"the caravan component is fully incorporated in the building structure and cannot be towed away. The caravan is timber framed and plaster boarded, with two very large openings on one side and one on the other side, one being about the width of the double door opening into an annexe on concreted in posts and rafters, and one made to form a recess for a wardrobe. It is constructed as a tiny home. The common roof expands across all three sections of the building."

1. In July 2022, the plaintiff entered into discussions with representatives of the defendants, including a Mr Joshua Manticas, with a view to the plaintiff purchasing a structure at the caravan park in which he would reside as a long term resident. Mr Manticas is a director of the second defendant and an agent of the first defendant.
2. After some discussions, the plaintiff ultimately decided to purchase the right to reside in the structure at site 43 from the previous owners, Mr and Mrs Brain. The purchase price was $82,000. The plaintiff paid that amount to the Brains on 21 July 2022.
3. On 18 July 2022, Mr Manticas emailed the plaintiff regarding his occupancy of site 43 and his purchase of his structure on the site from the Brains. Mr Manticas attached a fee structure for the site, a copy of the "park rules" and a contact form. He noted that the fee for occupancy of site 43 was $280 per fortnight based on two occupants and that there was also a $1,250 administration fee payable to park management at the time of the changeover. Further information was sought from the plaintiff before he was "approved as a resident". Amongst those matters were a copy of his drivers licence, a national police check, a credit card check and a real estate referral.
4. The park rules referred to by caravan park management were the rules known as "the 2019 rules". The title of the rules is "Rules for Long Term Residents at Beauty Point Tourist Park". The rules were updated on 27 November 2019.
5. The rules define "long term resident" as "a person who pays a licence fee for continuous use of an allotted site, 7 nights per week, for the term of the licence in clause 2".
6. Clause 2.1 of the 2019 rules provides that "BPTP [Beauty Point Tourist Park] grants to the long term resident a licence of the site on a fortnightly basis, subject to these terms. Unless terminated the licence will renew at the end of each fortnight without the requirement for the parties to enter into a further agreement".
7. Under clause 10 of the 2019 rules, the second defendant has the right to approve the sale of a caravan (and any annexe or other improvements) from an existing long term resident to a new resident. This is what happened in the plaintiff's case. The second defendant approved the sale of the Brains' interest in site 43 to the plaintiff.
8. Clause 14 of the 2019 rules is headed "Permitted variations". That clause provides as follows:

"14.1 BPTP [Beauty Point Tourist Park] may make variations to these rules or the Licence Fee payable at any time by 14 days notice in writing to the long term resident. The change will take effect immediately from the expiry of the notice period without the requirement for any further agreement.

14.2 Where a long term resident requests that these rules be varied as it applies to them, such variation will only take effect once BPTP [Beauty Point Tourist Park] and the long term resident have agreed in writing to the variation.

14.3 BPTP [Beauty Point Tourist Park] is not bound to agree to any variation of these rules requested by the long term resident on the basis that the variation has been agreed to with another long term resident."

1. Clause 15 of the 2019 rules deals with how a licence granted to a long term resident may be terminated by the second defendant. It provides as follows:

"15.1 The licence granted to the Long Term Resident may be terminated by BPTP [Beauty Point Tourist Park] in the following circumstances;

15.1.1 If the Licence Fee or any other amount payable by the long term resident has not been paid within 14 days of the due date, without the requirement of further notice;

15.1.2 Where the long term resident is in breach of these rules if the breach has not been rectified within 14 days of a notice to the long term resident which specifies the breach and the manner in which the breach is to be rectified;

15.1.3 Immediately, if any duly permitted authority gives notice that the long term resident's caravan or improvements must be removed from the site; or

1. The circumstances of the plaintiff's commencement to occupy site 43 were set out at par [17]-[19] of the interlocutory judgment where the following was said:

"[17] In an email sent to the plaintiff on 29 July 2022, 'the Team at Beauty Point Tourist Park' noted the plaintiff's arrival at the Park as at 'Saturday, 30 July 2022' and the departure date as 'Monday, 31 July 2073'. By 31 July 2073, if still alive, the plaintiff would be 102 years old.

[18] All invoices received by the plaintiff from the first defendant included a notation that he was a long term resident.

[19] The plaintiff commenced to reside at site 43 on 30 July 2022. Since that time, in reliance on his status as a 'long term resident', he has made improvements to the site. Those improvements were made with prior approval from Mr Manticas. He estimates the total cost of the improvements up to 23 August 2024 to be just over $5,000. The most expensive item being the installation of reverse cycle air conditioning at an approximate cost of $2,900. The plaintiff gave evidence that the structure on site 43 is fixed to the ground ... [the discussion about the building structure referred to earlier in these reasons is then set out] ... The plaintiff gave the following evidence in his affidavit in support of the application for interlocutory relief:

'When I first moved in, the floorboards had rotted away, so I replaced the floorboards and resealed them. When I bought it, the caravan was fixed to the ground and does not have any wheels or axle attached. I believe it has been that way for some 20 years. The three components, being the caravan, the two small rooms constructed on either side of the chassis of the caravan as extensions, make up one building.'"

1. The plaintiff gave evidence that initially he was happy living at the caravan park and became involved in the local community at the park. He also said that in the second half of 2023 and in early 2024 some issues arose at the caravan park between Mr Manticas on the one hand and some long term residents of the caravan park on the other hand. In his affidavit filed in support of his claim, the plaintiff said that "Mr Manticas had started evicting or threatening to evict long term residents". This resulted in Mr Manticas sending letters to residents of the caravan park. The plaintiff then referred to a letter sent to him on 13 March 2024. That letter was addressed to "dear occupants" and the subject matter was "clarification regarding recent misinformation".
2. By letter dated 13 March 2024 addressed to "dear occupants" under the subject "clarification regarding recent misinformation" Mr Manticas and Mr Ralph Shannon, a director of the first respondent, said as follows:

"We are writing to address some recent inaccuracies that have been circulating concerning the Beauty Point Tourist Park. It is crucial to us that our occupants are provided with accurate information, and we appreciate your attention to this matter.

Firstly, we want to reaffirm our commitment to protecting every site within the park and the occupants therein. Our intention is not to remove anybody unless there is a breach of our established rules and regulations which we enforce strongly for the sake of all. We value the community we have built here and strive to maintain a harmonious and respect environment for all.

Additionally, we wish to clarify our ongoing efforts to seek acknowledgement and recognition through legislative reform. Since November of last year, we have been actively engaging with government bodies to champion reforms that will safe guard the interests of our business and the structures/home of our occupants.

Regrettably, the actions of a couple of occupants including physical threats of violence and intimidation towards staff have led to their removal. For that, we make no apologies.

It is unfortunate there has been misinformation circulating, particularly from the actions of a small minority within the park. We want to make it clear that any attempts to undermine the management team tol promote self-agendas are entirely inaccurate and do not reflect the values of our community.

Furthermore, we want to ensure all occupants that we will continue to promote and foster an environment where people are safe, and the workplace is safe and pleasant for our employees. Your safety and wellbeing are upmost of importance to us, and we are committed to upholding the highest standards in this regard.

Lastly, we want to emphasis that there are no plans to redevelop or change our current business model. We remain dedicated to providing the same excellent services and amenities that our community has come to expect and appreciate.

Thank you for your continued support and understanding."

1. Shortly after the sending out of the 13 March 2024 letter, a copy of which was received by the plaintiff, a residents association was formed among long term residents of the caravan park. Its name is Beauty Point Tourist Park Residents Association Inc. The plaintiff was elected as its inaugural president.
2. On 28 June 2024, the plaintiff received a letter which was addressed to "dear guests" from Mr Manticas. The letter said:

"Pursuant to clause 14.1 of the current rules of the park dated November 2019, we hereby give 14 days' notice of an update to the terms and conditions of the park.

The new terms and conditions, which will come into effect as of July 13, 2024, are attached to this email. These new terms and conditions replace all prior sets of rules and supersede (sic) them entirely.

1. Contrary to what was said in the 28 June 2024 letter the new rules were not a mere update to the terms and conditions of the park. As the letter said the new rules replaced entirely the prior set of rules. There is an issue of contention in the proceeding as to whether the new rules were properly made in that they were not a mere amendment to the existing rules under the amendment power in cl 14.1 of the 2019 rules, but on the other hand, a fundamental wholesale change or purported change in the relationship between the parties.
2. Clause 2 of the purported new rules was headed "non proprietary licence" and stated that "you agree that any use of the site is a non proprietary licence terminable at will by us with or without cause orally or in writing and is not, has never been or will never be a lease or any other form of proprietary licence interest." Clause 1 of the "new rules and conditions" document purported to allow the second defendant to eject from the caravan park long term residents who did not accept the new terms and conditions.
3. Further, clause 9 provided that "you agree that we are not bound by any of these terms and conditions and that we may change or annul them at any stage. You agree to hold us harmless in respect of any alleged breach by us of the same, and in respect of any negligence, and that these terms and conditions may be plead (sic) as a bar to any action in proceedings against us".
4. In effect, clause 9 purported to say that the new rules do not place any obligations at all on the caravan park and combined with clauses 1 and 2, created a document which starkly purports to deprive long term residents at the caravan park of any rights whatsoever when read literally. There is no evidence to suggest that the defendants intended it to be read any other way.
5. The new rules in effect gave no rights to long term residents of the caravan park and placed their existing rights to reside at the park at the whim of park management who, by clause 2, could terminate the long term occupants' licence to remain at the park for no reason whatsoever, either orally or in writing.
6. The plaintiff refused to consent to being bound by the purported new rules.
7. The plaintiff gave evidence that he received an email from Mr Manticas dated 15 July 2024, which stated as follows:

In light of the concerted campaign against our business by a small cohort of guests, including on channel 7 news and other media, we have decided that the time has come for us to respond to protect our business interest and those of other guests not a part of the ugly campaign against us. Please understand that this campaign began with a guest approach to council, then escalated into a vile campaign on social media. At the same time we have been forced to defend our business in court against further challenges to our business rights and standards.

Notwithstanding this, let me reassure you that the position of our company is to continue the operations of the business as they currently are now, we are continuing to work through recent challenges with the view in protecting the current existing arrangements of the park.

We have no plans to terminate the license (sic) of anyone from our park unless their behaviour warrants it. It is important to dispel the misinformation that a few are claiming as it is simply not true, helpful or accurate and I am putting a stop to this fear mongering right now.

It is important to note that we are a private company operating on private property providing a service!, we are not a retirement village or social housing provider nor will we ever be. We are a tourism accommodation business and everyone staying in our park are guests allowed to stay at our discretion providing that they uphold behavioural standards and our park terms and conditions.

Operational decisions, such as license (sic) terminations, are made at an executive level with careful consideration and thorough discussions among staff members and directors.

As a business, it is our right to make these decisions to ensure the proper functioning and well-being of our business and our staff. We understand the uncertainty concerned that such decisions can cause, and we do not make them lightly especially given the current housing crisis.

Today, our company has made the decision to terminate the licenses (sic) of three current guests of our park and we feel it is necessary to address our position surrounding our decision and to reassure all guests that our intention is not to move anyone on or from our business unless they fail to act in a professional and courteous manner to our staff at all times including our directors. This include social media commentary emails, face to face and telephone interactions and any other action that bring (sic) our business into disrepute.

The individuals in question have been actively engaged in a campaign of personal denigration against our directors. On multiple occasions, they disclose private information of our directors to other individuals. Additionally, they have made what may be considered defamatory references about staff members and directors. These comments have been made through various social media channels and emails to various organisations all of which have been captured by our legal team.

Our company has received a number of complaints from other guests dating back as far as February in relation to the persons involved in their conduct. Such behaviour is unacceptable and goes against the values and standards we uphold as a company. We believe in maintaining a respectful and professional environment for all of our employees and guests. The actions of these individuals that compromises this environment has left us with no choice but to take decisive action.

For this cohort to act in such a way and then to expect and continue as a guest of ours is a ludicrous proposition and will not be tolerated or accepted. Our company has made the decision that they are no longer welcome in our business or on our property.

We wish to gratefully acknowledge those guests who have not joined this campaign against us and it is our intent that the park should continue to operate as normal."

1. The plaintiff gave evidence that the next day after receiving the 15 July 2024 email he received a notice from Mr Manticas stating that his "licence" had been terminated. He also gave evidence that he was contacted by two other people with information that their "licences" had also been terminated. The plaintiff was asked in examination-in-chief whether he knew of anyone who was advocating for their rights in the caravan park at the time. His answer was that he was advocating "quite strongly amongst state and local government to establish some state legislation that protected the rights of people who are living permanently in caravan parks in Tasmania as Tasmania was the last state in Australia that had not produced such legislation for their protection". He also gave evidence that the association was formed shortly after Mr Manticas sent out a notice saying that "no one could sell their properties, due to the council investigating compliance". The reference to selling properties was not strictly intended to be a reference to selling the land on which the structures were placed, but the structures themselves and the right to live there.
2. On 22 July 2024 Mr Manticas sent the following communication to "fellow tourism and caravan park operators". The letter stated as follows:

"I hope this letter finds you well. I am reaching out to you in light of recent challenges we have faced at Beauty Point Tourist Park. Over the past six months, we have had to address significant issues, including the removal of a couple whose violent, intimidating and aggressive behaviour posed a threat to our staff and other guests.

We have had to spend $85,000 to date to ensure that this violent couple remains off our property, as they have attempted to overturn our decision through the Courts. Imagine if this situation occurred at your park. Do you have the financial resources to deal with such challenges? This scenario highlights the critical importance of our ability to manage who stays in our parks without external interference.

As operators and landowners, it is imperative that we retain the unequivocal right to determine who stays in our parks. Unfortunately, there has been a growing movement among some guests, both within our park and others across Tasmania, advocating for rights that could undermine our authority to manage our properties as we see fit. Some guests are even pushing to establish rights equivalent to those of business owners and land owners, which threatens our ability to control and operator our own parks.

This situation underscores the need for us to reaffirm and protect our existing land and business rights. It is essential that we, as proprietors, maintain the ability to make decisions that ensure the safety and wellbeing of our staff and guests, as well the integrity of our business.

This morning I had an in depth conversation with Luke Chippendale, the General Manager of Government Relations at Caravan Industry Association of Australia who was fully supportive of our approach. Luke maintains that our industry has the right to make decisions within our properties and stands with us in our efforts to uphold these rights.

While some legislative reform could be beneficial in establishing clearer processes, it must be unequivocally understood that in no circumstances should any government force a business owner or land owner to accommodate anyone against their will. The right to decided who stays on our property is fundamental to maintaining the safety, security and success of our parks.

On Friday, 26 July, I will be meeting with Deputy Premier Michael Ferguson to discuss these pressing issues. Your support in this matter is crucial, I urge you to join me in advocating for the preservation of our rights as land owners and business operators.

I kindly ask that you reply to this letter affirming your support for our industry. Together, we can ensure that our voices are heard and our ability to manage our properties is not compromised by external pressure.

Thank you for your attention and support. I look forward to working together to uphold the rights and interest of our industry."

1. Also on 22 July 2024, Ms Susan Byrnes, from the caravan park management, wrote the following letter to the plaintiff, omitting formal parts:

As previously communicated we have issued a notice of termination for your site, which will become effective on 13 September. Please be informed that the park will not be charging site fees or electricity fees up to that point.

Should you need any assistance in finding contractors or suppliers to help remove your caravan and hard annexe from our property, we recommend Kellar Transport. They have extensive experience in this area, having recently removed a caravan from our property just a few weeks ago. [Kellar Transport's mobile was then provided]

During your notice period, we strongly encourage you to reach out to any external support services that may be required. The following organisations are available to assist you:

If you have any questions or need further assistance please do not hesitate to contact us."

1. There is no evidence of any connection between any misbehaving residents at the park and the plaintiff. The effect of this communication was that the plaintiff was being threatened with removal from the park and rendered homeless, notwithstanding the caravan park management's previous commitment to him that he was entitled to remain in the park on a long term basis.
2. Also on 15 July 2024, the plaintiff received a notice from the caravan park which purported to terminate his licence to stay at the caravan park. The notice stated:

"After careful consideration, it has been determined that your license (sic) to stay at Beauty Point Tourist Park will be revoked as at 5pm on 13 September 2024.

Please be advised of the following important details:

By that time and date, you must have vacated the site.

By that time and date the site must be restored to a site resembling a vacant lot with all possessions including the caravan and annexe removed.

Any belongings belonging to you or within your custody, power or control left on the site after 13 September 2024 will be secured and dealt with in accordance with the terms and conditions of the park.

Until you vacate the site you must obey by the terms and conditions of the park. Failure to do so may result in a requirement to leave before 13 September 2024.

On 14 (sic) of September 2024, a final read of the electricity meter at the site before a disconnection of power and water at the site.

A final inspection of the site will be conducted to ensure that it is left in good condition. Failure by you to ensure that is so may result in an invoice directed for you for costs incurred by us in restoring the site to that condition."

1. Prior to receiving the eviction notice from the park dated 13 July 2024, in his capacity as President of the Residents Association, the plaintiff and a Mr Steve Shaw, a committee member of the association, met with then Deputy Premier Ferguson, and Ministers Palmer and Ogilvie and raised several concerns about the lack of legislation regulating permanent tenancy in caravan parks in Tasmania. On 16 July 2024, the day after his eviction notice, the plaintiff had a telephone conversation with the Deputy Premier and during that conversation he raised concerns about the purported eviction and the lack of laws relating to the rights of long term residents in caravan parks in Tasmania.
2. On 26 July 2024, the plaintiff received an email from the Deputy Premier which referred to a meeting that the Deputy Premier had with Mr Manticas that day and said, amongst other things that "one positive outcome of the meeting is that the park owners have agreed to allow your existing assets to be left in place until such time as a new regulatory model is considered or enacted." A copy of that email is in evidence as exhibit JL 11 to the affidavit of the plaintiff.
3. On 27 July 2024, the plaintiff received an email from the caravan park which is in evidence as JL 12 to his affidavit. It stated that "as a result of the consultation with the Deputy Premier we have put forward to you and to two others our only offer. We will not be negotiating any further or commenting beyond this email there are no alternatives to what is on the table." On 28 July 2024 that email attached an "agreement allowing you to keep your caravan/annexe on site after your departure while legislation is being reviewed". It also invited him to come into the office and sign the document to accept the offer. The plaintiff did not do so. About 2pm on 29 July 2024, the plaintiff received a telephone call from Ms Byrnes who told him that the offer had a deadline of close of business of Wednesday, 31 July 2024. Late in the afternoon of 30 July 2024 the plaintiff sent an email to the caravan park asking for a reasonable time to consider the offer. On the next morning, 31 July 2024, the plaintiff received an email from Ms Byrnes which said that "nothing has changed you have until 5pm today or the offer is off the table." That conduct was contrary to the undertaking given to Mr Ferguson.
4. Later that day at about 1.13pm the plaintiff's solicitor sent an email to the caravan park. The email referred to the purported termination notice of 15 July 2024, stated to take effect from 5pm, 13 September 2024. The letter challenged the caravan park's attempt to terminate the plaintiff's right to stay at the site and said that it was wrongful for several reasons and entitled him to redress. Notice was given of the intention of the plaintiff to commence proceedings to seek injunctive relief until the matter can be determined.
5. On 28 November 2024, the application for interlocutory relief came before the Court as currently constituted. On 10 December 2024 the Court published its reasons for making orders granting the application. It ordered as follows:

"Upon the plaintiff giving the usual undertaking as to damages, pending the hearing of determination of the proceedings, the defendants, including by their officers, servants or agents are restrained from

(a) Evicting the plaintiff from site 43 at the caravan park at 35 West Arm Road Beauty Point (the Park);

(b) Removing, destroying or otherwise dealing with any of the plaintiff's property situated on site 43 of the park; and

(c) Otherwise departing from the terms and conditions of the document entitled "Rules for long term residents of Beauty Point Tourist Park (updated 27 November 2019)".

1. In the Court's judgment on the interlocutory application the Court held that there was a serious issue to be tried as to whether the plaintiff's occupation of site 43 at the caravan park was legal. At [51] of the interlocutory judgment the Court said:

"The defendants submit that the plaintiff's occupation at site 43 is illegal based on the following considerations. Under s 9 of the Land Use Planning and Approvals Act 1993 (Tas), (the 'LUPA Act') the Tasmanian Planning Scheme is brought into existence. It comprises State planning provisions and certain local provisions. Under s 83 of the LUPA Act, a court must take judicial notice of the Tasmanian Planning Scheme without formal proof of its contents. The current State planning provisions, relevant to the Park, became effective on 2 March 2017. Under the general scheme of the LUPA Act, the current State planning provisions may prohibit the use of any land. A person must not use or develop land in any way contrary to the State planning provisions. The planning authority, as in a local government council, is obliged to enforce observance of the State planning provisions. The current Tasmanian Planning Scheme, as it applies to the Park, does not permit more than one residence to be in the Park. Prior to the current scheme, the scheme that applied to the Park was the West Tamar Planning Scheme, which came into operation in 2013. It, according to counsel for the defendants, prohibited residential occupation under that scheme in the area covered by the Park."

"An exception to the application of a planning scheme is provided in circumstances where s 12 of the LUPA Act applies. Under that provision, nothing in a provision of the Tasmanian Planning Scheme in relation to a local government area, is to be taken to prevent the continued use or development of any land for the purposes for which it was being lawfully used prior to the relevant provision of the Tasmanian State Planning Scheme coming into existence. Section 12(1)(b) specifically refers to existing uses and developments such as a building in the relevant area that was erected prior to the coming into effect of a planning scheme being able to be continued to be used in the way it was previously used before the planning scheme came into effect. Counsel for the defendants referred to the fact that the 2013 West Tamar Planning Scheme, which operated prior to March 2017, prohibited occupation of the Park in the way that the plaintiff has occupied it. However, the only evidence about the existence of a residence on site 43 in the past, is from the plaintiff who has given evidence that he believes that the structure that he commenced to occupy in July 2022 had been there for some 20 years. There is no evidence to the contrary. The second defendant, as manager of the Park, would be in a better position to have records in relation as to when structures were erected at the Park in the past, than someone who has only commenced to live in one of those structures in the last two years. If the plaintiff was living in a structure which was erected prior to 2013, there is no reason to suggest that his occupation became illegal after 2013 having regard to the provisions of s 12(1)(b) of the LUPA Act."

"The question for the Court, for the current discussion, is whether there is an arguable case that the structure which the plaintiff commenced to occupy on 31 July 2022 was a structure which was in place before 2 March 2017, or prior to the commencement of the operation of the West Tamar Planning Scheme in 2013. As previously indicated, the only evidence currently before the Court in this matter regarding the length of time during which the structure occupied by the plaintiff has been standing, is his evidence that it was built in its current form about 20 years ago. That would place the building of the structure in its current form as at in, or about November 2004, well before 2 March 2017, and well before 2013. Whatever complaint may be made about the lack of specificity of that evidence, it is the only evidence before the Court as to the prior use of the structure which the plaintiff occupies at site 43."

"The relevant current planning scheme prohibits more than one residence to be in the Park. Although there is evidence concerning other long-term residents at the Park, there is no evidence before the Court as to how long those persons have been in long-term residence, or whether their structures were built after the structure currently occupied by the plaintiff was erected. Moreover, the defendants are in the best position to source any records as to the timing of the building of any structures at the Park, albeit, including a time when the Park was in the control and ownership of other people. There is little utility in giving no weight to the evidence of the plaintiff about the time in which he thought the structure he was occupying has existed ... There is no other evidence on the matter of any utility and there is a complete absence of evidence about the timing of the building of the structure at site 43 from the defendants who would be better placed to give the Court information regarding that matter."

1. When the matter came before the Court for final hearing the defendants called Ms Kirsten Desmond, the Chief Executive Officer of the West Tamar Council. A letter dated 15 January 2025 to the directors of the second defendant from Ms Desmond was tendered into evidence. The subject matter of the letter was "Notice of Intention to Issue and (sic) Enforcement Notice 36 West Arm Road, Beauty Point (CT 166972/1). The letter said:

"Following an investigation into the use of 36 West Arm Road, Beauty Point (the site), I enclose a Notice of Intention to Issue an Enforcement Notice pursuant to s 65B of the ... [LUPA Act] in relation to current and ongoing residential use (multiple dwellings).

1. Formal land use planning regulation of the site commenced in 1986 with the Beaconsfield Interim Order No 11986, under which a limited form of residential use was permissible (ie a 'Cluster Home' arrangement), however according to council's records no approvals were ever applied for issued to conduct such a use on the site;
2. In 1988 the Beaconsfield Interim Order No 11986 was replaced by the Municipality of Beaconsfield Planning Scheme 1986, under which residential use of the site was prohibited with the exception of 'home occupation';
3. In 2008, the Municipality of Beaconsfield Planning Scheme 1986 was replaced by the West Tamar Planning Scheme 2006, under which residential use of the site in the form of a single dwelling was discretionary (but otherwise Prohibited), however according to the council's records no approvals were ever applied for or issued to conduct such a use on the Site;
4. In 2013 the West Tamar Planning Scheme 2006 was replaced by the West Tamar Interim Planning Scheme 2011, under which residential use of the site in the form of a single dwelling was discretionary (but otherwise Prohibited) however according to the council's records no approvals were ever applied for or issued to conduct such a use on the Site;
5. Since December 2021:

(a) The Tasmanian Planning Scheme West Tamar (TPS) has applied to the site; and

(b) The site is included in the environmental management zone of the TPS in which residential use is permissible only in a limited form (ie accommodation for reserve management staff) but otherwise prohibited therefore

1. Council has concluded that the site does not have the benefit of pre-existing non conforming use rights to conduct residential use (protected by s 12 of the LUPAA or otherwise) and a permit cannot be obtained under the TPS for current Residential use of the Site.

Council understands that some of the Residential uses being conducted at the site are occurring with instructions that could be described as (or in fact are) caravans, modified or otherwise. As confirmed by Wood J in the decision of Jackson v Purton [2011] TASSC 28, a residential use regulated by the LUPAA can occur within a caravan, or other non-permanent structure.

As detailed in the enclosed notice written representations may be made in response of the notice within 14 days.

If you would like to discuss the matter further please contact me ..."[a phone number and an email address were provided]."

1. The defendants were notified of the notice.
2. Enclosed with the letter was a document entitled "Notice of Intention to Issue an Enforcement Notice". In the document, the following is stated under the heading "description of offence", in a square box at the bottom of the first page:

"Provision under the [LUPA Act] to which offence relates

This notice concerns the commission of offence under s 63(3) of the [LUPA Act] resulting in a contravention of s 63(2)(a) of the Act.

Section 63(2)(a) of the Act provides that a person must not use land in a way that is contrary to, among other things a planning scheme.

Section 63(3) of the Act provides that a person contravening s 63(2)(a) is guilty of an offence punishable, on summary conviction, in accordance with s 63(4).

The contravention of s 63(2)(a) of the Act to which this notice relates is the use of parts of the property at 36 West Arm Road, Beauty Point ("the land") for residential use (multiple dwellings) contrary to the Tasmanian Planning Scheme - West Tamar Council (the TPS)."

1. On the second page of the enforcement notice the following is set out:

"It is intended that the enforcement notice will require to take the following action until such time as all residential use of the land ceases:

1. Prohibit the establishment or undertaking of any new or expanded Residential uses on the Land on or from 1 December 2024 (ie Residential use occurring as of 1 December 2024 will be permitted to continue with the current occupant (or occupants) only);
2. Prohibit and Residential use on the Land occurring as of 1 December 2024 from being assigned, transfer or similar (in whole or in part) to a new occupant (or occupants) the intent being that once the current occupant (or occupants) permanently ceases their occupation the associated residential use will permanently cease; and
3. Notify Council when any residential use occurring as 1 December 2024 ceases."
4. It can be seen from the terms of the 15 January 2025 letter and accompanying notice that it is not the intention of West Tamar Council to have evicted from any site at the caravan park, persons who are currently there as long term residents, such as the plaintiff. Notwithstanding that indication from council, it is apparent from the manner of the conduct of the litigation by the defendants, nonetheless, they intend to assert a right to evict the plaintiff from site 43 and intend to evict him.
5. In a Facebook post published on 17 December 2024 Mr Manticas, in his capacity as councillor for West Tamar, wrote the following:

"Beauty Point Tourist Park affirms compliance with the planning permit and land use rights:

Beauty Point Tourist Park categorically refutes recent claims and assertion by West Tamar Council regarding the alleged violation of our planning scheme and the purported issue and permits of structures within our premises. We assert our unwavering commitment to adhering to all regulations and guidelines while operating in the scope of our established land use rights.

Contrary to the misleading assertions made by West Tamar Council, Beauty Point Tourist Park operates within the boundaries of our valid planning permit and existing land use rights. Our land use rights, which preceded the formation of the council, afford us the legal standing to accommodate guests without any restrictions on the duration of their stay (emphasis supplied).

These rights have been meticulously upheld throughout ... and we maintain steadfast and our dedication to operating compliance with all relevant rules and regulations.

Further more we have recently challenged the West Tamar Council in TASCAT (Tribunal) Tasmania regarding conditions of length of stay imposed on a recent permit. We successfully had these conditions removed affirming our existing land use provisions. Notably West Tamar Council withdrew these conditions after I can only assume receiving legal advice raising questions about the basis of their current assertions.

The baseless claims made by West Tamar Council not only lack merit but also amount to reputational damage to our existing lawful business. As a result we are now exploring legal options to pursue in respect of this matter.

We vehemently reject the council's baseless claim that the occupants on our sites will have the ability to apply for permanent structures. It is preposterous for West Tamar Council to insinuate such a notice considering they lack the authority of the land owner.

Beauty Point Tourist Park maintains full jurisdiction over the premises and the structures therein. We emphasis that every occupant resides in a removable van and annexe, a practice that has been consistently upheld to align with our land use rights. If council has a different view on removable vans and annexe and takes the route of compliance we will have no choice but to comply by having any non-compliant vans and annexe removed off our property.

Occupation of our sites is a privilege not a right subject to the adherence of our in-house park rules. As you can appreciate from time to time there is a need to remove people off our property and we make no apologies for ensuring a safe workplace and business for both our staff and other business alike.

Beauty Point Tourist Park stands readily in protecting our positions and upholding the integrity of our operations. We remain committed to working collaboratively with West Tamar Council to address any concerns while ensuring the continuation of our compliant responsible management practices.

1. From this Facebook page it can be seen that, insofar as it is relevant to this proceeding, the following points can be made. First, the second defendant is asserting, through Mr Manticas, a right to have guests stay in the park without any restriction at all for the duration of their stay, presumably this would include long term residents. Second, it wrongly asserts that every occupant resides in a removable van and annexe. The evidence before the Court is that the structure at site 43 would have to be demolished in its current form to be removed from the caravan park. Third, the Facebook page comment reasserts an apparent right, no doubt sourced in the purported new park rules, in park management to remove from the caravan park any person at any time at the whim of park management.
2. Under cross-examination by counsel for the plaintiff, Ms Desmond confirmed that it is not the intention of the West Tamar Council to require residents who were in place in accommodation at the caravan park as at 1 December 2024 to immediately leave. Ms Desmond agreed with counsel that ordering them to do so would displace them from their homes. Ms Desmond also agreed that the displacement of 60 or more people from their homes would not be an ideal planning outcome. Also under cross-examination, Ms Desmond said that it was "the intention of the enforcement notice ... to allow for, over time, bringing the operation back into visitor accommodation, rather than immediately displacing people." I then asked her the following question:

"So as people left premises like ... the one Mr Lowe has, over time, then eventually there will be none?"

1. Ms Desmond replied in the affirmative. I then said "in other words, they could not be on sold with new people going into them?" Ms Desmond responded "they would have to be on sold as visitor accommodation, not on sold as permanent residences."
2. In an email sent at 7.30pm on Wednesday, 15 January 2025 in response to the council's enforcement notice and Ms Desmond's accompanying letter, omitting formal parts, Mr Manticas had the following to say:

"I will take some time to go over the finer points of your correspondence and may or may not respond in due course to what appear to be baseless assertions in the 'notice'.

This correspondence obviously comes as a shock to our company as our company has only ever authorised short term accommodation 14 days per reservation, we have never authorised or condoned any use of the sites in any other way. Our Commercial Terms reflect this.

Recently our company became aware of three individuals in our park who tried to claim a residential use of our property which went against the terms of the reservation that those guests held. Immediately becoming aware of this claim we issued notice to the West Tamar Council (still outstanding) to take immediate enforcement action as the use being claimed is prohibited and against our terms and we will remove and/or in the process of removing that/those guest/s from our premises.

The assertions made in the council's Notice of Intention to Issue an Enforcement Notice refuted whole heartily are offensive and will be vigorously defended if required.

Our company has only ever asserted Short Term Visitor accommodation and our terms reflect this with guests are also reflected with prior applications with council in respect of permits, not to mention the significant correspondence between council and our company that reinforces our position.

Our company has on multiple occasions asserted our rights of no length of stay restriction under our visitor accommodation land use rights as reflected in our recent TASCAT challenge against the council on this very issue and if challenged we will revisit this but with more rigger (sic).

Notwithstanding any of the above it appears that the council has formed a preliminary view that differs with ours and the way we operate and we have operated for since the 1950's (sic) and as a result I have a couple of questions that I would appreciate answers to.

If our company were to remove all our current guests from the property can council confirm that this would satisfy council in respect of the Notice of Intention to Issue an Enforcement Notice? and no further action would be taken?

In the eyes of the council are there are any restrictions on conditions that should apply in the way that we should operate that differ from how we have been operating?

From the outset I have committed to ensuring good governance and best practice applies and continue to do so.

We look forward to receiving council's response shortly in relation to the notice we issued council in relation to us becoming aware of a claim of the illegal use of our property by the three individuals."

1. It is unclear who Mr Manticas is referring to when he mentions three individuals but, consistently with the plaintiff and two others being the subject of eviction notices, it is possible that he is referring to the plaintiff although the Court did not have the benefit of any evidence from him in the witness box. Some points have and can be made about this email correspondence. First, it appears to be disingenuous to assert that the company only ever authorised short term accommodation 14 days per reservation given that there were long term residents on the site when this email was produced. From the cross-examination of Ms Desmond it appears that there were about 60 or 61 such people, including the plaintiff, at the time that this email was sent. Second, and somewhat confusingly in respect of the first point, the email appears to assert a right of "no length of stay restriction under our visitor accommodation land use rights".
2. On 6 February 2025 Mr Manticas sent a further email to Ms Desmond during which he asked the following question:

"Is residential use of our business at 36 West Arm Road, Beauty Point otherwise known as Beauty Point Tourist Park, lawful or unlawful?

If the council proceeds down the enforcement route can the council confirm that if we remove offending guests of ours from our business that are committing alleged planning breaches that that would satisfy and removal any enforcement action? ..."

1. Ms Desmond also gave evidence that Mr Manticas was elected as a councillor for the West Tamar Council in November 2022. Also under cross-examination, Ms Desmond conceded that in the investigation conducted by council as to prior use of the caravan park for residential purposes, that council does not retain any records of who came into the park and when, while it was under council's management in previous years prior to it being sold to private interests that preceded the purchase by the current owners in 2016. Ms Desmond conceded that she did not know when the structure at site 43 came into the park or when it was fixed to the ground.
2. Towards the conclusion of the defendants' evidence before the Court, senior counsel for the defendants said that the defendants intended to call Mr Manticas, but ultimately he was not called.
3. There is no evidence before the Court of any action taken in relation to the Notice of Intention which accompanied the 15 January 2025 correspondence from Ms Desmond or pursuant to any actual enforcement notice issued.
4. Evidence was given by planning experts before the Court called by the parties in respect to the prior occupation of site 43 at the caravan park before July 2022. The facts and circumstances relating to the issue of prior occupation will be discussed below in the context of the Court dealing with the legal issues which will arise from a discussion of those facts.

1. Whether the agreement between the plaintiff and the defendants regarding the plaintiff's occupation of site 43 entered into in July 2022 allowed occupation by the plaintiff which was not in compliance with the existing planning scheme and the LUPA Act, is a matter in dispute between the parties.
2. Section 12(1)(b) of the LUPA Act, insofar as is material, provides that:

"... Nothing in a provision of a planning scheme, or the Tasmanian Planning Scheme, in relation to a municipal area is to be taken ... the use of any building in the municipal area that was erected before that provision came into effect in relation to the municipal area for any purpose for which the building was lawfully being used immediately before the provision came into effect in relation to the municipal area ..."

1. The defendants contend that the land at site 43, immediately before the commencement of the first planning scheme applicable to it, was not used as a residence as it is currently used by the plaintiff. Therefore, the defendants contend that the occupation of site 43 by the plaintiff as a residence is not authorised by law. The defendants rely on that proposition as a basis upon which to say they are entitled to evict the plaintiff from the site.
2. The plaintiff says that the defendants bear the onus of proving that his occupation of site 43 as a residence is illegal. He says that because of the dire consequences for him of the success or any illegality argument, the appropriate standard of proof is the Briginshaw standard.
3. The term "Briginshaw standard" is a reference to the High Court case of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. It stands for the proposition in that in a civil case where the proof of the state of satisfaction as to the existence of a fact has serious consequences for a person, the finding of fact of that sort should not be lightly made. It is a standard more onerous than the ordinary standard of proof in a civil proceeding, as on the balance of probabilities, but not as onerous as the criminal standard of beyond reasonable doubt.
4. The defendants contend that the land at site 43, at the time commenced to be occupied by the plaintiff, was governed by a planning scheme.
5. The plaintiff gave evidence that the structure at site 43 which commenced to be occupied by him in late July 2022, had been at that site for about 20 years, that is since the early 2000's. He gave no evidence about whether the Brains used the structure at the site as their residence.
6. The plaintiff relied on the expert evidence of Mr Shamus Mulcahy, who is a registered architect. His practice as an architect involves the analysis of aerial photographic information. He was engaged by the plaintiff's solicitors to visually review a series of aerial photographs to provide an opinion as to whether a structure (in the proceeding known as site 43) was evident on that location. He gave evidence that as at 1980 the aerial photograph shows that a structure was present on the site. Further aerial photographs from 1983, 1984 and 1986 showed the same.
7. Mr Mulcahy gave evidence that an aerial photograph from 1989 showed a structure on the site, but obscured by vegetation. He said that a shadow suggested a small solid elevated structure being present. Aerial photographs from 1990, 1992, 1994 and 1995 revealed that a structure appeared to be located on site 43. Mr Mulcahy also referred to a 2003 aerial photograph showing that a structure was present on the site. Mr Mulcahy said that "in reviewing the image named 'Current Structure' of the site today I am confident that the structure illustrated in 1986 could be the caravan that is integrated into the current structure and the structure in the aerial image of 2006". He went on to say that the images named "Current Structure" at the site today depict a caravan integrated into a series of built additions with each built addition nominally similar in scale to the caravan itself. He said that that image provided context and reinforced his assumption regarding the patterns of development depicted as the aerial images of the site since 1986 suggest that the site was inhabited regularly enough for human impact to occur, and that the structure on the site was being used for the purpose of human habitation.
8. The evidence of Mr Mulcahy is consistent with the belief expressed by the plaintiff that a structure in the form of the current structure, was in all likelihood in existence at site 43 as at 2006, although that cannot be stated with any certainty.
9. The defendants relied on the expert evidence of Mr Evan Boardman. Mr Boardman is a town planner. Mr Boardman gave evidence that the Brains, in his opinion, would have been unlikely to have used site 43 as a residence given that they were enrolled to vote at an address in Penguin. The defendants also relied on the evidence of a Mr Kelly, an assistant bailiff at the Magistrates Court of Tasmania, who conducted a search of the electoral role to confirm that Douglas Wilson Brain was enrolled to vote at an address in Main Road Penguin.
10. The plaintiff submits that evidence of electoral enrolment at an address other than site 43 is not inconsistent with site 43 being used as a residence. It is possible that the Penguin property was leased out and the Brains lived at site 43 relying on the proceeds of any rent to help meet expenses at the caravan park.
11. The defendants also rely on rates notices subpoenaed from the Central Coast Council in respect to the Penguin property to confirm that the Brains were liable to pay council rates at that property. However, as the plaintiff points out, council rates are payable regardless of whether the property is owner occupied, tenanted or vacant.
12. From the evidence of Mr Mulcahy it appears more likely than not that a structure in the nature of the structure which currently appears at site 43 has been present since 2006. There is no evidence before the Court as to who occupied the site in 2006, whether it be the Brains or anyone else. There is no evidence as to whether the people occupying the site since 2006 used it as a residence. The defendants have been in control of the caravan park since 2016. They are the ones in the best position to provide evidence to the Court as to the circumstances of the use of site 43 at least since then and, in all likelihood, would have records going back prior to then as to such matters. None of that material has been produced to the Court. While the Court cannot say for certain that site 43 was being used as a residence prior to the land being governed by a planning scheme, and continued to be used as a residence, the parties in the best position to assist the Court in relation to that matter have not provided any assistance other than material going to the issue as to whether it is possible that the Brians were using it in some way as a holiday home, solely by reference to inconclusive evidence regarding voter registration and council rates payments.
13. I accept the submission of the plaintiff that on a matter of such significance as to whether he would be entitled to remain in his small home for which he paid $82,000, believing he had a long term right to remain, the requisite standard of proof required by those asserting illegality in his occupation of the site is the Briginshaw standard. So much is also consistent with s 140(2)(c) of the Evidence Act 2001. That provision of the Evidence Act refers to the standard of proof required in a civil proceeding as proof on the balance of probabilities. Section 140(2)(c) provides that:

"Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account ... the gravity of the matters alleged."

1. The defendants submit that the onus is on the plaintiff to prove that he had a right to use site 43 as a residence, in accordance with s 12(1)(b) of the LUPA Act. The plaintiff disputes that proposition and contends that it is not incumbent on him to prove that he was illegally a resident at site 43.
2. In Macarone v McKone (1986) 1 QdR 284, the Court of Appeal of the Supreme Court of Queensland dealt with legislation in that State on the topic of continuing use of a building for town planning purposes at pp 286, Macrossan J, with whom Kelly SPJ and Williams J agreed said that:

"Under certain legislation dealing with the same topic of the effect of continuing use of a building for town planning purposes the onus has been held to be cast upon the party who might seek to rely upon the exception from illegality see Borne v Marrickville Municipal Council ... [his Honour there sets out various local government cases in various jurisdictions] ...However these were 20 decisions upon quite differently constructed legislation. In the present case there is a necessity to allow for the parallel and supervening provisions of s 33(1)(A) of the Local Government Act which have been quoted above. When these provisions as well as the opening words of cl 73(i)(e) are consulted the conclusion emerges that there may be an area of legal activity constituted by continuing user which the prosecution is obliged to exclude if it is to establish an offence. The onus of excluding this legal possibility is placed on the prosecution.(Emphasis supplied)."

1. The relevant provision referred to by the Queensland Court of Appeal was s 33(1)(A) of the Local Government Act (Queensland). It provided, in so far as material:

"(a) accept is hereinafter provided a lawful use made of land of a building or other structure.

(1) Immediately before the date when the town planning scheme or an amendment of such a scheme becomes applicable to such land, building or other structure shell; ... continue to be a lawful use of land, building or other structure for so long as the land, building or other structure continues or continued to be used notwithstanding any provision of the scheme or amended scheme to the contrary."

1. As counsel for the plaintiff submitted, s 33(1)(A) bears a strong resemblance to s 12 of the LUPA Act. Those provisions are not exceptions to offence provisions but rather create a stand alone right.
2. In the alternative, the defendants rely on s 12(7) of the LUPA Act which makes s 12(2), amongst other subsections, inapplicable to use of land that is substantially intensified. Mr Boardman gave evidence regarding intensification of use of the site by reference to the use he asserts the Brains would have put the site to. This opinion was based on the assumption that the Brains' primary residence was in Penguin. It had no basis, as conceded by Mr Boardman, to rule out the possibility that the Brains may have lived between two homes or alternatively lived at the caravan park and rented out their Penguin property.
3. The Court has before it as an annexure to Mr Boardman's expert opinion, as well as in the form of an exhibit tendered during the evidence of Ms Desmond, that the West Tamar Council conducted an investigation into land use rights at site 43. Those investigations established, according to Ms Desmond, six points. They are as follows:

"1 Formal land use planning regulation of the site commenced in 1986 with the Beaconsfield Interim Order No 11986, under which a limited form of residential use was permissible (ie a 'Capital Cluster Home' arrangement) however, according to council's records no approvals were ever applied for or issued to conduct such use on the site;

1. In 1988 the Beaconsfield Interim Order No 11986 was replaced by Municipality of Beaconsfield Planning Scheme 1986, under which residential use of the site was prohibited with the exception of "home occupation";
2. In 2008 the Municipality of Beaconsfield Planning Scheme 1986 was replaced by the West Tamar Planning Scheme 2006 under which residential use of the site in the form of a single dwelling was discretionary (but otherwise prohibited) however, according to council's records no approvals were ever applied for or issued to conduct such use on the site;
3. In 2013 the West Tamar Planning Scheme 2006 was replaced by the West Tamar Interim Planning Scheme 2011, under which residential use of the site in the form of a single dwelling was discretionary (otherwise Prohibited), however, according to the council's records no approvals were ever applied for or issued to conduct such a use on the site;
4. Since December 2021

(a) The Tasmanian Planning Scheme - West Tamar (TPS) has applied to the site.

(b) The site is included in environment management zone of the TPS, in which residential use is permissible in only in a limited form (ie accommodation reserve management staff) but otherwise prohibited;

1. Therefore council has concluded the site does not have the benefit of pre-existing non-conforming use rights to conduct residential use (protected by s 12 of the LUPA and a permit cannot be obtained of the TPS for current residential use of the site."
2. If, as Mr Mulcahy's evidence suggests, a structure akin to the current structure on site 43 was there from 2006, such structure would have been subject to the Municipality of Beaconsfield Planning Scheme 1986 under which residential use of the site was prohibited with the exception of home occupation. There is no evidence that whoever occupied the site in 2006 was not there by virtue of using the structure as a home which that person or those persons occupied, whether or not application was made to council for the use of it as a home.
3. With the greatest respect to the conclusion of the council investigators at par 6 of the points in Ms Desmond's letter, under such scenario there would be pre-existing continued rights to occupy the structure at site 43 as a residence because the need to apply for discretionary approval for the site to be used as a residence was not applicable until 2008, while the planning scheme applicable in 1988 allowed for "home occupation".
4. Having regard to the entirety of the foregoing, on all of the evidence before the Court, I am not satisfied that the defendants have discharged the heavy onus on them of proving that the plaintiff's occupation of site 43 is illegal as a matter of fact.
5. It should be noted that it is not the policy of the West Tamar Council to seek to have the plaintiff removed from site 43. Ms Desmond gave evidence that it is the policy of the council to permit those people who are in the position of the plaintiff, and indeed the plaintiff himself, to remain on their sites at the caravan park which are used as their residence, for as long as they wish, provided that they do not on sell their structures to anyone else. In other words the situation is being grandfathered. The defendants are therefore not at risk of any prosecution by the council as a consequence of the plaintiff's occupation of site 43, contrary to their earlier assertions.

1. By the 2019 rules, which were included in an agreement made between the parties on 29 July 2022, the plaintiff obtained a right to occupy site 43 on a long term basis in exchange for a fortnightly payment. So much is clear from the 2019 rules themselves, as well as an email from the defendants to the plaintiff, dated 18 July 2022, the plaintiff's application form to stay in the park and an email from the first defendant, or alternately the second defendant, to the plaintiff on 29 July 2022, all confirming his right to stay at the park as a long term resident. He qualified as a long term resident under the 2019 rules because he paid a fee for continuous use of the allotted site, seven nights per week, as set out in clause 2 of the rules. He was required to pay a fee on a fortnightly basis but this did not give the defendants a right to eject him from the park after the ending of any fortnight. The fortnightly basis related to the payment rather than the right to stay for any period of time at the park. The right to stay long term at the park simply renewed fortnightly on the payment of a fortnightly fee. The right to stay at the park could only be affected by valid termination pursuant to clause 15 of the 2019 rules, which allowed the defendants to terminate the right granted to a long term resident to remain in the park, at a particular site, in certain circumstances. In short, they are as follows:
   • Where a fee has not been paid;
   • Where a long term resident is in breach of the rules;
   • If a duly permitted authority gives notice that the long term resident's caravan or improvements must be removed from the site; or
   • By agreement with the long term resident.
2. The 2019 rules impose particular obligations on long term residents. Failure to comply with those obligations may amount to a breach of the rules. These include obligations regarding vehicles and parking, under clause 9, obligations regarding fires and fire prevention, under clause 7, allowing access to the park by certain persons in defiance of restrictions which may be placed by the defendants, pursuant to clause 11, and failure to allow the defendants access to the site if permitted by clause 12.
3. As can be seen from the circumstances of the plaintiff's occupation of the site from the beginning in 2022, the agreement was said to expire on 31 July 2073. The defendants contend that was just a notional date. I reject that contention. The reference to a date so far in advance is indicative of the fact, as supported by all the surrounding evidence and circumstances, that the plaintiff was purchasing a right to reside at site 43 on a long term basis, subject to the 2019 rules. Clause 10 gave the long term resident under the 2019 rules, the right to sell "their caravan (and annexe or other improvements)" subject to the defendants approving the proposed new resident before any such sale is completed. Although framed as a licence, it had all the indicia of an entitlement to remain on site, subject to conditions. The plaintiff held the benefit of a lease not a licence in reality. The defendants were alive to the problem by insisting in the 2024 rules that the caravan park long term residents admit they never had a lease. So much was a fiction and counterintuitive.

1. When Mr Lowe came to occupy site 43 he agreed to be bound by the 2019 rules. He has never agreed to be bound by the rules which purported to replace them, that is, the 2024 rules. The 2024 rules were purportedly made pursuant to cl 14.1 of the 2019 rules. The 2024 rules are not rules validly made by the amendment power in the 2019 rules. They do not seek to amend any particular part or parts of the 2019 rules but purport to wholly re-write them and to do so in a way that gives or purports to give the right of the caravan park management to eject the long term resident from the park for any reason or no reason at all.
2. This change in the nature of the rules is analogous to a contract of employment of a skilled medical professional being amended pursuant to an amendment clause in a written contract of employment with the consequence that a new written agreement comes into being which provides that the skilled medical professional is no longer employed as such but is confined to sweeping the floors of the hospital and weeding its garden.
3. In the case of the above type contract of employment, and in the case of the 2024 rules, each new provision is not a true amendment but, in reality, a whole new set of provisions governing the relationship between the parties and changing that relationship in an extremely fundamental way so as to deprive the worker in one case, and the long term resident in the other, of rights under existing provisions binding them.
4. The purported amendment to the 2019 rules by the new 2024 rules was not a proper exercise of the amendment power in clause 14.1 of the 2019 rules by caravan park management. It was an exercise of no validity. At all material times the 2019 rules continued to operate in respect of Mr Lowe. It follows that the plaintiff's occupation of the park was unaffected by the purported 2024 rules and his agreement with the defendants continued to be governed at all times by the 2019 rules.
5. For reasons which follow, the Court is of the view that the 2024 rules, if operative, would cause a significant imbalance in the parties' rights and obligations under their compact to the benefit of the defendants and to the detriment of the plaintiff. The 2024 rules contained terms which are not reasonably necessary to protect the legitimate interests of the defendants, and would be likely to cause the plaintiff to lose the right to occupy his residence, given that under those rules, the defendants could evict the plaintiff from a site for any reason, or no reason, at their whim.
6. Although referred to in the 2019 rules as a "licence", the right of the plaintiff to remain at the caravan park was, in reality, a lease. The description of it as a licence in the rules cannot change its true nature.
7. The 2019 rules cannot be sensibly read as conferring a bare licence, terminal at the will of the defendants. A long term resident is entitled, under those rules, to continuous use of an allocated site, seven nights per week. No one else is given the right to continuous use of the site, not even site management. The right to remain at the site under clause 2.2 of the rules, is personal to the plaintiff. It cannot be shared with anyone else. The right to remain at the site includes the right to sell that right (and the caravan or annexe on it) to someone else, with the consent of the defendants.
8. The right of the defendants to access the plaintiff's site is confined by clause 12 of the 2019 rules to external areas for the purpose of maintaining plants etc., conducting an inspection on two days' notice, or in the case of an emergency.
9. If the defendants have the right to terminate the plaintiff's right to remain on the site at will, as in terminating a bare licence in traditional form, it would not be necessary to have a provision such as clause 12 in the rules. Indeed, clause 12.2 of the rules provides for access to a site of a long term resident by the defendants, where notice to the long term resident has been given, or if the site has been abandoned.
10. Further, if that "licence" was terminal at will, there would not be a need for a termination clause such as clause 15. It is disingenuous for the defendants to contend that the plaintiff has a bare licence to remain at the site, in the face of their commitment to the 2019 rules in entering into their agreement with the plaintiff. It was because of the difficulty faced by the defendants in terminating the plaintiff's right to remain at the caravan park, that the defendants resorted to a purported change to the 2019 rules by the wholesale variation contained in the 2024 rules, by a purported amendment. That amendment was not in truth an amendment, but a wholesale replacement and restructure of the 2019 rules, unilaterally and unfairly.
11. In BA v The King [2023] HCA 14, Keiffel CJ, Gageler and Jagot JJ stated at [69]:

"There is a basic divide at common law between a lease and a licence. An essential element of a lease, in contrast with a licence, is that it confers a right against others to exclusive possession of the land as distinct from a mere licence or permission to enter land and use it for some stipulated purpose or purposes."

1. The plaintiff used site 43 and the structure on it as his home. It was no one else's home. No one could enter the structure on the site without his permission, subject to clause 12 of the rules, or issues concerning an emergency or an abandonment.
2. The plaintiff, under the 2019 rules, has a right of exclusive possession of the structure on the site, which is an immovable one, and one which is intended to be used as a small home. In occupying site 43, and living in the structure of it as his home, the plaintiff does not have a mere licence to mere permission to enter the site at some time for some stipulated purpose. That situation would apply, for example, to someone who has the right to access an easement. The plaintiff was, and is, entitled to exclusive use of his small home contained in a structure built on land belonging to the defendant. In a real sense, he has an interest in the nature of a lease to exclusive use of the structure, subject to the rare exceptions in clause 12 of the rules.

1. The defendants are only able to validly terminate the plaintiff's right to remain at site 43 in the specific circumstances set out in clause 13 of the 2019 rules. That includes failure to pay a licence fee, or failure to rectify a breach of the rules. None of the circumstances identified in clause 13 arose, which empowered the defendants to attempt to remove the right of the plaintiff to occupy site 43.
2. No doubt realising that this was the case, the defendants purported to rely on the amendment power in clause 14 of the 2019 rules to establish a purported new set of rules. Mr Manticas, on behalf of the defendants, gave the plaintiff a notice on 15 July 2024, informing him that his right to stay in his home would be terminated as at 13 September 2024. That notice was invalid and of no effect as not being in conformity with the 2019 rules, which at all material times applied to the plaintiff. At all times, the plaintiff remained ready, willing and able to perform his obligations under the 2019 rules.

1. The defendants are estopped from preventing the plaintiff from exercising his right to occupy site 43, for as long as he wishes, subject to complying with the 2019 rules. The defendants represented to the plaintiff that he would have a permanent interest in site 43. They approved the purchase of his structure from the Brains. They approved various improvements he made to the structure. By this conduct, the defendants are now estopped from resiling on their representation made to the plaintiff that he is entitled to occupy the site on a long term basis, subject to compliance of the 2019 rules. Even if the Court is in error in determining that the plaintiff had an existing right to occupy the site prior to coming into being of a planning scheme, it is not consistent with the policy of the LUPA Act to deny the plaintiff relief. There are cases which show that estoppel is not precluded by a statute. For example, in Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498, at 542-544:

"These decisions upon the Statue of Frauds may be compared with Pavey and Matthews. In that case, there was no written agreement between the owner and the builder as required by s 45 of the Builders Licensing Act 1971 (NSW), but the owner had undertaken to pay a reasonable renumeration, and such a sum was recovered on a quantum meruit. The case was determined by Mason and Wilson JJ upon an examination of the policy and purpose of s 45. The statutory purpose did not extend to enable the owner to request and accept the work but to decline to pay for it. As Dean J put it, there was no legislative intent to penalise the builder beyond making the agreement itself unenforceable against the other party. ..."

1. In Nelson v Nelson [1995] HCA 24, 184 CLR 538, McHugh J referred to Kiriri Cotton Co Ltd v Dewani (1960) AC 192, where the Privy Council upheld an action by a tenant for money it had not received to recover a premium the tenant had paid, contrary to a rent restriction law to obtain the lease. McHugh J cited this as an example of a class of cases where recovery was permitted because "the statutory scheme rendering a contract or arrangement illegal was enacted for the benefit of a class", including the claimant.
2. As submitted by counsel for the plaintiff, it was not the intention of the LUPA Act to penalise innocent purchasers. On the contrary, the scheme of the Act is to ensure equitable and fair use of land. That objective would be undermined if the defendants were not restrained by the Court and were free to evict Mr Lowe from his home. It is significant that the council does not require Mr Lowe to vacate site 43 but also to not on-sell the right to remain there.
3. It is not fair or just, as a matter of law or equity, for the defendants to be permitted to escape the consequences of their own wrong doing. That wrong doing was acting, capriciously, to deny rights under an agreement with the plaintiff, founded in the 2019 rules by purportedly relying on an amendment power to entirely restructure the nature of their relationship with the plaintiff in a way that constituted a gross distortion of bargaining power and not the genuine exercise of an amendment power.

1. There is little, at law, in the submission of the plaintiff that the conduct of the defendants in relation to him, was in some way a breach of the Australian Consumer Law ("ACL"). That is because the Court accepts the submission of the defendants that the ACL does not apply to the relationship between the plaintiff and the defendants, given the value of the agreement between the plaintiff and the defendants exceeds the amount proscribed by s 3(3) of the ACL_._ Therefore, the agreement is not a consumer contract for the purposes of the unfair terms provision in s 23 of the ACL.
2. Under s 23(3) of the ACL:

(b) sale or grant of an interest in land to an individual whose acquisition of the goods, services or interest is wholly or predominately for personal and domestic or household use or consumption."

The effect of s 3(3)(a)(ii), in combination with reg 77A of the Competition Consumer Regulations 2010 (Cth) is that the dollar amount of the services must not exceed $100,000. The plaintiff's site fees of $250 per fortnight, to the end of his right to remain on the site, ie 30 July 2073, is in excess of $100,000. It is unnecessary to further examine the plaintiff's claim under the ACL. That aspect of his claim fails.

Anti-Discrimination Act

1. The plaintiff submits that by purporting to terminate his occupancy of site 43, the defendants engaged in unlawful direct discrimination against him in the provision of services or accommodation on the basis of the plaintiff's political belief as to the legal status of permanent residents of caravan parks in Tasmania, in breach of s 16 of the Anti-Discrimination Act 1998.
2. There is insufficient evidence before the Court for it to come to a view that in purporting to remove the plaintiff's right to occupy site 43, the defendants were actuated by his political opinion regarding the rights of long term residents of caravan parks.
3. In any event, the proper process by which to bring a claim alleging breach of the Anti-Discrimination Act is to raise a dispute before the Anti-Discrimination Commissioner, who may investigate the complaint and refer the matter to the Tasmanian Civil and Administrative Tribunal, see s 60 of the Anti-Discrimination Act. An appeal lies to the Supreme Court from a decision of the Tribunal of the question of law. There is no provision in the Act which enables the Court to deal directly with breaches of the Anti-Discrimination Act. This aspect of the plaintiff's claim lacks merit.

1. The plaintiff has succeeded in all aspects of his claims raised in his amended Statement of Claim, save for his claims under the ACL and the Anti-Discrimination Act. The Court will adjourn the matter to a date to be fixed for it to conduct a Directions Hearing regarding the next phase of the proceeding, being the issue regarding what orders the Court should make to give effect to the conclusions reached in these Reasons for Judgment. That is, unless, the parties are able to agree on a form of order to give effect to the Reasons for Judgment of the Court. In the event that a further hearing is required on the question of remedy, the Court will arrange the Directions Hearing referred to above after the parties have consulted with the Civil Listing Manager as to a date that may be suitable to them. It should be noted that this case illustrates the difficulty caused by Tasmania being the only State which does not have legislated protection for long term residents of caravan parks. The facts and circumstances of this case demonstrate the need for protection of long term residents of caravan parks in Tasmania so that they cannot be subject to uncertainty and oppression caused by those in the caravan park management industry, who wish to exercise their vast superiority in bargaining power, and act malevolently towards the residents.

1. The formal order of the Court is that this matter is adjourned to a Directions Hearing, to be allocated a date after consultation by the parties with the Civil Listing Manager. Until final orders are made, the interlocutory injunction made on 10 December 2024 remains in place.