VIC Case precedent guide to help upcoming VCAT case - obligation by landlord to provide clean water

[Non-Newtonian Fluid]

Hi All,
I have a pending VCAT hearing against my previous residential landlord for the electricity costs I bore for daily distilling of tank collected rooftop/gutter rainwater for the entire multi year tenancy. The hearing date will be advised any day now, after both parties issued their submissions.
Unfortunately, the Residential Tenancies Act (even after it was updated in 2021) makes no explicit mention of the requirements for landlords to supply purified water, where there is no mains or town water connection (probably because those people involved in drafting legislation are almost entirely suburban based where its not a consideration).
The Victorian Health Department did issue a PDF release in 2011 that 'encouraged' landlords to consider this issue & that they 'may' be required to supply clean water ("for drinking, bathing, cooking & cleaning").
For me, it's simply the Common Law Duty of Care - Melbourne Water has to ensure clean mains water & the parallel is landlords have to ensure clean tank water.
If I could find at least one past case in Australia (preferably not in another state as I would prefer the authority of a higher Victorian or federal court to bind the Member's decision) to make it a slam dunk would be much appreciated. The Health Department clean water for tenants document is still going to be a big help.

Is the best way to simply search the online law databases ( All Databases ) & search "landlord clean water residential"?
Any guide/tips would be appreciated, even in how to search.

Thanks in advance

 

[Scruff]

Forget all this "duty of care" stuff - it's not relevant.

Not sure you can win this one. While I think the basis for your case is strong, there is definitely a sticking point that you might not be able to overcome.

Let's start with the good...

If there's no mains water connected to the property, then section 53 of the Residential Tenancies Act applies.

53 Residential rental provider's liability for various utility charges

(1) Subject to section 53AA, a residential rental provider is liable for -
....
(d) water charges in respect of rented premises which are not separately metered, including -
(i) all sewage disposal charges imposed by a water corporation under the Water Act 1989; and
(ii) all costs and charges related to a water supply service; and
(iii) water supplied to the rented premises;

(Note: Section 53AA relates to installation of a solar system under the Solar Homes Program, which is not applicable here.)

The problem with the above is that water supply service is not defined in the Act and is therefore up to the interpretation of the Tribunal Member, which means there's a bunch of different ways you can look at it. This means you will need to argue the grounds for your case, which should be the simple part...

The thing you need to do is separate "tenant" from "tenancy". What I mean by that, is that section 53 is very clear in that it relates to supply of water to a rented premises - which is not the "tenant" or any other person, but a property.

Since you supplied the water to the "rented premises", the landlord is liable under section 53 for "all costs and charges related to a water supply service". So even though you were the tenant, you still provided the "water supply service" referred to in the Act, which makes no distinction in regard to who provides that service.

These are all facts that you need to raise and you need to make sure that you shoot down any attempt by the landlord to link the supply to the "tenant" instead of the property. Be sure to point out on every such occasion that section 53 relates to supply of water to a "property", not a "person".

And now the bad...

The obvious thing that the Tribunal is going to ask is "why are you bringing this up now instead of during the multi-year tenancy?" And that's a very valid question. Unless there's something you haven't told us, you should have sorted this out years ago.

There are usually time limits in regard to what you can claim at the Tribunal, so unless there's some extraordinary circumstances at play, I don't see the Tribunal ordering costs relating to years of expenses that could have been claimed at the time they were incurred.

While the good is very good, I'm afraid the bad is also very bad, which means I don't fancy your chances. If you did try to come to some arrangement during the tenancy, then maybe - but the question still remains, why leave it so long to bring it to the Tribunal? If the tenancy was terminated by eviction, then the Tribunal is probably going to view your claim as being vindictive - they certainly would here in NSW.

 

[Non-Newtonian Fluid]

Forget all this "duty of care" stuff - it's not relevant.

Not sure you can win this one. While I think the basis for your case is strong, there is definitely a sticking point that you might not be able to overcome.

Let's start with the good...

If there's no mains water connected to the property, then section 53 of the Residential Tenancies Act applies.



(Note: Section 53AA relates to installation of a solar system under the Solar Homes Program, which is not applicable here.)

The problem with the above is that water supply service is not defined in the Act and is therefore up to the interpretation of the Tribunal Member, which means there's a bunch of different ways you can look at it. This means you will need to argue the grounds for your case, which should be the simple part...

The thing you need to do is separate "tenant" from "tenancy". What I mean by that, is that section 53 is very clear in that it relates to supply of water to a rented premises - which is not the "tenant" or any other person, but a property.

Since you supplied the water to the "rented premises", the landlord is liable under section 53 for "all costs and charges related to a water supply service". So even though you were the tenant, you still provided the "water supply service" referred to in the Act, which makes no distinction in regard to who provides that service.

These are all facts that you need to raise and you need to make sure that you shoot down any attempt by the landlord to link the supply to the "tenant" instead of the property. Be sure to point out on every such occasion that section 53 relates to supply of water to a "property", not a "person".

And now the bad...

The obvious thing that the Tribunal is going to ask is "why are you bringing this up now instead of during the multi-year tenancy?" And that's a very valid question. Unless there's something you haven't told us, you should have sorted this out years ago.

There are usually time limits in regard to what you can claim at the Tribunal, so unless there's some extraordinary circumstances at play, I don't see the Tribunal ordering costs relating to years of expenses that could have been claimed at the time they were incurred.

While the good is very good, I'm afraid the bad is also very bad, which means I don't fancy your chances. If you did try to come to some arrangement during the tenancy, then maybe - but the question still remains, why leave it so long to bring it to the Tribunal? If the tenancy was terminated by eviction, then the Tribunal is probably going to view your claim as being vindictive - they certainly would here in NSW.

Hi & thanks for the response.
In counter to your point about "why did it take so long", I raised the issue 2 months after tenancy with the following demands (exact details):

I require the landlord/agent to carry out repairs to the premises in 14 days. The repairs needed are to:
1) empty the water tank
2) clean the water tank
3) fit a filtration system to the water tank so that water from all taps is suitable for drinking, bathing & cleaning
4) refill the water tank

And in further counter to a potential counter point to this, it is not a simple thing to "up & leave" to find another property.

Regardless, it doesn't address the overarching issue that the landlord is obligated to provide sanitised/clean water.
From your perspective, it would be like you turning on the tap at your house & sewerage coming out. You contact Sydney Water (if that's the provider) & they state "tough, its your problem to fix/treat".

There are a million issues that laws do not address, often/typically because lawmakers didn't think of them (treating tank water is an example because of urban centric draftspeople - it doesn't matter to them). Hence, Common Law principles to address the 'unspoken'.
My guess is the State Health Department released the private water guidelines because they aren't lawmakers, but the issue was raised with them in the past & they were like *hint, hint, landlords, tenants could take legal action against you, hint, hint*!!
The document states:
Landlords and estate agents have an obligation to keep their properties in good repair, and this may include provision of a safe water supply.
Most Victorians get their water from the state’s water corporations through piped supply systems. These corporations are regulated by the Safe Drinking Water Act 2003 to ensure the water they supply is fit for human consumption.
However, many Victorians, particularly those in rural and semi-rural areas, get their water from tanks, bores, rivers or streams, and these untreated sources are not regulated.
Under the Residential Tenancies Act 1997, you may be responsible for ensuring that the water you supply to your rental property is safe.

This includes the supply of water that is safe for:
• drinking and food preparation
• use in the bathroom (teeth cleaning, showering and bathing)
• other activities that may result in the consumption of water.

In expectation of winning the case (I'll be highly surprised if I don't), I am actually going to ask the Member to give their opinion on the absence of water treatment in the Residential Tenancies Act, which I will then use to lobby the relevant Member Of Parent to get the Act fixed.
I can only think of the thousands of renting Victorians (& Australians) who have putrid water supply, simply because they aren't strong willed enough to act against landlords/agents who respond "the Act says we don't have to do anything" (which is the response I got after the initial demand above, 2 months into the tenancy).

Oops, just remembered now! This discussion triggered it! The Victorian Health Department guidelines are that you can collect rainwater into a storage tank when you are connected to mains water, but YOU ARE NOT ALLOWED TO CONSUME IT, IT CAN ONLY BE USED FOR 'GREY-WATER' PURPOSES (washing machine, toilet flushing, watering garden).
Awesome, just solidified my case even further!

 

[Scruff]

Okay, I found the guideline you're referring to plus something else that might help.

It's good that you brought this up with the landlord early on, because like I pointed out, you would have a huge problem if you didn't.

On the surface, the guideline has an issue with it's wording. It uses the word "may" instead of explaining different situations and using using the word "must" where applicable. However, if you read the document, it becomes clear that it only relates to two scenarios:

1. where a property is connected to the mains and the water supply is regulated; and
2. where a property is not connected to the mains and all obligations for providing clean and safe water fall to the landlord.

When read in the correct context, the word "may" doesn't have the usual meaning of something being "optional", but is instead a direct reference to the second scenario. It is therefore clear that the intention of the guideline is that the landlords' obligations are mandatory if the second scenario applies.

I also found this, which might be very helpful:
Private drinking water -> Cleaning

In the box titled "Key messages", it states:

Private drinking water supply systems consist of everything from the source water to the point of use, and should have a regular monitoring and maintenance program.

This is a bonus because the Residential Tenancies Act doesn't contain a definition for "water supply service", but Vic Health indicates that any such definition should include everything up to the "point of use" - and that is something you can use.

So your legal grounds for a claim of compensation is an ongoing breach of section 53 of the Residential Tenancies Act.

These are the points that I would argue:

1. The landlord failed to comply with their obligations under Vic Health Guidelines in relation to the supply of clean and safe water to the residential premises. This occurred despite a request by the tenant for the landlord to rectify the issue, which the landlord refused.

2. As a direct result of the landlords' actions, the tenant incurred ongoing costs throughout the tenancy in relation to water treatment, which would have otherwise been incurred by the landlord had they complied with their obligations under the Vic Health Guidelines.

3. Since the Residential Tenancies Act doesn't contain a definition of "water supply service" for the purpose of section 53, the definition should be derived from Vic Health in this case, which is that a water supply service includes "everything from the source water to the point of use".

4. Given the purpose of the Vic Health Guidelines, logic dictates that the definition of "point of use" is any point at which the water is clean and safe to consume. Drawing any other conclusion would be in direct conflict with the intentions of the Guideline, rendering the entire Guideline meaningless.

5. Logic therefore also dictates that any process required to make the water clean and safe to consume in order to comply with the Guideline, must occur before any "point of use" and is therefore by definition, part of the "water supply service".

6. Because any such treatment process is part of the water supply service, the landlord is liable for all associated costs under section 53, regardless of who provides the treatment or where in the water supply chain the treatment occurs.

7. As the landlord is liable under section 53 for all costs related to the "water supply service", the tenant is entitled to compensation for all costs incurred in relation to providing the water treatment service.

You will need:
1. the URL and prints of the page I linked above to argue the definitions; and
2. the URL and prints of the Vic Health Guidelines; and
3. evidence of the costs you incurred.

It won't be enough to just argue that the landlord breached the Guideline. You need to associate that with liability under section 53 of the RTA and to do that, you need to successfully argue that the water treatment you provided constitutes part of the "water supply service" for which the landlord is liable for under section 53 of the RTA.