In a nutshell
We have just come out of the Environment Court with an enforcement order which sets out what needs to be ceased or done by use in order to not contravene a rule “building used as a dwelling” on our land. We can either decommission the declared building into a sleepout (removing kitchen facilities ) and putting it next to the main dwelling (20m), or removing in from the land or leave everything as it is but no longer use it for long-term accommodation. Here in Tasman, that is everything more than two months in a calendar year.
The Tasman District Council recorded a complaint reading “unhappy that there is a tiny house without consent” early December 2021. The last name of the complainant matches the name of the officer investigating the complaint. The suspected “structure” is a mobile home on wheels, built on a registered trailer according to light trailer standards in terms of weight and size of the load, clearly visible from public roads. What made the officer think it was a structure (fixed to the land) during his frequent observations from the road since December, we don’t know. The suspected offence was classified by council as minor non-compliance action not required.
After a few letters, the officer first visits the property together with another colleague in June 2022. They came unannounced with the intent to inspect the mobile home, regrettably without responding to a letter from two months prior. We asked them to leave several times and after issuing two verbal trespass warnings, they finally withdrew. Because of the conduct of the officers on the day, I filed a formal complaint, which was never formally addressed.
In August they came back with a search warrant, assisted by two police officers. Police detained us landowners and our then 1 year old child during the search. The occupant of the tiny home was not home, nor was she ever part of the communications with council. However, the search was concerned only about her private realm. Nobody supervised the search. I filed another complaint asking why it was that we were detained and why it was that complaints were not addressed or acknowledged. Again, this was never formally responded to. I also contacted the mayor after the search, explaining my concerns, but never received a reply.
The email below was only released at the beginning of this year thanks to the involvement of the Ombudsman and Privacy Commissioner. I subsequently talked about my concerns arising from such instructions asking for investigating the matter. That was in February. However, no answer was ever received.
The video captured by the Tasman District Council during the search was also only release after involving the Ombudsman at the end of last year whilst the proceedings against us, were already underway.
About one month later, we received a letter informing us that the Council had formed the view we were in breach of a district rule. If we moved the tiny home away or removed kitchen and bathroom facilities, the matter would be sorted. Or apply for resource consent. Unfortunately, no explanation was given as to why the Council believed that the tiny home was actually fixed to land, therefore a building, needing resource consent.
Other people in the Tasman district trying to obtain resource consents for very similar mobile homes spent a lot of money, but did not end up with a resource consent, but with confusion around what it was that was needed. One case became public a number of years ago where a tiny house dweller, a young family shared their frustration about working with the Tasman District Council. They have just recently sold their tiny home and left New Zealand.
We decided to ask questions instead by sending a number of requests for official information and making it clear to Council that we could not choose one of their options without being provided with what it is that underpins Council’s view. Unfortunately, no acknowledgement followed, but a second letter making it very clear that we either have to choose between the options or council will apply for Enforcement Orders in the Environment Court.
For minor breaches as this case, all these options would have been part of the toolkit available for the Council to choose from according to their Enforcement Policy. Providing eduction was one of these tools, too. Applying for enforcement orders is not part of that list.
In April 2023 council filed their application for an enforcement order in the court after consulting with the Golden Bay Councillor Chris Hill as Chair of the Environment and Regulatory Committee. What the public interest test revealed to satisfy Councillor Hill that it was justified to initiate Court proceedings, we don’t know. The Council has since put in place restrictions on us, barring us from asking questions in relation to how the Court proceedings were initiated. Our communications to nine out of 14 elected representatives, including Mayor and all of our ward Councillors are being redirected to someone within Council’s executive branch who then exercises discretion as to whether or not to forward our communication onto elected members.
Why Council elected not to respond to our multiple requests to provide what made them conclude that the tiny home on wheels was in fact a building, why they elected not to issue an abatement notice or even approach the Environment Court for a declaration if there was any uncertainty, we don’t know. What we know, however, is that our alleged breach was classified by Council as minor non-compliance - no action required. Council’s own enforcement policy does not provide for initiating proceedings for minor breaches. Yet, they were initiated. For about one year we spoke at the council about our case and the rules and raised concerns about the conduct of their officers after unsuccessfully communicating with the Council’s executive branch.
One of our main concerns was and is the use of surveillance. It was subsequently confirmed in court documents that one of the officers observed the property over a period of nine months, a second one over a period of 10 months (65 observations over 90 days alone).
The proceeding was upheld, the hearing was finally in June 2024 and the Judgement followed on 31 July finding the mobile home to be fixed to land. Please have a look for yourself how we moved it. Maybe you, too have issues understanding how “fixed to land“ the Mobile Home actually is.
After the Judge has decided that the Mobile Home is “fixed to the land“, despite the fact that we showed that it can be easily towed away, the Tasman District Council filed an application for cost. The Tasman District Council requested that we pay them $54,678.98 for costs that they incurred. We opposed this because we think that this amount is totally unreasonable given their actions and conduct not only during the Court proceedings, but also before initiating the proceeding.
Without going into too much detail, we only picked one example here to show what we mean with the Council’s “conduct.“ Below on the left is a letter that we received from Mr Fraser Simpson (Enforcement Officer Tasman District Council). Later it was confirmed by the Council that this is exactly the document that they have in their records. However, Mr Fraser Simpson decided to file a slightly changed version of this letter as part of his affidavit to the Court. Besides the 2 sections that are highlighted below, also the date and the deadline to respond was changed in a way, so that the Judge might get the impression that our response to this letter fell outside the given deadline.
And finally, you might ask: What do our elected representatives, the Councillors, do about this? Well, the decision to go to court over this “tiny matter“ was done in consultation with Councillor Chris Hill from Golden Bay. Since a lot of people live in vehicles in Golden Bay, it will be interesting to see if Councillor Hill acts impartially and also agrees to initiate Court proceedings against people in her area.