An APIA members’ recent endeavour to comply with the HHS heating standards brought a couple of issues to the forefront that are worth unpacking here.

Her experience in brief:

She owns a block of three adjoining flats and made inquiries with a heat pump installer (with whom she has an existing working relationship with) about
putting heat pumps into all three units. The installer assessed the property layout and advised her that to go ahead would result in excessive noise
being experienced in the adjoining flats (for example, one inverter would have to sit on the roof of the bedroom of another unit). In doing so, she
would be breaching s38 and s45(1)(e) of the RTA which guarantee the tenant’s right to quiet enjoyment. She is told that, for this reason, her units would
be exempt from compliance.

We absolutely disagree for two reasons:

  1. It is highly unlikely that the inverter of a brand new heat pump would produce so much noise as to breach a tenant’s quiet enjoyment. In any event,
    quiet enjoyment does not mean silence and is not always about noise.
  2. Even if that is not the case, noise (or the adjoining tenant’s right to quiet enjoyment) would not qualify as an exemption under the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (“the Regulations”).
    1. Even if case law subsequently make allowances to reconcile s38 and s45(1)(e) with the Regulations the likely outcome would be a modified standard
      (i.e. take all reasonable steps to ensure the standards are met to the greatest extent reasonably practicable) rather than an straight
      out exemption.

Before we unpack further, note that our commentary assumes the following:

  1. That the...