Pepperill & Anor v CEO Housing [2023] NTSC 90

Power and Water Corporation Act 1987, s 14A(1)(a) & (c).

Northern Territory Civil and Administrative Tribunal Act 2014, s 45, s 46, s 141

Belcher v McIntosh [1839] EngR 460; (1839) 174 ER 257; Proudfoot v Hart [1890] UKLawRpKQB 72; (1890) 25 QBD 42; Hall v Manchester Corporation (1915) 84 LJ Ch 732; Summers v Salford Corporation [1943] AC 283; Fine v Geier [2003] QSC 73; Gray v Queensland Housing Commission [2004] QSC 276; Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151; Young and Conway v Chief Executive Officer (Housing) [2020] NTSC 59; [2020] 355 FLR 290; Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497, referred to

Chief Executive Officer (Housing) v Young [2022] NTCA 1, considered

Applicants: Australian Lawyers for Remote Aboriginal Rights

Pepperill and Anor v CEO Housing [2023] NTSC 90

IN THE MATTER of an application for leave to appeal, pursuant to

s 141(2) Northern Territory Civil and Administrative Tribunal Act 2014

• [1] The respondent is a body corporate sole with perpetual succession. One of its functions is to provide and to assist in the provision of residential accommodation.[1] In the exercise of its powers and the performance of its functions, it is subject to the directions of the Minister.[2]
• [2] The respondent is the landlord of a significant number of residences in the remote Aboriginal community of Laramba, which is approximately 200 km north-west of Alice Springs and has a population of about 300 people. The Power and Water Corporation has statutory responsibility under the Power and Water Corporation Act 1987 for the supply of water to those residences. The water is actually supplied by Indigenous Essential Services Pty Ltd, a wholly owned subsidiary of the Power and Water Corporation.
• [3] In November 2019, 24 separate applications were commenced in the Northern Territory Civil and Administrative Tribunal ("the Tribunal") pursuant to the provisions of the Residential Tenancies Act 1999. The applicants were all tenants of residences in Laramba. They alleged, inter alia, that the concentration of uranium in drinking water supplied to their leased premises was significantly higher (about three times higher) than the maximum level of 0.017 mg/L set out in the Australian Drinking Water Guidelines. On that basis, the applicants further alleged that their premises were not "habitable" as required by s 48(1)(a) of the Residential Tenancies Act 1999 and/or did not "meet all health and safety requirements specified under an Act" under s 48(1)(b) of the Act. The applicants sought, inter alia, the following order by way of relief against the respondent:

The respondent install within 7 days at or for the premises a system or filter (such as a reverse osmosis system) to remove uranium from the water emanating from at least one tap in the kitchen to below the maximum safe drinking level set in the Australian Drinking Water Guidelines, being 0.017 mg/L, pursuant to s 64 or s 67 of the Northern Territory Civil and Administrative Tribunal Act 2014.

• [4] By agreement between the parties, three of the 24 applications proceeded as test cases. The present applicants for leave to appeal were the applicants in one of those test cases.[3]
• [5] The applications first came before Member O'Reilly who decided that the "uranium issue" should be determined as a preliminary question, not as to the merits, but as to whether s 48(1) Residential Tenancies Act 1999 required a landlord to ensure a certain standard of water quality in circumstances where legal responsibility for the supply and quality of water rested with the Power and Water Corporation. In relation to that question of law, Member O'Reilly rejected the applicant's factual assertion that water was "made available by the landlord at the premises", and found as follows:[4]

In reality the landlord does not make water available at the premises at all. The landlord's responsibility is to provide safe and functioning infrastructure to facilitate the supply of water by the service provider.

• [6] Member O'Reilly rejected an interpretation of the Residential Tenancies Act 1999 which would have "invested responsibility in the landlord for environmental factors emanating from outside the boundary of the [leased] premises".[5] Member O'Reilly held that, with respect to the level of uranium in the water at Laramba, the respondent could not be in breach of s 48(1) of the Act.
• [7] The three applicants applied for a review of Member O'Reilly's decision.
• [8] In conducting the review, the Tribunal was required to proceed by way of rehearing.[6] However, the Tribunal was not restricted to an examination of the evidence or material before the original decision maker but was able to take into consideration any further evidence or material which the Tribunal might decide to admit for the rehearing. The statutory objective of the exercise of the review jurisdiction was to produce "the correct or preferable decision".[7]
• [9] Before the Tribunal, it was common ground that the concentration of uranium in water supplied to the Laramba residences exceeded the level of 0.017 mg/L recommended by the Guidelines.[8] Although there remained the dispute as to whether and, if so, to what extent those uranium levels posed a threat to the health or safety of the applicants, the Tribunal did not decide the merits of that dispute but confined itself to reconsidering the question decided by Member O'Reilly, that is, whether the concept of 'habitability' in s 48(1) Residential Tenancies Act 1999 required the landlord to ensure a certain standard of water quality in circumstances where water was provided by an external provider.[9]
• [10] The review hearing took place over two days, on 4 and 5 April 2022. Both parties filed further evidence. The evidence filed by the applicants included an affidavit of Lindsay Smith,[10] an experienced officer in the Department of Territory Families, Housing and Communities, who held the position of Senior Director Infrastructure in the Remote Program Delivery Office. In his evidence, Mr Smith explained intragovernmental and funding arrangements for the supply of water to remote communities and outstations. The Tribunal referred to Mr Smith as "Mr Lindsay" in its published reasons for decision, but the reference was clearly to Lindsay Smith. The Tribunal's summary of his evidence is as follows:[11]
  1. Mr [Smith] explained intragovernmental arrangements, particularly the Northern Territory's funding of the Power and Water Corporation (and its subsidiary, Indigenous Essential Services Pty Ltd) to deliver water in remote communities and outstations. The Northern Territory does so through the agency of the Department of Territory Families, Housing and Communities (which does not, itself, have legal personality).
  2. Mr [Smith] confirmed that this is a departmental responsibility, and is not the role of the Chief Executive Officer (Housing). Mr [Smith] also confirmed that the water supply for Laramba (and the adjacent Napperby Station from which the community was excised in 1992) is provided by the Power and Water Corporation (via Indigenous Essential Services Pty Ltd) (the PWC), and not by the Department or the Chief Executive Officer (Housing) (the CEOH). Mr [Smith] said at [10]:

If there were to be an issue with the water supply at Laramba, the Department or the CEOH relies on PWC to manage and rectify the issue, as the physical

infrastructure outside the houses is beyond the Department and the CEOH's control.

1. Mr [Smith] also explained intragovernmental arrangements where the water supply presents a known health risk. At [13] he said that this is "usually addressed by the Department of Health and PWC on a whole of community basis", with the Department of Territory Families, Housing and Communities "sometimes" involved in the "community process" from a funding perspective. This is a reference to "sometimes" providing funding for community participation, as distinct from the Department "sometimes" taking responsibility for funding the supply of water to remote communities, or taking responsibility for funding the resolution of health risks.
2. Likewise Mr [Smith] said that the Chief Executive Officer (Housing) was also "sometimes" involved in the "community process" where there was a known health risk, but only where that process "affects the CEOH's tenants or houses". Mr [Smith] concluded that, apart from this involvement with the community process, the response to a health risk in a community is "generally controlled and managed by PWC".
3. Mr [Smith] provided an example at [14] of the Power and Water Corporation's response to a health risk from an algae outbreak at the remote community of Yuelamu. It developed options in consultation with the Department of Health, and implemented an emergency response whereby bottled water was initially supplied. This was followed by establishing an interim single collection point for treated water, followed by a permanent solution whereby community buildings were re-plumbed using a dual water reticulation system from a permanent treatment plant.
4. On behalf of the Northern Territory, the Department was involved in funding this project. The Chief Executive Officer (Housing) was involved only to the extent that the project "required alterations to public housing" infrastructure.
5. Mr [Smith] also referred at [11] to a collaborative arrangement from late 2019 between the Northern Territory and the Power and Water Corporation to "improve the water supply to Laramba over both the short term and the long term", both in relation to water quality and long term water security. This project was funded by the Northern Territory through the Department, and was not a project of the Chief Executive Officer (Housing). It accorded with the Northern Territory's assessment of the risk to health from the water supply at Laramba, which is disputed by the applicants.

• [11] The Tribunal made a number of specific findings based on the evidence of Mr Smith, as follows:[12]
  1. The intragovernmental arrangements between the Northern Territory (through the agency of its various departments), the Chief Executive Officer (Housing), and the Power and Water Corporation (including its subsidiary Indigenous Essential Services Pty Ltd) were wholly conventional.
  2. Those entities have discreet and separate functions.
  3. The Power and Water Corporation has sole responsibility for the supply of water to premises at Laramba.
  4. The Chief Executive Officer (Housing) is not legally responsible for that supply of water, whether directly or pursuant to some agency or de facto arrangement with the Power and Water Corporation (or the Northern Territory).
• [12] The Tribunal noted a further fact at a later point in its reasons for decision, namely, that the applicants (and other Laramba residents) were not charged for the supply of water to their leased premises.[13]
• [13] The Tribunal noted that the applicants did not dispute Mr Smith's evidence or suggest that some adaptation of the conventional intragovernmental arrangements existed vis-à-vis the supply of water to residents at Laramba.[14]
• [14] The Tribunal summarized the applicants' case in this way: (1) the intragovernmental arrangements for the supply of water to Laramba houses and the resolution of health risks always involve the Northern Territory "in one departmental or corporate guise or another"; (2) as a result, the supply of water is encompassed by the concept of habitability in s 48(1)(a) Residential Tenancies Act 1999; (3) the consequence is that the Chief Executive Officer (Housing) bore responsibility for the supply of water under that provision.[15]
• [15] I am not sure that the Tribunal accurately characterised the applicants' case, but that was not the fault of the Tribunal. Before the Tribunal, the applicants' ultimate submission was the proposition set out below:[16]

A home is not habitable if the only available drinking water provided by the landlord contains elevated concentrations of uranium which cause a risk of injury to health of the occupants. [italic emphasis added]

• [16] That proposition seemed to depend on water (to the Laramba houses) being "provided by the landlord". However, it is unclear as to whether that was the applicants' case. In an earlier part of the applicants' written submissions, counsel had put the proposition differently; the landlord's obligations were not said to be dependent on the water being supplied by the landlord:[17]

..... the respondent's obligations as landlord under the Act include ensuring that water supplied to premises leased by it does not contain unsafe levels of uranium.

• [17] Although the Tribunal accepted that, in some circumstances, external factors may be a landlord's responsibility by reference to the concept of habitability, the Tribunal rejected the applicants' submission that "it is irrelevant where the habitability issue emanates from" and that the relevant question is "merely whether it affects habitability of the premises and if so did the landlord ensure it was ameliorated".[18] The Tribunal did so because it considered that the matters submitted did not accord with the "standard of reasonableness test" identified by the Court of Appeal in Chief Executive Officer (Housing) v Young.[19] The Tribunal held that, in applying that objective standard, it is necessary to consider all of the circumstances in context, since the source and context of a habitability issue cannot be irrelevant to application of the standard.[20]
• [18] The Tribunal then considered the statutory scheme under the Residential Tenancies Act 1999.
• [19] Section 48 of the Residential Tenancies Act 1999 provides as follows:

(1) It is a term of a tenancy agreement that the landlord must ensure that the premises and ancillary property to which the agreement relates -

(a) are habitable;

(b) meet all health and safety requirements specified under an Act that apply to residential premises or the ancillary property; and

(c) are reasonably clean when the tenant enters into occupation of the premises.

(2) It is not a breach of the term specified in subsection (1) if the failure to comply with the term is caused by -

(a) an act or omission of the tenant; or

(b) the tenant's failure to notify the landlord of repairs required to the premises.

• [20] In its reasons, the Tribunal first noted that the habitability obligation in s 48(1) applied only to 'premises and ancillary property'. It then referred to s 117, which deals with the responsibility, as between the landlord and tenant, for payment of charges for electricity, gas and water, and which expressly permits a landlord to require a tenant to pay the latter charges (but not other "charges, levies, rates or taxes"). The Tribunal concluded that s 117 contemplated that the three utilities mentioned are ordinarily 'supplied' by an external provider, which the Tribunal took to mean they were not part of 'premises' or 'ancillary property', whether physically or in the sense of attracting legal responsibility. On that basis, the Tribunal held that the habitability obligation in s 48(1)(a) would not be engaged where an external entity was legally responsible for the supply and quality of water.[21]
• [21] Exceptions identified by the Tribunal both involved circumstances where a landlord expressly or impliedly accepted responsibility for the quality of water supplied. Reference was made to the situation where a residential lease provided that the landlord should bear responsibility for the quality of water;[22] also, where the landlord accepted some responsibility, de jure or de facto, for the supply of water by an external entity. The Tribunal considered that there was no evidence of the second situation in the case before it.[23]
• [22] The Tribunal then referred to various 'textual indicators' in the Residential Tenancies Act 1999 which, it considered, confirmed that the habitability requirement in s 48(1)(a) does not ordinarily require a landlord to ensure the potability of externally supplied water.[24] I have difficulty in understanding how the Tribunal reached that conclusion. True it is that potability of water is not mentioned in the legislation. However, the provisions referred to by the Tribunal are essentially neutral in relation to the crucial question. For example, one of the objectives of the Act, specified in s 3(d), is "to ensure that tenants are provided with safe and habitable premises under tenancy agreements ...".
• [23] The Tribunal next considered the position of the Power and Water Corporation and its statutory responsibilities. The Tribunal noted that it was a function of the Power and Water Corporation to "acquire, store, treat, distribute, market and otherwise supply water for any purpose',[25] and "to undertake, maintain and operate any works, system, facilities, apparatus or equipment acquired for any purpose".[26] In this context, the Tribunal noted that the respondent had no statutory function to supply water.
• [24] Finally, the Tribunal referred to the intragovernmental arrangements in relation to the quality of drinking water, set out in a memorandum of understanding dated June 2011 between the Power and Water Corporation and the Department of Health. The Tribunal noted that the memorandum did not "bestow any responsibility [on the respondent] for the quality of drinking water".[27]
• [25] After giving detailed consideration to the statutory scheme, as explained in [20] - [24], the Tribunal considered the relevant tenancy agreements, including that of the within applicants. In the absence of a written tenancy agreement, the prescribed form provisions of Schedule 2 were held to apply.[28] In the view of the Tribunal, those provisions did not alter the default provision of the statutory scheme that the concept of 'habitability' in s 48(1) does not extend to the supply of water provided by an external provider.[29]
• [26] The Tribunal then gave a number of examples which, it considered, served to underscore that the applicant's construction of the term 'habitable' does not satisfy the objective standard of reasonableness explained by the Court of Appeal in Young.[30] The Tribunal reasoned that if the applicant's construction were correct, it would apply not only to the supply of water but also to the supply of electricity. That in turn would mean that both public and private landlords may be liable under s 48(1) where there is a significant disruption in the electricity supply, resulting in leased premises becoming uninhabitable. The Tribunal further reasoned that, on the applicant's construction, if residential premises were rendered uninhabitable in that way, and the power supply were not quickly restored, then the landlord would be required to take measures to "restore habitability" by supplying a portable generator.[31]
• [27] This was said to be a 'surprising legislative outcome', not at all apparent from the text of the statute.
• [28] The Tribunal ultimately determined, as the correct and preferable decision on review, to confirm Member O'Reilly's formal dismissal of the three applications (including that of the within applicants).[32]

• [29] The applicants seek leave to appeal the Tribunal's decision.
• [30] The proposed grounds of appeal are as follows:

The Tribunal failed to apply a correct understanding of s 48(1)(a) of the Act by concluding that there is no breach of that obligation if the cause of there being a risk of injury to health in the premises emanates from a third party or "external provider".

The Tribunal failed to apply a correct understanding of s 48(1)(a) of the Act by concluding that there is no breach of that obligation if questions of health and safety are determined by reference to a standard of reasonableness that has determinative regard to who or what, other than the landlord, might be responsible for a risk of injury to health for those resident in the premises.

The Tribunal failed to consider or evaluate a central element of the case, namely, the undisputed evidence that the tenants had no contractual or financial relationship with the company engaged by the landlord to supply water, which water was paid for by, and under an agreement with, that landlord.

• [31] Any appeal from the Tribunal's decision is governed by s 141 Northern Territory Civil and Administrative Tribunal Act 2014, which reads as follows:
  1. Appeal to Supreme Court

(1) A party to a proceeding may appeal to the Supreme Court against a decision of the Tribunal on a question of law.

(2) A person may appeal only with the leave of the Supreme Court.

(3) On hearing an appeal, the Supreme Court must do one of the following:

(a) confirm the decision of the Tribunal;

(b) vary the decision of the Tribunal;

(c) set aside the decision and:

(i) substitute its own decision; or

(ii) send the matter back to the Tribunal for reconsideration in accordance with any recommendations the Supreme Court considers appropriate;

(d) dismiss the appeal.

• [32] The critical question on any appeal for which leave might be granted is whether the Tribunal erred in law. The error of law must be such as to vitiate the decision of the Tribunal,[33] that is, that there is a real possibility (as distinct from a mere or slight possibility), that the error of law could (but not necessarily would) have affected the Tribunal's decision.[34] The Tribunal's findings of fact are not open for reconsideration on the merits and necessarily stand unless infected by errors of law.
• [33] The application for leave to appeal relies on the merits of the proposed appeal, which were fully argued on the hearing of the application for leave. In addition, however, the applicants submit that this is a test case; that it is in the interests of justice that leave to appeal be granted because the applicants' appeal (if leave is granted) will resolve a legal issue affecting all current applications to the Tribunal by Laramba residential tenants.[35] It is also said to have wider implications in the sense that the issue may be common to many remote Aboriginal communities across the Northern Territory in which the respondent is a residential landlord.
• [34] The applicants also submit that the legal questions arising in this proceeding provide the first opportunity for a Northern Territory court to authoritatively determine the scope of the obligation under s 48(1)(a) Residential Tenancies Act 1999 specifically in respect of risks of injury to health.[36]
• [35] In relation to ground 1(a), the applicants contend that the Tribunal's core reasoning was that the landlord has no obligation to ensure the drinking water coming from taps in the premises is safe because 'water is provided by an external provider'.[37] That analysis is consistent with pars [9], [20], [22] - [23], [25] and [28] above and, in my opinion, correctly states the Tribunal's reasoning. The applicants further contend that the Tribunal's reasoning in this respect was erroneous because it misunderstood the applicable law.[38]
• [36] The appellants contend that the applicable law is that, by virtue of the term incorporated into the applicants' tenancy agreement by s 48(1)(a) Residential Tenancies Act 1999, the respondent

"must ensure that the premises... are habitable". The obligation is such that the respondent may be required to intervene to make sure the premises are habitable "if other factors which the landlord does not actively control would make it otherwise".[39]

The applicants submit that the obligation referred to in [36] is an active obligation, more so than a duty of care obligation in tort. Counsel for the applicants refers to Slivak v Lurgi Australia Pty Ltd.[40] That case involved allegations of negligence and breach of statutory duty against the designer of a fume extraction system on which the appellant was working at the time he was injured. The Occupational Health, Safety and Welfare Act 1986 (SA) provided that the designer of a structure "must ensure so far as is reasonably practicable that the structure is designed so that the persons who are required to erect it are, in doing so, safe from injury and risks to health". The statutory duty was thus a duty to ensure the safety of construction workers (to the extent reasonably practicable), not simply to prevent a foreseeable risk of injury to them. In relation to the statutory cause of action, Callinan J observed as follows:[41]

I would accept that the subsection certainly does impose a higher duty upon a designer than the common law. The words "must ensure" produce that consequence.

• [38] Callinan J acknowledged that the statutory duty was not absolute, because of the limiting words "so far as is reasonably practicable" in the legislation. Although there is no such express limitation contained in s 48(1)(a) Residential Tenancies Act 1999, the applicants accept that reasonableness should be implied: they submit that use of the word 'ensure' obliges the lessor "to take reasonable steps to ascertain and satisfy himself that the premises meet the statutory threshold".[42] The applicants do not limit their argument to the time of commencement of a lease; rather they contend that the obligation continues throughout the term of the lease, in accordance with s 48(1)(a) of the Northern Territory legislation.
• [39] The notion of habitability has a long jurisprudential history, considered in detail by the Court of Appeal in Chief Executive (Housing) v Young.[43] It is clear that the concept of habitability has for many years involved the criteria of health and safety, as well as reasonable comfort.[44] Indeed, the criterion 'health and safety' appears to have been more essential to the concept of habitability than 'reasonable comfort'. However, I note that in relation to the criterion of reasonable comfort, the Court of Appeal referred with apparent approval to decisions of the New South Wales Civil and Administrative Tribunal in which premises were held to be unfit for habitation, including where there was no functional hot water system and where there was no usable bathroom and toilet.[45]
• [40] Counsel for the respondent contends that, if leave were granted, the question for this court would be whether or not a "landlord in the Northern Territory" is responsible by reason of s 48(1)(a) of the Residential Tenancies Act 1999 for ensuring the potability of mains water supplied to premises by the Power and Water Corporation.[46] In my opinion that suggested formulation of the question is wrong. The question is not concerned with the obligation of landlords Territory-wide. The question or questions of law argued on this application for leave to appeal relate to the respondent's obligations as landlord under its tenancy agreements with the tenants of some 24 houses in Laramba, specifically the applicants.[47] That question or those questions of law arise for determination in the particular circumstances applying in Laramba, established on facts found by the Tribunal or facts not in contention before the Tribunal. The respondent's obligations imposed by s 48(1)(a) Residential Tenancies Act 1999 are not to be considered in a vacuum.
• [41] The respondent submits that responsibility for the potability of mains water to the Laramba community specifically is a whole of government concern.[48] To the extent that there is any health issue in connection with the water supplied to the applicants' residence (which the respondent denies and which in any event does not directly arise for final determination in this application for leave), it relates to the uranium content of the water coming from bore fields located well away from the community, which is the responsibility of the Power and Water Corporation.[49] The respondent then contends that, as a result, it is not responsible for ensuring the potability of water supplied to the Laramba houses because, as a matter of construction, "the potability of mains water sits outside of the framework of reciprocal obligations imposed on landlords and tenants under the Residential Tenancies Act 1999, and is unrelated to the physical structure and conditions of premises and ancillary property with which Part 7 of the Act is concerned".[50]
• [42] In my judgment, it is no answer to the applicants' claims that water to their home is provided by an external provider. In this respect, I do not see that the finding made by the Tribunal referred to in [11] above - that the respondent is not legally responsible for the supply of water to premises at Laramba - resolves the issue. It may be that under the "intragovernmental arrangements" the respondent has no role in the supply of water, and is not "legally responsible" for the supply of water, but that finding clearly relates to operational matters. It does not absolve the respondent of whatever specific obligations it has under s 48 Residential Tenancies Act 1999 to ensure that the applicants' residence is habitable.
• [43] For the purposes of deciding this application for leave to appeal, the following propositions may be stated:-
  1. If running water were not supplied to the applicants' residence, then the residence would not be habitable. It would not provide the applicants 'reasonable comfort' in the Central Australian climate.[51]
  2. The respondent's obligation under s 48(1)(a) Residential Tenancies Act 1999 to ensure that the applicants' residence is habitable thus requires that it ensure that running water is supplied to the applicants' residence.
  3. Water is supplied to the applicants' residence by the Power and Water Corporation (through a subsidiary).
  4. There is no contract between the applicants and the respondent, or between the applicants and any other entity, for the supply of water to their residence.
  5. The applicants are not charged for the supply of water to their residence.[52]
  6. The respondent knows, or must be taken to know, that water is supplied to the applicants' residence by the Power and Water Corporation (or a subsidiary).
  7. Water is supplied to the applicants' residence with the consent, express or implied, of the respondent.
• [44] It follows from the propositions stated in [43] that the quality of the water which the respondent permits to be supplied to the premises is a habitability issue.
• [45] In circumstances where the respondent is required to ensure that the applicants' residence is habitable, and that includes ensuring that water is supplied to their residence, it would make no sense if the respondent were not required to ensure that the water supplied is safe to drink. It is a matter of 'health and safety' as it bears on habitability.
• [46] The Tribunal held that, in the circumstances of this case, the applicant's construction of the term 'habitable' did not satisfy the objective standard of reasonableness explained by the Court of Appeal in Young.[53] I disagree with the Tribunal's statement. As explained in footnote 19 above, the objective standard of reasonableness was applied in assessing the criterion of comfort or reasonable comfort, and not in assessing risks to a tenant's health and safety, although I consider that it may still be relevant to determining the measures required to minimise or eliminate a real or potential risk (if one is identified).
• [47] In my judgment, the Tribunal erred in law in holding that the quality of drinking water supplied to the applicant's residence in Laramba was not an issue of habitability for the purposes of s 48(1)(a) Residential Tenancies Act 1999. The Tribunal erred in law in confirming member O'Reilly's formal dismissal of the applications referred to in [4] above, including the application of the present applicants, "insofar as they relate to the concentration of uranium in the water".
• [48] The issue as to whether or not the uranium content of water supplied to the applicants' residence poses a risk to the long-term health and/or safety of those who drink that water is a clear habitability issue, by reference to the 'health and safety' criterion. The existence, nature and level of risk remains to be decided. However, if it is determined that the uranium content of water supplied to the applicants' residence does pose the risk described, this question might then be asked: "Should the landlord, which relies on water being supplied in order to ensure that the premises are habitable, be required to ensure that the water supplied is rendered safe by installing a plumbing fixture in the applicants' home, namely a filter such as a reverse osmosis system to remove uranium from the water coming from one kitchen tap?". To my mind, posing that question demonstrates how the quality and safety of water supplied to the leased premises, albeit by a third party, impacts on the obligation of the landlord to ensure that the premises are habitable.
• [49] I turn to consider the specific ground or grounds on which the appeal should be allowed. Counsel for the respondent submits that ground 1(a) is misconceived because the Tribunal did not conclude that "there is no breach of the s 48(1)(a) obligation if the cause of there being a risk of injury to health in the premises emanates from a third party or external provider".[54] Counsel contends that the Tribunal found only that the obligation in s 48(1)(a) does not ordinarily require a landlord to ensure the potability of mains water; and that there was nothing in the tenancy agreements themselves, or the facts and circumstances relating to the applicants' premises which justified a departure from the ordinary position established by the statute.[55] I reject the respondent's arguments. It is clear that the Tribunal's reasoning was based on a finding that the respondent was "not legally responsible" for the supply of water to Laramba because Power and Water Authority had sole responsibility for such supply.[56] That finding then permeated the Tribunal's reasoning.[57] A particularly relevant example is the following statement, made after the Tribunal had considered the applicants' prescribed form tenancy agreement:

Again, in our view those provisions do not alter the default provision of the statutory scheme that the concept of "habitability" in s 48(1) does not extend to the supply of water and other utilities because it is provided by an external provider.

• [50] I grant leave to appeal and allow the appeal on ground 1(a).
• [51] The drafting of ground 1(b) is close to incomprehensible. In any event, it would be inappropriate for this Court to decide the arguments in relation to ground 1(b) in circumstances where the Tribunal has not yet heard and determined the parties' cases in relation to the risk, if any, to the long-term health and/or safety of the applicants as a result of the uranium content in the water supplied to their home.
• [52] In the circumstances, I do not consider it necessary to consider ground 2.

• [53] The application for leave to appeal is allowed.
• [54] The appeal is allowed on ground 1(a).
• [55] I would propose to set aside the Tribunal's decision on account of the error(s) of law identified in [47].
• [56] I will hear the parties in relation to specific orders, consequential orders and costs.
• [57] The applicants are to file and serve a minute of proposed orders consistent with these reasons. The matter will be listed for further argument if there is any dispute between the parties in relation to such orders.

[1] Housing Act 1982, s 15(1)(a).

[2] Housing Act 1982, s 17.

[3] Various Applicants from Laramba v Chief Executive Officer (Housing) [2020] NTCAT 22 at [7] and the Schedule.

[4] Various Applicants from Laramba v Chief Executive Officer (Housing) [2020] NTCAT 22 at [45].

[5] Various Applicants from Laramba v Chief Executive Officer (Housing) [2020] NTCAT 22 at [54].

[6] Northern Territory Civil and Administrative Tribunal Act 2014, s 45.

[7] Northern Territory Civil and Administrative Tribunal Act 2014, s 46(1).

[8] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [10]. I note, although it is not relevant to the present application, that the Guidelines were updated in January 2022, version 3.7, to round up "the health-based guideline value for uranium" from 0.017 to 0.02 mg/L.

[9] See, eg, Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [12], [14] and [72].

[11] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [33] - [41].

[12] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [44]. It may not be ultimately necessary to characterize the findings as findings of fact or law, but I consider that finding 4 is a finding of law.

[13] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [69]. Strictly speaking, the Tribunal did not make a finding of fact, but rather noted "that it was common ground" that the applicants and other Laramba residents were not charged for the supply water to their premises.

[14] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [42].

[15] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [43].

[16] Applicant's submissions on the Respondent's obligations concerning drinking water with unsafe levels of uranium, dated 4 September 2020, par 29.

[17] Applicant's submissions on the Respondent's obligations concerning drinking water with unsafe levels of uranium, dated 4 September 2020, par 4.

[18] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [51] - [52].

[19] Chief Executive Officer (Housing) v Young [2022] NTCA 1. The Tribunal appears to have misapprehended that the 'reasonableness test' identified by the Court of Appeal at [50] was in relation to comfort, not health and safety: "The relevant test of liability, apart from matters of health and safety, is 'comfort', subject to Lord Atkin's qualification that a reasonable view of that criterion must be taken". [underline emphasis added]

[20] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [53]. That part of the Tribunal's decision is the subject of proposed ground of appeal 1(b).

[21] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [56].

[22] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [58].

[23] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [59].

[24] References made to Long title, s 3, s 4, s 9(4)(c), s 10(5)(d), s 24A, s 25, s 28, s 47, s 48, s 51, s 60, s 63, s 68, ss 70-73, s 82, s 86 and s 92.

[25] Power and Water Corporation Act 1987, s 14A(1)(a).

[26] Power and Water Corporation Act 1987, s 14A(1)(c). Note that the paragraph continues: [for any purpose] "referred to in paragraph (a) or (b).

[27] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [62].

[28] The Tribunal was referring to the 'default' Residential Tenancy Agreement contained in Schedule 2 to the Residential Tenancies Regulations 2000. Clause 6 contained an identical provision to the term set out in s 48(1) Residential Tenancies Act 1999.

[29] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [72].

[30] Chief Executive Officer (Housing) v Young & Anor [2022] NTCA 1.

[31] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [74].

[32] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [77].

[33] See Development Consent Authority v Phelps [2010] NTCA 3; 27 NTLR 174 at [11], and cases there cited.

[35] Various Applicants from Laramba v Chief Executive Officer (Housing) [2020] NTCAT 22 at [7].

[36] Affidavit of Daniel John Kelly promised 20 May 2022, par 9.

[37] Reference was made to Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [56], [60]-[61], [72].

[38] See, for example, Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 at [2];

Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [27].

[39] Applicants' submissions on appeal, par 15.

[40] Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304.

[42] Applicants submissions on appeal, par 15. The applicants rely on, inter alia, Young and Conway v Chief Executive Officer (Housing) [2020] NTSC 59; [2020] 355 FLR 290 at [69], [76]-[80], and Varricchio v Wentzel [2016] SASC 86; (2016) 125 SASR 191 at [50].

[43] Chief Executive (Housing) v Young and anor [2022] NTCA 1 at [33] et seq.

[44] Belcher v McIntosh [1839] EngR 460; (1839) 174 ER 257, 258; Proudfoot v Hart [1890] UKLawRpKQB 72; (1890) 25 QBD 42, 50-51; Hall v Manchester Corporation (1915) 84 LJ Ch 732; Summers v Salford Corporation [1943] AC 283; Fine v Geier [2003] QSC 73; Gray v Queensland Housing Commission [2004] QSC 276.

[45] Chief Executive (Housing) v Young and anor [2022] NTCA 1 at [43].

[46] Respondent's written submissions 30 August 2022, par 1; repeated at par 8.

[47] As to the standing of the applicants, see [4] and footnote 4 above.

[48] Respondent's written submissions 30 August 2022, par 12.

[49] Respondent's written submissions 30 August 2022, par 11.

[50] Respondent's written submissions 30 August 2022, par 2.

1. [51] Chief Executive Officer (Housing) v Young & Anor [2022] NTCA 1, at [47] - [50]. See also the NSWCAT cases referred to in [39] above.

[52] See [12] and footnote 13 above.

[53] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [76].

[54] Respondent's written submissions 30 August 2022, par 19.

[56] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [44].

[57] Various Applicants from Laramba v Chief Executive Officer (Housing) [2022] NTCAT 3 at [56], [61] and [72].