Seric, authorised officer of the respondent (respondent) K Rogers, Manager (respondent) File Number(s): RC 22/02688 Publication restriction: Nil REASONS FOR DECISION 1. This is a claim for compensation pursuant to Section 38 of the Residential (Land Lease) Communities Act 2013 for a loss of quiet enjoyment of site 86 caused by the pooling of water and the installation of a pit and pump to extract the water. Compensation is sought pursuant to Section 157 (1) (e) of the Residential (Land Lease) Communities Act 2013 from 29 October 2021 to 25 November 2021 at the rate of $30 per day; then from 25 November 2021 at the rate of $15 per day until rectification of the pit and pump being no longer required to remove excess water. 2. The claim pursuant to Section 15 (1) (b) of the Residential (Land Lease) Communities Act 2013 is withdrawn. Jurisdiction 1. The applicant is a homeowner of site 86 in "Myrtle Glen Stanhope Gardens" which is operated by Hometown Australia Parklea Operations Pty Ltd. The respondent is the operator of the community, it is uncontroversial that there is a site agreement between the parties that commenced on 18 January 2013. The Tribunal is satisfied that it has jurisdiction to hear the claim pursuant to Section 6 of the Residential (Land Lease) Communities Act 2013. 2. The documents of the applicant are marked Exhibit A1 and the documents of the respondent are marked Exhibit R1. Evidence of the applicant 1. The applicant has been the owner of Site 86 since January 2013. An issue commenced with the drainage in 2021 and she reported the water logging issues at the rear of the property which she believed was caused by a leak from another property. She was unable to sit out in the area where the excess water accumulates and enjoy the area. She is unable to have her furniture in the area as it is damp, and the chairs go rusty. Plants that were growing there including a camelia, had perished due to the excess water and she is unable to use the area as it is damp and there is a pump there. The drainage pump that has been installed is noisy and causes discomfort to her and her neighbours. The pump doesn't operate that often, however, the ground remains damp. 2. When there is heavy rain, the pump runs every twenty minutes, morning, noon and night and works during dry spells. When there is a lot of rain the pump is continual, and the front neighbours complain about the noise. 3. The applicant claims that these issues were caused by a leak that has been subsequently fixed and claims compensation for a loss of quiet enjoyment caused by the water pooling to 25 November 2021 and then a claim after the installation of the pit and pump until that is rectified. The submission of the applicant is that the installation of the pit and pump have only half fixed the problem. The yard remains waterlogged according to the applicant and her plants cannot grow and the furniture rusts and that the property is not adequately drained. Evidence of the respondent 1. The respondent claims that over time that the contours of the land change and that requires rectification from retaining walls to drainage in sites. The installing of a drain and pump was the most practical solution otherwise, it would require substantial recontouring of the land and may require the moving of homeowners in the community for this to occur. There was no evidence of the volume of water that was pooling. 2. The respondent had assessed the water charges and the water usage had reduced, and that there was no evidence of a water leak. The respondent claims that there is no written evidence that the noise has affected other homeowners. There were no noise complaints and the respondent claims that it is no different to noise such as mowing lawns and maintenance that causing some noise in the community. The pump is being activated infrequently and only during heavy downpours and if getting rid of a small. It was only a small gravel area of one metre square, and the remaining area of the yard can be used by the applicant. The respondent claims that the property was adequately drained, the furniture can rust due to climatic conditions, and that the applicant has not provided evidence to prove that there was an unsafe volume of water on the site. It is claimed that the slight dampness because of excess surface water does not mean that the site is inadequately drained. The dampness occurs after rain downpours which dry over time. 3. The respondent claims that the slight dampness on site 86 was considered normal and within acceptable standards and tolerances and that in good faith the operator undertook remedial works to mitigate any further risks of excess surface/ground water. The respondent installed a pump as a preventative measure connected to an addition ag pipe. 4. The respondent claims that a qualified contractor completed the remedial works on 25 November 2021 and re-attended the site on 15 February 2022 to assess that the pump was functioning as intended after inclement weather in January and February 2022. The contractor confirmed that the areas of concern were dry under foot and no ponding of water. There was no evidence of excess water around the house or under and no pooling or dampness. 5. The report of "Plumbing Rules" (undated) states, "The water is ground water travelling along trench lines. Villa 86 was the lowest point hence the pooling of water. But this has now cleared up due to the works competed (sic) on 25th. There were issues on site regarding water pooling but they were resolved with other works. Such as, Lady over watering her garden excessively or water leaks effecting (sic) a few down stream around villa 370 and 290…I was on site at both those properties this week for other works and the ground had dried up even though it rained a few days earlier." 1. The respondent claims that there has been ongoing monitoring of the site by the operator and further inspections were conducted on 14 March 2022 after inclement weather on 1 March 2022 to 9 March 2022. The remedial work completed by the contractor had effectively dealt with any excess water even after inclement weather. The respondent claims that there is no ongoing leak from site 86 and refers to Annexure C of Exhibit A1 a photograph taken on 14 March 2022 showing the guttering as dry. 2. The respondent claims that the slight dampness of one metre square gravelled area on site 86 that was experienced periodically due to inclement weather does not restrict or interfere with the applicant's privacy, peace and quiet, or proper use of enjoyment of the use of their residential site. The respondent claims that slight dampness on a gravelled area with no specific or intended use has no impact on the site with or without dampness. 3. The respondent claims that the issue has been identified as surface/ground water that travels along trench lines which can affect site 86 at the low point of the community. Conclave and joint report 1. In a report that was jointly prepared by the applicant's plumber, Millhouse Plumbing Pty Ltd and the respondent's plumber, My Plumbing Rules Pty Ltd the following was agreed: a) the undulation of the land contributes to the pooling of ground water on site 86. b) a trench line runs along the rear of all sites in Grevillia Cres in the section where site 86 is located. Site 86 is the low point therefore water will naturally run along the trench line which has caused excess ground water to the pond on site 86 which became more evident during severe inclement weather. c) the scope of the works completed to mitigate excess ground water on site by installation of drainage pit and pump is accepted as the appropriate method to address the issue. Post inspections have revealed the issue has been successfully addressed. d) The timing of which the scope of works to address the issue is accepted as standard for that type of work required and current availability of trades and materials. e) No leaks were visible under the home on site 86. f) The matter is now satisfactorily closed by both contractors for the applicant and the respondent. Relevant legislation Section 38 of the Residential (Land Lease) Communities Act 2013 provides: 38 Right to quiet enjoyment (1) The operator of a community must not unreasonably restrict or interfere with, or permit any unreasonable restriction or interference with, a home owner's privacy, peace and quiet, or proper use and enjoyment of the residential site and the community's common areas. Maximum penalty—10 penalty units. (2) The Tribunal may, on application by a home owner, make an order resolving a dispute concerning an operator's compliance with this section. 157 Orders that may be made by Tribunal (1) The Tribunal may, on application by a party to a dispute or other matter before the Tribunal, or in any proceedings under this Act, make one or more of the following orders— (e) an order for the payment of compensation, Relevant case law 1. In Potaczek v Discovery Holiday Parks Pty Ltd [2015] NSWCATCD 129 at para 20, Tribunal Member Priestley pointed out the following: "The words in section 20 (1) (b) "reasonable peace, comfort or privacy", have been considered in numerous cases, and there is a concise discussion of the topic in Anforth's text on residential tenancies [1] . A far more detailed examination is contained in an article by A M Rissman "The Price of Quiet Enjoyment" [2] . An important factor in considering whether the tenant's right to quiet enjoyment has been breached, is the word "reasonable". A mere interference with the comfort of the tenant from an annoyance such as noise, is insufficient to breach the tenant's right to quiet enjoyment. A substantial interference is required. In the Tribunal's view, while the music and other noise generated by the family re-union was an interference with the tenant's quiet enjoyment of his premises, and was permitted by the respondent, the evidence does not support a finding it was substantial. It occurred on only one occasion, ceased at 10.00 p.m., and was not in breach of the Council's regulations about noise. The applicant's complaint was the only one received by the respondent. The noise did not prevent the applicant from falling asleep (albeit with ear plugs) at about 8.30 p.m. The issue also has to be placed in the context of a caravan park that caters for tourists, in the very popular holiday location of Byron Bay. That is not to say that noise which occurs before 10.00 p.m, and does not breach the Council's regulations, is incapable of constituting a breach of section 20 of the Act, and clause 10 of the site agreement. However that is not the case here, and accordingly the application is dismissed." 1. Advance Fitness v Bondi Diggers [1999] NSWSC 264 at [111] where Austin J held: "A breach of the covenant for quiet enjoyment occurs whenever the landlord causes substantial interference with the enjoyment of the demised premises through an act or omission that is either deliberate or negligent in the sense that its consequences were reasonably foreseeable: Martin's Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15; Kohua Pty Ltd v Tai Ping Trading Pty Ltd (1985) 3 BPR [97,240]; P Butt , Land Law (3rd ed 1996), p305-308. The onus is on the applicant to prove that the operator unreasonably did not restrict the applicant's privacy, peace and quiet, or proper use and enjoyment of the residential site and that breach was a substantial interference with that covenant." Consideration 1. The plumbers for the applicant and the respondent agreed that the cause of the accumulation is water after inclement weather running along the trench lines and accumulating at site 86 and now that was satisfactorily fixed with the installation of a drainage pit and pump. There was no leak underneath site 86 There had been previous issues of a lady watering her garden excessively and leaks from other properties that had been repaired. The claim by the applicant is that there is a leak from a of sewerage pipe from another property is not supported by either of the plumbers in their joint report dated 30 May 2022. 2. The Tribunal made orders on 15 February 2022 for the applicant to provide documents to the respondent and the Tribunal by 15 March 2022. The issue in the application dated 22 November 2021 was an undetected leak and the dampness of site 86. 3. The respondent provided a response on 12 April 2022 which identified defects in the applicant's claim that there was no evidence of how the applicant's use or quiet enjoyment of their site was impacted by the dampness. On the day of the hearing the applicant then gave oral evidence of the impact of the dampness on her privacy, peace and quiet, or proper use and enjoyment of the residential site to rectify any defects in her claim. This evidence had not been provided previously. Further the applicant raised another issue of the noise of the pump to include in her claim seeking the amount of $15.00 per day until it is rectified. Again, this claim was only raised on the day of the hearing. Surprisingly there was no objection to the applicant giving oral evidence concerning these additional matters. No statement was provided by the applicant before the hearing in compliance with the directions, however, no objection was taken to the oral evidence on the day. The only photograph of the yard is the photograph in Exhibit R1 Annexure C which is a gravel area, one metre square, there is no other photographs of the property and pooling of water. The joint report of the plumbers suggest that the property is adequately drained after the installation of the pit and pump. As regards to a water leak the evidence of the water usage is suggestive that there was no water leak in accordance with the reduction in usage, however, is not conclusive that there was no water leak. However, when assessed with the evidence of the joint report by the plumbers on balance I am not satisfied that there was a leak from the pipes. 4. In my view, the weight of the evidence is against the applicant, her expert plumber in the joint report of 31 May 2022, agrees that the cause of the water pooling is the ground water from trench that runs along the rear of all sites with site 86 being the lowest point where water pool during severe inclement weather. The plumbers agree that the time to complete the work was within reasonable standards and that drainage pit and pump are the appropriate method to address the issue. The respondent claims that the area of slight dampness is a 1 metre square gravelled area and this occurs after inclement weather or heavy rain. Having observed the photographs in Exhibit R1 Annexure C the area is a small arear which is covered by gravel and near some piping for the dwelling. While the applicant claims that the plants were destroyed and furniture rusted by the water, there is no photograph of the water pooling for the Tribunal to assess the water volume in the yard. 5. The respondent did rectify the water pooling as requested by the applicant and the property on the evidence of the plumbers is adequately drained. Both plumbing experts agree that the rectification was completed within a reasonable time, the claim by the applicant being 28 October 2021 to the pump being installed and rectification on 25 November 2021. The small area of dampness that occurs in a gravelled arear after heavy rain, in which a drainage pit and pump have been installed, in my view, there is not a substantial inference with the applicant's quiet enjoyment. I am not satisfied to the civil standard that the interference with the applicant's quiet enjoyment was substantial, and that the respondent unreasonably restricted or interfered with, or permitted any unreasonable restriction or interference with, a home owner's privacy, peace and quiet, or proper use and enjoyment of the residential site. The claim is dismissed. Drainage pump noise 1. The issue of the pump noise was raised at the commencement of the hearing as an additional claim. The applicant had not requested leave to amend the claim to include a claim for the noise of the pump. 2. The evidence from the applicant is that the pump doesn't operate often, only when there is substantial water pooling during heavy rain. When there is heavy rain the pump runs every twenty minutes, morning noon and night and works during dry spells. The pump is noisy and causes discomfort to her neighbours The evidence however, if that the pump does not run that often and is necessary to rectify the accumulation of water 3. There is no statement from any of the neighbours as to the loudness of the noise from the pump or any expert evidence as to whether the pump conforms with Australian standard or noise does not comply with Australian regulations as to exceeding the decibels permitted for a residential area or community. There was no description of how the noise impacted on the applicant and how it caused substantial interference to her quiet enjoyment. The interference is required to be substantial: Potaczek v Discovery Holiday Parks Pty Ltd [2015] NSWCATCD 129; Advance Fitness v Bondi Diggers [1999] NSWSC 264. I am not satisfied to the civil standard that the interference with the applicant's quiet enjoyment was substantial, and that the respondent unreasonably restricted or interfered with, or permitted any unreasonable restriction or interference with, a homeowner's privacy, peace and quiet, or proper use and enjoyment of the residential site. The claim is dismissed. ********** 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 Amendments 08 September 2023 - Formatting amendments. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2023