Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rainsford v NSW Land and Housing Corporation [2016] NSWCATAP 260 Hearing dates: 7 November 2016 Date of orders: 30 November 2016 Decision date: 30 November 2016 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President J Kearney, Senior Member Decision: The appeal is dismissed. Catchwords: RESIDENTIAL TENANCIES – procedural fairness – reasonable opportunity to present case – where opportunity, even if given, could have made no difference to the outcome STATUTORY CONSTRUCTION –meaning of the phrase "reasonable peace, comfort or privacy of the tenant in using the residential premises" and meaning of the phrase "cause or permit" in s 50(2) of the Residential Tenancies Act 2010 (NSW) – requirement for quiet enjoyment must relate to the use of the residential premises – to have permitted a breach of s 50(2) the landlord must have had the power to prevent the breach of quiet enjoyment Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 38, s 80(2) and Sch 3 Dividing Fences Act 1991 (NSW) Privacy and Personal Information Protection Act 1998 (NSW), s 55 Residential Tenancies Act 1995 (SA), s 90 Residential Tenancies Act 2010 (NSW), 50(2), s 187 Cases Cited: Adelaide City Corporation v Australasian Performing Rights Association (1928) 40 CLR 481 Capric v Department of Housing [2001] NSWRT 13 (22 January 2001) Eliezer v Residential Tribunal [2001] NSWSC 1092 South Australian Housing Trust v B. [2005] SARTT 5 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Category: Principal judgment Parties: James Rainsford (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Counsel: D Woods (Respondent) Solicitors: James Rainsford (Appellant in person) File Number(s): AP 16/39362 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 12 August 2016 Before: G Bryant, General Member File Number(s): SH 16/34589 REASON FOR DECISION Overview 1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal dismissing Mr Rainsford's application for steps to be taken and compensation paid by a landlord, NSW Land and Housing Corporation (LAHC), under the Residential Tenancies Act 2010 (NSW) (RT Act). LAHC is a statutory body responsible for social housing dwellings in New South Wales. 2. Mr Rainsford's application was for orders that LAHC: 1. remove his name from a warning list for anti-social behaviour; 2. require a neighbour to fix a hole in the fence and remove a bracket which makes a noise when the wind blows; and 3. compensate him for allowing neighbours to erect a screen on their property which blocks his view. 1. In his application to the Consumer and Commercial Division, Mr Rainsford applied for a remedy under s 187(1)(e) and, impliedly s 187(1)(c) of the RT Act: (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: … (c) an order for the payment of an amount of money, … (e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement, 1. The Tribunal dismissed the application. Mr Rainsford appeals on questions of law only: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b). We have dismissed the appeal because none of Mr Rainsford's grounds of appeal reveal an error of law. Removal of name from warning list Background 1. On 29 June 2016 LAHC wrote to Mr Rainsford telling him that they had received a complaint alleging that he had engaged in anti-social behaviour. The letter requested that he contact them and attend an interview. If Mr Rainsford was unavailable to attend the interview, the letter stated that he could respond to the complaint in writing. Mr Rainsford must have attended the interview because on 6 July 2016, LAHC found the complaint to have been substantiated, partially on the basis of Mr Rainsford's admissions. Mr Rainsford was then given an anti-social behaviour warning notice. 2. Initially Mr Rainsford claimed that this action breached the 'quiet enjoyment' provision in s 50(2) of the RT Act: 50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. Maximum penalty: 10 penalty units. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement. 1. Mr Rainsford made it clear on appeal that the breach was not about giving him the warning notice but demanding that he leave the comfort of his own home to attend an interview. He also maintained that LAHC had breached the Privacy and Personal Information Protection Act 1998 (NSW) and its own policies on privacy and that the content of the complaint was hearsay. Tribunal's decision 1. The Tribunal framed the issue as being whether the matter, if proved, could constitute a breach of quiet enjoyment provided for in s 50(2) of the RT Act. The following reasons were given for concluding that it could not: Section 50 comprises provisions directed to protecting a tenant's right to occupy premises without his enjoyment thereof being disturbed. It does not extend to examination and censure of a landlord arising out of processes it may or may not have followed. Neither that nor a landlord's records impact on the tenant's privacy in and about the premises. Should he take issue with the letter, that being another matter altogether, no doubt he can take up the substantive issue raised therein with the landlord. Grounds of appeal 1. Mr Rainsford says that the Tribunal denied him procedural fairness by interrupting him twice and not allowing him to finish his arguments. He said that if he had been given an opportunity, he would have presented information about the meaning of quiet enjoyment. He gave the Appeal Panel a three page document headed "Right to Reasonable Peace, Comfort and Privacy" and said that he would have drawn the Tribunal's attention to paragraph 4.13 of that document which summarises a South Australian Residential Tenancies Tribunal decision - South Australian Housing Trust v B. [2005] SARTT 5: In South Australian Housing Trust v B, the South Australian Residential Tenancies Tribunal held that the 'requirement for peace, comfort or privacy is to be judged objectively by an external standard, and that external standard is the standard of the reasonableness.' Member Rymill went on to describe 'privacy' as 'an inanimate thing that can be breached by prying or eavesdropping, or similar.' In relation to 'comfort', Member Rymill noted that 'it applies to more than the physical ease of a person, and it may well apply to a person's mental faculty. A person may feel uncomfortable because of fear, or apprehension of an imposition. Consideration 1. The proceedings were not recorded so there is no tape or transcript available. LAHC did not tender a statement of Ms Kellie Jackson dated 25 October 2016. In those circumstances the evidence of Mr Rainsford was that the Tribunal did not allow him to finish his arguments about the so-called privacy issue. We accept that evidence. 2. The Tribunal is obliged to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: NCAT Act, s 38(5)(c). Even if Mr Rainsford was not given that, that does not necessarily justify setting aside the decision. If all that happened is that Mr Rainsford was denied an opportunity to make submissions on a question of law, and that issue would inevitably have been decided against him, it would be futile to set aside the decision: Stead v State Government Insurance Commission [1986] HCA 54 at [10]; (1986) 161 CLR 141 at 145. 3. Consideration of the decision in South Australian Housing Trust v B. [2005] SARTT 5, or any of the other material in the document Mr Rainsford provided, could have made no difference to the Tribunal's decision. In that case the South Australian Residential Tenancies Tribunal terminated Mrs B's tenancy because her shouting and swearing was interfering with the "reasonable peace, comfort, or privacy" of another person: Residential Tenancies Act 1995 (SA), s 90. Member Rymill discussed the meaning of this phrase, which is also the phrase used in the NSW legislation: I do not propose to examine in details (sic) the definition of comfort, nor the definition of privacy. I regard privacy as being an inanimate thing that can be breached by prying or eavesdropping, or similar. I believe that the word "comfort" applies to more than the physical ease of a person, and it may well apply to a person's mental faculty. A person may feel uncomfortable because of fear, or apprehension of an imposition. 1. None of this reasoning or Member Rymill's observations about reasonableness helps Mr Rainsford. This was not a case of "prying or eavesdropping or similar". While Mr Rainsford may have felt uncomfortable because of fear or apprehension about the proposed interview, s 50(2) relates to the reasonable peace, comfort or privacy of the tenant "in using the residential premises". Leaving "the comfort of his own home" does not relate to Mr Rainsford's use of those premises. 2. Our conclusion is supported by a decision of the former Consumer Trader and Tenancy Tribunal in Capric v Department of Housing [2001] NSWRT 13 (22 January 2001). The Tribunal found that correspondence and interviews by the landlord arising from complaints about the tenant's conduct were not a breach of the tenant's quiet enjoyment. 3. The Consumer and Commercial Division of the Tribunal has no jurisdiction to determine an application under the Privacy and Personal Information Protection Act 1998 (NSW). The Administrative and Equal Opportunity Division has that jurisdiction but only where a person has first applied for an internal review of the conduct: Privacy and Personal Information Protection Act 1998 (NSW), s 55; Civil and Administrative Tribunal Act, Sch 3. Nor does a breach of the LAHC's privacy policies necessarily constitute a breach of s 50(2) of the RT Act. 4. It follows that any denial of procedural fairness in failing to give Mr Rainsford an opportunity to draw the Tribunal's attention to the decision in South Australian Housing Trust v B. [2005] SARTT 5 would not have made any difference to the result. Repairing hole in boundary fence and preventing noise Background 1. In his original application, Mr Rainsford requested an order that LAHC require the neighbour to fix the hole in the fence. He said that the hole was caused by the neighbour drilling the fence to latch a gate. According to Mr Rainsford, the gate bangs and is ripping a larger hole in the fence. He also said that LAHC should require the neighbour to remove a bracket that attaches a privacy screen to the fence because it makes a noise when the wind blows. Tribunal's decision 1. The Tribunal's reason for concluding that there was no breach of s 50(2) of the RT Act in relation to the noise was that LAHC cannot exert control over the neighbour. The Tribunal quoted a decision of the Supreme Court, Eliezer v Residential Tribunal [2001] NSWSC 1092 at [36], where McClelland J held that quiet enjoyment does not "… require the landlord to take steps to control the activities of the occupants of other units within a strata complex". McClelland J went on to say that, in his opinion, "the obligation … is confined to matters over which the landlord has physical and legal control, but does not extend to an obligation which requires the landlord to take proceedings or other steps to control the activities of strangers". In this context, "strangers" means people who are not a party to a residential tenancy agreement with the landlord. 2. The Tribunal also mentioned Mr Rainsford's claim that LAHC should require the neighbour to fix the hole. The Tribunal concluded that since LAHC has no physical or legal control over the neighbour, it could not do so. Grounds of appeal 1. Mr Rainsford's ground of appeal was that the claim is covered by the Dividing Fences Act 1991 (NSW). He reasoned that with a simple letter of demand from LAHC, the neighbour could be required to fix the fence. Alternatively, Mr Rainsford said that it was reasonable for LAHC to repair the hole and how they did it was up to them. Consideration 1. Even if LAHC has a right under the Dividing Fences Act, the Tribunal has no jurisdiction to require a landlord to exercise that right. 2. If Mr Rainsford is now claiming that LAHC should repair the fence, then that is a different claim from the original claim he made under s 187(1)(c) of the RT Act. The Tribunal made no error in failing to address a claim which Mr Rainsford did not make. Erection of screen on neighbouring property Background 1. In the original application Mr Rainsford sought compensation for allowing the neighbour to erect a screen which blocked the view from his premises. In evidence before the Tribunal was letter dated 5 August 2016 from the Albury City Council. That letter advises LAHC that Mr Rainsford's neighbour has applied to erect a privacy screen and that the application had been granted for a period of 12 months. Tribunal's decision 1. The Tribunal's reasons for dismissing this claim were as follows: The tenant seeks an order that the landlord compensate him for the loss of his view because it allowed a neighbour to erect a screen. He alleges that the landlord did not respond to communication from Albury City Council advising of the proposed screen by objecting to the proposal. He offered no evidence regarding any communications between Council and landlord. Indeed, there is no evidence that the landlord was a party to the screen being erected and a letter from Albury City Council to the landlord and which was tendered by the landlord, makes it quite clear that approval for the screen was a decision of the Council and in no way predicated on the consent of the landlord. The Tribunal makes no comment on its jurisdiction to make the order sought even if Mr Rainsford's allegation is correct Ground of appeal 1. According to Mr Rainsford, the Tribunal did not take into account his oral evidence of conversations he had with LAHC and the Albury City Council. On the basis of that evidence Mr Rainsford submitted that the Tribunal should have concluded that the Council notified LAHC about the proposed construction of the screen but LAHC failed to object. According to Mr Rainsford, if LAHC had objected the Council may not have given approval for the erection of the screen. 2. In written submissions Mr Rainsford reasoned that by failing to object to the proposal to erect a screen, LAHC had breached s 50(2) of the RT Act because it had permitted an interference with his reasonable peace, comfort or privacy. Consideration 1. The Tribunal's conclusion was based on the fact that Mr Rainsford had not provided any evidence that LAHC had failed to object to the proposal to erect a screen. Even if the Tribunal had accepted Mr Rainsford's evidence, and found that they had not objected, there would still have been no breach of s 50(2). That is because the words "cause or permit" in s 50(2) require that the LAHC had the power to prevent the act from occurring. That conclusion is based on a High Court decision of Adelaide City Corporation v Australasian Performing Rights Association (1928) 40 CLR 481. Knox CJ held at 489 that "permission", in an analogous context, means that the party "(1) knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done; (2) has the power to prevent it; (3) makes default in some duty of control or interference arising under the circumstances of the case; and (4) thereby fails to prevent it". 2. In this case, the LAHC had no power to prevent the Council from approving the erection of the screen. They may have been in a position to influence that decision but that is not sufficient. Consequently, Mr Rainsford's claim for compensation for loss of his view because of a breach of s 50(2) would not have succeeded even if he had been able to prove that LAHC did not lodge an objection. Costs 1. We made directions that Mr Rainsford was to file and serve any application for costs by 16 November 2016. No application was made. Order The appeal 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 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: 30 November 2016