State of Queensland Through the Department of. Housing and Public Works (Applicant) v Robert Turnbull (Respondent) Residential tenancy matters

Transcription

1 CITATION: PARTIES: APPLICATION NUMBER: MATTER TYPE: State of Queensland Through the Department of Housing and Public Works v Turnbull [2014] QCAT 442 State of Queensland Through the Department of Housing and Public Works (Applicant) v Robert Turnbull (Respondent) MCDT1191/14 Residential tenancy matters HEARING DATE: 26 August 2014 HEARD AT: DECISION OF: Southport Adjudicator Trueman DELIVERED ON: 28 August 2014 DELIVERED AT: ORDERS MADE: Southport 1. A termination order is made in respect of premises at 8/10-12 Lenneberg Street, Southport on the grounds of Failure to Leave as and from 28 August I direct the issue of a warrant of possession to the Principal Officer of Police at the SOUTHPORT Police Station in the State of Queensland on the following terms: a. This warrant takes effect on 1 September b. Whereas the Queensland Civil and Administrative Tribunal has made the Termination Order above, you are authorised for the period of 28 days from the above date expiring on the 29th day of September 2014 i. To enter the premises and give possession of the premises to the Applicant herein and ii. To exercise such powers under this warrant with necessary and reasonable help and force

2 2 iii. Entry under this warrant to be made between the hours of 8.00am and 6.00pm. CATCHWORDS: Residential tenancy matter urgent application application for termination order and warrant or possession failure to leave where alleged serious breach of lease agreement First and Final Strike Notice and Notice to Leave where tenant mentally handicapped Residential Tenancies and Rooming Accommodation Act 2008, ss 184, 290A APPEARANCES and REPRESENTATION (if any): APPLICANT: RESPONDENT: State of Queensland through the Department of Housing and Public Works represented by Mr Jason Cowan Robert Turnbull represented by Mr Rijald Hadzalic, Solicitor REASONS FOR DECISION [1] The State of Queensland through the Department of Housing and Public Works (the Department) filed an urgent application seeking orders to terminate Mr Turnbull s tenancy and for a warrant of possession on 28 July The Department claims that the tenant was served with a Notice to Leave and has failed to vacate the premises. [2] Mr Turnbull does not want to leave the premises and disputes the Notice to Leave. Applicant s evidence [3] Mr Cowan provided a sworn affidavit 1 as evidence in chief and provided oral evidence at the hearing. He said that Mr Turnbull has lived in the unit at Lenneberg Street in Southport since August He lives in a one bedroom ground floor unit in a seniors complex of 32 one bedroom units. He said the age range of the other occupants in the complex range from between 55 to 90 years old. [4] The Department alleges that on 10 June 2014 the State Drug Squad and Drug and Serious Crime Group located and removed hazardous chemicals, namely acids, carcinogenic, toxic and respiratory and systematic, and contaminated equipment believed to be used in the manufacture of dangerous drugs, from Mr Turnbull s property. 1 Sworn 11 August 2014 filed and with the registry on 12 August 2014.

3 3 [5] Mr Cowan said the Department was notified on 1 July 2014 by a letter dated 27 June from the State Drug Squad, from Queensland Police Service, of the incident. [6] Mr Cowan stated that the advice from the Police was a notification was for a Category C Clandestine Drug lab where chemicals and contaminated apparatus were present, that there was a boxed lab or lab in storage and that it was removed from the premises by the State Drug Squad. [7] Mr Cowan said the tenant was issued with a Notice to leave 3 for a serious breach of the lease agreement by using the premises for an illegal activity and a serious breach for endangering another person in the premises or person occupying or allowed on premises nearby. [8] Mr Cowan considers the storage of such equipment and chemicals alone to be a serious breach of the tenancy agreement as this is considered an illegal activity. He said that premises were not permitted to be used for an illegal purpose. 4 [9] Mr Cowan stated that Mr Turnbull was issued with a First and Final Strike Notice under the Department s Anti-Social Behaviour Policy. 5 [10] Mr Cowan said that the Drug Squad stated that their examination of the property had identified contamination in the bathroom and the kitchen areas which are believed to have been used for the manufacture of a dangerous drug. He said that although the contamination levels were low, they wanted the property vacant so they could undertake more testing and decontamination if it was deemed necessary. [11] Mr Cowan stated that Mr Turnbull placed neighbours within the complex and other neighbours in the community at risk and in danger by storing illegal drug laboratory equipment and contaminated apparatus and chemicals inside his one bedroom unit. He said that the chemicals posed a danger to the elderly neighbours in the large densely populated senior complex where the average age was 75 years. [12] Mr Cowan said the Department considers the health and safety of its staff members paramount and asserts that Mr Turnbull has endangered departmental staff, including maintenance staff, as they regularly attend the complex for routine inspections and when managing tenancy and property issues. [13] The Department considers the immediate termination of the tenancy as the appropriate response to the discovery of an illegal drug laboratory equipment, apparatus and associated toxic chemicals and asserts that it has no other option but to take such action Copy attached to original claim. Pursuant to s 290A of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA). Pursuant to s 184 of the RTRAA. Notice dated 7 July 2014 attached to original claim.

4 4 [14] Mr Cowan said that Mr Turnbull had spoken to a staff member and admitted to the allegations, he said that Police had removed the reported items and that the items did not belong to him but were left there by somebody else. Mr Cowan provided a sworn affidavit dated 25 August , from the staff member, Christine Nichols, a Senior Housing Officer from the Department. [15] Ms Nichols gave evidence at the hearing and stated that she had three telephone conversations with Mr Turnbull who did not deny the drug lab was found at his property. She said that Mr Turnbull told her that people had stored a number of boxes at his property and that he also had an idea of what was in these as he knows the type of people who placed them there. She said she spoke to Mr Turnbull on 17 June 15 July and 19 August Respondent s evidence [16] Mr Hadzalic cross examined Mr Cowan and Ms Nichols and provided submissions to the tribunal on behalf of Mr Turnbull. He submitted that the evidence of Mr Cowan s affidavit was hearsay. He said that there was no evidence as to the exact type of drugs or chemicals found in Mr Turnbull s property. He said that the chemicals found could have been chemicals purchased from a supermarket and not necessarily dangerous. He said that the contamination found in the premises could have been in the property when Mr Turnbull moved in. Mr Cowan was cross examined on this point and conceded that the property was not tested for contamination by dangerous chemicals before Mr Turnbull moved in. [17] Mr Hadzalic submitted that Mr Turnbull has denied that the items belonged to him. He said that Mr Turnbull has been charged by Police but he was pleading not guilty to those charges. He said that the Notice to Leave had included grounds of objectionable behaviour and those matters were not to be considered a ground for the termination. [18] Mr Hadzalic submitted that Mr Turnbull has special needs; he suffered complex trauma and side effects of anxiety, depression and flashbacks. He said a secure home was important to him to manage his symptoms. He said that he had engaged the assistance of a counsellor for 6 months, from October 2013 until March Mr Hadzalic provided a report from Mr Turnbull s counsellor, Cate Harvey dated 5 August [19] Mr Hadzalic said the report from Mr Turnbull s counsellor recommends that Mr Turnbull requires a secure home and familiar surroundings are very important in effective management of the..symptoms. The report states that the Department should consider some security of tenure for Mr Turnbull s housing arrangements if at all possible. 6 7 Exhibit 1. Exhibit 2.

5 5 [20] Mr Hadzalic submitted to the tribunal that Mr Turnbull was in need, that he has a history of mental health issues and a low IQ, he said that he had bowel cancer recently and that while Mr Turnbull accepts that the items were found in his residence that he did not know what the items were and that he was not in his home when they were left there. [21] Mr Hadzalic stated that there was no evidence to prove that the contaminated items were a danger to any persons and that the police matters had not been finalised and Mr Turnbull had not been found guilty of anything. He submitted that the Police Report was inconclusive. He said that the Department was correct in being concerned for the health and safety of their staff but that there was no evidence that there was any danger to staff from what had been located at Mr Turnbull s property. [22] Mr Hadzalic submitted the evidence was clear that Mr Turnbull would benefit from stable accommodation due to his physical ailments and his mental health issues and based on that fact together with the inconclusive evidence as to the exact nature of the alleged dangerous chemicals, he should be allowed to remain in the property. FINDINGS [23] The Queensland government introduced the anti-social behaviour management policy which started on 1 July The policy appears to have been an attempt by the government to inform tenants that anti-social behaviour and behaviour that upsets neighbours, disturbs the peace and poses a safety risk to neighbours will not be tolerated. Tenants are explained those responsibilities in their tenancy agreement and must sign and acknowledge that tenants must not only, amongst other things, pay their rent on time and keep the property clean and undamaged, tenants must not use the property for illegal purposes, cause a nuisance or interfere with the reasonable peace, comfort and privacy of neighbours. (my emphasis) [24] I find that the Department has an obligation to act upon Notice being given to them by the Police that a property that they manage has been found to be contaminated by hazardous chemicals and contaminated equipment believed to be used in the manufacture of a dangerous drug and the operation of an illegal act. I find that the letter from Police to the Department dated 27 June 2014 provides sufficient content that should invoke an immediate response and action to seek immediate termination. [25] I find that while the Department must balance the needs and rights of other tenants, private owners and the broader community with the need to support tenants to sustain their public housing tenancies that the Department is not compelled to attempt to salvage the tenancy when the breach is serious and dangerous. I find that where the behaviour of the tenant is considered to be dangerous or severe, the Department must take immediate action to end the tenancy.

6 6 [26] I find that the Department has made tenants aware that for dangerous or severe behaviours, a first and final strike will be issued and immediate action will be taken to end the tenancy. [27] The Department has identified three types of anti-social behaviour, the third being more dangerous or severe behaviours. The Department has identified these are activities that pose a risk to the safety or security of residents or property and may result in Police charges, and/or conviction, or significant damage to the public housing property. For example, illegal or alleged illegal activity at the property such as drug production, supply or trafficking, physical assault or acts of violence against other tenants, neighbours or departmental staff, or extensive malicious damage to departmental property. [28] I accept Mr Cowan s evidence that the Department was well aware of Mr Turnbull s mental health issues. He said that the Department is experience with dealing with tenants that have complex needs, and that many Department tenants have significant mental, physical health and other complex needs, and some with needs more complex than Mr Turnbull. He said that the Department works with people at all levels and take extraordinary efforts and steps to prevent homelessness. He said that tenants with complex needs are not exempt from the rules and that we try and re-educate and work with those that engage in objectionable or anti-social behaviour. [29] I accept Mr Cowan s evidence that the Department has been trying to work with Mr Turnbull and the issues that have been identified during the tenancy. While not relying on the incidences of objectionable behaviour I find that the fact that the Department has not sought to terminate Mr Turnbull s tenancy prior to this application is evidence of their prior ongoing commitment to work with this tenant. Mr Cowan stated that since August 2010 the Department had received a total of 14 complaints against Mr Turnbull for anti-social behaviour. I accept Mr Cowan s evidence that the Department has given Mr Turnbull verbal warnings, worked with him regarding his obligations as a tenant, encouraged and educated him to adopt strategies to minimise conflict and to resist engaging in objectionable behaviour with his neighbours, encourage him to seek assistance for his anger management and to seek mediation to resolve ongoing conflict and to keep to himself. I accept that prior to this application the Department has closely monitored the tenancy and assisted Mr Turnbull to sustain his tenancy. [30] I agree with submissions from Mr Turnbull s counsel that this application for termination is not based on objectionable behaviour. Although the Department has provided evidence with the claim regarding Mr Turnbull s history of objectionable behaviour towards his neighbours I have not considered that evidence nor taken it into account in determining this application based on serious breach. This application is founded on the first and final strike notice to leave for serious breach regarding solely the issue of the drug lab and chemicals.

7 7 [31] I find that the difficulty that exists with these types of cases is the delicate balancing act of weighing up the competing interests of the parties. The interests of the Department and other neighbouring tenants against the interests of Mr Turnbull. [32] In cases like this, a lessor may only need to form a reasonable belief that the premises or property has been used for an illegal activity whether or not anyone has been convicted or found guilty of an offence in relation to the activity. 8 [33] In my view section 290A of the Act provides a low threshold test for the Department to give a Notice to leave premises on a reasonable belief. In this case I am satisfied that the Notice from the Drug Squad, the reported levels of low contamination of the property that methylamphetamine was present on the bathroom ceiling, on the side of the washing machine, on the lounge light switch, on various walls, on the smoke alarm and under and in kitchen cupboards raises a reasonable belief that the tenant or his guests, have engaged in an illegal act and used the premises for an illegal purpose. The Department can, once formed a reasonable belief that premises or property has been used for an illegal activity, seek to terminate, irrespective or not that anyone has been convicted or found guilty of an offence in relation to the activity. [34] I find that the tenant, Mr Turnbull has complex needs and that he would benefit from stable housing accommodation I cannot ignore the severity of the allegations against him. I find that the Department should have vacant possession of the property and should investigate whether the property requires remediation or decontamination, and that this is a safety concern not just for any new tenant for the property but to protect the health and safety of the elderly resident in the neighbouring properties. [35] I accept the medical evidence that Mr Turnbull is intellectually handicapped 9 and that his capacity for impulse control and behavioural regulation has been adversely affected as a result of brain injury yet I am satisfied from the evidence that he was aware of the content of the box that his friends left in his property. I accept the evidence of Ms Nichols that Mr Turnbull told her that he had an idea what was in the stored boxes based on the type of people who left them there. Mr Turnbull is responsible for the property located in his unit, and in this case the content of those boxes were in his possession and located in his unit. I find it is irrelevant if the items belonged to him or not. [36] In the circumstances and based on the evidence I find that Mr Turnbull was properly served with the Form 12 notice to Leave issued on 11 July 2014 and that the Notice complies with the relevant legislation. He was required to vacate the property by 22 July 2014 and has not done so. 8 9 RTRAA s 290A(3). Medical opinion of Dr Frank J Walsh, Clinical Psychologist contained in Report dated 1 December 2011.

8 8 [37] I find that the evidence provided to the tribunal by the Department persuades me that there has been a serious breach of the tenancy by using the premises for an illegal activity 10, namely storage of hazardous chemicals and contaminated equipment and a serious breach by endangering another person in the premises or persons occupying or allowed on premise nearby 11, namely by storage of the alleged chemicals and equipment posing a potential or real threat to neighbours and other tenants living in the complex. [38] I find that the evidence presented by the tenant would not persuade me to exercise my discretion and allow the periodic tenancy to continue. In balancing the competing interests of the parties I find that the interest of the Department and the neighbours living next to Mr Turnbull to be more compelling to protect than the interest of Mr Turnbull. I find that unfortunately the order I propose to make will mean Mr Turnbull is likely to be homeless, but I find that he has engaged in an illegal activity by storing hazardous chemicals and equipment in his unit, and used his premise for an illegal purpose, and that his actions could have had life threatening consequences for both him and his neighbours. [39] In the circumstances the application for termination and warrant is in order and I propose to make the orders sought by the Department. ORDERS 1. A termination order is made in respect of the premises at 8/10-12 Lenneberg Street, Southport on the grounds of Failure to Leave as and from 28 August I direct the issue of a warrant of possession to the Principal Officer of Police at the SOUTHPORT Police Station in the State of Queensland on the following terms: a. This warrant takes effect on 1 September b. Whereas the Queensland Civil and Administrative Tribunal has made the Termination Order above, you are authorised for the period of 28 days from the above date expiring on the 29 th day of September 2014 i. To enter the premises and give possession of the premises to the Applicant herein and ii. iii. To exercise such powers under this warrant with necessary and reasonable help and force Entry under this warrant to be made between the hours of 8.00am and 6.00pm RTRAA s 290A(1)(a). RTRAA s 290A(b)(ii).