Menu
We remain open and continue to serve our communities during the COVID-19 pandemic. Click here for more info
Home › Which case won? › Could the council force a home owner to remove a caravan from her land? Which case won?

Which case won?

Could the council force a home owner to remove a caravan from her land? Which case won?
25 Jul | Which Case Won

Could the council force a home owner to remove a caravan from her land? Which case won?

by Anneka Frayne, Tamworth and Kate Byrne, Tamworth

The Facts

Sydney council becomes aware of installation of caravan on local property

A Sydney council became aware of home owners in the local area who had converted an old caravan in to a living area with a bedroom, en-suite and kitchenette without a stove or other cooking facilities.

The caravan was registered with Roads and Maritime Services as a caravan and had an attached vehicle identification number (VIN) plate. It had been renovated off site and transported to the home owner’s property by a crane.

The caravan was connected to water, electricity and sewer and had temporary supports to keep it in place. The daughter of the home owners and her partner lived in the caravan.

Council inspects property and orders that caravan be removed

The council inspected the property and provided an order to the home owners that they must remove the caravan because it was not a caravan but a “structure” under the Environmental Planning and Assessment Act (EPA Act), and therefore required development consent and approval by the council.

The home owners decided to challenge the council’s order in the Land and Environment Court.

casea
The case for the home owners
  • The caravan is not a “structure” under the EPA Act, it is a “movable dwelling” as defined by the Local Government Act (LG Act) and therefore exempt from the need for council approval.
  • To be a “moveable dwelling”, the caravan must be on land that we own, installed in connection with our dwelling-house, used for human habitation only by us or members of our household, and maintained in a safe and healthy condition. We satisfy each of these tests.
  • Indeed, the fact that the caravan is a registered vehicle with the Roads and Maritime Services supports our argument that the caravan is not a permanent “structure”.
  • Council’s order is invalid and should be revoked.
caseb
The case for the council
  • The mobile structure cannot be described as a caravan or other portable device because at the time it was brought to the site by crane, or shortly afterwards, it was not used for human habitation.
  • Further, in order to be used for human habitation the structure must be capable of being a dwelling, but this structure cannot be a dwelling because it does not have a stove or other cooking facilities.
  • The mobile structure is therefore not a caravan or a moveable dwelling; rather it falls within the definition of a “structure” under section 4 of the EPA Act with the consequence that council consent and approval are required.
  • The order we have issued is valid and the mobile structure should be removed.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
a74%
b26%

Expert commentary on the court's decision

Anneka FrayneDirector
“The court rejected the council’s argument that in order to be used for human habitation, the structure must be capable of being a domicile or dwelling. As the judge pointed out, all dwellings are used for human habitation, but not all places that are used for human habitation are dwellings.”
Kate ByrneLawyer
"The court also rejected the council’s argument that the relevant time for consideration of the matter of human habitation was when the caravan was brought to the site by crane or shortly afterwards, pointing out that the definition did not specify this requirement and that the council had imported this requirement into the definition."
Land and Environment Court finds in favour of home owners

In the case Korena Marie Russell v Camden Council [2018] NSWLEC 1159, the Land and Environment Court found in favour of the home owners. The court determined first and foremost that the structure in question was indeed a caravan, being an RMS accredited registrable vehicle which was currently registered.

Under the Environmental Planning and Assessment Act and the Local Government Act a “mobile structure” or “moveable dwelling” is defined as “any tent, or any caravan other than a portable device (whether on wheels or not), used for human habitation”.

The judge said that the human habitation does not depend on how long the space is occupied, but whether it is resided in. In this case, one of the daughters of the family and her partner resided in the caravan, so it was indeed used for human habitation.

When is prior approval from the council not required?

Clause 77 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 states that prior approval of the council is not required for installation of “not more than one caravan or campervan on land occupied by the owner in connection with the owner’s dwelling house”, as long as it is used for habitation only by the owner or by members of the owner’s household and is maintained in a safe and healthy environment.

Land and Environment Court rejects council’s arguments

The court rejected the council’s argument that the relevant time for consideration of the matter of human habitation was when the caravan was brought to the site by crane or shortly afterwards, pointing out that the definition did not specify this requirement and that the council had imported this requirement into the definition.

The court also rejected the council’s argument that in order to be used for human habitation, the structure must be capable of being a domicile or dwelling. As the judge pointed out, all dwellings are used for human habitation, but not all places that are used for human habitation are dwellings.

The judge found that as the structure was a caravan used for human habitation, it came within the definition of a moveable dwelling. On that basis, there was no need for development approval for the installation of the caravan on the property and the council’s order to remove it was invalid.

Follow council rules and be aware that decisions can be challenged

There is longstanding confusion about what we can and can’t have in our backyards under council rules.

For instance, can you convert your shed into a granny flat without council approval? What about erecting a garden shed? Or converting your caravan into a granny flat? (For further discussion please see our earlier article “I can just convert my shed into a granny flat without getting council approval, can’t I? Who would know?” – Wrong!)

It is worth bearing in mind that council rules can be convoluted and may clash with other relevant legislation. It is important to ensure you are following council rules, and to be aware that if you have doubts about a council decision, there are ways to challenge it.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
Send case to a friend Get in touch with an expert Send me more cases
Have your say

Other cases

Can an illegitimate child inherit from his father’s estate? Which case won?
30 Jun 2020

Can an illegitimate child inherit from his father’s estate? Which case won?

The man’s story is one of Australia’s remarkable rags-to-riches immigrant stories. He
Read More
Can a casual employee claim unfair dismissal? Which case won?
17 Jun 2020

Can a casual employee claim unfair dismissal? Which case won?

On 25 June 2018, an employee commenced employment as a casual sales assistant with a large
Read More
Misleading or deceptive conduct, trademark infringement, or just clever business strategy? Which case won?
01 Jun 2020

Misleading or deceptive conduct, trademark infringement, or just clever business strategy? Which case won?

Upon having a hair treatment at an Israeli hairdressing salon, a Canadian tourist liked
Read More
Could a man abstain from voting because it went against his personal religion of “freedom”? Which case won?
20 May 2020

Could a man abstain from voting because it went against his personal religion of “freedom”? Which case won?

A registered voter failed to attend a polling booth to vote in the 2016 federal election.
Read More
Was it repudiation of contract? Should the property buyer get the deposit back? Which case won?
05 May 2020

Was it repudiation of contract? Should the property buyer get the deposit back? Which case won?

On 19 January 2018, a buyer and seller exchanged contracts for the sale and purchase of a
Read More
“We were in a de facto relationship and I should inherit some of his estate.” Which case won?
21 Apr 2020

“We were in a de facto relationship and I should inherit some of his estate.” Which case won?

On 8 August 2000, a man executed a will naming his younger brother as his executor. The
Read More
Did the employer’s negligence cause the sales assistant’s psychiatric injury? Which case won?
07 Apr 2020

Did the employer’s negligence cause the sales assistant’s psychiatric injury? Which case won?

On 1 November 2015, the sales assistant was behind the counter at a jewellery shop
Read More
Is it casual employment because the worker’s contract says it is? Which case won?
24 Mar 2020

Is it casual employment because the worker’s contract says it is? Which case won?

A man was engaged by a labour hire company that supplied labourers for mining companies.
Read More
Father’s estate left to charity – but what about the son? Which case won?
10 Mar 2020

Father’s estate left to charity – but what about the son? Which case won?

A NSW man died in September 2018, leaving an estate of about $2.5 million. His will left
Read More
Were the operators of the leisure park to blame for the child’s quad bike accident? Which case won?
24 Feb 2020

Were the operators of the leisure park to blame for the child’s quad bike accident? Which case won?

The appellant was an 11-year-old child. Her mother phoned the leisure park to arrange a
Read More
Could the buyer terminate the property sale contract due to mental illness? Which case won?
11 Feb 2020

Could the buyer terminate the property sale contract due to mental illness? Which case won?

A seller and a buyer entered into a contract for the sale of land near Grafton in NSW in
Read More
Does smacking children create an unacceptable risk of harm? Which case won?
28 Jan 2020

Does smacking children create an unacceptable risk of harm? Which case won?

The husband and wife had two children, born in 2010 and 2014, before they separated in
Read More
Get more cases
Find an office Find a lawyer Chat

Fill out this form and one of our local law professionals will be in contact

By submitting this form you agree to the terms of our Privacy policy