Firstly, it needs to be stated that the New Zealand legal system is not fundamentally inspired from Roman law codification of Justinianon like e.g. Germany but derives from the English common law. That means the Courts need to consider legislation of the day as well as case law when cases are brought before them. Main constitutional principles in New Zealand are the parliamentary sovereignty, the rule of law and the separation of powers. What it means that a government cannot bind its successors, is something everyone in New Zealand is well aware of: legislation changes all the time. There are three Acts that are most in view when we talk about mobile homes. That is the Land and Transport Act, the Building Act 2004 and the Resource Management 1991 with all its subservient plans which vary throughout the country.

The usual clash with councils comes mostly because of a zone rule that restricts the „use of a building as a dwelling“. The test goes like this: for something to be a dwelling, it must be a building which must be a structure. Letˋs start with the Building Act and see what we can find in the interpretation section: no structure, no dwelling, but an entire section to what is a building?

In this Act, unless the context otherwise requires, 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.

Whilst the Building Act 1991 included vehicles in the definition of building, the Building Act 2004 changed that. It followed that vehicles that are movable, can no longer be considered a building, no matter if they are being lived in on a permanent basis. That helped a bit to draw a line in the sand. No building consent required for a movable vehicle (e.g. a housetruck with intact engine). It also meant that if it is established that something is a movable vehicle can no longer be a structure. When it comes to mobile housing, let’s look into mobility and ask: What is a vehicle?

According to the Land and Transport Act 1998:

vehicle—

(a) means a contrivance equipped with wheels, tracks, or revolving runners on which it moves or is moved; and

(b) includes a hovercraft, a skateboard, in-line skates, and roller skates;

(and further things that are excluded)

And

motor vehicle—

(a) means a vehicle drawn or propelled by mechanical power; and

(b) includes a trailer;

For everyone who wants to make a guess about a wheelbarrow, have a look in the Act!

However, what we learn is that a skateboard is a vehicle and so is a trailer. But only a trailer can get a registration plate and go onto public roads, not so the skateboard. So, everything registered on New Zealand roads must be a vehicle. A registered trailer for example.

There are further things to consider in regards to the trailer load, which will depend on the frame of the trailer as well as regulations for e.g. light trailers in terms of dimensions. That is the vehicle side of things in a nutshell, which is rather straight forward.

But the tricky bit is yet to come, the Resource Management Act. Born in the same year as the former Building Act, it has life on its own and under it, all these district plans. The RMA does not define what a building is. It defines what a structure is:

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

It also defines dwellinghouse:

dwellinghouse means any building, whether permanent or temporary, that is occupied, in whole or in part, as a residence; and includes any structure or outdoor living area that is accessory to, and used wholly or principally for the purposes of, the residence; but does not include the land upon which the residence is sited

And here is where the confusion starts. Some local plans would define building as defined in the Building Act and some according to their own choice arguing that this is appropriate given the fact that the RMA does not provide a definition on its own. One canˋt help but wonder and ask why would it have been that there were two Acts drafted back in 1990 who use the same words, but define different ones? Building Act uses dwelling and structure without specifically defining it and the Resource Management Act uses building without defining it. In the Tasman Resource Management Plan, we find a definition of dwelling, building and structure. Whilst structure is defined exactly as in the RMA, dwelling does not correspond to dwellinghouse in RMA and building does not match the Building Act.

In essence, a vehicle in the Tasman district can be considered a building once it can be established that it is a structure and then become subject to a resource consent. Many in the district have been trying to get a resource consent, but it seems rather costly and not quite achievable. At least, for some who have been engaged in their applications for quite some time just to learn that there is another hurdle costing another fee with no guarantee for being granted consent.

The relatively recent National Planning Standards also define “building”.

building means a temporary or permanent movable or immovable physical construction that is: (a) partially or fully roofed,; and (b) is fixed or located on or in land,; but c. but excludes any motorised vehicle or other mode of transport that could be moved under its own power.

So, firstly it combines that which is fixed and which is not under the roof of “building”, fundamentally inconsistent with the Building Act 2004. Secondly, it reduces the “motorised vehicle” definition from the Land and Transport Act 1998. So, what is it that we want here in New Zealand? Are we seeking more confusion and inconsistencies in legislation? As it looks like today, the proposed standards will not help providing more guidance and clarity, but add to the already existing confusion and inconsistency.

That needs to change urgently as time is money, money is money, money doesn’t grow on trees, especially not in times of recession and increased costs of living. Right to shelter is a right, not a privilege. Homelessness is raising, so is the risk to get stuck in it and loose hope. Orders that put someone at risk to be homeless in order to achieve compliance, fail, in my view the very purpose of the RMA. We cannot afford that as a democratic society, nor is it acceptable from a perspective of being a human being.