Seeking a High Court Declaration
High Court Declarations are not sought for legal niceties. They are prompted by damage wrought by improper interpretation of law.
Adequate housing is a fundamental human right. In New Zealand, the hidden homeless are people living in cars, tents, garages and overcrowded conditions. The state house waiting list was at 6,000 families when Jacinda Ardern became Prime Minister in 2017. It grew at about 400 per month, and as of June 2021 stands at 24,424 families – with this number only representing the families who have navigated the red tape of the system. Large numbers of the voiceless are being hurt.
The private sector making mobile homes emerged about two decades ago, when a perfect storm of government action (and inaction) set the stage for unaffordable housing. Mobile home factories typically began with an entrepreneur making a small number, and in response to market demand, grew into factories making dozens or hundreds of units per year.
At the time, MBIE interpreted the Building Act 2004 Section 8, providing guidelines enabling the industry to grow until about 2018, when a new Manager Determinations MBIE was appointed who broke with stare decisis in determinations that turned precedent upside down. Concurrently, the Ministry for the Environment (MFE) drafted National Planning Standards (NPS) to be incorporated by local government when they would revise their district/unitary plans. They redefined buildings to include chattel, ignoring the most established law of the land. Some district councils became hostile prosecutors of both individuals and companies, while others left them alone.
The victims of this radical redefinition are the hidden homeless. The domestic providers are inhibited by the hostility encountered; the threats made by councils, thus the hidden homeless numbers grow.
When the pendulum swings too far, the system of checks and balances that make a democracy work are called to uphold the law, in this case by High Court Declaration.
Mobile homes are not buildings. They are not structures. They are not realty. As a generic form of habitat, they existed long before conquerors claimed sovereignty over land, issuing a bundle of rights over called real estate or realty.
The ancestry of mobile homes came from nomadic life, where families would pack their home on the back of cattle and oxen, or on skids dragged behind to the next location. It is from this that Common Law gets the word chattel – personal property not fixed to land and not annexed to title.
Mobile homes never died out. Families have been living in them for thousands of years to the present. Their primary appeal is their mobility – here today, gone tomorrow. They do not commit the land physically, and do not become entangled with fee simple ownership of realty. In the 21st century, they are immediate, where that immediacy is often in response to a crisis.
The majority of mobile homes are purchased or leased to provide shelter either for an elder who cannot look after themselves but wishes to maintain a degree of independence not possible in a retirement home, or a solo parent in crisis who has a family member with land who is OK about parking a mobile home next to their house, connecting a caravan-style power-point, water hose and wastewater connection. Under most circumstances the relationship is similar to the Maori concept of tuku whenua – permission to occupy out of love and concern, not as commercial rent.
Mobile homes have a light footprint on the environment, and they are simple – not requiring the same level of regulatory oversight as buildings intended to perform for no less than 50 years on the same foundation.
Mobile homes are not annexed to title. They do not lose their independent autonomy. They remain chattel, unless the land owner applies to the council to fix them to a foundation whereupon they become buildings.
The High Court is being asked to declare the legal meaning of building, structure and fixed/annexed to land.
The meaning of building and structure should take very little time or involve very little argument, because they are so well established in Common Law:
- All buildings are structures
- All structures are realty
- All realty is either land or fixed/annexed to land
More time will be expected on identifying the boundary line between chattel forms of shelter and buildings. It is expected there are two lines – black and white, and an in-between grey area.
The court will be asked to set out clear delineation in the black and white questions, and some guidance for finders of fact in the grey area. Where it is black and white, appellants would expect to cite the declaration as grounds for summary judgement. In the grey area, precedent would be summarised in the declaration to provide time-tested guidance for councils, quasi judicial bodies, district & environment courts.
A major concern of councils has to do with joint and several liability. The leaking house crisis saw the liquidation of the designer firms, construction companies and and certifying engineer firms that approved what proved to be defective designs or substandard building methods. The councils left liable take no comfort in MBIE determinations. They need a clear high court declaration that informs them (and the public) when a mobile home is not a building, thus not council responsibility under the Building Act. The same holds true for the RMA which defines a structure as “fixed to land”. The NPS meaning of building is badly written, with lazy language rather than follow the lead of other OECD countries and draft fit-for-purpose language.
Inventing new meanings for ancient legal words is ill advised and it falls to the high court to examine and issue a suitable declaration.
Regulatory creep is where incremental changes to rules and standards results in an outcome that exceeds the intention of the law.
The National Planning Standards (NPS) definition of building was specifically expanded to include chattel. The Ministers who signed off on it were unaware of the revolutionary change contained by adding five words as underlined “Building means any a temporary or permanent movable or immovable physical construction that is‐ (a) partially or fully roofed, and (b) is fixed to or located on or in land.
The commentary explained: “The original definition of structure in the draft planning standards was included to capture structures that are located on land but not fixed to land on the basis that it is becoming more common for relocatable structures to be used that are not fixed to land. Shipping containers have been difficult to manage under the RMA as it is their own weight that holds them down (they are not fixed to land) and small mobile/relocatable buildings have become more common over recent times.
In other words, instead of taking the time to do it right, the authors who prepared the NPS for the Minister to sign off just decided to change one of the most established legal concepts in Common Law.
If the government perceives there is a problem with containers and habitat for people that is not fixed to land, they have the power to write new laws, as other OECD countries have done. But in doing so, the public consultation will point out that mobile shelter has fundamental differences, and the law should be fit for purpose.
The first step to encouraging the government to do it right is to restore the rule of law by the High Court declaring the meaning of building, structure and annexed to land, so the confusion is dispelled.
On Movable and Immovable Property
Sir John W. Salmond is considered an inaugural or founding father of not only a law school, but also of a New Zealand jurisprudence. He was the former Solicitor General of New Zealand and in 1902, he wrote Jurisprudence. The 12th edition 1966 is still cited and his comments on moveable and immovable property offers clarity of thought as relevant in 2021 as in 1902.
A PDF of the 4th edition can be found here . Start at page 392 (pdf page 408). See print screen below.
In §155. Movable and Immovable Property, Salmond sets out the elements for immovable property (i.e. land):
Among material things the most important distinction is that between movables and immovables, or to use terms more familiar in English law, between chattels and land. In all legal systems these two classes of objects are to some extent governed by different rules, though in no system is the difference so great as in our own.
5… all objects placed by human agency on or under the surface with the intention of permanent annexation. These become part of the land, and lose their identity as separate movables or chattels; for example buildings, walls and fences. Omne quod inaedificatur solo cedit [Everything which is erected on the soil goes with it] said the Roman Law. Provided that the requisite intent of permanent annexation is present, no physical attachment to the surface is required. A wall built of stones without mortar or foundation is part of the land on which it stands. Conversely, physical attachment, without the intent of permanent annexation, is not in itself enough. Carpets, tapestries, or ornaments nailed to the floors or walls of a house are not thereby made part of the house. Money buried in the ground is as much a chattel as money in its owner’s pocket.
Footnote 2: Unlike a chattel, a piece of land has no natural boundaries. Its separation from the adjoining land is purely arbitrary and artificial, and it is capable of subdivision and separate ownership to any extent that may be desired.
The word annexation is laden with legal meaning. It is about intent. If a land owner wishes to make a mobile home becomes a building, they apply for consent to build a foundation, show the home meets the health, safety and durability requirements for a building, and the chattel ceases to be personal property and becomes realty. It not only is fixed to land, but annexed to title. It loses its independent identity.
In practical terms this happens by fixing it to a foundation, but also by registering it on the Property Title (Records of Title). The two acts – paper and physical – are one act and they cannot be bifurcated. Annexation, where the paper act (digitally recorded since the Land Transfer Act 2017) is inextricably tied to the physical act of fixing to land. As Salmond says, physical attachment, without the intent of permanent annexation, is not in itself enough.
Te Tiriti o Waitangi
The marriage of Māori tikanga with Common Law is relevant to the question of the legal status of movable property.
Te Tiriti promises the Crown will protect tino rangatiratanga over whenua, kainga and taonga katoa.
Whenua is land, but whenua is not realty. While under the English Treaty, Māori ceded sovereignty of all lands to the Crown, under tikanga, this is impossible because the land owns the people, not the other way around. The people are the guardians of the land; they are born and die, whilst the land remains. Curiously, this view of land gradually is being adopted by western culture and the idea of conquest and confiscation is losing support. Tikanga and Common Law are merging into a new, more enlightened understanding of human life on Earth.
Kainga is the village. It is on the whenua, and is how people live as a community.
Taonga katoa is all that the people value, and this includes the wharepuni – the small family homes shown in the painting of a kainga, above. Wharepuni are more akin to the modern day mobile home than the English building. They exist to provide shelter for as long as it is needed, but their connection to the land is transitory.
Māori are disproportionately represented in the hidden homeless, especially in rural lands. They need housing now, but the red tape required – especially when the land is in Māori title – means they remain sleeping in cars, tents, garages and overcrowded conditions.
While this declaration seeks clarity in Common Law, it is relevant to tikanga. Indeed, most mobile homes have the same relationship to land as whenua – most notably tuku whenua, which is a right or permission to occupy, in contrast to mana whenua which is based on being tangata whenua. Just as Te Tiriti promises tino rangatiratanga to nga tangata katoa o Nu Tirani, this modern form of tuku whenua (permission to occupy) is the basis of most mobile home placement regardless of whether the owner is Pakeha or Māori.
Typically a family member owns the land, and has an elderly parent, or grown children with family of their own, unable to buy or rent adequate housing. The family member who owns the land gives permission to bring a mobile home onto the land. Typically, they plug the mains power from the mobile home into the main house, attach a potable water hose to an outdoor tap and connect wastewater the same as is done with a caravan. Some remove the wheels and put the mobile home on blocks so it does not bounce and in extra high wind zones they may affix pegs or bolts to keep from moving in storms.
There is no need for the council to become involved, except if the additional bedrooms exceeds the waste water system, or if the unit is too close to a side yard or exceeds the allowable density.
Equally important is intent regarding annexation. A right to occupy does not annex the chattel to the realty. The host who owns the land does not gain ownership by the guest parking it on the land. If the bank forecloses on the land, they have no right to be mobile home. It is the same as cars parked there.
Skerritts v Secretary of State for the Environment, Transport and the Regions (No.2)
Cheshire CC v Woodward  2 Q.B. 126; 
Skerrits v Secretary of State for the Environment 
SKERRITTS OF NOTTINGHAM LIMITED Appellant – v – THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS  EWCA Civ 5569 Case No. QBCOF 1999/0690/C. Relevant sections include:
- The words which were used in the context of rating in that case upon which the judge and Mr Katkowski, who appears for the respondent, rely, are to be found in the judgments of Denning LJ and Jenkins J. Denning LJ said this:
“A structure is something of substantial size which is built up from component parts and intended to remain permanently on a permanent foundation; but it is still a structure even though some of its parts may be movable, as, for instance, about a pivot. Thus, a windmill or a turntable is a structure. A thing which is not permanently in one place is not a structure but it may be, ‘in the nature of a structure’ if it has a permanent site and has all the qualities of a structure, save that it is on occasion moved on or from its site. Thus a floating pontoon, which is permanently in position as a landing stage beside a pier is ‘in the nature of a structure’, even though it moves up and down with the tide and is occasionally removed for repairs or cleaning.”
- Jenkins J said this:
“It would be undesirable to attempt, and, indeed, I think impossible to achieve, any exhaustive definition of what is meant by the words, ‘is or is in the nature of a building or structure’. They do, however, indicate certain main characteristics. The general range of things in view consists of things built or constructed. I think, in addition to coming within this general range, the things in question must, in relation to the hereditament, answer the description of buildings or structures, or, at all events, be in the nature of buildings or structures. That suggests built or constructed things of substantial size: I think of such size that they either have been in fact, or would normally be, built or constructed on the hereditament as opposed to being brought on to the hereditament ready made. It further suggests some degree of permanence in relation to the hereditament, ie, things which once installed on the hereditament would normally remain in situ and only be removed by a process amounting to pulling down or taking to pieces.” (Underlining is in the court document)
Barvis v Secretary of State for the Environment 
Mr Justice Bridge thought it was wrong to substitute issues of real property law and cases on fixtures for the statutory definition in the 1990 Act. Instead he found assistance from a case on the meaning of building or structure for the purposes of rating (Cardiff Rating Authority v Guest Keen Baldwin’s Iron and Steel Co (1949)). The judge in that case picked out 3 factors which, while not conclusive, would indicate that something was in the nature of a building or structure. These are:
- substantial size – such that it has or would normally be constructed on the land and not ready made;
- some degree of permanence – so it would normally remain in place and only be removed by pulling down or taking to pieces; and
- physical attachment, although the fact that something is not so attached is not conclusive.
The judge also observed that a limited degree of motion does not necessarily prevent something from being in the nature of a structure.
‘If, as a matter of impression, one looks objectively at this enormous crane, it seems to me impossible to say that it did not amount to a structure or erection.’
This 93 page pdf of Appendices is a good place to start in referencing relevant case law: http://publicaccess.wokingham.gov.uk/NorthgatePublicDocs/00338942.pdf
Start on Page 33
The approach of the courts in construing the definitions has been to ask first whether what has been done has resulted in the erection of a “building”: if so, the court “should want a great deal of persuading that the erection of it had not amounted to a building or other operation” (Barvis Ltd v Secretary of State for the Environment (1971) 22 P. & C.R. 710 at 715, per Bridge J.). Following that approach, in R. (on the application of Westminster City Council) v Secretary of State for the Environment, Transport and the Regions  J.P.L. 58; Jackson J. set aside the Secretary of State’s decision that the stationing of a wooden kiosk (2.14m square, and 2.7m high) at Covent Garden did not require planning permission. He held that the Secretary of State had erred in focusing on the question whether the placing of the kiosk was a building operation, instead of the question whether the kiosk in its final form was a building.
In the Barvis case, the Divisional Court placed reliance upon a passage in the judgment of Jenkins J. in Cardiff Rating Authority v Guest Keen Baldwin’s Iron and Steel Co Ltd  1 K.B. 385 (subsequently endorsed by the Court of Appeal in Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No.2)  2 P.L.R. 102) which identified three primary factors as being relevant to the question of what was a “building.”
- size: a building would normally be something which was constructed on site as opposed to being brought already made to the site. But it may nonetheless be on a small scale, such as a model village (Buckinghamshire County Council v Callingham  1 All E.R. 1166). Nonetheless, where the operations are quite insignificant, they may be regarded as de minimis, and outside control: see, e.g. the planning appeal decision at  J.P.L. 122 (boundaries of “leisure plots” marked out by about a dozen metal pegs interlaced with two strands of nylon rope).
- permanence: a building, structure or erection normally denotes the making of a physical change of some permanence. In Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No.2)  2 P.L.R. 102 the Court of Appeal upheld an inspector’s decision that a marquee that was erected on a hotel lawn every year for a period of eight months was, due to its ample dimensions, its permanent rather than fleeting character and the secure nature of its anchorage, to be regarded as a building for planning purposes. The annual removal of the marquee did not deprive it of the quality of permanence. Permanence did not necessarily connote that the state of affairs was to continue forever or indefinitely. The importance of permanence is illustrated by the following decisions: in James v Brecon County Council (1963) 15 P. & C.R. 20 the Divisional Court declined to find any error in a ministerial decision that the erection of a battery of fairground swing boats, capable of being lifted and taken away complete by six men or dismantled in about one hour, did not constitute development. Similarly, the mere stationing of mobile caravans and touring caravans on land would not be taken to involve any building operation, having regard to the factors of permanence and attachment: Measor v Secretary of State for the Environment, Transport and the Regions  4 P.L.R. 93. On the other hand, where a number of self-build chalets and sheds had been erected and suspended on pillars on land, it could be assumed that they were all erected with a prospect of permanence, and as a matter of objective judgment they would have to be regarded as “structure or erections” for the purposes of the Act: R. v Swansea City Council Ex p. Elitestone Ltd (1993) 66 P. & C.R. 422.
- physical attachment: this is in itself inconclusive, but weighed against the other factors may tilt the balance. Thus, in Cheshire County Council v Woodward  2 Q.B. 126 the Divisional Court declined to disturb a ministerial finding that no development had occurred when a wheeled coal hopper and conveyor between 16 and 20 feet high had been brought on to the appeal site; but in Barvis Ltd v Secretary of State for the Environment (1971) 22 P. & C.R. 710 the erection of a large scale tower crane running along rails was held to constitute development notwithstanding that it was capable of being dismantled and being erected elsewhere. In Tewkesbury Borough Council v Keeley  EWHC 2594 (Q.B.) Jack J. held that certain sheds that were mobile, to the extent of having wheels so they could be moved about a site, did not constitute buildings, and that planning permission had not been required for their stationing on agricultural land. Nor did this constitute an “other operation” under s.55(1): if there was no building operation because the shed was not a building, then it fell outside the potentially apposite category and should be treated as outside the section.
The above factors were discussed and applied in R. (on the application of Hall Hunter Partnership) v First Secretary of State  EWHC 3482 (Admin) (polytunnels for soft fruit production). The High Court upheld the inspector’s decision that agricultural polytunnels constructed by machinery on top of legs penetrating 1 metre into the ground constituted operational development due in part to their degree of attachment to the land. At  Sullivan J. considered the evidence that “it took teams of 10 men 45 man hours to fully erect 1 acre and 32 man hours to dismantle the same”, “machines were used to screw the legs up to 1m deep into the ground and to bend straight lengths of metal into arcs to create the hoops” and “3.9ha (or 9.6 acres) would on that basis have taken over 430 hours (or about a week’s work for the 10 man team, assuming no over time) to erect and over 300 hours for them to dismantle” and in such circumstances held at  –
“In view of the fact that machines were used to screw the “vast number of … legs needed” up to one metre into the ground, it is not surprising that the inspector concluded “the polytunnels have a substantial degree of physical attachment to the ground”. “‘Permanence’ does not in this context necessarily connote a state of affairs which is to continue forever or indefinitely. It is matter of degree between the temporary and the everlasting” (see per Morritt L.J. at 1036 of Skerrits). The fact that a large and well constructed structure is capable of being, and is, dismantled and removed annually for a short time is not determinative (see per Pill L.J. at 1035 of Skerrits). If one asks how long must a structure or erection remain in situ for there to have been a sufficient degree of permanence, the answer is: “for a sufficient length of time to be of significance in the planning context” (see per Schiemann L.J. at 1034 of Skerrits). The inspector’s finding that the polytunnels “would remain in one particular location from between three and seven months in any one year” (para.54) is not challenged. His conclusion that “even the shortest of those periods of time would be a sufficient length of time to be of consequence in the planning context and more so in respect of the longer periods” cannot be said to be unreasonable.”
In R. (on the application of Save Woolley Action Group Ltd) v Bath and East Somerset Council  EWHC 2161 (Admin);  Env. L.R. 8 Lang J. held that the local planning authority had adopted too narrow an approach to the meaning of development when considering the application of the 1990 Act to certain poultry units. The units in question were described as follows:
(i) the poultry units would house 1,000 laying hens, each weighing 2kg;
(ii) each unit was approximately 20 metres by 6 metres by 3.5 metres high;
(iii) the units were not fixed to the ground, but were on metal skids to allow them to slide along the ground when pulled by a tractor;
(iv) if extreme winds were forecast they could be held down with metal spikes;
(v) each unit would weigh about 2 tonnes (in addition to the 2 tonne flock of hens);
(vi) each unit would be in a fenced paddock of 1-2 acres and would stay in the paddock;
(vii) the units would be moved within their paddock regularly (approximately every 8 weeks) by being dragged by a tractor or 4×4;
(viii) each unit could be assembled by a ‘skilled’ team from metal hoops, metal skids, uPVC planks, polythene and insulation in ‘a couple of days’. If the metal hoops were not taken apart then the shed could be dismantled in 3-4 hours;
(ix) the units had slatted floors, manually operated conveyor belts, drinkers, feeders and integral lighting. They were powered by an onsite generator;
(x) the units were supplied with mains water by means of a hosepipe connection to standpipes located alongside the access track.
Lang J. held that the term ‘building’ in s.336(1) had a wide definition which included “any structure or erection” and this definition has been interpreted to include structures which would not ordinarily be described as ‘buildings’ (). Given, in particular, the substantial weight and size of each unit the local planning authority should have considered whether the units fell within s.336(1). In concluding that the units were chattels and not buildings as they could be moved around the site, the authority had erred. Permanence had to be considered in terms of “significance in the planning context” and “the ability to move [the units] around the field did not remove the significance of their presence in planning terms” (). The works carried out to construct the units were capable of falling within s.55(1)(A)(d) “other operations normally undertaken by a person carrying on business as a builder”.
Guidance in relation to the meaning of building operations may also be obtained from Ministerial decisions. For example, an inspector held that the erection in a pub garden of three large umbrellas in concrete footings and attached together with canvas side shades amounted to the erection of a building (Ref: APP/H5390/C/1128513); an inspector held that the erection of a large stainless steel sculpture constituted a building operation (Ref: APP/K5600/X/10/2140909 and  J.P.L 822); but an inspector held that the installation of a freestanding cash dispensing machine on a garage forecourt was not a building operation (Ref: APP/22830/C/06/2009917).
Degree of annexation
The importance of the degree of annexation will vary from object to object. In the case of a large object, such as a house, the question does not often arise. Annexation goes without saying. So there is little recent authority on the point, and I do not get much help from the early cases in which wooden structures have been held not to form part of the realty, such as the wooden mill in Rex v. Otley (1830) 1 B. & Ad. 161, the wooden barn in Wansborough v. Maton (1836) 4 Ad. & El. 884 and the granary in Wiltshear v. Cottrell (1853) 1 E. & B. 674. But there is a more recent decision of the High Court of Australia which is of greater assistance. In Reid v. Smith  3 C.L.R. 656, 659 Griffiths C.J. stated the question as follows:
- “The short point raised in this case is whether an ordinary dwelling-house, erected upon an ordinary town allotment in a large town, but not fastened to the soil, remains a chattel or becomes part of the freehold.”
The Supreme Court of Queensland had held that the house remained a chattel. But the High Court reversed this decision, treating the answer as being almost a matter of common sense. The house in that case was made of wood, and rested by its own weight on brick piers. The house was not attached to the brick piers in any way. It was separated by iron plates placed on top of the piers, in order to prevent an invasion of white ants. There was an extensive citation of English and American authorities. It was held that the absence of any attachment did not prevent the house forming part of the realty. Two quotations, at p. 667, from the American authorities may suffice. In Snedeker v. Warring, 2 Kernan 178 Parker J. said:
- “A thing may be as firmly fixed to the land by gravitation as by clamps or cement. Its character may depend upon the object of its erection.”
In Goff v. O’Conner, 16 Ill. 422, the court said:
- “Houses in common intendment of the law are not fixtures, but part of the land. . . . This does not depend, in the case of houses, so much upon the particular mode of attaching, or fixing and connecting them with the land, upon which they stand or rest, as upon the uses and purposes for which they are erected and designed.”
Purpose of annexation
Many different tests have been suggested, such as whether the object which has been fixed to the property has been so fixed for the better enjoyment of the object as a chattel, or whether it has been fixed with a view to effecting a permanent improvement of the freehold. This and similar tests are useful when one is considering an object such as a tapestry, which may or may not be fixed to a house so as to become part of the freehold: see Leigh v. Taylor  A.C. 157. These tests are less useful when one is considering the house itself. In the case of the house the answer is as much a matter of common sense as precise analysis. A house which is constructed in such a way so as to be removable, whether as a unit, or in sections, may well remain a chattel, even though it is connected temporarily to mains services such as water and electricity. But a house which is constructed in such a way that it cannot be removed at all, save by destruction, cannot have been intended to remain as a chattel. It must have been intended to form part of the realty. I know of no better analogy than the example given by Blackburn J. in Holland v. Hodgson, L.R.7 C.P.P. 328, 335:
- “Thus blocks of stone placed one on the top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder’s yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels.”
Commentary: As noted in the bold text, A house which is constructed in such a way so as to be removable, whether as a unit, or in sections, may well remain a chattel, even though it is connected temporarily to mains services such as water and electricity. Mobile homes are called mobile for a reason. They are manufactured (not constructed) to be removable. Their purpose is to provide housing when it is needed, and to be removed, complete and intact when no longer needed, to be parked on the next allotment anywhere else including at the other end of the country where shelter is required for a period of time.