TENANTS’ RIGHTS AND THE NEW SYDNEY AIRPORT AT BADGERYS CREEK

Background

It was recently reported that Ms Lorraine Watkins had failed in her latest challenge against the federal government who have been seeking to evict her from her home in Badgerys Creek in order to make way for the new western Sydney airport. In July she lost the latest battle when her application for a stay nine years after she had moved to the 5-acre plot was refused.

Her tenancy agreement allowed the government to reclaim the land if required to make way for the airport but she sought to remain on the property until she could find a new home for herself and her disabled son and her horses and dogs.

The Department of Infrastructure and Regional Development said Ms Watkins and other tenants had been given notice over two years ago of the requirement to vacate.

Key issues

Ms Watkins had commenced living on the property in April 2008. The Commonwealth and Ms Watkins entered into a residential tenancy agreement based on a term of 13 weeks. She continued to live at the premises after the expiry date as a periodic agreement. Clause 42 of the agreement acknowledged that the property was part of the proposed site for a new airport and that vacant possession may be required on written six months’ notice without compensation. The Commonwealth first gave warning in October 2014 that she would likely be required to vacate the property by June 2015. Written notice was served in November under the Residential Tenancies Act 2010 (RTA). Ms Watkins refused to leave and in June 2015 the Commonwealth applied to the Federal Circuit Court (FCCA) to terminate the tenancy agreement and grant vacant possession. Ms Watkins opposed on various grounds. The FCCA, however, made orders for termination of the tenancy agreement and vacant possession (Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Watkins [2015]). The Federal Court of Australia eventually heard an appeal in March 2017.

The FCCA had considered a wide range of areas of law summarised in the Federal Court judgment:

1. Constitutional and jurisdictional issues

Ms Watkins, and other tenants, had contested that the termination of the tenancy was within the power of the FCCA. The court had held that ‘there was at the date of application a matter within the meaning of Ch 111 of the Constitution and s5 of the FCCA Act that the FCCA was required to resolve’.

2. Predominant use of the premises

The court had rejected the contention that the RTA 2010 did not apply because the land was mainly used for agricultural purposes rather than residential. While dogs and horses were bred and sold ‘in the absence of any details of the size and scale of that activity’ it was not satisfied, and it was noted that ‘the Premises have always been used by Ms Watkins and her son for residential purposes’.

3. Application of s.85 of the RTA 2010

Section 85 of the RTA 2010 deals with the termination of periodic residential tenancies but does not apply if the tenant has been in continuous possession of the same premises for 20 years or more when landlords cannot terminate the tenancy except on special grounds.

When the fixed term of the agreement expired, the agreement continued as a periodic agreement and as Ms Watkins had not been in continual possession for 20 or more years, s.85 applied to the termination of the agreement.

4. Service of notice of termination

Ms Watkins’ contention that she had granted her son a right of occupation by way of a sub-lease was rejected. The Commonwealth had given no such permission and the son was not party to any agreement.

The agreement was a periodic tenancy within the meaning of the RTA 2010 and that proper notice of termination had been given.

5. Appropriate date on which vacant possession was to be given

The Court identified nine matters on which Ms Watkins relied:

• Hardship: whilst acknowledging the animals to be moved and her son’s disability, no particular hardship or assistance in identifying the appropriate date by which vacant possession should be given was noted.
• Cost of moving and finding alternative premises: the claim that these costs would amount to $20,000 was rejected.
• Adverse effect on Ms Watkins’ own health and livelihood and that of her son: this was rejected for lack of evidence though ‘some allowance’ was made ‘for it in determining whether, and for how long, any order should be suspended’.
• Unduly brief period for vacating the land: this was rejected noting the period of notice already given.
• Lack of urgency and pending commercial requirement: this was rejected on the evidence.
• Lack of suitable or available alternative leaseholds: this was a generic claim also made by other tenants but in view of her ‘stated plan to move to the Hunter Valley, it has no relevance to her’.
• Failure to offer compensation: rejected as there was ‘no basis in evidence...for any right to compensation’.
• Express termination provision in tenancy agreement: the ‘express provisions were sufficiently similar in both matters’.
• Service of notice before the introduction of s.10AA of the FCCA Act: Ms Watkins had shown ‘no substantial basis for opposing the orders sought by the Commonwealth’.

Ms Watkins’ appeal included 19 grounds of instances it was claimed the FCCA had erred, many of which were opposed by the Commonwealth in that some of the new grounds had not been previously argued or were inconsistent with the way in which the case had been presented.

The court ordered that while leave be granted to amend some aspects of her notice of appeal, other grounds were refused. The appeal was dismissed and Ms Watkins to pay costs.

What does it mean?

The Full Court of the Federal Court decided that the law to be applied to the dispute between the parties was the RTA 2010 despite the extensive, imaginative, nuanced and persistent arguments applied. It is evident that issues involving tenants’ rights, whatever the period of tenancy and whoever the landlord, can be complex, wide-ranging and potentially costly to resolve. Expert advice can be essential to the resolution of the issues.

Contact Property Solicitors Surry Hills, Sydney

Szabo & Associates, Solicitors, has many years’ experience in advising on all manner of property matters. Please contact us on (02) 9281 5088 or fill in the online contact form.