Worrall v Commissioner for Housing for the ACT [2001] ACTSC 72 (13 July 2001)

Last Updated: 29 January 2002

ANTHONY WORRALL v COMMISSIONER FOR HOUSING FOR THE AUSTRALIAN CAPITAL TERRITORY [2001] ACTSC 72 (13 July 2001)

CATCHWORDS

APPEAL - Residential Tenancies Tribunal - appeal against decision refusing rent reduction under s 71 of the Residential Tenancies Act 1997 - whether grounds of a complex of blocks of flats part of the "premises" referred to in residential tenancy agreement - whether grounds a "facility" for the purposes of s 71 - meaning of "significant" diminution in use or enjoyment of premises - whether provision relating to interference with tenant's quiet enjoyment or ability to use in peace, comfort and privacy applies to necessary repairs - whether finding of no significant diminution in use or enjoyment contrary to evidence.

APPEAL - alternative claim for compensation under s 104 for breach of tenancy agreement - need to prove both breach of agreement and consequential loss - whether repairs and renovations constituted breach of agreement - whether breach by failure to give notice of such works - whether any loss caused by failure to give notice.

Residential Tenancies Act 1997, subs 104(d), s 71, s 4, s 5, s 3

Magistrates Court (Civil Jurisdiction) Act 1982, s 230

Hawkesbury Nominees Pty Ltd v Battick Pty Ltd [2000] FCA 185

McDermott v Boggs (unreported), Supreme Court of NSW, 12 March 1991

Aussie Traveller Pty Ltd v Marklea Pty Ltd (1997) 1 Qd R 1

Trade Practices Commission v TNT Management Pty Ltd (1984) 6 FCR 1

Truswell v Minister for Communication and the Arts (1996) 42 ALD 275

Drummoyne Municipal Council v Roads and Traffic Authority [1989] NSW LEC 19

Jarasius v Forestry Commission of NSW (No 1) (1990) 71 LGRA 79

Lambeth London Borough Council v Grewal (1985) 82 Cr App R 301

Amanda Stickley, "The Covenant for Quiet Enjoyment" (1998) NLR 8

On appeal from the Residential Tenancies Tribunal

No. SCA 54 of 2000

Judge: Crispin J

Supreme Court of the ACT

Date: 13 July 2001

IN THE SUPREME COURT OF THE )

) No. SCA 54 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANTHONY WORRALL

Appellant

AND: COMMISSIONER FOR HOUSING FOR THE AUSTRALIAN CAPITAL TERRITORY

Respondent

ORDER

Judge: Crispin J

Date: 13 July 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal against a decision of the Residential Tenancies Tribunal dismissing the appellant's claim for a reduction in rent payable for the lease of a flat at 8/16 Northbourne Flats, Henty Street, Braddon or, in the alternative, compensation under subs 104(d) of the Residential Tenancies Act 1997 ("the Act").

2. The flat was leased from the respondent under a residential tenancy agreement executed on 21 March 1996 (the agreement) and formed part of a complex of blocks of residential premises referred to as the Northbourne Flats. Following complaints by tenants, apparently over an extended period, the respondent undertook major renovation works in relation to the buildings and grounds of the Northbourne Flats between March and November 1999.

3. The appellant claimed to have been entitled to a reduction in rent payable for the period between 22 March and 18 October 1999 because this work had led to his use and enjoyment of the demised premises being significantly diminished "as a result of loss of the use of part of the premises" and interference with his quiet enjoyment and his ability to use the premises in "reasonable peace, comfort and privacy". The appellant sought a reduction of $27.30 per week, which was said to have been half of the weekly rent otherwise payable for the period of thirty weeks. Hence the total amount claimed was $819.00. In evidence, however, the appellant said that his rent was $49.60 per week and it would appear that this amount was either miscalculated or that it did not, in fact, represent 50% of the rent otherwise payable.

4. This claim was supported by reference to s 71 of the Act, the relevant portions of which are in the following terms:

(1) On application by a tenant, the Tribunal shall order a reduction in the rental rate payable under a residential tenancy agreement if it considers that the tenant's use or enjoyment of the premises has diminished significantly as a result of any of the following:

.........

(b) the loss of the use of all or part of the premises;

(c) interference with the tenant's quiet enjoyment of the premises or the tenant's ability to use the premises in reasonable peace, comfort and privacy by the lessor or any person claiming through the lessor or having an interest in, or title to, the premises.

5. The alternative claim for compensation was based upon the contention that there had been a breach of "Prescribed Term 52" by which the respondent was taken to have covenanted not to cause or permit any interference with the reasonable peace, comfort or privacy of the appellant in the use of the premises. The appellant again claimed the sum of $819.00 by way of compensation but also sought interest at the rate of 8.45% pursuant to s 230 of the Magistrates Court (Civil Jurisdiction) Act 1982.

6. This claim was supported by reference to the power provided by s 104 of the Residential Tenancies Act for the Tribunal to make orders requiring the "payment of compensation for loss of rent or any other loss caused by the breach of a residential tenancy agreement".

7. These claims appear to have rested upon dubious legal bases. The relevant portions of s 4 of the Residential Tenancies Act provide that:

(1) Subject to sections 5 and 6, this Act (other than Division 1 of Part 2, sections 43, 47 and 48 and subparagraph 71 (1) (a) (ii)) applies in relation to any residential tenancy agreement, whether commencing before, on or after the commencement day.

(2) Subject to sections 5 and 6, Division 1 of Part 2, sections 43, 47 and 48 and subparagraph 71 (1) (a) (ii) apply in relation to--

(a) any residential tenancy agreement commencing on or after the commencement day; or

(b) on and from 1 July 2000--all residential tenancy agreements;

whichever is earlier.

(3) Nothing in subsection (2) prevents Division 1of Part 2. Sections 43. 47 and 48 and subparagraph 71(1)(a)(ii) form applying to a residential agreement before 1 July 2000 where the agreement specifies that the Division, sections and subparagraph apply.

............

(5) For the purposes of subsection (2), a periodic agreement that was in effect immediately before, and continues in effect on or after, the commencement day shall be taken to commence on the day on which--

(a) the rental rate under the agreement increases or decreases;

(b) the rights and obligations of a party to the agreement are assigned or otherwise transferred; or

a subtenancy of the premises commences.

(6) In this section:

commencement day means 25 May 1998.

8. The provisions importing standard terms into a residential tenancy agreement are contained in Div I of Pt 2, the agreement relied upon by the appellant was a periodic agreement which commenced in March 1996 and there was no evidence of any of the matters referred to in subss (3) or (5) sufficient to establish that this division applied to the agreement at any relevant time.

9. However, the proceedings before the Tribunal seem to have been conducted upon the assumption that the standard terms applied and no such point was taken before me. In these circumstances, I do not think that the present appeal should be dismissed on this basis.

10. Both claims related to the appellant's complaints about the work that was undertaken and its impact upon his use and enjoyment of the premises. In particular, he complained that:

* work on the site began before he was given notice that the repairs and renovations were to be undertaken;

* the presence of workers and scaffolding reduced the privacy of his flat;

* the work and the machinery used to carry it out was noisy and restricted access from his flat to other flats in the complex, the roadway and the bus stop;

* the grounds became wet and muddy and he walked dirt and mud into his flat;

* the air became polluted;

* on 28 August 1999 there was a sewerage spill which created a danger and health hazard for all of the residents; and

* when he attempted to complain about the placement of scaffolding and the sewerage spill he was unable to contact anyone on the staff of either the respondent or Totalcare Industries Ltd, which had been appointed to undertake or supervise the work, and was unable to obtain relevant information or any response.

11. Photographs taken by the appellant revealed the work had effectively turned the complex into a building site. There had been many cars, heavy machinery, pipes, barriers, gates, scaffolding and building materials and the work had involved the creation of holes and trenches in the garden and footpath areas surrounding the Northbourne Flats.

12. The Tribunal found that the respondent had given inadequate notice of the work but said that this had not, of itself, been the cause of any of the problems experienced by the appellant.

13. There was also a finding that the private cars of workers and sub-contractors caused significant problems for residents of the complex and impeded access to and from "the premises". This finding apparently related to access to or egress from the Northbourne Flats complex as a whole. The Tribunal said that any resident who had been unable to safely park a vehicle in his or her allotted space would be entitled to compensation but that since the appellant had not owned a vehicle he could not sustain a claim for compensation on this ground.

14. The Tribunal did not accept that the appellant had suffered any "extraordinary inconvenience". However, it found that during the relevant period noise and fumes from the machinery had interfered with his quiet enjoyment of his premises and that he had experienced inconvenience in gaining access to his flat and using pathways to other parts of the complex and public transport.

15. After referring to s 71, the Tribunal said that it was required to ask what would constitute a significant diminution of "quiet enjoyment" or "reasonable peace, comfort and privacy". This question may not have been strictly apposite. The relevant portion of the section requires interference with the tenant's "quiet enjoyment of the premises" or "ability to use the premises in reasonable peace, comfort and privacy", but it is the tenant's "use and enjoyment" of the premises that must have been diminished significantly. However, at least in the context of this case, the distinction would appear to have been of little if any consequence and, whilst the notice of appeal initially raised this issue, the relevant ground was not maintained when an amended notice was filed. Indeed, it was conceded that the question had been correctly posed. In my view that concession was properly made. It would be difficult to envisage circumstances in which the appellant's use and enjoyment of the premises could have been significantly diminished by an interference with his quiet enjoyment or ability to use them in peace, comfort and privacy unless that interference had been itself significant.

16. The Tribunal said that in tenancy law the term "quiet enjoyment" does not mean free from noise but free from "interruption". It has been suggested that direct physical interference with the enjoyment of the premises is no longer regarded as essential to any breach of such a covenant and that it may be breached by any acts that interfere with a tenant's freedom in exercising his rights as a tenant. See Amanda Stickley, "The Covenant for Quiet Enjoyment" (1998) NLR 8 at paras 6-7. In Hawkesbury Nominees Pty Ltd v Battick Pty Ltd [2000] FCA 185 the Full Court of the Federal Court of Australia said that the principle might be expressed in the following terms:

"There will be a breach of the covenant for quiet enjoyment where the ordinary and lawful enjoyment of the demised premises is substantially interfered with by the acts of the lessor or those lawfully claiming under him, whether or not the title to the land or the possession of the land is otherwise affected"

per Hill J at [37].

The Court added that whether what is complained of amounts to a substantial interference will be a question of fact.

17. The principle adopted in Hawkesbury Nominees Pty Ltd v Battick Pty Ltd was not expressed in the same language as that employed in s 71. In particular, the court referred to the need for "substantial interference" with the tenant's enjoyment of the premises whilst s 71 requires that there be a "significant diminution" in such use and enjoyment. Nonetheless, I am inclined to think that, in this context at least, the tests are substantially similar.

18. The evidence had shown that the appellant had been disturbed by noise and fumes and had experienced inconvenience in gaining access to and from his premises. The Tribunal found, however, that although there had been some interference with the appellant's quiet enjoyment of the premises the respondent had not interfered with his quiet enjoyment "in a significant manner". Hence, it concluded that he was not entitled to a rental reduction under s 71.

19. The alternative claim for compensation was approached somewhat differently. After quoting prescribed term 52, the Tribunal observed that it had to be "read subject to the remainder of the Prescribed Terms" which include a requirement for lessors to maintain the premises in a reasonable state of repair. The latter covenant necessarily implied that the lessor would have access to the premises in order to maintain and repair them and that in turn implied some measure of inconvenience to the tenant and interference with his or her use of the premises. Whilst the appellant had maintained that the repairs carried out on the respondent's behalf had not been urgent, it was conceded that they had been necessary. The evidence had established that the respondent had employed competent and professional project managers and through them appropriate and competent workers. The appellant had not adduced any evidence of a suitable alternative method of carrying out the work.

20. The Tribunal said that term 52 had to be examined in the light of these circumstances. It referred to the respondent's duty to maintain the premises and said that the question was "whether the manner in which the work was conducted went beyond what was reasonably necessary to effect the repairs and renovations". Given the need for the repairs and the circumstances in which they had to be carried out it concluded that the work activity could not be said to have interfered with the reasonable peace, comfort and privacy of the appellant.

21. Mr Anforth, who appeared for the appellant, submitted, in essence, that the Tribunal had erred in failing to find that there had been a significant diminution in the appellant's use or enjoyment of the premises as a result of the loss of use or enjoyment of the lawn and garden areas. He maintained that these areas were part of the demised premises.

22. In support of the latter contention Mr Anforth pointed out that clause 7 of the residential tenancy agreement had required the appellant not to use

"the premises... nor any other part of the building or the grounds surrounding, adjoining or adjacent to the building, for any purpose which may be or become a nuisance annoyance inconvenience or disturbance to the Commissioner or to the tenants or occupiers of any other property in the neighbourhood".

He also relied upon the definition of the term "premises" in s 3 of the Residential Tenancies Act which includes "any land ... belonging to the premises". He argued that, since the flat leased by the appellant had been on the same title as other flats in the complex, the surrounding gardens had belonged to all of the flats in common and hence formed part of the premises which the appellant leased.

23. I am unable to accept these submissions. The residential tenancy agreement provides that the appellant agrees to hold as lessee "a residential flat . . . together with the user in common . . . of the entrance hall lifts stairways and passages leading to the premises and laundries appurtenant to the building". It is true that the Act defines a "residential tenancy agreement" to mean "an agreement under which a person grants to another person (called the "tenant") for value a right of occupation of premises for use as a residence by the tenant", whether with or without other persons and whether the right of occupation is exclusive or not; and includes such an agreement where the right of occupation is granted together with the right to use facilities, furniture or goods. It is also true that in McDermott v Boggs (unreported, Supreme Court of NSW, 12 March 1991 per Carruthers J) it was held that the rights given to a tenant under a residential tenancy agreement extend to use of the common areas. However, the term "premises" is not defined in a manner that would include any part of the gardens and the agreement contains nothing to suggest that the leasehold interest which the appellant agreed to hold extended to them. Even the rights of user in common were limited to the stated parts of the building passages and laundries. The existence of a covenant not to cause nuisance or annoyance to others by the use of any part of the building or grounds does not, of itself, provide any basis for an implication that the gardens were part of the demised premises or that the rental which the appellant seeks to have reduced was in any way referable to an entitlement to use them.

24. The reference in s 3 of the Residential Tenancies Act to "any land . . . belonging to the premises" cannot mean that any land on the same title as the demised premises forms part of those premises. If it did then each tenant in a large housing estate would be entitled to exclusive possession of the whole of the land on which the estate had been constructed. In my view, the phrase, "land . . . belonging to the premises", refers to land which runs with the premises such as the enclosed yard of a house leased as a single tenancy.

25. Mr Anforth also submitted that the loss of use of the gardens and lawns amounted to the loss of a "facility" within the meaning of subpar 71(1)(a)(i). This point was not referred to in the particulars of the application, mentioned in the opening address by the appellant's counsel at the hearing before the Tribunal or raised in final submissions. On the contrary, the case for the appellant was consistently confined to pars 71 (1) (b) and (c). Had the issue been raised at that hearing in the manner argued on appeal, the proceedings may have been conducted somewhat differently. Accordingly, even if this contention had otherwise appeared valid, I would have been unable to find that the interests of justice required that it be raised on appeal.

26. However, I do not accept that the gardens surrounding a block of flats can properly be regarded as a facility for the purposes of subpar 71(1)(a)(i). As Mr Anforth pointed out, the term is not defined by the Act. However, the Act does provide that the term "residential tenancy agreement" includes such an agreement where the right of occupation is granted together with the right to use facilities, furniture or goods. It seems reasonable to assume that the reference to "facilities" in s 71 is intended to refer to those facilities which the tenant in question has a right to use pursuant to a tenancy agreement. In any event, in the context in which it appears in subpar 71(1)(a)(i), the term would appear to refer to equipment or, as the Macquarie Dictionary puts it, "something that makes possible the easier performance of any action". That impression is confirmed by the fact that the reference appears in subpar (i) with the words "appliance", "furniture" and "service" and that this subpar plainly contemplates that the items mentioned may be "withdrawn". Similarly, I think that the reference in the definition of "residential tenancy agreement" in s 3 to "the right to use any facilities" alludes to such entitlements as the right to use shared bathrooms or laundries or other items of equipment intended to facilitate some action.

27. Mr Anforth challenged the Tribunal's finding that inadequate notice of the work to be done to the exterior or any area surrounding the premises was not, of itself, a cause of any of the problems experienced by the appellant. He submitted that the finding involved three errors of law. First, if it had been intended to mean that the appellant's problems did not extend to the loss of use and enjoyment of the surrounding gardens, it betrayed a failure to understand the case that he had advanced. Second, if it had been intended to mean that an invasion of the surrounding gardens without due notice could not give rise to actionable loss, that conclusion was plainly incorrect because such conduct would have involved a breach of prescribed term 82. Third, the reasons were unclear and there had, therefore, been a failure to comply with the Tribunal's duty under par 106(2)(c) of the Residential Tenancies Act 1997.

28. Whilst the appellant did complain about the loss of use of the gardens, it was the lack of notice that the Tribunal found was not, of itself, the cause of any of the appellant's problems. This finding was undoubtedly correct. The lack of notice may have been the source of some irritation to the appellant but it did not create the noise, fumes and other problems which he claimed caused a significant diminution in his use or enjoyment of the premises.

29. Mr Anforth strongly argued that there had been a breach of the covenant of quiet enjoyment. He observed that par 71(1)(c) applies whether the interference with a tenant's quiet enjoyment or ability to use the premises in reasonable peace, comfort and privacy has occurred due to the conduct of the lessor or a " person claiming through the lessor". I do not accept that building contractors or supervisors fall within this description. However, a lessor may breach a covenant for quiet enjoyment either by act or omission: see Hawkesbury Nominees Pty Ltd v Battick Pty Ltd [2000] FCA 185 per Hill J at [37]. Mr Anforth submitted, in my view correctly, that it may be incumbent upon a lessor to exercise contractual rights over third parties in order to prevent a breach of quiet enjoyment: see Aussie Traveller Pty Ltd v Marklea Pty Ltd (1997) 1 Qd R 1. Similar principles no doubt apply to any of the conduct referred to in s 71. Furthermore, the building contractors were engaged by the respondent for the purpose of carrying out the work which led to the events of which the appellant complains. Hence, in my opinion, the appellant would be entitled to a reduction in rent if the evidence showed that rights of the kind referred to in s 71 had been interfered with by acts of the building contractors or supervisors and, as a consequence, his use or enjoyment of the premises had been significantly diminished.

30. In fact, the Tribunal seems to have found that there had been a breach of the appellant's right to quiet enjoyment by noise and fumes and that he had also experienced inconvenience in gaining access to and from his premises.

31. In dismissing the appellant's case, the Tribunal made a number of comments which Mr Anforth argued revealed a failure to correctly understand and apply the requirement that there be a significant diminution in the tenant's use or enjoyment of the premises. The Tribunal found that the evidence did not establish that the appellant had suffered extraordinary inconvenience or physical injury, that he had never been able to gain access to the flat, that he had ever been unable to reside in it or that he had ever been made ill by the fumes, sewerage spills or stress experienced during the works. It was submitted that these findings suggested that the Tribunal had been of the view that there could be no significant interference with a tenant's use or enjoyment of premises unless he or she was deprived of their use or suffered physical injury or illness from the interference.

32. Having considered the findings in the context in which they appear in the judgment, I do not accept that they reveal any such misconception. The Tribunal did not suggest that any of the matters mentioned were essential to a finding of a breach of par 71(1)(c) and, as I have mentioned, it had stated the essential question in terms conceded to have been substantially correct. The adoption of some error of principle is not established merely by advertence to passages in a judgment referring to matters which had not been established, especially in a cases in which alternative contentions had been advanced.

33. The application ultimately depended upon whether the evidence established that his use or enjoyment of the premises had been "diminished significantly", or, in the case of the claim for compensation, whether there had been "substantial interference" with such use or enjoyment, to use the phrase employed in Hawkesbury Nominees Pty Ltd v Battick Pty Ltd [2000] FCA 185.

34. Mr Anforth conceded that the Tribunal had correctly identified the fact that the respondent had had a duty to carry out repairs and might require access to the premises for that purpose. He said that the Tribunal had also been correct in stating that "what the lessors cannot do is undertake work in a manner which results in the tenant having less than reasonable peace, comfort and privacy". He maintained, however, that the Tribunal had erred in concluding that the test was "whether the manner in which the work was conducted went beyond what was reasonably necessary to effect the repairs and renovations". As Mr Anforth pointed out, in the former formulation, the concept of reasonableness relates to the minimum rights of enjoyment the tenant is entitled to expect whilst, in the latter, it relates to the conduct of the lessor. He submitted that even perfectly reasonable conduct by a lessor might deprive a tenant of reasonable peace, comfort and/or privacy and, if the interference with the use or enjoyment of the premises is significant, the tenant will be entitled to a reduction in rent pursuant to s 71.

35. However, the diminution in use or enjoyment contemplated by s 71 is a diminution in the tenant's rights to use and enjoy the premises provided by the tenancy agreement. One cannot make a judgment as to the extent, if any, to which those rights may have been diminished without regard for the terms of the agreement including any conferring rights upon the lessor. A tenant cannot complain that his or her use or enjoyment has been diminished by acts authorised by provisions of the agreement because the rights to use and enjoyment conferred by the agreement are limited by such provisions.

36. In the present case the respondent's right to enter the premises in order to carry out repairs and renovations was specifically provided by clause 10 of the agreement which provides that:

The Tenant will permit the Commissioner his or her agents servants and workmen at all reasonable times during the tenancy to enter upon the premises or any part thereof for the purposes of carrying out any repairs which the Tenant may not be bound, or if bound may neglect, to do and for the purpose of carrying out repairs renovations and alterations to other parts of the building.

37. A lessor will, of course, be bound to carry out the repairs in a manner calculated to avoid unnecessary interference with the tenant's quiet enjoyment of the premises and it will again be relevant to consider whether the manner in which the work was conducted went beyond what was reasonably necessary and/or contemplated in such a covenant.

38. In the present case, as I have mentioned, it was conceded that the repairs and renovations had been necessary. The appellant did not contend or attempt to prove that the need arose as a result of any act or omission on the part of the lessor or that either the extent of the work or the manner in which it was conducted went beyond what was reasonably necessary. In these circumstances it is difficult to see any basis upon which the respondent could have been found to have interfered with the tenant's use and enjoyment of the premises in a manner not authorised by clause 10 of the agreement.

39. Furthermore, even if the appellant had been able to establish that there had been a relevant diminution in use or enjoyment it would still have been necessary for him to have established that the diminution had been significant. The term "significant" has been considered in a number of cases.

40. In Trade Practices Commission v TNT Management Pty Ltd (1984) 6 FCR 1 Franki J ventured the opinion at 50 that "it must mean, perhaps except in extraordinary circumstances, at least "not unimportant" or "not insignificant"." Whilst one could scarcely doubt the validity of this opinion it is not particularly enlightening.

41. In Truswell v Minister for Communication and the Arts (1996) 42 ALD 275 Matthews J said at [121] that the word "significant" had acquired a number of meanings in common parlance. Her Honour cited both the Oxford English Dictionary's definition of "full meaning or import; important, notable; and having or conveying a meaning" and the Macquarie Dictionary's formulation of "important; of consequence; expressing a meaning; indicative". Her Honour also said that she had derived assistance from considering that the word is the opposite of "insignificant" which the Macquarie Dictionary had defined as meaning "unimportant, trifling or petty" or as "too small to be important". Whilst such formulations may be of some assistance, one must obviously exercise some care in applying them. There may be room for many shades between the descriptions "important" or "notable" on the one hand and "unimportant, trifling or petty" on the other and it would be rash to assume that the term "significant" was always used in statutory provisions to denote anything not falling within the latter descriptions. Perhaps most significantly, her Honour explained at [121] that:

One thing is very clear, namely that there is necessarily a fair degree of value-judgment involved in attributing significance to something. Significance must also depend upon context. The very use of the term must frequently involve the subsidiary question `significant for what?'

42. The importance of the contextual setting was also stressed by Stein J in Drummoyne Municipal Council v Roads and Traffic Authority [1989] NSW LEC 19, who suggested that a significant effect "must be an important or notable affect . . . as compared with an affect which is something less than that, ie, non-significant or non-notable".

43. In Jarasius v Forestry Commission of NSW (No 1) (1990) 71 LGRA 79 Hemmings J held at 93-94 that in considering whether developments had a significant impact upon the environment the term "significant" meant something of "importance" or "more than ordinary".

44. In the context of a statutory provision which authorises the Tribunal to intervene in contractual rights and to order a reduction in the agreed rent the term should not be taken to mean merely sufficient to prevent the issue being brushed aside as de minimus. See Lambeth London Borough Council v Grewal (1985) 82 Cr App R 301 at 306. On the contrary, I think it is most unlikely that the legislature intended to permit the Tribunal to be flooded by claims for relatively minor incursions into the use or enjoyment of leased premises and that something of "importance" or "more than ordinary" must be established.

45. The issue seems to have been approached by the appellant in the Tribunal on the assumption that any work carried out on the complex of buildings and surrounding grounds involved a diminution in the use and enjoyment of the premises he had leased. The formulation of his claim to extend for a period of thirty weeks from 22 March 1999 appears to reflect that approach as did some of the submissions advanced in argument before me. It also seems to have been assumed that the appellant was entitled to a rent reduction for the entire period of the works irrespective of the buildings or grounds upon which they were undertaken or the extent to which such work could fairly be regarded as intrusive. It was incumbent upon the Tribunal to consider the issue not by reference to the appellant's expressed dissatisfaction with the entire project but by reference to the premises which were the subject of the tenancy agreement.

46. The appellant gave evidence of his complaints in a general and somewhat discursive manner with little explanation of the timing and duration of some of the events and it is not entirely clear whether his evidence was wholly accepted. Consequently, it is difficult to assess the extent of any interference to his peace comfort and privacy as a result of particular items of work.

47. Whilst it is true to say that a scaffold was first erected to facilitate the repair or replacement of a roof on block of the complex in March 1999 and the last scaffold was removed in October 1999, work on the rooves of the eight blocks in the complex was undertaken sequentially. The appellant's flat was located in block 16 and it appears that work on the roof of that block was carried out between about 9 August 1999 and about 3 September 1999, including the erection and subsequent dismantling of the scaffolding. Furthermore, there was no evidence as to the nature and extent of any interference with his peace or comfort or privacy as a result of the work done on that roof other than the appellant's complaints that he had been able to hear workers climbing the scaffolding and "jumping up and down" on the roof on some unspecified occasion or occasions. It does not seem to have been suggested that the work on either block 16 or any other block generated loud or prolonged noise or otherwise had any significant impact upon the appellant. He did make generalised complaints that the presence of workers and scaffolding reduced the privacy of his flat but made no attempt to describe the manner, frequency, duration or impact of any acts that may have had such an effect.

48. Similarly, whilst the appellant complained that the work and machinery was noisy and restricted access, there was little evidence as to the extent of the machinery, where each item was located, for what periods it was operated or how much noise penetrated the flat.

49. Similar imprecision attends the appellant's claim that the air became polluted. One could readily imagine that the use of machinery may have generated smoke, fumes and dust but there was insufficient evidence as to the nature of the machines, their location and the periods of operation, to enable me to form any impression of the extent to which the appellant's use or enjoyment of the demised premises may have been diminished.

50. The appellant complained at length about the work done to the grounds but, as I have mentioned, they were not part of the demised premises. He did say that he had he walked dirt and mud into his flat but the frequency and extent of this problem was not explained. It was not clear whether the problem was attributable to tramping through the gardens or using the paths, nor whether it was avoidable by the use of mats.

51. It is clear that there was a sewerage spill on 28 August 1999. One could readily assume that this was unpleasant but it was presumably cleaned up relatively quickly and does not seem to have directly affected either the appellant's flat or access to it by means of the common areas specified in the tenancy agreement.

52. Apart from these matters, the appellant complained about the lack of notice and about his inability to contact anyone appointed to supervise the work or to obtain relevant information. These problems no doubt proved a source of frustration and irritation but they did not, of themselves, lead to any diminution in the use or enjoyment of the premises.

53. In these circumstances, I am unable to be satisfied that the Tribunal fell into appealable error in concluding that the appellant had failed to prove that his use or enjoyment of the premises had been substantially diminished.

54. Somewhat different considerations arise in relation to the claim for compensation under s 104(d) of the Act. That provision authorises the Tribunal to order the payment of compensation for "loss of rent or any other loss caused by the breach of a residential tenancy agreement." Hence, it was incumbent upon the appellant to prove both breach of the agreement and consequential loss. It was not established that any portion of the work was carried out in breach of the tenancy agreement and whilst the failure to give adequate notice may have amounted to a breach there was no evidence that any loss was caused by it. Accordingly, I am unable to find that the Tribunal's decision to dismiss this claim involved appealable error.

55. For these reasons the appeal must be dismissed.

56. I will hear counsel as to costs.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 13 July 2001

Counsel for the appellant: Mr A Anforth

Solicitor for the appellant: Welfare Rights & Legal Centre Limited

Counsel for the respondent: Mr P Walker

Solicitor for the respondent: ACT Government Solicitor

Date of hearing: 6 February 2001

Date of judgment: 13 July 2001