What makes a moveable dwelling? Court finds prefab units are buildings

In a recent case decided by the Land and Environment Court of NSW, the Court has found that prefabricated ‘modular units’ were properly classified as ‘buildings’ rather than ‘moveable dwellings.’ The decision provides guidance to those assessing the permanency of a dwelling which is said to be movable under a s.68 application.

Background facts and argument 

In Ogilvie v Rovest Holdings Pty Ltd [2023] NSWLEC 17, Blaney Shire Council approved the installation of prefabricated ‘modular units’ pursuant to an application under s.68 of the Local Government Act 1993 (LG Act) for the installation of ‘moveable dwellings’ which formed part of a development application (and subsequent consent) for a motel. The modular units were where the accommodation was to be provided. The modules were 14.4 metres long x 3.4 metres wide, were to be installed on piers, be attached to a verandah, and be connected to utility services. An example of a module being lifted into place is depicted in the following image, which was used in the Court’s judgment.

Mr Ogilvie challenged the validity of the s.68 approval on a number of grounds. The primary ground was that the modular units were not moveable dwellings because they were structures which were not ‘portable devices’ (in the sense used in paragraph (a) of the definition of ‘moveable dwelling’ in the LG Act). Mr Ogilvie’s argued that the modular units were in fact a ‘building’ within the meaning of Environmental Planning and Assessment Act 1979 (EPA Act) and that, therefore, the Council had not properly assessed and approved the units in accordance with that classification. 

The EPA Act definition of ‘building’ includes any structure, but expressly excludes a moveable dwelling within the meaning of the LG Act. The LG Act defines a moveable dwelling as (emphasis added):

(a)   any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or

(b)  a manufactured home, or
any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition.

The factors that Mr Ogilvie relied upon in contending that the modular units were buildings included that:

• They were to be permanently connected to utility services and a verandah and were not able to be readily or frequently moved; 
• They were intended to remain on the land and used in perpetuity as part of the motel, and
• They were not of modest dimensions. 

The proponent, Rovest Holdings, maintained that their modular units fell within the meaning of “other portable device (whether on wheels or not)” in subclause (a) of the moveable dwelling definition. These words, it was submitted, had very general import and should not be constrained by the use of the earlier words used in the subclause: tent, caravan or van. In doing so, Rovest Holdings relied upon evidence from a licenced building as the method of installation and removal of the units. The removal process was said to be able to be completed in no more than 1 day.

There was no dispute that the modular units were not manufactured homes or that they fell within the scope of anything prescribed by the regulations for the purpose of the moveable dwelling definition.

The outcome

The Court analysed a number of earlier judgments which had considered the moveable dwelling definition. From that analysis, the Court concluded that there were a number of indicators pointing towards the permanence (and hence lack of portability) of the structures in this case. These included:

1. The nature of the attachments to the site – The units were to be connected to a verandah and this was to form part of the module. The modules were also to be connected to electricity, stormwater, potable water, and sewerage infrastructure.
   
2. Portability of design / the necessity for disassembly – The future transportation of the units first required the disassembly by removal of the verandah structure and disconnection of the utility services. There was no suggestion that the modules were designed to be readily and frequently moved from place to place.
   
3. The size of the modules – The size of the units compared to tents, caravans and vans; items which are all referred to in subclause (a) of the moveable dwelling definition.
   
4. Intention – The modular units were expressly not intended to be readily and frequently moved in Rovest Holding’s application.  

Taking these factors together, the Court concluded that the modular units did not fall within the definition of moveable dwelling such that there was no valid basis upon which the Council could have approved the installation via s.68 of the LG Act. The necessary consequence of this was that the units were buildings as defined by the EPA Act, and therefore, required assessment and approval under that legislation. 

The Court did not determine what was the consequences of its findings. A further short hearing is to be held at a later date on this issue and the question of costs.  

Conclusion

Although the ultimate consequence of the Court’s findings is still to be determined, the judgment illustrates the importance for a council to carefully consider the substance of a structure that is proposed to be installed under a s.68 application. The Court’s decision also provides guidance on the factors to take into account when assessing whether a proposed moveable dwelling is really a building that requires assessment and approval under the EPA Act.  

If you wish to seek advice or require further information on the above case note, please contact our Planning, Environment and Local Government Team.