Dall v Chief Executive of the Ministry of Business Innovation and Employment [2020] NZDC 2612

Published 22 July 2020

Appeal from determination — whether vehicle or building — meaning of "vehicle" — whether "immovable" — tiny house — Building Act 2004, ss 8, 164 & 177 — Building Act 1991, s 3 (repealed) — Land Transport Act 1998, s 2(1) — Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 — Thames- Coromandel District Council v Te Puru Holiday Park Ltd [2010] NZCA 633. This was an appeal against a determination of the Ministry of Business, Innovation and Employment (MBIE) that the appellant's Unit was a "building" and not a "vehicle" under s 8 of the Building Act 2004 ("the Act"). The appellant was the owner of a tiny house which he had constructed himself and lived in on a section of land. The tiny house was built on top of a trailer and was not affixed to the land. The Unit could (and had been) towed from one place to another by another vehicle. The appellant had been served a Notice to Fix by the Hurunui District Council for undertaking building work without consent. The appellant then applied to MBIE for a determination that his tiny house was a "vehicle"; a decision-maker of MBIE agreed with the Council that it was a "building" for the purposes of the Act. Section 8 laid out what constituted a building, which included "a vehicle or motor vehicle (including a vehicle or motor vehicle as defined in s 2(1) of the Land Transport Act 1998) that is immovable and is occupied by people on a permanent or longterm basis." under subpara 8(1)(b)(iii). This appeal was one of statutory interpretation. The issues were whether the appellant's Unit was a "vehicle" or "motor vehicle"; and, if so, whether the Unit was immovable and occupied by people on a permanent or long-term basis; or if the Unit is not a vehicle does it otherwise come under the general definition of "building" in s 8? The decision-maker had considered the reference to the Land Transport Act ("the LTA"), which would have included the appellant's Unit, but preferred the ordinary meaning of "vehicle" in the Oxford Dictionary which did not include the appellant's Unit. The Unit was therefore a "vehicle". Given the previous version of the Act and the Court of Appeal's decision in Te Puru, the Judge stated that the LTA definitions did apply; however, that the definition was very wide and could allow for the deliberate avoidance of the Act. Because of this, subpara 8(1)(b)(iii) of the Building Act applied. Deciding whether the Unit was "immovable" was a matter of degree and each case would turn on its own facts: functional characteristics, purpose and use of the Unit were relevant here. The Unit possessed characteristics of a vehicle that enabled it to be moved: wheels, chassis, towbar, brakes, trailer hitch, and could be moved with relative ease. It could not be fixed to the ground, and it was self-contained with regards to utilities. The Unit was indistinguishable from a caravan, which the decision-maker had acknowledged were vehicles but then not distinguished. The Judge considered that the Unit had been constructed in such a way with the intention that it could be moved easily. The tiny house was therefore a vehicle and not a building for the purposes of the Act. The appeal was upheld. Judgment Date: 19 February 2020.