NSW Land and Housing Corporation v Raymond Crowther

NCAT Consumer and Commercial|2022-06-30

REASONS FOR DECISION

This application concerns the landlord, NSW Land & Housing Corporation and Mr Raymond Crowther, the tenant. The landlord has applied for a termination order.
The facts of this case are mostly agreed. The tenant does not deny that he is in breach of his residential tenancy agreement in that he has not kept the premises in a reasonably clean condition. The landlord would like the tenancy terminated. The tenant would like to stay and says he is committed to improve the cleanliness of the premises.

History of the matter

The landlord issued a Notice of Termination on 10 March 2022 in accordance with the Residential Tenancies Act 2010 NSW (the Act) for breach of clauses 112.1, 12.2 and 12.3 of the Residential Tenancies Agreement (property care issues).
An application was made to the tribunal on 13 April 2022 eight days after the notice expired. The landlord is seeking orders that the tenancy agreement be terminated for the alleged breaches contained in the notice in accordance with Section 87 of the Act.
The matter was listed on 9 May 2022 for conciliation. The matter was not resolved on that day and was later heard by me.

Jurisdiction

I have jurisdiction to hear this claim. There is a valid, written Residential Tenancy Agreement between these parties which commenced on 6 October 2004. The notice is dated 10 March 2022. The notice was posted and as such is deemed to be received by the tenant on 21 March 2022. The termination notice allows the requisite 14 days, requiring vacant possession on 5 April 2022. The application was brought after 5 April 2022 and within the required time in accordance with the Act.

The landlord's case

Mr Bodenam and Ms Walsh for the landlord gave sworn evidence and said that despite having tried a specific performance order in relation to the same issues in 2021, Mr Crowther does not keep his premises reasonably clean and is hoarding. The landlord relies on the photographs provided. They said the decision to pursue vacant possession was not taken lightly and the landlord has exhausted all available avenues to assist the tenant to have the breaches rectified.
Mr Bodenam and Ms Walsh said that the landlord engaged with services to assist the tenant however all attempts to assist the tenant to keep the premises clean were not having any affect.
Regarding the Tribunal discretion contained in Section 154E they said that:- 1. the property is a fire risk and is having an ongoing affect on the neighbours. The premises is unsightly, attracts rodents and the fire load is of serious concern. 2. The property has remained unsightly and there is a fire load risk. 3. The fire load is a risk for our other tenants and we have a responsibility to maintain the peace & comfort and safety of the other tenants in the complex. 4. That they have tried specific performance orders more than once. 5. There is a clear breach that Mr Crowther is otherwise unable to rectify such that the tenancy needs to be terminated.
The landlord does not provide any report from the NSW Fire Brigade.

Mr Crowther's case

Mr McKenzie represented Mr Crowther and gave sworn evidence to the Tribunal. Mr McKenzie said that Mr Crowther is in breach of his residential tenancy agreement - Section 87(4)(a) of the Act - however he said that he considers that the breach is not sufficient to terminate the tenancy agreement -according to Section 87(4)(b) of the Act.
Mr McKenzie also asserts that should I find that the breach is sufficient to terminate the tenancy that I should exercise the discretion contained in Section 154E of the Act and not terminate the tenancy.
Mr McKenzie called witnesses to provide evidence in this case. The first such witness was Sylvie Evans who is a provisional psychologist with 'We Care'.
The substance of the evidence provided by Ms Evans is that Mr Crowther has complex mental health issues and other health issues that exacerbate his pre-occupation with collecting objects. She said that Covid 19 among other issues had impacted upon his ability to work with providers to continue to declutter the premises and that not enough support workers have been available to assist Mr Crowther who also has difficulty with making changes and he also has trust issues around the persons tasked with assisting him.
Ms Evans said that Mr Crowther has been having issues with his neighbour and those issues that include an alleged attempt to run him over, have exacerbated the problems around de-cluttering.
Ms Evans said that Mr Crowther is at high risk of suicide does not have stress tolerance skills and becomes easily overwhelmed by the task ahead. Mr Crowther will need a lot more time to work with the support workers to establish trust and the process towards decluttering will need to gradual.
Ms Evans said that homelessness will present a great risk to Mr Crowther's health and safety.
Mr Bodenam cross-examined Ms Evans and she explained that she would have liked to see more improvement in the condition of the property however she has had limited funding to assist him. Mr Bodenam suggested that supported independent living options may be more appropriate however Ms Evans said that Mr Crowther is very capable and independent. He has a hoarding disorder. Ms Evans said that if she could organise support workers for 4 shifts of 2 hours each week, then there will be real improvement made and moving forward that those improvements could be made within a 6 month window.
Ms Barry, Service consultant -Interactive Community Care also gave evidence basically demonstrating how her service has had some difficulty with staffing and that she has built up some trust between herself and her service and Mr Crowther. Ms Barry gave evidence also that in the previous four weeks she has seen some improvement in the reduction of items in the loungeroom, the kitchen is in good order and she believes this improvement will continue with time and a collaborative approach.
Mr Bodenam and Ms Barry during the hearing organised an inspection which was carried out on 25 July 2022. The photographs were then sent into the Tribunal for me to consider.
Mr McKenzie said that Mr Crowthers tenancy is a long standing tenancy which has been in place for 18 years. He provides Mr Crowther's Behaviour support plan and Risk Concern and Safety plan.
He said that progress has been slow because of the factors identified by Ms Evans however there has been real progress.
Mr McKenzie considers that an SPO will suffice to ensure that the landlord responsibilities to other tenants are maintained.
Mr McKenzie said that it is unlikely that he would be eligible for a NDIS supported accommodation house. He said that Mr Crowther is at great risk of becoming homeless and is unlikely to sustain a tenancy in the private sector.
Mr McKenzie said that Mr Crowther will be at high risk of substantial debt if removed from the premises because of the cost to clean the premises in its current condition.
Mr McKenzie reiterated the medical evidence of Ms Evans with regard to the risk to Mr Crowther's health and safety if the tenancy was terminated.
I am referred to King v NSW Land and Housing Corporation [2022] NSWCATAP 165. Particularly para 48 and that I should balance all of the considerations when making a determination.
Mr McKenzie asserts that Mr Crowther's breach is not wilful or intentional, it is caused by a hoarding disorder. He is engaging with services, going to therapy sessions and there have been improvements along the way. Covid 19 has affected some of the progress.

Consideration and Findings

As the breach is not disputed, I am bound to consider two all-encompassing sections. I agree with Mr McKenzie that Section 154E considerations and the considerations contained in Section 87(4) are to be considered together and my determination should reflect a balanced approach. I will discuss all of the mandated and suggested considerations and determine the matter according to law.
Firstly I need to decide whether or not the breach that is conceded is, in the circumstances of the case, sufficient to justify termination of the agreement according to Section 87(4)(b) and 87(5) of the Act and: -
Secondly if I am considering whether to make a termination, I must have regard to the factors raised in Section 154E.

Section 87(4)(b) and 87(5) of the Act

In this particular case, I consider and find that the breach is not sufficient to justify termination of Mr Crowther's tenancy agreement. The reasons I do not consider that the breach is sufficient to justify termination in accordance with Sections 87(4) & 87(5) are as follows:-
((a) the nature of the breach) The nature of the breach is a failure to maintain the premises in a clean state which in this case includes an issue with hoarding. Although a significant issue of itself, I am not satisfied that the nature of the breach is such that there is any immediate risk to surrounding properties, or to other tenants. I have not been provided with a fire load report. I have not been provided with a neighbourhood impact statement. I do not have any letters or statements from the surrounding tenants. I agree with Mr McKenzie that the breach is not wilful or intentional and it is caused by a hoarding disorder.
((b) any previous breaches) It is true that this matter has been to the Tribunal before, what becomes evident is that there are some small elements of progress made on the occasions that it is brought before the Tribunal. I agree that most of that progress has been lost moving forward. I do not however feel that Mr Crowther is unable to make sustained progress and I believe he now has the assistance he needs to do so.
((c) any steps taken by the tenant to remedy the breach) Having looked through the photographs it is evident to me that Mr Crowther can, when assisted, improve the cleanliness of his premises and de-clutter (the last time an improvement is seen in the photographs is on February of 2020 (pages 20 through 24 in the landlords evidence). I accept that this has not happened of late, however I consider him capable of being able to rectify his property care issues - because he has done so in the past - with continued ongoing support. He has taken steps towards decluttering in the past, and he is now receiving various therapies and is adequately supported by appropriate services. In addition Ms Barry advises, and I accept her evidence that in the previous four weeks more improvements have been made.
I am satisfied with the information I am now provided that Mr Crowther's support services will be able to provide him with adequate ongoing support to assist him to rectify the breach of his tenancy agreement.
Mr Crowther is engaged with services to assist him in his decluttering tasks and with his overall health issues and he is working to the best of his ability towards improving the cleanliness of his home and towards an appropriate level of reduced storage.
((d) any steps taken by the landlord about the breach) I accept that the landlord has taken all possible steps to assist Mr Crowther around this issue.
((e) the previous history of the tenancy) It is clear that this issue has been impacting on the tenancy of Mr Crowther for some years. Despite this I consider that he can make the requisite improvements provided that the support mechanisms remain in place.
I do not consider that at the height of obtaining appropriate supports and with mechanisms put in place to assist Mr Crowther, coupled with the trust he has now is his new supports, that this is the time to terminate his tenancy.
With regard to Section 154E & F of the Act - :- (1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following- (a) the effect the tenancy has had on neighbouring residents or other persons,
I find that whilst I agree that the condition of the premises may impact upon the neighbouring residents, in the absence of any evidence as to the actual effect of the breach I cannot find that the neighbouring residents are effected to such a degree that their own peace, comfort and privacy is disturbed or such that termination is warranted. I do not accept that the property is a fire risk as no report has been provided although I do accept that the accumulation of combustible materials can cause fires, is unsightly and attracts rodents. I note that there is no report as to the impact of rodents.

(b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated,

There is no evidence to support a position that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated.

The landlord does have a responsibility to maintain the peace, comfort and privacy of its other tenants. I consider that the landlord is taking the steps that they need to take to ensure that the rights of other tenants are being preserved. I agree with the assertion of Mr McKenzie that a specific performance order will work to maintain the landlord's responsibilities to other tenants.

(d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord,

Mr Crowther has been the tenant for more than 18 years. The photographs that evidence the breach begin in 2017. I consider that he managed to maintain his tenancy well until impacted by his health issues. There have been other specific performance orders put in place. I can see that despite set backs, Mr Crowther is attempting, to the best of his ability and -now with expert assistance- to address the issue he has around collecting items and keeping his premises clean. I believe that since Ms Barry has gained Mr Crowther's trust, that improvements are going to be made and I accept Ms Barry's evidence that improvements are being made.

(e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal

I do not consider that the suffering of an illness and the affect of that illness on a person's surroundings constitutes a wilful breach. Mr Crowther admits the breach, and I agree that the breach is caused by his medical conditions and he needs to work with his service providers towards the management of these conditions so that they have less of an impact on his surroundings moving forward.
I also consider that the Global Pandemic has had an adverse effect upon the progress towards decluttering for Mr Crowther in that the access to various supports was significantly impacted by sickness and lockdowns.
I do caution Mr Crowther that should the impact on his surroundings, not improve with all of the hard work and support that has been promised, that it may be difficult for him to maintain his tenancy.

Orders 1. The Tenant must comply with the terms of residential tenancy agreement by keeping the residential premises in a reasonable state of cleanliness both inside and out. 2. If these orders are not complied with by the tenant then: at any time before 14-Sep-2023 the landlord may request the re-listing of this application to determine whether the tenancy should be terminated.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 12 September 2023 - Formatting amendments. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 September 2023

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