They are also claiming return of rental payments, saying agreements struck after the intervention were invalid

This article is more than 10 months old

This article is more than 10 months old

Residents of a remote Indigenous community near Alice Springs are taking a legal fight about the right to “humane” housing to the supreme court, in a case that could prompt widespread housing reform in the Northern Territory.

They are also arguing that rental agreements struck in the wake of the Northern Territory intervention are invalid and are seeking the return of rental payments.

The case concerns two residents of the remote community of Santa Teresa, an Arrernte community about 80km south-east of Alice Springs.

The plaintiffs, Enid Young and Robert Conway, were among a shortlist of four who represented more than 70 households in Santa Teresa in a successful class action against the department of housing in the Northern Territory civil and administrative tribunal (NTCAT) in February.

Class action win opens door for remote communities to sue NT for housing neglect Read more

The community had lodged more than 600 requests for urgent repairs in five years, complaining of leaking roofs, missing shower heads, unlockable doors and windows, and constant leaks.

The tribunal found the community had the right to safe and habitable housing, as defined in the Residential Tenancies Act, and awarded a combined $14,000 in compensation on the finding that the houses were, for extended periods, so dangerous as to have rendered them “uninhabitable”.

The community is now appealing that decision, arguing that rental agreements signed as far back as 2011 were void, that the conduct of the department in entering into those agreements was unconscionable, and that the condition of the houses, while not in all cases immediately hazardous to health, should be held to a higher standard.

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Dan Kelly, a solicitor with Australian Lawyers for Remote Aboriginal Rights, said the supreme court action would appeal that decision using a precedent set in Manchester during the second world war, which argues that tenants have the right to housing that is “humane” and not merely not hazardous.

“The NTCAT took a narrow view of what habitability means … as relating to issues of safety or issues that might cause danger to health,” Kelly told Guardian Australia. “In our appeal we’re arguing that it should be interpreted on a wider basis, as providing a humane place to live where people can live with dignity and a reasonable level of comfort.”

Lou Dargan, head of strategic litigation at Grata Fund, a not-for-profit that is funding the legal challenge, says they are anticipating a “landmark decision”.

“This is an opportunity to get real change to housing conditions in the territory,” she says.

Young, who is in her 70s, was without a backdoor for three months and without an air conditioner for 540 days, when summer temperatures regularly reach 40 degrees. That rendered her house uninhabitable, the tribunal found.

She signed her rental agreement 18 months after the tenancy period began, and did so without translators, despite having little spoken and no written English. She told the tribunal she was visited by a “whitefella I had never seen before”, who spoke to her in English, asked her to sign a piece of paper, and “didn’t explain what I was signing”.

Kelly says he is concerned that his clients, many of whom are elderly and unwell, may not live to see the case resolved

A poor repair to Conway’s shower caused water to get in behind the tiles and flood the toilet, causing a slip hazard that lasted 109 days.

Another community member, Jasmine Cavanagh, had to get up at midnight every night to mop her bathroom from an overflowing toilet, which mixed with the water from a leaking shower. Her house was deemed uninhabitable for 269 days.

But lesser issues, like the failure to install a smoke alarm, were not considered to render houses uninhabitable and only afforded $100 in compensation.

The department says it has spent $8.86m upgrading houses in Santa Teresa since 1 July 2015, upgrading 93 of the community’s 99 homes. It has also built five new homes and plans to expand 31 existing home to help ease overcrowding pressures.

Across the territory, the department spent $39.95m on maintaining remote housing in 2016-17 and $48.47m in 2018-19, with an average of 2,500 requests for maintenance per month. Many requests, a spokesman says, are for “minor” issues like a blocked toilet.

The department says it is “committed to ensuring its premises are safe, secure and habitable, as specified under the Residential Tenancies Act and other relevant legislation”.

Northern Territory town camps need $77m for urgent repairs Read more

The class action was filed in 2016, and a delay to the supreme court appeal, which was initially scheduled for this month, means residents could be waiting five years for a resolution.

If the appeal is successful, Kelly says, it will have a wide impact on the standard of housing in remote communities in the NT.

At the moment the “vast majority” of houses in both Santa Teresa and other similar communities do not meet the standard of providing a reasonable level of comfort.

“I think reasonable comfort is expected by tenants in any sort of major centre and the law doesn’t differentiate between a major centre and a remote community,” he says.

Kelly says he is concerned that his clients, many of whom are elderly and unwell, may not live to see the case resolved. “We are anxious about trying to get the thing resolved quickly,” he says.

