A frustrated landowner who took the Hamilton City Council to court arguing that his fake tiny home was public art has won his appeal and can keep his masterpiece in place.
But the council is warning homeowners that this does not mean anyone can plonk their view of public art on their sections and get away with it.
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Hamilton man David Yzendoorn put the Cosco container on his oddly shaped section on Petersburg Drive, Flagstaff, in June last year after a long-running battle with the council over what he could build on his land due to its special zoning.
Yzendoorn claimed the container, which was decorated with fake windows and a door, was “public art” and his motivation for creating the installation was to make a visual statement and express his frustration over the housing crisis in New Zealand.
Notices were fixed to the outside of the container explaining the art work. Photo / Supplied
Several neighbours complained to the council over the eyesore and the council launched a two-month-long investigation. It argued that it met the definition of a ‘building’ and ‘relocatable building’ under the District Plan so was not permitted on land zoned natural open space and needed to be moved.
Yzendoorn appealed the decision to the Environment Court. In a decision released this week, Judge Melinda Dickey ruled that the container in its present form was public art under the Operative District Plan and therefore permitted.
She cancelled the abatement notice ordering Yzendoorn to remove the container.
Yzendoorn told OneRoof it had been a “resounding win” and the public artwork would stay.
“We are open to suggestions from neighbours on how to improve on it, not necessarily remove it.”
The decorated container is on a private section on Petersburg Drive, but is accessible to the public from the footpath. Photo / Supplied
Council planning guidance manager Grant Kettle said allowing a shipping container to be displayed on private property because it was deemed public art was “not common sense” and the definition of public art in Hamilton’s District Plan may need to be reviewed.
“Common sense tells us that the structure on this site is a shipping container, first and foremost. The court’s decision to disregard this fundamental element is disappointing for the community and shows us that our definition is open to interpretations that may lead to outcomes the community does not want.”
The council was now considering its legal options including whether to appeal against the decision, he said.
He said the decision did not suddenly mean any kind of public art could be put on private property, and anyone considering it should check the rules in the District Plan and check with council first.
However, the legal battle between the two parties was far from over as they continued to argue over whether Yzendoorn can build a duplex on his sloping section.
The resource consent for the development was declined in January by an independent commissioner due to the impact on the Significant Natural Area (SNA), visual amenity and landscape effects.
Yzendoorn has also appealed this decision, sending the two parties back to the Environment Court.
The council was unable to provide the cost of the legal action regarding the shipping container appeal prior to deadline. Yzendoorn confirmed he would be applying for costs to be awarded to him as a result of the recent win.
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