Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Adams v New South Wales Land & Housing Corporation [2016] NSWCATAP 31 Hearing dates: 20 April 2015 Date of orders: 09 February 2016 Decision date: 09 February 2016 Before: S Higgins, Principal Member S Thode, Senior Member Decision: 1. The appeal is allowed. 2. The decision of the Tribunal is set aside. 3. The matter is remitted for reconsideration in accordance with law and by a differently constituted Tribunal. Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – internal appeal of decision to terminate a social housing tenancy agreement on grounds of a breach of the agreement – cause or permit a nuisance - cause or permit interference with the reasonable peace comfort or privacy of neighbours - appeal on a question of law – failure to take into account a relevant consideration – s 152 of the Residential Tenancies Act – failure to provide adequate reasons for decision Legislation Cited: Civil and Administrative Tribunal Act 2013 Housing Assistance Act 2007 (ACT) Residential Tenancies Act 2010 (NSW) Residential Tenancies Act 1987 (NSW repealed) Cases Cited: Adavale Realty Pty Ltd v Williams (1996) NSWRT 190 Bisley Investment Corporation v Australian Broadcasting Tribunal [1982] FCA 58 Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28 Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 Collins v Urban [2014] NSWCATAP 17 Commissioner for Social Housing v Radavonov [2011] ACT ACAT 12 Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 Elston v Dore (1982) 149 CLR 480 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Kendray v New South Wales Land and Housing [2015] NSWCATAP 139 Marsh v Baxter [2015] WASCA 169 Mc Geown v NSW Land and Housing Corporation [2015] NSWCA 23 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 O'Brien v Repatriation Commission (1984) 1 FCR 472 Stewart v Yarrawarra Aboriginal Corporation [2015] NSWCATAP 4 Swain and Anor v Residential Tenancies Tribunal of New South Wales and Anor (Unreported, NSWSC, March 1995) BC9504317 Texts Cited: (Ed Carolyn Sappideen and Prue Vines "Fleming's The Law of Torts" (10th ed. 2011, Law Book Company) Caroline Hunter, Judy Nixon and Michelle Slatter "Neighbours Behaving Badly: Anti-Social Behaviour, Property Rights and Exclusion in England and Australia" Macquarie Law Journal (2005) 5 MLJ 149 Amy M Rissman "The Price of Quiet Enjoyment" (1999) 7 APLJ 155 Category: Principal judgment Parties: Ronald Adams (appellant) New South Wales Land & Housing Corporation (respondent) Representation: Counsel: R Mansted for the appellant B Anniwell for the respondent Solicitors: Legal Aid for the appellant File Number(s): AP 15/04295 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: NSW Land and Housing Corporation v Ronal Adams, Civil and Administrative Tribunal (NSW), 13 January 2015, unrep) Date of Decision: 12 January 2015 Before: S Smith, General Member File Number(s): SH 14/50054 REASONS FOR DECISION 1. The appellant is a tenant of residential premises that are "social housing premises" falling within s 136 of the Residential Tenancies Act 2010 (RT Act). The respondent is the "social housing provider" of the premises (ie. the landlord), as defined in s 136. The appellant has been a tenant of the premises since 2004. 2. On 14 October 2014, the respondent lodged an application with the Tribunal in the Consumer and Commercial Division (the Tribunal or Tribunal below) seeking orders under ss 87 and 187 of the RT Act to restrain actions of the appellant that allegedly breached the residential tenancy agreement and orders for termination of the agreement due to the alleged breach. The alleged breach was the appellant's conduct in verbally abusing and threatening his neighbours on 13 July 2014. 3. On 12 January 2015, the Tribunal made the following order: The Residential Tenancy Agreement is terminated on 13 Feb 2015 and possession is to be given to the landlord on the date of termination. 1. The Tribunal published short reasons for decision the following day. 2. On 27 January 2015, the appellant lodged a Notice of Appeal, seeking to appeal the decision of the Tribunal and a stay of the decision of the Tribunal. The Tribunal granted a stay on 3 February 2015, until the first call-over date, 26 February 2015. That stay was then extended until the making of the final orders of the Appeal Panel. Since the stay order was made, the respondent has not sought to have the stay order varied or set aside. 3. The appellant's appeal was heard on 20 April 2015, with both parties being legally represented. At the conclusion of the hearing we reserved our decision. 4. For the reasons set out below we have allowed the appeal and made orders under subs 81(1)(e) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) setting aside the decision of the Tribunal below and remitted the matter for reconsideration in accordance with law and by a differently constituted Tribunal. Jurisdiction of the Appeal Panel 1. There is no dispute that the decision of the Tribunal from which the appellant seeks to appeal is an "internally appealable decision": see ss 27(1) and 80 of the NCAT Act. 2. Subsection 80(2)(b) of that Act provides that an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. In his Notice of Appeal the appellant relied on six grounds of appeal, five of these were said to be errors of law. 3. In the alternative to these grounds, the appellant also sought leave to appeal. Clause 12 of Schedule 4 of the NCAT Act prescribes the circumstances in which the Appeal Panel can grant leave to appeal against a decision of the Tribunal in the Consumer and Commercial Division. That clause relevantly provides as follows: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) … The appellant's Notice of Appeal 1. As we have indicated, the appellant identified six grounds of appeal in his Notice of Appeal. Of these, Grounds 1 to 5 were asserted to be errors of law. In Ground 6 the appellant sought leave to appeal on the basis that the termination of the tenancy was against the weight of the evidence. 2. The essence of the grounds asserted to be errors of law were as follows: Ground 1 – The Tribunal erred in law in finding that the appellant had breached the Tenancy Agreement. PARTICULARS i. the Tribunal correctly acknowledged that it was required to determine whether a breach of the residential tenancy agreement had occurred and identified that the alleged breaches related to clauses 7.2 and 7.3 of the agreement; ii. the Tribunal found that the appellant had "behaved abusively" towards the neighbours and had "made statements that could be interpreted as death threats to his neighbours" (and involved findings of fact); iii. despite the acknowledgement in (i) above, the Tribunal failed to consider whether the findings of facts supported the legal conclusion and that the appellant had permitted or caused nuisance (cl 7.2), or interfered with the reasonable peace, comfort or privacy of his neighbours (cl 7.3); iv. factual matters going to the question of breach, not related to the findings of fact were raised by the appellant and were not considered by the Tribunal. Ground 2 - The Tribunal erred in law in finding that the breach was in the circumstances of the case, sufficient to justify termination, since it failed to take into account each of the following considerations relevant to the circumstances of the case: (a) The matters in s 152 of the RT Act; PARTICULARS … (b) The relevant considerations identified in Adavale Realty Pty Ltd v Williams (1996) NSWRT 190; … PARTICULARS … and (c) The principle that a social housing tenancy should be preserved where possible. PARTICULARS … Ground 3 – The Tribunal erred in law in failing to take into account a relevant consideration, namely, that the appellant had not caused the incident subject of the Tribunal's decision. PARTICULARS …. Ground 4 – The Tribunal erred in law in failing to take into account relevant considerations in relation to the Apprehended Violence Order, namely (a) that the AVO was imposed by consent on a without admission basis, and (b) that the AVO had not been breached. PARTICULARS …. Ground 5 – Further and in the alternative, the Tribunal did not provide good reasons for: (a) its decision that a breach of the residential tenancy agreement had occurred; PARTICULARS The appellant refers to and relies on the particulars to Ground 1 above. (b) its decision that the breach was sufficiently serious to justify termination; PARTICULARS The appellant refers to and relies on the particulars to Ground 1 above. 1. The appellant relied on the same grounds at the hearing of his appeal. The respondent's Reply to Appeal 1. The respondent in its Reply to the appellant's Notice of Appeal contended that the Tribunal did not make an error of law as asserted by the appellant in Grounds 1 to 5. On the contrary, the respondent contended that the Tribunal had given adequate reasons for decision, considered all the evidence and taken into account the relevant consideration (including s 152 of the RT Act) before finding that the conduct of the appellant constituted a breach of the residential tenancy agreement and that the breach was sufficiently serious to justify termination of that agreement. 2. Finally in regard to Ground 6 the respondent contended that the Tribunal's decision was not against the weight of the evidence. The Residential Tenancies Act 1. The RT Act regulates the rights and obligations of landlords and tenants, rents, rental bonds and other matters relating to residential tenancy agreements, which are defined in s 13 of the Act. 2. As we have noted, the parties entered into a "social housing tenancy agreement" in May 2004. While the agreement was entered into under the repealed Residential Tenancies Act 1987, there is no dispute that the agreement is subject to the terms of the 2010 RT Act. 3. Part 7 of the RT Act contains provisions relating to "social housing tenancy agreements", which are defined in s 136 to mean "a residential tenancy agreement where the landlord is a social housing provider." That is, a social housing tenancy agreement is also a residential tenancy agreement as defined under s 13 of the RT Act. 4. As we have noted, the respondent is a social housing provider as defined under section 136. 5. Section 137 of the RT Act provides that where there is an inconsistency between the provisions in Part 7 and any other provision within the Act or the regulations, then the provision in Part 7 prevails to the extent of the inconsistency. Hence, the provisions in the Act that relate to a residential tenancy agreement equally apply to a social housing tenancy agreement, unless the provision in question is inconsistent with a provision in Part 7. 6. Part 2 of the RT Act contains provisions relating to the standard form of residential tenancy agreements and the terms thereof. Subsection 15(3) of the RT Act provides that a standard form of residential tenancy agreement must be consistent with the Act and the Regulations. 7. Section 51 of the RT Act makes provision for the tenant's use of the residential premises. That section relevantly provides: 51 Use of premises by tenant (1) A tenant must not do any of the following: (a) use the residential premises, or cause or permit the premises to be used, for any illegal purpose, (b) cause or permit a nuisance, (c) interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant, (d) … (2) … (5) This section is a term of every residential tenancy agreement. 1. Clause 7 of the residential tenancy agreement between the appellant and the respondent is in the following terms: USE OF THE PREMISES 7. The tenant agrees: 7.1 not to use the residential premises, or cause or permit the premises to be used, for any illegal purpose; and 7.2 not to cause or permit a nuisance; and 7.3 not to interfere, or cause or permit interference with, the reasonable peace, comfort or privacy of neighbours. 1. Part 5 of the RT Act contains provisions relating to the termination of a residential tenancy agreement. Section 87 of the RT Act sets out the basis on which the tribunal may terminate a residential tenancy agreement, for breach of the agreement by the tenant, on the application of a landlord. That section is in the following terms: 87 Breach of agreement (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach. Note. Section 152 sets out additional matters to be considered if the residential tenancy agreement is a social housing tenancy agreement. 1. Section 152 is a provision within Part 7 of the RT Act that deals with the termination, by the tribunal, of a social housing tenancy agreement on grounds of a breach of the agreement. That section is in the following terms: 152 Termination by Tribunal of social housing tenancy agreements for breach (1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. (2) This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act. 1. Part 9 of the RT Act sets out the powers of the tribunal in regard to the orders it can make. Section 187 of the RT Act sets out the orders the tribunal can make on an application by a landlord or tenant, or in any proceedings under the Act. That section relevantly provides as follows: 187 Orders that may be made by Tribunal (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders: (a) an order that restrains any action in breach of a residential tenancy agreement, (b) an order that requires an action in performance of a residential tenancy agreement, … (i) a termination order or an order for the possession of premises, … The Tribunal's decision 1. In its reasons for decision the Tribunal began by noting that the proceedings were brought by the landlord (the applicant before the Tribunal and the respondent in this appeal) "to terminate a tenancy of the residential premises at Seven Hills" and that the application was "based on clauses 7.2 and 7.3 of the standard residential tenancy agreement". The Tribunal then set out the terms of these subclauses. 2. The Tribunal then noted that both parties were legally represented. The Tribunal then noted the witnesses who gave evidence at the hearing and the type of written material the parties had provided. 3. Immediately under the heading "Adjudication" the Tribunal said: To succeed in this application the landlord would have to satisfy me that the allegations set out in the particulars are substantially true, that they amount to a breach of the tenancy agreement and that the breach is sufficiently serious to justify termination. 1. The Tribunal went on to note that the application was based upon an incident that had occurred at the residential premises, on 13 July 2014. The Tribunal then said: A Notice of Termination pursuant to s 87 was issued which particularised an incident whereby it was alleged Mr Adams abused and threatened Mr Swan. The incident arose out of Mr Adams attaching sheets of corrugated iron to the fence which divided his property from that occupied by Mr Swan and Miss Longmore. Shortly stated Mr Swan objected and moved to disconnect the sheets whereby Mr Adams became angry and abusive. 1. In regard to the appellant's conduct on that day, the Tribunal found: There is no doubt in my mind that Mr Adams behaved abusively towards Mr Swan and probably Ms Longmore. Indeed he admitted as much in evidence … 1. The Tribunal also found that it was satisfied that "Mr Adams made statements that could be interpreted as death threats to his neighbours". The Tribunal found that "various other incidents and background circumstances" as particularised by the landlord and the evidence of the appellant's witnesses, which "tended to dwell on the virtues" of the appellant and the "peccadilloes" of the appellant's neighbours were of "marginal relevance" to the question that had to be decided. The Tribunal then said: I think I can take judicial notice of the consent orders relating to clause 7 made less than a year ago. I think I can also take into account an Apprehended Violence Order made against Mr Adams made in the Local Court at the behest of Mr Swan. 1. The Tribunal concluded as follows: I find that the conduct of Mr Adams constitutes a breach of the residential tenancy agreement and that the breach is sufficiently serious to justify terminating his tenancy. In the light of the AVO and the previous Tribunal orders, I do not think that this is a suitable case for a further specific performance order. In coming to this conclusion I have assessed the matters put before me by Miss Bradshaw [the appellant's legal representative] including the illness afflicting Mr Adams, the difficulties of private rental and that no specific admissions were made in the consent Tribunal orders. I am satisfied there has been a long history of unacceptable conduct by Mr Adams towards Mr Swan and Miss Longmore who are his next door neighbours. The incident is the one that breaks the camel's back. Material before the Appeal Panel 1. In support of his appeal the appellant filed and served a copy of the evidence he and the respondent had relied on before the Tribunal below. The Appeal Panel also had before it a copy of the transcript of the hearing before the Tribunal below and a copy of the respondent's application to the Tribunal seeking an order that the residential tenancy agreement be terminated. 2. Each party also provided detailed written submissions. 3. We note from the appellant's submissions that he is 70 years of age. He is a pensioner in receipt of a Centrelink age pension and an annuity from his late mother's estate. He has an adult daughter with Down Syndrome who lives in a care facility but visits him at his residence from time to time. The appellant has a number of serious health issues, which result in mobility restriction, insomnia and profound hearing impairment. There has been an ongoing dispute between the appellant and his neighbours, Mr Swan and Miss Longmore, about their adjoining fence. The neighbours have made a number of complaints about the appellant to the respondent and it was in relation to the complaint about the incident on 13 July 2014 that the respondent issued the Termination Notice, to the appellant, under s 87 of the RT Act. The Termination Notice was issued on 17 September 2014 and asserted the appellant had breached "Term 7" of his residential tenancy agreement. The terms of subclause 7.2 and 7.3 were also set out in the Notice. The particulars of the alleged breach were stated to be: On 13 July 2014 at approximately 3.50pm, you were seen tying large sheets of metal to the fence adjoining your neighbour's property at …. When approached, you abused your neighbour yelling some very foul language, calling him a pervert and a paedophile. You threatened your neighbour with pliers, using them like a gun saying "I'm going to get you" and "you won't be here long." You continued to tie the metal to the fence with wire. When your neighbour cut it off, you erupted with more verbal abuse, more foul than previously before. For these reasons you are required by the landlord to give vacant possession of the premises at … on 12 October 2014 being a date no earlier than fourteen (14) days after the date of service of this Notice. 1. On the basis of the Notice of Termination issued to the appellant, on 14 October 2014, the respondent lodged its application for termination of the residential tenancy agreement. In that application, the respondent sought an order under s 187(1)(a), an order under s 87 and an order under s 187(1)(i) of the RT Act. 2. For the reasons set out below we are satisfied the appellant has established two errors of law and that the decision should be set aside and remitted for redetermination. Consideration 1. In our view the appellant's appeal can be disposed of on the grounds set out in Ground 2 (failure to take into account a relevant consideration) and Ground 5 (inadequacy of reasons). Ground 2 – failure to take into account a relevant consideration 1. It is well accepted that a question as to whether the Tribunal failed to take into account relevant (i.e. mandatory) considerations is a question of law: see Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 (Porter), at [26] to [29], John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast), at [18] and Stewart v Yarrawarra Aboriginal Corporation [2015] NSWCATAP 4, at [94]. 2. The parties do not dispute that the exercise of its discretion under subs 87(4) of the RT Act, the Tribunal was required to have regard to the matters in subs 152(1), in so far as those matters were relevant to the circumstances before it: see Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28, at [29] to [31], Mc Geown v NSW Land and Housing Corporation [2015] NSWCA 23, at [30] and Kendray v New South Wales Land and Housing [2015] NSWCATAP 139, at [34]. 3. What is in dispute is whether the Tribunal did have regard to subs 152(1) at all. The appellant submits it can be inferred from the Tribunal's reasons for decision that it did not consider this section let alone the matters referred to in that section, because it made no mention of them. Nor was that section raised during the course of the hearing. 4. The respondent submitted that specific findings of the Tribunal disclosed that it had taken into account the matters set out in subs 152(1)(a), (b) and (e) of the RT Act. For example, the respondent argued that the "serious adverse effects on the neighbouring residents" in subs 152(1)(a) was "subsumed" in the Tribunal's findings of: (i) the appellant behaved abusively towards the neighbours, (ii) the appellant angers easily and is given to outbursts of foul and abusive language, (iii) the appellant was abusive towards constables who attended the premises and (iv) the appellant made statements that could be interpreted as death threats to neighbours. 5. In our view, it is not possible to discern from the Tribunal's reasons for decision that it had regard to subs 152(1) of the RT Act and the matters prescribed therein. We agree this section only requires the Tribunal to have regard to those matters within subs 152(1) that are relevant to the circumstances before it. The respondent, as we have noted agreed some matters were relevant. In our view they were all relevant. Yet the Tribunal made no reference to the section. It did not even describe the residential tenancy agreement between the appellant and the respondent as being a social housing tenancy agreement falling within Part 7. Instead, the language of the Tribunal's reasoning is consistent with the terms of subs 87(4) (see first sentence under the heading "adjudication") and the discretionary factors set out in subs 87(5) of the RT Act (see the conclusion). 6. As the Tribunal was required to consider the matters in subs 152(1) of the RT Act, we find the Tribunal erred in law in failing to do so. Accordingly, we are satisfied that the appellant has established Ground 2 in his Notice of Appeal. 7. On the basis of our findings above, it is unnecessary to deal with the other matters relied on by the appellant in regard to Ground 2 (i.e. failing to take into account each of the matters contained in the list of factors set out in Adavale Realty Pty Ltd v Williams [1996] NSWRT 190 (Avadale) and the principle that social housing tenancies should be preserved where possible). 8. Nevertheless, we note the Adavale list of factors are those based on the decision of Rolfe J in Swain and Anor v Residential Tenancies Tribunal of New South Wales and Anor (Unreported, NSWSC, March 1995) BC9504317. The issue in that case was the meaning of subs 64(2)(c) of the repealed Residential Tenancies Act 1987. Subsection 64(2) gave the then Residential Tenancy Tribunal the power to make an order terminating a residential tenancy agreement, on the application of a landlord, in any of the prescribed circumstances set out in the paragraphs to that subsection. Paragraph 64(2)(c) was a catchall ground, namely "that, having considered the circumstances of the case, it is appropriate to do so." At issue was the proper construction of that paragraph. Rolfe J found that the words permitted a far more wide-ranging enquiry than the one restricted to a termination on the basis of a failure to comply with the formalities (i.e. breach) of the tenancy agreement. It was in this context that his Honour referred to a number of factors that might be relevant in determining whether to exercise the discretion to terminate a residential tenancy agreement. Ward J in Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40, at [448], adopted the same list of factors as the relevant legislative provision in that case was also subs 64(2)(c) of the repealed Residential Tenancies Act 1987 and not ss 87 or 152 of the current RT Act. This does not mean that one or more of the factors in the Adavale list, if relevant, is excluded from consideration under the current RT Act. However, they are not mandatory. 9. In support of his argument that, at law, there exists a presumption the appellant relies on a number of decisions of the Civil and Administrative Tribunal of the Australian Capital Territory (ACT Tribunal). The principle, however, arises from the objects of the Housing Assistance Act 2007 of the Australian Capital Territory (ACT) and the relevant "Housing Assistance Public Rental Housing Assistance Program 2010 (No 1)" of the ACT. In Commissioner for Social Housing v Radavonov [2011] ACT ACAT 12 at [37], the ACT Tribunal noted that prominent among the objects of the Housing Assistance Act 2007 (ACT) is the provision of "secure and affordable" housing. It was in this context that the ACT Tribunal said that it was: … [self] evident that security of tenure requires making all reasonable endeavours to save tenancies rather than evicting people from their homes. Evictions are a last resort to be employed only in those cases where there is a clear repudiation by a tenant. …repudiation arises where the tenant has determined that he or she will not comply with the terms of the agreement. Thus there is a basic distinction between the case of "cannot" and "will not" comply with the terms of the residential tenancy agreement. 1. The appellant has not pointed to a similar construction, or principle having been applied to a social housing tenancy agreement under the RT Act. Accordingly, we do not accept the appellant's argument as to the existence of a presumption that social housing tenancy should be preserved where possible. What is applicable are the matters set out in s 152 of the RT Act, which the Tribunal has failed to do. Ground 5 – Inadequacy of reasons 1. A failure to provide proper reasons is also a question of law: see Collins v Urban [2014] NSWCATAP 17 at [47] ff, Porter at [32] and Prendergast at [14]. 2. Subsection 62(1) of the NCAT Act requires the tribunal to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. Subsection 62(2) provides that a party may, within 28 days of being given notice of a decision of the tribunal, a right to request the tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided. Subsection 62(3) prescribes what is to be set out in a statement of reasons. That subsection is in the following terms: 62 Tribunal to give notice of decision and provide written reasons on request (1) … …. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. 1. While the Tribunal's reasons for decision in this matter were not provided under s 62 of the NCAT Act, the Appeal Panel has accepted that published reasons for decision should also set out the matters prescribed in sub 62(3) of the Act: see Collins v Urban, at [54] to [56]. 2. In Stewart v Yarrawarra Aboriginal Corporation [2015] NSWCATAP 4, at [94], the Appeal Panel followed the reasoning in Collins v Urban and summarised the relevant principles, which included the following: (3) The findings of fact and legal reasoning of the decision maker at first instance must be discernible within the reasons to facilitate any appeal: Collins at [49], citing Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 (per Moffitt JA, Manning JA agreeing); (4) Any such decision ought include not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision: Collins at [50] citing Pettit and Carlson v King [(1947) 64 WN (NSW) 6] per Jordan CJ in delivering the decision of the Full Court. (5) Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done, thus working a miscarriage of justice … 1. As we have noted, the appellant submits the Tribunal failed to provide adequate reasons in two respects, namely in regard to its decision that the appellant breached the agreement and the decision that the breach was sufficiently serious to justify termination. In light of our findings above, it is unnecessary to deal with the second aspect. 2. In regard to the first aspect, the appellant argues that while the Tribunal correctly identified that its task was to determine whether there had been a breach of the tenancy agreement and the breach was "sufficiently serious" to justify termination it either failed to apply the test or did not provide "the reasons by which he determined that the facts he found met the test." In this regard the appellant contended the Tribunal had erred in "progressing directly from findings of fact to a conclusion" and thereby bypassing the essential step of providing reasons as required under subs 62(3)(c) of the NCAT Act. Of particular concern to the appellant is the Tribunal's failure to set out in its reasons for decision the following: 1. its understanding, or construction of the meaning of subclause 7.2 and 7.3 of the agreement. In particular, its understanding of the meaning of "nuisance" in subclause 7.2 and the meaning of "interfere" in subclause 7.3; 2. the specific instances of conduct, if any, that gave rise to the finding that the appellant had breached the agreement; and 3. which clause of the agreement had been breached - was it subclause 7.2 or subclause 7.3, or was it both. 1. The appellant contended that the concept of "nuisance" in subclause 7.2 had a technical legal meaning and that it can be inferred that the term was deliberately used in the standard residential tenancy agreement to incorporate that legal meaning. In that regard the appellant noted that nuisance, in a private context, was the "wrongful interference with another's enjoyment of his land or premises": Elston v Dore (1982) 149 CLR 480, p 487. 2. The respondent submitted that while the applicant had correctly referred to the principles set out in Collins v Urban and Stewart there were a number of other principles that needed to be borne in mind. These included: 1. the matter should not be approached with an "eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272; 2. substantial compliance with the obligation to give reasons is required, not perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal [1982] FCA 58; 3. the reasons as a whole should be considered rather than any isolated part of them. If the decision as a whole discloses sufficient consideration of the important facts, evidence and law, then the court will not uphold the appeal: O'Brien v Repatriation Commission (1984) 1 FCR 472. 1. While there is no dispute about the application of the above principles, we agree with the appellant that the Tribunal failed to give adequate reasons in regard to its finding that the appellant had breached the agreement. That is, there is no explanation by the Tribunal as to how it decided that its findings about Mr Adam's conduct on the day in question amounted to a breach and which particular clause of the agreement had been breached. As we have noted above, the Tribunal merely concluded that the "conduct" of Mr Adams "constituted a breach of the residential tenancy agreement." While the Tribunal had noted that the application before it was based on subclause 7.2 and 7.3 of the agreement the Tribunal did not set out its understanding of the meaning of these provisions, or its reasoning in reaching a finding that the appellant's conduct amounted to a breach on one or both of these subclauses. 2. As we have noted above, the obligations in subclause 7.2 and 7.3 of the agreement between the parties is consistent with those prescribed in subs 51(1)(b) and (c) of the RT Act and are included as a term in all residential tenancy agreements, not just social housing tenancy agreements. 3. We agree with the appellant that the term "nuisance", as it appears in subs 51(1)(b) of the RT Act, is a reference to the legal concept of a private nuisance tort. That is, it is a reference to conduct of the kind that is likely to give rise to a private nuisance liability: see Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1Qd R 1, p 12. As explained in the article of Amy M Rissman "The Price of Quiet Enjoyment" (1999) 7 APLJ 155, provisions such as these have become common in all leases, including commercial leases so that a landlord can control conduct of a tenant that may give rise to a private nuisance liability and also to protect the landlord from any potential private nuisance liability caused by the tenant in his/her use of the premises: see also Caroline Hunter, Judy Nixon and Michelle Slatter "Neighbours Behaving Badly: Anti-Social Behaviour, Property Rights and Exclusion in England and Australia" Macquarie Law Journal (2005) Vol 5, p 149. 4. In "Fleming's The Law of Torts" (Ed Carolyn Sappideen and Prue Vines 10th edition, Law Book Company 2011), the features of a common law private nuisance tort is described as follows: Because of the large variety of situations encompassed by the term, the crucial point is easily missed that nuisance is a field of tort liability rather than any particular type of tortious conduct. Its unifying element resides in the general kind of harm caused, not in any particular kind of conduct causing it. …, private nuisance refers to invasions of an occupier's interest in the beneficial use and enjoyment of land. It is this latter branch which deals, primarily, with conflicts over competing uses of land, defining obligations of neighbourliness … Another perplexing feature is that the word "nuisance" is commonly used in several distinct senses. It is sometimes used in a factual sense to describe the human activity or physical condition which is harmful or annoying, as when it is said that a rubbish heap or pressure drilling is a nuisance. At other times, it denotes the harm caused by such an activity or condition, emphasis being less on the cause than the type of harm resulting from it. This usage is preferable because the distinguishing aspect of nuisance, …, is that it looks to the harmful result rather than to the kind of conduct causing it. In either of the abovementioned senses, the term does not connote legal liability, and the question remains whether a particular "nuisance' is actionable. … 1. The principles of a private nuisance were recently considered by the Western Australia Court of Appeal in Marsh v Baxter [2015] WASCA 169. At [243] to [257] the Court relevantly said: 243 The gist of private nuisance is the interference with an occupier's use and enjoyment of their land. … 244 Nuisance covers property damage and personal injury (compendiously referred to hereafter as "physical damage") and also extends to non-physical damage to an occupier's use and enjoyment of land, including that caused by air pollution, vibration, noise or dust. …. 245 The interference, in … private nuisance, must be both substantial and unreasonable. This is in recognition of the fact that the existence of communities depends on the principles of give and take, and live and let live. 246 As stated in Fleming's The Law of Torts (9th ed): The paramount problem in the law of nuisance is therefore to strike a tolerable balance between conflicting claims of neighbours, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interests of the other … Reasonableness in this context is a two-sided affair … It is not enough to ask: is the defendant using his property in what would be a reasonable manner if he had no neighbour? The question is, is he using it reasonably, having regard to the fact that he has a neighbour? (467). 247 The test of whether an interference is unreasonable is objective. … 248 In making a judgment as to whether interference is unreasonable, regard is had to a variety of factors including the nature and extent of the harm or interference, the social or public interest value in the defendant's activity, the hypersensitivity (if any) of the user or use of the plaintiff's land, the nature of established uses in the locality, whether all reasonable precautions were taken to minimise any interference, and the type of damage suffered: Southern Properties [118]. 249 An abnormally sensitive person (or use) is not entitled to additional protection by reason of his or her sensitivity: Munro v Southern Dairies Ltd[1955] VLR 332, 335. Thus, where a use to which a plaintiff puts his land is abnormally sensitive, it would be unfair to allow the plaintiff to enlarge his rights at the expense of the defendant, unless the defendant failed to adopt a precaution which would have made it possible to avoid the damage without appreciable prejudice to his own interests …. 1. In Stockwell v Victoria [2001] VSC 497, at [227] and [229], Gillard J said the following in regard to a private nuisance: 227 In his classic article "The Boundaries of Nuisance", (1949) 65 LQR 480 at 489, Professor Newark said - (1) The term 'nuisance' is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land. … 229 As the learned author went on to say, normally, interference with enjoyment must have some degree of permanence. That which is temporary, usually is not a nuisance. But he went on to express an exception in these terms - But an exception is recognised in those cases where the defendant has accumulated on his land something likely to do damage if it escapes. 1. In summary, the main features of a private nuisance are: 1. an interference, by the defendant (tenant) in his/her use of his/her land (premises), with an occupier's (neighbour's) use and enjoyment of his/her land (premises) – an interference can be physical damage to property or person and non-physical damage (e.g. damage caused by air pollution, vibration, noise and dust). However, the damage must at all times be to the occupier's (neighbour's) use and enjoyment of his/her land (premises); 2. the interference must be substantial and unreasonable; and 3. the test as to whether the interference is substantial and unreasonable is objective. 1. Subs 51(1)(c) of the RT Act also deals with an "interference" with a neighbour of a tenant. In our view, the words "interfere" and "interference" should be given their ordinary meaning. 2. However, in subs 51(1)(c) the interference is with the reasonable peace, comfort or privacy of the neighbour and not with the neighbour's use and enjoyment of his/her premises, as is required in a private nuisance. The test is nevertheless also an objective one, based on the circumstances. 3. Subclause 7.3 is of similar effect to subs 51(1)(c) of the RT Act. Conclusions 1. For the reasons set out above, we are satisfied that the appellant has established that the Tribunal erred in law in that it: (a) failed to take into a relevant consideration, namely s 152 of the RT Act and (b) failed to provide adequate reasons for its decision that the appellant breached the residential tenancy agreement. In light of these errors it is appropriate to allow the appeal and set aside the decision of the Tribunal and remit the matter for reconsideration in accordance with law. 2. In our view it is also appropriate to remit the matter for reconsideration by a differently constituted Tribunal. 3. Accordingly, we order: 1. The appeal is allowed. 2. The decision of the Tribunal is set aside. 3. The matter is remitted for reconsideration in accordance with law and by a differently constituted Tribunal. ********** 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 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: 09 February 2016