1. The enforcement order is made in the form attached to this order.

1. Christine Bodey and Vernon Trickey must pay the costs of East Gippsland Shire Council fixed in the sum of $1,350. The costs must be paid by no later than 15 January 2018.

1. Pursuant to section 115B of the Victorian Civil and Administrative Tribunal Act 1998, Christine Bodey and Vernon Trickey must reimburse the East Gippsland Shire Council the whole of the application fees and daily hearing fees paid by the East Gippsland Shire Council in the proceeding, namely $1,692.20. The fees must be reimbursed by no later than 15 January 2018.

• Mr Arthur Petersen, development compliance officer, East Gippsland Shire Council

1. Ms Bodey owns land in Bairnsdale that is about 50 metres from the Mitchell River. The land is currently in a General Residential Zone (the GRZ) under the East Gippsland Planning Scheme (the scheme) but is also currently in a Land Subject to Inundation Overlay (an LSIO) reflecting the flood risk from the river. The East Gippsland Catchment Management Authority (the Catchment Authority) is responsible for managing the flood plain.
2. The land is flat and vacant. It has a frontage of about 47 metres to Robb Street, is irregular in shape and comprises a number of individual lots with a total area of about 1.5 ha.
3. Before buying the land, Ms Bodey asked her friend, Mr Trickey, to get flood advice from the Catchment Authority in relation to building sheds on the land. The Catchment Authority told Mr Trickey it would be likely to object to constructing sheds or other buildings. She also asked Mr Trickey to get advice from a planning consultant about building sheds to store machinery and gardening equipment, about constructing drains and dams, and about placing fill on the land. The planning consultants told Mr Trickey there was no likelihood of gaining planning approval for these buildings and works.
4. Nonetheless, Ms Bodey subsequently signed a contract to buy the land on 1 April 2017. There is no dispute that Ms Bodey and Mr Trickey have occupied the land at all relevant times since title to the land transferred to Ms Bodey on 28 April 2017.
5. The Council has applied to the Tribunal for an enforcement order. The application alleges contraventions of the scheme in relation to a shipping container and a caravan that have occurred since Ms Bodey and Mr Trickey took occupation of the land.[1]

1. Mr Petersen's evidence is that he visited the land on 3 May 2017 and observed a shipping container on the land. Mr Petersen told Ms Bodey and Mr Trickey, who were present at the time of the visit, that the shipping container was unlawful and needed to be removed. Ms Bodey told Mr Petersen she would not remove it. The following day, Council sent Ms Bodey what it described as a 'notice to comply' with the scheme, being correspondence which required Ms Bodey to immediately remove the shipping container.
2. According to Mr Petersen, the shipping container remained on the land until 17 August 2017, being the day before a practice hearing of the Council's application. There is no evidence that the shipping container has been returned to the land.
3. Ms Bodey does not dispute that she placed a shipping container on the land and it remained on the land between 3 May 2017 and 17 August 2017. At the hearing, she submitted she used the shipping container to store various pot plants owned by family members. Ms Bodey submits she has no intention to bring the (or any other) shipping container back to the land. Ms Bodey made no submissions about the lawfulness of the shipping container and resisted the making of an order only on the basis that it had been removed.
4. I find that the placing of the shipping container on the land is a contravention of the scheme for the following reasons.
5. First, the Tribunal has previously characterised the placing of a shipping container on land to be a structure on the land, for the purposes of the definitions of a building and works.[2] There is nothing about the particular circumstances of this shipping container which makes me doubt the correctness of that characterisation in this proceeding.
6. Second, in the LSIO, a permit is required to construct a building or carry out works. A building includes a structure. Placing a shipping container often involves some disturbance to the surface of the land and may therefore involve works. Ms Bodey has not at any time applied and been granted a permit for the shipping container.
7. Third, the shipping container has been used to store goods, being at least plants. There was some evidence that some mechanical tools used to help maintain the land have also been stored. I characterise the shipping container as a use of the land for a store. I find it is a separate use for that purpose. The land is vacant and is not used for a dwelling.[3] It is not ancillary to any other use of the land.
8. Fourth, in the GRZ, the use of land for a store requires a permit. It is subject to a mandatory condition that the use must be in conjunction with the occupation of a resident of a dwelling. The land is not used for dwelling.[4] If the condition is not met, the use is prohibited. Accordingly, the use of the shipping container for a store is unlawful.

1. Mr Petersen's evidence is that he visited the land on 3 May 2017 and observed a caravan, with annex, on the land. Mr Petersen states Ms Bodey told him that she intended to sleep in the caravan. Ms Bodey denies she said this. Mr Petersen told Ms Bodey and Mr Trickey that the caravan was unlawful and needed to be removed. Ms Bodey told Mr Petersen she would not remove it. Mr Petersen's affidavit states that Ms Bodey and Mr Trickey told him '[t]hey had done it before and the Council couldn't move them and this would be no different'. From the evidence at the hearing, I was satisfied 'it' was a reference to keeping a caravan on land.
2. The Council's 'notice to comply' correspondence also required Ms Bodey to immediately remove the caravan. According to Mr Petersen's evidence, the caravan remained on the land on three other inspection dates including 17 August 2017, being the day before a practice hearing of the Council's application, when it was observed to have been removed. On a further inspection, on 13 November 2017, the caravan was back on the land. Ms Bodey accepts the caravan remains on the land.

1. The caravan does not have the appearance of what might be described as a 'conventional' caravan.
2. Mr Petersen tendered photographs of the caravan. It has wheels. It can be connected to a car and moved. I estimate that the body of the caravan has dimensions of about 2.5 metres width and 3.5 metres length. It has a sharp-edge cube shape and no curves in its design. It has a single door in a conventional position on the side. Behind the caravan is a structure comprising a timber frame the height of the caravan but angled down away from the caravan upon which is attached a number of solar panels.
3. Perhaps the main reason the caravan appears unconventional is that it has only three small windows each no bigger than about an A3 sized sheet of paper. From the photographs, its metal-clad construction does not appear professional and it is therefore possible it was constructed in a backyard workshop. It could be mistaken for a shed on wheels.
4. A caravan is not defined in the scheme. 'Movable building' is defined in the scheme but a caravan is specifically excluded from that definition.[5] Under other statutes, a caravan is defined as, in essence, a movable dwelling.[6] The ordinary meaning of a caravan is 'a vehicle in which people may live, whether temporarily or permanently, usually having two wheels and designed to be drawn by a car'.[7]
5. Mr Petersen has not inspected the inside of the caravan. Whether it is designed or adapted for a person to sleep within is an important but not determinative indicator of whether a person does or may 'live' in the 'vehicle'. Ms Bodey's evidence is that she does not sleep in the caravan and that she uses it as, in effect, a place of shelter from the weather when she visits the land.
6. Ms Bodey submits that she uses the caravan primarily as an office. She says it contains a desk on which she works on a computer. She says there is a printer and refrigerator and all these devices are powered by either the solar panels or, as Mr Petersen has observed on one occasion, a generator. Ms Bodey does not deny that a person could sleep in the caravan.
7. I do not accept Ms Bodey's evidence that neither she nor Mr Trickey sleeps in the caravan. In cross examination, her evidence was that she regularly visits the land from where she lives in South Yarra, Melbourne, and always returns to South Yarra at the end of the day before returning to the land the next day or soon after. The distance and time involved in such visits is implausible. Ms Bodey did not deny that she did not know whether Mr Trickey slept in the caravan when he visited the land. Mr Petersen's evidence is that he has visited the land late in the day when he has observed lights inside the caravan. While that is not proof that a person is sleeping in the caravan, it supports a finding that a person is in the caravan for extended hours.
8. I therefore find that the caravan is being lived in and is therefore a caravan under its ordinary meaning.

1. I briefly set out some facts in relation to services being provided to the caravan that are of some relevance to the analysis that follows. As I have stated, the caravan has been powered by either a generator or a solar panel structure fixed to the ground behind the caravan.
2. As well, Mr Petersen's evidence is that he observed a local plumber who was known to him constructing reticulated water and sewer from the nearest service point in the street to the land and to a location where the caravan was located. Ms Bodey does not deny she engaged the plumber to carry out this work and the work was carried out. However, her evidence is that the caravan is not connected to the sewer and that the purpose was to extend the sewer in advance of her ultimate aim of constructing a shed or a dwelling on the land.

1. The Council does not make this claim and I deal with this issue only for completeness. If the caravan is a building it could be subject to possible regulation under the scheme as a development of land. The Tribunal has previously observed that a caravan is a movable structure that is dealt with under other legislation and its placement on land is not development of land for planning purposes.[8] I agree with that observation.
2. Accordingly, Ms Bodey and Mr Trickey have not contravened the scheme by developing the land for a caravan without a permit under the LSIO.

1. It is trite to observe that, in characterising the use of the land, I must ascertain the purpose for which the land is used.
2. If a caravan was on land on which a house was constructed and used as a dwelling, it would often be the case that use of the caravan was an ancillary activity to the use of the land for a dwelling. This would particularly be the case if the caravan was just parked there or only occupied temporarily at the land.
3. If a caravan was on land set aside for the temporary or permanent parking of other caravans for occupation by visitors to the land, it would often be the case that the land was being used for a caravan park and the caravan was part of that use.
4. It is not uncommon that persons live in a caravan on land they own on which a dwelling is being constructed. This is a temporary use of the caravan and, under other statutes, is permitted for a specified temporary period and only while the dwelling is being constructed. Having regard to the definition of use which refers to proposed use of land for which it is being developed, I would expect in most cases that the occupation of the caravan is also ancillary to the use of the land for a dwelling.
5. This proceeding is different to these examples because the land has not been developed for a dwelling, is not being developed for a dwelling and is just one caravan on the land.
6. There is no evidence of any other use of the land and so it is unnecessary to consider whether the caravan may be ancillary to another use. There is no evidence the land is being used for agriculture. I have already found that the land was being used for a store, but as at the date of the hearing, that use had ceased. When the land was being used for a store, the caravan was on the land for all or substantial parts of that period. There is no evidence that the occupation of the caravan was ancillary to the store.
7. As I have stated, the temporary occupation of a caravan on land is usually not a use of land. However, depending on the circumstances, occupation of a caravan that is not temporary could be a use of land. I consider it is a use of land in this proceeding for the following main reasons:
   • (a) Ms Bodey or Mr Trickey have been physically on the land very regularly, almost continuously, since 28 April 2017.
   • (b) The caravan has been located on the land for substantial parts of the time since that date.
   • (c) The caravan is lived in while located on the land in the sense of being occupied by Ms Bodey or Mr Trickey during the day and on, by inference, many evenings.
   • (d) I infer from the extension of water and sewer services to the current location of the caravan that Ms Bodey is or was seeking to adapt the caravan for more comfortable and less temporary living.
8. The caravan has been observed to have been connected to vehicles from time to time and to being parked in slightly different locations on the land. This does not derogate from the above findings.

What is the proper characterisation of the use?

1. The use is not for a dwelling. Dwelling, as defined, is a building. The caravan is not a building.[9] As well, the caravan does not include all the physical elements included in the definition of dwelling and there is no evidence it is used as a self-contained residence.
2. In characterising the use, a use may neatly or conveniently fit within a use defined in the scheme. I am not bound by such defined uses in trying to ascertain the purpose of the use. Planning schemes do not appear to deal clearly with non-temporary use of a caravan on vacant land.[10]
3. In another proceeding, the Tribunal characterised the use of the land on which a caravan was or had been located as for a 'movable dwelling unit'.[11] This decision is not persuasive in this proceeding because the facts and law were different. The facts included there being about ten such units, not just one, for temporary occupation by visitors. The relevant scheme in that case, at the relevant time, included a definition of the use 'movable dwelling unit'. That is not the case in this proceeding.
4. In this proceeding, I find the purpose of the use is 'accommodation'. Accommodation is defined as 'land used to accommodate persons'. On the evidence, Ms Bodey and Mr Trickey are being accommodated in that they are staying or are capable of staying on the land during the day and evening in the caravan.

1. In the GRZ, the use of the land for a dwelling is permitted. The use of the land for accommodation, other than for a dependent person's unit, a dwelling or a residential aged care facility (as those terms are defined) requires a permit. Accordingly, accommodation requires a permit. Ms Bodey has neither sought nor obtained a permit to use the land for accommodation.
2. For completeness, it is unnecessary to make any finding about whether the caravan is an office. Ms Bodey's claims about occasional office use of the caravan do not amount to a purpose of the use of the land.

1. It follows that I find there has been a contravention of the scheme, comprising developing the land without a permit contrary to clause 44.04-1 and using the land for a store and for accommodation contrary to clause 32.08-2.
2. The making of an enforcement order is a matter for discretion. I will make the order for two reasons.
3. First, Ms Bodey and Mr Trickey refused to acknowledge or remedy the contravention when the Council brought it to their attention and this required the making of the application.
4. Second, Ms Bodey removed the shipping container and caravan immediately before a practice day hearing of the application and then brought the caravan back soon afterwards. I draw an inference that there is a risk that the shipping container and caravan could be returned if removed in the future, without the grant of an order and the penalties that could result should a breach of the order be proved.

1. For the above reasons, the application is allowed. An enforcement order will be granted.

1. The Council made a written application at the conclusion of the hearing that Ms Bodey and Mr Trickey be ordered to pay the Council's costs and reimburse the Tribunal's filing and hearing fees. The Council subsequently amended its application. Ms Bodey was not in a position to respond to that application. I gave leave for Ms Bodey and Mr Trickey to respond to that application. I have considered the response opposing the application filed by Ms Bodey's lawyers.
2. I have considered the relevant matters in deciding the Council's application.[12] Ms Bodey's and Mr Trickey's refusal to take the opportunity offered by the Council to remove the contravention and the Council's need to apply for an enforcement order is one of the relevant factors. Ms Bodey and Mr Trickey must pay the Council's costs in its attendance at the practice day hearing and the final hearing and in its preparation of submissions for the final hearing. I will allow $350, $500 and $500 for each of these costs, being a total of $1,350. Ms Bodey and Mr Trickey must also reimburse the Council the whole of its filing and hearing fees, totalling $1,692.20.

• The whole of the land contained in Certificate of Title Volume 10279 Folio 341 (being lot 1 on Title Plan 088850S)
• The whole of the land contained in Certificate of Title Volume 09488 Folio 349 (being lot 1 on Title Plan 202262F)
• The whole of the land contained in Certificate of Title Volume 11905 Folio 447 (being lot 63 on Plan of Subdivision 002488)
• The whole of the land contained in Certificate of Title Volume 11905 Folio 448 (being lot 64 on Plan of Subdivision 002488)
• The whole of the land contained in Certificate of Title Volume 11905 Folio 449 (being lot 65 on Plan of Subdivision 002488)
• The whole of the land contained in Certificate of Title Volume 11905 Folio 450 (being lot 66 on Plan of Subdivision 002488)
• The whole of the land contained in Certificate of Title Volume 11905 Folio 451 (being lot 67 on Plan of Subdivision 002488)

Constructing a building or constructing or carrying out works (a shipping container) on the subject land without a permit, contrary to clause 44.04-1 of the East Gippsland Planning Scheme

Use of the subject land for a store without a permit contrary to clause 32.08-2 of the East Gippsland Planning Scheme

Use of the subject land for accommodation without a permit contrary to clause 32.08-2 of the East Gippsland Planning Scheme

1. By no later than 21 December 2017:
   • (a) Christine Bodey and Vernon Trickey must remove any shipping container from the subject land.
   • (b) Christine Bodey and Vernon Trickey must cease using the subject land for accommodation by removing the caravan from the subject land.
2. Christine Bodey and Vernon Trickey must not construct a building or construct or carry out works comprising the placement of a shipping container on the land except in accordance with a permit granted under clause 44.04-1 of the East Gippsland Planning Scheme.
3. Christine Bodey and Vernon Trickey must not use the subject land for a store except in accordance with a permit granted under clause 32.08-2 of the East Gippsland Planning Scheme.
4. Christine Bodey and Vernon Trickey must not use the subject land for accommodation except in accordance with a permit granted under clause 32.08-2 of the East Gippsland Planning Scheme.
5. The applicant must serve a copy of this order on the owner and occupier(s) of the land, and any other person against whom the order is made, pursuant to section 140 of the Victorian Civil and Administrative Tribunal Act 1998.

[1] The Council has filed statements under sections 140 and 141 of the Planning and Environment Act 1987 (PE Act) that, in summary, prove that at all relevant times since 28 April 2017, the land has been subject to the GRZ and LSIO provisions of the scheme.

[2] Watson v Monash CC [2011] VCAT 2176.

[3] Later in these reasons, I make a finding about the use of the land for accommodation.

[4] Reasoning for this finding is set out later in these reasons.

[5] East Gippsland Planning Scheme cl 72.

[6] Residential Tenancies Act 1997 s 3. This definition is not helpful because it makes reference to a dwelling and dwelling has a particular meaning under the scheme.

[7] Macquarie Dictionary, 6th ed (2013).

[8] See eg Furness v South Gippsland SC [2011] VCAT 192 [13]-[16]; Donmez v Mildura RCC [2016] VCAT 1388 [48].

[9] Furness v South Gippsland SC [2011] VCAT 192 [10]-[13]

[10] I agree with the observation of a similar nature by the Tribunal in Furness v South Gippsland SC [2011] VCAT 192 [21].

[11] Farmyard Friends Pty Ltd v Whittlesea CC [2005] VCAT 464 [21].

[12] Victorian Civil and Administrative Tribunal Act 1998 s 109 (costs) & s 115B (reimbursement of fees), and the relevant case law.