Korena Marie Russell v Camden Council

[2018] NSWLEC 1159

Land and Environment Court

New South Wales

Medium Neutral Citation:

Korena Marie Russell v Camden Council [2018] NSWLEC 1159

Hearing dates:

8 and 9 January 2018

Date of orders:

10 January 2018

Decision date:

10 January 2018

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

(1) The appeal is upheld.
(2) The order issued under section 121B of the Environmental Planning and Assessment Act 1979 by Camden Council dated 21 July 2017for the removal of the mobile structure from the premises at 24A Currans Hill Avenue, Currans Hill is revoked.
(3) The exhibits are returned.

Catchwords:

APPEAL – against order under section 121B of the Environmental Planning and Assessment Act 1979 requiring the removal of structure from the rear yard of residential premises - is the structure mobile a caravan – is development consent required

Legislation Cited:

Camden local Environmental Plan 2010
Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Miscellaneous Consent Provisions) 2007
Local Government (Manufactured Home Estates, Caravan parks, Camping Grounds and Movable Dwellings) Regulation 2005
Motor Vehicles Act 1989

Cases Cited:

Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395
T & K Berry v Wollongong Council [2008] NSWLEC 210
Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184

Category:

Principal judgment

Parties:

Korena Marie Russell (First Applicant)
George Alexander Russell (Second Applicant)
Camden Council (Respondent)

Representation:

Counsel:
Mr A Pickles SC (First and Second Applicant)

Solicitors:
Super & Super Lawyers (First and Second Applicant)
Mr M Cottom, HWL Ebsworth (Respondent)

File Number(s):

2017/247827

Publication restriction:

No

EX Tempore Judgment

1. COMMISSIONER: The applicants have appealed against the order issued by Camden Council on 21 July 2017 under s121 B of the Environmental Planning and Assessment Act (EPA Act) requiring the removal of a “ mobile structure” (structure) from the rear of her premises at 24A Currans Hill Drive, Currans Hill ( the site). The appeal is made pursuant to section 121ZK of EPA Act.

2. On hearing an appeal subsection (4) provides that the Court may:

(a) revoke the order, or

(b) modify the order, or

(c) substitute for the order any other order that the person who gave the order could have made, or

(d) find that the order is sufficiently complied with, or

(e) make such order with respect to compliance with the order as the Court thinks fit, or

(f) make any other order with respect to the order as the Court thinks fit.

3. In this instance the applicants seek a revocation of the order based on two grounds. First, that the “mobile structure” referred to in the order is a caravan, not a structure or a temporary structure as defined under section 4 of EPA Act and secondly, that it is a movable dwelling to which clause 77 of the Local Government (Manufactured Home Estates, Caravan parks, Camping grounds Movable Dwellings) Regulation 2005 applies. Therefore, no approvals under the EPA Act or Local Government Act 1993 (the LGA) are required for its placement and use on the site.

4. Whereas the Council contends that the “mobile structure” is not a caravan and falls within the definition of structure under s4 of the EPA Act; and therefore requires development consent under cl11 (1) State Environmental Planning Policy (Miscellaneous Consent Provisions) 2007 (SEPP MCP). Noting that the definition of “mobile structure” (structure) under the EPA Act is the same as that found in the LGA: “Any tent, or any caravan other than a portable device (whether on wheels or not), used for human habitation”.

The essential Issue

5. The essential issue is a factual determination as to whether the “mobile structure” referred to in the order is a caravan. For the following reasons I agree with the applicants and find that the “mobile structure” is, for all relevant purposes, a caravan and is lawfully placed on the land. As a consequence I have determined that the order be revoked.

The Facts

6. The background facts are outlined in the Council’s Statement of Facts and Contentions filed with the Court on 8 September 2017 (‘SOFC’). The statement records that the site is within the Camden Local Government area and has a residential zoning. The property is surrounded by single dwelling houses apart from on the eastern boundary which adjoins commercial premises.

7. It is agreed that the structure was placed on the site sometime in October 2017 by crane. I observed the structure at the site view and note that it has the obvious appearance of a caravan.

8. The structure is located about 300mm from the rear boundary fence of the site. It is rectangular in shape with wheels, drawbar, and has lights, a VIN plate attached. It is currently registered as a caravan. The “structure”, although mobile, is positioned on the site on temporary supports and connected to plumbing, sewer, gas and electricity services. Internally there is a kitchenette and bedroom area with separate ensuite. There is no stove or cooking facilities within the “structure”.

9. According to the affidavit evidence of the first applicant, Korena Russell sworn on 14 November 2017 (Exhibit C), the “structure” is inhabited by her daughter and her partner. They sleep there and periodically shower in the ensuite. They eat /cook their meals in the main residence on the site.

10. The parties have provided me with detailed written submissions addressing various definitions of what the “structure” is and the relevant case law. However, at the hearing the parties agreed that the first question to be asked is whether the “ structure” falls within the definition of movable dwelling and thus within the express exclusion from the definition of building. It is only if the structure does not fall within that definition that the question of whether it is a “temporary structure” or “structure” needs to be explored.

11. That said, the Council focussed was upon the definition of movable dwelling in the LGA (which is the same as that within the EPA Act) and a submission that the structure could not be described as a caravan or other portable device because at the time of the erection of the structure it was not used for human habitation. According to the Council the relevant time for a consideration of this matter of human habitation is when the structure was brought to the site by crane or shortly after that time. On that basis, the Council submitted that the mobile structure was not being used for human habitation and is thereby outside the definition of movable dwelling.

12. The Council accepts that the caravan is not a manufactured home because it does not contain a kitchen. It also accepts that the structure is a “portable device” which satisfies the first part of the definition of “movable dwelling” but contends that it is not used for “human habitation” (Respondent’s submissions (RS) at [15]) therefore is not within the definition. The applicants contend that the Council has confused the concept of human habitation with domicile.

13. The question of human habitation depends not on how long it is occupied but whether it is resided in: T & K Berry v Wollongong City Council [2008] NSWLEC 210.However the Council argues that in order to be inhabited the structure must be capable of being a domicile or dwelling. The applicants submit that the case law supports a contrary position. That is, human habitation connotes something less permanent than a domicile. It offers the example of a room in a boarding house used for human habitation, in that, as it does not have a kitchen and bathroom, it does not comprise a domicile or dwelling: Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184

14. Relying on the authorities, and in particular the reasoning of Jagot J in T & K Berry v Wollongong City Council, the applicants submit that all dwellings are used for human habitation, but not all places that are used the human habitation are dwellings. This is because in order to qualify as a dwelling domicile, there must be a measure of permanency of habitation or occupation. While it is the case that at the time the caravan was placed by crane on the land it was not capable of being a dwelling, this does not mean it is not capable of being used for human habitation in conjunction with the dwelling house on the site. This is exactly what clause 77 of the Local Government (Manufactured Home Estates, Caravan parks, Camping grounds Movable Dwellings) Regulation 2005 contemplates.

15. The applicants submit that the definition does not state at what time one needs to assess whether a structure is used for human habitation to determine whether it is a movable dwelling. The Council has imported this requirement into the definition. In any event, there is no basis to suggest that the structure once secured on the land was not capable of human habitation.

16. Having considered all of the evidence the applicants contend, there can be no doubt that the structure is a caravan used for human habitation and thereby within the definition of a movable dwelling. On that basis, there is no need for any development approval for the registered caravan on the site and the order issued by the Council under section 121B of EPA Act, requiring the removal of the structure from the premises, is invalid.

Consideration

17. Based on what I observed onsite and my understanding of the use of the structure, and after a consideration of the parties’ final submissions it seems to me that the relevant facts are as follows:

18. The applicants are the owners of the land and the occupants of the caravan are family members. The land is zoned R2 under the Camden Local Environment Plan 2010 and dwelling houses are a permissible use on the site with consent.

19. Development consent was granted to the erection of the dwelling house on the site and it has been erected in accord with the consent as I understand the facts.

20. The occupants of the “structure” use the family home to have their meals. The “structure” was brought onto the land by motor vehicle/crane and is an RMS accredited registrable vehicle under the Motor Vehicles Act 1982 (affidavit of Korena Russell dated 13 November 2017 at [9] – which is presently registered.

21. The exclusion of “movable dwellings” from the definition of building means that even if the structure or movable dwelling might otherwise be regarded as mobile it is not a building or structure for the purposes of the EPA Act: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [58]-[60].

22. It is relevant to note that the regulation of the design and construction of caravans and movable dwellings (other than the establishment of a caravan park) does not arise under the EPA Act, but rather the LGA 1993. Whilst an approval under section 68 of the LGA is required before the installation of a caravan or movable dwelling on land, the Local Government Regulation provides some conditional exemptions. Of particular relevance to this case is clause 77 of the Regulation that provides:

The prior approval of the Council is not required for:

…(b) the installation of not more than one caravan or campervan on land occupied by the owner of the caravan or campervan in connection with that owners dwelling house, so long as it is used for habitation only by the owner or members of the owners household and is maintained in a safe and healthy condition

23. The Council accepts that the “structure”, if a caravan, is maintained in a safe and healthy condition and is installed on land owned by the applicants in connection with their dwelling house. For the reasons articulated by Mr Pickles SC, as summarised earlier and based on my observations, I find that the structure is a caravan which is exempt from any requirement for approval under the LGA or the EPA. It is lawfully on the site and the Council’s order should be revoked. Accordingly the Court orders are:

1. The appeal is upheld.

2. The order issued under section 121B of the Environmental Planning and Assessment Act 1979 by Camden Council dated 21 July 2017 for the removal of the mobile structure from the premises at 24A Currans Hill Avenue, Currans Hill is revoked.

3. The exhibits are returned.

_____________________­­­­­­

Susan Dixon

Commissioner of the Land & Environment Court

**********

Decision last updated: 28 March 2018