Crown Land not an excuse to evade rights of home owners
By Eloise Parrab, Land Lease Communities Officer at the Tenants' Union of NSW
In NSW more than half of the land in the state is Crown Land. It is owned by the NSW State Government. In NSW there are many residential land lease communities which are located on Crown Land. These communities are usually managed by the operator of the land lease community as Crown Land manager under a lease, license or permit. Crown Land managers are mostly local councils or non council trustees.
Crown Land was an issue of contention in a recent case at the NSW Civil and Administrative Tribunal (NCAT). Richard lives in a community located on Crown Land. VERTO, his local Tenants Advice and Advocacy Service assisted Richard to urgently apply to the Tribunal after the operator attempted to lock him out of the community. Richard moved into the community in November 2019. He was given verbal permission to rent one of the vacant sites within the community and he set up his bus and annex on the site. There was no written site agreement in place.
When a new operator took over the community problems started for Richard. A dispute arose over whether he was a permanent resident at the community. The home owner sought orders at the Tribunal that his verbal agreement is a site agreement to which the Residential (Land Lease) Communities Act 2013 (RLLC Act) applies and the operator must enter into a written agreement with him. In response the operator argued that the community was located on Crown Land and under the lease for the land with the Reserve Trust the operator was not allowed to have permanent residents in the community.
Under the old Residential Parks Act 1998 there were some limits on issuing of site agreements to residents living in communities located on Crown Land. When the old Act was repealed and the new RLLC Act commenced on 1 November 2015 any purported limitations on site agreements located on Crown Land ceased to have effect.
The community where the home owner lived in his bus met the definition of a community under the RLLC Act and the oral agreement between the parties met the definition of a site agreement under the RLLC Act. The Tribunal application was successful and the operator was ordered to enter into a written site agreement with the home owner Richard.
Unfortunately that was not the end of the dispute as the operator lodged an appeal of the decision. They argued that the approval to operate from the local Council only allowed them to have 4 long term casual sites in the community (to be occupied for holiday purposes only) and they were all currently occupied. In addition the lease for the land requires the operator to comply with the Crown Land Management Act 2016 and that legislation states no one can reside on Crown Land without approval and there are penalties for non compliance.
Legal Aid NSW assisted the home owner at the appeal and were successful in having the appeal dismissed. The Tribunal Appeal Panel agreed with the legal arguments put forward by Legal Aid. The operator’s obligations under the RLLC Act apply regardless of whether they have obtained the correct approval to operate from Council. Also, the fact that the operator may be in breach of their obligations of their lease for the Crown Land does not mean the oral site agreement with the home owner is void. The Appeal Panel correctly outlined section 127 of the RLLC Act provides a remedy for the operator if there is an issue with the site not having Council approval for permanent occupation. The operator can issue the home owner with a 90 day notice of termination and importantly the home owner is entitled to compensation if they were unaware the site was not a permanent site at the time they entered into the site agreement.
The decision of the Appeal Panel confirms that the operator cannot try to evade the operation of the RLLC Act by relying on non compliance with other legislative requirements. As this article went to print the Tenants’ Union is aware of two other cases that involve residents living on Crown Land where the operator of the community and trustees of the Crown Land are mistakenly of the view that they are not required to comply with operator responsibilities under the Residential (Land Lease) Communities Act 2013.
This article was published in Outasite magazine issue 9. Outasite is published once or twice annually. Outasite Lite email newsletter is sent several times a year – subscribe here. All past issues are available in the archive.