The Appellant in this case, John Stevenson, is the occupant of a holiday van located at the XXXX Caravan Park. This Caravan Park is Crown land. The Crown has leased it to the Respondent, B J Wallace Holdings Pty Ltd. It would appear from the filed material that Mr Brian Wallace is a director of this company.
The Appellant has appealed against orders made by the Consumer and Commercial Division in a decision dated 11 April 2014 ('the Tribunal's decision'). In these orders, the Appellant was referred to as the Site Occupant and the Respondent as the Park Owner. An occupation agreement that these two parties had concluded ('the Occupation Agreement') was referred to in these orders as 'Holiday Parks (Long-term Casual Occupation'.
The terms of these orders were as follows:-
By consent, Holiday Parks (Long-term Casual Occupation) is terminated immediately and possession is to be given to the Park Owner on the date of possession.
By consent, the order for possession is suspended to 31 May 2014.
Notation: The Park Owner has stated that the applicant Site Occupant shall be refunded any fees paid in advance on vacant possession of the site being returned to the Park Owner.
The Appellant filed a Notice of Appeal on 8 May 2014. The Respondent filed a Reply to Appeal on 29 May 2014. Subsequently, directions were made fixing a timetable for the filing of submissions. In addition, the Appeal Panel refused an application for a stay of the orders made on 11 April 2014. It added that there was no evidence that the Respondent had sought to obtain a warrant for possession and that if a warrant were subsequently sought or issued, the Appellant would be permitted to apply again for a stay.
With the consent of the parties, the appeal is being determined without a hearing, pursuant to section 50 of the Civil and Administrative Tribunal Act 2013.
The Appeal Panel's decision is that the appeal must be dismissed, for the reasons that follow.
The Appellant's case
In the Notice of Appeal, the Appellant set out a single ground of appeal, in the following terms:-
The Notice of Order was issued on the understanding that the (Holiday Parks) Long-term Casual Occupation Act 2002 applies - it does not - Crown land does not recognise the Act or the Occupation Agreement signed between Brian Wallace and the Occupant (see attached).
Holiday Parks Act 2002 has no jurisdiction on any Crown land perpetual or licensee (sic).
We (all) signed the agreement, not knowing Crown Land & Industry (sic) does not recognise the agreement!
In addition, the Appellant applied for leave to appeal on the grounds that the Tribunal's decision was not fair and equitable and that it was against the weight of the evidence. In support of the first of these grounds, he claimed as follows: (a) the Tribunal member making this decision would not have known that the (Holiday Parks) Long-term Casual Occupation Act 2002 (hereafter 'the Holiday Parks Act') did not apply to Crown land; (b) the Caravan Park was 'all Crown land - in particular the eastern end'; and (c) at this end, all occupants had tenure 'by the Minister' until 2018. In support of the second ground, he repeated the first of these three claims and added that Mr Wallace, at some unspecified time, 'had an arbitrator with him'.
Implicitly, the Appellant also sought to challenge the Tribunal's decision by indicating, in the section of the Notice of Appeal where he reproduced the Tribunal's orders, that any consent given by him to the first two of them had been 'withdrawn by email'.
The Appellant filed the following material in support of his appeal:-
A letter written in December 2010 by Mr Wallace, seemingly to site occupants not including the Appellant, stating that legislation had been introduced to bring the whole of the Caravan Park under the Crown Lands Act 1989 and that 'formal' occupation agreements under the Holiday Parks Act would now need to be 'finalised'.
A letter dated 4 December 2013 from the Appellant to Mr Wallace, alleging that on account of breaches of the Occupation Agreement by Mr Wallace and for other reasons, the Respondent was not entitled to terminate this Agreement.
An undated statement by the Appellant that he had filed in the proceedings before the Tribunal, claiming on similar grounds that the notice terminating the Agreement (which had been sent to the Appellant on 22 November 2013) should be 'rescinded'.
A letter dated 7 January 2014 from NSW Trade & Investment, Crown Lands Nowra Office to the Appellant, stating as follows: (a) the 'subject section' of the Caravan Park had been transferred to the control of Crown Lands in 2010; (b) as was previously the case, the licensee of the Park was not permitted to authorise the transfer of a site currently held by an 'entitled occupant' under an Occupation Agreement; (c) Mr Wallace was aware that Crown Lands would not support any application for waiver of this 'long standing requirement'; and (d) since Crown Lands was not a party to the Occupation Agreement between the Appellant and the Respondent, issues relating to the termination of this Agreement and the relocation of assets were 'purely' matter(s) for negotiation between the parties.
A letter dated 7 April 2014 from Mr Paul Toole MP, Parliamentary Secretary to the Deputy Premier and for Asia-Pacific Trade, to Mr Chris Patterson MP, Member for Camden, responding to a letter received from Mr Patterson concerning the Respondent's refusal to permit the Appellant to transfer his caravan site to another person. Mr Toole stated (a) that all owners of holiday vans in the relevant section of the Caravan Park had been given Ministerial approval to remain in occupation until 2018, 'on the clear understanding that the transfer of ownership of vans would not be permitted'; and (b) that Crown Lands would investigate concerns expressed by the Appellant that the Respondent had breached the terms of its licence by permitting other van owners to 'sell onsite'.
An unsigned letter dated 30 April 2014, addressed to the Minister of Primary Industries and written (according to the Appellant) by Mr Patterson, requesting urgent 'clarification' of the lease of the Caravan Park by Crown Lands to the Respondent and advice as to the validity of the notice terminating the Occupation Agreement.
In the Notice of Appeal, the Appellant sought leave to adduce as further evidence the reply of the Minister of Primary Industries to Mr Patterson's letter. The Appellant claimed that this reply would confirm that 'the eastern end (if not all)' of the Caravan Park 'has not agreement with' the Holiday Parks Act and that Crown Lands does not 'recognise any occupation agreement between Brian Wallace' (sic).
The Appellant did not file any submissions enlarging on his claims.
The Respondent's case
On 29 May 2014, the Respondent filed a Reply to Appeal, to which a number of documents were annexed. In a subsequent letter to the Registrar, it indicated that it was 'content for the Appeal to be heard on the matters contained in' the Reply.
The Respondent contested the Appellant's claim that the Holiday Parks Act did not apply to the Caravan Park or to the Occupation Agreement because the Park (or at least the 'eastern end' of it) had become Crown land. It argued that by virtue of section 8 the Crown was bound by the Act, that section 5 made the Act applicable to 'any occupation agreement in relation to a site' and that the definitions of 'holiday park', 'site' and 'occupation agreement' in section 3 clearly brought both the Caravan Park and the Occupation Agreement within the scope of the Act.
The Respondent further argued that, far from supporting the Appellant's claims, the letter dated 7 January 2014 from NSW Trade & Investment, Crown Lands Nowra Office to the Appellant was in conflict with them. It relied on the passage in this letter stating that Crown Lands was not a party to the Occupation Agreement and that issues relating to the termination of this Agreement and the relocation of assets were 'purely' matters for negotiation between the parties. It submitted also that there was no evidence substantiating Mr Toole's statement that all owners of holiday vans in the relevant section of the Caravan Park had been given ministerial approval to remain in occupation until 2018.
The material annexed to the Reply to Appeal included a letter dated 20 May 2014 and an email message dated 22 May 2014 from NSW Trade & Investment, Crown Lands Nowra Office to Integrated Site Design Pty Ltd, replying to questions that this company had asked as an agent for the Respondent. It is sufficient to say here that the replies furnished in this letter and email message endorsed the Respondent's claims that the Holiday Parks Act was applicable to the Occupation Agreement, even though the site to which this Agreement related was Crown land.
The Respondent made the following additional submissions. The Applicant had not put before the Tribunal the letter of 7 January 2014 that he had received from NSW Trade & Investment, Crown Lands Nowra Office. A reason for this may well have been that this letter did not support his case. He had not indicated to the Tribunal that he wished to put on further evidence or that he was awaiting further evidence. It would be unfair and prejudicial to the Respondent to permit the Appellant to, in effect, reopen his case, since there were no extenuating circumstances and no reason why he could not have made his enquiries and prepared all his evidence before the Tribunal hearing.
Discussion and conclusions
There is no dispute that the present appeal relates to an Occupation Agreement within the meaning of the Act. It is not suggested that section 6 of the Act excludes this Agreement from the Act's operation.
The Occupation Agreement is between the appellant and the respondent, not the appellant and the Crown.
The main proposition advanced by the Appellant was that because the Caravan Park - or at least the area within it of relevance to these proceedings - was Crown land, the Occupation Agreement was not governed by the Holiday Parks Act. This proposition provided the basis for his claims that the Tribunal erred in law, that its decision was not fair and equitable and that the decision was against the weight of the evidence.
For the reasons stated by the Respondent, this proposition must be rejected. Nothing in this Act, or indeed in the observations about its coverage contained in the correspondence put before the Appeal Panel, gives any reason for doubting that section 8 brings Crown land within the scope of the Act.
Further, the present orders were made to terminate an Occupation Agreement to which the Crown was not a party. Aside from the submission that the Act did not apply to Crown Land, no submission was made that the Tribunal did not have power to make an order pursuant to section 27 terminating this Occupation Agreement made between these specific parties.
The letter from NSW Trade & Investment dated 7 January 2014 suggests that by reason of a licence (or lease) granted by the Crown ('the Crown's licence') to the Respondent, the Respondent may not consent to transfer of any Occupation Agreement at the holiday park and that such a consent might constitute a breach of the Crown's licence. The licence is not in evidence in this appeal.
Whether or not such an agreement could prevent transfer of an Occupation Agreement is not relevant to this appeal, because the issue is whether the order terminating the Occupation Agreement and granting possession was valid. In this regard, it is clear from the letter dated 7 January 2014 that whatever restrictions are imposed on the Respondent by the Crown's licence, 'matters relating to termination of (the Occupation Agreement) and the removal or ownership of assets located on sites are purely matters for negotiation between the two parties' and 'Crown Lands has no power to issue any directions in relation to such matters'.
The Respondents' submissions opposing the Appellant's application for leave to adduce further evidence are also persuasive. It is highly unlikely that the evidence to which this application referred - an anticipated reply from the Minister of Primary Industries to an inquiry made by Mr Patterson - would cast any useful light on the question whether the Holiday Parks Act was applicable to Crown land. Accordingly, this application should be refused.
Finally, the Appellant's claim that he had 'withdrawn by email' his consent to the first two orders made by the Tribunal was not supported by any evidence.
For the foregoing reasons, the appeal fails and must be dismissed.
[2]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 26 February 2015