BEFORE THE ENVIRONMENT COURT

I MUA I TE KOOTI TAIAO O AOTEAROA

IN THE MATTER

AND

BETWEEN

AND

Decision No. [2020] NZEnvC 6

of the Resource Management Act 1991

of an appeal against an abatement notice under s 325 of the Act

FADI ANTOUN

(ENV-2019-WLG-000073)

Appellant

HUTT CITY COUNCIL

Respondent

Court: Environment Judge B P Dwyer sitting alone under s 309 of the Act

Hearing: At Wellington on 29 October 2019

Appearances: P Milne for Appellant S F Quinn and Ms C Wills for Respondent

Date of Decision: 31 January 2020

Date of Issue: 31 January 2020

DECISION OF THE ENVIRONMENT COURT

A: Appeal upheld

B: No reservation of costs

REASONS

Introduction

[1] Fadi Antoun has filed in the Court:

• An appeal pursuant to s 325(2) Resource Management Act 1991

(RMA/the Act) against an abatement notice issued to him by Hutt City

Council (the Council) on 16 July 2019 (the abatement notice);

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• An application pursuant to s 325(38) for stay of the abatement notice.

The application for stay was granted by consent at a judicial conference on 27 August

2019. This decision relates solely to the appeal against the abatement notice itself.

[2] A copy of the abatement notice is appended to this decision. 1

[3] It will be seen that the abatement notice has the following features:

• It is addressed to Mr Antoun;

• It requires him to ... "Remove the two storey structure that has been built

without any Council Consents at the rear of the property from the

property";

• It applies to a property at 14 Molesworth Street, Taita, being Lot 1

DP22753 (the Property). Mr Antoun is the registered proprietor of the

property and resides there;

• It purports to be issued pursuant to s 322(1)(a) RMA;

• Mr Antoun was given until 26 July 2019 to comply with the notice;

• The conditions of the abatement notice require removal of a two storey

"structure" at the rear of the property and prohibit its replacement without

consent;

• The notice contended that the building under construction at the rear of

the property contravened Rules 4A 2.1.1 (a) (minimum net site area), 4A

2.1.1 (c) (recession plane requirements) and 4A 2.1.1 (e) (maximum site

coverage) of the Council's District Plan.

I will address the relevant contents of the abatement notice in due course.

[4] The abatement notice was the second such notice which the Council had

issued against Mr Antoun. The first notice was issued by the Council on 22 May 2019

(the first notice) and similarly addressed removal of the two-storey structure. The first

notice was formally cancelled by the Council on 16 July 2019 (apparently on the

grounds of an error contained within it) being the date of service of the abatement

notice which is subject to this appeal. In the normal course of events, that would

mean that the first notice was an irrelevance for the purpose of these proceedings,

however for reasons on which I will elaborate in due course, that is not the case in

this instance.

Appendix 1.

3

[5] The notice of appeal filed by Mr Antoun identified the following reasons for the

appeal:

We are appealing because we believe the tiny house is a vehicle, Not a building as

is the Hutt city council's opinion that it is. We need time to Submit a request for a

Determination under the building act 2004 as to weather [sic] it is a building or a

Vehicle.

[6] The notice of appeal sought "removal" (which I understood to mean

cancellation) of the abatement notice or time be allowed for a determination by MBIE

as to whether or not what Mr Antoun had referred to as a "tiny house" was a building

or a vehicle. For convenience I will use the expression tiny house throughout the rest

of this decision, although the status of the facility in question (specifically whether it

was a structure/building or a vehicle) lies at the heart of Mr Antoun's case in these

proceedings.

[7] In determining this appeal I will discuss four substantive issues:

• The tiny house issue generally;

• Is the tiny house a vehicle?

• Is the tiny house a structure as defined in RMA;

• The validity of the abatement notice.

Before addressing those issues I set out the background to these proceedings.

Background

[8] The property is situated in the General Residential Activity Area within the

Medium Density Overlay of the District Plan. Inspection of the property showed it to

be situated in a largely residential area. Its front boundary is on Molesworth Street,

residential properties adjoin either side boundary and St Michael's Primary School

adjoins the rear boundary.

[9] Council records2 established that the net site area of the property is 654 m2.

A two-storey dwelling house is situated in the approximate middle of the property with

a footprint in the order of 103.67 m2• An accessory building comprising a garage and

shed is situated in the rear yard behind the house and occupies a total area of 78.68

Rotherham Brief of Evidence, Attachment 11.

4

m2. Ms P R Rotherham (Team Leader Resource Consents at the Council) testified

that the potential net site area between the house and the rear fence was 245.6 m2.

The tiny house is established in one corner of this rear yard close to the boundary

fences between the property, the neighbouring residential property and school.

[1 O] Evidence as to the construction of the tiny house in the rear yard was given

by Mr Antoun and Mr J Voss, who also lives at the property but has no ownership

interest in it. Although there are discrepancies (in terms of dates) contained in the

statements of evidence of Messrs Antoun and Voss, the following passages set out

my understanding of how the tiny house came to be constructed in the rear yard.

[11] Mr Antoun testified that his house suffered damage requiring repairs following

the Kaikoura earthquake. He said that while the damage was being fixed it was

necessary to provide temporary facilities such as a bathroom, toilet, laundry, cooking,

etc. He deposed that: 3

6 Jono Voss, a friend, was given the opportunity to build a Tiny House (TH) on

wheels on my back section to allow him and others to have facilities to use while

renovation work on the main house is being undertaken by him.

7 He explained to me that, as a vehicle, a TH - placed temporarily (until work

renovations on the main house would have finished) on my back section with

no permanent attachments to service infrastructure - does not need either a

building consent (BC) or resource consent (RC) as it is not considered a building

but a chattel.

[12] Mr Voss testified that:4

5 I discussed with Fady [sic] that the idea of creating a temporary Tiny house on

wheels that would be used to provide bathroom, kitchen and laundry services

while the house ones were out of service, I would then tow the tiny house off

the site when the work on the house was complete. I researched the legal

aspects and looked at decisions such as determinations from the MBIE and

came to the conclusion that as a vehicle, the TH wasn't a building and therefore

was also exempt from the requirement for a building consent. I also understood

that it was not required to satisfy any planning rules as a vehicle is not a building

and is exempt.

Antoun Brief of Evidence at [6] and [7]. Voss Brief of Evidence at [5] - [7].

5

6 At no time prior to fabrication was the council ever contacted as a vehicle does

not require consent's [sic] I had no need to contact them.

7 I am the sole designer, fabricator and owner of this tiny house project. I take

sole responsibility for anything to do with it.

[13] It appears from the evidence of Messrs Antoun and Voss that construction

work on the tiny house commenced some time in January 2018. Based on Mr Voss's

opinion that the tiny house was not a building, no application was made to the Council

for either a building consent or resource consent. Construction was effected by Mr

Voss clearing an area of topsoil and then installing, levelling and compacting a layer

of base course gravel. He then constructed a steel base on top of this level area.

The base comprises two parallel steel beams somewhere in the order of eight metres

in length to which wooden joists have been attached. Appendix 2 to this decision is

a photograph (undated) provided to the Court by Mr Antoun showing the works I have

described, in the course of construction. A two-storey building in the obvious form of

a house was then constructed on top of the steel base.

[14] On 7 November 2018 the Council responded to a complaint from a neighbour

about a building which was being constructed in the rear yard of the property. A

Council officer (Mr P Duffin) went to inspect.

[15] Mr Duffin formed the view that a house was in the course of construction and

advised Mr Voss, who was on site at the time, that a building permit and resource

consent were required. A resource consent application pack was delivered to Mr

Antoun the following day. Attachment 3 to Ms Rotherham's evidence was a series of

photographs taken by Mr Duffin on 7 November and one of those photographs is

appended to this decision as Appendix 3. It is readily apparent from the photograph

why Mr Duffin reached the conclusion that a house was being constructed on the

property. The photograph shows a substantial, largely clad, two-storey construction

in the obvious form of a house.

[16] A number of interactions between Council staff and either Mr Antoun or Mr

Voss then took place. On 8 April 2019 Mr Antoun submitted an application for

resource consent for the tiny house to the Council. On 24 April 2019 the application

was returned to him by the Council on the basis that it was incomplete, together with

vance the resource consent application have been taken by Mr Antoun.

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[17] On 22 May 2019 the Council (through Mr Duffin) then issued the first notice to

Mr Antoun requiring him to remove the two-storey structure. The first notice gave Mr

Antoun until 22 June 2019 to do so.

[18] Further correspondence between the Council and Mr Antoun followed in June

and July 2019 regarding the need for building and resource consents and the merits

or otherwise of Mr Antoun's position that the tiny house was a vehicle, not a building.

Nothing turns on that correspondence in these proceedings.

[19] On 16 July 2019, the Council served Mr Antoun with two documents:

• The first was a letter signed by Ms Rotherham advising that the first

notice was cancelled pursuant to s 325A(3) RMA as it was no longer

considered to be "necessary", although no indication was given as to

why it was not necessary. The letter went on to state that the Council

had issued a new abatement notice with which Mr Antoun was obliged

to comply;

• The second document was the abatement notice the subject of these

proceedings, whose form I have described in paras [2] and [3] (above).

[20] As part of these proceedings I undertook a site visit of the property

accompanied by counsel. The site visit established that the tiny house remained in

situ on the property. The evidence established that the dimensions of the tiny house

are eight metres long, 3.2 metres wide and 4.5 metres high. It is a two-storey timber

construction. The tiny house is uncompleted with external painting, roofing, spouting

etc yet to be finished and the interior largely incomplete. The plans filed as part of Mr

Antoun's resource consent application showed that it was intended that the tiny house

was to have bathroom/laundry, kitchen and living facilities on the ground floor with a

mezzanine bedroom. Although services such as electricity, water, drainage etc did

not appear on initial inspection to have been connected, there were clear signs of an

intention to do so and the resource consent plans showed that these services were to

be connected.

[21] Attachment 2 to Ms Rotherham's affidavit was a series of photographs taken

by her on 4 September 2019 showing the state of construction of the tiny house when

she visited on that date. The photographs are consistent with my observations on the

date of the site visit. Appendix 4 to this decision is an extract from one page of Ms

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Rotheram's photographs showing the tiny house as I have described.

[22] In light of those descriptions I turn to consider the four issues which I have

previously identified.

The tiny house issue

[23] These proceedings attracted a certain degree of public attention regarding the

issue of tiny houses. Mr Milne referred to the importance of this decision insofar as it

relates to tiny houses in his opening submission, there was some media publicity on

this particular tiny house and an expert witness on that topic (Mr A L Light) gave

evidence for Mr Antoun.

[24] In reality this case has nothing whatever to do with the merits or otherwise of

tiny houses. Nothing in the District Plan documents which were produced to the Court

established that the Council sought to discourage or prohibit the use of tiny houses or

small dwellings. Chapter 4 - Residential of the District Plan does not contain any

requirement as to the minimum size of dwelling houses.

[25] The relevant provisions of the District Plan do not restrict the use of buildings

(tiny or large) for dwellings, as long as various permitted activity conditions contained

in Rule 4A 2.1.1 are complied with. The conditions address matters such as (inter

alia) net site area, yard requirements, recession planes, maximum height and site

coverage etc. Controls of this kind are contained in every district plan I have ever

looked at.

[26] It will be apparent from consideration of the provisions of the abatement notice

described in paras [2] and [3] (above) that the Council's concern in this matter which

led to issue of the abatement notice was not the use of the tiny house as a dwelling,

but rather that it did not comply with various permitted activity conditions with which

all buildings (including dwellings) in the zone are required to comply. If the tiny house

had complied with those conditions, it would be a permitted activity and no resource

consent required.

[27] Because the tiny house does not comply with the conditions, Rule 4A 2.4(a)

of the District Plan requires that it obtains consent as a discretionary activity as would

any other building which did not comply with them. As noted previously, application

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for such consent was made to the Council but not pursued by Mr Antoun after his

incomplete resource consent application had been returned to him.

[28] The Council's position on the tiny house was stated in paragraph 3.6 of its

opening submissions in these terms:

3.6 There is no opposition to houses of a smaller size or cost to build. Council

simply wants to ensure that there is an even playing field through the

owner/builder securing the necessary building and resource consents before

starting work. It is notable that this appeal does not assert that the necessary

consents cannot (or couldn't) be obtained - the appellant is simply trying to

avoid seeking any of the consents that any other house would need to obtain

before starting work.

[29] Although I cannot make a determination as to Mr Antoun's motives, nothing I

heard led me to the view that people constructing tiny houses should not be subject

to any applicable Building Act or RMA requirements. That fairly basic proposition may

have been distorted in this case by the claim made by Messrs Antoun and Voss that

the tiny house was a vehicle and I now turn to that issue.

Is the tiny house a vehicle?

[30] Section 2 Land Transport Act 1998 contains two definitions relevant to my

consideration in these matters. They are (relevant parts only quoted):

• Motor vehicle -

(a) means a vehicle drawn or propelled by mechanical power; and

(b) includes a trailer; ...

• Vehicle-

(a) means a contrivance equipped with wheels, tracks, or revolving runners on

which it moves ...

The tiny house is a two-storey building founded on steel beams. It may well be a

contrivance, but it is not equipped with wheels, tracks, or revolving runners on which

it moves. It is not drawn or propelled by mechanical power and is not a trailer.

The contention that the tiny house might be a vehicle will come as a matter of

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not able to move under its own power. It is not connected to any form of propulsion

or wheels. On inspection it is patently a house, albeit a small one. Notwithstanding

its obvious appearance, Messrs Antoun and Voss contend that it is a vehicle. The

initial onus lies with them to establish that on the balance of probabilities.

[32] The inherent absurdity of the proposition that the tiny house might be a vehicle

was apparently evident to Mr Milne, who was instructed by Mr Antoun just prior to the

Court hearing. Mr Milne acknowledged that the tiny house is not a vehicle, although

he said that it is "intended to be a vehicle, but it's accepted that it's not at the

moment". 5

[33] Mr Milne's reference to an intention to make the tiny house a vehicle arose

because Messrs Voss and Antoun expressed an intention to attach the house to two

axles situated on the driveway of the Antoun property. Paragraphs 16 and 17 of Mr

Voss's evidence contained photographs of the axles and (separate) wheels which he

contended would be fitted to the tiny house in due course to make it moveable. In the

course of his oral evidence, Mr Voss produced a number plate which he claimed

showed that he had registered the tiny house as a trailer under registration number

37A36.

[34] The process whereby a tiny house, two completely separate axles and two

wheels, all unconnected to each other, can be registered as a trailer is a mystery to

me, but I was advised by Mr Milne that it is possible to register something before it is

finished. Accepting that Mr Milne's knowledge on these matters is superior to my

own, I record that the fact of registration fails to convince me by a considerable margin

that the tiny house may become a trailer by way of future intention. Indeed, I do not

accept that the tiny house itself is actually registered as a trailer at all, notwithstanding

Mr Voss's contention in that regard. The information that he said that he provided to

effect registration appears to relate to the axles rather than the tiny house. I accept

that he has apparently succeeded in registering as a trailer two separate axles

disconnected to wheels or any other discernible form of trailer componentry.

[35] Even accepting that Mr Voss has legally succeeded in registering something

NOE, page 4 of 40. (NOE pages were unnumbered.)

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house.

[36] The first and most obvious is that no independent evidence was given by any

person remotely qualified to comment on the feasibility of constructing a trailer from

the axles which could be licenced to either incorporate the tiny house as part of the

trailer or alternatively carry the tiny house as a load. Mr Voss purported to give

assurances in that regard, but I am far from satisfied that he has any qualifications

entitling him to do so, even though he claimed to be ... "an engineer/fabricator, welder,

machinist and mechanic primarily ... " and to ... "have also completed my first year

national diploma in mechanical engineering". He failed to give any evidence of

actually possessing a trade certification in those areas. Clearly, he is not an impartial

person.

[37] Secondly, the Land Transport Rule: Vehicle Dimensions and Mass 2016,

contains a series of requirements relating to dimensions and load limits for trailers.

These issues are discussed (inter alia) in a series in NZTA of fact sheets numbered

13C, 13D and 53A. Perusal of these documents leads to the conclusion that if it can

be done at all, there are very significant requirements to be met under the Rules to

legally transport a building the dimensions of the tiny house, as either part of a

warrantable roadworthy trailer or as a legal load on such a trailer. The requirements

of the Rules were not addressed by Messrs Antoun or Voss in their evidence, nor in

submissions on their behalf.

[38] Further to any question of the legalities of doing what Messrs Antoun and Voss

propose, I am far from satisfied ( on the balance of probabilities or otherwise) that it is

practically feasible to attach the tiny house to a trailer whether as part of the trailer

itself or as a load. The only technical explanation I was given on that topic was the

evidence of Mr Voss, who was asked by Mr Milne to explain how he was going to go

about doing that. His evidence was as follows: 6

A Yes I can try. So the axles hang off the ends on a cantilever system, so with

airbags. So essentially when you air the airbags up, that lifts the whole chassis

off the ground. It just allows for - I don't have to have a whole axle and wheel

underneath the chassis. By law I need 100 mm of clearance when towed, so it

keeps my CG lower, you know, and things like that, keeps the whole thing a lot

lower to the ground, provides stability when it's not moving, to the stable footing.

It just sort of covers a lot of things by designing it that way.

NOE, page 34 of 40.

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Q. Do you have any drawn-up plans showing how you are intending to do this?

A. No I don't.

Even if I was to accept Mr Voss's qualifications as being a basis for him to give

evidence as to the feasibility of moving the tiny house in the way he described (and I

do not) his explanation fails woefully in satisfying me to the required standard that it

can be done.

[39] In summary, my findings on the vehicle issue are that:

• The tiny house in its present form is not a vehicle. That was

acknowledged by Mr Milne;

• The two unconnected axles and separate wheels in their present form

are not a vehicle, notwithstanding the fact that they have apparently

been registered as a trailer. I accept that it may be possible for these

items to be incorporated into a trailer in the future, although I have no

idea what might be required to enable that to actually happen so that the

trailer meets legal requirements;

• I am far from convinced to any reasonable standard of proof that it is

possible to incorporate the tiny house into a warrantable or certifiable

roadworthy vehicle (whether a trailer or otherwise) using the axles and

wheels lying on the property. Perusal of the NZTA documents described

previously strongly indicates that it would be very difficult if not

impossible to do so for a building the size of the tiny house;

• Similarly, I am far from convinced to any reasonable standard of proof

that it is possible to carry the tiny house as a legal load on a motor

vehicle (including a trailer) incorporating the axles and wheels lying on

the property. Perusal of the NZTA documents described previously

strongly indicates that there are significant requirements to be met for a

building the size of the tiny house to be transported as a load on a trailer

or other vehicle;

• I find the contention that the tiny house is a vehicle to be a flight of

imagination advanced to justify the failure to apply for any necessary

consents to construct it.

Is the tiny house a structure?

This issue raises the legal status of the tiny house under two separate statutes,

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the Building Act 2004 and RMA.

[41] The Building Act issue is peripheral to determination of these proceedings, but

has some degree of relevance due to Mr Antoun's failure to obtain a building permit

to construct the tiny house based on the fictional contention that it was a motor

vehicle. Section 8(1 )(a) Building Act 2004 relevantly defines a building as meaning

... "a temporary or permanent, movable or immovable structure (including a structure

intended for occupation by people, animals, machinery, or chattels)". Somewhat

surprisingly, the word structure is not defined in the Building Act but ultimately nothing

turns on that in these proceedings which revolve around the abatement notice issued

under RMA.

[42] Setting aside the nonsensical proposition that the tiny house is a vehicle, I

concur with Mr Milne's contention that the determinative issue before the Court is

whether or not the tiny house is a structure in RMA terms. The abatement notice as

issued by the Council sought removal of the two-storey "structure" situated at the rear

of the Antoun property. The reasons given for this requirement were described in

these terms in the abatement notice:

On 7 November 2018, council officer Paul Duffin inspected the above property and

found that a new building was in the process of being constructed at the rear of your

property, this building not having first been approved by way of a resource consent.

This contravened rules 4A 2.1.1(a), 4A 2.1.1(c) and 4A 2.1.1(e) of the city's District

Plan.

[43] In its totality, the abatement notice contends that the tiny house is a structure,

a building and a residential dwelling which breaches the various rules identified. I do

not understand the Appellant to challenge the Council's interpretation of the rules in

question. His position (as articulated by Mr Milne) is that the tiny house is not a

building, a dwelling or structure which is subject to those rules.

[44] The relevant definitions contained in the District Plan are as follows:

• Building is defined in the Plan in these terms:

... means any structure or part of a structure, whether temporary or permanent,

movable or immovable, but for the purposes of this Plan excludes ...

(exclusions not relevant).

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In order to be a building, the construction in question must be a

"structure" but may be "temporary or permanent, movable or

immovable".

• Dwelling House is defined in the District Plan in these terms:

A building or unit within a building providing self-contained residential

accommodation for a person, a family or non-family group ... (subsequent

inclusions and exclusions not relevant).

It will be noted that the definition requires a dwelling house to be a

building which in turn (as set out above) is required to be a structure;

• The word structure is not defined in the District Plan but is defined in

RMA itself and (absent any contrary provision in the District Plan) must

have the same meaning when interpreting the District Plan.7 The RMA

definition is:

... any building, equipment, device, or other facility made by people and which

is fixed to land; (balance not relevant).

Although there is a certain circular aspect to inclusion of the word

"building" within the definition, the tiny house is obviously either a

... "building ... or other facility made by people". Mr Milne did not suggest

otherwise.

[45] Accordingly, the key matter to be determined in deciding whether or not the

tiny house is subject to the identified rules in the District Plan is whether or not it is

"fixed to land" as required by the definition of structure in s 2 RMA. Mr Milne made

the following submission in that regard: 8

17. Accordingly, in order to be a building under the DP, the "facility" has to be first

a structure which means that it must be "fixed to land".

18. The Council has presented no evidence that the facility is attached to land and

indeed seems to have overlooked or ignored this point. Rather, it appears to

have proceeded in reverse and has simply assumed that the facility is a building

(apparently based upon determinations under the Building Act about similar

facilities) and that it follows that it is a structure.

19. That logic is back to front. A facility must be a structure before it can be a

building and accordingly before it can be a dwelling. That can only be the case

if it is currently fixed to land or is clearly intended to be fixed to land (for example

a relocatable building which is attached to piles)

Interpretation Act 1999, s 34. Opening submissions at [17] - [20].

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20. The evidence from Mr Voss is that the facility is not currently fixed to land, and

is not intended to be fixed to land. He has outlined how he intends to fit axels

and wheels to the platform, but for ease of construction will do this later. He

has outlined how he has registered the tiny house as a vehicle. He has outlined

how he intends to eventually move it to a rural property in Palmerston North. In

summary, in my submission, the facility is at the moment, resting on land but is

not fixed to land, nor is there any intention to do so.

[46] Mr Milne sought assistance from a dictionary to assist with interpretation of the

word "fixed". He submitted that somewhat "surprisingly" what he considered to be the

most apt definition came from an online publication "the English Language Learners

Dictionary". The definition is:

used to described something that does not change

placed or attached in a way that does not move easily.

He submitted further that:

... the latter part of that definition catches the commonsense practical meaning of fixed

in the context of "fixed to land". There is no evidence that completed facility is placed

or attached to the land in such a way that it cannot easily be moved. Indeed to the

contrary, the evidence is that the facility has been designed to be moved easily and

that is intended that such movement will occur within the next few years.

(The submission as orally altered during the course of hearing to mean ... "cannot

easily be moved").

[47] In its submission the Council referred to a number of relevant cases on the

interpretation of the term "fixed to". It noted that:

• 'Fixed' as used in the definition of 'structure' does not mean that a device

or facility must be so attached to land that it cannot be moved at all.9

• Things permanently held in place by gravity can be 'fixed' .10

[48] The Council went on to submit that: 11

48 From the applicable caselaw, it is clear that:

48.1 The prospect that in due course something might be removed from the

land does not necessarily mean that it is not 'fixed' to the land.

Tasman District Council v Way [201 OJ NZEnvC 349 at [49]. Ohawini Bay Ltd v Whangarei District Council A 68/2006 at [24]. Council submissions at [48].

15

48.2 The two main indicators of whether something has become 'part and

parcel' of the land are the degree of annexation and the object of

annexation.

48.3 Duration, movability, use, and supporting facilities and structures can all

be relevant considerations.

[49] The Council further submitted that: 12

53 Factors relevant to the Council's conclusion that the house is a structure fixed

to land include:

53.1 The weight and size of the house that fixes the house to the land by

gravity.

53.2 It is sufficiently stable in order to enable occupation for residential

purposes.

53.3 It is not simply stored on the site before being moved to a permanent

resting place.

53.4 The lack of any motorisation or wheels to enable the house to be moved

on its own or under tow.

53.5 The possibility of future moving of the house does not mean that it is not

a structure, as most houses are capable of being moved by a moving

company in the future (even if they need to be divided).

53.6 The object of annexation here is the occupation for residential purposes.

It is not on site for any vehicular use.

53. 7 The house reads as a house and will be used as a house. The

neighbours can accordingly expect that such structures comply with the

Plan provisions, in the same way that their houses must comply.

[50] I commence my discussion on this topic by noting that large buildings can be

and frequently are moved about on New Zealand roads. The only obvious way to get

the tiny house onto a road is by use of crane and/or trailer (and again I do not accept

that it is able to do so by trailer in the manner proposed by Mr Voss) through the

neighbouring school property. Not only has the school not given permission to do so

it was not approached regarding the possibility of doing so until August 201913 some

20 months or so after construction of the tiny house commenced, after the abatement

notice was issued and after this appeal had been set down for hearing. No credible

evidence was produced at all as to any serious attention being given to or inquiry

made as to the legal or physical feasibility of transporting the tiny house from the

property prior to its construction commencing.

Council submissions at [53]. 3 Exhibit 1, email correspondence, Mr Antoun to St Michael's School.

16

[51] Dealing firstly with Mr Milne's submission and in particular paragraph 20 of

that submission, the evidence simply does not "stack up" to support his contentions:

• Whether or not the facility is fixed to land is a matter to be determined

by the Court. Mr Voss clearly intended to construct the facility in the

position where it is on Mr Antoun's land using the means of construction

which he did;

• No evidence from any appropriately qualified independent witness

established that it was practically feasible to fit axles and wheels to the

tiny house in the manner proposed by Mr Voss;

• No evidence from any appropriately qualified independent witness

established the feasibility of either incorporating the tiny house into a

legal trailer (or other vehicle) or whether or not it could be legally

transported and what might be required to make either of those things

happen;

• It is not clear whether the tiny house has been registered as a trailer or

just the two axles and two separate wheels lying on the ground in a

different part of the property. I confirm the scepticism which I have

previously expressed regarding this matter;

• I do not accept that the tiny house can be moved "easily" as contended;

• A statement of intention to move the tiny house "within the next few

years"14 fails to establish the actual capacity to do so or any genuine

intention to do so.

The simple fact is that Mr Voss has erected the tiny house in a position on the property

where it cannot easily be removed by trailer or any other obvious means.

[52] If the question as to whether or not the tiny house is fixed to the land is to be

determined on the basis of Mr Milne's definition, then I find as a matter of fact that the

tiny house has been placed on or attached to the property in a way that it does not

move easily. I find the tiny house to be fixed to land in terms of the definition advanced

by Mr Milne. In the event that his definition may be considered as too constraining, I

have considered a range of other matters pertaining to whether or not the tiny house

might be regarded as being fixed to the property.

Antoun opening submissions at [30].

17

[53] I considered a number of cases relating to the distinction under property law

as to whether or not an item was a fixture or a chattel. These included the Auckland

City Council v Ports of Auckland Ltd, 15 and Lockwood Buildings Ltd v Trust Bank

Canterbury Ltd16 cases and the various cases cited therein. I have considered the

test identified in Elitestone Ltd v Morris17 where Lord Lloyd stated that the test is

whether a chattel could properly be said to have become part and parcel of the land

in question and that the two main indicators will be the degree of annexation and the

object of annexation.

[54] In this case the tiny house is not annexed to the land in the sense that it is tied

or connected by reinforcing or the like to foundations or piles imbedded in the land or

similar. It is held in place solely by the obvious weight and bulk of the substantial steel

beam foundations and the weight and bulk of its superstructure above the steel

beams. These factors mean that it cannot readily be moved. For the reasons I have

previously articulated, I am far from satisfied that the tiny house in its present form

can legally and practically be moved from its current position in the manner suggested

by Messrs Antoun and Voss at all.

[55] The second Elitestone indicator is the object of annexation. That is

immediately apparent too when looking at the tiny house. It is on the property for the

purpose of being used as a dwellinghouse. Although Mr Voss was evasive when

questioned on this topic, it is clear from the plans which Mr Antoun filed with his

resource consent application that the tiny house was to be connected to the standard

residential house services. The very description "tiny house" establishes the purpose

of its construction and occupation. It could continue to be used for that purpose

indefinitely. The contended intention on Mr Voss's part that the tiny house will be

moved some time "within the next few years" (an intention of dubious legal and

physical feasibility) does not begin to establish that the tiny house is anything other

than what it appears to be on immediate examination, a tiny house, designed,

constructed and able to be used for permanent occupation by Mr Voss or any other

person so inclined.

[56] I consider that the degree and object of annexation in this case are patent for

all to see. Any impartial observer looking at the tiny house will note the obvious and

Auckland City Council v Ports of Auckland Ltd [2000] 3 NZLR 614 (CA). Lockwood Buildings Ltd v Trust Bank Canterbury Ltd [1995] 1 NZLR 22 (CA). Elitestone Ltd v Morris [1997] 1 WLR 687 (HL) at [692].

18

real difficulties in effecting its removal and the residential purpose for which it is used.

Nothing suggests any purpose of temporary occupation.

[57] I have also given consideration to an alternative dictionary definition of the

word "fixed", namely that contained in the New Shorter Oxford English Dictionary, 18

part of which was considered by the Environment Court in Ohawini Bay Ltd v

Whangarei District Council. 19 That dictionary contains two definitions relevant in this

instance, namely:

1. Definitely and permanently placed or assigned; stationary or unchanging in

relative position; definite, permanent, lasting;

3. Placed or attached firmly; made firm or stable in position.

In applying the first part of the definition in Ohawini, the Court observed that it did not

consider that this definition excludes things held permanently in place by gravity.20 I

concur with that observation. Insofar as the second part of the definition is concerned

I find that the tiny house is firmly placed and stable in position. It is fixed in terms of

this definition.

[58] Finally, in determining whether or not the tiny house is fixed to the property so

as to constitute a structure, I have endeavoured to undertake a wide consideration of

all of the above matters. In doing so, the following factors:

• The appearance of the tiny house as a dwelling house capable of being

used for permanent occupation;

• The obvious design and capacity for the tiny house to be used as a

dwelling house capable of permanent occupation;

• The intention displayed on the resource consent application papers to

connect the tiny house to services;

• The method of construction and the conformation of the tiny house,

which mean that it is fixed to the property in the sense that it sits firmly

on the land in a stable position and may remain permanently in that

position;

• The patent absurdity of the proposition that the tiny house is a vehicle

(trailer or otherwise);

• The unproven feasibility of converting the tiny house into a trailer in the

Clarendon Press, Oxford, 1993. Ohawini Bay Ltd v Whangarei District Council A68l2006. Ohawini Bay Ltd v Whangarei District Council A68l2006 at [24].

19

manner suggested by Mr Voss;

• The evident legal and practical difficulties in moving the tiny house

whether as a vehicle (trailer or otherwise) or load on a vehicle -

all lead me to the conclusion that the tiny house is fixed to the property in such a way

as to be a structure as defined in s 2 RMA. It is accordingly subject to the Rules

identified in the Council's abatement notice.

Validity of the abatement notice

[59] Acknowledging the possibility that the Court may reach a different view on the

above issues to that which he advanced, Mr Milne then advanced the further

contention that the abatement notice itself was invalid for two reasons:

• The first was that the Council had not shown that there was a reasonable

basis for the opinion of the enforcement officer who issued it (Mr Duffin)

that the tiny house was or was intended to be a structure, building and/or

dwelling;

• The second was that the notice did not provide a reasonable time to

achieve compliance with the District Plan.

[60] Dealing with the first proposition, much of Mr Milne's cross-examination of Ms

Rotherham revolved around Mr Duffin's state of mind and how he had reached the

conclusion that the tiny house was fixed to the ground. Mr Milne put the proposition

to Ms Rotherham that there was nothing in either the abatement notice or a letter

which the Council sent to Mr Antoun, which set out the basis for Mr Duffin's conclusion

that the tiny house was fixed to the land so as to constitute a structure contravening

the District Plan. This is a relevant consideration for the Court in that s 322(4) RMA

requires an enforcement officer serving an abatement notice to have "reasonable

grounds for believing that any of the circumstances in subsection (1) or subsection

(2) exist".

[61] I disagree with the proposition that the Council has not established the

existence of such reasonable grounds. The matters set out in the first four bullet points

of para [58](above) would have been readily apparent to Mr Duffin on inspection of

the property. They form a reasonable basis for his belief that ground existed to issue

20

[62] However there is somewhat more substance to Mr Milne's second contention

as to the notice not providing a reasonable time to undertake removal of the tiny

house. The abatement notice was issued on 16 July 2019 and gave Mr Antoun until

26 July 2019 to comply. I believe that there is considerable merit to the contention

that 10 days is not a reasonable period of time to allow for deconstruction and removal

of the tiny house. In my view, it is significant that the first (and subsequently

withdrawn) notice gave Mr Antoun a period of one month from the date of issue in

· which to comply. Notwithstanding the description of the structure as a tiny house, it

is of sufficient size as might reasonably be expected to take some time and care in

deconstructing. In my view, the Council "got it right" at the time of issuing the first

notice when it gave a month for compliance.

[63] The Council contended in its submissions on this topic that in determining a

reasonable time, regard should be had to the period of time for compliance allowed

in the first notice. It was submitted that the Appellant had been "on notice" since the

date of the first notice and had not complied with either the first notice or the

abatement notice and that in that context the period allowed for compliance was

reasonable. I disagree with that proposition for two reasons:

• The first notice was withdrawn by the Council on 16 July 2019. It cannot

be right that an abatement notice is withdrawn and yet taken into account

in calculating timeframes;

• The second reason is that I understand from the Council submissions

that the first notice was withdrawn as it contained an error.21 In my view,

it similarly cannot be right that an abatement notice containing an error

can form the basis of time calculations.

[64] I reject the submissions made by Mr Milne in closing that a reasonable period

of time would include either sufficient time for Mr Antoun to advance an application

for resource consent for the tiny house or alternatively a period of 12 months for

removal. He was given the opportunity to pursue the first course of action by the

Council and chose instead to go down the fictional vehicle line. Nor do I consider that

12 months is a reasonable period of time. This was a structure built without either

building permit or resource consent, both of which were required. It is reasonable to

expect that urgent steps will be made to remove such an offending structure. I will

21 Council submission at [17].

21

make further comment as to what is required in that regard later in this decision.

[65] There is a further matter pertaining to validity of the abatement notice, not

raised by Mr Milne which is also relevant to my considerations in that regard.

Section 322 RMA contains the following relevant provisions pertaining to issue of an

abatement notice:

322 Scope of abatement notice

(1) An abatement notice may be served on any person by an enforcement

officer-

(a) requiring that person to cease, or prohibiting that person from

commencing, anything done or to be done by or on behalf of that person

that, in the opinion of the enforcement officer, -

(i) contravenes or is likely to contravene this Act, any regulations, a

rule in a plan, or a resource consent; or

(ii) is or is likely to be noxious, dangerous, offensive, or objectionable

to such an extent that it has or is likely to have an adverse effect

on the environment:

(b) requiring that person to do something that, in the opinion of the

enforcement officer, is necessary to ensure compliance by or on behalf

of that person with this Act, any regulations, a rule in a plan or a

proposed plan, or a resource consent, and also necessary to avoid,

remedy, or mitigate any actual or likely adverse effect on the

environment-

(i) caused by or on behalf of the person; or

(ii) relating to any land of which the person is the owner or occupier:

[66] The abatement notice required Mr Antoun to . . . "remove the two storey

structure that has been built without any Council Consents at the rear of the property

from the property". It sought that that removal be subject to the following condition

that Mr Antoun ... "remove the two storey structure at the rear of the property from

the property and do not replace it without Council Consent". These provisions of the

abatement notice require Mr Antoun to do something that in the opinion of Mr Duffin

was necessary to ensure compliance by Mr Antoun with the provisions of the District

Plan subsequently set out in the notice.

[67] The ability to issue a notice requiring Mr Antoun to undertake that removal

arises pursuant to s 322(1)(b). It is a positive requirement directing Mr Antoun to do

something that in Mr Duffin's opinion was necessary to ensure compliance by him

ith the District Plan. However, the abatement notice contains the following provision:

22

This notice is issued under:

Section 9 of the Resource Management Act 1991, which requires that no person may

use any land in a manner that contravenes a rule in a district plan unless the activity

is expressly allowed by a resource consent.

Section 322(1 )(a)(i) of the Resource Management Act 1991, which requires that no

person may do anything that, in the opinion of the enforcement officer, contravenes

or is likely to contravene the act, any regulations, a rule in a district plan or a resource

consent. (my emphasis)

The above statement is clearly incorrect. The notice has not been issued under

s 322(1)(a)(i), which requires a person to cease or prohibits that person from

commencing to do something. It was issued pursuant to s 322(1)(b) which requires

a person to do something, in this case remove the tiny house. The citation of the

provision of the Act enabling issue of the abatement notice is accordingly incorrect.

[68] The requirement to set out the statutory basis for issue of an abatement notice

is contained in Form 48 of the Resource Management (Forms, Fees, and Procedure)

Regulations 2003. I do not consider that these provisions require rigid adherence with

form, what is required is that the ... "notice in its entirety fully and adequately complies

with the prescribed form and clearly informs the applicant of all necessary and

relevant matters." (Oliver v Marlborough District Counci/22)

[69] In this instance, the abatement notice correctly identified the provisions of the

District Plan which Mr Antoun had breached and is quite clear in spelling out what he

was required to do to remedy that breach. Considered in isolation, I do not consider

that the wrongful citation is necessarily fatal to the validity of the abatement notice but

when that is combined with the unreasonably short period of time allowed for

compliance the only conclusion that can be reached is that the abatement notice is

fatally flawed.

[70] As I understand the provisions of s 325(5) and (6) RMA, unlike an enforcement

order application, the Court's powers on an appeal against an abatement notice are

limited to confirming or (by implication) declining to confirm the abatement notice. I

decline to confirm the notice on the basis that:

• The action which the abatement notice required Mr Antoun to undertake

22 Oliver v Marlborough District Council W126/99 at [11].

23

was unreasonable in that it did not allow adequate time for him to do so;

and

• The abatement notice mis-states the statutory basis for its issue.

[71] In light of the findings which I have made as to whether or not the tiny house

is a structure, it may be appropriate for the Council to consider that it should

immediately reissue an abatement notice in proper form allowing reasonable time for

compliance. Should it determine to do so, it should also consider the extent of work

which Mr Antoun is required to undertake. The abatement notice as issued appeared

to require removal of all of the tiny house, including the very substantial steel base. It

appears to me that all that is necessary to satisfy the matters of concern would be

removal of the dwelling house superstructure component of the tiny house. In any

event that is a matter for the Council to consider.

Costs

[72] I decline to reserve costs in this matter, notwithstanding the success which Mr

Antoun has ultimately had. This is a situation where he and Mr Voss chose to go

ahead and construct the tiny house without a building permit or resource consent on

what can only be described as a farcical basis. The proposition that the tiny house

was a vehicle had o merit whatever. In my view, Mr Antoun is the author of his own

misfortune and let the Council with no option but to take the action which it did. The

oin is that the Council "mucked up" the issue of the abatement

notice and sho d ear its own costs accordingly.

BP Dwyer

Environment Judge

16 July 2019

F J Antoun 14 Molesworth Street TAITA 5011

Dear F J Antoun ,

Abatement notice (RMM190004/2) - 14 Molesworth Street Taita

Environmental Consents

04 570 6979

paul.duffin@hutlcity.govt.nz

Our reference:RMM 190004/2

On 7 November 2018, I inspected 14 Molesworth Street Taita where I observed that a new two storey building had been constructed in the rear portion of your property at 14 Molesworth

Street, Taita.

I am writing to advise that Hutt City Council requires you to take the action outlined in the abatement notice enclosed with this letter.

Failure to comply with this notice may result in prosecution under section 338 of the Resource

Management Act 1991.

You may appeal to the Environment Court against part or all of this notice. If you do, you must lodge a notice of appeal with the court within 15 working days of being served with this notice.

Section 325A of the Resource Management Act 1991 gives you the right to apply to the council to change or cancel the abatement notice.

If you have any questions about the abatement notice, please contact me in the first instance. My phone number is 04 570 6979 and my email address is paul.duffin@huttcity.govt.nz. However, I do recommend that you consult a lawyer if you are unclear about anything in the

abatement notice

Yours sincerely,

ABATEMENT NOTICE Section 324, Resource Management Act 1991

Notice RMM190004

To: F J Antoun

14 Molesworth Street, Taita , Lower Hutt

Hutt City Council gives notice that you must take the following action: Remove the two storey structure that has been built without any Council Consents at the rear of the property from

the property

Where the notice applies: 14 Molesworth Street TAIT A 5011 , also known as LOT 1 DP 22753.

Time within which you must comply with this notice: 26 July 2019

This notice imposes the following conditions:

1. Remove the two storey structure at the rear of the property from the property and do not replace it without Council Consent.

This notice is issued under: Section 9 of the Resource Management Act 1991, which requires that no person may use any land in a manner that contravenes a rule in a district plan unless the activity is expressly allowed by a resource consent.

Section 322(1 )(a)(i) of the Resource Management Act 1991 , which requires that no person may do anything that, in

the opinion of the enforcement officer, contravenes or is likely to contravene the act, any regulations , a rule in a district plan or a resource consent.

The reason for this notice is On 7 November 2018, council officer Paul Duffin inspected the above property and found that a new building was

in the process of being constructed at the rear of your property, this building not having first been approved by way of a resource consent. This contravenes rules 4A 2.1 .1 (a),4A 2.1.1 (c) and 4A 2.1 .1 (e )of the city's District Plan.

Rule 4A 2.1.1. (a) states- Minimum net site area per permitted activity (excluding home occupations and accessory buildings) shall be 300m 2

. Your site has an area of 654 m2 and therefore only 1 stand alone residential dwelling is

permitted as of right. Net Site Area the is the total area of a site for the exclusive use of a single dwelling unit, including any area provided for parking or manoeuvring space and building, but does not include land held in common ownership,

communal open space, communal parking and rights-of-way, and access legs to a rear site.

Rule 4A 2.1.1. (c) relates to Recession Planes as all buildings are to be beneath an angle taken 2.5 m above ground level at the boundary, this angle being 45 degrees. Due to the positioning of the new building the daylight

'[~as ed on the northern and eastern boundaries. "!Jall,-r.-.-+-o....t· ' (~;; lates to maximum site coverage. As your area is zoned Medium Density Residential maximum

0 Access drives to rear sites are excluded when calculating site area.

A182

Rights of appeal: You have the right to appeal to the Environment Court against part or all of this notice. You must lodge a notice of

appeal on a Form 49 with the court within 15 working days of being served with this notice. Form 49 ("Notice of

appeal to Environment Court against abatement notice") can be downloaded from the court's website.

Failure to comply with this notice may result in prosecution under section 338 of the Resource Management Act

1991 (unless you appeal and the notice is stayed, as explained below).

You should note that an appeal does not automatically stay, or suspend, the notice and you must continue to

comply with it unless you also apply for a stay from an Environment Court judge under section 325(3A) of the

Resource Management Act 1991. (Form 50, "Application for stay of abatement notice" can be downloaded from

the Environment Court's website.) To obtain a stay, you must lodge both an appeal and a stay with the

Environment Court.

You should note that section 325A of the Resource Management Act 1991 gives you the right to apply to the

council to change or cancel the abatement notice. This must be in writing.

Paul Duffin

Date of issue: 16 July 2019

The enforcement officer issued this notice pursuant to section 38(1 )(a) of the Resource Management Act 1991,

with delegated authority under section 322 of the act. Hutt City Council is the issuing authority.

Hutt City Council

30 Laings Road,

Private Bag 31912,

Lower Hutt 5040

Abatement notice served in person to F J Antoun

14 Molesworth Street

TAITA 5011 on 16 July 2019.

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Appendix 4 A007