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Iveson v Scenic Rim Regional Council[2019] QCAT 197

Iveson v Scenic Rim Regional Council[2019] QCAT 197

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Iveson v Scenic Rim Regional Council & Anor [2019] QCAT 197

PARTIES:

MICHAEL RONALD IVESON

(applicant)

v

SCENIC RIM REGIONAL COUNCIL

(first respondent)

SEQ WATER

(second respondent)

APPLICATION NO/S:

OCL061-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

26 June 2019

HEARING DATE:

1 April 2019

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. Matter OCL061-18 is dismissed.
  2. The respondents file and serve any submissions as to costs by 4pm on 10 July 2019.
  3. The applicant file and serve any submissions as to costs in reply by 4pm on 24 July 2019.
  4. The costs of the proceeding will be determined on the papers without an oral hearing.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONTROL OF PARTICULAR MATTERS – RESIDENTIAL – CARAVAN PARKS AND MOVEABLE DWELLINGS – where the applicant was permitted to erect a cabin on land near a caravan park – where the applicant occupied the cabin from time to time from 1990 – where the cabin was used intermittently for recreational purposes – where the land on which the cabin was erected was held under license only – where the licence permitted camping only – where the respondent council was trustee of a reserve on adjacent land at which it operated a caravan park – where the council gave the applicant notice to leave the site –– whether the land on which the cabin was sited was land in a residential park – whether the cabin was a manufactured home – whether the respondents were park owners

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – GENERALLY – where the applicant applied in the Tribunal under manufactured homes legislation for compensation – where the respondents applied in the Tribunal to strike out the applicant’s claim on the basis there was no residential park dispute between the parties giving the Tribunal jurisdiction to determine the applicant’s claim

Acts Interpretation Act 1954 (Qld), s 14B

Land Title Act 1994 (Qld), s 184

Manufactured Homes (Residential Parks) Act 2003 (Qld), s 8, s 11, s 12, s 13, s 14, s 14A, s 117

Cramp & Beecroft v Haraba Pty Ltd t/a Gateway Village Resort [2008] QCCTMH 20

D’Arro v Queensland Building and Construction Commission [2017] QCA 90

Dey v Victorian Railways Commissioners (1949) 78 CLR 63

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Haggarty v Wood (No.2) [2015] QSC 244

Newman, L. v Lake Tinaroo Holiday Park (Management) Pty Ltd [2006] QCCTMH 4

Radaich v Smith [1959] HCA 45

APPEARANCES & REPRESENTATION:

 

Applicant:

B McMillan of Counsel instructed by Caxton Legal Centre

First Respondent:

K Gothard of Counsel instructed By Barry Nilsson

Second respondent:

A Lonergan, Solicitor, Colin Biggers & Paisley

REASONS FOR DECISION

  1. [1]
    In 1990 Mr Iveson built a cabin on a site (‘site 28’) at Lake Moogerah. It was on the foreshore of Lake Moogerah and had a view over the lake and surrounding mountains. Lake Moogerah Caravan Park was just behind.
  2. [2]
    Mr Iveson and his family and friends used the cabin for holiday purposes from time to time.
  3. [3]
    From 1990 until 2018 Mr Iveson paid fees to first Boonah Shire Council and then Scenic Rim Regional Council (‘Scenic Rim’) for his occupation of the cabin.
  4. [4]
    On or about 7 March 2018 Scenic Rim sent him a document described as a notice of termination of occupation licence putting him on notice that he had to remove the cabin and vacate from site 28 by 30 June 2018.
  5. [5]
    In April 2018 he made enquiries of professional house removal companies trying to arrange for the cabin to be moved from Lake Moogerah to land he owned at Nanango. He asked Scenic Rim for an extension of time to move the home, but that was denied. He left without moving the cabin.
  6. [6]
    On 16 October 2018 Mr Iveson filed an Application – Manufactured Homes (Residential Parks) application in the Tribunal seeking, amongst other things, compensation of $110,000. He claimed against both respondents as park owners of Lake Moogerah Caravan Park.
  7. [7]
    Both respondents have now applied to have Mr Iveson’s application struck out. They say the Tribunal does not have jurisdiction to make the orders sought by Mr Iveson because the matter is not a residential park dispute[1] under the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘the Act’).
  8. [8]
    The strike out applications are now before me for determination.
  9. [9]
    An initial submission that Mr Iveson’s claim should be struck out because it had not been referred for mediation as required by section 116(3) of the Act was not pursued  at the hearing. That requirement only commenced on 31 October 2018 and Mr Iveson had already filed his application by then.
  10. [10]
    I conclude the amendments introduced by the Housing Legislation (Building Better Futures) Amendment Bill 2017 (Qld) generally apply to the matter at hand, however. There are a number of transitional provisions continuing the application of some pre-amended provisions, but otherwise the legislation as amended should apply.[2] Nothing turns on this in respect of the issues for determination, save nomenclature and renumbering of some provisions in the Act.
  11. [11]
    Scenic Rim contends that:
    1. (a)
      it is not a park owner;
    2. (b)
      the park is not a residential park;
    3. (c)
      site 28 is not on land in a residential park;
    4. (d)
      Mr Iveson’s cabin is not a manufactured home;
    5. (e)
      Mr Iveson is not a home owner; and
    6. (f)
      There was never a site agreement between the parties.

For these multitude of reasons, Scenic Rim submits that the Tribunal has no jurisdiction to make the orders sought by Mr Iveson because the dispute is not a residential park dispute.

  1. [12]
    SEQ Water concurs with Scenic Rim.
  2. [13]
    Mr Iveson says Scenic Rim, and before it, Boonah Shire Council, operated Lake Moogerah Caravan Park and collected quarterly rental payments from him to allow him to keep his cabin at the caravan park on site 28. He argues that he is a home owner within the meaning of that expression in the Act.
  3. [14]
    In respect of the requirement under the Act that a park owner own a residential park, Mr Iveson acknowledges that ownership of land at common law typically means a right to the land better than any other person’s right, such as an interest in fee simple in the land, rather than a lesser interest such as a leasehold interest. However there is no definitional guidance in the Act as to the meaning of ‘a person who owns a residential park’ in s 11. He suggests it is therefore necessary to consider extrinsic material to assist in the interpretation of s 11 as permitted by s 14B of the Acts Interpretation Act 1954 (Qld). It is appropriate to consider extrinsic material in the circumstances.
  4. [15]
    Mr Iveson suggests if one considers the Explanatory Notes to the Act, the concept of ownership has been broadened for the purpose of enhancing home owner protection. It should extend to a person who has possession of the land and who is entitled to receive site rent for sites within the park or would be entitled to receive site rent if it were to let sites to home owners for rent under a site agreement, such as Scenic Rim.
  5. [16]
    Further Mr Iveson says the park is a residential park under the Act. Scenic Rim’s predecessor, Boonah Shire Council, in 1990, entered into a written agreement with him giving him permission to build his cabin on the site and allowing him the use of common areas and communal facilities at the caravan park.
  6. [17]
    Further, Boonah Shire Council granted approval for construction of the cabin on the site. Over some 18 years there was no objection raised regarding the structure or his occupancy. That conduct suggested Scenic Rim and its predecessor Boonah Shire Council had agreed to allow Mr Iveson to position his cabin on a park site.
  7. [18]
    Finally, he says the issue about whether or not the cabin was a manufactured home is irrelevant for the purpose of ascertaining whether the park was a residential park.
  8. [19]
    Mr Iveson could not remove his cabin from site 28 by the termination date set by Scenic Rim, 30 June 2018, and it has now been destroyed in the course of redevelopment works being undertaken at Lake Moogerah. He wants compensation. He says the Tribunal has jurisdiction in the matter because this is a residential park dispute as provided for by the Act.

Is the land a residential park?

  1. [20]
    By s 117 of the Act, the Tribunal has jurisdiction to make orders to resolve a residential park dispute. By s 14A, a residential park dispute includes a dispute between a park owner and a home owner about rights under a site agreement. By s 11(1), a park owner is a person who owns a residential park. By s 12, a residential park is an area of land that includes sites, common areas and facilities for the personal comfort, convenience or enjoyment of persons residing in manufactured homes positioned on sites.
  2. [21]
    The first question, a primary question it seems to me in the matter at hand, must be, therefore: is site 28 land in a residential park? If it is not, then the dispute between the parties is not a residential park dispute.
  3. [22]
    Mr Iveson says site 28 is to be found on Lot 226 and that land includes the area comprising the caravan park.[3] From outset I observe that this proposition is most evidently wrong.
  4. [23]
    Mr Iveson’s site 28 is on freehold land bearing the real property description Lot 226 on registered plan 215404 (‘Lot 226’). From May 2002 it has been owned[4] by Queensland Bulk Water Supply Authority which trades as SEQ Water. Before that it was owned by Sunwater.
  5. [24]
    Lake Moogerah Caravan Park is an enterprise conducted on adjacent land more particularly described as Lot 233 on Crown Plan CC 3204 (‘Lot 233’). It is a reserve and the trustee of the reserve is presently Scenic Rim Regional Council. Before that it was Boonah Shire Council. Scenic Rim runs the caravan park. SEQ water has no involvement in that business.
  6. [25]
    In 1987, by a document entitled Agreement to Occupy,[5] (‘the first licence agreement’) Boonah Shire Council was granted a flood reserve licence over Lot 226 for 28 years commencing 1 January 1987. When that expired on 31 December 2014, Scenic Rim Council (the successor to Boonah Shire Council) was granted a further Flood Margin Land Licence (‘the second licence agreement’) for 5 years commencing 1 January 2015.
  7. [26]
    The first licence agreement granted a licence over Lot 226 conditional on the council remaining the lessee of the adjoining caravan park land (Lot 233).[6] The council agreed not to sublet any part of Lot 226 without the prior consent of the licensor.[7] The first licence agreement provided Lot 226 could be used for:

camping and recreation purposes and for no other purpose whatsoever without the consent of the licensor first had and obtained.[8]

  1. [27]
    By the second licence agreement the permitted use was for:

… recreational activities of a commercial nature consistent with the lawful use of the adjoining land by the licensee including use as barbecue and picnic areas and car parking and short-term (casual) camping by the licensee’s customers or invitees.[9]

  1. [28]
    Clearly the land was never licensed for use as a residential park. The only activities permitted under the licences were extremely limited activities associated with camping. Those activities are entirely inconsistent with long-term occupation of manufactured homes as a place of residence as intended by the Act.
  2. [29]
    There are no facilities for the personal comfort, convenience or enjoyment of persons to be found on Lot 226. It is not clear what the “facilities” referred to in s 12(c) are.  At the very least one should expect water, power and sewerage. But even these are not present. Any and all such and all other “facilities” are only available on and provided for Lot 233.
  3. [30]
    There is a block of amenities apparently sited partially on Lot 226 and partially on Lot 233,[10] but those amenities are provided for the use of people at the caravan park on Lot 233. The physical intrusion onto Lot 226 seems to have been an oversight on the part of Boonah Shire Council.[11] All other amenity blocks are wholly within Lot 233.
  4. [31]
    Mr Iveson says the letter from Boonah Shire Council dated 23 July 1990[12] is a site agreement describing the arrangements in place to allow him to position his cabin on site 28.[13] He says he was allowed to use the bathroom and toilet amenities ‘at the Park’ because he wasn’t allowed to have a toilet or bathing facilities in the cabin.[14]
  5. [32]
    Section 13 of the Act provides a site is land that is available for rent under a site agreement and s 14 provides:

A site agreement is an agreement between a park owner and a home owner that—

  1. (a)
    provides for—
  1. (i)
    the rental by the home owner of particular land in a residential park…
  1. [33]
    The letter does not go as far as Mr Iveson’s claims. It appears generic in content and context, the only reference in it is to caravans not cabins, and it says nothing about the siting of either a caravan or a cabin on any particular site and importantly there is no reference to a site on Lot 226. Rent is mentioned but only to say ‘fees and charges for casually occupied permanently located caravans for the 1990/1991 financial year were set at $11.50 per week per site.’
  2. [34]
    I conclude the letter is not a site agreement permitting Mr Iveson to site a manufactured home on land within a residential park as required by the Act. Site 28, where Mr Iveson had his cabin, has never been land in a residential park.

Is Scenic Rim a park owner?

  1. [35]
    Given the conclusion above, the matter at hand cannot be a residential park dispute under the Act. For the sake of completeness however, and in case I am wrong on that point, I consider other issues raised in the matter by the parties.
  2. [36]
    If site 28 on Lot 226 was land in a residential park, is Scenic Rim a park owner within the meaning of that expression in the Act?
  3. [37]
    By s 11(1), park owner is defined as a person who owns a residential park. The word owner is not defined in the Act. The repealed Mobile Homes Act 1989 (Qld) provided by s 3:

“owner” means, in relation to a site, the person who is the registered proprietor or registered mortgagee in possession of an estate in fee simple in the site.

  1. [38]
    That definition was omitted from the Act. There is no explanation offered for that change in either the Explanatory Notes to the Manufactured Homes (Residential Parks) Bill 2003 (Qld) or in the Minister’s speech to the Legislative Assembly introducing the Bill. The Explanatory Notes say:

The Mobile Homes Act 1989 was introduced to provide security of tenure for people owning mobile homes and renting sites in Residential Parks…

… Home owners are generally on low and/or fixed income. They have invested substantial amounts of money in purchasing homes, often for retirement purposes, and need security of tenure for the siting of the home in a residential park at a rent level commensurate with their capacity to pay… On the other hand, park owners have invested significant resources in both time and money in acquiring the land and developing their businesses…

Essentially, the Bill retains all of the existing rights and responsibilities of both parties and introduces new provisions to enhance home owner protection…[15]

  1. [39]
    What results from use of the term owner rather than registered proprietor however is a potentially expanded category of possible park owners.
  2. [40]
    The dictionary[16] definition of the term owner is someone who owns: a proprietor. Proprietor is defined as the owner of a business establishment, a hotel, newspaper, etc; someone who has the exclusive right or title to something. In other words, an owner, as of property.
  3. [41]
    Scenic Rim says the ordinary meaning of the word owner should be applied, which in this case means SEQ Water. SEQ Water is the registered proprietor of Lot 226 and indeed claims ‘ownership’ of Lot 266 in the second licence agreement.[17]
  4. [42]
    Mr Iveson submits that applying the ordinary meaning of the word owner leads to an unreasonable result. It would mean Scenic Rim, as a licensee, is able to circumvent the operation of the Act merely because it is not the registered proprietor of the park land.
  5. [43]
    I do not accept that that necessarily leads to an unreasonable result. It does not take into account circumstances, such as in the matter at hand, where a park owner holds only a limited interest in the land, and as such cannot provide the security of tenure the Act strives to ensure for home owners.[18]
  6. [44]
    Mr Iveson’s contention that ownership of the land should extend to include Scenic Rim’s interest in Lot 226 as a mere contractual licensee cannot be sustained.
  7. [45]
    The current licence expires on 31 December 2019. What then if it is not renewed?
  8. [46]
    A licence grants no right to exclusive possession of land.[19] It cannot be registered on title and does not vest a licensee with any interest in the land. Accordingly, the licensor might grant a registrable interest conflicting with the contractual rights of the licensee. A registered interest holds indefeasible title and can ignore any other interest save other registered interests regardless of notice, actual or constructive.[20] A manufactured home owner claiming rights through a mere licensee must surely fare no better than the licensee would against an intervening inconsistent registered interest holder.
  9. [47]
    Given the inferior right held by a licensee, how are park rules and entitlements such as the right of a home owner to quiet enjoyment of the home owner’s site to be enforced against either the licensor, or others granted rights of entry by the licensor, to the licence area?
  10. [48]
    As set out above the first licence agreement granted a licence over Lot 226 for:

camping and recreation purposes and for no other purpose whatsoever without the consent of the licensor first had and obtained.

  1. [49]
    Also as set out above the second licence agreement permitted a use of:

… recreational activities of a commercial nature consistent with the lawful use of the adjoining land by the licensee including use as barbecue and picnic areas and car parking and short-term (casual) camping by the licensee’s customers or invitees.

  1. [50]
    Neither licence permitted any form of casual or permanent occupation of Lot 226, whether by way of site agreement under the Act or otherwise. A grant of occupation over Lot 226, casual or permanent, breaches the licence agreement and would, one would think, entitle the licensor to terminate the licence.
  2. [51]
    I conclude Scenic Rim’s interest as a mere licensee does not qualify Scenic Rim to be considered a park owner within the meaning of the term as used in the Act.

Is SEQ Water a park owner?

  1. [52]
    I note Mr Iveson suggests alternatively SEQ Water could be a park owner with respect to Lot 226 because SEQ Water implicitly agreed to allow Mr Iveson to position his cabin on site 28:

by authorising the Council to manage this type of arrangement under the licence agreement, and permitting the Council and the applicant to use the land and otherwise conduct themselves as if there was a site agreement in place for approximately 18 years.[21]

  1. [53]
    I am mindful that the matter before me is not a determination on the merits following a hearing, and am also mindful of the requirement to take a cautious approach to ensure the interests of justice are met.[22] However, Mr Iveson’s suggestion is really nothing more than conjecture. He has had the opportunity of filing evidence but has led none in support of this proposition. The limited evidence to hand rather suggests Mr Iveson was allowed to site his cabin on site 28 on Lot 226 through geographical error on the part of Boonah Shire Council as to the caravan park boundaries.
  2. [54]
    The mistake only came to light following a survey of the land undertaken in about November 2008 by Scenic Rim following the transition from Boonah Shire Council to Scenic Rim.
  3. [55]
    In a newsletter published by Lake Moogerah Caravan Park in November 2008 it was noted:

The Reserve is on Lot 233 CC3204, owned by the Department of Natural resources and Water (NRW), with Council as the Trustee.

A Master Plan for the Reserve will determine the planning, building processes, infrastructure needs, maintenance and operational requirements of the Reserve over the next 5, 10 and even 20 years. Whilst the full survey work will take a month or more, the early boundary checks have brought to notice that certain cabins and sites are situated on land owned by SEQ Water. The cabins and sites concerned are listed below:

Zone 1 Sites … 28…

Other concerns about the reserve have been raised by NRW including the construction of exclusive private use structures, the sewerage dam and kitchen sinks discharging to the ground.[23]

  1. [56]
    That was an error on the part of the council, but not SEQ Water. There is no evidence that SEQ Water played any role in that. There is no evidence SEQ Water did anything other than permit the successive councils to use Lot 226 for camping purposes only.
  2. [57]
    In Haggety v Wood (No.2)[24] Jackson J said this when dealing with an application under r 293 of the UCPR for summary judgment for the defendant:

…an application under r 293 UCPR presupposes that the defendant has filed a defence in response to a properly prepared and filed claim and statement of claim, so the court should not be too wary of treating a plaintiff as having nailed their colours to the mast…

[82] Whether a particular case fits into this category calls for the exercise of a discretionary judgment. Sometimes a pleader’s skills may be the problem … However, in other cases, the difficulty will lie in the absence of a factual stratum to make a necessary allegation, not in the failure to allege it in the pleading.[25]

  1. [58]
    SEQ Water made clear in its material filed in support of the application to strike out Mr Iveson’s claim that it contended it was not a party to the arrangements between Mr Iveson and Scenic Rim regarding the positioning of his cabin on site 28.[26] Mr Iveson filed affidavit evidence in the Tribunal in support of his opposition to the strike out application. He offered no evidence on this contention. As Jackson J put it, he should have nailed his colours to the mast. He had the opportunity, but did not take it.
  2. [59]
    I conclude that there is no factual stratum to support Mr Iveson’s allegation that SEQ Water implicitly agreed to allow him to position his cabin on site 28 which thereby made SEQ water a park owner.

Is Mr Iveson a home owner?

  1. [60]
    By s 8 of the Act:
  1. (1)
    Each of the following is a home owner—
  1. (a)
    a person who owns a manufactured home that is positioned on a site in a residential park under a site agreement….
  1. (2)
    A person mentioned in subsection (1)(a) is a home owner whether—
  1. (a)
    the person occupies the home as the person’s principal place of residence; or
  1. (b)
    a tenant of the person occupies the home.
  1. [61]
    Mr Iveson has never occupied the cabin as his principal place of residence, nor has it ever been occupied by a tenant.
  2. [62]
    His evidence is that site 28 was used on a regular basis. From the mid-1990s until approximately 2010 he stayed there with his wife and children almost every second weekend and friends would use it from time to time. During school holidays the family would stay for weeks at a time. In later years his adult children and grandchildren continued to use site 28 and would stay there on weekends and during school holidays. This continued through to the end of June 2018. He says nothing, however, about its use from 2010 through to March 2018 when he was given notice to vacate by end June 2018. One can assume his weekend use declined from 2010, if it continued at all, and from 2010 it was mostly used by his children and grandchildren only as a holiday retreat.
  3. [63]
    Mr Iveson says he can be a home owner even if he never occupies the home as his principal place of residence. He relies on Newman, L. v Lake Tinaroo Holiday Park (Management) Pty Ltd[27] for that proposition. There, a person had occupied a manufactured home as her principal place of residence, and when she left the home to care for a sick mother she decided against renting out the home to a tenant, but left it vacant. The Tribunal still characterised her as a home owner.
  4. [64]
    I note that matter concerned an application by the park owner to terminate the home owner’s site agreement because of non-residence. The Tribunal said:

I also find that Ms Newman is a “home owner” in terms of section 8(1)(a) of the Act. I do not consider that section 8(2) restricts the meaning of “home owner” in section 8(1)(a) to a person who occupies a home as the person’s principal place of residence or to a person who has a tenant in the person’s home. Section 8(2) provides that a person can be a “home owner” even though a tenant of the person is occupying the home. In other words a person who is not occupying the home as the person’s principal place of residence because of the tenancy is nevertheless to be characterised as a “home owner”. In my view the meaning of section 8(2) is that a person who is not occupying the home as the person’s principal place of residence, but instead of obtaining a tenant chooses to leave the home unoccupied, must likewise be characterized as a “home owner”.[28]

  1. [65]
    I conclude that it is not fatal to Mr Iveson’s claim to be a home owner that he has never occupied the cabin as his principal place of residence. I note merely in passing however that he appears never to have resided in it but only used it intermittently as holiday accommodation, and he has never rented it out as a place of residence, and potentially that might have left him open to an application for termination pursuant to s 38(1)(d) of the Act. That is no longer a consideration of course.

Is the cabin a manufactured home?

  1. [66]
    By s 10(1) of the Act a manufactured home is defined as a structure, other than a caravan or tent that has the character of a dwelling house and is designed to be able to be moved from one position to another and is not permanently attached to land.
  2. [67]
    Scenic Rim submits the cabin was not designed to be moved and is therefore not a manufactured home. The cabin was permanently attached to the ground by stumps, and some of the stumps were concreted in. The cabin did not have the character of a dwelling house. It had no shower or toilet. It had a small kitchenette and two rooms divided off as bedrooms.
  3. [68]
    Mr Iveson claims that he originally applied for building approval for the cabin and described it as a Class 10 demountable ski cabin intended to be a self-contained dwelling unit.[29] The building application in fact says it was for a class 10 demountable ski cabin intended for non-permanent occupancy. It was not self-contained as that expression is generally to be understood however because he was not allowed to install a bathroom or toilet.[30] The dictionary meaning of self-contained is:

(of a flat or house) having its own kitchen, bathroom, and lavatory; not necessitating sharing[31]

  1. [69]
    Mr Iveson had to go elsewhere for those amenities, to the caravan park.
  2. [70]
    By the Act, a manufactured home must have the character of a dwelling house. There is little assistance to be derived from the dictionary meaning of dwelling house which is:

a house occupied, or intended to be occupied, as a residence[32]

  1. [71]
    Residence is defined as:[33]

the place, especially the house, in which one resides

  1. [72]
    Reside means:[34]

to dwell permanently or for a considerable time

  1. [73]
    Character is defined as:[35]

the aggregate of qualities that distinguishes one person or thing from others…

  1. [74]
    What are the qualities that distinguish a dwelling house from say a garage or garden shed? Surely they are at minimum such things as food preparation and cooking facilities, sleeping arrangements, bathing facilities and a toilet. Essentially, a self-contained place of residence.
  2. [75]
    In Cramp & Beecroft v Haraba Pty Ltd t/a Gateway Village Resort,[36] it appears to have been accepted without demur by either the respondent or the Tribunal that a manufactured home is intended to be a self-contained place of residence:

… the tennis court and the swimming pool are generally for the use of tourists and the home owners do not utilise these facilities. Facilities such as showers and toilets, laundry and kitchen are solely for the benefit of tourists as manufactured homes are equipped with these facilities.

  1. [76]
    It is not disputed that Mr Iveson’s cabin had no bathing facilities or a toilet. It is disputed that he had no food preparation and cooking facilities. He had sleeping facilities. The absence of bathing facilities and a toilet however means, I conclude, that the cabin did not have the character of a dwelling house as required under
    s 10(1)(a) of the Act.
  2. [77]
    It is unnecessary to consider the issue of whether or not the structure was also permanently attached to land. It is not a manufactured home as provided for by s 10 of the Act.

Strike out application

  1. [78]
    Lot 226 was never a residential park. The respondents were not park owners with respect to site 28 on Lot 226. The cabin was not a manufactured home within the meaning of that term in the Act. The dispute Mr Iveson raises with the respondents is therefore not a residential park dispute under the Act. If Mr Iveson has a claim, it is a claim to be pursued elsewhere, but not pursuant to the provisions of the Act.
  2. [79]
    By s 47(2) of the QCAT Act, if the Tribunal considers, amongst other things, a proceeding to be misconceived, lacking in substance or otherwise an abuse of process, the Tribunal may order the proceeding to be dismissed or struck out. That is the case here. The Tribunal has no jurisdiction in this matter. The proceeding must be dismissed.
  3. [80]
    The parties should be given an opportunity to make submissions as to costs.

Footnotes

[1]  The former term site agreement dispute used in the Act prior to 31 October 2019 was changed to residential park dispute by amendment taking effect on that date. Mr Iveson filed his application on 16 October 2018. The changes to the Act by the Housing Legislation (Building Better Futures) Amendment Bill 2017 (Qld) are not of significance as regards the substantive dispute.

[2]D’Arro v Queensland Building and Construction Commission [2017] QCA 90.

[3]  Exhibit 10, [3]-[4].

[4]  Exhibit 9, page 13 – title search, registered proprietor.

[5]  Exhibit 1, page 9.

[6]  Ibid page 11, [11].

[7]  Ibid.

[8]  Ibid page 9, [1].

[9]  Exhibit 1, page 41.

[10]  Exhibit 9, [13], and page 15.

[11]  Ibid page 11.

[12]  Exhibit 11, annexure M2.

[13]  Ibid [6].

[14]  Ibid [2].

[15]  Explanatory Notes, Manufactured Homes (Residential Parks) Bill 2003 (Qld), 1.

[16]  Macquarie Online Dictionary (online at 25 June 2019) ‘owner’.

[17]  Exhibit 1, page 20, Flood Margin Land Licence Agreement – ‘Background. The licensor owns the property on which the licensed area is situated.’

[18]  Explanatory Notes, Manufactured Homes (Residential Parks) Bill 2003 (Qld) 1; see also the Minister’s speech to the legislative Assembly introducing the Bill: Queensland, Parliamentary Debates, Legislative Assembly, 19 August 2003, 2934.

[19]Radich v Smith [1959] HCA 45.

[20]  Sections 184(1), (2), Land Title Act 1994 (Qld).

[21]  Exhibit 10, [63(b)].

[22]Dey v Victorian Railways Commissioners (1949) 78 CLR 63; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

[23]  Exhibit 9, page 11.

[24]  [2015] QSC 244.

[25]  Ibid [81]-[82].

[26]  Exhibit 7, [6].

[27]  [2006] QCCTMH 4.

[28]  Ibid [31].

[29]  Exhibit 11, [3a].

[30]  Ibid [2].

[31]  Macquarie Online Dictionary (online at 25 June 2019) ‘self-contained’.

[32]  Ibid ‘dwelling house’.

[33]  Ibid ‘residence’.

[34]  Ibid  ‘reside’.

[35]  Ibid  ‘character’.

[36]  [2008] QCCTMH 20.

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Editorial Notes

  • Published Case Name:

    Michael Ronald Iveson v Scenic Rim Regional Council & Anor

  • Shortened Case Name:

    Iveson v Scenic Rim Regional Council

  • MNC:

    [2019] QCAT 197

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    26 Jun 2019

Appeal Status

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