The Tribunal records that the tenant has asked for written reasons for this decision and these will be provided in accord with the VCAT Act 1998.

1. On 19 March 2014, the landlord gave the tenant three days' notice under section 245 of the Residential Tenancies Act 1997 ("the Act") to vacate the rented premises, one of two units , stating that the premises were unfit for human habitation because there was no fire wall between the two units. On 25 March 2014, the landlord applied to VCAT for an order under section 322 (1) of the Act, granting possession of the premises to the landlord.
2. I heard the application on 2 April 2014 and dismissed it, because the grounds stated in the notice to vacate had not been proved.
3. I gave oral reasons for that decision and the tenant's solicitor sought written reasons. The reasons which follow have been prepared from my notes and may differ in some minor respects from the oral reasons, mostly because in giving reasons at the hearing it was unnecessary to set out all of the background which follows, as it had already been addressed during the hearing.
4. The tenant gave evidence and was represented by a solicitor from the Tenants Union of Victoria and the landlord gave evidence and was represented by a real estate agent from Barry Plant Rosanna. I offered the landlord an opportunity to seek an adjournment to obtain legal advice but the landlord said she preferred to proceed with the hearing on the day.

1. Section 330 of the Act provides that the Tribunal must make an order for possession if the Tribunal is satisfied that landlord was entitled to give the notice to vacate and it has not been withdrawn. Section 245, under which the landlord gave the tenant notice to vacate, provides:

"(1) A landlord may give a tenant a notice to vacate rented premises if the premises -

(b) have been destroyed totally or to such an extent as to be rendered unsafe.

(2) The notice may specify a termination date that is the date on which the notice is given or a later date."

1. The landlord relied on sub-section (1)(a). There was no suggestion that the premises had been destroyed, but the landlord argued the premises were unfit for human habitation. The circumstances were unusual.

1. On 16 October 2013, the Banyule Council issued a Building Notice under section 106 of the Building Act 1993, determining that building work had been carried out at 202 Waterdale Road , without a building permit, in contravention of the Building Regulations, to convert a single occupancy dwelling to a dual occupancy dwelling. It also determined that:

"The building is a danger to the life, safety and health of any member of the public or of any person using the building, in that:

3.2.1 The building has no fire separation in-between the units and is a danger to occupants using the building as it is in contravention of part 3.7 of the National Construction Code 2012,and:

3.2.2 Adequate sound insulation has not been installed and the occupant could be subject to illness or loss of amenity."

1. Then on 7 November 2013, the landlord had received a subsequent notice from the Council, requiring that the house be converted to a single occupancy dwelling within 90 days of the date of that notice. The Council had followed up in February 2014, seeking access to the building to determine whether the required changes had been made. It was common ground that no changes had been made.
2. The landlord's position was that she could not afford to convert the building by installing the necessary fire walls. Therefore, she stated, it was necessary for one tenant to leave, to comply with the Council's requirements. The landlord said she had chosen to give notice to vacate to the tenant of unit 2, Ms Johnson, because the tenant of unit 1 had a 12 month lease, so, as the landlord saw it, she could not give notice to vacate to that tenant.
3. According to Ms Johnson's uncontested evidence, the building was converted to a dual occupancy dwelling around 20 years ago and she had been living there for much of that time. Ms Johnson stated at the hearing that she was willing to vacate the premises and was actively seeking somewhere else to live, but had found nothing yet.
4. In order for the landlord to succeed in obtaining an order for possession in this application, it was necessary that she prove the rented premises at unit 1 were unfit for human habitation.

1. It was the landlord's position that the Council's determination set out above, that the building was a danger to the life safety and health of any member of the public or of any person using the building, because there was no fire separation and no adequate sound insulation, was sufficient to show that the building was unfit for human habitation.
2. It was contended for the tenant that the words 'unfit for human habitation' should be interpreted strictly. This was so it was said because in contrast to most other provisions in the Act for a landlord to give notice to vacate, section 245 had no minimum notice period - the tenant could be asked to leave immediately.
3. Further, the tenant contended, also in contrast to most other kinds of possession order in the Act, the tenant had no options for seeking postponement of the warrant of eviction if an order for possession was made on the basis of a notice under section 245. The tenant argued in effect that section 245 provided for emergencies, not for situations like the present one.
4. There is no statutory definition of 'unfit for human habitation'. Certainly there is nothing in the Act or elsewhere to say that failure to comply with Building Regulations is sufficient to show that the building is 'unfit for human habitation'. However, the phrase 'unfit for human habitation' has been considered by Courts in other jurisdictions and those cases provided some guidance for me. In Summers v Salford Corporation [1943] AC 283, the House of Lords relevantly said:

"If the state of repair of a house is such that by ordinary user damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation".

1. In Gray v Queensland Housing Commission [2004] QSC 276, this was paraphrased by Chesterman J in the Queensland Supreme Court :

"The test approved by the House of Lords may be paraphrased: if the state of repair is such that injury is to be expected, or will naturally occur, from the ordinary use of the premises they cannot be regarded as fit for human habitation

1. In Jones v Bartlett (2000) 205 CLR 166 the High Court, in considering the extent of the landlord's common law duty to provide tenants with "reasonably safe premises" provided guidance about the meaning of "dangerous defect". At page 178, Gummow and Hayne JJ said:

"Many domestic items might be said to be dangerous: gas ovens, caged fans, hard floors, electrical circuits and panes of glass may cause serious or even fatal injuries...However, they are ordinarily only dangerous if misused. They will only be defective if they are dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used.'

Whether these premises are unfit for human habitation

1. Taking that guidance into account, in deciding whether particular premises are unfit for human habitation, it is important to consider whether the premises are dangerous when in 'ordinary use'. The Council's determination that a fire wall is necessary does not automatically indicate that injury will result from ordinary use of the premises. A fire (whether accidental or deliberate) is not an ordinary use of the premises in my view. Further and more importantly, there was evidence relevant to this question.
2. The tenant's evidence was supported by a letter from an official working for the local Federal Member of Parliament. The official, Ms Milne, had spoken to Banyule Council's Mr Brett Fitzmorris and reported that he told her there were no immediate fears for the tenant's safety as the property was fitted with hard-wired smoke alarms and the tenant had lived there safely for almost 20 years. This was not sworn evidence and Mr Fitzmorris was not present to be questioned about it. However, I had no reason to doubt either the truth of the statement or that he had made it. The tenant's own evidence supported that she had lived there for that period and that the smoke alarms were present.
3. Further, Ms Milne's letter said that Mr Fitzmorris had reported to her that the Council had no preference for either tenant to leave the dwelling, only that it was to be a single dwelling until the owner put a firewall in place. Again that was consistent with the notices already given by the Council and I had no reason to doubt it.
4. Taking all that evidence into account, I could not be satisfied that the premises occupied by this tenant were unfit for human habitation. That is because injury was not to be expected from ordinary use of the premises. This was an unexpected result for the landlord given the words used in the Council notice, but the circumstances are relevant. The notice was directed at the building as a whole not at one part of the dual occupancy building and I was satisfied that the Council's position was that there was no immediate danger and the premises would be fit for human habitation if one tenant departed. This was not in my view sufficient to indicate that unit 2 on its own was unfit for human habitation.
5. I agreed with the submission made for the tenant that section 245 should be interpreted strictly because its effect is so immediate - the tenant can be asked to leave without even a day's notice and has no opportunity to seek a postponement of the warrant of eviction. I was not satisfied that the Council's notice to the landlord, where the evidence indicated that there was no immediate danger from ordinary use, indicated that the house was unfit for human habitation. Therefore the grounds stated in the notice to vacate had not been proved.

1. The landlord's evidence was that she could not afford to install a fire wall, so one tenant must leave. I accepted her evidence but it could not justify the giving of notice under section 245. That could only be justified by proving that the premises were indeed unfit for human habitation.
2. The landlord had always been free to give notice under section 263 of the Act for "no specified reason". That would have allowed 120 days' notice to the tenant. The landlord could have given such a notice when the Council first notified the landlord of its determination and requirements, in October 2013. Had such a notice been given then, the tenant would have been required to leave by mid-February 2014.
3. The tenant's solicitor also submitted that the landlord could seek an extension of time from the Council. I heard no further evidence or submissions about this and I need make no decision about it. For the information of the parties I add that it appeared that the landlord had not exhausted her options either under the Residential Tenancies' Act 1997 or under other relevant laws.

1. I was not required to solve the landlord's dilemma, but only to consider whether the order for possession sought by the landlord on the basis of the notice given on 19 March 2014 should be made. I was not persuaded it should be made, because I was not satisfied the landlord had shown that the premises were unfit for human habitation.
2. For these reasons, the application was dismissed.
3. The tenant's solicitor also submitted that the Charter of Human Rights and Responsibilities Act 2006 was relevant to the question of interpretation of the Residential Tenancies' Act 1997. Because the relevant law and the factual situation was unambiguous and led to a determination in favour of the tenant, it was unnecessary for me to address that issue at the hearing so I have not considered it now in these written reasons.