A Bill Before Parliament

 

New Zealand is a democracy

  • Legislature defines the law
  • Executive executes the law
  • Judiciary enforces the law

This process is called checks and balances. It is fundamental to the constitutional foundation of NZ but in this proposed Act, it is extinguished.

News Flash July 2020

Building Amendment Bill

There is a bill in select committee that poses a threat to the mobile home industry as well as the constitutional foundation of democracy in NZ


  1. Laws always have a section that informs people and the courts as to its subject. What is it about? This proposed Act is about Building Products and Building Methods. 
  2. But in the section that sets out the meaning does not say what a Building Product or Method is, instead it says it is (or is not) whatever the Governor General by Order in Council says it is. This abdicates the role of the legislative and extinguishes the role of the judiciary.
  3. This means the targets have no protection in the Act and the courts have no external reference. 
  4. It means MBIE can declare a mobile home is a building product, and the courts are powerless to strike this down because words come to mean whatever the executive says they mean.
  5. This is a threat to the industry and to democracy.

READ MORE

9A Meaning of building product

(1) In this Act, building product means a product that—
(a) could reasonably be expected to be used as a component of a building; or

(b) is declared by the Governor-General by Order in Council to be a building product.

(2) However, a product that would otherwise be a building product under subsection (1)(a) is not a building product if it is declared by the Governor-General by Order in Council not to be a building product.


Relevant Law Links

Building Act Section 8 (meaning of building)

Resource Management Act §2(1)   (meaning of structure)

Land Transport Act §2(1) (meaning of vehicle)

Section 6.6 of Land Transport Rule 41001 (overwidth)

§2(1) Land Transfer Act 2017 (meaning of land inc building)

LDAC constitutional principles and values of NZ law

Ministries Undermining Law

 

Part 1 of the Fundamental constitutional principles and the rule of law says Legislation should be consistent with fundamental constitutional principles. Officials should carefully consider the impact of fundamental constitutional principles on proposed legislation

The word building is a fundamental constitutional principle of Common Law harking back to 1066.

  • The Land Transfer Act 2017 (5)(1) says land includes— (a) estates and interests in land: (b) buildings and other permanent structures on land: (c) land covered with water: (d) plants, trees, and timber on or under land.  This is the foundation of property law, which is the earliest law of Common Law. Land includes buildings. Buildings are fixtures attached to land and annexed to title. This is the constitutional basis on tenure.
  • The Building Act  2004 says building— (a) means a temporary or permanent movable or immovable structure (including a structure intended for occupation by people, animals, machinery, or chattels); and(b) includes— (iii) a vehicle or motor vehicle (including a vehicle or motor vehicle as defined in section 2(1) of the Land Transport Act 1998) that is immovable and is occupied by people on a permanent or long-term basis;  A building is a structure. A structure is fixed to land. Both building and structure are fixed to land and annexed to title.
  • The Resource Management Act 1991 says structure means any building, equipment, device, or other facility made by people and which is fixed to land; and includes any raft. In each of these laws, the constitutional meaning of building is preserved. 

 

But in 2019 the National Planning Standards created a new meaning: building means a temporary or permanent movable or immovable physical construction that is: (a) partially or fully roofed; and(b) fixed or located on or in land; but excludes any motorised vehicle or other mode of transport that could be moved under its own power.

This wordsmithing would be easy to miss in a 72 page document that ostensibly is to bring consistency to district plans. Indeed it only attracted 50 submissions, almost all from insiders, because the industry and the tens of thousands of existing mobile home occupants knew nothing about it. It was de facto usurpation of policy-making by anonymous civil servants focused on dealing with converted shipping containers and what MFE calls small mobile/relocatable buildings.

It is accepted that as factories manufacture prefabricated forms of shelter, they will become more popular and may not fit the district plans that presume all shelter are buildings. But the way to address that is not to undermine fundamental constitutional principles.

The word “building” is one of the most time-tested words in law, along with land, fixture and structure. The new forms of shelter that have internal integrity so they can be delivered to land as a whole, and removed from land as a whole, with no significant effect on the land are different than buildings and structures. They need their own classifications, and had MFE done this there would be no controversy, except to ensure grandfathering of existing portable shelter.

The solution for this can be simple. The cabinet should adopt three resolutions and one instruction:

  1. Building in the National Planning Standards has the same meaning as in the Building Act 2004 §8
  2. Structure as referenced in the Building Act 2004 §8 has the same meaning as in the RMA §2(1)
  3. Mobile homes that are not fixed to land are neither structures nor buildings.
  4. Instruct MBIE, MFE, NZTA to advise all district councils (both planning and building consent authorities) to abide by the current law as confirmed by the above resolutions.

Then initiate a process in cooperation with the industry and representatives of the people who will live or use such facilities to come up with fit-for-purpose regulation appropriate for habitat that is mobile (can be here today, gone tomorrow)

 

 

Meaning of Words in Law

Quicquid plantatur solo, solo credit 

(whatever is attached to the soil becomes part of it).

A Mobile Home is not a building unless it is fixed to land
A Mobile Home is not a structure unless fixed to land

The Building Act (8)(1) says:

Building : what it means and includes.

building— 

(a) means a temporary or permanent movable or immovable structure (including a structure intended for occupation by people, animals, machinery, or chattels); and 

(b) includes— … (iii) a vehicle or motor vehicle (including a vehicle or motor vehicle as defined in section 2(1) of the Land Transport Act 1998) that is immovable and is occupied by people on a permanent or long-term basis; [the Land Transport Act defines motor vehicle as “a vehicle drawn or propelled by mechanical power; and (b) includes a trailer;” [emphasis added]

The RMA, 2(2) Definitions says:

structure means any building, equipment, device, or other facility made by people and which is fixed to land [emphasis added]

The Building Act seems to confuse many building control authorities because they read past the 9th word “structure”, without paying attention to it. Structure has a very specific meaning in law that is at the very core of Common Law and Sovereignty. Unfortunately, the question has become obfuscated and is laden with recycled ignorance.

Taking away all the qualifiers, building means a… structure.  Or put another way, all buildings are structures, and if something alleged to be a building is not a structure, it is not a building, and therefore is not covered by the Building Act. It is not an exemption (like a 10 m² building), it is excluded from the Act. The BCA has no authority and asserting it is ultra vires (beyond their authority).

What is the meaning of the word “structure”?

The word structure has constitutional legal meaning, backed by both statute and case law. Before analysing the meaning of the word structure, review the basics of New Zealand constitutional law: In law, there is a generally accepted hierarchy of meaning:

  1. Subsection of the Statute in question
  2. Definition section of the Statute in question
  3. Definition section of Statutes having the same subject matter
  4. Interpretation Act
  5. Common Law including stare decisis
  6. Butterworths New Zealand Law Dictionary by Peter Spiller
  7. Oxford Dictionary of Law (British)
  8. Black’s Law Dictionary (American)
  9. New Zealand English Dictionary
  10. Other comprehensive (not vernacular) English dictionaries
  11. Google search

In the Building Act, the word “structure” is not given meaning, therefore one goes to the 3rd test, where the RMA says structure means any building, equipment, device, or other facility made by people and which is fixed to land

If one seeks further clarity, under Common Law one goes to Commonwealth Case Law, where one finds that Skerritts v Secretary of State speaks clearly to the question:

SKERRITTS OF NOTTINGHAM LIMITED Appellant – v – THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS [2000] EWCA Civ 5569 Case No. QBCOF 1999/0690/C. Relevant sections include:

  1. 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.”

  1. 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)

This makes it clear that for something to be a structure, it must be:

  • Of substantial size that it either is or normally would be built on the allotment rather than being brought on the allotment ready made
  • Once installed it would normally remain in situ
  • Intended to remain permanently on a permanent foundation
  • Removed by pulling it down or taking it to pieces

The test therefore is much simpler:

Is the unit in question fixed to land?

If not:

  • It is not a structure and therefore
  • It cannot be a building; and therefore
  • The Building Act does not apply and therefore
  • Building Control Authorities who demand application for a Building Consent, or who issue a Notice to Fix are exceeding their authority.
  • The authorities are acting ultra vires.

Beyond this clear definition, the Act further limits the authority in regard to motor vehicles. It refers to the Land Transport Act meaning of motor vehicle, which says “includes a trailer”.  Due to a lack of understanding of law, this is misread.  Anything not fixed to land is not a structure, but not all structures fixed to land are buildings. A mobile home or a mobile trailer home that is fixed to land may be a structure, but not a building.

A structure fixed to land that is “intended for occupation by people, animals, machinery, or chattels) is considered a building. But a mobile home (either self-powered or trailer) is only considered a building if it is fixed to land and is occupied by people on a long-term or permanent basis. This means a mobile home that is fixed to land (usually bolted to a foundation), but is intended for occupation by animals, machinery or chattels (or left empty, used as a water tank or whatever) is not a building under the Act. An example would be a caravan that has had its axles removed and its frame bolted to a foundation that is used as a hen house, or a tool room or to store clothing. This caravan is a structure, but is not considered a regulated building under the Building Act even though it is fixed to land.

Consider some of the common errors committed by councils

  • A council that says a mobile home or caravan is a building because it is occupied by people more than say 2 months a year is wrong. It must also be fixed to land.
  • A council that says a mobile home is a building because its wheels have been removed is wrong, unless the trailer is also fixed to land.
  • A council that says a mobile home is a building because it is over 10 m² is wrong.
  • A council that says a mobile home is a building because it is not registered with LTSA, or cannot legally be towed on public roads because of its width is wrong.

However, being wrong does not mean councils cannot bully. They can and do abuse their powers. They can issue abatement orders. They can take matters to MBIE Manager Determinations who also has shown a failure to understand the legal meaning of structure. They can harass and make people’s lives miserable. And in fact they do so. None of this is legal, but it is real and it is wrong.

Then we get to a deeper question: Rules versus reason.

The MBIE Manager Determinations argues that regulation is necessary to ensure health and safety of the occupants. But the councils do not act because someone is concerned about health and safety. They act because the target has been dobbed in by their neighbour – who is not concerned about the target’s health and safety. In almost all cases, the neighbour does not like the target or feels that the target is cheating the rules.

New Zealand used to be a pragmatic country where authorities used reason and common sense. People living in mobile homes were left alone unless there really was a danger to their health or safety. This is changing, but this is due to personalities, not law. The law has not changed. It’s only recycled ignorance being passed among personnel that has caused de facto erroneous interpretation. Reason has given way to rules, and rules given way to mass dereliction through ignorance. 

As shown by the leaking house crisis, in the case of large structures made by multiple parties, errors in construction can have catastrophic effects, a Building Code is important to ensure health and safety of the occupants who live in typical buildings.

But mobile homes are different from the scale of buildings properly addressed under the Building Act. Because of the limits inherent in mobility, mobile homes are small, simple, easy to repair, low cost and inherently safe and healthy.

  • The skill set to build them is different than that required of licensed building practitioners. The skill set is that of coach maker.
  • They must be sufficiently durable to arrive without damage after being towed on the worst of NZ’s substandard roads – worse than the rare shocks of earthquakes.
  • In the case of fire, all exits are a single door or window away, a few metres at most, and all at ground level.
  • They require little to heat or cool.
  • All components can be accessed for repair in a matter of hours, not months.

The legal complications if they are considered buildings.

Buildings lose their independent identity and become part of the land, annexed to title. This means a WINZ rental unit owned by an investor, with rent paid direct by WINZ, and parked on a 3rd party’s land (perhaps a church or charitable trust) becomes the property of the land owner. Technically, the investor has lost their investment. The land owner gets the unit for free, and if the land has a bank mortgage, the bank must give permission (which it will not) for the unit to be moved off site. The paperwork alone to prevent this will be more than the revenue earned by the lease. It appears no one has thought this through.

Conclusion

Mobile homes and mobile trailer homes, by whatever name (tiny home on wheels, caravan, mobile cabin, etc) are chattel, not buildings unless they are fixed to land. Case law suggests fixing means attaching to a foundation. Unless those conditions are met, the BCA is acting ultra vires in interfering.

Further, one must ask why the BCA voluntarily would seek to take on legal liability that it assumes when it issues consent for a building.  It makes no sense.

For decades, the mobile home industry operated quietly and without crisis. Now, as the nation faces an affordable housing crisis, in the name of the Crown, central and local government officials are creating an artificial crisis that will remove an affordable housing solution through death-by-regulation. Improper regulation that serves no good purpose.

Is regulation needed? Perhaps. But not building regulation. Mobile homes are not like buildings. They need fit-for-purpose regulation that does not increase costs by 50%, as happens when such units are fixed to land. 

Need for High Court Declaration

A high court declaration is a process where the court is asked several questions and makes a declaration based on them.

The questions are determined by the applicant’s lawyers, but in this matter would be in the nature of:

  1. What is a Building?
  2. What is a Structure?
  3. What does “fixed to land” and related terms mean?
  4. Will the court address the grey areas to give councils guidance (such as attached to mains utilities or using ground anchors to provide stability in high wind)?
  5. Are mobile homes chattel or buildings?
  6. Is any prefabricated shelter not fixed to land chattel?
  7. Are mobile trailer homes motor vehicles?

A high court declaration is primarily a written exercise. The actual court hearing is usually a day or less.

The applicant would probably be MHA who would retain lawyers to make the application. The lawyers would

  • ask one or two councils to join in the case
  • ask a large iwi to join in the case
  • ask a ministry to serve as a respondents in the case
  • research applicable law and make the case for a declaration based on case law and common law, asking that fundamental constitutional principles are upheld

The intent is to have consistency in legal words so that all parties… manufacturers, distributors, territorial authorities, customers, mobile-home users, government ministries and the courts use the words to mean the same thing.

Typically such an exercise takes 6-8 months.

The court declaration is binding on all, but the Parliament may exercise its powers of sovereignty to change the legal meaning of any word. Accordingly, MHA would reach out to the respective Ministers to ask that they support the declaration process, and where the law does not address emerging needs, such as the recent Tiny Home Movement, that new words are introduced into law that speak directly to the issues.

For example, instead of declaring a mobile home is a building, write mobile home legislation that legally defines the various types of mobile homes and then sets out rules for their management. In doing this, distinctive and relevant characteristics are not overlooked – most notably their mobility. Unlike a building which commits the landscape for no less than 50 years, a mobile home can be here today, gone tomorrow, leaving no foundation and removed in a way that it can be used somewhere else immediately.

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The New Zealand Human Rights Act 1993

The flat-white test

Years ago, then chair of the Auckland Regional Council, Gwen Bull was explaining to a group of senior citizens in a public meeting in the Red Cross meeting hall that the proposed ARC tax increase would cost no more than a flat white a week.

An enraged pensioner stood up and told Bull that she lived on a different planet. If I buy a $4 flat white, that is $4 in food I don’t eat that week.

Civil servants can afford a flat white at Starbucks; they think nothing of it, except perhaps to prefer Mojo’s to the American chain. At the bottom socio-economic sector of society, whom the mobile-home industry serves, will go without food if they spend it on a flat white. The civil servants in Wellington do not comprehend this social divide. They live, as the pensioner said, on a different planet.

That this is happening under Labour’s watch is mystifying. Pundits typically portray National as the party of the comfortable class, but under Labour the statistics for the underclass have grown much worse. But this is because the power lies with the civil service, the team leaders and officers who have career jobs in the ministries and agencies, not the politicians who come and go every three years. The unelected officials read the mood of the politicians, but unless there is a significant interest or core party platform, the biases of the officials tend to drive policy.

The recent Building Amendment exempting 30 m² buildings is a flat-white amendment. You have to own the land to erect a building on it, or afford a lease that is long enough to justify a capital investment in the building. Meanwhile the hidden homeless continue to live in cars, tents, garages. They don’t own land. They own what they can carry. They live day-to-day.

Recently, the New Zealand Human Rights Commission began to investigate the resistance the mobile home industry is encountering with its efforts to provide adequate, affordable housing. In the words of the NZ Human Rights Commission:

The human right to adequate housing is binding legal obligation of the State of New Zealand. This means the State of New Zealand has agreed to ensure that the right to adequate housing is progressively realised in New Zealand. It is an “international obligation” that must be performed in New Zealand. The State has a duty to protect the right of people in New Zealand to enjoy adequate housing and a responsibility to provide remedies…

As a State party to the international human rights treaties that protect the human right to adequate housing, the New Zealand
Government (both local and central) has a duty to respect, protect and fulfil this right. The Government is not required under its human rights obligations to build housing for anyone or to own houses. Its duty is to ensure that all people in New Zealand enjoy their human right to adequate housing. It must do that or it will be in breach of its obligations.

The human right to adequate housing does not simply mean a roof over people’s heads. The United Nations has defined seven standards that must be met in order for housing to be
adequate. [which includes:]

►Affordability: Housing costs should be at such a level so as not to compromise the attainment of other basic needs. For example, people should not have to choose between paying rent and buying food.

The government’s position was recently stated in an email to a MHA member: 

The Ministry of Housing and Urban Development is aware that tiny homes, including those on wheels, can provide people with a low-cost alternative home ownership opportunity, and this may be a preferably form of home ownership for some people. That being said, the building of tiny homes, including mobile homes, is not an option that is not currently being pursued by the Government and, as such, the Ministry does not have a formal advisory capacity on tiny homes, including those on wheels.

 
Instead, the Government has a comprehensive work programme to improve housing affordability. For example, you may have recently heard that the Government will deliver an extra 8,000 new public and transitional homes through Budget 2020. The additional housing places will be delivered by Kāinga Ora – Homes and Communities, Community Housing Providers and transitional housing providers. This is part of the Government’s housing work programme to ensure that every New Zealander has a warm, safe, and dry place to call home.
 
As you are likely aware, it is possible for New Zealanders to choose to live in a tiny home, if it meets the requirements of the Building Act 2004, the Building Code, and applicable local planning rules under district plans. The Building Act and Code are administered by the Ministry of Business, Innovation and Employment and it would be best placed to answer any questions you have with regards to how the Building Act and Code applies to tiny homes, including those on wheels.

The reply has some factual errors that need to be addressed first. “including those on wheels” is incorrect because Section 8 of the Building Act 2004 is explicit that a mobile home (aka tiny home) on wheels is not a building, not a structure, and is therefore excluded from the Building Act.

However, the human rights issue has to do with the fact that far more than 8,000 homes are needed. If pre-Covid there were 41,000 hidden homeless, as Housing Minister Salesa says, the government efforts will not be sufficient. NZ Human Rights Commission says:

The Government is not required under its human rights obligations to build housing for anyone or to own houses. Its duty is to ensure that all people in New Zealand enjoy their human right to adequate housing. It must do that or it will be in breach of its obligations.

Given the severe housing crisis, why is it that “the building of tiny homes, including mobile homes, is not an option that is not currently being pursued by the Government and, as such, the Ministry does not have a formal advisory capacity on tiny homes, including those on wheels”?

Mobile homes are the most affordable, efficient adequate housing available in New Zealand today. More importantly, where the State of New Zealand has agreed to ensure that the right to adequate housing is progressively realised, the mobile home is the best interim solution to enable progressive realisation. It is immediate, but at the same time, does not commit the land in the way buildings do. 

A family that seeks to lease a trailer home at say $250/week can afford that rent and still buy food. But if the council says the home is a structure under the RMA requiring a resource consent, and a building under the Building Act, the family must come up with the cash to pay for the consents.

In the free 15-minute consultation, the duty planner will typically ask multiple times who the applicant’s consulting planner will be. Consulting planners are often former council planners who hang out a shingle and charge $300/hour to walk an application through. One professional hour costs more than a week’s rent. Then the duty planner tells the applicant the first thing they must do is to pay a deposit of $3,000 of which the first charge is $500 for a Resource Consent pre-application meeting (using Auckland Council as the example). So the pre-application meeting costs two-weeks rent and the deposit six weeks plus additional thousands for the consulting planner.

By this time, the applicant, who struggled to come up with $500 for first and last weeks rent, breaks down in tears, walks out of the free consultation and moves back into their car, tent or their cousin’s garage. Had they persisted however, next they would be told to pay a $2,645 deposit for the building consent.

In the mid 20th century in the USA some southern states instituted a poll tax that disenfranchised African American voters who could not afford to pay the tax. A similar situation exists with mobile homes 

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