On the afternoon of the 15 May 2025 we received the ruling of the High Court in respect of the appeal we filed about the Mobile home which is parked on our property. The High Court dismissed all of our points of appeal and found that the Mobile Home on our property is “fixed to the land”. What will that mean? I am not too sure yet. Were we to decide to apply for a resource consent with the local council, how much would that cost us? Many have gone down that route and it turned out to be a costly nightmare.

Besides, once it is consented on our land, will the ownership of the tiny home shift from the current owner to us as it will become part of our title? Should we no longer be able to pay our mortgage, will the bank therefore be able to claim this asset as part of our property?

All that remains to be seen. What we know is that the Tasman District Council is not willing to change their District Plan in respect of Tiny homes or the like and is waiting for the granny flat legislation from central government. We know that the Tasman District Council asked the Government to include tiny homes in their proposal and wanted to charge for development contribution fees. We also know that the Council is currently looking at a new fees and charges schedule and part of that will be higher administrative costs for projects which don’t need a building consent. So far, tiny homes on wheels as this one on our property, do not fall under the Building Act as needing a building consent but may, in my reading of the proposed fees and charges, will become subject to those higher costs.

The elephant in the room with our case is really talking apples and pears, which runs through the story right from day one more than  three years ago and becomes clear right from the start of the judgment:

[1] Mathias and Christin Schaeffner appeal against an Environment Court decision that a tiny home on their property requires a resource consent because it is a dwelling. The Schaeffners contend the tiny home is not a dwelling because it is a mobile home that can be towed away even though a person has lived in it on the property for more than two and a half years.

[2] Whether the tiny home requires a resource consent because it is a dwelling turns on the application of various definitions in the Resource Management Act 1991 (the RMA) and the Tasman Resource Management Plan (the TRMP). For the tiny home to be a “dwelling” it must be a “building”; for it to be a “building” it must be a “structure”; and for it to be a structure it must be “fixed to land”.

[3] The Schaeffners contend that a mobile home cannot meet these definitions. The Tasman District Council (the Council) contends compliance with the RMA cannot be avoided because a home is designed to be, or can be, moved, as such an interpretation would frustrate the RMA’s sustainable management purpose.

The problem as described by us is that the tiny home on wheels cannot meet those definitions. However, the Council’s story is that people want to escape compliance with the RMA. This creates a certain images, but does not address the issue.

The Council also submitted that no environmental effects were needed so long as there is a breach of a rule. No clear actual environmental effects could be identified or advanced by the Council. One that was advanced an increased use of the road. Well, that would be bad news for big families when two person households could out of a sudden claim that the five person household has a bigger impact on the road than the two person household and should therefore pay more. The five person household then starts screaming because they only ever use one car, but the two person household uses two and rather often. Such perspective opens the door for neighbours picking on neighbours and leaves me seriously concerned about what the actual work of a council is.

Accepted by this court however is that the rule wants to mitigate the fragmentation of land, preserve productive value and preserve the rural amenities. As a matter of fact, our 2,3ha property cannot be legally subdivided. That’s the law. There cannot be any fragmentation of land. The choice to have a mobile home on the land was conscious. No non-permeable surfaces were created which would impact on stormwater as we all get to feel now along the Lower Queen street in Richmond. All that is there can be removed without any damage to the land or the items themselves. In result this means that any subsequent owner is free to use the land as productively as desired as there is no irreversible change made to the land. It is not a swimming pool, big sealed driveway or any other project which permanently affects the land underneath.

One of the options sought with the enforcement order is that the mobile home can stay where it is exactly how it is so long as it does not get used for more than two calendar months in a year. If the lady was to sleep in our main house and use it as a studio or whatever, this would be ok. I cannot see what exactly it is what affects the rural amenities then.

The Tasman District Council is free to make their own rules in respect of Mobile Homes. They created an entire chapter in the TRMP on relocatable homes alone. They also elected to use a definition of building in their plan which is more restrictive than the Building Act. The TRMP also contains various rules on discharge to air, soil and water. The RMA is very wider, capable to cover even very unusual matters like someone displaying a swastika as happened in the 1990s. This case became known because of an article with analysed the question of viewpoint neutrality in New Zealand on that case.

I think the viewpoint neutrality aspect was also very relevant here. On the face of it, it was required to assess what makes this tiny home on wheels “fixed to land”. Justice la Hood commented early on the day of the High Court hearing that the Government does not seem to be putting much focus on legislating tiny homes or something to that effect. The Tasman District Council did not make its own rules about the issue either.

The case in the Environment Court was not built around “fixed to land” by the Council. It put forward that it was not a vehicle as it was permanently lived in and the pot plants, decks etc make it immoveable. This is exactly along the lines of the decision tree as required by the Building Act. I do not remember having read the term “fixed to land” even once in the original application.

Surprisingly, nine days before taking us to Court the Council was resolving on a submission put to the government which states that they get a lot of enquiries about Tiny homes and there is a lot of confusion around what “fixed to land” means. Could the government please provide more clarity with what they mean by this term.

In 2019 Nick Hughes asked exactly that question of the Council when he was affected by enforcement action by the Council in respect of his tiny home. A legally robust answer was promised, but not afforded. Until this day. A legal opinion was sought by the Council on that question, however this the Council continues to refuse to disclose.

Instead of putting forward material for the relevant legal test, the council put forward serious allegations, namely that we resisted lawfully authorised council officers’ exercise of duty, that we do not recognise new Zealand law and that we refuse to comply. As part of their evidence the council filed a letter to the Environment Court, for which we had a significantly different version. We commented on that but the Council did not provide a clarification because this was out of scope.

The negative characterisation made it even into the High Court decision where the Council’s submission on the Background of the case was used. It says that we did not respond to relevant correspondence when the response letters are both part of the evidence. For utmost clarity, we did not import any negative characterisation or defence to the negative characterisation by Council towards us into the High Court, but it still found its way. The issue is that viewpoint neutrality is what is required in a democracy to stay focussed on what is the issue.

So, the issue was to find out Parliament’s intent for “fixed to land”. We say it is a technical term used in NZ legislation. The Legislation design and advisory committee makes recommendations to drafters of legislation and writes that terms which already have a meaning should be used where possible and new terms should be used consciously (paraphrased but to that effect).

The Ministry of the Environment has been looking closely into definitions used in District Plans as well as within the RMA. It was clearly acknowledged that there is a tendency by some councils that they seem to be defining words only just slightly different from the act which may undermine the Act. We all know that.

A beautiful example in this case is the word “dwelling” used in the TRMP as opposed to the word “dwelling house” of the RMA. The trial Judge showed a clear frustration and asked why there would be any reason that there are two different words. We highlighted the provisions of the Legislation Act which dictates how to ascertain a meaning of a word. It is clear that the law says that primary legislation trumps secondary legislation. In the judgment we find a record of the confusion, but no resolution.

But Parliament used the words “fixed to land” in respect of structures. What did it mean then? We thought it to be of assistance to the Court to allow itself a look into wha the Ministy for the Environment did for creating new definitions - it had to perform the exact task - ascertain the meaning of the words currently in the RMA - part of which were “structure” and with it “fixed to land”. And because most tiny homes aren’t fixed to land the suggested to come up with a new set of definitions for secondary legislation to decouple structure from the requirement to be fixed to land.

There is a further significant circularity - namely a structure is a building and a building is a structure. The famous egg and hen question. It would have been of significant public value to have these issues which affect so many people resolved. Nobody is happy with the RMA and the drafting is often poor.  And there are laws which protect the rights of those affected by that sort of legislation.

We even have an amendment of the RMA since 2017, section 18A which says:

18A Procedural principles

Every person exercising powers and performing functions under this Act must take all practicable steps to—

(a) use timely, efficient, consistent, and cost-effective processes that are proportionate to the functions or powers being performed or exercised; and

(b) ensure that policy statements and plans—

    (i) include only those matters relevant to the purpose of this Act; and

    (ii) are worded in a way that is clear and concise; and

(c) promote collaboration between or among local authorities on their common resource management issues.

So, we have acknowledged issues and affected people and provisions in the statute and wider constitutional principles which were clearly worded by the Chief Justice, namely that legislation must be well understood and clear on side side. On the other side this is exactly what we don’t get  - either by Parliament, by the local Council or by the Court, but we are still subjected to rules and provisions that clearly cause confusion as their drafting is poor and have to pay hefty bills as a result? This is where I am lost.

This extends not only to the wording but to the whole story since the beginning:

Every person exercising powers and performing functions under this Act must take all practicable steps to—

(a) use timely, efficient, consistent, and cost-effective processes that are proportionate to the functions or powers being performed or exercised.

We hear of anonymous complaints, yet we see in the courts that the anonymous complainant shares its details with the Council. We point this out. Nobody cares. It remains an anonymous complaint. We hear inconsistent, misleading and outright wrong statements. We point this out. No response or nothing to see here. We write letters which mysteriously disappear. And reappear without any comment years later. We receive a letter but the Council files a significantly different version to the Courts. We point that out, but who cares.

We had a search executed on our property in 2022, in the middle of the floods in Nelson which caused the devastation of the little red house which is currently being demolished. After nearly three years we still don’t know the name of the issuing officer and have no ability to check this warrant against legislation. We started asking for this information on the day the search was executed. No evidence was presented to the issuing officer and the scope of that warrant was so broad that they would have had free rein to do whatever.

The police whose job is to watch over the securing of evidence when a search is being executed by someone other than Police, didn’t do that. It merely detained us for the duration of the search. It also threatened with arrest as we intended to approach the searchers for identification. It even went right up to the IPCA review panel. Nothing to see here. I still don’t know why we were detained. I think the last version from Police was that we actually were’t detained. I am not too sure what they want to say - we have a letter by TDC instructing them to detain us and we recorded the events incl. the words of Police on the phone.

TDC did not release the evidence until in court. Natural justice? Who cares! Further, the Council’s lawyer instructed TDC enforcement staff to create information about the lady living on our land- part of this was released as part of the evidence in the environment court. 65 covert observations on seven days of the week from 6am to 10pm, sometimes twice a day. We requested the other officer’s records, but did not receive them. Who cares!

A letter was sent to the council alleging fraud - that is in respect to wrong statements made etc - it mysteriously disappeared from Council record, but was still part of an application for a search warrant (omitting substantive aspects from the issuing officer). /There were more missing letters, but this is the most significant one). Hey, but who cares! The list goes on.

The icing on the cake comes last - the beautiful warrants! No warrant was part of the evidence in Court, but Council via its later made statement about the contents of those warrants. The warrants of appointment were withheld for nearly three years - because of the request being vexations and frivolous” - one day after the High Court judgment the Council’s lawyer surprisingly released them. These documents prove what we had suspected - the Council had good grounds to shift the attention away from them to us. The warrants at the time were required to be signed by both Mayor and Chief Executive. They were not. The warrants carry a Council seal. They carry an icon of the seal, but not the original seal. Upon request, the Council confirmed that there is no further original carrying the original seal.

The warrants as they are carrying the Council’s seal, were required to go through full Council via a Machinery resolution report. They are subsequently captured there as a public record. Just as any deeds etc. None of them were resolved on or presented to Council for approval. And the minor issues: they have no date, but a month of when they were issued.

One of the officers is of particular concern - he carried a warrant of appointment with him issues with a previous version of the Council’s logo. Which was only altered across the enforcement department one month later, namely in October 2019.

But the second part of this officer’s warrant which is called the warrant of authorisation, which contains the same month but the new Council logo which wasn’t even used then. Surprisingly, there is a further warrant of authorisation for this officer from November 2022, issued by a Group Manager within TDC which does not even contain a digital logo of the council’s seal. The question is: why was the officer issued a further warrant back in November 2022 when the warrant he is currently using is the one from 2019 with the exact same details? Maybe there was a warrant prior to 2022?

No matter what, the reality is that nobody cares despite a duty of care. The current Mayor has no inclination to have a good look within, nothing to see. No further investigation warranted. Sure thing. What is of interest now is that the case is lost for us but not for the Council and that the High Court confirmed what the Environment Court found. We broke a rule.

What remains to be seen is what happens with the elephant in the room.