Appeal from determination — building consent — access to employment — disability community — human rights — agricultural worker accommodation — reasonable and adequate provision — reasonable exception — New Zealand Recognised Seasonal Employer (RSE) scheme — seasonal workers — statutory interpretation — plain wording — "hostel" — "the public" — Building Act 2004, ss 2, 4(2)(k), 114, 115, 117, 118 & sch 2 — Human Rights Act 1993, ss 21(1)(h), 23, 29, 35, 42, 43, 53 & 56 — New Zealand Bill of Rights Act 1990, ss 6 & 19 — United Nations Convention on the Rights of Persons with Disabilities, art 27(1)(i) — Building Code — New Zealand Disability Strategy 2016-2026 — Commerce Commission v Fonterra Co-operative Group Limited [2007] NZSC 36 — Ministry of Health v Atkinson [2012] NZCA 184 — Northern Regional Health Authority v Human Rights Commission (1998) 2 NZLR 218 (HC) — Smith v Air New Zealand Limited [2011] NZCA 20 — WorkSafe New Zealand v Athenberry Holdings Ltd [2018] NZDC 9987. This was an appeal by a district council against a determination of the Chief Executive of the Ministry of Business, Innovation and Employment (MBIE) that the council had wrongfully declined building consent to a proposed change of use of the respondent's existing dwelling. The respondent, who owned a kiwifruit orchard, had applied for building consent to convert part of an existing dwelling into accommodation for seasonal workers, but had been declined consent on the basis that he was not providing adequate sanitary facilities for people with disabilities. The MBIE determination stated that any worker capable of the specified kiwifruit orchard work would also be able to use standard toilet facilities. The issue on appeal was interpretation of s 118 and sch 2 of the Building Act ("the Act"). Section 118 requires "reasonable and adequate" provision for sanitary facilities for persons with disabilities who may visit or work in a building. Section 115 of the Act requires a code of compliance for change of use of a building, and that the change of use complies, as nearly as reasonably practicable, with s 118. Schedule 2 lists various buildings to which s 118 applies, including hostels. The Judge noted that this was the closest likely comparable building to seasonal worker accommodation, but determined, after looking at the dictionary definition and comparing it to other types of accommodation, that it did not fall within this definition. It also did not fall within the definition of a building "to which members of the public are to be admitted" as access was specific to employment status. The Judge therefore concluded that s 118 did not apply to the respondent's change of use; however, the Judge carried on to determine, if s 118 did happen to apply, whether a reasonable exception also applied. This required an analysis of the Human Rights Act (HRA), the New Zealand Bill of Rights Act (NZBORA), United Nations Convention on the Rights of Persons with Disabilities and the nature of the kiwifruit picking industry. The Judge considered evidence in relation to the disability community and what was required of a kiwifruit orchard worker, and came to the same conclusion that MBIE had in its determination: that any worker capable of the specified kiwifruit orchard work would also be able to use standard toilet facilities. Discussion as to how wheelchair design improvements may increase the ability of disabled workers to participate in the kiwifruit picking industry were no more than speculation for the time being. The Judge noted, having found that the determination accorded with the requirements of the HRA, NZBORA and the UN Convention, that this case would not necessarily have a lot of precedent value as the case turned on its own facts. The appeal was dismissed. Judgment Date: 10 August 2020.