This week the District Court has answered a question about whether a tiny house is a building or a vehicle. In Dall v the Chief Executive of MBIE (available for download by following the link here) Judge Callaghan disagreed with MBIE’s interpretation and set aside the determination together with the council’s notice to fix.
In 2018 Hurunui District Council issued the owner a notice to fix, after he constructed a tiny house. The owner applied for a determination and MBIE was required to determine whether the unit was a “building” or a “vehicle”. MBIE concluded:
“Given the unit’s characteristics considered as a whole and its essential nature in which it is used as an abode rather than as a vehicle, I consider that the unit is a moveable structure and therefore falls under the general definition of a building under section 8 of the Act”.
The owner appealed to the District Court. MBIE sought leave to appear but we understand the council opted not to participate in the process.
The District Court Judge found that MBIE made errors in its interpretation. The Court was careful to point out that each case will turn on its own facts and, importantly, whether a structure is occupied by people on a permanent or long term basis will depend on the facts in each individual case.
Ultimately the Judge was satisfied that the unit in question was a vehicle because it is a contrivance equipped with wheels. This is an argument that some tiny home advocates have advanced for some time. The unit was deemed to possess wheels, axels, brakes, lights, drawbar and a trailer hitch.
In addition, the Judge decided that the unit was not immovable because:
- It possessed wheels, chassis, axels, brakes, lights, drawbar and trailer hitch;
- It had a valid registration and WOF;
- It was incapable of being fixed to the ground;
- Is self-contained; and
- It is indistinguishable in any material way from a caravan and provides exactly the sort of living accommodation one might expect of a caravan.
The Judge set aside the determination and, accordingly, the council’s notice to fix.
What does this mean moving forward?
Unfortunately there is no right of appeal from a District Court appeal of a determination (s 211(4)). In any event, the council did not participate in the appeal and therefore did not have a voice. We think this judgment will have a major impact, not only on the determinations and appeals that we are presently involved in, but more widely. We are very keen to speak with any council that has a determination on the subject of whether a unit is a “vehicle” so that this precedent can be revisited. We can expect that the judgment will be cited by MBIE in future determinations.
Rice Speir is active in this interesting area of the law and, as always, we are happy to field any questions relating to tiny houses.
Image: Rachel Jayne Mackay/Fresh Prince