Fate of crisis accommodation in Bega Valley no clearer after legal advice

Bega Valley Shire Council has released legal advice it received about ”same day granny flats” that not-for-profit Social Justice Advocates of the Sapphire Coast (SJASC) has been using as crisis accommodation for vulnerable people.

Canberra-based firm BAL Lawyers (BAL) provided the advice to the council in a letter dated 5 October, 2023. BAL’s website says it has “extensive experience acting for NSW local government councils”.

The council said on 27 September that it had published the legal advice on its website after the NSW Civil and Administrative Tribunal (NCAT) recently determined it should be released to SJASC under the Government Information Public Access Act.

The advice concluded that same day granny flats were neither caravans nor moveable dwellings.

SJASC installed three units at 125 Gipps Street, Bega. The land is owned and occupied by Bega Uniting Church. SJASC didn’t seek development consent before installing the units.

In or about December 2022, SJASC submitted a development application for the units’ future use as crisis accommodation. The two-bedroom units have no laundry but have a front deck/verandah area. The application proposed that the moveable dwellings be in place for five years, pending further, more permanent, social housing outcomes for the site.

On 31 July, 2023, Pickup Legal gave legal advice to SJASC that the units were ”moveable dwellings” under the Local Government Regulation 2021 either as a ”caravan” or as an ”other portable device”. On 19 September, 2023, SJASC sent an email to the council with registration notices by Transport for NSW as evidence that the units were caravans.

BAL gave several reasons why the units were not caravans, including that they are separate to, and aren’t part of, the purpose-built trailers on which they are transported.

It said the units were installed on footings, and were not on wheels. The units have been connected to water, electricity and wastewater services at the site. Additionally, they have been altered by being connected to a deck and a single large roofing sheet that covers the entire unit footprint, including the deck area.

BAL said the units were too wide to comply with the definition of a trailer or vehicle and were not fitted with tyres.

It added that a caravan that did not have wheels and typically took two to three days to install didn’t meet the “ordinary and natural” meaning of a caravan.

BAL gave similar reasons why the units didn’t meet the legal definition of a moveable dwelling, citing the 2023 case of Ogilvie v Rovest Holdings Pty Ltd. BAL said the deck and roof would have to be disconnected before the units were moved, they were connected to electricity, water and wastewater infrastructure, and the Same Day Granny Flat website said the units typically took two to three people two days to install.

Furthermore, SJASC’s stated intention was for the units to be there for five years and they were bigger than readily and frequently moved things such as caravans, vans or tents.

BAL said there was a degree of subjectivity, but, “on balance, we prefer the view that the units at the site are not moveable dwellings given the similar characteristics the units have to those considered in Ogilvie”.

“In conclusion, based upon our instructions and understanding of the units, we are of the view that the SJASC units do not meet the definition of caravan or moveable dwelling.”

In a statement, council CEO Anthony McMahon said current legislation surrounding this type of structure in NSW wasn’t clear and the NSW Government has begun a review to hopefully provide greater clarity.

“However, this is taking longer than all stakeholders would ideally like. In the meantime, we rely on court precedence, which essentially fills the legislation gaps,” Mr McMahon said.

“Given the previous resolution of council, which essentially had the result of deferring dealing with the ‘same day granny flats’ currently located at Gipps Street, Bega, for nine months and that the NSW Government has not finalised its review, staff will need to prepare a further report to council in coming months.”

Mick Brosnan, convener of SJASC’s Housing and Homeless group, said the NCAT directive ordering the release of BAL’s legal advice was the third decision against the council’s staff regarding its disclosure.

“Council staff insist there is no pathway, and cite safety issues without evidence or examples, however, other councils and even the NSW Housing Minister have said there are ways forward,” Mr Brosnan said.

“Prevarication on the basis of this legal advice has simply stalled our council staff from doing something for our homeless, which is what the ratepayers are demanding.

“A shameful train of events that again has been disguised as something else by the council CEO.”