Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Watkins v Tasman Tourism Pty Limited [2024] NSWCATAP 263 Hearing dates: 15 August 2024 (last submission 10 December 2024) Date of orders: 20 December 2024 Decision date: 20 December 2024 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member G Ellis SC, Senior Member Decision: (1) The appeal is allowed. (2) The orders made by the Tribunal on 29 April 2024 are set aside. (3) The respondents' proceedings 2023/00382500 are dismissed. Catchwords: LAND LAW – whether Holiday Parks (Long-term Casual Occupation) Act applies to occupancy of cabin structure on holiday park in New South Wales – whether cabin structure in whole or in part is a "moveable dwelling" as defined – whether the Tribunal has jurisdiction to determine the dispute. APPEALS – failure to ask the right question – error of law – determination of merits on appeal. Legislation Cited: Civil and Administrative Tribunal Act (NSW) (2013) Holiday Parks (Long-term Casual Occupation) Act 2022 (NSW) Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005 (NSW) Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 Cases Cited: Alta Vale Residential Pty Ltd v The Owners-Strata Plan No. 956393 [2024] NSWCATAP 212 Hunter Resources Ltd v Melville [1988] HCA 5; 164 CLR 234 Jambrecina v Blacktown City Council [2009] NSWCA 228 Ogilvie v Rovest Holdings Pty Ltd [2023] NSWLEC 17 Taylor v Moloney [2016] NSWCATAP 89 Wiskich v Composite Materials Australia Pty Ltd [2016] NSWCATAP 221 Texts Cited: Land Law, 5th edition, Professor Butt Statutory Interpretation in Australia, 9th edition, D Pearce Category: Principal judgment Parties: John Watkins (Appellant) Tasman Tourism Pty Ltd (First Respondent) Dunkview Pty Ltd (Second Respondent) Representation: Solicitors: Sparke Helmore (Appellant) Moray & Agnew (Respondents) File Number(s): 2024/00187862 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 29 April 2024 Before: D Bluth, Senior Member File Number(s): 2023/00382500 REASONS FOR DECISION Overview 1. The appellant (JW) appeals from a decision of the Tribunal made on 29 April 2024 under which he was required to deliver up vacant possession of a site at the first-named respondent's (Tasman) holiday park near Wiseman's Ferry in New South Wales the subject of a written occupation agreement (the Occupation Agreement). The decision also required him to pay Tasman the sum of $31,119.61 in respect of outstanding occupation fees and utilities charges. The orders have been stayed on terms pending the decision in this appeal. 2. The Occupation Agreement was made between JW and Dunkview Pty Ltd (Dunkview). This company owned the holiday park prior to Tasman's interest in it. Tasman acquired its interest in the holiday park and the Occupation Agreement through a purchase of all the shares in Dunkview, a purchase of the business of operating the park and an assignment of the latter company's right to collect fees payable under the occupation agreement. Dunkview became an applicant to the proceedings below and the second-named respondent on the appeal. 3. Located at the site the subject of the Occupation Agreement was a substantial cabin structure purchased by JW from Dunkview prior to the entry into the occupation agreement at a time when the cabin structure was already located on the site. (We do not use the term "cabin" or "structure" according to any statutory or other legal meaning of those terms). 4. The orders the subject of this appeal were made in proceedings brought against JW in August 2023 in which all of the relief sought was relief under the Holiday Parks (Long-term Casual Occupation) Act 2002 (NSW) (the HPA). If the HPA applies, the Tribunal has jurisdiction to determine this particular claim. 5. The HPA only applies to an occupation agreement that met the requirements specified in s 5 (1) of that legislation. One of those requirements was that under the occupation agreement the occupant installs the occupant's own "moveable dwelling": s 5 (1) (b). 6. JW was unrepresented in the proceedings at first instance. Although he made it clear before and at the hearing of the proceedings at first instance that he disputed that the cabin structure was a "moveable dwelling", he did not put forward a defence that the HPA did not apply. Instead, he relied upon different defences to the claim (as appears below). Regrettably, this specific issue affecting also the jurisdiction of the Tribunal was not identified by the respondents, who were legally represented, nor by the Tribunal itself. 7. However, this threshold issue was squarely raised by JW on appeal (he was legally represented on appeal). It was accepted by all parties that it was an issue that arose concerning the jurisdiction of the Tribunal and needed to be determined. 8. For the reasons set out below, we are persuaded that the cabin structure, in whole or in part, is not "moveable dwelling" or, at least, we are not persuaded that it is. This has the consequence that the appeal must be allowed, and the proceedings brought by the respondents be dismissed. 9. JW presented a number of other grounds of appeal. One of these other grounds (Ground 1) was that there was procedural unfairness to JW in being deprived of an opportunity to respond to late evidence from the respondents about the nature of the cabin structure. If successful on this ground, JW submitted that the proceedings should be remitted for redetermination. 10. However, given the conclusion we have arrived at about the "moveable dwelling" issue (based upon Ground 3 of the appeal) it is unnecessary for us to determine these other grounds of appeal. 11. We note that in addition to oral submissions at the hearing of the appeal we received extensive written submissions from the parties both before and after the hearing of the appeal consisting of submissions from JW dated 26 June 2024, 13 August 2024, 20 November 2024 and 10 December 2024. The submissions dated 20 November 2024 and 10 December 2024 resulted from a request from the Appeal Panel for submissions concerning the decision in Ogilvie v Rovest Holdings Pty Ltd [2023] NSWLEC 17 (Ogilvie). The respondents' written submissions consisted of submissions dated 24 July 2024 and 3 December 2024 - the latter also concerning the decision in Ogilvie. Relevant legislative provisions The HPA 1. Section 5 of the HPA, relevantly, provides: 5 Act applies to long-term casual occupants (1) This Act applies to any occupation agreement in relation to a site— (a) entered into by an occupant who has a principal place of residence somewhere other than the site, and (b) under which the occupant installs the occupant's own moveable dwelling on the site and leaves it there all of the time that the occupation agreement continues in force, and (c) under which the occupant can occupy the site for no more than 180 days in any 12-month period (in a continuous or broken period), and (d) under which— (i) the occupant agrees, with the consent of the park owner, to be an occupant on a casual basis for at least 12 months, or (ii) the occupant has, with the consent of the park owner, been an occupant on a casual basis for at least 12 months. 1. "Moveable dwelling" is defined in s 3 (1) of the HPA: moveable dwelling means— (a) any caravan or other van or other portable device (whether on wheels or not) other than a tent, used for human habitation, or (b) a manufactured home, or (c) any conveyance, structure or thing (other than a tent or similar structure) of a class or description prescribed by the regulations for the purposes of this definition. 1. The expression "other portable device…. used for human habitation" is not defined. 2. A "site" is defined in s 3 (1) of the HPA as: site means a site within a holiday park that is used, or is intended to be used, for the installation of a moveable dwelling for long-term casual occupation and includes any other part of premises (such as a parking space or storeroom) let with the site. 1. A "manufactured home" is defined as: manufactured home means a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities) that comprises one or more major sections, and is not a registrable moveable dwelling, and includes any associated structures that form part of the dwelling. 1. A "relocatable home" is defined as: relocatable home means a moveable dwelling that is not— (a) a moveable dwelling that is a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013, or (b) a moveable dwelling of a type prescribed by the regulations for the purposes of this paragraph. 1. The long title of the HPA is: "An Act to set out the rights and obligations of long-term casual occupants of holiday parks and the park owners; to amend various Acts; and for other purposes." The HPA does not apply to any site ordinarily used or intended to be used for tourist arrangements or other holiday purposes other than long-term casual occupation of the kind described in section 5 (1): s 6 of the HPA. 2. Every occupation agreement that is wholly or partly in writing is taken to include the standard terms set out in Schedule 1: s 11 (1). The standard terms include a provision for the payment of occupation fees, provisions concerning other obligations of an occupant, including "… not to attach any fixture or renovate, alter or add to the movable dwelling or the site without the park owner's prior written permission" (cl 20), "… not to sell the occupant's moveable dwelling while it is on the site without the prior written permission of the park owner or a Civil and Administrative Tribunal order" (cl 23), the "occupant agrees to make sure that the moveable dwelling complies with any regulations under the Local Government Act 1993 with which it is required to comply." (cl 25), the "occupant agrees to make sure that the moveable dwelling and any other structure that the occupant is permitted to erect is kept in a condition allowing it to be moved" (cl 26). 3. The standard terms of an occupation agreement also include provisions concerning termination of the agreement, including the right of a park owner to give notice of termination if the occupant has breached a term of the agreement and that such a notice must not specify a day earlier than 7 days as the day on which vacant possession is to be delivered up (cl 39). 4. The HPA makes provision for disputes to be determined by the Tribunal, possession may be recovered by the park owner in accordance with an occupation agreement or by an order of the Tribunal (the latter order may be enforced by a warrant for possession issued by the Tribunal): ss 26-30. 5. The second reading speech introducing the HPA Bill consisted of the following (see Taylor v Moloney [2016] NSWCATAP 89 (Taylor) at [40]): 'Legislative Assembly Holiday Parks (Long-Term Casual Occupation) Bill Hansard Extract 17/09/2002 Second Reading Mr AQUILINA (Riverstone-Minister for Land and Water Conservation, and Minister for Fair Trading) [8.30 p.m.]: I move: That this bill be now read a second time. This bill deals with a very Australian way of life that generations of families have enjoyed in both coastal and inland parts of New South Wales. It has been a great Australian tradition for many people to leave a caravan or other moveable dwelling on location in a caravan or mobile home park for regular recreational use during the year. While the principal place of residence of these people is usually in the suburban parts of our major cities, their on-site vans and dwellings give them a much-loved, affordable and regular escape from the pressures of everyday life. Sites are often rented on a quarterly or yearly basis and occupants are free, within the confines of the local government laws, to come and go as they please during the year. There are believed to be 10,000 or more long-term casual park occupancies in existence in New South Wales, many of them in parks situated on Crown land. Annual occupation fees vary from between $1,000 and $5,000. I am sure that many honourable members will recall with nostalgic delight the carefree holiday times spent in the caravan by the beach or the river, shared with relatives, neighbours or friends. On-site vans made it so convenient to duck away for the weekend or the school holidays. The Department of Fair Trading has come across situations where the same family has had a van located in a caravan park or mobile home village for more than 20 years-sometimes up to 40 years-for casual occupation. The joys of the lifestyle have passed from one generation to the next. This bill recognises this unique way of life and, for the first time, provides appropriate rights and obligations for both occupants and park owners in long-term casual occupancy arrangements. Uncertainties over the legal status of the parties are removed and sensible consumer protection is provided. The bill will extend a range of appropriate benefits to both occupants and park owners in long-term casual occupancy arrangements and provide a desirable level of certainty. In the consultation process during the development of this bill there was a level of consensus among park owners and occupants that the legal uncertainties surrounding long-term casual park occupancies needed to be removed for the benefit of both parties. The key issues were seen to be standardisation of the forms of contract used in occupancy arrangements, a clear dispute resolution system and the prescribing of some minimum periods of notice for fee increases and termination of occupancy agreements. The bill addresses these and other issues. It is important at this stage to emphasise that this bill cannot be construed as tenancy legislation. It is made quite explicit in the bill that this is general fair trading legislation which, while clarifying the respective rights of the parties, does not confer a landlord and tenant status on the relationship. This would be clearly inappropriate. Casual park occupants have a home elsewhere and their recreational vans and dwellings are not their principal form of shelter. The tenancy laws, which quite rightly provide significant support for tenants whose rented accommodation constitutes their housing, do not have the same relevance to holiday-style arrangements. After all, persons who stay in hotels, lodges and resorts, while having a level of consumer protection and avenues to pursue disputes, obviously do not have the status that a tenant has in his or her relationship with a landlord. Long-term casual park occupants are in a somewhat similar situation, and this position is reflected in the bill. It is important to make this distinction as any expectation that this bill will extend tenancy rights to long-term casual park occupants needs to be quelled at the outset. The non-tenancy nature of casual occupancies is further reflected by the fact that disputes over casual occupancies will be dealt with not in the tenancy divisions of the Consumer, Trader and Tenancy Tribunal but in the general consumer division. One of the main reasons for this bill is that park casuals have no specific rights under any consumer protection legislation. Their position is left uncertain by the fact that many do not have written agreements, they are not subject to any minimum notice periods for fee increases or termination of their occupancy agreements and, significantly, there is no dispute resolution forum that they can access when things go wrong. While most park owners do the right thing, the Department of Fair Trading has been made aware of longstanding casual arrangements being brought to a sudden end over the most trivial of incidents and without any opportunity for the occupants to redress the situation or even to discuss it with the park owner or manager. There have been incidents when occupants have been denied access to their van by the park owner despite having already paid fees in advance. They could neither use their van nor obtain a refund of the money they had paid in advance. While such a situation is clearly unjust, there are few options that an occupant has available for pursuing a complaint. The bill will overcome such unconscionable actions by the minority of park owners and managers who adopt such unilateral "take it or leave it" attitudes. These people do no favours to the majority of park owners and managers, who adopt a far more professional and understanding approach to the management of their businesses. The bill will remedy each of these deficiencies and will also include other provisions to give the parties more certainty in important aspects of their ongoing relationship. I would now like to outline briefly the main contents of the bill…. Park owners need not fear that the bill will affect their dealings in the short-term holiday market. It is the quite discrete long-term casual recreational market where people place their own vans on site that is being targeted by this bill…. whether occupants are permitted to sell their van on site and the details of any associated commission arrangements; and who pays for the cost of relocating a van within the park…. For instance, the minimum period of notice that a park owner may give to an occupant to terminate the agreement, that is where there is no breach of agreement by the occupant, is three months. This will allow occupants an adequate time to move their van or to make other arrangements. Of course, the three months notice cannot take effect during a fixed-term agreement. Where there is a breach of an agreement, either party can give the other seven days notice of termination….. The bill provides for a clear dispute resolution process. This is a major improvement to the current situation where the opportunity to have a disagreement or dispute resolved in connection with a casual occupancy relationship is extremely limited. The Consumer, Trader and Tenancy Tribunal will provide the circuit-breaker. By having access to this forum, legal costs, formalities and delays will be minimised and the parties will quickly know where they stand should difficulties arise in their contractual relationship. The tribunal's main role will be to adjudicate disputes on issues arising under occupancy contracts, whether a breach by either party has occurred and whether an order should be made in relation to the breach. I would hope that in most cases the outcome will be that the parties can resume their relationship in a positive manner. The tribunal will not have the same powers as it has for residential tenancy matters. It will not be able to rule on whether a fee increase is unreasonable as it can for rents on residential tenancies, nor will park owners be required to obtain an order from the tribunal before taking possession of a site from an occupant whose agreement has come to an end. These are important jurisdictional differences and further highlight the fundamental dissimilarities between accommodation used on a recreational basis and that used as a permanent and primary place of abode. While a park owner will not have to go to the tribunal to take possession of a site from a casual occupant after giving the correct notice, there will be a stiff penalty for any park owner who dispossesses a person incorrectly. The bill includes a maximum penalty of $5,500 for incorrect termination. I am sure that this will discourage park owners from taking arbitrary action. In addition, the tribunal will have the power to order the park owner to give the correct notice before proceeding with a termination. If, in the process of dealing with a breach, the tribunal considers that it is appropriate to do so, it may terminate an occupancy agreement. The bill will ensure an orderly process when the time comes for a park owner to sever his or her relationship with their casual occupants. It is only fair and reasonable that a person who has been a casual occupant of a park for many years and who would often have an emotive attachment to the park, its location and fellow occupants, is provided with a dignified conclusion to the arrangement. Some of them are pensioners or otherwise on limited incomes and there needs to be time to sort out their affairs after the park owner elects not to renew the occupancy. The van probably has to be moved or sold and this obviously takes a little time. The three months is considered to be reasonable to both parties in this situation. The Government recognises that park owners will sometimes make a business choice to no longer provide sites for long-term casual occupation purposes. This bill does not interfere in these commercial decisions. But it does ensure that occupants affected are given a reasonable time to make the necessary arrangements to sell or move their moveable dwellings. The tribunal will not have the same compensation awarding powers as it does for the termination of permanent park tenancies. In those situations, the permanent residents have to make provision for a new principal place of residence which may involve moving their dwelling to another park, with all the consequential costs of connection to services. While a long-term casual occupant may also have expenses in moving a dwelling from its site, the fact that it is not their main home and that it is not essential for them to retain the dwelling is of significance…. This bill is a balanced piece of fair trading legislation. It provides surety to the parties without interfering unreasonably in the business operations of park owners nor occupation rights of those in long-term casual arrangements…. 1. Section 27(1), relevantly, included: 27 What orders can the Tribunal make? (1) The Tribunal may, on application by a person under section 26, make one or more of the following orders— …. (b) an order for the payment of an amount of money, ….. (f) an order terminating the occupation agreement and an order for possession of the site. … 1. We interpose at this point to note that the seven-day termination notice in respect of termination for breach suggests that removal of a moveable dwelling from the site to another location was contemplated to be a speedy and straightforward process. Other legislation 1. Understandably, in submissions both parties referred to other NSW legislation in existence at the time when the HPA became law which referred to the notion of a "moveable dwelling" in order to assist with the interpretation of this wording. 2. By virtue of s 68 of part A1 of the Table to s 68 Local Government Act 1993 prior approval of the Council was (and still is) required for the installation of a "manufactured home, moveable dwelling or associated structure on land". 3. When the HPA became law a "moveable dwelling" was defined in the Dictionary to the LGA as: moveable dwelling means: (a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or (b) a manufactured home, or (c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition. 1. A "manufactured home" was defined in the Dictionary of the LGA as: manufactured home means a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling: (a) that comprises one or more major sections, and (b) that is not a registrable vehicle within the meaning of the Road Transport (Vehicle Registration) Act 1997, and includes any associated structures that form part of the dwelling 1. An associated structure was defined in the Dictionary of the LGA as: associated structure means: (a) a carport, garage, shed, pergola, verandah or other structure designed to enhance the amenity of a moveable dwelling and attached to or integrated with, or located on the same site as, the dwelling concerned, or (b) a separating wall between 2 moveable dwellings. 1. Also, at the time when the HPA became law, the Environmental Planning and Assessment Act 1979 (NSW) (EPA) contained "manufactured home, moveable dwelling or associated structure" as exceptions to the definition of a "building" (s 4(1)). "Moveable dwelling" and "manufactured home" were defined as having the same meanings as in the LGA. These were the provisions that were considered by the NSW Court of Appeal in the Jambrecina v Blacktown City Council [2009] NSWCA 228 (Jambrecina) referred to below. 2. Incorrectly, in our view, the respondent placed reliance upon delegated legislation made after the HPA in aid of the interpretation of "movable dwelling", including the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (the Regulation) and the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 (the 2021 Regulation): see Statutory Interpretation in Australia, 9th edition, D Pearce at 3.48-3.49; and see, for example, Hunter Resources Ltd v Melville [1988] HCA 5; 164 CLR 234 at 244. 3. However, the Regulation was referred to by the Tribunal for other purposes (see below). It was also relied upon by the respondent in support of a submission about the evidentiary significance of a compliance plate located on the structure in issue. Accordingly, we refer to relevant aspects as follows. 4. Division 4 of Part 2 of the Regulation concerned manufactured homes and associated structures. Clause 41 provided that a manufactured home must not be installed on the dwelling site unless each major section of the home has been constructed and assembled at, and transported to the manufactured home estate from, a place of manufacture outside the manufactured home estate. Matters concerning installation, setbacks, site coverage, garages design and installation of manufactured homes are prescribed. Clause 67 of Division 4 required that a compliance plate must be attached to an accessible part of a manufactured home and an associated structure that forms part of a manufactured home. Amongst other things, the compliance plate must specify the name of the manufacturer, the unique identification number for each major section of the manufactured home and a statement that the manufactured home complies with the requirements of the Division. Clause 68 of this division required that the holder of an approval to operate a manufactured home estate must give the Council notice of the installation of a manufactured home or associated structure within 7 days after its completion. The notice must be accompanied by, amongst other things, a copy of the engineer's certificate for the manufactured home. 5. Part 3 of the Regulation concerned caravan parks, camping grounds and moveable dwellings, including the installation of manufactured homes, but not to the installation of manufactured homes in manufactured home estates (Clause 70). Division 4 of Part 3 dealt with "Relocatable homes and associated structures". A relocatable home was defined to include a manufactured home. Matters concerning construction, installation, setbacks, garages, design were prescribed. Clause 135 (1) required that a relocatable home must not be installed unless each major section had been constructed and assembled at, and transported to the caravan park from, a place of manufacture outside the caravan park. Clause 159 required that a compliance plate be attached to an accessible part of a relocatable home and an associated structure as part of a relocatable home. The compliance plate was required, amongst other things, to specify the name of the manufacturer of the relocatable home or associated structure, and the unique identification number for each major section. Under clause 160, the holder of an approval to operate a caravan park or camping ground was required to give the Council written notice of the installation of a relocatable home or associated structure within 7 days after the completion of the installation. Background 1. The Occupation Agreement was entered into on or about 1 July 2018 in respect of Site 4 of the holiday park, which was then known as Ko-veda Holiday Park. 2. It was common ground that in about February 2018, JW purchased a cabin structure located on Site 4 from Dunkview. (We note, nevertheless, that the handwritten note referred to below concerning the cost of purchase, presented to the Tribunal by JW, contains a reference to a date of "14/11" in respect of a payment of $265,000 toward the costs). 3. Apart from the unspecific, hearsay statements referred to below there was no evidence as to how the cabin structure came to be on the site and as to the precise means of installation and/or construction. 4. The Occupation Agreement conferred upon JW the right to occupy Site 4. No fixed term was provided for. We have already referred to the standard terms that the HPA imposed. 5. Clause 35 of the Occupation Agreement made provision for termination for breach by the occupant. Clause 41 concerned the subject of "Building restrictions". It included an agreement by the occupant not to install a moveable dwelling on the site except for a moveable dwelling and additions shown in "Schedule B of Annexure B". This annexure and schedule were not contained in the Occupation Agreement presented to the Tribunal. Annexure A to the agreement contained a series of questions and answers, including an answer to question 2, which, in part, stated: "to preserve the aesthetics and standards of the park and to maintain the value of your investment, homes at Ko-Veda Holiday Park must be built by a company selected by Ko-Veda to design and finish approved by Ko-Veda.." 6. In January 2021 Tasman acquired the holiday park from Dunkview. According to an affidavit from Mr Milne of Tasman sworn on 9 November 2023, this acquisition occurred by Tasman purchasing all of the shares in Dunkview as well as the business of operating the holiday park. 7. On or about 3 December 2021 a Notice of Assignment was issued to JW by Tasman and Dunkview Pty Ltd giving notice of the purchase of the holiday park and notice that Dunkview Pty Ltd had assigned to Tasman its right to collect arrears and future fees. 8. By virtue of s 68 of the LGA and part F2 of the Table to s 68 prior approval of the Council was required to operate a "caravan park or camping ground". This was a distinct activity from the prior approval of the Council required by virtue of F3 of the Table to s 68 to operate "a manufactured home estate". As will be seen below, the only relevant approval in this case was to operate a "caravan park or camping ground". 9. A letter dated 30 November 2022 from The Hills Shire Council to Tasman stated that under s 68 Part F2 of the LGA the Council granted approval to "operate a caravan park/camping ground" to Tasman in respect of the caravan park/camping ground known as Ko-veda Holiday Park. The approval was granted subject to conditions, including conditions prescribed by the Regulation. 10. It was common ground that no approval as required by s 68 Part A1 of the LGA had been obtained in respect of the installation of the cabin structure in issue in this case. That section required that the activity "Install a manufactured home, movable dwelling or associated structure on land" required the prior approval of the council. 11. A Notice of Termination of the Occupation Agreement dated 8 June 2023 was issued by Tasman and Dunkview Pty Ltd to JW for breach by the non-payment of occupation fees in the amount of $25,651.83. The Notice required payment of the arrears and delivery of vacant possession of the site on 8 July 2023. Correspondence between Tasman and JW about outstanding fees first commenced in about November 2021. 12. On 4 August 2023 Tasman commenced proceedings in the Tribunal seeking various orders, including an order under section 27 (1) of the HPA for delivery up of vacant possession of Site 4 and payment of the outstanding occupation fees. The application was in the form of a "Holiday parks (Long-term casual occupation) application" in the Consumer and Commercial Division of the Tribunal. Subsequently, Dunkview Pty Ltd was added as an applicant. The parties' written submissions to the Tribunal after the hearing 1. At the close of the hearing on 17 November 2023 the Tribunal made directions for the respondents (applicants below) to file and serve written submissions by 1 December 2023, for JW to file and serve written submissions by 19 January 2024 and for the respondents to file and serve written submissions in reply by 2 February 2024. 2. None of the submissions that were made referred to any issue about the application of the HPA to the dispute in light of the terms of s 5 (1) or as to the jurisdiction of the Tribunal to determine the claim. 3. In his written submissions JW set out his Points of Defence as follows: 1. Unable to utilise the cabin due to: a. The cabin is non-habitable in its purchased and current form, due to the non-compliance with relevant council. b. The fees are unable to be paid for something I cannot utilise. 2. Termination order is unable to be enacted or complied with due to demolition of the structure being required as it is not able to be transported. It is not a Moveable Dwelling within the definition. If the Tribunal decides the termination is to take effect, I cannot comply with the order due to the above points. 1. The respondents took the position at the hearing at first instance that the structure was not a "manufactured home" or, at the very least, chose not to advance a case that the structure was a "moveable dwelling" because it was a "manufactured home". This appears from the transcript references below, the apparently, deliberate exclusion from their submissions, including the written submissions after the hearing, of the "manufactured home" element of the definition of "movable dwelling" in the HPA and the absence of any such case throughout their submissions. 2. At the first instance hearing Mr Robertson told the Tribunal that the structure was not a "manufactured home", although he, subsequently, acknowledged that the structure "may" fall within the definition of "manufactured home". Later, in answer to a submission by JW about the requirement under the Regulation to give the Council written notice of the installation of a manufactured home (which had not been given), Mr Robertson, in substance, informed the Tribunal that the respondents' position was that structure was not such a home (transcript page 5, line 32; page 6, line 1; page 23, line 40). 3. These matters explain why the Tribunal excluded any reference to the "manufactured home" element of the definition of "moveable dwelling" when setting out the relevant definition provisions in its reasons (at [14]). The Tribunal's decision 1. In the circumstances we have referred to about the parties' submissions, the Tribunal did not ask itself whether the structure fell within the definition of "moveable dwelling" in the HPA. In particular, it did not ask itself the question whether the structure was an "other portable device….used for human habitation" as set out in (a) of the definition. 2. Instead, it directed itself to a different question, in accordance with the submission from JW, as to whether the cabin could be removed from the site without demolition for the purpose of giving effect to an order for termination and possession (see at [28] (b) of the decision). 3. This appears to have led the Tribunal to consider whether the structure was a fixture or a chattel according to common law principles, including a passage from Professor Butt, Land Law, 5th edition which stated that whether an item has become a fixture depends primarily on the intention with which the affixer put the item in place, in respect of which there was a relevant question whether the affixer's intention was the better use or enjoyment of the land or the better use or enjoyment of the item itself. This consideration followed from its conclusion that if the cabin was found to be a fixture, then it belonged to the owner of the land, an outcome that it said the respondents did not seek. 4. The Tribunal then stated: 53 There is no evidence of the intention at the time that the cabin was installed. As noted by Mr Robertson there is no evidence from the builder as to the degree of annexation, but I am prepared to accept a strong degree submitted by the Respondent. However, the certificate of compliance that the cabin was constructed in accordance with the 2005 Regulation and then placed on the land, on the better view is determinative that it was always the intention of both parties Dunkview Pty Ltd and the Respondent at the time that the cabin was to be connected as best as possible for the better enjoyment of the cabin and not the land. 54 I determine that the cabin is not a fixture but a chattel that can be moved, albeit with some difficulty. The Applicants have provided a quote from a reputable remover that the cabin can be moved. 55 As I have found that the Respondent is in breach of the Occupancy Agreement and therefore the Notice of Termination is valid, and the obligation is on the Respondent to remove the cabin to provide vacant possession or deal with the cabin in accordance with the Occupancy Agreement there is no need for me to consider the alternative orders sought by the Respondent. 1. Earlier the Tribunal had concluded, amongst other things, that the occupation fees were payable notwithstanding the issue whether the installation of the cabin was approved by the Council (at [37]). Nature of the appeal 1. Under s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, as this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted according to the requirements set out in cl 12 sch 4 of the NCAT Act. Grounds of Appeal 1. JW put forward ten grounds of appeal, nine of which were said to raise a question of law. 2. Ground 3 of the appeal was: The Tribunal erred in law in misconstruing, or failing to properly apply, the term "moveable dwelling" in the HP Act, in so far as the Tribunal: (a) held that the question was to be determined by ascertaining whether the cabin was a "fixture" and therefore to be determined by reference to the intention with which the affixor put the cabin in place; (b) failed to hold that the question was to be to determined by the ease with which the cabin could be removed at the end of the occupation agreement, in accordance with the Appeal Panel's decision in [Taylor] at [45]; (c) failed to make any findings as to the steps necessary to remove the cabin from the site and out of the holiday park. 1. JW submitted that this appeal ground alleged that the Tribunal misconstrued the statute or asked itself the wrong question (at [42]). 2. Ground 4 raised a different contention as to the operation of s 5 (1) of the HPA, namely, that this was not a case in which "the occupant installs the occupant's own moveable dwelling on the site…", as required by s5 (1) (b) [our emphasis]. This was not a contention that was raised in the proceedings at first instance. 3. Ground 5 of the appeal was: By reason of the matters raised in grounds 3, 4 and/or 10, the Tribunal lacked jurisdiction to make orders under the HP Act. 1. In its response to Grounds 3,4,5 (and 10) of the appeal, the respondents, accepted that the question of the jurisdiction of the Tribunal to determine the dispute had been raised on appeal (although not at first instance) and that the Appeal Panel must be satisfied that the Tribunal did have jurisdiction in the matter. 2. This was consistent with the decision of the Appeal Panel in Taylor in which it was stated: 44 There is no clear indication given in the decision that the concession made by the appellant also constituted a concession that the structures on the site constituted moveable dwellings for the purpose of the Act. Even if it did, parties to proceedings before the Tribunal cannot bestow jurisdiction on the Tribunal by consent. It is a prerequisite to the exercise of jurisdiction that such jurisdiction be established to the satisfaction of the Tribunal. Without there being a specific finding that the structures constituted a moveable dwelling for the purpose of the Act, or some description of the structures which would leave no doubt that they constituted a moveable dwelling and that the Member was cognisant of the need to establish jurisdiction and power, there can be no established basis for the purported exercise of jurisdiction and powers to make orders under the Act. 1. If the Tribunal did not have jurisdiction to determine the dispute, then the Tribunal's decision would be affected by an error of law. 2. Furthermore, the question raised on appeal concerning the operation of s 5 (1) HPA raised the question whether the claim brought in the proceedings was misconceived because the HPA did not apply. 3. We consider that the Tribunal erred in not asking itself the question about the applicability of the HPA and in not proceeding to make the necessary factual findings about this question on the material which it had before it. Failing to do so, was an error of law. As we have already mentioned, the Tribunal did not examine the question whether the structure was a "moveable dwelling" within the definition in the HPA and instead addressed a question as to whether the structure was a fixture or a chattel. 4. Grounds 3 and 5 of the appeal and the submissions in support of these grounds raised the question whether the HPA did not apply because the structure was not a "moveable dwelling" within (a) of the definition. In the circumstances of this case, in turn, this raised the question whether the structure fell within that part of (a) of the definition "other portable device …used for human habitation". 5. In the circumstances of the case before it, including the respondents' position about "manufactured home" referred to above, this was the question that the Tribunal should have asked itself. 6. Accordingly, we uphold Ground 3 of the appeal. Does the HPA apply? Determination by the Appeal Panel or remittal to the Tribunal 1. The Tribunal has broad powers in respect of the appeal, including to set-aside the orders challenged on appeal and make a decision in substitution, as well as a power to remit the proceedings to the Tribunal for redetermination: s 81 of the NCAT Act. 2. The parties presented competing submissions in their written submissions as to why the cabin structure was or was not a "moveable dwelling" for the purposes of s 5 (1) of the HPA. At the hearing of the appeal we raised with the parties the question whether this was a matter that we should determine on appeal or whether it should be remitted to the Tribunal for redetermination if some or all of the ground(s) of appeal were upheld. No party sought to change what each had said on this subject in their written submissions, although the respondents did indicate they were more open to the making of an order for remittal. 3. We have decided that Ground 3 of the appeal should be upheld and that we should determine the question whether the HPA applies, including whether the Tribunal has jurisdiction to determine the proceedings. This is so, even though a decision on this question not only involves a question of law as to the correct interpretation of s 3 (a) of the HPA but also a question of fact as to the relevant nature of the cabin structure in issue. However, we consider the question of fact is a narrow one in the circumstances that have occurred in this case. It can be resolved without new evidence and without any question as to the credibility of witnesses or the need for cross-examination. 4. We also consider that the respondents, as the moving parties, have had a reasonable opportunity to establish that the cabin structure, in whole or in part, is a "moveable dwelling" within the meaning of s 3 (1) (a) of the HPA, and, hence, that the HPA applies, we have received full submissions from the parties and we think it is in accordance with the guiding principle in s 36 of the NCAT Act that we proceed to determine the proceedings. Our findings and conclusions 1. We begin by examining what we do know about the cabin structure in issue. 2. The Tribunal made limited findings about the nature of the cabin structure on Site 4. It did say that it was prepared to accept a strong degree of annexation to the site as submitted by JW (when addressing a question whether it was a fixture or a chattel) but it did not make any findings concerning the facts behind its conclusion (at [53]). 3. In the Notice of Order dated 31 August 2023 with respect to the conduct of the proceedings at first instance it was noted that the following issues had been raised by JW, including that "This is not a moveable dwelling". Directions were made by the Tribunal that day for the respondents' (then applicants) to provide their documentary material (including witness statements, expert reports and photographs) by 21 September 2023 and for JW to provide his documentary by 13 October 2023. 4. In their evidentiary material in accordance with these directions the respondents presented no proof that the structure on the site was a "moveable dwelling". They provided no material, including photographs, witness statements or expert reports about the make-up of the cabin structure, where it had been built, whether it consisted of sections, how it had been transported to the site (if it had been), how it was affixed to the site and how it could be removed, including the ease of removal. 5. In his documentary material in response JW provided some photographs and stated (at page 33): 5. I consider that the Cabins were: a) were constructed and assembled on the Sites. b) are not able to be divided into transportable sections. Please see attached evidence of the scale of the cabin and non-separative nature of the build. Full demolition of the structure is the only option to remove this cabin from site. (Document 19). c) were constructed by welding the perimeter floor frame of the cabin structure to the support posts preventing removal, separation, and transportation of the cabin structure. The sub- framing for the floor structure has no lifting points or separation points in its current form. Please see photo of cabin 4 showing the permanent nature of the build (Document 20 & 21). d) incorporate garages which are fixed to concrete slabs, and which were constructed as separate structures and then connected to the balance of the Cabins. Please see the permanent nature of the connection between the cabin and garage in the attached photos. (Document 22 & 23). e) By reason of Paragraph 5 above, I believe that the cabins are in fact "buildings" as that is defined under the Environmental Planning & Assessment Act 1979. 1. The Tribunal referred to statements made by JW as follows (at [40]-[41]) (we exclude controversial opinions): 1. The cabin is 25m long and 6.5m wide at its widest point. 2. It is fixed to the ground by being welded to support columns concreted into the ground. 3. The cabin base is constructed in steel. 4. The steel columns used to hold the cabin structure are concreted into the ground to an unknown depth. 5. There are no ceiling joists or structural floor joists supporting the cabin's frame. 1. Photographs presented to the Tribunal by JW show a sizeable structure which includes a balcony at the front (located on an enclosed structure which we understand to be a brick façade). The balcony has a wooden and wire fence around its perimeter. A staircase leads to the front of the balcony. Adjacent to the balcony is a bench top area supported with the same brick facade. Another set of stairs leads to a doorway at the side of the cabin. On one side of the structure, near the rear of the property, are three lock-up, rolldown garage doors sitting above what appears to be a concrete slab. 2. The handwritten note presented to the Tribunal by JW referred to above was headed "Cabin 4". It indicates that in addition to the cabin, to which there was attributed an agreed value of $285,000, there were also "Extras" which included an extended loft, a garage, some stone bench structure and a bathroom/bedroom. These "Extras" totalled $50,480. 3. It was common ground on appeal that the cabin structure which JW had purchased included both the garages and the front balcony which were connected to the cabin. At the hearing of the appeal, there was no dissent from what we were told by Mr Birch of Counsel, who appeared for JW on the appeal, that the only addition JW had made to the structure after its purchase was the instalment of a spa on the balcony. 4. JW also presented to the Tribunal a photograph of a Manufacturers Compliance Plate from Dunkview in respect of the cabin structure containing a date of 2017. Amongst other things, this stated that the "structure" complied with various regulatory provisions, including Part 2 division 4 and Part 3 division 4 of the Regulation. The plate as photographed contain no identification numbers. 5. In his documentary material JW referred to the decision of the Land and Environment Court in Ogilvie v Rovest Holdings Pty Ltd [2023] NSWLEC 17. 6. On 9 November 2023 (6 business days before the hearing), the respondents provided an affidavit from Mr Milne, the General Manager of Operations at Tasman, said to have been in reply to JW's material, which addressed the "moveable dwelling" issue (an affidavit of 38 paragraphs and 33 pages of exhibits). 7. The directions for the conduct of the hearing made no provision for any additional evidence from the respondents, including in reply to JW's evidence. The manner in which the Tribunal allowed this affidavit to be relied upon was the subject of a procedural fairness ground of appeal, with which we do not need to deal. 8. The terms of the affidavit revealed Mr Milne's lack of personal knowledge about relevant matters concerning the "moveable dwelling" issue. In particular: 1. Mr Milne presented evidence of photographs provided by Mr Madsen, the former owner and sole director of Dunkview, some of which showed cabins being transported around the park and a photograph that showed a cabin being constructed off-site and another photograph of a cabin being installed on the site on piers. However, he did not identify any of these photographs as photographs of the cabin structure in issue. 2. Mr Milne referred to five of the cabins at the holiday park, none of which was the cabin structure in issue. He said that these had been constructed by Parkwood Modular Buildings Pty Ltd. He said he had spoken to a Mr McDougall, a director of this company, who said they had built 6 cabins for Dunkview, which had been collected by a specialist movable dwelling transportation company, McDonald Contracting Pty Ltd from Parkwood and delivered to the park for installation. He said that it was his "understanding" that the Parkwood Plan broadly reflected the external construction of each cabin in the 1-47 Cabins [cabin 4 being amongst these] whilst pointing out that there may have been some internal changes between the cabins and that the Parkwood Plan did not reflect the carports to the cabins, which occurred at a later date. 3. He said he had emailed McDonald Contracting Pty Ltd on 27 October 2023 requesting a quote for the removal of JW's cabin. He referred to the attachments he had provided with his email, including recent photographs of the cabin and the Parkwood Plan. The quote requested was for the removal of the cabin and garage at Site 4 but only to "higher ground" in the holiday park. 4. The quote from McDonald Contracting Pty Ltd was supplied on 31 October 2023. It contained no suggestion that this company had inspected the site for the purpose of the quote or that it had transported JW's cabin to the site for its installation. It stated that the quote followed a review of "the file" by a named person, presumably, within the company. There was no reference to what was required in order to carry out removal other than that the "building" be cut from its metal piers, the metal posts would remain in the ground and (without explanation) they would not remove the garage, which would need to be removed by others. A fee of $12,000, plus GST, was quoted. It was said that there would be an additional fee if the owner wanted to remove the building from the holiday park. 5. Finally, Mr Milne gave hearsay evidence of a conversation with Mr Madsen in a meeting with him on 2 November 2023. He said he was told by Mr Madsen that each of the 1-47 cabins had been built off site, some by Parkwood and others by cabin manufacturers or local builders or local contractors supervised by Dunkview. No cabin manufacturer or local builder or local contractor was identified as the builder of JW's cabin. Mr Milne said had been told by Mr Madsen that once built Mr Madsen arranged for McDonald Contracting Pty Ltd to transport the cabins to the park for installation, each cabin was lowered onto piers dug in at each site by the transport truck and rested on concrete blocks and the truck moved away, concrete was then poured into the pier holes and the cabin remained on the blocks for a few days whilst the concrete hardened [our emphasis]. Once the cabin was in situ, timber cladding was installed along the underside of the cabins, an external set of stairs was installed, the underside of the roofs of the balconies were plastered and painted and the cabins were internally painted and connected to site services. This information from Mr Madsen said nothing about the construction of the garage or the balcony. 6. On the basis of all this information, Mr Milne expressed the opinion that he considered the cabin at site 4 "is able to be removed from the Park and installed at another location". 1. The email from McDonald Contracting Pty Ltd of 31 October 2023, relevantly, stated: ● To move 1x cabin only from one position in the park to another is at a fee of $12,000 plus GST. ● The building will be cut from its metal piers in its current position, the metal posts will remain in the ground at the original site. ● We will not remove the garage, this will need to be removed by others. ● No new foundation work or peer work is included in this price. ● The owner wants to remove the building from the site, it will then be priced at an additional fee. Require an address and then we can price this portion of the works for the customer. 1. There was no account in this email about the specific work resulting in such a sizeable fee (apart from the need to cut the building from its metal piers) nor did it say how long this work would take. 2. There was no evidence as to why no witness statement had been presented from Mr Madsen or from knowledgeable persons at Parkwood Modular Buildings Pty Ltd, McDonald Contracting Pty Ltd or from a qualified expert about any of the relevant matters so far as they concerned the cabin structure in issue. 3. Importantly, there was no evidence presented by the respondents challenging JW's evidence referred to in paragraph [81] above. 4. Clearly, the information Mr Madsen had given Mr Milne that the cabin simply rested on the concrete blocks was either incomplete or incorrect. 5. There was no dispute on the appeal that it was common ground at the hearing at first instance that in order to remove the purely cabin component the garages and the balcony would have to be removed or demolished or taken away (page 19 of the transcript, line 37). Later, Mr Robertson told the Tribunal that he had accepted that the "carport" and the front balcony would have to be demolished (transcript 31, line 10). The parties' submissions 1. As appellant, JW was first to provide written submissions on appeal, followed by the respondents' written submissions and then JW's written submissions in reply, all of which were supplied before the hearing of the appeal. As we have already mentioned, after the hearing we obtained further written submissions from the parties about the decision in Ogilvie. 2. The main case authorities concerning the meaning of the relevant part of the definition of "movable dwelling" are Jambrecina, Taylor and Ogilvie. 3. Mr Birch of Counsel, who appeared for JW, submitted that as the moving parties it was always incumbent on the respondents to demonstrate that the cabin structure was a "moveable dwelling" in order to establish that the HPA applied and that the Tribunal had jurisdiction. He also submitted that if the correct question had been addressed the inevitable conclusion on the material before the Tribunal was that the cabin was not a "moveable dwelling". 4. As to the relevant meaning of "moveable dwelling", he relied upon what Sackville AJA said in Jambrecina at [44] about the meaning of "other portable device…. used for human habitation" 5. In Jambrecina, a case concerning the need for development approval under the EPA in respect of some sheds at the rear of a residential property, Sackville AJA (Giles and Ipp JJA agreeing) said at [44]: 44 The relevant exceptions in paragraph (a) are "a manufactured home, a moveable dwelling or associated structure". The evidence did not support a finding that any of the sheds were a "portable device … used for human habitation" and thus did not support a conclusion that any of the sheds was a "moveable dwelling". There was no suggestion that either the appellant or her son lived in the sheds or, indeed, that the sheds were capable of being used as a place of abode or dwelling. In any event, while the sheds were apparently prefabricated and presumably capable of being dismantled and reassembled, they were not "portable" in the same sense as tents, caravans and vans, which are specifically designed to be readily and frequently moved from place to place. 1. For present purposes, the last sentence in [44] of the decision is the important statement because it construes the "portable" element by reference to the preceding words in the LGA "tents, caravans and vans" and requires that they be of a like nature in the sense that they "are specifically designed to be readily and frequently moved from place to place". 2. Mr Birch also relied upon some passages in Taylor at [39] and [45]. He submitted that the question was also considered by assessing the practical ease with which the structure could be removed from the site. 3. In Taylor, the Appeal Panel remitted for redetermination proceedings brought by a park owner seeking orders under the HPA, including an order for termination of an occupation agreement and vacant possession of a site containing some form of dwelling located on a concrete slab, an adjoining caravan and a roof structure. This followed the Appeal Panel's conclusion that it was unclear whether the HPA applied and, hence, whether the Tribunal had jurisdiction because it was unclear whether the structure(s) was a "moveable dwelling" given the scant evidence about the structure and how it was sitting on the site. 4. The Appeal Panel in Taylor made no reference to the decision in Jambrecina, apparently, being unaware of the above relevant remarks by Sackville AJA. Relevantly, it did say: 45 We readily admit that the determination of whether the structures on this particular site constituted moveable dwellings, whether in whole or in part, may not be an easy task. Almost everything can be moved and might thereby be said to be "moveable." Even the London Bridge was moved to Arizona, USA. However, the reference to a moveable dwelling as contained within section 5 of the Act is, in our opinion, intended to refer to a structure which is capable of being left on the site, but capable also of being removed at the end of the occupation agreement. A caravan will obviously fit this description. A demountable structure, often used on building sites, in schools and at entertainment functions will also generally fit this description. This will be so whether or not services or utilities are attached to the structure. It may also be necessary to erect footings or other mechanisms on which to place such a structure. This may not detract from the structure being characterised as moveable. Certainty may only be injected into this hypothetical discussion by an examination of the structure itself including the manner in which it rests upon, or is installed or erected on the site as contemplated by the definition of "holiday park" contained within section 3 of the Act. In the circumstances of these proceedings there is a reference to a concrete slab. We do not know how large it is, whether it contains steel reinforcing or the like, and the manner in which it has been placed on or within the ground comprising the site. In general terms, we would not characterise a concrete slab upon which some form of structure occupied as a dwelling as being moveable. There is no information about whether the structure sitting on top of the slab was affixed to it, and in what manner. Again, this is hypothesis and should be subject to factual examination so as to inject certainty. Whatever the difficulties in making such a determination, there is nothing contained within the decision of the Member the subject of the appeal that indicates that any examination was undertaken so as to enable a determination to be made, and there is nothing contained within the decision which expresses the making of such a determination. 46 Arguably, this matter is even further complicated because the structures include a caravan which is likely to be characterised as moveable and a slab and roof type covering which may arguably be characterised as falling outside what is moveable. The "annex" structure is of unknown character. If these hypotheses are correct, it is not clear whether the Act would apply to some of the structures, all of the structures, or none of them. …. 1. Mr Birch submitted that the cabin was not capable of being moved as a structure, attempting to move the cabin would require demolition of significant parts of it (the garage and the balcony) and even attempting to move the remaining part of the cabin would involve major construction works. He submitted that these conclusions followed from the Tribunal's apparent acceptance of JW's submissions about the degree of annexation and nature of the cabin, which was entirely consistent with the respondents' evidence to the Tribunal, including the quote from McDonald Contracting Pty Ltd, as well as the fact that it was common ground that moving the cabin would entail the demolition of the garage area and the front balcony. 2. Mr Robertson of Counsel, who appeared for the respondents, submitted: 1. Given that the issue of jurisdiction had not been raised below and that the issue was being raised for the first time on appeal, JW, as the appellant, bore the onus of proving that the Tribunal did not have jurisdiction to determine the claim. 2. The Council, as the relevant regulatory authority, was satisfied that the cabins at the park are "moveable dwellings" because it granted approval under s 68 of the Local Government Act for the park to operate as a "caravan park/camping ground", which necessary comprised "moveable dwellings". 3. The compliance plate affixed to JW's shows that the cabin complies with the requirements of a "manufactured home". 4. The quote from McDonald Contracting Pty Ltd to remove the cabin showed that the Tribunal was correct to find that the cabin could be removed from the site. 5. JW, on the other hand, did not provide any evidence from an engineer or builder to substantiate his claims that the cabin was not capable of being removed from the site. 6. The cabin is in the nature of a chattel rather than a fixture for the reasons given by the Tribunal and JW is entitled to remove the cabin from the site. 1. As to these points we respond as follows: 1. The onus of proof was not on JW. On the contrary, as the moving parties, the onus lay with the respondents to establish that the HPA applies. 2. None of these points take any issue with the primary facts about the cabin structure referred to in [93], [94] and [95] above. 3. The Council approval to operate as a "caravan park/camping ground" proves nothing about the nature of the cabin structure in issue. 4. The compliance plate says nothing about the relevant questions as to whether the cabin structure in whole or in part was specifically designed to be readily and frequently moved from place to place and as to the practical ease of removal. 5. The quote from McDonald Contracting Pty Ltd does not address the relevant questions referred to in (4). On the contrary, the reference to the need to cut the cabin from its piers and the size of the fee are inconsistent with a conclusion that the cabin structure in whole or in part is a "moveable dwelling" within the definition in s 3 (a) of the HPA. 6. Again, the question whether the cabin is capable of being removed from the site is not the correct question. The absence of any engineering or expert evidence called by JW does not count against him having regard to the absence of any evidence from witnesses with personal knowledge of the nature of the structure, let alone any expert evidence, called by the respondents. 7. The conclusion about a chattel does not direct itself to the right question. 1. In addition, Mr Robertson submitted: 1. The Tribunal had found that the cabin was not a fixture, and this was a relevant consideration. 2. As appears from what the Appeal Panel said in Taylor, the fact that the cabin had been erected on footings did not detract from the structure being characterised as a "moveable dwelling". Neither does the fact that the cabin needs to be cut from the piers. 3. The "movable dwelling" is the cabin which was transported onto the site on a truck [our emphasis]. The balcony and garage which were subsequently attached to the cabin are associated structures. The fact that these associated structures are required to be removed/demolished prior to removal of the cabin does not undermine the fact that the cabin itself is a "movable dwelling". 4. The Tribunal did not err in not accepting the supposed "evidence" from JW that the cabin had not been designed or constructed to enable it to be removed and transported from the site. First, it was not shown that JW had any requisite expertise on this question. Secondly, this evidence was contrary to the compliance plate. 5. JW should not be allowed to argue that the cabin could not be removed given his contractual obligation under the Occupation Agreement to make sure that the cabin is kept in a condition allowing it to be moved. Otherwise, this would be to allow JW to take advantage of his own wrong. 1. As to these subsequent points, we respond as follows: 1. The question whether the cabin was a fixture was not the right question. 2. The cabin was not just erected on footings. It was welded to the footings. 3. We do not accept that the cabin was transported to the site for installation. This is because no witness with personal knowledge about this gave evidence, even though JW had raised the issue and even though Mr Madsen was, apparently, available to give evidence about it. The hearsay evidence sourced from Mr Madsen about this question was vague. JW, clearly, did not have personal knowledge of the situation at that time. 4. We do not rely upon JW's opinion evidence to this effect. We do rely upon his statements about the nature of the cabin structure obtainable by personal knowledge which were not contradicted. We repeat what we said above about the compliance plate. 5. Whether the HPA applies and whether the Tribunal has jurisdiction is not to be determined by the operation of a principle concerning not taking advantage of his own wrong. In any event, it is, at least, open to question whether there was any breach by JW of this contractual provision in circumstances where the cabin structure was already established on the site by others before the Occupation Agreement was entered into. 1. The respondents did not take issue with what was said by Sackville AJA in Jambrecina about the meaning of "moveable dwelling" or with JW's submission that the practical ease of removal was an important consideration, if not decisive. 2. We should also say that we consider that the respondents should be bound by the way they conducted the case before the Tribunal and that on appeal we should approach the question whether the cabin structure is a "moveable dwelling" by reference to the whether the cabin structure was an "other portable device" and not by reference to any question as to whether it was a "manufactured home": see, for example, Alta Vale Residential Pty Ltd v The Owners-Strata Plan No. 956393 [2024] NSWCATAP 212 at [37]-[40]. As we have examined above, the respondents eschewed a case at first instance that the cabin structure was a "manufactured home". They have provided no explanation for the course which they took, nor did they submit that they should be permitted to change their position. The only submission made on appeal was that they had left open the question whether the cabin structure was a "manufactured home" but the stance they chose to take was to pursue a different case. We accept JW's submission that there was evidence that he might have called about whether the cabin structure was a manufactured home had this been part of the respondents' case. 3. The approach to the meaning of "other portable device" taken by Sackville AJA in Jambrecina was followed in Ogilvie, a case in the Land and Environment Court of New South Wales concerning whether modular units being installed as accommodation elements of a proposed motel were to be classified as "buildings" requiring assessment pursuant to the EPA Act or whether they were "movable dwellings" within the definition in the Local Government Act. 4. Relevantly, in Ogilvie Moore J stated: 73 Of particular relevance, in the present context, is my discussion in [41] where I adopted the position that, even for the single‑storey modules proposed to be installed at Muswellbrook, they were of sufficient size that they could not be regarded as falling within the same genus as the other elements within the definition of "movable dwelling", a definition which needed to be read ejusdem generis. 74 It is also to be observed that, in the present instance, that which comprises each structure of four bedrooms/bathrooms also has attached to it, as an integrated part of its functional utility, a separate verandah structure which is to be constructed and affixed to (and thus becoming part of) the module when the four‑unit module has been put on its footings. 75 It is, therefore, clear that the entirety of what constitutes the integrated four‑bedroom/bathroom module also encompasses the verandah servicing those four units. There is no suggestion that, once those verandahs have been attached to them, the modules are transportable in a single piece. 76 Indeed, it is appropriate to reproduce a (lengthy) extract from Mr Goodsir's first affidavit so that there can be seen a clear understanding of the processes for installation and, critically, removal of the modules. Paragraphs 11 to 17 of his affidavit were in the following terms: …. 77 For any future transportation, if this was to be undertaken, there would be the necessary requirement to disassemble the verandah elements, as well as the disconnection of the electricity, stormwater, potable water and grey/black water discharge services. It is these latter elements (the necessity for disassembly and the permanence of connection of services) that arise to be considered in the context of the two decisions dealt with in the next sections of this judgment. Consideration of Jambrecina v Blacktown City Council 78 I turn, now, to the decision of the Court of Appeal in Jambrecina v Blacktown City Council. As earlier noted, the relevant passage is contained in the decision of Sackville AJA at [44]. This passage reads: …. 79 As is evident from the passage set out above, the sheds there involved were ones where their portability was dependent on disassembly into their component parts. This makes them distinctly different from the other items identified in the definition of "movable dwelling" in the Local Government Act. 80 Two matters of importance arise from the above passage. The first is the concluding words of his Honour where he notes that "portability", in the context where that expression is used in the definition of "movable dwelling", embodies an ability for an item so characterised as being one "specifically designed to be readily and frequently moved from place‑to‑place". 81 In the present context, there is no suggestion that the modules being installed on the site are so designed (see above extract from Mr Goodsir's first affidavit). 82 Indeed, in the context of the Company's application, they are expressly not intended to be readily and frequently moved from place‑to‑place. 83 Second, although the extent of disassembly necessary for the shed structures addressed in this decision of the Court of Appeal would have required a greater reduction to their component parts, that which is being installed on the site does, as a matter of practicality, not only require disconnection from necessary services but also disassembly by removal of the verandah structures which have been affixed to them and become part of each group of residential units. That necessity for disassembly before each of the modules was capable of being moved (even after disconnection from services) provides an additional reason why they could not be regarded as being an "other portable device" and thus being a "movable dwelling". …. 87 As can be seen from the above passage from the decision of Cowdroy J, the critical matters, in his Honour's assessment, militating in favour of the primary structure involved in those proceedings being regarded as a building rather than as some form of movable or temporary structure were the nature of the attachments of that structure to its site (including the connection to services). 88 In the circumstances with which I am now dealing, the connections of the modules to services, although capable of reversal in the fashion described by Mr Goodsir in his first affidavit) are of even greater sense of attachment to the site than those which his Honour considered were sufficient to demonstrate the permanence and lack of portability of the structure with which he was dealing. Conclusion on Ground 1 89 The combined conclusion to be drawn from the three decisions which I have analysed above provide, in their differing fashions, indicators pointing towards the permanence (and hence lack of portability) of the structures which the Company has had installed on the site. Taken together, I am satisfied that, as a matter of fact, the modular units installed on the site to provide the accommodation facilities for the Company's approved motel use do not fall within the definition of "moveable dwelling" in the Dictionary to the Local Government Act being: …. 1. In written submissions about the significance of Ogilvie, Mr Birch submitted that each of the four indicia considered in Ogilvie (size of the structure, veranda and garage as integrated components that would need to be demolished, connection to utility services and that the structure was not designed to be readily and frequently moved) weighed strongly toward the conclusion that the cabin structure in this case it was not a "moveable dwelling". 2. In reply written submissions, Mr Robertson submitted that the decision in Ogilvie was of limited assistance to the issue in this case and it did not lay down any principles of general application. 3. We agree that the decision in Ogilvie does not lay down any principles of general application. Nevertheless, we think it is of some assistance to the extent it adopts and applies the meaning of "other portable device" in the definition of "moveable dwelling" according to the approach taken by Sackville AJA in Jambrecina. At the same time, we recognise there are material differences between the structures in these cases. 4. Furthermore, addressing the arguments presented by the respondents about Ogilvie is of some relevance to our conclusion in this case. 5. The respondents outlined five ways in which the present case was said to differ from the case in Ogilvie. 6. First, the definition in s 3 of the HPA differed from that in the LGA. However, the only difference in s 3 (1) (a) was that the word "tent" does not appear before "caravan". The respondents made no submission about the significance of this difference, and we cannot discern any material difference. 7. Secondly, it was pointed out that in Ogilvie there was no issue about whether the structures fell within the definition of "manufactured home". However, we have already explained why this is not a relevant difference to the present case. 8. Thirdly, it was submitted that the evidence in the present case was significantly different to the evidence in Ogilvie. The respondents made three points in this regard as follows: 1. The conclusion in Ogilvie that the modular units had not been "specifically designed to be readily and frequently moved from place to place" was referred to. It was submitted that in the present case the compliance plate made it clear that the cabin structure had been designed to be readily moved from place to place since it is designed as a "manufactured home" and a "relocatable dwelling" as defined in the Regulation. We have already addressed this issue. 2. Reference was made to the conclusion in Ogilvie that the modular units were "expressly not intended to be readily and frequently moved from place to place" (at [82]). It was submitted that this appeared to be based on the fact that the first respondent owned the land, installed the modular units on the land and intended to use the modular units to operate a motel on the land. On the other hand, in this case the cabin structure was owned by JW and installed on a site owned and operated by the respondents which indicated that it was never intended that the cabin structure would remain in the present location permanently. It was submitted that this conclusion was supported by the clause in the Occupation Agreement which required JW to maintain the cabin structure "in a condition allowing it to be moved" (clause 22) and by the Tribunal's conclusion that the cabin structure was a chattel. 3. The respondents pointed to the quote from McDonald Contracting for removal of the cabin part of the structure to another part of the site. We agree that there was no such evidence in Ogilvie. However, as we have already indicated, the quote does not assist the respondents' case. 1. The conclusion at [82] in Ogilvie was, however, based upon the "Company's application". There was no such specific evidence in the present case. Clearly, this is a difference in the facts. However, we do not agree that the evidence in this case warrants a conclusion that it was never intended that the cabin structure would remain in the present location permanently-a different question to whether there was an intention that the cabin be readily and frequently moved from place to place. The physical aspects of the cabin structure would suggest otherwise (examined further below). Further, the cabin structure was in location at the site before it was purchased by JW but there was no evidence from Mr Madsen of Dunkview, an available witness, as to any relevant intention about the permanence of the location. Clause 22 was in an agreement which, contrary to the facts, contemplated that the cabin structure would be installed by the occupant after the agreement was entered into. It is removed from the reality of the situation which existed when the Occupation Agreement was entered into. The Annexure A provisions we referred to above is consistent with an opposite conclusion, namely the requirement for a moveable dwelling to be built in accordance with the park owner's approved design in order to preserve the aesthetics and standards of the park and to maintain the value of the cabin owner's investment. 2. In his submissions in reply about Ogilvie, Mr Birch made submissions about the park owner's business model, including that a combination of matters led to the conclusion that the business model was premised upon the cabin structure remaining in place. However, we think there is insufficient evidence for us to arrive at any conclusions about the respondents' business model. 1. Returning to the five ways in which the present case differed from that in Ogilvie according to the respondents, the fourth way was that in Ogilvie the Court did not refer to the concept of "associated structure" in the LGA. It was submitted that the definition of "associated structure" in the LGA makes it clear that "associated structure" such as a garage or veranda does not form part of a "moveable dwelling" and once attached to it remains a separate structure. It was submitted that the Court's failure to refer to this aspect undermined the Court's conclusion in [83] about the significance of the verandahs which it was said had become part of each unit and would require disassembly before the units were capable of being moved. It was submitted that because of this factor we need not follow the reasoning in the present case. It was submitted that the respondents had "adduced evidence that, notwithstanding the attachment of those associated structures, those structures can be removed from the appellant's cabin and the cabin can be transported from its site." 2. The evidence referred to in this passage must be the email quotation from McDonald Contracting. 3. We do not agree with this criticism of the decision in Ogilvie. In the LGA the definition of "associated structure" is only relevant to the "manufactured home" component of the definition of "moveable dwelling". Furthermore, as appears from the definition of "manufactured home" in the LGA set out above, contrary to the submissions of the respondents that an "associated structure" remains a separate and distinct structure from the "moveable dwelling", the "manufactured home" type of "moveable dwelling" is defined to include associated structures. The HPA contains the same definition of "manufactured home", although it contains no definition of "associated structure". 4. The fifth matter relied upon by the respondents was that Court in Ogilvie did not consider various aspects of the 2021 Regulation. However, as we have already mentioned the relevant provisions in the EPA (and the HPA) are not to be construed by reference to this regulation. Furthermore, there can be no suggestion in this case that any of the features of the installation of the cabin structure are explained by the need to comply with the 2021 Regulation. 5. Applying the approach to the meaning of "moveable dwelling" set out in s 3 (1) (a) of the definition taken in Jambrecina, as well as the remarks about the nature of a "moveable dwelling" in Taylor, we consider that the cabin structure in this case, whether in whole or in part, is not a "moveable dwelling" for the purposes of the HPA. In any event, at the least, we are not persuaded that it is such a dwelling. 6. Plainly, it is clear that the cabin structure as a whole, including the garages and balcony, is not specifically designed to be readily and frequently moved from place to place and, in fact, cannot be easily moved at the end of the occupancy agreement. 7. We draw the same conclusion about the cabin alone, separate from the garages and the balcony, in view of the totality of the uncontradicted evidence about the nature of the cabin referred to in paragraph [81] (1) to (5) above and the broad support for this conclusion revealed by the quote from Macdonald Contracting that we have already referred to. In addition, the garages and balcony disrupt the ease of separation of the cabin from these components of the cabin structure. Respondents' application to re-open the hearing of the appeal 1. On 26 September 2024 the respondents applied to re-open the hearing of the appeal in order to tender a written approval from the Hills Shire Council dated 23 September 2024 in respect of the installation of a relocatable home on JW's site at the holiday park. The application was supported by an affidavit from the respondents' solicitor sworn on 26 September 2024. The application was opposed by JW and an affidavit form JW's solicitor sworn on 30 September 2024 was relied upon. 2. Subsequently, both parties made written submissions with respect to the application and consented to the application being dealt with on the papers. 3. We refused the application and informed the parties we would give reasons for the refusal when giving our substantive reasons. We now give those reasons. 4. The submission was made by the respondents that the Council approval now obtained constitutes new or fresh evidence that was not available at the time of the hearing of the appeal which is highly relevant to issues on the appeal, including whether the Tribunal lacks jurisdiction because the cabin structure is not a "moveable dwelling (Grounds 3 and 5)". In the application itself (an "Application for miscellaneous" form) it was said that the approval showed that the Council, as the relevant regulator, is satisfied that JW's cabin is a "moveable dwelling"as defined in the LGA and 2021 Regulation and has approved the installation of JW's cabin on that basis. 5. However, the first matter to mention is that the Council does not express such an opinion. Rather, the approval is granted with respect to "the proposed relocatable home" at Site 4 [our emphasis] and is subject to a condition to be fulfilled "Before any works commences.." and contains a condition that "No associated structures are to be placed on the site without prior approval of Council". 6. Furthermore, there is no reasoning as to whether and, if so, how the proposed structure falls within the "other portable device" element of the relevant definition. 7. As it appears, we consider it has no probative value to the resolution of this appeal. 8. Furthermore, whilst we accept that the evidence is new or fresh, we do not accept that it was not reasonably available for the hearing of the appeal. The approval followed an application to the Council made after the hearing of the appeal on 5 September 2024. However, there was no explanation as to why this application could not have been made at a much earlier time. As to this, as appears from Ms Sutcliffe's affidavit (JW's solicitor), the respondents deliberately chose not to make this application earlier taking the position that JW should make any relevant application 9. JW also submitted that he would suffer prejudice by incurring further legal costs should the application be allowed leading to the likelihood of further evidence and submissions about this Council approval. As to further evidence, it emerged from Ms Sutcliffe affidavit that JW would wish to present evidence to show that the plans the subject of the Council approval are for a different cabin structure than his existing cabin and are also different to the Parkwood Plan that was the subject of the removal quote from McDonald Contracting Pty Ltd. 10. In view of these matters and the principles regarding the application to re-open set out in, for example, Wiskich v Composite Materials Australia Pty Ltd [2016] NSWCATAP 221 at [38]-[40] we decided to reject the application. Orders 1. For the above reasons, we make the following orders: 1. The appeal is allowed. 2. The orders made by the Tribunal on 29 April 2024 are set aside. 3. The respondents' proceedings 2023/00382500 are dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 02 January 2025 - Para [78] added "at" in the first line after "proceedings". Para [121] the paragraph numbered "(1)" in para [123] beginning "The respondents pointed "needs to be moved to become a new (3) in para [121]. Para [127] "Ogilvie" in italics. Para [135] added "associated" before "structures" in the last line. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 January 2025