IN THE DISTRICT COURT AT WELLINGTON

UNDER                       the Building Act 2004 (“Act”)

IN THE MATTER       of an Appeal against a Determination under Section 188 of the Act

BY:                             ALAN DALL of Amberley, Welder  – Appellant

TAKE NOTICE that the Appellant hereby appeals against a Determination made under section 188 of the Building Act 2004 that a movable trailer mounted unit (“Unit”) constructed by the Appellant is a building for the purposes of Section 8(1)(a) of the Act.

 

Part 1 – Determination Appealed Against

  1. The Determination appealed against was issued on behalf of the Chief Executive of the Ministry of Business, Innovation and Employment on 17 May 2019, by Katie Gordon, Manager Determinations, under authorisation.
  2. The Appellant appeals against whole of the Determination that the Unit is a “building” for the purposes of Section 8(1)(a) of the Act.

Part 2 – Grounds

  1. The Appellant bases this Appeal on the following grounds:

(a) The Chief Executive erred in fact and in law by finding that the Unit was not a “vehicle” and was therefore (being movable) a “building” as defined in Section 8 of the Act, and more specifically as set out below.

(b) The Chief Executive erred in law by incorrectly adopting, as its preferred meaning of ‘vehicle’ or ‘motor vehicle’, what the Determination expressed as the ‘natural and ordinary meaning’ of those terms, as opposed to the meaning as defined in Section 2(1) of the Land Transport Act 1998 which was in fact employed for the purpose of defining a ‘vehicle’ or ‘motor vehicle’ by Section 8 of the Building Act 2004.

(c) To the extent that the Chief Executive relied on paragraph 4.3.4 of Determination 2016/011, which stated that ‘a vehicle … cannot include a movable structure’, the Chief Executive erred at law.

(d) That the Chief Executive erred in fact and in law by failing to distinguish the facts of Determination 2016/011 and 2017/058, both of which were clearly distinguishable on their facts.

(e) The Chief Executive, having referred with approval to Paragraph 4.3.5 of Determination 2016/011 which noted that “caravan(s) or mobile homes are clearly vehicles”, then erred in fact and in law in failing to properly or correctly consider the degree to which the Unit in fact corresponded to either or both of a caravan or mobile home.

(f) The Chief Executive erred in fact and in law by attaching weight, or by attaching too much weight, to the use of the Unit as opposed to its structural and functional characteristics.

(g) The Chief Executive erred in fact and in law by attaching weight, or by attaching too much weight, to NZTA rules and regulations around load widths which are not relevant to the meaning of “vehicle” or “motor vehicle”.

(h) The Chief Executive erred in fact and in law by failing to properly consider, and to give necessary weight to, the degree to which the Unit conformed to either of the possible meanings of “vehicle” and “motor vehicle” which were available.

Part 3 – Relief Sought

  1. The Appellant seeks orders:

(a) That the Determination of the Chief Executive be set aside and that the Court issue a Determination that:

(i)            The Unit is a vehicle, or motor vehicle, and

(ii)           The Unit (being movable) is not a “building” as defined in Section 8 of the Act.

This Appeal is made in accordance with Section 208 of the Building Act 2004 and Part 18 of the District Court Rules 2014…

Dated this 10th day of June 2019.

 

 

 

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