Watkins v Tasman Tourism Pty Limited

The parties' written submissions to the Tribunal after the hearing

1. At the close of the hearing on 17 November 2023 the Tribunal made directions for the respondents (applicants below) to file and serve written submissions by 1 December 2023, for JW to file and serve written submissions by 19 January 2024 and for the respondents to file and serve written submissions in reply by 2 February 2024.
2. None of the submissions that were made referred to any issue about the application of the HPA to the dispute in light of the terms of s 5 (1) or as to the jurisdiction of the Tribunal to determine the claim.
3. In his written submissions JW set out his Points of Defence as follows: 1. Unable to utilise the cabin due to: a. The cabin is non-habitable in its purchased and current form, due to the non-compliance with relevant council. b. The fees are unable to be paid for something I cannot utilise. 2. Termination order is unable to be enacted or complied with due to demolition of the structure being required as it is not able to be transported. It is not a Moveable Dwelling within the definition. If the Tribunal decides the termination is to take effect, I cannot comply with the order due to the above points.
4. The respondents took the position at the hearing at first instance that the structure was not a "manufactured home" or, at the very least, chose not to advance a case that the structure was a "moveable dwelling" because it was a "manufactured home". This appears from the transcript references below, the apparently, deliberate exclusion from their submissions, including the written submissions after the hearing, of the "manufactured home" element of the definition of "movable dwelling" in the HPA and the absence of any such case throughout their submissions.
5. At the first instance hearing Mr Robertson told the Tribunal that the structure was not a "manufactured home", although he, subsequently, acknowledged that the structure "may" fall within the definition of "manufactured home". Later, in answer to a submission by JW about the requirement under the Regulation to give the Council written notice of the installation of a manufactured home (which had not been given), Mr Robertson, in substance, informed the Tribunal that the respondents' position was that structure was not such a home (transcript page 5, line 32; page 6, line 1; page 23, line 40).
6. These matters explain why the Tribunal excluded any reference to the "manufactured home" element of the definition of "moveable dwelling" when setting out the relevant definition provisions in its reasons (at [14]).

The Tribunal's decision

1. In the circumstances we have referred to about the parties' submissions, the Tribunal did not ask itself whether the structure fell within the definition of "moveable dwelling" in the HPA. In particular, it did not ask itself the question whether the structure was an "other portable device….used for human habitation" as set out in (a) of the definition.
2. Instead, it directed itself to a different question, in accordance with the submission from JW, as to whether the cabin could be removed from the site without demolition for the purpose of giving effect to an order for termination and possession (see at [28] (b) of the decision).
3. This appears to have led the Tribunal to consider whether the structure was a fixture or a chattel according to common law principles, including a passage from Professor Butt, Land Law, 5th edition which stated that whether an item has become a fixture depends primarily on the intention with which the affixer put the item in place, in respect of which there was a relevant question whether the affixer's intention was the better use or enjoyment of the land or the better use or enjoyment of the item itself. This consideration followed from its conclusion that if the cabin was found to be a fixture, then it belonged to the owner of the land, an outcome that it said the respondents did not seek.
4. The Tribunal then stated: 53 There is no evidence of the intention at the time that the cabin was installed. As noted by Mr Robertson there is no evidence from the builder as to the degree of annexation, but I am prepared to accept a strong degree submitted by the Respondent. However, the certificate of compliance that the cabin was constructed in accordance with the 2005 Regulation and then placed on the land, on the better view is determinative that it was always the intention of both parties Dunkview Pty Ltd and the Respondent at the time that the cabin was to be connected as best as possible for the better enjoyment of the cabin and not the land. 54 I determine that the cabin is not a fixture but a chattel that can be moved, albeit with some difficulty. The Applicants have provided a quote from a reputable remover that the cabin can be moved. 55 As I have found that the Respondent is in breach of the Occupancy Agreement and therefore the Notice of Termination is valid, and the obligation is on the Respondent to remove the cabin to provide vacant possession or deal with the cabin in accordance with the Occupancy Agreement there is no need for me to consider the alternative orders sought by the Respondent.
5. Earlier the Tribunal had concluded, amongst other things, that the occupation fees were payable notwithstanding the issue whether the installation of the cabin was approved by the Council (at [37]).

Nature of the appeal

1. Under s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, as this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted according to the requirements set out in cl 12 sch 4 of the NCAT Act.

Grounds of Appeal

1. JW put forward ten grounds of appeal, nine of which were said to raise a question of law.
2. Ground 3 of the appeal was: The Tribunal erred in law in misconstruing, or failing to properly apply, the term "moveable dwelling" in the HP Act, in so far as the Tribunal: (a) held that the question was to be determined by ascertaining whether the cabin was a "fixture" and therefore to be determined by reference to the intention with which the affixor put the cabin in place; (b) failed to hold that the question was to be to determined by the ease with which the cabin could be removed at the end of the occupation agreement, in accordance with the Appeal Panel's decision in [Taylor] at [45]; (c) failed to make any findings as to the steps necessary to remove the cabin from the site and out of the holiday park.
3. JW submitted that this appeal ground alleged that the Tribunal misconstrued the statute or asked itself the wrong question (at [42]).
4. Ground 4 raised a different contention as to the operation of s 5 (1) of the HPA, namely, that this was not a case in which "the occupant installs the occupant's own moveable dwelling on the site…", as required by s5 (1) (b) [our emphasis]. This was not a contention that was raised in the proceedings at first instance.
5. Ground 5 of the appeal was: By reason of the matters raised in grounds 3, 4 and/or 10, the Tribunal lacked jurisdiction to make orders under the HP Act.
6. In its response to Grounds 3,4,5 (and 10) of the appeal, the respondents, accepted that the question of the jurisdiction of the Tribunal to determine the dispute had been raised on appeal (although not at first instance) and that the Appeal Panel must be satisfied that the Tribunal did have jurisdiction in the matter.
7. This was consistent with the decision of the Appeal Panel in Taylor in which it was stated: 44 There is no clear indication given in the decision that the concession made by the appellant also constituted a concession that the structures on the site constituted moveable dwellings for the purpose of the Act. Even if it did, parties to proceedings before the Tribunal cannot bestow jurisdiction on the Tribunal by consent. It is a prerequisite to the exercise of jurisdiction that such jurisdiction be established to the satisfaction of the Tribunal. Without there being a specific finding that the structures constituted a moveable dwelling for the purpose of the Act, or some description of the structures which would leave no doubt that they constituted a moveable dwelling and that the Member was cognisant of the need to establish jurisdiction and power, there can be no established basis for the purported exercise of jurisdiction and powers to make orders under the Act.
8. If the Tribunal did not have jurisdiction to determine the dispute, then the Tribunal's decision would be affected by an error of law.
9. Furthermore, the question raised on appeal concerning the operation of s 5 (1) HPA raised the question whether the claim brought in the proceedings was misconceived because the HPA did not apply.
10. We consider that the Tribunal erred in not asking itself the question about the applicability of the HPA and in not proceeding to make the necessary factual findings about this question on the material which it had before it. Failing to do so, was an error of law. As we have already mentioned, the Tribunal did not examine the question whether the structure was a "moveable dwelling" within the definition in the HPA and instead addressed a question as to whether the structure was a fixture or a chattel.
11. Grounds 3 and 5 of the appeal and the submissions in support of these grounds raised the question whether the HPA did not apply because the structure was not a "moveable dwelling" within (a) of the definition. In the circumstances of this case, in turn, this raised the question whether the structure fell within that part of (a) of the definition "other portable device …used for human habitation".
12. In the circumstances of the case before it, including the respondents' position about "manufactured home" referred to above, this was the question that the Tribunal should have asked itself.
13. Accordingly, we uphold Ground 3 of the appeal.

Determination by the Appeal Panel or remittal to the Tribunal

1. The Tribunal has broad powers in respect of the appeal, including to set-aside the orders challenged on appeal and make a decision in substitution, as well as a power to remit the proceedings to the Tribunal for redetermination: s 81 of the NCAT Act.
2. The parties presented competing submissions in their written submissions as to why the cabin structure was or was not a "moveable dwelling" for the purposes of s 5 (1) of the HPA. At the hearing of the appeal we raised with the parties the question whether this was a matter that we should determine on appeal or whether it should be remitted to the Tribunal for redetermination if some or all of the ground(s) of appeal were upheld. No party sought to change what each had said on this subject in their written submissions, although the respondents did indicate they were more open to the making of an order for remittal.
3. We have decided that Ground 3 of the appeal should be upheld and that we should determine the question whether the HPA applies, including whether the Tribunal has jurisdiction to determine the proceedings. This is so, even though a decision on this question not only involves a question of law as to the correct interpretation of s 3 (a) of the HPA but also a question of fact as to the relevant nature of the cabin structure in issue. However, we consider the question of fact is a narrow one in the circumstances that have occurred in this case. It can be resolved without new evidence and without any question as to the credibility of witnesses or the need for cross-examination.
4. We also consider that the respondents, as the moving parties, have had a reasonable opportunity to establish that the cabin structure, in whole or in part, is a "moveable dwelling" within the meaning of s 3 (1) (a) of the HPA, and, hence, that the HPA applies, we have received full submissions from the parties and we think it is in accordance with the guiding principle in s 36 of the NCAT Act that we proceed to determine the proceedings.

Our findings and conclusions

1. We begin by examining what we do know about the cabin structure in issue.
2. The Tribunal made limited findings about the nature of the cabin structure on Site 4. It did say that it was prepared to accept a strong degree of annexation to the site as submitted by JW (when addressing a question whether it was a fixture or a chattel) but it did not make any findings concerning the facts behind its conclusion (at [53]).
3. In the Notice of Order dated 31 August 2023 with respect to the conduct of the proceedings at first instance it was noted that the following issues had been raised by JW, including that "This is not a moveable dwelling". Directions were made by the Tribunal that day for the respondents' (then applicants) to provide their documentary material (including witness statements, expert reports and photographs) by 21 September 2023 and for JW to provide his documentary by 13 October 2023.
4. In their evidentiary material in accordance with these directions the respondents presented no proof that the structure on the site was a "moveable dwelling". They provided no material, including photographs, witness statements or expert reports about the make-up of the cabin structure, where it had been built, whether it consisted of sections, how it had been transported to the site (if it had been), how it was affixed to the site and how it could be removed, including the ease of removal.
5. In his documentary material in response JW provided some photographs and stated (at page 33): 5. I consider that the Cabins were: a) were constructed and assembled on the Sites. b) are not able to be divided into transportable sections. Please see attached evidence of the scale of the cabin and non-separative nature of the build. Full demolition of the structure is the only option to remove this cabin from site. (Document 19). c) were constructed by welding the perimeter floor frame of the cabin structure to the support posts preventing removal, separation, and transportation of the cabin structure. The sub- framing for the floor structure has no lifting points or separation points in its current form. Please see photo of cabin 4 showing the permanent nature of the build (Document 20 & 21). d) incorporate garages which are fixed to concrete slabs, and which were constructed as separate structures and then connected to the balance of the Cabins. Please see the permanent nature of the connection between the cabin and garage in the attached photos. (Document 22 & 23). e) By reason of Paragraph 5 above, I believe that the cabins are in fact "buildings" as that is defined under the Environmental Planning & Assessment Act 1979.
6. The Tribunal referred to statements made by JW as follows (at [40]-[41]) (we exclude controversial opinions): 1. The cabin is 25m long and 6.5m wide at its widest point. 2. It is fixed to the ground by being welded to support columns concreted into the ground. 3. The cabin base is constructed in steel. 4. The steel columns used to hold the cabin structure are concreted into the ground to an unknown depth. 5. There are no ceiling joists or structural floor joists supporting the cabin's frame.
7. Photographs presented to the Tribunal by JW show a sizeable structure which includes a balcony at the front (located on an enclosed structure which we understand to be a brick façade). The balcony has a wooden and wire fence around its perimeter. A staircase leads to the front of the balcony. Adjacent to the balcony is a bench top area supported with the same brick facade. Another set of stairs leads to a doorway at the side of the cabin. On one side of the structure, near the rear of the property, are three lock-up, rolldown garage doors sitting above what appears to be a concrete slab.
8. The handwritten note presented to the Tribunal by JW referred to above was headed "Cabin 4". It indicates that in addition to the cabin, to which there was attributed an agreed value of $285,000, there were also "Extras" which included an extended loft, a garage, some stone bench structure and a bathroom/bedroom. These "Extras" totalled $50,480.
9. It was common ground on appeal that the cabin structure which JW had purchased included both the garages and the front balcony which were connected to the cabin. At the hearing of the appeal, there was no dissent from what we were told by Mr Birch of Counsel, who appeared for JW on the appeal, that the only addition JW had made to the structure after its purchase was the instalment of a spa on the balcony.
10. JW also presented to the Tribunal a photograph of a Manufacturers Compliance Plate from Dunkview in respect of the cabin structure containing a date of 2017. Amongst other things, this stated that the "structure" complied with various regulatory provisions, including Part 2 division 4 and Part 3 division 4 of the Regulation. The plate as photographed contain no identification numbers.
11. In his documentary material JW referred to the decision of the Land and Environment Court in Ogilvie v Rovest Holdings Pty Ltd [2023] NSWLEC 17.
12. On 9 November 2023 (6 business days before the hearing), the respondents provided an affidavit from Mr Milne, the General Manager of Operations at Tasman, said to have been in reply to JW's material, which addressed the "moveable dwelling" issue (an affidavit of 38 paragraphs and 33 pages of exhibits).
13. The directions for the conduct of the hearing made no provision for any additional evidence from the respondents, including in reply to JW's evidence. The manner in which the Tribunal allowed this affidavit to be relied upon was the subject of a procedural fairness ground of appeal, with which we do not need to deal.
14. The terms of the affidavit revealed Mr Milne's lack of personal knowledge about relevant matters concerning the "moveable dwelling" issue. In particular: 1. Mr Milne presented evidence of photographs provided by Mr Madsen, the former owner and sole director of Dunkview, some of which showed cabins being transported around the park and a photograph that showed a cabin being constructed off-site and another photograph of a cabin being installed on the site on piers. However, he did not identify any of these photographs as photographs of the cabin structure in issue. 2. Mr Milne referred to five of the cabins at the holiday park, none of which was the cabin structure in issue. He said that these had been constructed by Parkwood Modular Buildings Pty Ltd. He said he had spoken to a Mr McDougall, a director of this company, who said they had built 6 cabins for Dunkview, which had been collected by a specialist movable dwelling transportation company, McDonald Contracting Pty Ltd from Parkwood and delivered to the park for installation. He said that it was his "understanding" that the Parkwood Plan broadly reflected the external construction of each cabin in the 1-47 Cabins [cabin 4 being amongst these] whilst pointing out that there may have been some internal changes between the cabins and that the Parkwood Plan did not reflect the carports to the cabins, which occurred at a later date. 3. He said he had emailed McDonald Contracting Pty Ltd on 27 October 2023 requesting a quote for the removal of JW's cabin. He referred to the attachments he had provided with his email, including recent photographs of the cabin and the Parkwood Plan. The quote requested was for the removal of the cabin and garage at Site 4 but only to "higher ground" in the holiday park. 4. The quote from McDonald Contracting Pty Ltd was supplied on 31 October 2023. It contained no suggestion that this company had inspected the site for the purpose of the quote or that it had transported JW's cabin to the site for its installation. It stated that the quote followed a review of "the file" by a named person, presumably, within the company. There was no reference to what was required in order to carry out removal other than that the "building" be cut from its metal piers, the metal posts would remain in the ground and (without explanation) they would not remove the garage, which would need to be removed by others. A fee of $12,000, plus GST, was quoted. It was said that there would be an additional fee if the owner wanted to remove the building from the holiday park. 5. Finally, Mr Milne gave hearsay evidence of a conversation with Mr Madsen in a meeting with him on 2 November 2023. He said he was told by Mr Madsen that each of the 1-47 cabins had been built off site, some by Parkwood and others by cabin manufacturers or local builders or local contractors supervised by Dunkview. No cabin manufacturer or local builder or local contractor was identified as the builder of JW's cabin. Mr Milne said had been told by Mr Madsen that once built Mr Madsen arranged for McDonald Contracting Pty Ltd to transport the cabins to the park for installation, each cabin was lowered onto piers dug in at each site by the transport truck and rested on concrete blocks and the truck moved away, concrete was then poured into the pier holes and the cabin remained on the blocks for a few days whilst the concrete hardened [our emphasis]. Once the cabin was in situ, timber cladding was installed along the underside of the cabins, an external set of stairs was installed, the underside of the roofs of the balconies were plastered and painted and the cabins were internally painted and connected to site services. This information from Mr Madsen said nothing about the construction of the garage or the balcony. 6. On the basis of all this information, Mr Milne expressed the opinion that he considered the cabin at site 4 "is able to be removed from the Park and installed at another location".
15. The email from McDonald Contracting Pty Ltd of 31 October 2023, relevantly, stated: ● To move 1x cabin only from one position in the park to another is at a fee of $12,000 plus GST. ● The building will be cut from its metal piers in its current position, the metal posts will remain in the ground at the original site. ● We will not remove the garage, this will need to be removed by others. ● No new foundation work or peer work is included in this price. ● The owner wants to remove the building from the site, it will then be priced at an additional fee. Require an address and then we can price this portion of the works for the customer.
16. There was no account in this email about the specific work resulting in such a sizeable fee (apart from the need to cut the building from its metal piers) nor did it say how long this work would take.
17. There was no evidence as to why no witness statement had been presented from Mr Madsen or from knowledgeable persons at Parkwood Modular Buildings Pty Ltd, McDonald Contracting Pty Ltd or from a qualified expert about any of the relevant matters so far as they concerned the cabin structure in issue.
18. Importantly, there was no evidence presented by the respondents challenging JW's evidence referred to in paragraph [81] above.
19. Clearly, the information Mr Madsen had given Mr Milne that the cabin simply rested on the concrete blocks was either incomplete or incorrect.
20. There was no dispute on the appeal that it was common ground at the hearing at first instance that in order to remove the purely cabin component the garages and the balcony would have to be removed or demolished or taken away (page 19 of the transcript, line 37). Later, Mr Robertson told the Tribunal that he had accepted that the "carport" and the front balcony would have to be demolished (transcript 31, line 10).

The parties' submissions

1. As appellant, JW was first to provide written submissions on appeal, followed by the respondents' written submissions and then JW's written submissions in reply, all of which were supplied before the hearing of the appeal. As we have already mentioned, after the hearing we obtained further written submissions from the parties about the decision in Ogilvie.
2. The main case authorities concerning the meaning of the relevant part of the definition of "movable dwelling" are Jambrecina, Taylor and Ogilvie.
3. Mr Birch of Counsel, who appeared for JW, submitted that as the moving parties it was always incumbent on the respondents to demonstrate that the cabin structure was a "moveable dwelling" in order to establish that the HPA applied and that the Tribunal had jurisdiction. He also submitted that if the correct question had been addressed the inevitable conclusion on the material before the Tribunal was that the cabin was not a "moveable dwelling".
4. As to the relevant meaning of "moveable dwelling", he relied upon what Sackville AJA said in Jambrecina at [44] about the meaning of "other portable device…. used for human habitation"
5. In Jambrecina, a case concerning the need for development approval under the EPA in respect of some sheds at the rear of a residential property, Sackville AJA (Giles and Ipp JJA agreeing) said at [44]: 44 The relevant exceptions in paragraph (a) are "a manufactured home, a moveable dwelling or associated structure". The evidence did not support a finding that any of the sheds were a "portable device … used for human habitation" and thus did not support a conclusion that any of the sheds was a "moveable dwelling". There was no suggestion that either the appellant or her son lived in the sheds or, indeed, that the sheds were capable of being used as a place of abode or dwelling. In any event, while the sheds were apparently prefabricated and presumably capable of being dismantled and reassembled, they were not "portable" in the same sense as tents, caravans and vans, which are specifically designed to be readily and frequently moved from place to place.
6. For present purposes, the last sentence in [44] of the decision is the important statement because it construes the "portable" element by reference to the preceding words in the LGA "tents, caravans and vans" and requires that they be of a like nature in the sense that they "are specifically designed to be readily and frequently moved from place to place".
7. Mr Birch also relied upon some passages in Taylor at [39] and [45]. He submitted that the question was also considered by assessing the practical ease with which the structure could be removed from the site.
8. In Taylor, the Appeal Panel remitted for redetermination proceedings brought by a park owner seeking orders under the HPA, including an order for termination of an occupation agreement and vacant possession of a site containing some form of dwelling located on a concrete slab, an adjoining caravan and a roof structure. This followed the Appeal Panel's conclusion that it was unclear whether the HPA applied and, hence, whether the Tribunal had jurisdiction because it was unclear whether the structure(s) was a "moveable dwelling" given the scant evidence about the structure and how it was sitting on the site.
9. The Appeal Panel in Taylor made no reference to the decision in Jambrecina, apparently, being unaware of the above relevant remarks by Sackville AJA. Relevantly, it did say: 45 We readily admit that the determination of whether the structures on this particular site constituted moveable dwellings, whether in whole or in part, may not be an easy task. Almost everything can be moved and might thereby be said to be "moveable." Even the London Bridge was moved to Arizona, USA. However, the reference to a moveable dwelling as contained within section 5 of the Act is, in our opinion, intended to refer to a structure which is capable of being left on the site, but capable also of being removed at the end of the occupation agreement. A caravan will obviously fit this description. A demountable structure, often used on building sites, in schools and at entertainment functions will also generally fit this description. This will be so whether or not services or utilities are attached to the structure. It may also be necessary to erect footings or other mechanisms on which to place such a structure. This may not detract from the structure being characterised as moveable. Certainty may only be injected into this hypothetical discussion by an examination of the structure itself including the manner in which it rests upon, or is installed or erected on the site as contemplated by the definition of "holiday park" contained within section 3 of the Act. In the circumstances of these proceedings there is a reference to a concrete slab. We do not know how large it is, whether it contains steel reinforcing or the like, and the manner in which it has been placed on or within the ground comprising the site. In general terms, we would not characterise a concrete slab upon which some form of structure occupied as a dwelling as being moveable. There is no information about whether the structure sitting on top of the slab was affixed to it, and in what manner. Again, this is hypothesis and should be subject to factual examination so as to inject certainty. Whatever the difficulties in making such a determination, there is nothing contained within the decision of the Member the subject of the appeal that indicates that any examination was undertaken so as to enable a determination to be made, and there is nothing contained within the decision which expresses the making of such a determination. 46 Arguably, this matter is even further complicated because the structures include a caravan which is likely to be characterised as moveable and a slab and roof type covering which may arguably be characterised as falling outside what is moveable. The "annex" structure is of unknown character. If these hypotheses are correct, it is not clear whether the Act would apply to some of the structures, all of the structures, or none of them. ….
10. Mr Birch submitted that the cabin was not capable of being moved as a structure, attempting to move the cabin would require demolition of significant parts of it (the garage and the balcony) and even attempting to move the remaining part of the cabin would involve major construction works. He submitted that these conclusions followed from the Tribunal's apparent acceptance of JW's submissions about the degree of annexation and nature of the cabin, which was entirely consistent with the respondents' evidence to the Tribunal, including the quote from McDonald Contracting Pty Ltd, as well as the fact that it was common ground that moving the cabin would entail the demolition of the garage area and the front balcony.
11. Mr Robertson of Counsel, who appeared for the respondents, submitted: 1. Given that the issue of jurisdiction had not been raised below and that the issue was being raised for the first time on appeal, JW, as the appellant, bore the onus of proving that the Tribunal did not have jurisdiction to determine the claim. 2. The Council, as the relevant regulatory authority, was satisfied that the cabins at the park are "moveable dwellings" because it granted approval under s 68 of the Local Government Act for the park to operate as a "caravan park/camping ground", which necessary comprised "moveable dwellings". 3. The compliance plate affixed to JW's shows that the cabin complies with the requirements of a "manufactured home". 4. The quote from McDonald Contracting Pty Ltd to remove the cabin showed that the Tribunal was correct to find that the cabin could be removed from the site. 5. JW, on the other hand, did not provide any evidence from an engineer or builder to substantiate his claims that the cabin was not capable of being removed from the site. 6. The cabin is in the nature of a chattel rather than a fixture for the reasons given by the Tribunal and JW is entitled to remove the cabin from the site.
12. As to these points we respond as follows: 1. The onus of proof was not on JW. On the contrary, as the moving parties, the onus lay with the respondents to establish that the HPA applies. 2. None of these points take any issue with the primary facts about the cabin structure referred to in [93], [94] and [95] above. 3. The Council approval to operate as a "caravan park/camping ground" proves nothing about the nature of the cabin structure in issue. 4. The compliance plate says nothing about the relevant questions as to whether the cabin structure in whole or in part was specifically designed to be readily and frequently moved from place to place and as to the practical ease of removal. 5. The quote from McDonald Contracting Pty Ltd does not address the relevant questions referred to in (4). On the contrary, the reference to the need to cut the cabin from its piers and the size of the fee are inconsistent with a conclusion that the cabin structure in whole or in part is a "moveable dwelling" within the definition in s 3 (a) of the HPA. 6. Again, the question whether the cabin is capable of being removed from the site is not the correct question. The absence of any engineering or expert evidence called by JW does not count against him having regard to the absence of any evidence from witnesses with personal knowledge of the nature of the structure, let alone any expert evidence, called by the respondents. 7. The conclusion about a chattel does not direct itself to the right question.
13. In addition, Mr Robertson submitted: 1. The Tribunal had found that the cabin was not a fixture, and this was a relevant consideration. 2. As appears from what the Appeal Panel said in Taylor, the fact that the cabin had been erected on footings did not detract from the structure being characterised as a "moveable dwelling". Neither does the fact that the cabin needs to be cut from the piers. 3. The "movable dwelling" is the cabin which was transported onto the site on a truck [our emphasis]. The balcony and garage which were subsequently attached to the cabin are associated structures. The fact that these associated structures are required to be removed/demolished prior to removal of the cabin does not undermine the fact that the cabin itself is a "movable dwelling". 4. The Tribunal did not err in not accepting the supposed "evidence" from JW that the cabin had not been designed or constructed to enable it to be removed and transported from the site. First, it was not shown that JW had any requisite expertise on this question. Secondly, this evidence was contrary to the compliance plate. 5. JW should not be allowed to argue that the cabin could not be removed given his contractual obligation under the Occupation Agreement to make sure that the cabin is kept in a condition allowing it to be moved. Otherwise, this would be to allow JW to take advantage of his own wrong.
14. As to these subsequent points, we respond as follows: 1. The question whether the cabin was a fixture was not the right question. 2. The cabin was not just erected on footings. It was welded to the footings. 3. We do not accept that the cabin was transported to the site for installation. This is because no witness with personal knowledge about this gave evidence, even though JW had raised the issue and even though Mr Madsen was, apparently, available to give evidence about it. The hearsay evidence sourced from Mr Madsen about this question was vague. JW, clearly, did not have personal knowledge of the situation at that time. 4. We do not rely upon JW's opinion evidence to this effect. We do rely upon his statements about the nature of the cabin structure obtainable by personal knowledge which were not contradicted. We repeat what we said above about the compliance plate. 5. Whether the HPA applies and whether the Tribunal has jurisdiction is not to be determined by the operation of a principle concerning not taking advantage of his own wrong. In any event, it is, at least, open to question whether there was any breach by JW of this contractual provision in circumstances where the cabin structure was already established on the site by others before the Occupation Agreement was entered into.
15. The respondents did not take issue with what was said by Sackville AJA in Jambrecina about the meaning of "moveable dwelling" or with JW's submission that the practical ease of removal was an important consideration, if not decisive.
16. We should also say that we consider that the respondents should be bound by the way they conducted the case before the Tribunal and that on appeal we should approach the question whether the cabin structure is a "moveable dwelling" by reference to the whether the cabin structure was an "other portable device" and not by reference to any question as to whether it was a "manufactured home": see, for example, Alta Vale Residential Pty Ltd v The Owners-Strata Plan No. 956393 [2024] NSWCATAP 212 at [37]-[40]. As we have examined above, the respondents eschewed a case at first instance that the cabin structure was a "manufactured home". They have provided no explanation for the course which they took, nor did they submit that they should be permitted to change their position. The only submission made on appeal was that they had left open the question whether the cabin structure was a "manufactured home" but the stance they chose to take was to pursue a different case. We accept JW's submission that there was evidence that he might have called about whether the cabin structure was a manufactured home had this been part of the respondents' case.
17. The approach to the meaning of "other portable device" taken by Sackville AJA in Jambrecina was followed in Ogilvie, a case in the Land and Environment Court of New South Wales concerning whether modular units being installed as accommodation elements of a proposed motel were to be classified as "buildings" requiring assessment pursuant to the EPA Act or whether they were "movable dwellings" within the definition in the Local Government Act.
18. Relevantly, in Ogilvie Moore J stated: 73 Of particular relevance, in the present context, is my discussion in [41] where I adopted the position that, even for the single‑storey modules proposed to be installed at Muswellbrook, they were of sufficient size that they could not be regarded as falling within the same genus as the other elements within the definition of "movable dwelling", a definition which needed to be read ejusdem generis. 74 It is also to be observed that, in the present instance, that which comprises each structure of four bedrooms/bathrooms also has attached to it, as an integrated part of its functional utility, a separate verandah structure which is to be constructed and affixed to (and thus becoming part of) the module when the four‑unit module has been put on its footings. 75 It is, therefore, clear that the entirety of what constitutes the integrated four‑bedroom/bathroom module also encompasses the verandah servicing those four units. There is no suggestion that, once those verandahs have been attached to them, the modules are transportable in a single piece. 76 Indeed, it is appropriate to reproduce a (lengthy) extract from Mr Goodsir's first affidavit so that there can be seen a clear understanding of the processes for installation and, critically, removal of the modules. Paragraphs 11 to 17 of his affidavit were in the following terms: …. 77 For any future transportation, if this was to be undertaken, there would be the necessary requirement to disassemble the verandah elements, as well as the disconnection of the electricity, stormwater, potable water and grey/black water discharge services. It is these latter elements (the necessity for disassembly and the permanence of connection of services) that arise to be considered in the context of the two decisions dealt with in the next sections of this judgment. Consideration of Jambrecina v Blacktown City Council 78 I turn, now, to the decision of the Court of Appeal in Jambrecina v Blacktown City Council. As earlier noted, the relevant passage is contained in the decision of Sackville AJA at [44]. This passage reads: …. 79 As is evident from the passage set out above, the sheds there involved were ones where their portability was dependent on disassembly into their component parts. This makes them distinctly different from the other items identified in the definition of "movable dwelling" in the Local Government Act. 80 Two matters of importance arise from the above passage. The first is the concluding words of his Honour where he notes that "portability", in the context where that expression is used in the definition of "movable dwelling", embodies an ability for an item so characterised as being one "specifically designed to be readily and frequently moved from place‑to‑place". 81 In the present context, there is no suggestion that the modules being installed on the site are so designed (see above extract from Mr Goodsir's first affidavit). 82 Indeed, in the context of the Company's application, they are expressly not intended to be readily and frequently moved from place‑to‑place. 83 Second, although the extent of disassembly necessary for the shed structures addressed in this decision of the Court of Appeal would have required a greater reduction to their component parts, that which is being installed on the site does, as a matter of practicality, not only require disconnection from necessary services but also disassembly by removal of the verandah structures which have been affixed to them and become part of each group of residential units. That necessity for disassembly before each of the modules was capable of being moved (even after disconnection from services) provides an additional reason why they could not be regarded as being an "other portable device" and thus being a "movable dwelling". …. 87 As can be seen from the above passage from the decision of Cowdroy J, the critical matters, in his Honour's assessment, militating in favour of the primary structure involved in those proceedings being regarded as a building rather than as some form of movable or temporary structure were the nature of the attachments of that structure to its site (including the connection to services). 88 In the circumstances with which I am now dealing, the connections of the modules to services, although capable of reversal in the fashion described by Mr Goodsir in his first affidavit) are of even greater sense of attachment to the site than those which his Honour considered were sufficient to demonstrate the permanence and lack of portability of the structure with which he was dealing. Conclusion on Ground 1 89 The combined conclusion to be drawn from the three decisions which I have analysed above provide, in their differing fashions, indicators pointing towards the permanence (and hence lack of portability) of the structures which the Company has had installed on the site. Taken together, I am satisfied that, as a matter of fact, the modular units installed on the site to provide the accommodation facilities for the Company's approved motel use do not fall within the definition of "moveable dwelling" in the Dictionary to the Local Government Act being: ….
19. In written submissions about the significance of Ogilvie, Mr Birch submitted that each of the four indicia considered in Ogilvie (size of the structure, veranda and garage as integrated components that would need to be demolished, connection to utility services and that the structure was not designed to be readily and frequently moved) weighed strongly toward the conclusion that the cabin structure in this case it was not a "moveable dwelling".
20. In reply written submissions, Mr Robertson submitted that the decision in Ogilvie was of limited assistance to the issue in this case and it did not lay down any principles of general application.
21. We agree that the decision in Ogilvie does not lay down any principles of general application. Nevertheless, we think it is of some assistance to the extent it adopts and applies the meaning of "other portable device" in the definition of "moveable dwelling" according to the approach taken by Sackville AJA in Jambrecina. At the same time, we recognise there are material differences between the structures in these cases.
22. Furthermore, addressing the arguments presented by the respondents about Ogilvie is of some relevance to our conclusion in this case.
23. The respondents outlined five ways in which the present case was said to differ from the case in Ogilvie.
24. First, the definition in s 3 of the HPA differed from that in the LGA. However, the only difference in s 3 (1) (a) was that the word "tent" does not appear before "caravan". The respondents made no submission about the significance of this difference, and we cannot discern any material difference.
25. Secondly, it was pointed out that in Ogilvie there was no issue about whether the structures fell within the definition of "manufactured home". However, we have already explained why this is not a relevant difference to the present case.
26. Thirdly, it was submitted that the evidence in the present case was significantly different to the evidence in Ogilvie. The respondents made three points in this regard as follows: 1. The conclusion in Ogilvie that the modular units had not been "specifically designed to be readily and frequently moved from place to place" was referred to. It was submitted that in the present case the compliance plate made it clear that the cabin structure had been designed to be readily moved from place to place since it is designed as a "manufactured home" and a "relocatable dwelling" as defined in the Regulation. We have already addressed this issue. 2. Reference was made to the conclusion in Ogilvie that the modular units were "expressly not intended to be readily and frequently moved from place to place" (at [82]). It was submitted that this appeared to be based on the fact that the first respondent owned the land, installed the modular units on the land and intended to use the modular units to operate a motel on the land. On the other hand, in this case the cabin structure was owned by JW and installed on a site owned and operated by the respondents which indicated that it was never intended that the cabin structure would remain in the present location permanently. It was submitted that this conclusion was supported by the clause in the Occupation Agreement which required JW to maintain the cabin structure "in a condition allowing it to be moved" (clause 22) and by the Tribunal's conclusion that the cabin structure was a chattel. 3. The respondents pointed to the quote from McDonald Contracting for removal of the cabin part of the structure to another part of the site. We agree that there was no such evidence in Ogilvie. However, as we have already indicated, the quote does not assist the respondents' case.
27. The conclusion at [82] in Ogilvie was, however, based upon the "Company's application". There was no such specific evidence in the present case. Clearly, this is a difference in the facts. However, we do not agree that the evidence in this case warrants a conclusion that it was never intended that the cabin structure would remain in the present location permanently-a different question to whether there was an intention that the cabin be readily and frequently moved from place to place. The physical aspects of the cabin structure would suggest otherwise (examined further below). Further, the cabin structure was in location at the site before it was purchased by JW but there was no evidence from Mr Madsen of Dunkview, an available witness, as to any relevant intention about the permanence of the location. Clause 22 was in an agreement which, contrary to the facts, contemplated that the cabin structure would be installed by the occupant after the agreement was entered into. It is removed from the reality of the situation which existed when the Occupation Agreement was entered into. The Annexure A provisions we referred to above is consistent with an opposite conclusion, namely the requirement for a moveable dwelling to be built in accordance with the park owner's approved design in order to preserve the aesthetics and standards of the park and to maintain the value of the cabin owner's investment.
28. In his submissions in reply about Ogilvie, Mr Birch made submissions about the park owner's business model, including that a combination of matters led to the conclusion that the business model was premised upon the cabin structure remaining in place. However, we think there is insufficient evidence for us to arrive at any conclusions about the respondents' business model.
29. Returning to the five ways in which the present case differed from that in Ogilvie according to the respondents, the fourth way was that in Ogilvie the Court did not refer to the concept of "associated structure" in the LGA. It was submitted that the definition of "associated structure" in the LGA makes it clear that "associated structure" such as a garage or veranda does not form part of a "moveable dwelling" and once attached to it remains a separate structure. It was submitted that the Court's failure to refer to this aspect undermined the Court's conclusion in [83] about the significance of the verandahs which it was said had become part of each unit and would require disassembly before the units were capable of being moved. It was submitted that because of this factor we need not follow the reasoning in the present case. It was submitted that the respondents had "adduced evidence that, notwithstanding the attachment of those associated structures, those structures can be removed from the appellant's cabin and the cabin can be transported from its site."
30. The evidence referred to in this passage must be the email quotation from McDonald Contracting.
31. We do not agree with this criticism of the decision in Ogilvie. In the LGA the definition of "associated structure" is only relevant to the "manufactured home" component of the definition of "moveable dwelling". Furthermore, as appears from the definition of "manufactured home" in the LGA set out above, contrary to the submissions of the respondents that an "associated structure" remains a separate and distinct structure from the "moveable dwelling", the "manufactured home" type of "moveable dwelling" is defined to include associated structures. The HPA contains the same definition of "manufactured home", although it contains no definition of "associated structure".
32. The fifth matter relied upon by the respondents was that Court in Ogilvie did not consider various aspects of the 2021 Regulation. However, as we have already mentioned the relevant provisions in the EPA (and the HPA) are not to be construed by reference to this regulation. Furthermore, there can be no suggestion in this case that any of the features of the installation of the cabin structure are explained by the need to comply with the 2021 Regulation.
33. Applying the approach to the meaning of "moveable dwelling" set out in s 3 (1) (a) of the definition taken in Jambrecina, as well as the remarks about the nature of a "moveable dwelling" in Taylor, we consider that the cabin structure in this case, whether in whole or in part, is not a "moveable dwelling" for the purposes of the HPA. In any event, at the least, we are not persuaded that it is such a dwelling.
34. Plainly, it is clear that the cabin structure as a whole, including the garages and balcony, is not specifically designed to be readily and frequently moved from place to place and, in fact, cannot be easily moved at the end of the occupancy agreement.
35. We draw the same conclusion about the cabin alone, separate from the garages and the balcony, in view of the totality of the uncontradicted evidence about the nature of the cabin referred to in paragraph [81] (1) to (5) above and the broad support for this conclusion revealed by the quote from Macdonald Contracting that we have already referred to. In addition, the garages and balcony disrupt the ease of separation of the cabin from these components of the cabin structure.

Respondents' application to re-open the hearing of the appeal

1. On 26 September 2024 the respondents applied to re-open the hearing of the appeal in order to tender a written approval from the Hills Shire Council dated 23 September 2024 in respect of the installation of a relocatable home on JW's site at the holiday park. The application was supported by an affidavit from the respondents' solicitor sworn on 26 September 2024. The application was opposed by JW and an affidavit form JW's solicitor sworn on 30 September 2024 was relied upon.
2. Subsequently, both parties made written submissions with respect to the application and consented to the application being dealt with on the papers.
3. We refused the application and informed the parties we would give reasons for the refusal when giving our substantive reasons. We now give those reasons.
4. The submission was made by the respondents that the Council approval now obtained constitutes new or fresh evidence that was not available at the time of the hearing of the appeal which is highly relevant to issues on the appeal, including whether the Tribunal lacks jurisdiction because the cabin structure is not a "moveable dwelling (Grounds 3 and 5)". In the application itself (an "Application for miscellaneous" form) it was said that the approval showed that the Council, as the relevant regulator, is satisfied that JW's cabin is a "moveable dwelling"as defined in the LGA and 2021 Regulation and has approved the installation of JW's cabin on that basis.
5. However, the first matter to mention is that the Council does not express such an opinion. Rather, the approval is granted with respect to "the proposed relocatable home" at Site 4 [our emphasis] and is subject to a condition to be fulfilled "Before any works commences.." and contains a condition that "No associated structures are to be placed on the site without prior approval of Council".
6. Furthermore, there is no reasoning as to whether and, if so, how the proposed structure falls within the "other portable device" element of the relevant definition.
7. As it appears, we consider it has no probative value to the resolution of this appeal.
8. Furthermore, whilst we accept that the evidence is new or fresh, we do not accept that it was not reasonably available for the hearing of the appeal. The approval followed an application to the Council made after the hearing of the appeal on 5 September 2024. However, there was no explanation as to why this application could not have been made at a much earlier time. As to this, as appears from Ms Sutcliffe's affidavit (JW's solicitor), the respondents deliberately chose not to make this application earlier taking the position that JW should make any relevant application
9. JW also submitted that he would suffer prejudice by incurring further legal costs should the application be allowed leading to the likelihood of further evidence and submissions about this Council approval. As to further evidence, it emerged from Ms Sutcliffe affidavit that JW would wish to present evidence to show that the plans the subject of the Council approval are for a different cabin structure than his existing cabin and are also different to the Parkwood Plan that was the subject of the removal quote from McDonald Contracting Pty Ltd.
10. In view of these matters and the principles regarding the application to re-open set out in, for example, Wiskich v Composite Materials Australia Pty Ltd [2016] NSWCATAP 221 at [38]-[40] we decided to reject the application.

Orders

1. For the above reasons, we make the following orders: 1. The appeal is allowed. 2. The orders made by the Tribunal on 29 April 2024 are set aside. 3. The respondents' proceedings 2023/00382500 are dismissed.

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

Amendments 02 January 2025 - Para [78] added "at" in the first line after "proceedings". Para [121] the paragraph numbered "(1)" in para [123] beginning "The respondents pointed "needs to be moved to become a new (3) in para [121]. Para [127] "Ogilvie" in italics. Para [135] added "associated" before "structures" in the last line. 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: 02 January 2025