Homes Victoria v Kelly (Residential Tenancies) [2023] VCAT 807

1. The residential rental provider gave the renter not less than 60 days' notice to vacate under section 91ZY of the Residential Tenancies Act 1997.
2. The residential rental provider has proven the reasons for giving the notice to vacate.
3. Having regard to the matters in section 330A of the Act, it is reasonable and proportionate to make a possession order.
4. The residential rental provider is entitled to a possession order in the terms set out below.

1. The renter must vacate the rented premises by 7 August 2023.
2. At the request of the person who obtained the possession order and on payment of the prescribed fee the principal registrar of VCAT must issue a warrant of possession to be executed within 14 days after the date of issue. This request may be made after 7 August 2023 and no later than 17 January 2024.

Warning to renter: If you fail to vacate the rented premises by 7 August 2023 the residential rental provider can request the principal registrar to issue a warrant of possession. You may then be forcibly vacated from the rented premises by a police officer or an authorised person carrying out a warrant of possession.

1. Margaret Kelly, the respondent renter, is the sole renter of an apartment at 159 Beacon Road, Port Melbourne (the rented premises). Homes Victoria is the owner and the residential rental provider of the rented premises.
2. The rented premises are part of a public housing site known as the Barak Beacon site (the site). The site is being redeveloped under the Big Housing Build Program.
3. In order to proceed with works at the site, Homes Victoria has applied for a possession order in respect of the rented premises. The respondent's primary position is that the application be dismissed.

1. On 6 December 1998, Homes Victoria (then Director of Housing) entered into a residential rental agreement with Ms Kelly for the rented premises and she has lived there since.
2. Information about the redevelopment of the site was first provided by the applicant to the renters at the site, including Ms Kelly, on 13 December 2021.
3. The notice to vacate, given under section 91ZY (Demolition) of the Residential Tenancies Act 1997 (Vic) (the Act), and upon which the application of Homes Victoria is based, is dated 8 March 2023, with a termination date of 16 May 2023 (the notice to vacate).
4. As Ms Kelly did not vacate by the termination date, a possession application was made by the applicant and sent to the respondent on 29 May 2023.
5. After concluding the hearing on 28 June 2023, I reserved my decision and adjourned the proceeding to further order of the Tribunal.
6. The parties made submissions prior to, and during, the hearing. Evidence was given by two Homes Victoria staff, Ms Jane and Mr Dobson, and by Ms Kelly.
7. Demolition works have commenced at the site and Ms Kelly is the only renter remaining there.

1. There are two principal issues requiring determination. They are:

(a) whether the notice to vacate was accompanied by the relevant documentary evidence to be valid; and > > (b) if the notice to vacate is valid, whether it is reasonable and proportionate to make a possession order at this time.

2. If findings are made for the applicant residential rental provider on both the above issues, the secondary issues to be determined are:

(a) the date upon which the possession order is to take effect; and > > (b) the time-frame after its issue within which a warrant of possession is to be executed.

1. This section incorporates the written submissions of Homes Victoria dated 15 June 2023 and 26 June 2023 and oral submissions made by Mr Buchhorn on 28 June 2023. I have also noted some matters of relevance to context where indicated. Any underlined portion is emphasis of the applicant.
2. Under the Act, section 91ZY relevantly provides:

(1) A residential rental provider may give a renter a notice to vacate rented premises if-

(a) the residential rental provider intends to demolish the premises -

(i) in the case of a building owned by a residential rental provider containing 5 or more rented premises, immediately after the last renter vacates; or

(ii) in any other case, immediately after the termination date; and

(b) the relevant rental provider has obtained all necessary permits and consents to demolish the premises.

1. I note that section 1 of the Act relevantly provides:

(a) to define the rights and duties of residential rental providers and renters of rented premises; and

(d) to provide for the inexpensive and quick resolution of disputes under this Act; and

1. Section 91ZZO of the Act outlines the form in which a notice to vacate is to take.
2. The notice to vacate complies with s.91ZZO(a), (b), (c), and (f). It is in the relevant prescribed form, it is addressed to the renter, it is signed by the person giving the notice or by that person's agent and it specifies the termination date by which compliance is required.
3. Section 91ZZO (e) also includes what material must accompany it for a notice to vacate to be valid. The balance of section 91ZZO relevantly provides:

A notice to vacate given under this Division is not valid unless-

(d) it specifies the reason or reasons for giving the notice; and

(e) in the case of a notice to vacate given under section ...91ZY..., it is accompanied by documentary evidence, as approved by the Director from time to time, which supports the reason for giving the notice; and

1. Under section 486A of the Act, the Director of Consumer Affairs Victoria may approve what that material entails. It relevantly provides:

(1) For the purposes of sections 91ZZO(e) ....the Director, from time to time, may approve documentary evidence which supports the reason for giving a notice to vacate under a section referred to in each of those sections.

1. I note that in the Victorian Government Gazette No S 142 dated 25 March 2021, the Director prescribed that a notice to vacate under section 91ZY must be accompanied by both of the following:

(i) planning permit for demolition; and > > (ii) contract with a suitably qualified Builder-demolisher, stating the date that the demolition will occur.

2. Homes Victoria provided Ms Kelly with all necessary documentary evidence, including a contract from a suitably qualified builder-demolisher when the notice to vacate was given. The respondent's submissions that this requirement was not met because a contract, or a complete and unredacted copy of the contract, was not provided neither sits comfortably with the text of s 91ZZO or the purpose for giving a notice to vacate under the Act. Such a requirement would also be unduly onerous and not what Parliament could have intended.
3. The material to accompany a notice to vacate is 'documentary evidence which supports the reason for giving' the notice to vacate. "Documentary evidence' does not mean a particular 'document'. It means evidence which is documentary in form. Further, 'documentary evidence' must not be read in isolation from the relative clause 'which supports the reason for giving.' This is a composite phrase. While in some cases, providing a copy of a specified document will meet this requirement, that will not always be necessary. Providing copies of the relevant parts of a document which evinces the reason for giving a notice to vacate can suffice.
4. I note that accompanying the notice to vacate is a cover letter from Homes Victoria, a Building Permit, a document titled Formal Instrument of Agreement (FIA), a document titled Victorian Public Sector - Annexure Part B Special Conditions of Contract for use in association with Australian Standard General conditions of contract for design and construct AS 4300-1995 (Annexure B), and a document titled Annexure to the Australian Standard General Conditions of contract for design and construct (Annexure A).
5. The building permit is for demolition and was issued to Homes Victoria in the name of the Director of Housing[1] on 10 February 2023 (the demolition permit).
6. The Director of Consumer Affairs, Victoria, as earlier stated, also prescribed as an accompanying document 'a contract with a suitably qualified Builder - demolisher, stating the date that demolition will occur'. The term 'contract' is not defined.
7. On its ordinary meaning, a contract is an agreement or promise between two or more parties that is legally enforceable. Agreements can be verbal, written or partly verbal and partly written. At its most basic, a contract must contain an offer that has been accepted for valuable consideration, and an intention of the parties to be bound.
8. In this case, the respondent was given with the notice to vacate a copy of the contractual agreement for demolition at the site, namely the FIA. Parts of this document were redacted. The FIA details include:
   1. the name of the principal, being Homes Victoria.
   2. the name of the contractor, being Delta Pty Ltd.
   3. the name of the project, being the "Ground Lease Model 2 (GLM2) - BHB - Demolition Works for Hampton East and Port Melbourne Sites" including the address of the site: "Barack (sic)/Beacon Road, Port Melbourne VIC".
   4. the principal's desire for the contractor to execute the work under the contract, namely the demolition works identified as part of the project.
   5. the payment of money to the contractor for doing the work related to the project.
   6. the date on which the demolition of the buildings is to occur, being on 31 March 2023 or the day immediately after the last renter vacates the building.
   7. an authority clause which states:

Each person signing this Contract represents that he or she has authority at the date of signing to do so.

1. the signatures of the duly authorised representatives of both the principal and contractor.
2. the date of the agreement, being 24 February 2023.

1. As earlier noted, Ms Kelly was also given Annexure A with the notice to vacate. This document repeats much of the information contained in the FIA, but includes some additional information such as the "practical date for completion" of the demolition work at the site, being 6 October 2023. Parts of this document were redacted. Additionally, I note that it was written on Annexure A that 44 pages "have been completely redacted as the content is 'commercially sensitive information' and/or it is not relevant for the purposes of verifying that the demolition contract is in place."
2. I note that it was also written on Annexure B that 90 pages "have been redacted as the content is 'commercially sensitive information' and/or it is not relevant for the purposes of verifying that the demolition contract is in place."
3. In her evidence, Ms Jane from Homes Victoria confirmed:
   1. the FIA documented the agreement between Homes Victoria and Delta Pty Ltd, a qualified builder - demolisher, to demolish the site and specifically, it "shows the contract has been executed by both parties and outlines the relevant dates that apply" to the demolition contract.
   2. Annexure A is a standard part of Victorian Government contracts of this nature and , in effect, it assists in the interpretation of the operative parts of the agreement.
   3. the FIA was to be read with other documents which provided details about some contractual terms.
   4. according to the legal advice given to the applicant, the relevant components of the document which evinced the contractual agreement were provided with the notice to vacate.
4. Taken together, the FIA alone was the documentary evidence of a binding contractual agreement between Homes Victoria and Delta Pty Ltd, a qualified builder - demolisher, which states the date that the demolition will occur. It identifies who the parties are, the work that is to be performed (namely, demolition work at the site), when that work is to commence, the form of consideration (namely, payment of money for work done) and an intention of both parties to be bound by the agreement. In other words, it comprises the contract for the purposes of s.91ZZO.
5. The purpose for giving a notice to vacate also supports the conclusion that the FIA was sufficient documentary evidence to discharge the requirements under s.91ZZO. Such purpose is to enable a renter to understand the basic facts being alleged by a residential rental provider as the basis for seeking to terminate a rental agreement and through this, a renter can determine whether there is a "proper basis" for the residential rental provider to do so. In other words, a notice to vacate is aimed at ensuring that a residential rental provider has a legitimate basis for giving a notice to vacate when seeking to terminate a rental agreement, and to enable a renter to understand that factual basis with a sufficient degree of detail.[2]
6. These dual purposes are principally achieved through s.91ZZO(d) which requires the reason or reasons for giving a notice to vacate to be specified. They are further supplemented by s.91ZZO(e) which requires documentary evidence which supports the reason for giving a notice to vacate. Further, only so much material as is needed to understand the basis for giving notice to vacate and its legitimacy is required. The respondent has taken an unduly narrow view of the term 'contract' which is inconsistent with the purpose of the Act.
7. The term 'contract' appears in the gazette notice. The gazette notice is the subordinate instrument under the legislation, being the Act. With this in mind, the text of the Act and the gazette notice must be considered together with the purpose of the Act. It is an accepted principle of statutory construction that subordinate legislation is to be construed by reference to the enabling legislation or parent statute including the purpose of the parent statute.
8. To give a notice to vacate relying on s.91ZY, a residential rental provider must have an intention to demolish the rented premises immediately after the termination date and have obtained all necessary permits and consents to demolish the premises.
9. When viewed within this context, the term 'documentary evidence which supports the reason for giving the notice' as it applies to s.91ZY can only be properly understood as meaning sufficient documentary evidence (in the form of a building permit and relevant contract) which enables a renter to determine whether the rental premises will be demolished immediately after the renter vacates.
10. It follows that a 'contract' as it relates to s.91ZY means only so much of the binding agreement between a residential rental provider and a qualified builder - demolisher which evinces the essential features of that agreement to do the demolition work, including the date on which the work will commence. It is unnecessary for an entire contractual document to be given - only the essential components are needed.
11. Therefore, even assuming the FIA does not comprise the 'contract', sufficient documentary evidence of the contract has been provided to enable the respondent to understand the reason she was given the notice to vacate and to determine the legitimacy of the applicant's reasons for doing so.
12. To interpret the term 'contract' in any other way - including as a 'complete contract' or 'unredacted contract' would create absurd results. This includes for the following reasons:
    1. it would be impractical and potentially costly in some cases to produce the whole document to a renter such as where a contract might run for many pages.
    2. the volume of documents may overwhelm a renter and, as such, may impede their ability to comprehend the contractual documents and, in doing so, defeat the purpose of giving a notice to vacate in the first place.
    3. it would require a residential rental provider to disclose confidential information or otherwise privileged information. As earlier noted, redactions were applied to the contract because it contained commercially sensitive information which may even attract public interest immunity. Without clear legislative language to the contrary, it could not have been Parliament's intention that such information would need to be disclosed.
13. Further, not all terms of a contract are necessarily contained in a single document. If every document related to a contract was required to be provided with a notice to vacate, the 'system' would become onerous and unworkable. Such an outcome cannot be within what is contemplated by the Act.
14. In relation to the demolition work, Ms Jane gave the following evidence:
    1. the demolition work at the site has already commenced.
    2. the work currently undertaken includes site protection, tree protection and removal, works which enable the demolition to progress, utility disconnections, and the removal of hazardous materials.
    3. as Ms Kelly has not vacated, the full site cannot yet be handed over to Delta Pty Ltd but to date, four of the five stages have been handed over.
15. Demolition work has now commenced on buildings at the site.
16. The evidence therefore shows that Homes Victoria intends for the demolition work relating to the rented premises to commence immediately after Ms Kelly vacates. If she had vacated, such work would have already commenced.
17. There are no outstanding permits or certificates required before demolition work can commence. Ms Jane confirmed this in her evidence and she also confirmed that the necessary arborist certificates had been obtained. This was a condition under the demolition permit and it has enabled the undertaking of tree protection and removal works.
18. The documents provided to the respondent in this case meet the formal requirements of providing a contract and fit neatly with the textual words within s.91ZZO(e) and the overall purpose of that provision when read together with s.91ZY.
19. The documents provided to the respondent, with particular reference to the demolition permit, make it plain for the respondent to understand the nature of the works to be undertaken.
20. The respondent misunderstands what the meaning is of 'strict requirement' in Smith v Director Housing. It refers to compliance with the legislation and it does not follow that any provision needs to be read down narrowly which is what the respondent seeks to advance. Further, despite a reference in Smith v Director of Housing to a 'blunt and speedy process,' the purpose of the giving of a notice to vacate is not only to protect the rights of the renter. A residential rental provider, for example, can also give a notice to vacate to remove a renter immediately. The process does not go all one way as seems to be contemplated by the respondent. It involves a balancing of the rights of the residential rental provider and the renter.

1. This section incorporates the written submissions on behalf of Ms Kelly dated 21 June 2023 and 26 June 2023 and the oral submissions made by Mr Gaynor on 28 June 2023.
2. A contract with a suitably qualified Builder - demolisher was not provided by Homes Victoria with the notice to vacate.
3. Neither the FIA or Annexure A documents constitutes a contract with a suitably qualified Builder - demolisher but, rather, both appear to be separate and distinct from the contract itself.
4. The FIA cannot reasonably be considered to be the contract as it clearly refers to a separate contractual document. In this regard, for example:

(a) immediately before clause 1, the FIA states: "capitalised words and phrases defined in the Contract have the same meaning in this [FIA] as they have in the Contract"; > > (b) at clause 4 the FIA states: "the Principal must pay to the Contractor the Contract Sum, and any other sums which become payable under the Contract, in accordance with clauses 2 and 3 of this [FIA] and otherwise in accordance with the Contract"; and > > (c) the FIA refers, at clause 4, to clauses 12A and 12.3 of the Contract, but the FIA does not have a clause 12A or clause 12.3.

5. Annexure B is evidently not, of itself or together with the FIA, the complete contract as it refers to Annexure A which has not been provided and the contents of which are integral to the interpretation and understanding of the complete agreement between Homes Victoria and the builder - demolisher. For example:

(a) in its introduction, Annexure B states: "these Special Conditions of contract replace Part B of the Annexure to the General conditions of contract for design and construct (AS 4300 -1995); and > > (b) immediately under the heading of Annexure A it is stated: "this Annexure shall be completed as part of the tender documents and, subject to any amendments to be incorporated into the Contract, is to be attached to the General Conditions of Contract and shall be read as part of the Contract."

6. In their evidence, the witnesses called by Homes Victoria seemed to concede that the Annexures were not of themselves the relevant contract and they formed part of a larger contract that was otherwise not provided.
7. Despite this apparent concession, Homes Victoria suggested that it satisfied the documentary evidence requirements as Ms Kelly was provided with "relevant" aspects of the contract being parts of the contract that outline the relevant demolition dates and that demonstrate that the contract has been executed. Ms Jane justified the provision of only particular aspects of the contract with words to the following effect: 'I was cognisant of the sheer volume of the contract and the overwhelming nature that a 200 plus page document would have on the respondent.'
8. The respondent rejects this argument. The legal requirement, canvassed in the Government Gazette, is not to merely provide evidence of a duly executed contract, nor to simply provide only "relevant" aspects of a contract with a suitably qualified Builder - demolisher. The requirement is that the contract itself be provided. In submitting this, the respondent is not saying that the applicant cannot redact portions of the contract on the basis they are commercially sensitive. However, the whole contract, including redactions is required to be provided.
9. With reference to Smith v Director of Housing [2005] VSC 46, this requirement should be strictly interpreted. According to Bongiorno J, given the procedure involving a notice to vacate and possession order application is "blunt and speedy",[3] "[a]s might therefore be expected, the Act lays down strict requirements for a notice to vacate to be valid."
10. It is not up to the applicant to determine what is relevant and of what is in the interests of the respondent to be aware. Without providing the entire contract, there are no means for the respondent to confirm that what was provided comprises all relevant components of the contract. It is also not appropriate that the applicant withhold legally required documentary evidence on an ill-informed view that the respondent would be overwhelmed by the size of the contractual document. It cannot be up to each residential rental provider to independently decide what is relevant documentary evidence. This could lead to inconsistencies which is an outcome that Parliament could not have intended.
11. A strict interpretation of the documentary evidence requirement is consistent with the overarching objective of the Act, which is to protect the rights of tenants.[4] In this regard, Ms Kelly cannot understand the whole contract where there are references to other parts of the contract which are not provided with the notice to vacate. It is not possible for there to have been compliance by Homes Victoria where Ms Kelly cannot therefore read and understand the documents that are provided. For example, the documentary evidence does not contain any information about the actual nature of the demolition works and how they are going to be undertaken. A strict legal interpretation, protection of the renter, and her ability to understand why a possession order is being sought would require that such information be provided.
12. Even if I agree with the applicant that only "relevant" aspects of the contract need to be provided, the applicant has still failed to adequately discharge its obligation to provide the necessary documentary evidence.
13. As the applicant has failed to provide the stipulated documentary evidence, the notice to vacate should be deemed invalid.

1. I find that the notice to vacate is valid and the applicant residential rental provider has proven the grounds for giving the notice to vacate.
2. I regard the notice to vacate as having fulfilled its dual purposes. Despite the documentary evidence which accompanied the notice to vacate not being a complete copy of the contract, Ms Kelly is not left in any doubt as to the parties involved, that demolition works are being undertaken, and when they are to commence, and that there is a legitimate basis for the notice to vacate.
3. Each case depends on its own facts and circumstances. Therefore, inconsistencies may arise between cases about the amount or nature of documentary evidence attached to notices to vacate. That is to be expected. However, what Homes Victoria has included in its documentary evidence accompanying the notice to vacate aligns with the purposes of the Act and in terms of Smith v Director of Housing, which has been relied on by both parties, it accords with the strict requirement to satisfy the respondent renter of the dual purposes of the notice to vacate in the blunt and speedy process of applying for a possession order.
4. The FIA provided with the notice to vacate contains the elements of a contract between Homes Victoria and Delta Pty Ltd. Most importantly, the FIA and the demolition permit contain all the information the respondent requires to know in order to ascertain and understand the reasons why she received the notice to vacate and its legitimacy and that information was able to be read by her. However, I do not accept that Ms Kelly, in terms of s.91ZZO(d) and (e) read together with s.91ZY, also needed to receive additional documents about the actual nature, manner, and processes of the demolition works. Indeed, the demolition permit recorded that the demolition works are to the existing buildings at the site. That is sufficient.
5. While the respondent made the appropriate concession that commercially sensitive portions of the documents should be redacted, objectively and practically, this provides support to the applicant's position that not all documents are required for the respondent to be fully informed in accordance with the requirements and purposes of the Act and for the notice to vacate to be valid.
6. Finally, unlike the respondent, the applicant properly dealt with the issue of statutory construction in terms of the nature of the gazette notice as the subordinate instrument and how it is to be read together with the Act as the parent statute and the purposes of the Act. From this perspective, I reiterate my finding that Ms Kelly received documentary evidence which supports the reason for the giving of the notice to vacate and that the notice to vacate is valid despite a whole contract not being provided.

Is it reasonable and proportionate to make a possession order at this time?

1. This section also incorporates the written submissions of Homes Victoria dated 15 June 2023 and 26 June 2023 and oral submissions made by Mr Buchhorn on 28 June 2023.
2. As earlier stated, on 13 December 2021, Homes Victoria commenced the process of liaising with the renters of each rented premises at the site in relation to their temporary relocation for the period of the demolition and redevelopment works. Its approach was to meet with each renter to discuss and identify their eligibility and needs, including their preferred location.
3. Subsequently, Homes Victoria identified suitable accommodation for each renter and made offers of housing when suitable accommodation became available. Prospective renters were then invited to inspect premises which were offered to them prior to entering into a residential rental agreement with Homes Victoria.
4. Homes Victoria has retained records of communication with every renter in relation to their relocation, including Ms Kelly. Between 13 December 2021 and 15 December 2022, Homes Victoria made many varied approaches to Ms Kelly by home visits, telephone calls, emails, and letters. Essentially these either did not elicit a response, or when a response was received, Ms Kelly repeatedly advised that she did not wish to engage with the Relocations Team as she had no intention of vacating and relocating.
5. On 15 December 2022, Ms Kelly's NDIS Support Coordinator contacted Homes Victoria and stated that Ms Kelly would prefer to remain at the rented premises and discussed her housing needs based on her medical requirements. These included the need for an accessible property taking into account her mobility limitations and required mobility equipment, being a scooter, her preference for a yard for a pet, being her elderly dog, and her location preferences being Port Melbourne, North Melbourne, and Kensington.
6. On 16 December 2022, Homes Victoria emailed Ms Kelly noting her housing preferences and needs as disclosed by her NDIS Support Coordinator. Homes Victoria staff members provided Ms Kelly with a housing needs form to be completed by a medical professional, which would outline any specific modified housing needs or special property needs but no response was received from the respondent.
7. On numerous occasions in January, February and early March 2023 prior to giving the notice to vacate, Homes Victoria again made varied approaches to Ms Kelly. Once again, these efforts also either failed to elicit a response or, when a response was received, it was the respondent reiterating that she would not relocate.
8. On 27 January, 2 May and 9 May 2023, Homes Victoria wrote to Ms Kelly inviting her to inspect properties for possible relocation in Bank Street, South Melbourne, Tom Hills Court, Port Melbourne, and Dandenong Road, Caulfield North respectively.
9. On 18 May 2023, two emails were sent to Ms Kelly containing offers to inspect each of two additional properties for possible relocation, being another apartment in Tom Hills Court, Port Melbourne and an apartment in Kensington. A sixth offer to inspect a property for possible relocation, being in Raglan Street, South Melbourne was made on 26 May 2023.
10. Despite a number of follow ups by Homes Victoria after the offers, Ms Kelly continued either not responding or, if she did, it was to reaffirm that she has no intention of relocating. Notwithstanding, the properties at Bank Street and Raglan Street, the second property offered in Tom Hills Court, and the Kensington property remain available to Ms Kelly.
11. On 5 May 2023, Ms Kelly met with Homes Victoria staff members and a representative of the Minister for Housing. The respondent declined to discuss her relocation during the meeting but expressed dissatisfaction about the redevelopment of the site.
12. On 12 May 2023, the Minister for Housing wrote to Ms Kelly confirming that the redevelopment of the site would progress and inviting her to meet to discuss her relocation.
13. Section 330(1) of the Act relevantly provides:

(f) that in the circumstances of the particular [possession] application, it is reasonable and proportionate having regard to section 330A, to make a possession order taking into account the interests of, and the impact on, each of the following in making the possession order-

(i) the residential rental provider,...

(iv) any neighbours or any other person who may be, or who has been affected by, the acts or behaviour of the renter,....to whom the notice to vacate was given.

1. Section 330A of the Act relevantly provides:

For the purposes of determining whether it is reasonable and proportionate to make a possession order, the Tribunal must have regard to the following-

(a) the nature, frequency and duration of the conduct of the renter, ... which led to the notice to vacate being given,.....

(g) the effect of the conduct of the renter,......on others as a renter,.....

(h) whether any other order or course of action is reasonably available instead of making a possession order;

(i) as the case requires, the behaviour of the residential rental provider,....

(j) any other matter the Tribunal considers relevant.

1. Making the possession order is reasonable and proportionate in the circumstances because:
   1. Ms Kelly's refusal to vacate the premises is causing delays to the redevelopment work at the site. As Ms Jane explained in her evidence, the consequences of this delay include:

(i) the construction of a mix of higher quality and fit - for - purpose accommodation will take longer to build; > > (ii) previous occupants of rental premises who may wish to return to the site once the redevelopment work is complete must wait longer; > > (iii) the applicant has already been given notices by Delta Pty Ltd under the relevant contractual framework pertaining to the delays. Further delays could lead to financial claims being made against Homes Victoria which, if made, could increase the project cost. These risks are avoidable if Ms Kelly vacates.

2. the delay in the redevelopment delays the time when other renters will be able to be offered housing by Homes Victoria at the redevelopment site; 3. the nature of the proposed demolition work means that it is not open to Ms Kelly to continue residing at the rented premises particularly as she is the only renter left living at the site. Even though she has a personal alarm to call for assistance there remains a safety risk to her living alone there in the case of an emergency; 4. in the circumstances, Homes Victoria has exhausted all other options to facilitate Ms Kelly's relocation meaning that the making of a possession order is the only reasonable option left; 5. Homes Victoria has made six offers of alternative housing to Ms Kelly; 6. four of the rental premises offered to Ms Kelly continue to be held by Homes Victoria on her behalf to ensure that, if a possession order is made, she will not experience homelessness. By holding all four properties, they cannot be offered to other people who may be eligible for housing; 7. Ms Kelly will have the option to either remain at the rented premises to which she is relocated if a possession order is made , or to return to the site once the demolition and redevelopment works are carried out; and 8. Mr Dobson gave evidence that the four rental premises reserved for Ms Kelly were identified by Homes Victoria based on the respondent's known preferences including properties that are of a similar size, are near her current premises, are disability accessible, have an outdoor space for her pet dog, and are close to her current medical practitioners. Two of the four options include two- bedroom rental premises even though the respondent is only eligible for a one- bedroom property.
3. Raglan Street is a two- bedroom townhouse and is similar to the rented premises. It includes an outdoor area and is in a low density public housing estate with families. Bank Street is a two-bedroom and two-bathroom apartment . Tom Hills Court is a one- bedroom apartment for older persons aged 55 years and older. The Kensington property is a one-bedroom house situated near residents of similar age. It is close to the Lort Smith Animal Hospital at which the respondent's pet dog receives any required treatment
4. Three of the four alternative rental premises are within the City of Port Phillip. Other renters from the site have relocated to them. The Port Phillip Council provides various services to the respondent. These three properties are also closer than the rented premises to the Albert Park Medical Centre and Alfred Hospital, both of which Ms Kelly frequently attends for medical treatment and consultations.
5. Any relocation would be 'costs neutral' for Ms Kelly. Homes Victoria will assist with packing and unpacking and cover all reasonable expenses related to relocation including removalist expenses. Rent will remain the same as will the costs of utilities' supply and similar bills. Homes Victoria will also assist with matters such as disconnection and reconnection to utilities and services.
6. Ms Kelly has expressed concerns about the safety and sanitary conditions of the four rental premises. Such concerns are unfounded and not based on any evidence. Ms Kelly confirmed in her evidence that she has not visited or directly seen any of the properties. I note she has said that she viewed them on-line. Her 'presumption' or 'belief' about the conditions of the rental premises is based on rumour or supposed hearsay accounts from other persons, none of whom has given evidence to the Tribunal either orally or in writing. Homes Victoria denies that any of the four rental properties are unsafe or unsanitary.
7. Likewise, the concerns expressed by Ms Kelly about relocation being only temporary are unfounded. She conceded that none of the options were offered only on a temporary basis. Mr Dobson's evidence was that any of the four options, if accepted by the respondent, would remain available to her indefinitely. There is no evidence that she would be at risk of being relocated again. Homes Victoria has noted there are no current plans to redevelop any of the sites at which the accommodation options are located.
8. The various supports that Ms Kelly has in the community, being from her NDIS worker, her medical doctors, her occupational therapist, and from others in the community will not change if she moves from the rented premises.
9. The granting of a possession order is reasonable and proportionate in all the circumstances.
10. Every effort has been made by Homes Victoria to minimise disruption and distress for Ms Kelly. However, in terms of s.330A of the Act, the effect of the respondent's conduct is a factor that should be taken into account. Her failure to engage has been very relevant and has significantly contributed to the delays in the process. Immediate relocation support is available to Ms Kelly from Homes Victoria. This proceeding without resolution has led to further delays. This impacts other renters who wish to return to the site after completion of the redevelopment.
11. The reasons advanced by the respondent of medical issues and an inability to prepare to relocate are by themselves insufficient to justify not granting a possession order on the bases of reasonableness and proportionality. Something more has to be demonstrated by Ms Kelly which she has not done. The Act permits a residential rental provider to request a renter to vacate in certain circumstances. If the reasonable and proportionate test did not require an additional factor to be established, the scheme would be rendered nugatory.

1. This section also incorporates the written submissions on behalf of Ms Kelly dated 21 June 2023 and 26 June 2023 and the oral submissions made by Mr Gaynor on 28 June 2023.
2. It is not reasonable and proportionate to grant a possession order having regard to the factors in s.330A(h) - (j) of the Act. As per s.330A(j), in determining whether it is reasonable and proportionate to make a possession order, the Tribunal has broad discretion to consider any matter it regards as relevant. In this regard the Tribunal should consider the physical and psychological impact of eviction on the respondent.
3. Ms Kelly is of advanced aged and has a complex medical history including cognitive impairment and severe physical and mental health challenges. In particular, she suffers from a disabling and chronic illness which restricts her movement and has largely rendered her housebound for the past ten years. She is dependent upon her mobility scooter.
4. The impact the eviction will have on Ms Kelly at this time, particularly without having found safe, appropriate and long- term alternative housing will be catastrophic. This is clearly set out in various reports provided by her treating medical practitioners.
5. Each of Ms Kelly's psychologist, occupational therapist, and mental health social worker have outlined the ongoing severe impact on Ms Kelly's mental and physical health by the potential demolition and eviction process. Additionally, her mental health social worker has emphasised the importance of the rented premises to her overall wellbeing.
6. The reports also make it clear that Ms Kelly's mental and physical health is intimately connected to her housing situation. Her health conditions, age, and mobility issues make even one move nearly impossible and Ms Kelly instructs that she is terrified of the prospect of having to be relocated again after that. Ms Kelly further instructs that until recently she would suffer a panic attack each time the Homes Victoria Relocation Team would call her or attend the rented premises. She therefore depends on long term stable housing. She believes that many of the properties offered to her by Homes Victoria will also become candidates for demolition through the government's Big Housing Build.
7. Making a possession order is not reasonable or proportionate in circumstances where the respondent has complex health issues and vulnerabilities and especially in circumstances where she has not been able to locate safe, appropriate and permanent housing.
8. In its broad discretion to consider any matter it considers relevant when determining whether the granting of a possession order is reasonable and proportionate, the Tribunal should consider the respondent's need for safe, appropriate and permanent housing which she will not be able to access if evicted at this time.
9. While she has been offered alternative accommodation from Homes Victoria, in light of her specific housing needs resulting from her medical conditions, age, mobility issues and the fact that she has an elderly dog that requires outdoor space she submits that the proposed properties offered for alternative accommodation have not been viable, safe or secure housing options and have not been suitable given her need for permanent and stable accommodation.
10. Due to the severe impact the potential demolition and relocation has had on her mental health and her significant vulnerabilities coupled with what she viewed as clearly inappropriate housing options being offered to her, she chose not to respond to these offers.
11. Ms Kelly has acted reasonably in not responding to Homes Victoria. While she did not physically attend the properties to determine their unsuitability, she made enquiries with others who are currently residing in the specific public housing buildings being offered to her and she viewed the properties online. Her refusal to accept the offers was therefore not on a complete sight unseen basis.
12. As evidence of her need to secure safe and stable accommodation and the inadequacy of the offers from Homes Victoria, Ms Kelly instructs that she has spent the last 12 months attempting to find appropriate housing options but she has been unsuccessful to date. In this regard, she has been unable to secure a private loan, secure NDIS supported housing, access charity-run retirement housing or find accommodation in an achievable price range that is accessible in light of her health and mobility issues.
13. The making of a possession order is not reasonable or proportionate at this time in circumstances where the respondent has complex health issues and vulnerabilities and particularly in circumstances where she has not been able to locate and secure safe, appropriate and permanent housing. She may face homelessness and be required to enter crisis accommodation.

Findings on whether it is reasonable and proportionate to make a possession order at this time

1. I find that it is reasonable and proportionate to make a possession order at this time.
2. The parties have raised a number of issues in putting their respective positions. I have taken into account all those issues in accordance with my broad discretion.
3. The real concern that I have about the respondent's position is her lack of any direct, balanced and credible evidence to support her contention that the alternative housing options provided to her by Homes Victoria are clearly inappropriate. In this regard, I am mindful that other renters from the site have relocated to three of the four options.
4. Conversely, the evidence of Homes Victoria about the accommodation options was balanced and credible. Accordingly, I cannot accept that Ms Kelly has been unable to locate safe and appropriate housing which is available to her indefinitely.
5. While I accept that the respondent has ongoing medical conditions and vulnerabilities, there is no evidence that they are not well managed and appropriately treated. A common aspect in the various medical and like reports provided on Ms Kelly's behalf was the concern expressed about the adverse effects of any relocation if Ms Kelly had to move outside her community and lost her ongoing valued and important support and social networks. Again, there is no evidence that this would occur if Ms Kelly moved to one of the three options within the City of Port Phillip.
6. Homes Victoria has a responsibility itself and on behalf of others, of which there are potentially many, who are affected by the redevelopment of the site to comply with the agreement relating to the demolition works and to avoid breaches, delays, and increased costs.
7. On the available evidence, I cannot accept any real prospect of the respondent becoming a resident of crisis accommodation or of having a risk of homelessness. She also has a significant prospect of remaining within her community indefinitely without disruption to her support and social networks.
8. There is no reason for me not to accept that Homes Victoria will provide its immediate and promised assistance and that no additional costs will be incurred by Ms Kelly by any relocation. Finally, despite having a personal alarm, I regard the expressed concerns of Homes Victoria about the respondent's safety to be well - founded, particularly in an emergency, if she remains living at the site.
9. Accordingly, I find that the hardship to the applicant outweighs the hardship to the respondent if a possession order is not made at this time.

When should the possession order take effect and what is the appropriate time - frame for the execution of a warrant of possession

1. The date of possession and the ability to apply for a warrant should be immediate for the following reasons:
   1. There are four suitable alternative rental premises available for the respondent to move into immediately. Each of these options has been chosen taking into account the respondent's known preferences, including her disability needs. Each option is secure, safe, sanitary and stable.
   2. The respondent will receive immediate support to relocate. These supports will include assistance packing and unpacking her belongings, transporting her belongings, and setting up utilities in a new rental premises.
   3. The applicant has already been impacted by the delays in the respondent's failure to vacate the rented premises. Any further delays may have significant financial ramifications to the applicant.
   4. The delays to the redevelopment would affect the ability of other renters from the site who have already relocated in being able to return, as well as the ability of Homes Victoria to offer high quality and fit for purpose housing to prospective renters including those in need of special disability accommodation.
   5. The delays also mean that neighbours to the site would be required to experience disruptions caused by demolition and construction work for a longer period of time.
   6. The respondent's refusal to engage with the applicant has contributed to her not having been relocated to alternative rental premises to date. Her submission that she has not been offered safe, secure and stable rental premises is patently incorrect.
2. In all the circumstances, the hardship to the applicant and to others with an interest in the redevelopment of the site including renters who may wish to return, prospective renters and neighbours to the development in having to endure further delays outweighs the hardship to the respondent who will be well supported in relocating to alternative rental premises.

1. If a possession order is made, Ms Kelly requests that the Tribunal grants the maximum possible time to find alternative accommodation and avoid the risk of homelessness. Due to her physical, cognitive and psychological challenges she is unable to move quickly and will require extensive assistance to do so which will take a considerable amount of time to coordinate.
2. The respondent's need to secure safe and stable alternative housing outweighs any potential detriment encountered by the residential rental provider as a result of a delay in vacating the premises.

Findings about possession order and warrant of possession

1. I well understand why the applicant seeks a possession order to take immediate effect.
2. However, from the perspectives of balancing competing interests and practicality, and despite assistance to be provided by Homes Victoria, I find that there will be likely delays encountered, especially in the packing phase, due to the respondent's age, health, and mobility issues.
3. I have therefore decided to allow 21 days, but no longer, before the possession order takes effect. I regard this as appropriate in all the circumstances. I am mindful of the practical completion date of the demolition works of 6 October 2023. Consistent with that consideration, I will order that any warrant of possession is to be executed within 14 days of issue.

[1] Under s.148 of the Housing Act 1983 (Vic), reference to 'Director of Housing' in the permit is to be taken as a reference to Homes Victoria.

[2] Smith v Director of Housing [2005] VSC 46,[17], [20].

[3] Smith v Director of Housing [2005] VSC46,[13] citing Director of Housing v Pavletic [2002] VSC 438.

[4] Jafaroourasr v Tancevski [2018] VSC 497, [49].