National Planning Standards (NPS)
Lazy language plants the seeds for more problems
The Government is bringing in a whole range of National Standards, which are lesser instruments of government. The do not require to be passed into law by the House or approval of the Governor General by Order of Council (a vote of the Executive Council). Instead they are presented to the ministers, in this case Hon David Parker and Hon Eugenie Sage. They are not law, but they are authorised by law.
This is a disturbing trend in government because it obviates NZ’s checks and balances tripartite government by shifting balance of power from the legislative to the executive which ultimately means faceless, unaccountable ministry officers, team leaders and managers writing policy where elected officials sign off reams of documents in which gotcha elements are buried and not subject to disclosure until the council officers issue abatement notices by which time it is too late. This is what happened with the NPS.
The focus of the Mobile Home Association is on the NPS definition of “building” because this has become a major source of contention. Think of in a tribal way: cave dwellers versus nomads.
Cave versus Nomad
Buildings have their ancestry in caves. They are fixed to land, they are part of the land, as expressed in Quicquid Plantatur Solo, Solo Cedit a Latin maxim which means “whatever is affixed to the ground belongs to the ground.”
Mobile Homes have their ancestry in nomadic homes such as yurts. They are mobile, the are located on land for a time, then moved leaving no construction waste or significant damage to land, having used tent pegs to hold them down in high wind.
When Cave people dictate rules for Nomads, the outcomes don’t fit.
NPS Meaning of Building
See National Planning Standards p55
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. [emphasis added]
These simple words were slipped into the NPS, not signalled to the respective ministers that it was overturning 954 years of property law, and signed off. It is an example of governance failure.
Why: The earlier 234 page background report explains:
…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.
Based on this concern MFE proposed to redefine the words building and structure:
3.14.1 Proposed definition
Building means any structure, whether temporary or permanent, moveable or fixed, that is enclosed, with 2 or more walls and a roof, or any structure that is similarly enclosed
Structure means any building, equipment, device or other facility made by people and which is fixed to or located on land; and includes any raft, but excludes motorised vehicles that can be moved under their own power [underline added]
It was pointed out to MFE that civil servants drafting national guidelines cannot override meanings written in law, and structure is already a part of the RMA:
“Structure means any building, equipment, device, or other facility made by people and which is fixed to land; and includes any raft”.
This adding of the words “or located on” undermines 954 years of Common Law, and was proposed to address a pesky problem that councils were not sure how to regulate shipping containers and small mobile homes.
If this is a problem, why violate the principle of Stare Decisis by profoundly altering the meaning of one of the oldest and most established words in property law.
Why not simply add new words that everyone understands that enable planners to write precisely. Define a converted shipping container as a converted container. Define a mobile home as a mobile home (chattel) not as a building.
Add new definitions so councils can write precise plans that properly regulate while acknowledging the difference between units that alter the land by being annexed to title and those that only affect the environment while they are present.
Building means a structure intended for occupation by people, animals, machinery or chattel that is fixed to land. For clarity, “building” is limited to its meaning under property and common law, following the Latin maxim Quicquid Plantatur Solo, Solo Cedit which means “whatever is affixed to the ground belongs to the ground.” “Building” is always real estate, real property, structure and fixture, never chattel or personal property.
Fixed to land means any fabricated object or contrivance (a “unit”) that is connected to a foundation or equivalent that requires demolition or destruction to remove the foundation or equivalent, or that requires a licensed plumber, gasfitter or electrician to connect or disconnect the unit to mains services. For clarity, fixed to land does not include straps, cables, chains or bolts that connect a unit to pegs, ground screws or other anchoring device that is removable by people or machinery in a way that restores the land to its prior condition by filling in the holes that should not exceed 400 mm in diameter or width.
Chattel Shelter means any fabricated object or contrivance (a “unit”) intended for occupation by people, animals, machinery or chattel that is not fixed to ground, provided the unit can be removed without demolition or significant damage. For clarity, chattel shelters are personal property, not annexed to real estate title, and are always “on” land not “in” land, meaning not attached to a foundation. Chattel shelter that is attached to a foundation becomes part of the foundation, thus belongs to the land.
Tiny House means a building under 40 m²
Mobile Home means factory-made chattel shelter that is towed on its own wheels, does not exceed in size NZTA Category Three oversize, that is intended for occupation by people including their chattel that is not fixed to land, where the unit can be installed and removed in a day without requiring taking apart or demolition. For clarity, mobile homes become buildings if they are fixed to land.
Tiny Home on Wheels means the same as a mobile home, except that it is a one-off made by any person, usually for their own use.
Converted Container means an intermodal shipping container manufactured to ISO 6346 that is converted to use on an allotment on a temporary or permanent basis, including modifications adding doors, windows and fixtures, where the unit can be installed and/or removed in a day without requiring taking apart or demolition. For clarity, converted containers become buildings if they are fixed to land.
PreFab Module means a factory-made chattel unit made on skids and delivered by flat bed that does not exceed NZTA Category Three oversize in size, that is (1) intended for occupation by people, animals, machinery or chattel (2) not fixed to land (3) installable and removable where in a day without requiring taking apart or demolition. For clarity, prefab modules become buildings if they are fixed to land. Prefab modules include units that that do not exceed in size NZTA Category Three oversize during transport, but have parts that fold out or extend when on site, provided they can be retracted or easily removed when it is time to relocate.
Flatpack Module means factory-made chattel intended for occupation by people, animals, machinery or chattel that is not fixed to land where the unit arrives on site in pieces that are assembled on site using reversible fittings so the module can be taken apart without damage for reuse elsewhere. For clarity, flatpack modules become buildings if they are fixed to land. Flatpack modules may have subclasses of Large and Small, where modules over a plan-prescribed size (such as 40 m² GFA) may have different rules.
Tent has its natural and customary meaning, that is an uninsulated form of chattel habitat intended for occupation by people, animals, machinery or chattel that is not fixed to land.
Yurt has its natural and customary meaning, that is an insulated form of chattel habitat intended for occupation by people, animals, machinery or chattel that is not fixed to land.
Caravan has its natural and customary meaning, that is a form of chattel habitat intended for human occupation that designed to be frequently towed on public roads and generally used for recreational purposes. Caravans are similar in function to mobile homes, but have a more automobile-like appearance and may not be designed for comfortable habitat in winter.