Schilling v March Parks Pty Ltd
[2011] QCAT 316
•7 July 2011
| CITATION: | Schilling and Anor v March Parks Pty Ltd [2011] QCAT 316 |
| PARTIES: | Mr Robert Larry Schilling Mrs Robyn Anne Schilling |
| v | |
| March Parks Pty Ltd t/a Oaks Beach Caravan & Relocatable Home Park |
| APPLICATION NUMBER: | OCL119-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Anne Forbes, Member |
| DELIVERED ON: | 7 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] I find that the Applicants’ dwelling is a manufactured home within the meaning of Manufactured Homes (Residential Parks) Act 2003. |
| CATCHWORDS: | Whether a dwelling structure a manufactured home – original caravan structurally modified and unable to be reinstated – functionally integrated with other parts of structure – supported on wooden stumps – not permanently attached to the land – able to be moved without destroying integrity of structure Manufactured Homes (Residential Parks) Act 2003, ss 10, 25 |
APPEARANCES and REPRESENTATION (if any):
| This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). |
REASONS FOR DECISION
The Applicants Mr and Mrs Schilling [“the Schillings”] reside at site 53 in a caravan and relocatable homes park owned by March Parks Pty Ltd (“March Parks”). They contend that their dwelling is a manufactured home within the meaning of the Manufactured Homes (Residential Parks) Act 2003 (“the MHRP Act”) and that they are entitled to a site agreement under s 25 of that Act. The Respondent March Parks disputes their claim.
The Tribunal’s jurisdiction under the MHRP Act depends on a finding that the Appellant’s dwelling is a “manufactured home” within the meaning of s 10 of the Act as it stood before the passage of the Manufactured Homes (Residential Parks) Amendment Act 2010.
When these proceedings began the MHRP Act defined a “manufactured home” as follows:
A manufactured home is a structure, other than a caravan or tent that (a) has the character of a dwelling house; (b) is designed to be able to be moved from one position to another; and (c) is not permanently attached to land.[1]
[1] MHRP Act, section 10.
March Parks’ case is that the subject dwelling is not a manufactured home but a “caravan” as defined in the Residential Tenancies and Rooming Accommodation Act2008 (“the RTRA Act”).
Although the parties were given the opportunity to provide expert evidence on the nature of the dwelling – and March Parks’ Response indicated that it would do so – no such evidence is forthcoming.
The Schillings’ evidence consists of photographs, a floor plan of the dwelling, and a quotation from a house removalist. They say that they purchased the dwelling six years ago and have made no changes to it, other than to add a carport. The photographs depict an attractive and apparently well-maintained structure.
Lammi Bros House Removals has provided a quotation in the form of a draft agreement. It envisages removal of the dwelling in three sections, on a hydraulic trailer, for $29,000.
In compliance with directions made on 7 December 2010 Mr Peter Nell, an officer of the Office of Fair Trading and authorised under the MHRP Act, inspected the dwelling on 25 January 2011 and has filed a report. He has addressed specific questions listed in the directions, and his answers may be summarised as follows:
Components of the dwelling: It consists of the original caravan, a living area and a veranda in one cohesive structure with two bedrooms, a lounge/ dining area, and a bathroom/laundry.
What the structure is made of: The original caravan is an aluminium shell on a metal frame. The rest of the living area consists of insulated steel sheeting over a wooden frame. One roof covers the entire structure including the caravan.
How and to what extent the structure, or part thereof, is permanently attached to the land: The entire structure stands on timber stumps. Water, electricity and gas services can easily be disconnected.
Whether the structure is integrated as one unit: The original caravan is fully amalgamated with the rest of the structure, and has been extensively modified by removal of walls, so that only the front and outer sides are recognisable as parts of what was once a caravan.
The use of each part of the structure: As described in (i) above.
Whether the original structure could it be towed away if wheels and a towbar were refitted: As the original structure is now integral with the rest of the dwelling it could not be removed as a caravan; two of its walls are missing and, if separated from the whole, it would not be habitable or roadworthy. It could not be restored to its original condition, and is only moveable with the rest of the structure.
CONSIDERATION
If the subject dwelling is to be deemed a manufactured home, it must satisfy four statutory requirements:
- it must be a structure other than a caravan;
- with the character of a dwelling house;
- designed to be moveable; and
- not permanently attached to land.
[10] Is it a “caravan”? The Schedule to the MHRP Act cross-refers to the lengthy definition of that term in section 7 of the RTRA Act. Relevantly a caravan is:
“… a trailer — (a) designed principally for residential purposes; and (b) designed to be attached to and towed by a self-propelled vehicle; and (c) that, as originally designed, was capable of being registered under a law of the State about the use of vehicles on public roads.”
[11] In Curyer v Monte Carlo Caravan Park Pty Ltd [2006] QCCTMH 3 a large structural opening had been cut in one wall of the original caravan, and an annexe was attached to it. The learned member of the former tribunal found that caravan and annexe had become one structure, constituting a manufactured home. An appeal to the District Court was dismissed, and the Court of Appeal refused leave to challenge that decision.
[12] Keane JA dismissed the appellant’s proposition “once a caravan always a caravan” in these words:
[13] … The applicant stressed that the structure was originally designed as a caravan. The applicant argued that the answer to the question whether the trailer is a caravan is to be determined by reference to its original design, and that the answer this question cannot be affected by "subjective assessments" of the effects of modifications to a caravan. But the question, having regard to the facts of this case, is not about the proper description of one element of the structure in respect of which the respondent seeks a site agreement. It is about the proper description of the structure.
[14]The MHRP Act does not invite a notional dismantling of the structure in question, nor does it require some form of historical inquiry into the provenance of the components of structure.… It is clear from the language of the statute that the MHRP Act operates by reference to the structure as it exists on site when the effect of the legislation falls to be considered.[2]
[2] Monte Carlo Caravan Park P/L v Curyer [2006] QCA 363.
[13] March Parks has contested this application solely on the basis that the dwelling is a caravan, without addressing whether the other elements of section 10 are satisfied. However, I accept the unchallenged opinion of Mr Nell that the original caravan has been so modified that it cannot be reinstated, and that the dwelling is now functionally one structure. It follows therefore that no part of the integrated structure is a “caravan” within section 10 of the MHRP Act.
[14] The structure is supported on wooden stumps. It has its own floor, distinguishing it from other cases in which the floor has been an immoveable concrete pad. I accept the evidence of Mr Nell and Lammi Bros that it could be moved in sections without destroying its integrity. I find that it is designed for possible removal, and that it is not attached permanently to the site.
[15] Any declaration in consequence of this decision is a matter for a judicial member: QCAT Act, section 60.
DECISION
[16] I find that the Applicants’ dwelling is a manufactured home within the meaning of Manufactured Homes (Residential Parks) Act 2003.
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