Court says container is a work of art
When is a shipping container not a shipping container?
Answering that “pertinent question” – with a little help from a 107-year-old urinal – has seen the Environment Court reject city council attempts to shift a shipping container from a peaceful and well-kept north Hamilton street.
The container was installed on a section owned by David and Barbara Yzendoorn in June last year as a “public art display”, leading to complaints from neighbours, and an abatement notice from the council to remove the container.
However, according to a decision from the Environment Court, “the abatement notice is cancelled”.
The ruling addressed what the court deemed the “pertinent question”.
“The council has separately established, including through responses from Mr Lester [Timothy Lester, consultant planner called by the Yzendoorns] under cross-examination, that the installation also presents – particularly at first sight – as a disused shipping container.
“The pertinent question therefore is – when is a shipping container not a shipping container?”
The ruling notes that the container was designed to look like a house, and “has been created to make a visual statement commenting on social issues affecting modern society”.
Hamilton City Council, however, issued an abatement notice in the wake of complaints from nearby residents, “on the grounds that the shipping container was a building, or relocatable building ... and required a resource consent”.
Council also cited “objectionable” visual impacts for wanting the container canned.
Appealing that decision, the Yzendoorns argued that the container met the definition of “public art” under the Operative Hamilton District Plan (ODP), and was therefore a permitted activity, and was not functioning as a storage facility.
Council argued that its location, not in a public space accessible to all users, meant it failed to meet the definition of public art.
“It remains a shipping container placed or stored on the property. As such, it required a resource consent.”
The Environment Court conceded that neighbouring residents did regard the container as detracting from their wider neighbourhood’s amenity – and that “it cannot be said to be aesthetically pleasing”, but on an objective basis “its effects do not rise to being offensive or objectionable”.
The court also rejected concerns that the ruling would “open the floodgates for avoidance of the consent process by referring to a land use activity as public art”.
Yzendoorn also received support from architectural designer and Hamilton City councillor Andrew Bydder, and local artist Peter Dornauf.
“Mr Dornauf observes that the artwork falls within the art style of an ‘altered readymade’.
“This was invented in the modern era of the twentieth century by artist Marcel Duchamp to describe prefabricated and often mass-produced objects isolated from their intended use and elevated to the status of art.”
“Mr Lester concludes that the installation meets the definition of public art.”
Lester also deemed that the container “could constitute artistic works”.
The Environment Court agreed.
“We find that the installation is in a public space as described in the definition of public art,” the decision said. “In short, even though it may retain the look of a shipping container, it can no longer be considered as such. It has been repurposed as an art installation.”
Stuff has approached Hamilton City Council for a response to the Environment Court ruling.