Background
Gordon Kelly appealed two development control orders issued by Bega Valley Shire Council concerning a “tiny home on wheels” on rural land at Coolagolite. The site already contained an approved dual occupancy, but the tiny home was separately occupied as residential accommodation without development consent or a Local Government Act approval.
The Council ordered the owners to stop using the structure as a residence and to remove or demolish it, along with associated plumbing and unapproved works. Kelly argued that the structure was a caravan—a moveable dwelling—capable of registration as a trailer, and that its installation and use were governed exclusively by the Local Government Act regime.
The Court’s Holding
Commissioner Espinosa found that the tiny home was a caravan and therefore a moveable dwelling, not a “building” under the Environmental Planning and Assessment Act 1979 (NSW). Its weight, dimensions, trailer capacity and ability to be disconnected from services supported the finding that it was portable and capable of registration. Because the statutory power to order demolition applied to a building, the demolition order was invalid and the appeal against it was upheld.
But the Court dismissed the appeal against the stop-use order. A caravan can still be “premises,” and using the land and caravan for residential accommodation is development under the planning legislation. An exemption from a Local Government Act approval for installing a caravan, if available, does not displace the separate requirement for development consent for residential use of the land. No such consent had been sought or obtained.
Key Takeaways
- A tiny home on wheels may be a caravan rather than a building if it is portable and capable of registration as a trailer.
- That classification can prevent a demolition order that is statutorily confined to buildings.
- Caravan status does not remove the need for planning consent to use land for residential accommodation.
Why It Matters
The decision draws a clear distinction between regulating a tiny home’s physical status and regulating the use of land on which it sits. A council may be unable to use a building-demolition power against a qualifying caravan, while still being able to require residential occupation to stop where planning consent is absent.
The Court also reaffirmed that Local Government Act approvals and exemptions operate alongside, rather than instead of, the Environmental Planning and Assessment Act planning regime.