(a) any habitable structure, whether it is fixed to the land or not; and

(c) any land, buildings or structures belonging to the premises.

1. The Tribunal further notes that the applicant had, in its written submissions, pursuant to directions made by the Tribunal of 24 May 2016, withdrawn its contention that the respondent was in breach of clause 68. However, as the respondent put the issue of clause 68 back in contention in her submissions, the respondent was entitled to respond to that contention through oral submissions at the hearing.

1. The applicant contended, in its written submissions, that:

The shipping container is a 12m long steel structure weighing in excess of 4,000kg. The applicant submits that it is self evident that a structure of such size and weight is damaging the land it is standing on and potentially damaging the stormwater easement.

1. The respondent submitted in reply that it was not apparent that the container would do any more damage than a "four wheel drive vehicle", which was of a similar weight.
2. Neither party produced any actual evidence of the weight of either the shipping container, or a four wheel drive vehicle. Such information can be readily obtained through relevant internet searches. In any case, it is not necessary to have regard to such evidence, as I am simply not satisfied that it is "self evident" that a shipping container could be "damaging the land".
3. I do accept the container may pose a risk of damaging the land by reason of blocking the stormwater easement during heavy rains. However, Ms Gallagher has already agreed to move the container from the easement. There is no evidence that it presents a similar risk when placed elsewhere on the premises.
4. Other than this potential damage in relation to the easement, no other details were given of the kind of 'damage' the container was causing or could cause to the land. There was no evidence, for example, that the container is damaging the garden, or even causing the grass to die off.
5. Perhaps the concept of 'damage' in clause 63 of the Standard Terms is broader than physical damage - perhaps it contemplates damage to value or amenity? Unfortunately, no submissions were made on this point, and there is no evidence of a diminution of land value or utility, so it is impossible to consider this issue further.
6. The onus is on the applicant to provide its case. It has not done so, and therefore I am not satisfied that this ground is made out.

Is the container an alteration, addition or fitting?

1. The next issue that arises in relation to this application is whether the container should be regarded as an 'addition or alteration' within the meaning of clause 67 of the Standard Terms, or a 'fitting' within the meaning of clause 68 of the Standard Terms. It was conceded by the Commissioner that the container is not a 'fixture' for the purposes of clause 68.
2. Clauses 67 and 68 of the Standard Terms provide that:
   1. The tenant must not make any additions or alterations to the premises without the written consent of the lessor
   2. (1) The tenant must not add any fixtures or fittings to the premises without the consent of the lessor.

(2) The lessor's consent must not be unreasonably withheld.

(3) The tenant must make good any damage to the premises on removal of any fixtures and fittings.

(4) Any fixtures or fittings not removed by the tenant before the tenant leaves the premises becomes the property of the lessor.

1. Briefly stated, if the container is a 'fitting' within the meaning of clause 68, then the applicant can refuse permission to add it to the premises, but the applicant's consent cannot be unreasonably withheld, and the Tribunal can review whether the refusal was reasonable. If it is an 'addition or alteration' to the property, then the Commissioner has the exclusive right to determine whether to grant permission or not, and the matter falls outside the jurisdiction of the Tribunal to review.
2. So, which of these categories, if any, does the container fall into?
3. Unfortunately, there is little guidance in the RT Act as to the meaning of the terms 'fitting', 'addition' or 'alteration'. None of these terms are defined.
4. Where a term is not defined in an Act, the next question must be whether the term has a legal meaning. If it does not, the word will be given its plain and ordinary meaning.
5. Taking each of the terms in turn, it is convenient to start by considering whether the container is an 'alteration' to the premises.
6. The Australian Legal Dictionary defines an 'alteration' as:

1. In building regulations, includes additions and extensions to a building contract: (CTH) Building Code of Australia Pt A1.
2. Does the container 'change, modify or amend' the premises or a part of them? It clearly does not. In order to 'change', 'modify' or 'amend' the premises, it must have some interaction with the premises that causes a change to them. There is no evidence that the container does this to either the house or the land. Indeed, the evidence is that the container simply sits on struts, under its own weight, and has little interaction with the land at all. The mere presence of the container, without more, cannot 'change' or 'modify' the premises.
3. Could the container be an 'addition' to the premises?
4. There is no definition of 'addition' in the Australian Legal Dictionary. Turning to the ordinary and natural meaning of the word, the Macquarie Dictionary defines 'addition' to mean, relevantly:

4. (often plural) wings, rooms, etc., added to a building, or land added to property already owned.

1. Having regard to the above definition, it seems to me that to be an addition to the land, the container needs 'add to' or 'unite with' some part of the premises, be it the land or the house.
2. Again, a significant consideration is that the container is standing under its own weight on the premises, and is not in any way attached to the land or the house.
3. In this regard, the container may be different to a shed. A small shed that stands under its own weight is not an addition or alteration to the land. A larger shed that requires assembly and which has a concrete floor that cannot be readily removed, likely is, if only because the pouring on the concrete base amounts to a permanent addition or alteration to the land. The container neither requires assembly, nor is placed on a concrete floor.
4. Similarly, the position may be different if the container was 'united with' the house in some way - for example, by way of a patio, power lines or water pipes. In such circumstances, it may be possible to conclude that the container is an extension or addition to the house. That is not the case here, as there is no connection between the container and the house.
5. Accordingly, I am satisfied that the container is not an addition to the premises.
6. As I am satisfied that the container is neither an addition or an alteration, the next question is whether it is a 'fitting'.
7. There is no definition of 'fitting' in the Australian Legal Dictionary. There is a definition of 'fit out', which provides, relevantly, as follows:

The provision of finishes, fixtures, fittings, equipment, or services to leased premises, usually to a tenant's specifications. An example is the erection of a shop counters to retail shop premises.

1. Turning to the natural and ordinary meaning, the Macquarie Dictionary defines the term 'fitting', relevantly but unhelpfully, as:

5. anything provided as equipment, parts, accessories, etc.

2. As these definitions demonstrate, the word 'fitting' is commonly used in association with, if not interchangeably with, the word 'fixture'. Indeed, one may suggest that in common and ordinary language, the word 'fitting' is typically used in connection with a range of domestic fixtures - eg. 'light fittings' and 'bathroom fittings' and 'window fittings'. The Tribunal has not been presented with, or nor has it identified, any authority which discusses the difference between the two concepts.
3. Still, as an interpretative rule, the Tribunal is required to give meaning to every word, and cannot consider any word to be superfluous or insignificant.[1] Therefore, some significance must be given to the word 'fitting' as distinct from the word 'fixture', and that means there must be some difference between them.
4. However, before engaging in such an exercise, it is worth considering what is in issue here. If the container is a 'fitting' then the respondent needs the Commissioner's permission to place the container on the property, but that permission cannot unreasonably be withheld. If the container is simply some other form of chattel, then it would appear that the respondent does not need the Commissioner's permission at all. Therefore, if one approaches this case from another angle, the Tribunal need only determine whether the container is a fitting if satisfied that the Commissioner's refusal to allow its installation was not unreasonable.

1. The Commissioner's reasons for declining to grant the respondent permission to install the container may be summarised as:
   • (a) The size of the container is not appropriate in a suburban setting - Mr Adkins stated that the Commissioner would have similar concerns about a shed of an equivalent size; and
   • (b) It would create a poor precedent - even if it was approval were reasonable in this case given the size and layout of this block, it would not be reasonable for other properties.
2. No further explanation was given as to why the container is of a size that is not appropriate for a suburban setting. The Tribunal surmises that the aesthetic impact of the container, and resulting possible concerns of neighbours, may well be the issue.
3. The Tribunal is aware that the location of containers in residential locations is a controversial topic. Likely as a result of this controversy, some interstate jurisdictions appear to have restrictions on the placement of shipping containers in residential areas (primarily through building regulation). However, the Commissioner did not point to any law or regulation that prohibits the placement of shipping containers in residential areas in the ACT.
4. It is understandable that the Commissioner may be concerned about the amenity of its properties, and it is conceivable that these concerns may establish a not unreasonable basis for refusing a tenant permission to install a large, albeit temporary, secondary structure. That may especially be the case where the structure is visible from the street, or is opposed by neighbours. The container in this case is neither. There is no evidence that it has any negative effect on the amenity or value or any neighbouring property. The neighbours have no objection to it. It can be relatively easily removed if it becomes an issue.
5. I am not convinced that this case is likely to create a poor precedent. The applicant's block is both large and distinctively set back from the road. The only 'precedent' that would be created would, perhaps, be an expectation that other tenants of comparatively large and private blocks would be entitled to have a similar application considered equally. There is no evidence before the Tribunal as to how many of such blocks the applicant owns, or how significant an issue this would be.
6. For the above reasons, I am not satisfied that the applicant has offered 'reasonable' reasons for refusing permission for the container, and hence I am of the view that the Commissioner's consent was unreasonably withheld. Accordingly, I need not conclusively decide whether the container is a fitting.

[1] See Pearce and Geddes, Statutory Interpretation in Australia (8th edition) at 2.26