The applicant submitted that the first respondent's behaviour was provocative towards him, that his behaviour was not as extreme as suggested by the first respondent and denied some of the allegations made against him by the first respondent. The first respondent relied upon the same submissions regarding the applicant's conduct as in the original application. The second respondent remained unsupportive of an order evicting the applicant because of their characterisation of the conduct as minor anti-social behaviour.

Held, setting aside and substituting the decision under review:

• The applicant caused an interference with the peace, comfort or privacy of the first respondent under s 90(1)(c) of the Act.
• The test to be applied when dealing with an application that is not supported by the landlord requires exceptional circumstances which is a higher test than that which would usually be applied by the Tribunal.
• Exceptional circumstances do not exist justifying an order for vacant possession.

Internal review - Residential Tenancy - Interested person application - Tenant caused or permitted - Interference with reasonable peace, comfort or privacy - Nuisance

South Australian Civil and Administrative Tribunal Act 2013 s 43, s 70

Residential Tenancies Act 1995 s 90, s 99

Re AKS [2016] SACAT 19

Curtis v Stutley [1950] SAStRp 20; (1950) ALR 888

Spencer v Silva [1942] SAStRp 55; [1942] SASR 213

Stokes v Cooper & Lemon [1996] SARTT 24 January 1996

Kennaway v Thompson [1980] EWCA Civ 1; 1981 QB 88

Ms A Heaven and Ms P O'Brien appeared for the applicant

The first respondent appeared in person with support person V Summers

Mr F Catalano appeared in person for the second respondent

1. This is an application for the internal review of an order made by the Tribunal on 24 November 2022 in matter number 2022/SH006732 (the original Order).
2. The original Order required the applicant tenant (Mr Heaven) to vacate the property on 22 December 2022. On 19 December 2022 Mr Heaven lodged an application for internal review of the original Order and sought a stay of the original Order.
3. On 21 December 2022 an order was made by the Tribunal to stay the original Order pending the outcome of the internal review process.
4. On 5 January 2023 I made a further order to stay the original Order on the basis of a significant change in circumstances. The significant change in circumstances was an offer by the respondent landlord, the South Australian Housing Authority (SAHA), to relocate Mr Heaven, (Mr Heaven had already indicated a willingness to be relocated). I adjourned further consideration of the application.
5. In the order I made on 5 January 2023, the order for the stay of the original Order was subject to the right of Mr Rankine[1] or SAHA to contact the Tribunal and ask for the matter to be listed for another hearing. Mr Rankine did contact the Tribunal and asked for the matter to be listed for another hearing and that hearing was conducted on 30 January 2023.
6. On 30 January 2023 I made an order granting a further stay for the reasons outlined in that order. However, I adjourned the application so that I could monitor the progress of the matter. At the adjourned hearing, SAHA advised me that they had not been in a position to re-locate Mr Heaven. I decided that it was not appropriate to further delay the hearing of the application for internal review, and so the matter was listed for a full hearing.

Mr Heaven's non-attendance at the review hearing

1. Mr Heaven did not attend the review hearing. I am satisfied he was aware of the hearing. However, he was represented by his aunt and sister at the hearing. I decided to proceed in his absence.[2]

The admission of further evidence as part of the review process

1. Both parties lodged written submissions as part of the review process. Mr Rankine also lodged videos.
2. Section 70(4) of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) states:

On a review, the Tribunal will examine the decision of the Tribunal at first instance on the evidence or material before the Tribunal at that time but the Tribunal may, as it thinks fit, allow further evidence or material to be presented to it.

3. I consider it is appropriate to apply the approach taken by his Honour Justice Parker in Re AKS,[3] which in summary is that:
   • The Tribunal should turn its mind to whether the material was reasonably available at the original hearing;
   • The Tribunal should take a more flexible approach than that which would ordinarily be taken in the courts;
   • The most important consideration is whether the material would assist the Tribunal in arriving at the correct and preferable decision - if so, then it is likely that the Tribunal should admit the new material.
4. In my view, the fresh evidence is useful for me to come the correct or preferable decision and so I have decided to allow it.

1. Mr Heaven has resided at the property at 2/650 Brighton Road Seacliff Park (the property) since 2016.
2. Mr Rankine moved into his property at 1/260 Brighton Road Seacliff Park in 2020. The properties are adjacent to one another.
3. Both properties are owned by SAHA (and SAHA is the landlord of both). There are no other immediate neighbours to either property and each of Mr Heaven and Mr Rankine reside in their properties alone.
4. In about August 2022, Mr Rankine applied to SAHA for a transfer to another property, but he has not been offered a tenancy at another property.
5. Mr Heaven requested a transfer to another property about two years ago, but he has not been offered a tenancy at another property.
6. The original Order was made on the basis of an application by Mr Rankine (a neighbour), in which he sought an order terminating the tenancy of Mr Heaven due to his disruptive conduct. SAHA did not support the application to terminate Mr Heaven's tenancy and SAHA's position has remained the same throughout the review process.

1. An application for internal review is made under s 70 of the SACAT Act. Section 70 of the SACAT Act provides that on review, the Tribunal must make the correct or preferable decision taking into account the evidence before the Tribunal in the original hearing, giving appropriate weight to the original Order and taking into account any other evidence the Tribunal considers is relevant and appropriate to take into account as part of the review process. Any application for review necessarily involves an application for leave.
2. Mr Rankine's application was made under s 90 of the Residential Tenancies Act 1995 (the RTA). Section 90 of the RTA relevantly provides as follows:

(1) The Tribunal may, on application by an interested person, terminate a residential tenancy and make an order for possession of the premises if it is satisfied that the tenant has - > > ....

(b) caused or permitted a nuisance; or

(c) caused or permitted an interference with the reasonable peace, comfort or privacy of another person who resides in the immediate vicinity of the premises.

(2a) However [where the application is not made by the landlord] -

(a) the Tribunal must not make an order under this section unless the landlord has been given a reasonable opportunity to be heard in relation to the matter; and

(b) if the landlord objects to the making of an order under this section, the Tribunal must not make an order unless the Tribunal is satisfied that exceptional circumstances exist justifying the making of the order in any event.

1. There is no dispute that Mr Rankine's property is immediately adjacent to the property of Mr Heaven, and so Mr Rankine falls within the definition of "interested person" within s 90(3) of the RTA (and therefore he was entitled to make the original application).
2. In the original Order, the Tribunal found that:
   • Mr Heaven's conduct at the property constituted a nuisance within the meaning of s 90(1)(b) of the RTA;
   • Mr Heaven's conduct at the property interfered with the reasonable peace, comfort or privacy of Mr Rankine within the meaning of s 90(1)(c) of the RTA;
   • Although the landlord did not support the application, there were exceptional circumstances which justified the making of an order in any event;
   • In all the circumstances, the tenancy should be terminated.
3. Accordingly, there are three questions which must be answered:

• Mr Heaven's actions constitute a nuisance within the meaning of s 90(1)(b) of the RTA; or
• Mr Heaven's actions caused or permitted an interference with Mr Rankine's reasonable peace, comfort or privacy within the meaning of s 90(1)(c) of the RTA?

b) If so, are there exceptional circumstances which would justify the making of an order terminating the tenancy?

c) If so, in all the circumstances of this matter, should the tenancy be terminated?

Question 1: Does the evidence establish that Mr Heaven's actions constitute a nuisance under s 90(1)(b) of the RTA or are in breach of Mr Rankine's reasonable peace, comfort or privacy under s 90(1)(c) of the RTA?

1. Mr Rankine submitted that:
   • For a period of about two years, Mr Heaven has verbally abused him including making racist remarks such as-
     • You black bastard;
     • You are a fat bastard;
     • Kill yourself;
     • That black stuff is bullshit.
   • Mr Heaven engages in loud, disruptive behaviour at all hours of the day and night;
   • Mr Heaven routinely uses profanities towards him as evidenced by the videos he submitted;
   • He has reported an incident of alleged assault by Mr Heaven to SAPOL and they are investigating it and as far as Mr Rankine understands, it is likely that charges will be laid against Mr Heaven;
   • On one occasion (in May 2022), Mr Heaven threatened to kill Mr Rankine and this incident was witnessed by his support worker (as evidenced by the written submission made by the support worker);
   • In addition, Mr Rankine believes that Mr Heaven has used chemicals around his property (ie Mr Rankine's property);
   • On a separate occasion, Mr Rankine believes that Mr Heaven broke into his property.
2. Ms Heaven and Ms O'Brien submitted that:
   • Since he moved into the property, Mr Rankine has been threatening that he would have Mr Heaven evicted;
   • He has regularly engaged in provocative behaviour towards Mr Heaven;
   • Mr Rankine has made numerous calls to SAPOL and SAPOL have informed Mr Rankine not to engage in provocative behaviour towards Mr Heaven;
   • Mr Heaven acknowledges using some "bad language" towards Mr Rankine, but says that his behaviour is not as extreme as suggested by Mr Rankine.
3. In his written submission, Mr Heaven:
   • denied having assaulted Mr Rankine;
   • said that Mr Rankine regularly slams doors in his house to provoke Mr Heaven and verbally abuses Mr Heaven;
   • denied that he had used poison near Mr Rankine's property.
4. In their submissions during the original hearing and in the review hearing, SAHA said that Mr Rankine's complaints had been investigated and it was found that there was no evidence to substantiate Mr Rankine's allegations that Mr Heaven had been using poison in the vicinity of Mr Rankine's property and no evidence to substantiate Mr Rankine's allegations that Mr Heaven had broken into his property.
5. In the review hearing, Mr Catalano said that in September last year, Mr Heaven was issued with a first strike for anti-social behaviour, and he was required to sign an anti-social behaviour agreement.
6. In the review hearing, Mr Catalano said that SAHA accepts that there is acrimony between the tenants, but he submitted that SAHA's position is that the allegations against Mr Heaven are "minor anti-social behaviour" and do not warrant an eviction.

1. The original application was dealt with under both s 90(1)(b) and s 90(1)(c) of the RTA. I provide the following summary of my understanding of the principles concerning an application under s 90(1) of the RTA made on the basis of nuisance:[4]

a) The use of the term "nuisance" in s 90(1)(b) of the RTA, applies the term according to its technical, legal meaning. This means that the provision will have a narrower application than the breadth of matters which may be subject to an application under s 90(1)(c) of the RTA.[5] > > b) The law recognizes two categories of nuisance: public nuisance and private nuisance. In the context of s 90(1)(b), the relevant category of nuisance is private nuisance.

c) Within the category of private nuisance, a claim may arise in one of two ways:

• through actual damage to a property for example flooding;
• through interference with personal pleasure, comfort and enjoyment normally derived from the land (eg through noise, smell, dust etc) but such interference must be substantial and unreasonable.

d) It is likely that for a claim based on nuisance to be successful, there should be some connection between the use of the tenant and the actions which constitute the nuisance.[6]

e) To constitute a nuisance, noise must be unusual or excessive - "It must be such as materially to interfere with the ordinary comfort of those living in the neighborhood, according to plain and sober and simple notions."[7]

f) The determination of any question of nuisance, or conduct which has interfered with the reasonable peace, comfort or privacy of another person, will be made on the basis of an objective test:

Those living in towns may be irritated by their neighbours' noisy radios or incompetent playing of musical instruments; and they in turn may be inconvenienced by the noise caused by guests slamming car doors and chattering after a late party....The question is whether the neighbour is using his property reasonably, having regard to the fact that he has a neighbour. The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live.[8]

1. In other words, when dealing with an application under both s 90(1) of the RTA (in which there is no allegation of illegal activity), if the evidence relates to something which arises from the physical use of the land (such as flooding) then s 90(1)(b) of the RTA is appropriate. However, if the evidence relates to disruptive conduct, then as a general rule, the application should be dealt with under s 90(1)(c) of the RTA because that is the primary provision within s 90(1) which addresses the issue of disruptive conduct; it is broader than s 90(1)(b); and it is likely that any conduct will have to be more extreme to meet the test of "nuisance", than the test which would apply under s 90(1)(c).
2. Part of Mr Rankine's application relates to claims about Mr Heaven spraying chemicals on or around Mr Rankine's property - that aspect of the application could have been dealt with under s 90(1)(b) of the RTA.
3. However, I accept SAHA's evidence that they investigated the claims about Mr Heaven using chemicals in the vicinity of Mr Rankine's property, and they were unable to substantiate those claims.
4. The other claims raised by Mr Rankine deal with disruptive conduct and for the reasons outlined above, I consider they are more appropriately dealt with under s 90(1)(c) of the RTA.
5. I am satisfied that Mr Heaven has verbally abused Mr Rankine on a reasonably regular basis and that abuse has included profanities and may also have included racist remarks. I have concluded that on the balance of probabilities, Mr Heaven has behaved in a rude, sometimes aggressive manner and this behavior has been disruptive to Mr Rankine's reasonable peace, comfort or privacy of his property within the meaning of s 90(1)(c) of the RTA.
6. However, in making that finding, I express the following reservations about Mr Rankine's submissions and evidence:

a) even if Mr Heaven made a threat to kill Mr Rankine (and I would not be prepared to place any great weight on a written unsworn statement of a person who did not give evidence in a Tribunal hearing), that threat was made in May last year and there is no evidence to establish that it has been acted upon in any way; > > b) I accept SAHA's submissions that they investigated the claims that Mr Heaven broke into Mr Rankine's property, but they found that the claims were not substantiated. Accordingly, I have not taken this aspect of the claim into account.

Question 2: Are there exceptional circumstances which would justify the making of an order terminating the tenancy?

1. Mr Rankine submitted that exceptional circumstances exist because of:
   • the foul nature of the verbal abuse (ie racist remarks and the use of profanities), the regularity of the verbal harassment by Mr Heaven and the length of time over which this has occurred,
   • the seriousness of the threats to Mr Rankine's personal safety and Mr Rankine referred to the fact that he believes SAPOL are or will be laying criminal charges against Mr Heaven because of his assault of Mr Rankine,
   • the impact of the behaviour on his health - Mr Rankine had provided medical reports which establish that he has had to revert to using medication to manage his anxiety, at a high level;
   • the significant impact of the conduct on his enjoyment of his property - he has had to spend time away from his own property simply to get some peace and quiet - as noted by Ms Summers in the review hearing;
   • the fact that he has explored many avenues to have the issues dealt with (including complaining to the Minister), but he has been unsuccessful.
2. Mr Catalano submitted that there are not exceptional circumstances in this matter for the reasons given by SAHA in relation to their assessment of the matter being no more than minor anti-social behaviour.
3. Ms Heaven and Ms O'Brien submitted that there are not exceptional circumstances and the Tribunal should take into account the following circumstances:
   • Mr Rankine has engaged in provocative behaviour towards Mr Heaven and so he is partly responsible for any disruptive conduct of Mr Heaven;
   • there have been no criminal charges laid against Mr Heaven and Mr Rankine unreasonably calls SAPOL to the property when it is not justified;
   • Mr Rankine has been determined to have Mr Heaven removed from his property almost since he moved in, and this is unreasonable and unfair.

1. I make the following general observations about the nature of the provisions in s 90 which allow the Tribunal to make an order terminating the tenancy even if the application has not been made by the landlord and even if the landlord does not support (or opposes) the application.
2. In my view the requirement for the Tribunal to make a finding that exceptional circumstances exist before the Tribunal may make a determination that the tenancy should be terminated, is a particularly significant consideration in these matters. It is a safeguard which has been placed into the RTA in recognition of the fact that the application is being made by someone who is not a party to the tenancy agreement, and if an order is made, then the Tribunal will be making a decision which has a significant impact on the rights and obligations of the parties under the tenancy agreement - and not on the application of either of them. This is a departure from the usual role of the Tribunal under the RTA which is to deal with disputes between the parties to the tenancy agreement.
3. The Tribunal's power (under s 90 of the RTA) to terminate a tenancy even when such an order is not supported by a landlord, is an acknowledgement that the actions of a person can have a significant impact on their neighbours - and if the impact is sufficiently significant, then the Tribunal has the power to terminate the tenancy even without the support of the landlord - but only where exceptional circumstances exist.
4. However, any order for possession will be made in favour of a landlord and whether or not the order is enforced will be a question for the landlord, as the landlord is the person/entity entitled to request for a bailiff to evict any tenant who remains in possession of a property beyond the possession order of the Tribunal.[9] Where a landlord does not support an application for termination of a tenancy at their property, then the Tribunal is on notice that the landlord may not enforce the order.
5. In order to avoid a situation in which the Tribunal makes an order which is not enforced, under s 90(2), the Tribunal has the power to:
   • require a landlord to take such action as the Tribunal may require, to ensure that the landlord takes possession of the property, and
   • not allow the tenant to occupy the property for a particular period.
6. Accordingly, I consider that if the Tribunal decides that a tenancy should be terminated on the basis of an application made under s 90(1) other than by a landlord, and where the landlord does not support the application, then the correct approach for the Tribunal is to proceed with an enquiry about the landlord's attitude to the enforcement of the order. If the landlord states that they will not choose to enforce the order, then the Tribunal must consider whether or not to make ancillary orders under s 90(2) of the RTA.
7. When considering whether or not to terminate a tenancy when an application has been made under s 90 of the RTA on the basis of disruptive conduct, the Tribunal must apply an objective test which will often include a consideration of factors such as:
   • The seriousness and frequency of the incidents complained of (for example - have there been actual assaults, has an injury arisen);
   • The reliability of the evidence about the complaints:
     • For example, are the complaints being made by a number of neighbours or only one neighbour and if only one neighbour, are the incidents more in the nature of a neighbourhood complaint;
     • Are the complaints supported by independent evidence (such as reports by witnesses);
   • The consequences of the incidents - how serious are the consequences of the incidents.
8. When dealing with an application which is not supported by the landlord, the test to be applied requires exceptional circumstances - a higher test than that which would usually be applied by the Tribunal.
9. I have formed the view that exceptional circumstances do not exist in this matter because:

• The behaviour about which Mr Rankine complains is not sufficiently serious: * The behaviour is essentially verbal abuse - I am not satisfied there has been any physical violence or that there is likely to be any physical violence by Mr Heaven; * SAHA's assessment is that Mr Heaven's conduct is minor anti-social behaviour.
  • There is a lack of independent corroborative evidence about the incidents:
    • SAHA has found that there is no independent evidence to support the more serious claims of Mr Rankine (concerning the chemicals and alleged break in) and therefore I do not consider they should be taken into account;
    • The complaint about the threat to kill involves an incident which occurred 10 months ago (and there has been no attempt by Mr Heaven to carry through with that threat) and in any event, I would place little weight on the unsworn written statement of a witness.
  • In my assessment, Mr Rankine's conduct is a significant contributing factor:
    • Mr Rankine has been provocative towards Mr Heaven - this was evident in the video submitted by Mr Rankine in which Mr Rankine said to Mr Heaven: "You are a piece of shit" and during that video, Mr Rankine was constantly verbally taunting Mr Heaven;
    • During the review hearing, Mr Rankine exhibited inappropriate and rude behaviour towards Ms Heaven when she suggested that she might swap her SAHA accommodation with Mr Heaven (perhaps on a temporary basis) - Mr Rankine said words to the effect of "And so one meth addict will move out but another one will move in".

1. I accept that the situation has adversely impacted on Mr Rankine's mental health, but Mr Heaven also has significant mental health issues.[10]

Question 3: In all the circumstances of this matter, should the tenancy be terminated?

1. As I have found that there are not exceptional circumstances, I would not make an order to terminate the tenancy. However, I will make some observations about the submissions of the parties which would otherwise be taken into account in this regard.
2. It is clear that Mr Rankine and Mr Heaven are incompatible as neighbours. I accept that their situation is a more extreme situation than that of many neighbours who do not get on. However, an order should only be made to terminate his tenancy under s 90 of the RTA in circumstances which meet the tests described above.
3. I agree with Mr Rankine that Mr Heaven's behaviour is unacceptable. However, Mr Rankine has contributed to that behaviour. I accept that Mr Rankine has significant mental health issues but so has Mr Heaven.

1. During the course of the review hearing process, Mr Rankine made submissions to the effect that he had participated in the Tribunal process in an appropriate manner - by lodging documents and submissions when required to do so, and by participating in the hearings. Mr Rankine submitted that the Tribunal should take note of the fact that Mr Heaven had failed to participate in the Tribunal hearings and had not properly participated in the process.
2. I accept that Mr Heaven did not participate in the Tribunal process to the same extent as Mr Rankine. Ms Heaven and Ms O'Brien explained why that occurred in the original hearing. They said that when they arrived to collect Mr Heaven for the review hearing, he was not at home. They said that Mr Rankine had attended at Mr Heaven's property the day before and told him to attend the hearing. They said that Mr Heaven was intimidated by that.
3. As I have noted above, Mr Heaven has a mental illness. I accept that he may be intimidated by the Tribunal process. In any event, in the course of the review, his case was presented by his sister and his aunt. I have made my decision on the basis of all of the evidence and submissions of both parties.

1. For the above reasons, I will set aside the decision under review. This means that the tenancy is reinstated.

The Tribunal grants leave to apply for internal review.

I set aside the order of the Tribunal made on Thursday 24 November 2022 in matter number 2022/SH006732 and substitute the following order instead:

1. [1] Mr Rankine is a neighbour of Mr Heaven, and the applicant in the original matter.
2. [2] Section 43(2)(f) South Australian Civil and Administration Act 2013 allows the Tribunal to proceed in the absence of a party - although it is probably not necessary to rely on that provision in this matter due to Mr Heaven having been represented by family members.

[3] [2016] SACAT 19.

[4] And in particular, I refer to the decision of Stokes v Cooper & Lemon [1996] SARTT 24 January 1996.

1. [5] And therefore, if a party seeks to rely on both provisions, it is more likely they will be able to establish that s 90(1)(c) of the RTA applies - this statement is made on the assumption that the grounds of an application mean that the application could be made under either s 90(1)(b) or s 90(1)(c).

[6] See: Curtis v Stutley [1950] SAStRp 20; (1950) ALR 888.

[7] Spencer v Silva [1942] SAStRp 55; [1942] SASR 213.

[8] (per Kennaway v Thompson [1980] EWCA Civ 1; 1981 QB 88, 94).

1. [10] During the review hearing, Ms Heaven and Ms O'Brien said that Mr Heaven has schizo-affective disorder for which he receives anti-psychotic medication by depot injection.