Tony Baldwin, Partner
Olivia Williamson, Solicitor

The Planning and Environment Court recently considered what makes a dwelling "relocatable". This issue was examined in the context of land which had been approved for use as a relocatable home park, and the Court had to consider whether the dwelling units in the park fell within the relevant planning scheme definition of "relocatable home".

This case, Walter Elliott Holdings Pty Ltd v Logan City Council [2009], was decided largely on its facts, although it is helpful to consider the Court's approach to interpreting these definitions.

The applicant, Walter Elliott Holdings Pty Ltd, owned land at Waterford which was approved for use as a relocatable home park for 246 relocatable homes. The respondent, Logan City Council, argued that the dwellings erected and currently under construction on the land failed to meet the relevant criteria for relocatable homes on the basis that their design and construction were much too permanent, and as such did not satisfy the terms of the approval.

The approval for the use was originally granted by the Gold Coast City Council, with Logan City Council inheriting responsibility for the land as a result of local government boundary realignments in 2008. Accordingly, the relevant planning scheme definitions came from the Gold Coast City Planning Scheme, which provided the following definitions:

"Relocatable Home: any dwelling unit that is designed and constructed to be moved in one or more prefabricated sections from one position to another and is not permanently attached to a site other than for the provision of services. The term does not include a caravan."

"Relocatable Home Park: Any premises used, or intended to be used, for the parking or location of relocatable homes for the purpose of providing residential accommodation. The term includes ancillary facilities such as amenities buildings, manager's office and residence, a kiosk and recreation facilities where maintained for the use of residents of the relocatable home park. It does not include a Caravan Park."

His Honour Judge Wilson SC observed that having regard to these definitions, a "relocatable home" is something more readily moveable than a normal dwelling house, but also something which is more permanently connected with its site than a caravan. Each party introduced evidence from expert witnesses as to the prefabricated components and the complexity involved in removing the buildings from their present sites. The Court acknowledged that the definition did not specify a particular standard of design and construction, or a particular method of movement. The definition also does not state which features must be found in a unit to assist its movement or any standard to be achieved in that process. Rather, it was considered to simply require design and construction in a way which permits movement in one or more prefabricated sections, as opposed to design and construction of an entire, and fixed and immovable, structure. As a result, it was sufficient for the evidence to establish that the units have the capability of being moved, and views about how the units could be better designed and constructed to make moving easier did not need to be considered.

As the evidence revealed that the designs of the dwellings were simple, repetitive and standardised from parts or sections, the Court was persuaded that the dwellings qualified as being "prefabricated". The units also incorporated a steel chassis, the sole purpose of which was to make them movable. In reaching this conclusion, it was noted that the planning scheme's definition of relocatable home did not place any focus on the place of original manufacture or assembly, so that construction away from the premises was not necessarily required. Further, arguments about the difficulty of establishing and reconnecting waste pipes and other factors associated with relocating a home on a new site were acknowledged as adding complexity to moving the dwellings, but were dismissed in light of evidence that it could be successfully achieved.

In respect of Council's submissions about whether the use of more permanent structures in the units, such as brick walls placed between the garages of the duplex units, excluded the dwellings from the definition, the Court concluded that nothing in the definition required that the buildings be comprised only of independent prefabricated sections. The use of more permanent structures in the units was therefore not held to be prohibited by, or contradictory to, the definition.

The conclusions reached by the Court in this case meant that the applicant was entitled to a declaration that the houses located upon its premises were relocatable homes within the definition.

It is important to appreciate that while this judgment provides some general guidance as to the nature of relocatable dwellings, the case focused on the elements for such homes by referring to the planning scheme definition. Obviously different planning schemes use different definitions, so the outcome of the decision can't be applied universally. Virtually all structures can be detached and moved, at varying levels of complexity and cost. However, this decision suggests that the term "relocatable home" requires design and construction in a way which allows movement. A relocatable home cannot be fairly described as permanent other than for the provision of services, and against those which do not have these inherent characteristics.

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