Case
Parslow v NSW Land & Housing Corporation; NSW Land & Housing Corporation v Parslow [2018] NSWSC 843 (Parker J)
With more than flickering irony, in the midst of Vivid Sydney, the light festival, these proceedings light up a colourful part of Sydney’s social and industrial history; Dawes Point, part of The Rocks precinct. But for Sally Parslow, the Plaintiff, the case offers only darkness. She has now lost her home. Her home of more than 40 years.
As well as one woman’s loss, the decision inspires broader reflection on government policies addressing homelessness and social housing. Such a policy must balance competing demands; the imperative of creating more social housing for (alarmingly) growing numbers of eligible persons and the compelling need to protect the continuity of sanctuary of existing beneficiaries of public housing schemes. Beneficiaries like Sally.
About Sally
Sally is in her mid 70s. She describes herself as a “social and environmental artist”. For more than half her life, “home” for Sally, and her daughter, Arana, was a four storey, somewhat dilapidated, but history-filled terrace house, circa mid 1800s, at Dawes Point.
Sally’s Place
Sally’s Place, and scores of other terraces in the area were constructed as simple boarding houses to accommodate dock workers whose industry flourished throughout the 1800s until the 1970s. Such dwellings were originally owned and operated by the Maritime Services Board. Later, by the Housing Commission and now the NSW Land and Housing Corporation. Sally moved to the area during the “Battle of the Rocks” movement; a protest conducted by The Rocks Residents Action Group between 1971 and 1974. It aimed to conserve the area’s heritage.
In the late 1970s, Sally assumed managing the boarding house operation of her home. In 1981, soon after the birth of her daughter, and as a single mother, she was granted a boarding house tenancy by the Maritime Services Board. Overtime, Sally undertook restoration efforts to her home.
In 1989, Sally was granted a 10-year lease (with two 5-year options to renew) of her home. In 2010, she was granted a further 10-year lease of her home. Sally operated her home as a boarding house until the late 1990s. Since then to now, it has been Sally’s private residence.
Leases issued by the Housing Commission contain standard terms, including the requirement for the tenant to relocate if suitable alternative accommodation is made available. Sally’s tenancy was no different.
Public Housing and Homelessness Crisis
By way of aside, from about 2011, homelessness in NSW escalated at alarming rates. The census at the time confirmed the position. In response, in 2014, but attended by controversy, the NSW Government announced its plan to sell close to 300 properties, including Sally’s home, in The Rocks area, a proverbial nugget. The stated purpose was to fund public housing elsewhere and attempt to dent the bulging social housing waiting list, then stagnating at around 57,000.
The flipside of the policy saw the actual or threatened displacement of nearly 600 local residents, including Sally. And with it, the torching of a residential community which stood in counterpoint to the adjacent modern commercial district and was an enduring homage to Sydney’s history.
Time to Move On
In 2016, Sally was offered alternative social housing places. But Sally refused to leave her home. In March 2017, she received a notice terminating her lease. Soon after, possession proceedings were commenced against her by the Housing Corporation. Redfern Legal stepped in and represented Sally. She commenced these proceedings in the Supreme Court of New South Wales. She sought a declaration that she was entitled to remain a tenant of her home for the term of her life. Her claim was based in estoppel including estoppel by convention and proprietary estoppel.
Following a multi-day hearing in April 2018, on 8 June 2018, the Court found against Sally. Although one aspect of her claim for the lifetime tenancy of the home was considered legally tenable (that based on equitable estoppel) the action was barred, including on the basis of the laches doctrine.
And Now?
Now, Sally has but 28 days to vacate her home and close the door for the last time.
Legal Doctrine
In terms of legal doctrine, the case offers a classical exposition on equity including close engagement with the principles set out in Handley’s Estoppel by Conduct and Election (2nd Ed, 2016).
On Laches
The Court set out a helpful summary of the principles associated with laches.
- It is available whether or not there is a statutory limitation period applicable by analogy and whether or not any such statutory limitation period has expired: CSR Ltd v Amaca Pty Ltd [2016] VSCA 320 at [259]-[262].
- It requires an “inordinate delay” on the part of a plaintiff in bringing the claim.
- “Mere” delay, consisting of nothing more than a failure to mount a claim, is not, of itself, enough to give rise to the defence of laches. Something more is required. That may be supplied by detriment as a result of the delay. It may also be supplied by conduct of the plaintiff amounting to acquiescence in the violation of the plaintiff’s alleged equitable rights.
- Lost evidence is a recognised category of prejudice, but it is not at large. It is not enough that evidence may have been lost. The Court must be satisfied that evidence has actually been lost which might have made a difference, although it is not necessary to demonstrate that evidence would definitely have altered the result: Orr v Ford [1989] HCA 4, (1989) 167 CLR 316 at [330].
- Laches is an affirmative defence.
- The onus of establishing the necessary prejudice lies on the defendant.
On acquiescence
The Court found that some of Sally’s conduct amounted to acquiescence. Various aspects of her conduct from 1989 onwards was a form of acquiescence which made it inequitable to grant relief. It included the following:
- She withdrew a caveat on the home to the extent necessary to allow the registration of the Housing Commission’s twenty-year lease.
- She entered into two leases (1989 and 2010), the terms of which are inconsistent with the terms of the lifetime residential entitlement.
- She negotiated with the Department on the footing that the 1989 lease governed the relationship.
- The Housing Commission and the Department undertook, often at Ms Parslow’s express request, repair and refurbishment work of the home.
- She negotiated a public housing lease in 2010.
Broader Reflection: Homelessness and Public Housing in NSW
Since 2014, over $530 million has been raised from the sale of property in The Rocks area, including Dawes Point. These funds have enabled the construction of more than 800 new social housing units in NSW. There are more than 300 residences currently under construction.
Despite the government’s efforts, the waiting list for public housing continues to bloat. Current figures are difficult to precisely ascertain. But it has likely ballooned to beyond 65,000 people. Alarmingly, a further 140,000 people are eligible to be on the waiting list but are not registered.
Lights off at Sally’s Place
n the meantime, on the doorstep of Sydney’s Winter Light Festival, ViVID, the Dawes Point residential community is fractured. And in Sally’s case, her castle is no longer. The lights will soon turn off.
The Decision
Link: The Decision