This week the Queensland Building and Development Dispute Resolution Committee (the Committee) established to hear the appeal against the enforcement notice issued by the Brisbane City Council (BCC) to the owners of the Tiny House on Wheels (THOW) “formed the view that the THOW does not constitute building works as defined under the Building Act and accordingly the Enforcement Notice issued by the Council should be set aside”.
What does this mean?
A little bit of history first.
Prior to installation, the THOW owners sought advice from BCC regarding the legitimacy of setting up a THOW in someone’s backyard. The advice received confirmed that living in a caravan in a backyard in Brisbane is legal provided that no public nuisance is caused and the occupant/s have appropriate access to toilet and refuse disposal facilities. The THOW was subsequently positioned at the rear of a long narrow lot with an existing dwelling in Red Hill, an inner-city suburb of Brisbane. Following a complaint from a neighbour, a council compliance officer came to inspect the THOW and determined that it would require a building permit for a Class 1A Habitable Structure (as defined in the Building Code). When the Enforcement Notice arrived from the Council, the lot owners and the THOW owners engaged ESC Consulting to lodge an appeal via the Building and Development Dispute Resolution Committee process. The grounds of appeal contended that the THOW was incorrectly classified as a Class 1A Habitable Structure because it is a road registered moveable dwelling, more specifically a ‘caravan’, in accordance with the definition under the Residential Tenancies and Rooming Accommodation Act 2008 and the Transport Operations (Road Use Management) Act 1995. The THOW should therefore not be regulated by the Building Act 1975 as it does not constitute building works.
The Committee considered all the relevant legislation including Council’s local laws but had to refer to case law in order to determine whether the THOW was a building or structure. The Committee admitted that the facts raised some difficult questions and concluded that the THOW was neither a building nor structure as there is no intention for it to become fixed to the site. The key factors included: the temporary installation of the THOW on concrete blocks for stability and levelling (i.e. the THOW was resting under its own weight); the demountable timber deck; the design for easy dismantling of the composting toilet and its drainage trench; the continued registration of the trailer and the ownership of the site and the THOW by different parties.
Where to from here?
The Committee’s decision represents the State Government’s legislative position regarding the classification of the THOW. The implication is that THOWs are not regulated by the State planning and building legislative framework and are treated like caravans. Individual councils however may have local ordinances which specifically restrict the practice of residing in a caravan on residential land.