BACKGROUND BRIEF

The earlier 234 page NPS 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. 

This makes it clear the target is the increased use of both repurposed shipping containers and intentionally manufactured (or DIY) mobile homes and other relocatable chattel. Note the author calls them mobile buildings, which shows the writer lacks an understanding of the fundamentals of property law. There is no such thing as a mobile building.

All buildings are structures. All structures are realty. All realty is either land or that which is fixed to land and annexed to the title to the land.

If something is mobile, it is not fixed to land, and therefore by definition cannot be a building. It’s like calling a tree an animal.

Based on this concern MFE in its first draft 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]

The problem with this is it is a breach of Legislation Act 2019, which says:

20. Words used in secondary legislation or other instruments have same meaning as in empowering legislation.

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”.

Given this reminder they were proposing to breach the Legislation Act, in their second try, the NPS authors moved the “or located on” language from structure to their new meaning for the word building, which is not defined in the RMA.

Because they could not use their original definition (Building means any structure…), MFE explains that they invented a new legal term, physical construction, explaining that it would embrace not only structures but what property law calls chattel – things made by people that is not fixed to land.

Two problems

1. The word construction refers to realty (real property) not chattel, so MFE failed to hit the target. 
2. To redefine such a fundamental word at law as building is not something done by inserting a few prepositions into a massive document and failing to inform the Minister that MFE just upended a thousand years of common law and property law.

In support of the first point, the clearest statement of meaning is found in US law, where US Federal Government Statutes says:

Construction means construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property. For purposes of this definition, the terms “buildings, structures, or other real property” include, but are not limited to, improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, cemeteries, pumping stations, railways, airport facilities, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, and channels. Construction does not include the manufacture, production, furnishing, construction, alteration, repair, processing, or assembling of vessels, aircraft, or other kinds of personal property 

It is likely that if the NPS meaning of physical construction was tested in High Court, it would be limited to real property and not include personal property (chattel) that is not fixed to land. Although it is more likely the court would toss the definition out entirely and instruct MFE to try again or to use the standard meaning, as best found in Heritage New Zealand Pouhere Taonga Act 2014:

building means a structure that is temporary or permanent, whether movable or not, and which is fixed to land and intended for occupation by any person, animal, machinery, or chattel.
 
structure— (a) means a thing made by people, whether movable or not, and fixed to the land; and (b) includes equipment or machinery

WHAT WAS MFE THINKING?

MFE clearly set out its thinking in the consultation documents prepared by MFE.

In this publication: April 2019 Ministry for the Environment publication (ME 1404) 2I Definitions Standard – Recommendations on Submissions Report for the first set of National Planning Standards, MFE wrote:

RMA plans seek to manage effects from buildings in the main where those effects are more long term than from, for example, a car parked on a section and used every day. However, where those vehicles no longer move (likely no longer used for transportation but for activities such as business, storage or accommodation) we consider they would have similar effects as buildings and should be captured by the definition. We therefore recommend excluding motorised vehicles or any other mode of transport that could be moved under its own power.

This is clear evidence the authors have no understanding of the fundamental difference between chattel and realty. A motorised vehicle does not become realty because it is used for such activities as business, storage or accommodation rather than transport. While they may have similar effects as buildings (although a building must meet a 50-year performance standard and tends to permanently alter the landscape), they should not be captured by the definition. Excluding modes of transport that can be moved under its own power is the wrong distinction, and has become a labyrinth of bureaucratic torture because the author appears oblivious to the foundation of property law.

MFE then continues…

We considered the alternative to exclude vehicles where they are used for business, storage or residential activity – but given the fact that the definition applies to facilities that are located on land – the definition would then have encompassed any business vehicles or even trucks when located or parked on land. We consider it is more certain to only exclude those vehicles that can be moved under their own power. 

The introduction of the test “are located on land”, as opposed to fixed to land, annexed to title and having lost their independent identity is the point MFE lost the plot.

EVEN SO, IT FAILS

The supporting narrative published by MFE shows the lack of proper legal training as they struggle to force chattel into the realty box. They would have preferred to use the word “structure” except the law clearly sets out that this limits the reach of the definition to that which is fixed to land. They write:

As referred to above, the removal of the word “structure” from the definition of building, decouples a building from the requirement to be fixed to land which is specified in the RMA definition of “structure”. 

So MFE invents a new term: “physical construction”:

We considered other terms which could be applied instead of ‘physical construction’. We tested the word ‘facility’ with our pilot councils and they queried the meaning and certainty of that word. They sought clarity about whether some items such as shipping containers, caravans, motorhomes or house trucks would come within the meaning of the term. We consider that part of the uncertainty about that word relates to the fact that ‘facility’ may bear the meaning of a larger building or complex often used for a public or community purpose (eg, educational facility or community
facility). We consider that the term ‘physical construction’ carries the meaning of a structure that is manmade and tangible, but it does not need to be fixed to land. While this is a new term, we consider that it is broad enough to cover all types of buildings without setting any parameters other than that there must have been some form of manmade construction. It will not be taken to exclude some items because they don’t qualify; as the word ‘facility’ may have been.

The word “construction” refers to the making of improvements (buildings and structures) on realty (real estate or real property). One does not construct a car, one manufactures it. One does not construct a mobile home or caravan, one manufactures it, if in a factory, or one makes it, if DIY. Therefore, it can be argued in High Court that “physical construction” is limited to realty, thus does not extend MFE’s invented new meaning of building to encompass its target.

Middle Level public servants working in a government ministry do not have the authority to decouple such fundamental words in law as building and structure. But they seem to be sufficiently ignorant of this limit on their authority that they made radical changes to property law and secured sign off from the respective ministers who were not alerted to the change.

The Problem with Writing Standards

New legislation has the benefit of vetting by the Legislative Design and Advisory Committee (LDAC) or the Parliamentary Council Office (PCO) that examines drafts to ensure they are consistent and understood by ordinary people.  Referencing Legislation Guidelines the 2021 edition, CHAPTER 14 Delegating law-making powers, Part 1: Is the matter appropriate for secondary legislation?, makes it clear when regulations become ultra vires. In particular:

The following matters should generally (or in some cases always) be addressed in primary legislation:… 
– variations to the common law. 

Redefining the meaning of building to include chattel (personal property) is a fundamental variation to the common law and one most unlikely to pass vetting by LDAC or PCO.

BREACH OF THE HUMAN RIGHTS ACT 1993

The Human Rights Act 1993 part 21(1) requires any legislation or regulation be tested against it to ensure it does not contain prohibited grounds for discrimination. It can be easily shown that mobile homes are primarily an affordable option for classes of people overly represented in s21(1) including

• Solo mums §s21(1)(b)(v) and §s21(1)(l)(i)
• Māori and Pasifika, §s21(1)(f)
• Disabled persons §s21(1)(h)
• Elderly §s21(1)(i)
• Unemployed §s21(1)(k)

The vast majority of persons living in chattel housing come from these disadvantaged classes. Redefining chattel housing as buildings means they must come under the compliance regulations of the Building Act 2004 as well as the RMA. The extra costs and delays required to meet the standards for buildings (which in many cases means suboptimal design compromises solely to meet standards inappropriate for mobile homes) prices those homes out of reach of the poor. 

Conclusion

The conflating of chattel and realty fundamentally alters the common law, and is likely to be found to be ultra vires – that a Minister signing off a standard that changes the common law to an opposite meaning exceeds his powers as delegated in Section 58B of the RMA.

A standard definition of building should be used – as best found in Heritage New Zealand Pouhere Taonga Act 2014.

If there needs to be new definitions for chattel used as shelter, as abodes and other purposes, they should have new, but familiar terms. And for clarity, fixed to land should include clear tests that respect case law and common law.

APPENDIX: National Planning Standards Definition

https://environment.govt.nz/publications/2i-definitions-standard-recommendations-on-submissions-report-for-the-first-set-of-national-planning-standards/

See Page 50

3.14.3 Analysis and recommendations

Relationship between the definitions of structure and building

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.

The majority of submitters were opposed the definition of structure and requested that the RMA version from section 2 of the Act should apply. We accept that there could be unintended consequences and difficulties with the draft version of the structure definition. We therefore recommend that the RMA version be included instead. For ease of reference the RMA definition of structure is as follows:

“structure means any building, equipment, device, or other facility made by people and which is fixed to land; and includes any raft”.

As a result of the adoption of the RMA definition of structure in the Standards it is considered necessary to remove the link to structure in the definition of building, to enable moveable or relocatable ‘buildings’ that do not need to be fixed to land to be captured by the definition. Instead, we recommend the definition include a requirement to be “fixed to or located on or in land”. This will enable both shipping containers and relocateable homes to be included – but still retains a land based requirement. By land, we confirm this has the meaning in the RMA (and in the Standards) which includes land covered by water. Therefore where the definition of building refers to being fixed to or located on land, this also applies to any buildings fixed to land covered by water.

Contrary to those submissions that requested only one combined definition of structure and building, we consider it is useful to have separate definitions. This gives councils the ability to address either or both as required. In addition, regional councils are more likely to need to address structures separately from buildings and so the separate definitions allow for this. Feedback from a regional council pilot council requested that the definition of structure remain so that structures in the coastal marine area could be addressed.

In addition, as a result of removal of the reference to structure in the building definition many of the exclusions that are often included in council plan definitions of buildings (such as retaining walls less than 1.5m high) do not need to be excluded in the recommended building definition; they are not captured by the term.

Submitters identified that the two terms are circular in that each refers to the other as ‘building’ was part of the structure definition and ‘structure’ was part of the building definition. We agree that this is poor drafting and the removal of the interdependency has resolved this issue.

We recommend replacing the word ‘structure’ in the ‘building’ definition with the words ‘physical construction’. The two definitions work together now so that that any building that is fixed to land would be captured by the term structure but not all buildings may be structures through the recommended use of the term ‘physical construction’ rather than ‘structure’ in the definition of ‘building’. We considered other terms which could be applied instead of ‘physical construction’. We tested the word ‘facility’ with our pilot councils and they queried the meaning and certainty of that word. They sought clarity about whether some items such as shipping containers, caravans, motorhomes or house trucks would come within the meaning of the term. We consider that part of the uncertainty about that word relates to the fact that ‘facility’ may bear the meaning of a larger building or complex often used for a public or community purpose (eg, educational facility or community facility). We consider that the term ‘physical construction’ carries the meaning of a structure that is manmade and tangible, but it does not need to be fixed to land. While this is a new term, we consider that it is broad enough to cover all types of buildings without setting any parameters other than that there must have been some form of manmade construction. It will not be taken to exclude some items because they don’t qualify; as the word ‘facility’ may have been.

As referred to above, the removal of the word “structure” from the definition of building, decouples a building from the requirement to be fixed to land which is specified in the RMA definition of “structure”. This would result in vehicles being captured by the definition if no additional changes were recommended. The submission from Christchurch City Council raised this as an issue. We do not consider that in the common use of the term “building”, vehicles would be considered to be included. We consider that vehicles (or other transport modes like railway carriages or boats) that come and go and are used for transportation should not be covered by this definition. We note that the Building Act 2004 includes in its definition only those vehicles that are “immovable” and “occupied by people on a permanent or long‐term basis”.

RMA plans seek to manage effects from buildings in the main where those effects are more long term than from, for example, a car parked on a section and used every day. However, where those vehicles no longer move (likely no longer used for transportation but for activities such as business, storage or accommodation) we consider they would have similar effects as buildings and should be captured by the definition. We therefore recommend excluding motorised vehicles or any other mode of transport that could be moved under its own power. We considered the alternative to exclude vehicles where they are used for business, storage or residential activity – but given the fact that the definition applies to facilities that are located on land – the definition would then have encompassed any business vehicles or even trucks when located or parked on land. We consider it is more certain to only exclude those vehicles that can be moved under their own power.

We acknowledge that there are other items that are moveable and have a roof and so could meet the recommended definition of a building. In particular, tents, caravans, and marquees would be included. We acknowledge that the definition of building is broadly crafted and councils will need to use subcategories or narrower application definitions and rules to manage or permit these items where required.

Certainty – and what constitutes a wall or a roof or similarly enclosed?

Submitters identified that in some buildings (for example aircraft hangers and Nissen huts) walls are not clearly identifiable and their identification can be debated. Circular buildings may only have one ‘wall’ and with a dome roof this may not even be clear such as in the example below:

 

Source: http://www.cosyhomes.net.nz/product/dome‐house/

To avoid the problem of having to clearly identify the walls in the type of dome house example above the phase “or similarly enclosed” was included in the draft standard. This phase was opposed by submitters on the basis that it does not provide enough certainty. As a result the recommended definition has included the phase “is partially or fully roofed”. Consideration was given to excluding any permeable roof on the basis that this then would exclude crop protection structures from the definition. However, it was considered that any exclusion for a permeable roof could result in a loophole in the definition. Is a roof that leaks a permeable roof? How impermeable would it need to be to qualify? This could make it difficult for compliance and enforcement purposes. We consider that it would be better for the plan provisions (rather than the building definition) to clearly enable crop protection structures or other similar structures if this is the desired outcome.

Relationship with the Building Act 2004 definition of building

Some submissions suggested using the definition of building from the Building Act 2004. This was considered in the draft standard but discounted on the basis that the definition in the Building Act serves a different purpose to any RMA definition of building. We agree with this. We did consider including the phrase from the Building Act definition of building “intended for occupation by people, animals, machinery, or chattels’. However, we discounted this because from an RMA effects point of view what a building is used for or whether it is empty or occupied is not relevant. Therefore we do not recommend the inclusion of such a reference.

Relationship with definitions in other acts

Environment Southland queried the relationship with the definition of building in the Heritage New Zealand Pouhere Taonga Act 2014. That definition applies to heritage buildings within that Act and the definition in the planning standards applies to RMA plans. Where RMA plans address heritage buildings they may use a subcategory definition where required.

Broadness of the definition and inclusions and exclusions or size exemptions required

A number of submitters sought the exclusions of buildings up to a certain size (and not always the same size). This can be addressed though rules that permit small buildings (eg, any building that does not exceed 10m2 in area or 2m in height can be permitted). We consider that this approach will make plans easier to understand and use. Any related bulk and location rules could also be drafted to exempt small buildings from having to comply with things like setback requirements or building coverage calculations.

Other submissions sought clarification about what is included within the definition and many items were referred to. We consider that these can be addressed in rules where required. We acknowledge that will require many rules but we consider that the broadness of the definition is inherent in the meaning of building and where councils need to address specific types of buildings or even parts of buildings such as decks, it is clearer for users if this is located in rules rather than hidden in a definition. On the issue of decks, if free standing and without a roof, they may be addressed within the definition of “structure”.

Implications for plans of changes

In relation to amendments to rules that may be required, we acknowledge the extent of these and in consideration of that issue we have provided extended timeframes for implementation to allow councils to implement changes within plan reviews, if desired.

Additional points

In relation to the issue of whether a building is above or below ground, we recommend adding the phrase “fixed to or located on or in land” and this ensures that the definition does not differentiate between the two. Some buildings may be below ground and if councils wish to address these they may do so within their rules.

In summary, we recommend the definition of structure is replaced with the definition of structure from section 2 of the RMA. We also recommend the definition of building is replaced with the following definition:

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, but

(c) excludes any motorised vehicle or other mode of transport that could be moved under its own power.