Legislation cited: ACT Civil and Administrative Tribunal Act 2008

Residential Tenancies Act 1997 s 71, 83

Cases cited: Commissioner for Social Housing v Arndt [2016] ACAT 119

Commissioner for Social Housing in the ACT & Cotsell [2012] ACAT 25

Peter Beresford v Department of Urban Services [2004] ACTSC 58

Roberts v South Canberra Holdings Pty Ltd trading as Southside Village [2017] ACATR 88

Rocks v Southside Village [2018] ACAT 40

Turner v York Motors Pty Ltd [1951] HCA 52

Papers cited: Anforth, Christensen and Adkins_, Residential Tenancies Law and Practice in NSW_ (Federation Press, 7th Ed, 2017)

SOUTHSIDE CANBERRA HOLDINGS PTY LTD ACN 606 747 602

The Tribunal being satisfied the agreement dated 2 November 2013 is an occupancy agreement and the Residential Tenancies Act 1997 applies, it is ordered:

1. The registry is directed to renumber the application in matter as a residential tenancy application, noting that the relevant filing fee has been paid.

1. The occupancy agreement is terminated at 5:00pm on Thursday 6 June 2019 and the occupant is to give vacant possession of the premises to the grantor.

1. The operation of paragraph 2 of this Order is suspended until 5:00pm on 6 July 2019.

1. On 6 June 2019 I made orders terminating Mr Hanel's occupancy of a site in the Southside Village caravan park. At the time I said I would publish reasons for the decision. These are those reasons.

1. On 2 November 2013 Mr Hanel applied for, and was granted, a licence to occupy a site in Canberra South Motor Park. That licence was described in the application form as a "licence to occupy on a weekly basis." The application form referred to certain 'conditions' of the licence, a copy of which was provided to the Tribunal.
2. Mr Hanel took up residence on the site, which already had on it a habitable structure constructed by a previous occupant. Mr Hanel purchased that structure from the previous occupant. The site itself is powered and has water and some plumbing: it includes an ensuite provided by the owner of the park.
3. On 14 August 2015 Canberra South Motor Park was sold to the applicant, which continued to operate the park as 'Southside Village.'
4. It seems that in recent times, there has been disagreement between Mr Hanel and the applicant over his parking of a second vehicle in the park. There were discussions and unsuccessful attempts to agree arrangements for parking of the second vehicle. Tempers were inflamed, words were said, and people did things. The police became involved. None of that is particularly relevant to this application. I mention it only because it forms the background against which these proceedings were ultimately instituted.
5. On 7 November 2018 the applicant gave Mr Hanel a written notice of termination of the licence to occupy (the Notice).[1] The Notice required the site to be vacated, and all structures and possessions removed, by 10:00am on 7 February 2019. The Notice stated that the reason for the termination was the persistent parking issues, and requested all communication be in writing and staff not be approached.
6. Mr Hanel did not vacate the site as required by the Notice and remained in possession at the time of the hearing on 6 June 2019.

Application for termination of the licence agreement

1. On 8 February 2019 the applicant lodged a civil dispute application with the tribunal, seeking orders "requiring the Respondent to remove his caravan, annex and any other possessions" and "provide vacant possession of the site." The application continued "In the event that the Respondent does not comply with such orders, the Applicant seeks further orders to allow it to dispose of the caravan, annex and any other possessions of the Respondent that remain on the site and recover any costs associated with doing so from the Respondent."
2. That application was sent by post to Mr Hanel on 14 February 2019, together with a Notice advising him he should file a response by 18 March 2019.
3. No response was filed, and on 3 April 2019 the applicant sought the entry of orders for vacant possession on a default judgment basis, together with ancillary orders permitting the applicant to remove the dwelling from the site; be reimbursed the costs of removal of the dwelling; and be paid the site licence fee until vacant possession is obtained.
4. This default judgment application was listed for hearing on 18 April 2019. Notice of the hearing was sent to Mr Hanel by express post to his residential address.
5. On 18 April 2019 the default judgment application came before the Tribunal. The Tribunal declined to enter orders by way of default judgment. Instead, the substantive application was listed for hearing on 6 June 2019. Directions were subsequently made for each party to file a timeline, witness statements and relevant documents prior to the hearing. Both parties complied with these directions.

What is the correct jurisdiction for the dispute?

1. The first question for the Tribunal was whether the arrangement between the parties to occupy the site is an occupancy agreement under the Residential Tenancies Act 1997 (RT Act), or a licence agreement termination of which would fall within the tribunals civil jurisdiction. It is worth noting that whichever jurisdiction applies, the power of the Tribunal to make the orders sought by the applicant is limited.
2. If characterised as an occupancy agreement, the Tribunal has the power to make orders for termination and possession,[2] however the Tribunal does not have the power to issue a warrant for eviction in relation to an occupancy agreement. If an occupant fails to vacate the premises as required by an order of the Tribunal, the grantor would need to rely upon the assistance of the police,[3] or seek orders for recovery of possession of the land from the Supreme Court. Upon the eviction of the occupant, the grantor would become the unwilling possessor of the mobile home or other structures erected by the grantor, as well as any contents or other goods left on the site. It is unclear the extent to which the Tribunal may make orders as to how a grantor deals with property of the occupant left on the premises.[4] Further, to the extent that such items might be characterised as uncollected goods, it is not certain that the Tribunal has the power to order that they be dealt with in a way contrary to that prescribed by the Uncollected Goods Act 1996.
3. If characterised as a licence, the Tribunal in its civil jurisdiction has the power to terminate the licence but does not have the power to make orders for possession of the land.[5] The same issues in relation to the licensor recovering possession, and dealing with structures and items left on the property, as noted above, remain.
4. At the hearing, Mr Black for the applicant advised the proceedings were commenced in the civil jurisdiction because of previous decisions of the tribunal which concluded that occupation of the long-stay sites was to be characterised as a licence, but not an occupancy, agreement. The applicant cited Roberts v South Canberra Holdings Pty Ltd trading as Southside Village [2017] ACAT 88 and Rocks v Southside Village [2018] ACAT 40 (Rocks). The rationale in those cases is that where the agreement is in relation to bare land which has no habitable structure provided by the grantor, the agreement is not in relation to 'premises' as required by section 71C of the RT Act and so cannot be an occupancy agreement. These cases note the inclusive definition of the term 'premises' in the RT Act, but limit that definition by the reference to 'habitable structure' contained in paragraph (a) of the definition:

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

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

1. In Rocks the Tribunal summarised the reasoning as follows:
   1. The core of the logic is as follows. Both residential tenancy agreements and occupancy agreements[6] require an agreement for the use of a 'premises' as a 'home'. The term 'premises' connotes a habitable structure and the term 'home' connotes further limitations on the nature of the premises and its minimum content.[7]
   2. The agreement between the parties must be one in which the ownership of the 'premises' belongs to the lessor who then contracts with the tenant or occupant to allow the use of the premises as a home, for value i.e. rent.
   3. In the case of bare site agreements in caravan parks there is no premises involved in the agreement. Bare land does not satisfy the definitional requirements of a premises or a home.
   4. ...
   5. The situation may be different if the site in the caravan park already has a van or cabin in situ that is owned by the park, and under the agreement the resident obtains the right to use the van or cabin as a home. Such an arrangement is consistent with the definition of 'premises' in the Dictionary to the RT Act which "includes any habitable structure, whether it is affixed to the land or not." Note however that under this definition the 'habitable structure' must still be intended to be used as a 'home'. This definition would not be satisfied by a tent pitched on the site and would not include intended use of a van on site other than as a home, for example, as an office.
   6. Even if the agreement is for an onsite habitable van or cabin owned by the park, there is still an issue of whether the RT Act intended to catch such agreements. These agreements are expressly excluded from the definition of 'residential tenancy agreements' by section 6F(1)(a) RT Act but there is no corresponding exclusion from the definition of an 'occupancy agreement'. It may be that the legislative policy encapsulated in section 6F was intended to operate in respect of the Act as whole in which case there would be no 'occupancy agreement' either. But this is not a clearly stated legislative policy and it was open to the Legislature to have legislated for the exclusion of caravans when Part 5A was inserted into the RT Act.
   7. There are other weighty policy reasons for not excluding agreements for on-site park owned van/cabin accommodation from the definition of occupancy agreement. These policies include the fact that such parks often provide long term housing for people on low income that have no other realistic housing options; and the impracticality of such people having to litigate their contractual disputes in the Magistrates or Supreme Court.
   8. For present purposes it is sufficient that the Tribunal finds that the agreement between the present applicant and respondent is neither a residential tenancy agreement nor an occupancy agreement for the purposes of the RT Act.
   9. The conclusion that site only agreements in which the resident provides their own van are not residential tenancy agreements was also reached by the NSW Court of Appeal in May v Ceedive Pty Ltd[8] in relation to similarly worded provisions in the Residential Tenancies Act 2010 (NSW). The NSW legislation has no equivalent to the ACT occupancy provisions.
2. Mr Hanel's representative, Ms Barry, drew the Tribunal's attention to the decision of the Appeal Tribunal in Commissioner for Social Housing in the ACT & Cotsell [2012] ACAT 25, which found that an agreement to occupy a site in a long-stay caravan park was an occupancy agreement. That decision concluded that the definition of 'premises' in the RT Act, as an inclusive definition, was able to accommodate the meaning of bare land without buildings. Although this approach was acknowledged to be at odds with the interpretation of the word adopted in other legal contexts[9], the Appeal Tribunal concluded that the broad interpretation should be preferred for the RT Act. The broad interpretation of 'premises' was considered more consistent with other provisions of the RT Act.[10]
3. Subsequently, in Commissioner for Social Housing v Arndt [2016] ACAT 119 the tribunal, in applying the broad interpretation, also noted that the intention of the Legislature that the word 'premises' include a bare site in a caravan park was made clear by an examination of the second reading speeches. The Tribunal wrote:
   1. ACAT has considered the characteristics and definition of occupancy agreements in Cotsell at paragraph 20 and following. The Appeal Tribunal stated:

The definition of premises in the Act is inclusive rather than exhaustive. ACAT may, in determining the meaning of premises, have regard to common usage and the general law. ACAT is required to give meaning to premises in the context of the Act as a whole, and with regard to the intention of the legislature as gathered from, inter alia, the scope, purpose and object of the Act.

...When the word 'premises' is used in the Act, it must be taken to refer to premises intended to be used for residential purposes. The tribunal is required to give meaning to 'premises' in accordance with the settled principles of statutory interpretation. That is, to interpret words in the context of the Act as a whole, and to assign a meaning that is consistent with the intention of the legislature.

The word 'premises' is defined in the Macquarie Dictionary as a house or building with the grounds, etc, belonging to it.

The Butterworths Property Law Dictionary defines premises as:

buildings, self-contained apartment all rooms within buildings or land. A very general term, it is used in particular to refer to rooms or buildings subject to a lease, or from which a business is conducted or from which some other activity is carried out... Premises may consist solely of land or buildings, or may encompass partly land and partly buildings.

1. The Appeal Panel in Cotsell noted that the occupancy agreement between the parties contemplated two essential matters: that the territory would, for a fee, permit the occupant to use a block of land for occupation in a caravan or mobile home owned by the applicant; and the land and the caravan or mobile home would be occupied as a home. Cotsell also confirmed an application relating to an agreement for the occupation of a site at Narrabundah Long Stay Caravan Park.
2. I am satisfied that the word 'premises' is unambiguous and that its inclusive definition in the RT Act does not confine its meaning to a dwelling and land. The inclusive definition serves to enlarge the ordinary meaning of the word 'premises' - buildings or land or buildings and land. Within the context of the RT Act 'premises' are used as a home. Although it was not necessary, therefore, to have regard to extrinsic materials, the extrinsic materials (as set out below) support this conclusion.
3. Part 5A of the RT Act was inserted by amendment in 2004. The Explanatory Statement[11] notes that the Act is amended to apply to a wide range of agreements - principally agreements of a short term nature, including licences, boarder contracts and lodger contracts, extended over a wide range of premises presently excluded from the Act, including caravan parks and student accommodation.
4. During the Legislative Assembly debates concerning the passage of the Residential Tenancies Amendment Bill 2004, there was considerable discussion of the benefits that would accrue to residents of caravan parks.
5. Specifically, there was discussion of an amendment to the Bill which introduced the occupancy principle now set out in section 71E (2) of the RT Act:

_If an occupant occupies a mobile home on land in a mobile home park and the mobile home is not provided by the grantor - _

(a) the occupancy principle in subsection (1) (e) applies to the land and any fixtures provided by the grantor, but not the mobile home; and

(b) the grantor is entitled to enter the mobile home only with reasonable notice, at reasonable times, on reasonable grounds and for reasonable purposes.

1. Mr Stefaniak, speaking to this amendment, stated[12]:

This amendment tries to rectify a problem for long-term residents in a caravan park who, in this instance, own their own van. This amendment ensures that, if they occupy a mobile home which they own on land in a caravan park, the occupancy principle applies to the land and any fixtures provided by the grantor, but not to the mobile home. It ensures that the grantor is entitled to enter the mobile home only with reasonable notice, only at reasonable times and only on reasonable grounds and for reasonable purposes.

We are probably all aware that this has not been done in the past and that the grantors, or people in that position, have entered privately owned mobile homes in circumstances that may not be reasonable. This amendment brings it much more into line with other tenancy-type arrangements. We think this is only fair, especially if the person owns their own home but happens to have it parked at a mobile home park

1. As stated in Cotsell there is a clear intention that those parts of the Act that concern occupancy agreements, apply in situations where the land is owned by the grantor and a mobile home on the land is owned by the occupier or grantee. The land and home are in those circumstances properly described as 'premises' for the purposes of the definition of an occupancy agreement contained in section 71C. If an agreement between the parties relates to a mobile home on land in a mobile home park, where the land is owned by one party and the mobile home is owned by a second party and the second party has the right under the agreement to place the mobile home on the land of the first party then: 'premises' will include both the land and the mobile home, and the agreement will be an occupancy agreement.[13]
2. I consider that the reasoning in Cotsell and Arndt is the correct approach, and that the broad interpretation of the word 'premises' should be adopted. The word is capable of carrying this meaning in ordinary usage, this interpretation was intended by the Legislature and to not adopt this meaning would make section 71E(2) of the RT Act inoperative. This means that for the RT Act the word 'premises' can include bare land with no structure or building upon it.
3. In any event, it is doubtful that the question arises on the facts of this case. This is because the parties agreed that the licence to occupy site 315 included the right to use all of the common land and facilities of the park, on a non-exclusive basis. The land thus available to Mr Hanel under the agreement is full of buildings. There are toilet and shower blocks, a laundry, a kitchen and an amenities room, all available on a non-exclusive basis. Site 315, as already noted, has its own exclusive ensuite. If a building or structure is required for there to be 'premises', such buildings and structures are present in abundance.

1. There is a recent history of contention between the parties, necessitating police involvement at one stage, and the applicant says that for this reason termination of the occupancy is sought.
2. It is understandably difficult for the applicant to operate Southside Village in a situation where its employees are constrained in talking with Mr Hanel, and likewise the situation cannot be easy for Mr Hanel. However it is important to note that under the terms of this agreement and the RT Act there is no need for any 'reason' to be given by either party for terminating the occupancy agreement[14]. This means that background questions of which party is right or wrong about the parking issues and other incidents, and whether the termination notice is justified or not, are not relevant to the application for termination of the occupancy.
3. Even if the disagreements about parking could be characterised as an attempt by Mr Hanel to assert his rights under the RT Act[15] such that the proposed termination is 'retaliatory', the RT Act provides no express protection to occupants from 'retaliatory evictions.'[16]
4. Accordingly I did not determine the background questions in hearing the application. Instead I considered whether the application should be granted given the terms of the agreement, and a consideration of the occupancy principles.
5. Section 71E sets out occupancy principles that must be considered before making a decision under the RT Act:

(1) In considering a matter, or making a decision, under this Act in relation to an occupancy agreement for premises, a person must have regard to the following principles (the occupancy principles):

_(a) an occupant is entitled to live in premises that are - _

(b) an occupant is entitled to know the rules of the premises before moving in;

(c) an occupant is entitled to the certainty of having the occupancy agreement in writing if the occupancy continues for longer than 6 weeks;

(d) an occupant is entitled to quiet enjoyment of the premises;

(e) a grantor is entitled to enter the premises at a reasonable time on reasonable grounds to carry out inspections or repairs and for other reasonable purposes;

(f) an occupant is entitled to 8 weeks notice before the grantor increases the amount to be paid for the right to occupy the premises;

(g) an occupant is entitled to know why and how the occupancy may be terminated, including how much notice will be given before eviction;

(h) an occupant must not be evicted without reasonable notice;

(i) a grantor and occupant should try to resolve disputes using reasonable dispute resolution processes.

_(2) If an occupant occupies a mobile home on land in a mobile home park and the mobile home is not provided by the grantor - _

(a) the occupancy principle in subsection (1) (e) applies to the land and any fixtures provided by the grantor, but not the mobile home; and

(b) the grantor is entitled to enter the mobile home only with reasonable notice, at reasonable times, on reasonable grounds and for reasonable purposes.

1. Principle 71E(g) and (h) are clearly engaged in the current case.
2. The occupancy agreement between the parties contemplated that either could terminate the agreement on one weeks' notice. In the conditions attached, it is asserted that the occupancy could be terminated immediately. There is no suggestion that the latter condition is relied upon in this case. The notice period of one week was clearly contained in the written application to occupy, and known to both parties. Mr Hanel would have had the benefit of this short 'no cause' notice period had he chosen to vacate the site at any time.
3. In the event, the grantor did not rely on a one week notice period. The grantor issued a notice of termination on 7 November 2018, giving Mr Hanel three months notice. Given that the occupant is required to either find a purchaser for the structures on the site, or remove them, this seems a reasonable amount of time.
4. It was submitted for Mr Hanel that he could not currently vacate the site as he has an injury, and has no alternative accommodation. Mr Hanel indicated he is prepared to leave Southside Village, when he is in a physical and financial position to do so. He said this would be, at the earliest, when other legal proceedings which should result in a payment to him, are finalised. There was no certainty as to when this might be.
5. At the time of the hearing on 6 June 2019 it was almost exactly 6 months from the date of service of the termination notice upon Mr Hanel.
6. In my view, it was appropriate for the occupancy to be terminated, given that the agreement contemplated termination by either party for no reason, upon the giving of one weeks notice. However, given the extended period of occupancy, and the requirement to remove fixed structures, I considered that one weeks notice would clearly not be reasonable, but the 3 months given constituted reasonable notice. Accordingly, I made the orders for termination and possession sought by the applicant.
7. Because of the practicalities of removing the structures and finding alternative accommodation, I suspended the operation of that order for a further month, to enable Mr Hanel to make arrangements to either sell the mobile home structure to an incoming occupant, or have the structure dismantled and removed.
8. I declined to make ancillary orders in relation to removal of goods or structures at this time. On the history of the matter as recounted by Mr Hanel, it is entirely likely that the existing structure may be sold to an incoming occupant and such orders may prove unnecessary and, as noted earlier, other legislation may apply to uncollected goods on the site.

Southside Canberra Holdings Pty Ltd ACN 606 747 602

[1] One copy was put in his letterbox and one copy posted to him via Australia Post

[3] If the police were satisfied that continued possession amounted to criminal offence

[4] The RT Act does not provide such a power expressly, and the power to make 'any other order' has been removed from section 83 of the RT Act

[5] In the absence of a statutory provision, this power rests with the Supreme Court

[7] Anforth, Christensen and Adkins, Residential Tenancies Law and Practice in NSW (Federation Press, 7th Ed, 2017) at [2.3.6] 5 17

[8] [2006] NSWCA 369

[9] Turner v York Motors Pty Ltd [1951] HCA 52;Peter Beresford v Department of Urban Services [2004] ACTSC 58

[11] 2004 Legislative Assembly for the Australian Capital Territory: Residential Tenancies Amendment Bill 2004, Explanatory Statement at page 8

[12] ACT_, Parliamentary Debates,_ Legislative Assembly, 17 August 2004, 3787-8 (Bill Stefaniak)

[13] Commissioner for Social Housing in the ACT & Cotsell [2012] ACAT 25 at [32] to [34]

[14] This can be contrasted with the situation where the grantor is a public authority under the Human Rights Act 2004, in which circumstance there is some protection from arbitrary interference with a persons' home.

[15] For completeness, I note that I do not think they can be so characterised

[16] Section 57 of the RT Act provides protection to tenants from retaliatory applications