1. The proceeding is adjourned to a date no later than 31 January 2015 with leave granted to the landlords to renew the proceeding to present evidence to show that the Building Regulations 2006 (Victoria) do not apply to the step and ramp at the rented premises.

1. The proceeding may be renewed by the landlords giving the Principal Registrar notice in writing by no later than 31 January 2015.

1. If the proceeding is renewed by the landlords the proceeding shall be listed for further hearing before Member L. Warren at Dandenong at the earliest available date and time. The Principal Registrar is directed to allow not less than 45 minutes for any further hearing.

1. If the proceeding is renewed the landlords shall file with the Principal Registrar and serve on the tenant no later than 7 days before the date of the further hearing a copy of any documentation to be relied upon by the landlords at the further hearing.

1. If the proceeding is not renewed by the landlords by 31 January 2015 the Principal Registrar is to refer the file to Member L. Warren for the following orders to be made in chambers without any further hearing taking place, namely:

"1. The landlords shall within 30 days of the date of this order carry out such work as is required to make the step and ramp at the rear door of the rented premises compliant with the Building Regulations 2006 (Victoria) with such work to be carried out in a proper and tradesman like manner.

1. The tenant shall make the rented premises reasonably available to the landlords and the landlords' agents and tradesmen for the purposes of complying with this order.

1. The landlords shall now pay the tenant compensation for the period 29 July 2013 to 31 January 2015 fixed in the sum of $1,098.48.

1. The landlords shall pay the tenant costs fixed in the sum of $225.00.

1. The landlords shall reimburse the tenant the application fee paid of $44.90.

1. The orders for compensation, costs and reimbursement of application fee totalling $1,368.38 shall be paid by the landlords by offsetting such amount against rent payments due by the tenant. In the event that the tenancy agreement terminates prior to the full amount of $1,368.38 having been paid to the tenant, the balance outstanding as at the date the tenancy agreement terminates shall become immediately due and payable by the landlords to the tenant

1. In the event that the tenancy agreement terminates prior to the full amount of $1,368.38 being paid to the tenant then the tenant shall have liberty to apply until 14 March 2015 to renew the proceeding to seek an order for payment of the balance remaining outstanding and unpaid. Any request for renewal by the tenant must be in writing to the Principal Registrar."

1. On 1 September 2009 Stephen Hicks entered in to a tenancy agreement with P & M Pradolin for a fixed term of 12 months in relation to the rented premises.
2. Mr Hicks remained a tenant of the rented premises after the fixed 12 month term expired.
3. On 5 September 2013 Mr Hicks commenced a proceeding in the Tribunal seeking an order pursuant to section 75 of the Residential Tenancies Act 1997 requiring the landlords to carry out non-urgent repairs[1]. The application by Mr Hicks was based on a Report dated 2 September 2013 prepared by the Director of Consumer Affairs in accordance with section 74 of the Act ("the Report").
4. The Report referred to 12 separate items. On 30 September 2013 the Tribunal made an order by consent withdrawing the claims in respect of items 3, 6 and 11 in the Report.
5. On 10 January 2014 a further order was made requiring the landlords to carry out repairs in respect of items 2, 4, 5, 8, 9, 10 and 12 of the Report. The repairs were to be carried out by the landlords by 24 January 2014, and were to be carried out in a proper and tradesman like manner employing qualified tradesmen. Mr Hicks withdrew items 1 and 7 at the hearing on 10 January 2014 as they had been resolved with the landlords.
6. The order made on 10 January 2014 provided for either party to renew the proceeding by no later than 15 February 2014, and if renewed by Mr Hicks alleging a breach of the order, was to include claims for compensation[2].
7. By letter dated 14 February 2014 Mr Hicks renewed his application alleging a breach of the repair order by the landlords. Mr Hicks sought:
   • (i) compensation of $3,569.00 up to 14 February 2014; and,
   • (ii) ongoing compensation in respect of items 4, 9, 10 and 12 from 15 February 2014; and,
   • (iii) an order pursuant to section 77 of the Act that rent be paid into the Rent Special Account; and,
   • (iv) an order for costs pursuant to section 109(3)(a)(i) of the Victorian Civil and Administrative Tribunal Act 1998.
8. A further hearing occurred on 12 August 2014. At the conclusion of that hearing Mr Hicks' claims for compensation were dismissed save and except the claim relating to item 12 of the Report[3]. This remaining claim was adjourned to a further hearing to be listed no earlier than 8 September 2014. The landlords were given an opportunity to obtain a report from an independent building consultant as to whether the work carried in relation to item 12 of the Report complied with the relevant Building Regulations, and in particular, whether the resulting height of the stair riser of the bottom step complied with the relevant Building Regulations.
9. The matter was listed before me for further hearing on 26 September 2014, by which time further work had been carried out on behalf of the landlord. The further work involved removal of a section of concrete around the step, and a concrete ramp formed that encompassed the step. That is, the top of the newly formed concrete ramp was level with the tread of the original concrete step.
10. The landlords produced a written report from Mr Steve Costanzo, the person who carried out the work in creating the concrete ramp. The report was undated. A copy had been provided to Mr Hicks prior to 26 September 2014. As the landlords' report was not prepared by "an independent building consultant" Mr Hicks commissioned his own report in preparation for the hearing on 26 September 2014. He produced evidence that he had served a copy of his report on the landlords' agent by registered post, however, the agent said she had not received the copy sent.
11. It was agreed that the matter would have to be further adjourned as the landlords had not had any opportunity to read and consider the report commissioned by Mr Hicks. Taking in to account the extensive history of the proceeding, and the number of appearances to that date, I was reluctant to require the parties to attend a further hearing. It was agreed between the parties that I would hear oral submissions from Mr Hicks on that day. I made directions requiring the landlords to file and serve any submissions in response to Mr Hicks' oral submissions by 13 October 2014, and for Mr Hicks to file and serve any submissions in response by no later than 27 October 2014. I would then consider any submissions filed by the parties to determine whether Mr Hicks was entitled to any compensation in relation to item 12 of the Report. Mr Hicks withdrew his application for an order pursuant to section 77 of the Act.
12. Written submissions dated 9 October 2014 were received from the landlords, and written submissions dated 23 October 2014 were received from Mr Hicks.
13. The issues for the Tribunal to determine are:
    1. was the repair in relation to item 12 carried out in a proper and tradesman like manner in accordance with the Tribunal's order made on 10 January 2014?; and,
    2. is Mr Hicks entitled to compensation in respect of item 12 of the Report? If so, how much?

ITEM 12 OF THE REPORT OF THE DIRECTOR OF CONSUMER AFFAIRS

There is cracked and uneven concrete from a previous carport.

1. The area of cracked and uneven concrete is located just outside the back door of the rented premises. The landlords engaged a general maintenance man, Peter Prattis, to carry out work to deal with item 12. Mr Prattis gave evidence on 12 August 2014 that he removed approximately 1.5 m2 of broken and uneven concrete. He replaced the section removed with crushed rock with a cement slurry spread across the top of the crushed rock.
2. Mr Hicks produced photographs of the repair work carried out by Mr Prattis. Whilst Mr Hicks took issue with the manner in which Mr Prattis sought to address item 12 of the Report, his biggest issue was the effect the works had on the concrete step leading to the back door of the rented premises.
3. The work carried out by Mr Prattis reduced the step riser to approximately 40-50 millimetres in height. Mr Hicks complained that this constituted a tripping hazard and as such, the repair required by item 12 had not been carried out in a proper and tradesman like manner.

WAS THE REPAIR IN RELATION TO ITEM 12 CARRIED OUT IN A PROPER AND TRADESMAN LIKE MANNER?

1. Mr Hicks submitted that the replacement of an area of uneven concrete with crushed rock and cement slurry was not an appropriate method of addressing item 12.
2. Mr Hicks further submitted that the further work carried out by Mr Costanzo to create the concrete ramp was also inappropriate. Whilst he acknowledged the ramp removed the tripping hazard constituted by reducing the height of the step riser to 40-50 millimetres, he submitted that the ramp itself created a further tripping hazard.
3. The report tendered by Mr Hicks at the hearing on 26 September 2014 was prepared by Mr Peter Hardiman, a building and planning consultant, and is dated 18 September 2014. Mr Hardiman stated in his report that the ramp did not comply with the relevant regulations for two reasons, they being:
   • (i) the ramp was constructed with a gradient of 1:6 instead of 1:8; and,
   • (ii) the threshold of a doorway must not incorporate a ramp if the door sill is more than 190 millimetres above the finished surface of the ground on to which the door opens.
4. Mr Hicks gave evidence that when the door is open to 90 degrees to the wall of the dwelling that the bottom of the door must not be more than 190 millimetres above the finished ground level. In relation to the rented premises, he stated that the bottom of the door was 245 millimetres above the finished ground level. He said that the upper part of the ramp was too short, and that the upper part of the ramp should have been wide enough so that when the door was fully open the bottom of the door was no more than 190 millimetres above the ramp.
5. The written submission on behalf of the landlords said that the rented premises had been inspected by the Planning and Building Department of the City of Casey. The submission said that as the dwelling was built in 1968 the step would have complied with the building regulations applicable at that time. The submission further stated that as the trip hazard created by the works undertaken by Mr Prattis had been eliminated the Council had no concern with the state of the step as a result of the construction of the concrete ramp. The submission stated that the Council representative who inspected the rented premises had said that the references to building regulations contained in Mr Hardiman's report only applied to new buildings and not to works carried out on established buildings, and furthermore, that the works were landscaping and not building works.
6. No written report or letter from the City of Casey was submitted by or on behalf of the landlords.
7. A landlord is required to ensure rented premises are maintained in good repair[4]. The phrase "good repair" was considered by Senior Member Barker (as she then was)[5]. At paragraph 36 the learned member said:

"The standard of rented premises in the RTA is "good repair". In Cooke v Cholmondeley [1858] EngR 994; (1858) 4 Drew 326 at 327-328 Kindersley V-C said a building in good repair must be "in such a state that they may be fit for use and enjoyment. They must be put in such a state of repair as will satisfy a respectable occupant using them fairly" and a similar term "in good tenantable repair" was referred to in Proudfoot v Hart (1890)25 QBD 42 at 50-53 per Lord Esher who said "The age and character of the house is relevant ...the house need not be put into perfect repair.: it need only be put into such a state of repair as renders it reasonably fit for the occupation of a reasonably minded tenant ..." and "the age of the house ..the character of the house.. and the locality of the house must be taken into account". While these decisions were made a long time ago (and today I would replace "respectable" with "reasonable") they clearly set out the standard required by a landlord when maintaining a rented premises."

1. It is for the landlord to complete the repair works and there is no right given to the tenant to demand that works be undertaken in a particular way or by a particular person[6].
2. The evidence at the hearing on 12 August 2014 was that the rented premises are "not new" and was not offered to the tenant as new premises. The managing agent, Mr Rochelle, gave evidence that the rent paid by the tenant is below the market rate and in part reflects the condition of the premises.
3. Whether Mr Hicks thinks the work carried out by Mr Prattis was appropriate or not is irrelevant. The issue is whether the work carried out has addressed the issue raised in the Report in a reasonable manner. The Report is equivocal as to exactly how the required work was to be carried out. The Report simply requires the landlords to "remove damaged concrete and level surface." There was no evidence that the repair method was inappropriate other than comments by Mr Hardiman. The issue that arose in the hearing of 12 August 2014 was whether the work carried out by Mr Prattis had created a tripping hazard by reason of the reduction in height of the step riser; that is, did addressing one issue create another?
4. Mr Hicks cannot demand, or indeed expect the landlords to remove all of the concrete from the area of the old carport and replace it with new concrete. To do so would result in the rented premises being in a better condition than they were at the commencement of the tenancy. A landlord's duty is only to maintain. A landlord is not required to improve or enhance.[7]
5. The landlords' obligation is to maintain the rented premises in "a state of repair as renders it reasonably fit for the occupation of a reasonably minded tenant"[8] taking in to account the age and character of the house.
6. Taking in to account the age of the rented premises, and its general condition (as depicted in photographs tendered by the parties) I find that the repair carried out to remove the area of uneven concrete and replace it with crushed rock and a cement slurry was reasonable. Whether the method of repair will be "a long term fix" is a matter for the landlords.
7. Mr Hicks also took issue with the fact that the work carried out had not been carried out by a qualified tradesman as referred to in the orders made on 10 January 2014. The Tribunal has previously held that it is the standard of work that is carried out that is important. Some types of repair/maintenance work would not require the services of a qualified tradesman[9].
8. Whilst Mr Hicks cannot dictate how the work is carried out, or by whom, he is entitled to expect that the work be carried out in a proper and tradesman like manner. In fact, the terms of the Tribunal's order required the landlords to do so. To carry out work in a "proper manner" the work must comply with any relevant building regulations.
9. The written submission on behalf of the landlords stated that the Council officer who inspected the concrete step said that the "Building Code" did not apply as the Code only related to new buildings and not established ones.
10. I do not accept this submission. The Building Act and Building Regulations do not make any distinction between old and new buildings. The Building Act defines "building work" to be work for or in connection with the construction, demolition or removal of a building. The Building Act defines "construct" to include repair of a building or making alterations to a building[10].
11. Regulation 608 of the Building Regulations 2006 state that building work to alter an existing building must comply with the Regulations.
12. The Building Regulations incorporate the Building Code of Australia ("BCA"). Hence, building work on an existing building must comply with the BCA.
13. Clause 2.5.1 of the BCA relates to steps and ramps. It provides that walking surfaces must have safe gradients, and be suitable for safe passage leading to and within a building taking in to account the nature, volume and frequency of likely usage. The commentary[11] to clause 2.5.1 of the BCA states that this requirement applies to ramps both in and leading to a building (emphasis added). Furthermore, the reference to "leading to a building" relates to immediate access to a building. Landscaping would not be included.
14. The classification of the ramp as landscaping, as referred to in the submission made on behalf of the landlords, would appear to be at odds with the intent of the BCA. The ramp is clearly designed to be used as a means of immediate access to the rented premises. Therefore, it is difficult to understand how or why the council representative would state it is landscaping and therefore not subject to compliance with the BCA.
15. Clause 2.5.1 of the BCA does not refer to a gradient for ramps; it states that ramps, or walking surfaces must have a safe gradient. In the report prepared by Mr Hardiman he refers to the Master Builders Association of Victoria General Specifications[12] as a basis for his submission that the ramp does not comply with the relevant building regulations. The Master Builders Association of Victoria General Specifications does not form part of the BCA, the Building Act or the Building Regulations. Whilst they do not therefore form part of the law, they do provide some assistance to the Tribunal in interpreting clause 2.5.1 of the BCA.
16. Mr Hicks gave evidence that the gradient of the ramp is 1:6. This evidence has not been disputed by or on behalf of the landlords. On the evidence it would appear that the ramp has not been constructed in accordance with the BCA.
17. Mr Hicks also relied on clause 3.9.1.5 of the BCA[13] to submit that the ramp did not comply with the BCA. Mr Hicks explained this submission as follows: when the door is open to 90 degrees to the wall, the bottom of the door at its furthest point from the wall cannot be more than 190 millimetres above the adjoining surface. Mr Hicks gave evidence that the bottom of the door is 245 millimetres above the adjoining surface when the door is open to 90 degrees to the wall. Mr Hicks said that there should be a landing that extends the full width of the door when it is open to 90 degrees to the wall.
18. Diagram b of clause 3.9.1.5 of the BCA gives diagrammatic examples of when a landing is and is not required adjacent to a door. These diagrams state that a landing (having a width of not less than 750 millimetres) is only required if the door threshold is more than 3 stair risers or 570 millimetres above the adjoining surface.
19. Mr Hicks gave no evidence of what the height of the door threshold was above the adjoining surface, being the concrete floor of the old carport, prior to the ramp being formed. The evidence heard by the Tribunal would suggest that the door threshold was only 2 risers above the concrete floor of the old carport. If this is correct, diagram b of clause 3.9.1.5 would say that a landing is not required.
20. In his report Mr Hardiman sets out his conclusion that the ramp does not comply with clause 3.9.1.5 of the BCA in that "the threshold must not incorporate a ramp if [the] door sill is more than 190 mm above the finished surface of the ground to which the doorway opens (Site measured at 245 mm)". Clause 3.9.1.5[14] does not make any reference to a door sill and its distance above the adjoining surface. Clause 3.9.1.5 provides that where a threshold is more than 190 millimetres above the adjoining surface that steps must be incorporated (emphasis added).
21. The BCA is divided in to two volumes. Volume 1 relates primarily to buildings classified as class 2 - 9 (both inclusive). Volume 2 relates primarily to buildings classified as classes 1 and 10. Residential dwellings are classified as class 1 buildings. The evidence is that the rented premises is a residential dwelling. Therefore, the rented premises are a class 1 building.
22. Clause D2.15(c)(ii) in Volume 1 of the BCA[15] is in terms similar to the wording quoted from Mr Hardiman's report as set out in paragraph 43 above. Assuming this is the provision of the BCA on which Mr Hardiman relies, I am not satisfied that it relates to the rented premises as a class 1 building. Clause D2.15 is contained in Volume 1 of the BCA, which relates primarily to buildings other than class 1 buildings. Paragraphs (a) and (b) relate to class 9 buildings. Paragraph (c) refers to "all other classes". It is open to interpret the words "all other classes" as a reference to all other buildings of class 2 to class 9 other than class 9a (covered by paragraph (a)) and class 9c (covered by paragraph (b)), and not inclusive of class 1 buildings.
23. If clause D2.15(c)(ii) applied to class 1 buildings, the same provision could have easily been included in clause 3.9.1.5 in Volume 2, or clause D2.15(c) could have included a reference to class 1 buildings. Accordingly I am not satisfied that clause 3.9.1.5 in Volume 2 has the meaning and effect that Mr Hardiman propounds in his report.
24. On the evidence, the Tribunal is not satisfied that the concrete ramp has been constructed in accordance with clause 2.5.1 of Volume 2 of the BCA. The evidence is that the gradient of the ramp is greater than 1:8 and as such has not been built with a safe gradient.
25. It is open to the Tribunal to find on the submissions made that the BCA applies to the work carried out to the step of the rented premises. With the intention of bringing finality to these proceedings, the proceeding will be adjourned to a date no later than 31 January 2015 with leave granted to the landlords to renew the proceeding to present evidence to show that the BCA does not apply to the work carried out to the concrete step. If the proceeding is renewed by the landlords then the matter will be listed for hearing before me. If however the landlords do not renew the proceeding by 31 January 2015, the proceeding is to be referred to me for the purpose of making orders in chambers requiring the landlords to rectify the step and make it comply with the BCA within 30 days of the date of such order. If such an order is made then the tenant will be required to make the rented premises reasonably available to enable such work to be carried out.

IS MR HICKS ENTITLED TO COMPENSATION IN RESPECT OF ITEM 12 OF THE REPORT?

1. At the hearing on 26 September 2014 Mr Hicks claimed compensation in the sum of $945.25 in relation to item 12 of the Report. This sum is equal to 5% of the rent for the period 13 April 2013 to 15 August 2014 and is based on a daily rate of rent of $39.88 per day.
2. Compensation can be ordered to be paid by a landlord where a tenant has suffered loss or damage as a result of the landlord failing to comply with the tenancy agreement or failing to comply with the landlord's duties under the Act.
3. A landlord has a duty to maintain rented premises in good repair[16]. If a landlord fails to comply with this duty then compensation can be awarded against the landlord[17]. Section 211 of the Act sets out a number of factors the Tribunal may take in to consideration in determining what compensation a tenant may be entitled to. These factors include (but are not limited to) whether the landlord has taken all reasonable steps to comply with the duty to maintain the rented premises.
4. The evidence by the tenant, which was not disputed at any time by or on behalf of the landlords, was that on 30 March 2013 the tenant served a Notice to Landlord on the landlords' agent, which included a list of repairs the tenant required the landlords to carry out. This list included the following item; "remove and replace broken and subsided concrete to old carport and driveway which is dangerous underfoot". By letter dated 3 July 2013 the tenant served a Notice for Breach of Duty on the landlords' agent, requiring the landlords to comply with their duty to maintain the rented premises by 28 July 2013[18]. The letter dated 3 July 2013 stated that none of the repair items referred to in the Notice dated 30 March 2013 had been attended to by the landlords.
5. The Report states that the Residential Tenancies Inspector from Consumer Affairs Victoria attended at the rented premises on 8 May 2013 and issued his report on 2 September 2013. The copy of the Report tendered shows that the Inspector sent a copy of the Report direct to the landlords' agent on 2 September 2013.
6. The hearing on 30 September 2013 adjourned the proceeding by consent to a date no later than 30 December 2013. The tenant says this was to allow the landlords time to carry out the repairs referred to in the Report, save and except the items withdrawn by the tenant as specifically referred to in the order made on 30 September 2013. The order made on 30 September 2013 does not state that the adjournment was to allow the landlords to carry out work, but the landlords did not object to this information by the tenant.
7. The proceeding was heard by me on 10 January 2014. The Tribunal found that the landlords had not carried out the repairs referred to in the Report, and made orders requiring such works to be completed by 24 January 2014.
8. On 14 January 2014 Mr Prattis carried out the work in relation to item 12 of the Report that resulted in the creation of the tripping hazard. This tripping hazard was not addressed by the landlords until the work carried out by Mr Costanzo on or about 28 August 2014.
9. An application for compensation may be made by a tenant alleging a breach of the duty to maintain where a landlord has been notified of the repair required and fails to attend to the repair within a reasonable time frame[19].
10. The Notice for Breach of Duty served by the tenant on 3 July 2013 required the landlords to attend to the repair/maintenance items by 28 July 2013. The landlords had 21 days in which to either effect repairs, or to at least investigate the tenant's list of items. The evidence shows that the landlords did neither. I accordingly find that the landlords were as at 29 July 2013 in breach of their duty to maintain the rented premises in good repair. The tenant is therefore entitled to compensation calculated from that date.
11. The works carried out by Mr Prattis on 14 January 2014 may have dealt with item 12 in part, but created a dangerous issue by the creation of a tripping hazard. This hazard was not addressed by the landlord until Mr Costanzo carried out further work on 28 August 2014. It is open to the Tribunal based on the evidence to find that the landlords had not complied with their duty to maintain the rented premises in good repair until 28 August 2014 at the earliest.
12. Mr Hicks submitted that compensation should be calculated at the rate of 5% of the daily rent, which equates to $1.99 per day. Mr Hicks referred the Tribunal to a number of reported decisions to support his submission as to the amount of compensation that should be awarded. After reviewing the decisions, the following is a summary of the range of compensation awarded for various items:

leaking roof & inaccessibility of toilet $5.00 per day

inadequate cleaning in a rooming house $5.00 per day

inadequate room security in a rooming house $5.00 per day.

1. I consider compensation at the rate of 5% of the daily rent to be reasonable in all of the circumstances. The evidence, which I again note was not contested by the landlords, was that the items requiring repair were first bought to their attention by Mr Hicks in late March/early April 2013. A Notice for Breach of Duty was served in early July 2013. The Report was served on them in early September 2013. By 10 January 2014 the items referred to in the Report had not been addressed by the landlords, save and except items previously withdrawn by Mr Hicks. The evidence suggests the landlords ignored their duty to Mr Hicks.
2. Work was carried out in relation to item 12 in mid January 2014. That work may well have addressed item 12 itself, but also had the effect of creating a separate issue. The creation of the tripping hazard with the step was a more dangerous issue than the initial broken and uneven concrete referred to in item 12.
3. I accordingly fix the rate of compensation to which Mr Hicks is entitled at $1.99 per day calculated from 29 July 2013.

1. Mr Hicks applied for costs against the landlords. He claimed the cost of the report dated 18 September 2014 provided by Mr Hardiman in the sum of $550.00, together with a further sum of $220.00 in relation to a supplementary report by Mr Hardiman dated 22 October 2014.
2. The Tribunal's power to award costs against a party is set out in section 109 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). This states that the each party is to bear their own costs subject to an order to the contrary[20].The Tribunal has a discretion to order costs against a party only if it is satisfied it is fair to do so after taking in to account a number of factors set out in section 109(3).
3. Mr Hicks says that he obtained the report from Mr Hardiman dated 18 September 2014 because the landlord failed to obtain a report in accordance with the orders made by the Tribunal on 12 August 2014[21]. Mr Hicks complains that the undated letter prepared by Mr Costanzo does not comply with the order of 12 August 2014 because:
   • (i) Mr Costanzo was not an independent building consultant;
   • (ii) The letter does not refer to item 12 of the Report;
   • (iii) The letter does not refer to the work carried out by Mr Costanzo on or about 28 August 2014; and,
   • (iv) The letter does not state whether the work carried out on the step by Mr Costanzo complies with building regulations.

Mr Hicks submits that he felt compelled to commission the report by Mr Hardiman so as to assist the Tribunal in determining whether there was an ongoing issue with the step or not. He said that the failure of the landlords to obtain a report unfairly disadvantaged him in the conduct of the proceeding.

1. The orders made on 12 August 2014 did not require the landlords to obtain a report (emphasis added). If the landlords did not obtain a report then the Tribunal may well have determined Mr Hicks' claim for compensation based on the information then available to it.
2. The rationale for allowing the landlord an opportunity to obtain a report was to assist the Tribunal in resolving an issue created by the landlords and/or their tradespeople. I do not agree that the failure to obtain a report unfairly disadvantaged the tenant. However, I accept that the report commissioned by the tenant did assist the Tribunal, although not to the extent that the tenant submitted it would.
3. Having considered the various matters set out in section 109(3) of the VCAT Act I am satisfied that it is fair to order that the landlords pay a part of the costs incurred by the tenant. I find it is fair that the landlords should be liable for 50% of the costs incurred by the tenant in relation to the report dated 18 September 2014, being the sum of $225.00.
4. The decision to commission the report from Mr Hardiman dated 22 October 2014 was the tenant's alone. There was no necessity from the Tribunal's perspective for that report to be obtained, and was not something contemplated at the hearing on 26 September 2014. Accordingly, I do not consider it fair that the landlords be ordered to pay any portion of the costs incurred in obtaining the report dated 22 October 2014.

[1] Repairs which do not come within the definition of "urgent repairs" contained in section 3(1) of the Residential Tenancies Act 1997 are referred to in the Act as "non-urgent repairs".

[2] Paragraph 5 of the order made on 10 January 2014 reads as follows:

5. If the application is renewed by the tenant alleging a breach of the repair order, the application is amended to include claims for -

compensation for failure to carry out repairs, (in which case the tenant shall provide full details of the claim for compensation to the principal registrar and to the landlord at the time the tenant writes to the principal registrar to renew the application).

compensation at a daily rate to be fixed for each day that any item of repair remains not completed (which compensation the tenant may deduct from rent payable).

an order under section 77 for payment of rent into the Rent Special Account.

[3] Item 12 of the Report relates to cracked and uneven concrete from a previous carport. The remedy suggested in the Report is to "remove damaged concrete and level surface".

[4] See section 68 of the Residential Tenancies Act 1997.

[5] T v. Director of Housing [2013] VCAT 2195.

[6] T v. Director of Housing [2013] VCAT 2195 at paragraph 39.

[7] McDonald v. Merlino [2014] VCAT 898 at paragraph 37 per Member Burdon-Smith.

[9] In Micallef v. Todio [2014] VCAT 976 Member Campana said at paragraph 20: "It is also reasonable that a handyman be engaged to fix a number of items requiring repair. Many of these items do not require a carpenter or plasterer-they can be attended to by a handyman, who would not ordinarily hold any "qualifications". What is relevant is the standard of work that the handyman carries out."

[10] Both definitions are contained in section 3 of the Building Act 1993.

[11] The commentary is contained in Building Regulation Australia, Annotated Code.

[12] Paragraph 2.8 reads as follows: "Concrete ramps shall be constructed with a gradient of not less than the proportions of 1 vertical to 8 horizontal (1:14 minimum gradient if otherwise specified for disabled persons)."

[13] Clause 3.9.1.5 reads as follows: "Where a threshold is more that 190 mm above the adjoining surface it must incorporate steps having riser and going dimensions in accordance with 3.9.1.4."

The Threshold of a doorway must not incorporate a step or ramp at any point closer to the doorway than the width of the door leaf unless-

(a) in patient care areas in a Class 9a health-care building, the door sill is not more than 25 mm above the finished floor level to which the doorway opens; or

(b) in a Class 9c aged care building, a ramp is provided with a maximum gradient of 1:8 for a maximum height of 25 mm over the threshold; or

(i) the doorway opens to a road or open space, external stair landing or external balcony; and

(ii) the door sill is not more than 190 mm above the finished surface of the ground, balcony, or the like, to which the doorway opens.

[16] See section 68 of the Residential Tenancies Act 1997 and paragraphs 24 and 25 above.

[17] See section 209 of the Residential Tenancies Act 1997.

[18] The written submission by the tenant dated 23 October 2014 refers to a Breach of Duty Notice having been served by the tenant on 13 April 2013. The documents tendered by the tenant in this proceeding do not include any Notice for Breach of Duty dated 13 April 2013. The only Notice for Breach of Duty tendered by the tenant is the document served under cover of the letter dated 3 July 2013.

[19] See Micallef v. Todio [2014] VCAT 976 at paragraph 17 and Eskander v. Catanchin [2014] 381 at paragraph 19.

[20] Section 109(1).

[21] The relevant part of the orders made on 12 August 2014 read as follows:

"The adjournment is to enable the landlord to obtain by no later than 31 August 2014 a report from an independent building consultant as to whether the work carried out at the rented premises in respect of repair item 12 as referred to in the Report of the Director of Consumer Affairs dated 2 September 2013 complies with the relevant building Regulations, and in particular, whether the resulting height of the stair riser of the bottom step complies with the relevant Building Regulations."