Use of Premises - EST0013B

Policy

Public housing is a scarce resource and is available primarily to provide homes for clients.

The Tenancy Agreement says that tenants may not:

• Use their residence for an illegal purpose
• Cause or allow a nuisance, or
• Interfere with the peace, comfort or privacy of neighbours.

Tenants may use their home for legal purposes as long as they do not breach the Tenancy Agreement. A tenant may run a legal business from their home provided:

• Tenant has the agreement of the Department
• Tenant has a current public liability insurance policy appropriate to the type of business, and
• Tenant has the approval of the Local Council and all other relevant authorities.

For more information on this policy, look in Entitlement, Background and Business Rules.

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Entitlement

Tenants of the Department have the right to quiet enjoyment of their home.

Tenants may use their home for any legal purpose that does not breach their Tenancy Agreement. However, before a tenant can use their home for a business they must get

• The Department’s approval
• Public liability insurance, and
• Any relevant Local Government or other authority approval.

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Background

The Department of Housing aims to encourage tenants to improve their employment and income opportunities.  However, the Department needs to approve businesses operated from a tenant’s home to protect against:

• Peace, comfort and privacy of neighbours being disrupted
• Premises being damaged as a result of business operations, and
• Department of Housing’s liability exposure being increased.

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Business rules

Running a business from home

The Department may allow tenants to operate a business from their home as long as they continue to live in it. The Department will only give approval to operate a business if it is satisfied that both the business and the tenant:

• Will comply with any relevant laws and local government regulations that apply to operating a business from a residential property.  If these are not complied with the Department’s approval will be deemed to have ceased automatically and without the requirement of notice being given to the tenant
• Will not increase wear and tear over and above the level that would be normal for a home, or increase utilities use (such as non-metered water in flats) that increase the Department’s costs
• Will meet their obligations under the Tenancy Agreement, in particular clauses 7.2 and 7.3 where the tenant agrees “not to cause or permit a nuisance .... and not to interfere or cause or permit any interference with the reasonable peace, privacy or comfort of any neighbour”
• Has a current public liability insurance policy appropriate to the type of business. The policy certificate must be available for the Department to inspect on request
• Will not expose the Department to excessive risk, and
• Will comply with other relevant Departmental policies such as:
  • Declaration of household income
• Note Rental costs of any business in the home are not deductible as business expenses when calculating a subsidy. See the policy on Rental Subsidies (SUB0044A)
• Alteration and additions to premises. See the policy on Improvements to Homes (EST0010A).

Where there may be a risk to the Department (as in the case of home-based child care) the Tenant and the Department will sign a short deed of agreement that details the terms and conditions of operating the business. Legal Services Branch can assist staff to prepare this agreement.

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Home-based childcare

Using a home to mind children for income is controlled under the Family Day Care and Home Based Child Care Services Regulation (1996). Under this Regulation no more than 7 children under the age of 12 can be cared for. Under its guidelines the Department of Community Services (DOCS) requires tenants to seek the landlord’s permission to operate Home Based Childcare before a licence is issued.

The Department’s approval for a tenant to run this type of business from their home will be conditional on:

• A license to run Family Day Care Service being granted by the Local Council, or a licence to run a Home Based Child Care Service being granted by DoCS
• The tenant maintaining current public liability insurance for at least $10 million, and
• Approval from the Local Council for the proposed business.

If a Client Service Officer is concerned about the childcare service (for example, no licence is available or children appear to be at risk) then they must raise the matter with their Specialist SCSO or Team Leader who is legally bound to report the matter to DoCS.  See the Child Protection Policy (EST0123A) for more information on the roles and responsibilities of client service staff under the Children and Young Persons (Care and Protection) Act 1998.

The tenant must apply to the Department to make any alterations or additions required to comply with the Family Day Care Regulations. They must pay for the construction and maintenance of these changes themselves. See the policy on Improvements to Homes (EST0010A).

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Complaints from neighbours

The Department may withdraw its approval to operate the business at any time to protect neighbours from nuisance or other possible harm.

The Department of Housing will exercise its rights under the Tenancy Agreement if neighbours complain that the business is causing any nuisance or annoyance. 

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Illegal and use of premises

Department of Housing premises must not be used for illegal purposes such as the manufacture, distribution or selling of illegal drugs. The Department of Housing will take action through the Consumer Trader and Tenancy Tribunal to terminate the tenancy if tenants are convicted of this type of illegal activity.

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Appealing Decisions or Actions

If a client disagrees with a decision the Department has made, they should first discuss their concerns with a Client Service Officer. The next step if they still believe we made the wrong decision is to ask for a formal review of the decision. For information on how reviews work, the client can ask the Client Service Officer for a copy of the fact sheet ‘Reviewing Decisions’, or go to our web site www.housing.nsw.gov.au to read the Appeals and Review of Decisions (EST0015A).

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