1. The rental provider's obligations in respect of the rental minimum standards arise under the Act and the Residential Tenancy Regulations 2021 ('the Regulations').
2. The Act sets out the relevant duty at section 65A. Subsection 65A(1) provides:

Without limiting sections 65, 68 and 70,[1] a residential rental provider must ensure that rented premises comply with the prescribed rental minimum standards on or before the day on which the renter enters into occupation of the premises.[2]

1. Subsection 65A(2) goes on to specify the renter's remedy if the rented premises do not comply with the rental minimum standards 'on or immediately after the day on which the renter enters into occupation' of the rented premises. In those circumstances, the renter may issue a request to the residential rental provider for urgent repairs to be carried out to ensure that the premises comply with the standards.[3]
2. Rental minimum standards are defined in section 3 of the Act to mean 'the standards prescribed under section 65A'. The Regulations, at Regulation 29, in turn state:

For the purposes of section 65A(1) of the Act, the prescribed rental minimum standards are in Schedule 4.

1. Schedule 4 of the Regulations at clause 14 states:

• (1) On and from 29 March 2021 until 28 March 2023, in relation to heating in a Class 1 building[4] -

(a) a fixed heater in good working order is to be in the main living area of the rented premises; or

(b) if a fixed heater has not been installed in the main living area of the rented premises on or by 29 March 2021, an energy efficient fixed heater in good working order is to be installed in the main living area of the rented premises.

• (2) On and from 29 March 2021 until 28 March 2023, in relation to heating in a Class 2 building[5] -

(a) a fixed heater in good working order is to be in the main living area of the rented premises; or

(b) if a fixed heater has not been installed in the main living area of the rented premises on or by 29 March 2021, an energy efficient fixed heater in good working order is to be installed in the main living area of the rented premises unless it would be unreasonable to install an energy efficient fixed heater.

(3) On and from 29 March 2023, in relation to a Class 1 building, an energy efficient fixed heater in good working order is to be installed in the main living area of the rented premises.

(4) On and from 29 March 2023, in relation to a Class 2 building -

(a) an energy efficient fixed heater in good working order is to be installed in the main living area of the rented premises unless it is unreasonable to install an energy efficient fixed heater; or

(b) If it is unreasonable to install an energy efficient fixed heater in the main living area of the rented premises, a fixed heater in good working order is to be installed in the main living area.

1. Schedule 1, Division 5 of the Act sets out transitional arrangements relating to certain sections of the Act that came into effect on 29 March 2021, including section 65A. Sub-clause 16(3) provides that section 65A does not apply to:

(a) a fixed term agreement entered into before the commencement of the amendment until that agreement is terminated; and

(b) a periodic tenancy agreement that commenced before the commencement of the applicable amendment until that agreement is terminated.

1. The framework of the statutory scheme makes it clear that the obligation to have a fixed heater installed in the main living area applies at the start of the rental agreement before occupation of the rented premises commences. Similarly, the right to request that such a heater be installed as an urgent repair arises if the heater has not been installed before or immediately after occupation commences.
2. Section 65A therefore does not impose any obligation on a rental provider to install a fixed heater from either 29 March 2021 or 29 March 2023 onwards, in respect of an already existing rental agreement commencing before section 65A came into effect on 29 March 2021.
3. The transitional provisions underline the proposition that the obligation to meet the minimum standards does not apply to rental agreements that commenced before 29 March 2021, whether the agreement is for a fixed term or otherwise. Indeed, meeting such an obligation would be impossible for existing agreements, given that the obligation in section 65A is that the minimum standards must be met before occupation, and the Regulations which set out the rental minimum standards make it clear that the standards are prescribed for the purposes of section 65A.
4. Mr Niblett appears to have made the application for a heater to be installed as an urgent repair based on information from Consumer Affairs Victoria. It was not clear what information he was relying on, however Consumer Affairs Victoria's Website states:

The minimum standards apply to rental agreements that:

• started on or after 29 March 2021
• started before 29 March 2021 and roll over into periodic agreements on or after 29 March 2021.

Rolling over to a periodic agreement is considered starting a new agreement, even if occupancy began before 29 March 2021.

Minimum standards do not apply to rental agreements that rolled over into a periodic agreement before 29 March 2021.

1. I do not consider that a fixed term residential rental agreement terminates at the end of the fixed term, as required under sub-clause 16(3) paragraph (a) of the transitional provisions. The Act makes it clear in section 91B that despite any Act or law to the contrary a residential rental agreement does not terminate and must not be terminated except in accordance with Division 9 of Part 2, or Part 7 or 8 of the Act. When the transitional provisions in Division 5 of Schedule 1 refer to termination of the agreement, it can only be in accordance with the Act.
2. Within Division 9, multiple provisions set out how a residential rental agreement can be terminated.[6] Division 9, subdivision 2 also deals with "variations or creations" of agreements. Sitting within subdivision 2, section 91Q states that a renter is deemed to occupy rented premises under a periodic residential rental agreement if the term of a fixed term residential rental agreement ends and the renter under that agreement continues in occupation otherwise than as a renter under another fixed term agreement.
3. Whilst section 91Q refers to the "creation" of a periodic residential rental agreement, the section does not expressly provide for any termination of the fixed term residential rental agreement. The fixed term of the agreement has simply come to an end. In those circumstances, section 91Q has the practical effect of continuing the rental agreement on the same conditions, but deeming it to be periodic, so that the rental period is month to month (or less in certain situations), rather than for a fixed period. VCAT has always taken the view that there is in effect one continuing residential rental agreement where a fixed term rolls over to a periodic agreement.
4. Further, had Parliament intended the minimum standards to apply to rental agreements that "roll over" to a periodic arrangement it could easily have referred to "the end of the fixed term" in sub-clause 16(3), rather than the "termination" of the residential rental agreement.
5. In any event, as I have stated, the obligation that arises under section 65A to meet the rental minimum standards only applies before the renter enters into occupation. It is not possible therefore to retrospectively apply this obligation to existing tenancies that commenced before 29 March 2021, when section 65A came into effect. Indeed, it is also not possible to apply the requirements in Schedule 4 of the Regulations at sub-clauses 14(3) and 14(4), which take effect from 29 March 2023, to residential rental agreements that commenced before that date.
6. I conclude that the obligations set out in Schedule 4, sub-clauses 14(1) and 14(2) apply to residential rental agreements commencing in the period 29 March 2021 until 28 March 2023, while the obligations set out in sub-clauses 14(3) and 14(4) apply to residential rental agreements commencing on and from 29 March 2023.
7. In the present case, the rental agreement has been on foot for 12 years. I find that the rental minimum standards do not apply and there is no obligation on the rental provider to install a fixed heater in the main living area.
8. As the renter had no ability under the Act to request the installation of a fixed heater by way of the urgent repair provisions set out in sections 65A(2) and 73 of the Act, I find that this aspect of the application is misconceived and is therefore struck out. VCAT has no power to otherwise order a residential rental provider to effect improvements to existing facilities.[7]

[1] Section 65 sets out the rental provider's obligation to ensure that the rented premises are vacant and reasonably clean on the day it is agreed the renter will enter into occupation. Section 68 sets out the rental provider's obligation to provide and maintain premises in good repair and in a reasonably fit and suitable condition for occupation. Section 70 sets out the rental provider's obligation regarding locks on doors and windows. None of these provisions refer to the rental minimum standards.

[3] If the work is not done, the renter can carry out urgent repairs themselves in certain circumstances as set out in section 72 of the Act. The renter can also apply under section 73 of the Act for orders that a rental provider carry out the urgent repairs, but only if the renter cannot meet the cost of the repairs, the repairs cost more than $2500 or the residential rental provider refuses to reimburse the renter for the cost of the repairs if carried out by the renter. Note that if the renter has not entered into possession of the rented premises, the renter can also give a notice of termination to the residential rental provider on the grounds that the premises do not meet any rental minimum standards (section 91L).

[4] Class 1 building has the same meaning as it has in the Building Code of Australia (Regulation 5) and includes domestic or residential buildings - single, standalone single houses and horizontally attached houses, such as terrace houses, row houses or townhouses. This class includes two sub-classifications: Class 1a - a single dwelling or one of a group of attached dwellings, e.g., a terrace house; Class 1b - a boarding house, guest house or hostel with a floor area less than 300 m2.

[5] Class 2 building has the same meaning as it has in the Building Code of Australia (Regulation 5) and includes domestic apartment buildings, a building containing two or more sole-occupancy units where people live above, beside or below each other and single-storey attached dwellings with a common space below, such as a carpark.

[6] See sections 91C to 91N, 91U(1)(b), 91W(1), (1A), 91YA.

[7] Note however, section 68 sets out the rental provider's obligation to provide and maintain premises in a reasonably fit and suitable condition for occupation. Section 70 sets out the rental provider's obligation regarding locks on doors and windows. If an appliance, fixture or fitting provided with the rented premises, that uses gas, electricity or water, needs to be replaced, the rental provider is required to install a replacement that meets a prescribed level of rating in an efficiency rating system (section 69). VCAT has the power to make orders that a rental provider comply with these duties.