We have just come out of the High Court Hearing of our appeal from the decision in the Environment Court, in which the Court found the Mobile Home being fixed to land. Justice La Hood reserved his decision. We were represented in the Environment Court, but did not have the financial means to do so for the appeal in the High Court. So, we became lay litigants.
The appeal is mainly about statutory interpretation as none of the facts relevant to the fixed to land question were under dispute. The allegation from the Council was that we are in breach of a district rule. This rule says that no resource consent is required if “a building which is constructed” […] is not used as a dwelling. So, the allegation goes that the mobile home is used as a dwelling. For something to be used as a dwelling, this thing needs to be “a building which is constructed” and a building must be a “structure”. The district plan provides definitions for “dwelling” and “building”, the RMA has got a definition for “structure“, but also for “dwellinghouse”.
We say that it was never the intent of Parliament to regulate under the RMA an object, which remains mobile and retains an independent and intact identity, even when removed and which is there for the better enjoyment of the person living in it rather than for the increase of the value of our property. However, the Council is of the view that it is in fact fixed to the land. The main thrust appears to be connections to services, like pipes that take water in and out, a pipe which collects rainwater from the roof and collects it in a rainwater tank and lastly an electric cable which powers a water pump with the electricity generated by solar panels on top of the mobile home. And because it has been used for a place of long-term accommodation.
If this concept is accepted, then we have moveable vehicles under the Building Act 2004 which have connection to services like we saw in Dall and the same object and setup will be considered a structure under the RMA which is fixed to land. No matter what a party thinks, the Judge is asked to make a statutory Interpretation of the terms in order to find in relation to them.
Let’s start at what the Act says is a structure.
structure means any building, equipment, device, or other facility made by people and which is fixed to land; and includes any raft.
The RMA resulted from a Resource Management Law reform which produced an enormous amount of paperwork. Some of them were reports. In New Zealand, we have the New Zealand Legal Information Institute (https://www.nzlii.org) which holds an amazing amount of documents which are relevant for anyone interested in legal research and important for those who are presenting themselves in Court and are required to look into the legislative history of a term or provision used in legislation. This webpage clearly became my best friend quite some time ago.
When the Resource Management Bill was introduced, it contained the “structure” definition for the first reading and it was only with the Resource Management Amendment Bill 1992 where “and includes any raft” was added. Despite numerous amendments of this Act over the years, this definition remained unchanged.
Why is that even relevant right now? It is relevant because the definition contains the term “fixed to land”. The element “fixed to land” is a well known concept derived from property law which distinguishes fixtures from chattels. That what one takes with oneself when leaving a property to the new place, as opposed items that do not form part of realty, like a bike, car, trailer, caravan, etc.
This concept comes with two legal tests which, when appropriately applied to the particular facts in each individual case, aim to objectively assess the degree and object (or intent) of annexation. The finding would be whether or not something has become “part and parcel of the land”.
Many historic cases, mostly stemming from the UK, have dealt with this question. The most recent decision which has become the leading authority also in New Zealand is “Elitestone” (confirmed by the Court of Appeal in New Zealand). This decision also incorporates historical cases. So far, so good.
However, the Court of Appeal simply said that Elitestone is good law in New Zealand, but did not say wether or not that includes the RMA. What if one says that this legal test is what is required and needs to be applied in accordance with the law and the other one says that the legislative framework of the Resource Management Act 1991 does require a particular lens and that those tests may only assist, but do not fully translate of how the term “fixed to land” is to be interpreted for the purpose of the RMA?
It somewhat reaches philosophical level, namely, how much weights needs to be given to the purpose of the RMA? Does it matter, and to what extend, when analysing the whole of a definition used in the RMA, like “structure” as in our case? Or can we presume that even each element of a definition in the RMA is subject to be tested against the purpose of the Act, like in this case the element “fixed to land”?
Well, I haven’t found any case law on that. It is for the Court to find on the matter - are these two tests to be applied for “fixed to land” within the RMA term of “structure” just as they are to be applied for other terms in other Acts containing the same words “fixed to land”. No matter what the answer is, I guess what can be said is once we have a definition and ascertained its meaning, can this definition be said to be a relevant concept or thing that can then be used within any provisions of the Act of any secondary legislation to achieve the purpose of the Act?
However, there are various rules of how statutes are to be interpreted - the literal rule, the golden rule, the mischief rule and the more recent purposive approach. Have a look here for some further reading:
https://www.open.edu/openlearn/mod/oucontent/view.php?id=68342§ion=3.5
In any case, the task for any statutory interpretation is to ascertain what the intent of Parliament was. What did they want to say Statutory interpretation is actually quite sophisticated in my view. The statute which governs it is the Legislation Act 2019 with its precedent the Interpretation Act and it takes the purposive approach. Understanding the rules for interpretation is probably one first fundamental step. There is the traditional Rule Book, which is the Halsbury Laws of England and Wales. I am unfortunately not in a position to buy the volume that I would need (Chapter 5 “Statutory Interpretation” of Statutes and Legislative Process (Volume 96 (2024)). Here is some idea about the price: https://www.wildy.com/isbn/9781405734394/halsbury-s-laws-of-england-set-5th-edition-hardback-looseleaf-lexisnexis-butterworths
But here is an idea about the relevant aspects of statutory interpretation: https://www.lexisnexis.co.uk/legal/commentary/halsburys-laws-of-england/statutes-legislative-process
The sheer length of the list shows that statutory interpretation is quite a thing with a lot of rules.
Otherwise, more plain here for the New Zealand context:
Some background reading on the Legislation Act. There is a good number of documents available that look in particular provisions suggested to be included in the Legislation Act:
https://www.pco.govt.nz/about-us/pco-legislation/legislation-act-2019
Just as language changes over time, so does the legislation. I found it helpful to read historic NZ statutes that came before the Interpretation Act, like the Interpretation Act 1924 (https://www.nzlii.org/nz/legis/hist_act/aia192415gv1924n11302/) or the various Interpretation Acts (https://www.nzlii.org/nz/legis/hist_bill/toc-A.html).
I believe, a good starting point here in relation to a particular element within a definition may be the Legislation Design and Advisory Committee (https://ldac.org.nz/) who as the name suggests provide advice on legislation. They have also published the legislation guidelines (https://ldac.org.nz/guidelines) and one of the things that they say is that whenever new legislation is to be introduced there should be recognition of what the common law has established as it does so quite flexibly as it evolves different to statute. New terms should be avoided once an existing term can be used. Makes sense. Words or phrases which are unclear will become established though litigation and/or Amendments of the Act. Think of the litigation around “sustainable management”.
Coming back to the statutory interpretation required in this case which is an RMA term. The RMA came into force in 1991 as a result of a significant resource management law reform. My best friend the New Zealand Legal Information Institute, lists quite a number of documents which were produced in that context (https://www.nzlii.org/nz/other/lawreform/NZRMLawRef/) sorted by years or name of the documents. I chose to read them chronologically (they become less over the years from 1988 to 1991).
One of the main predecessors of the RMA was the Town and Country Planning legislation some of which enacted since the late 1800s. When reading through the old Acts and amendments one can see that everything became quote complex over time and that definitions were used quite sparingly even right up until the end. So, one does for example not find a definition of structure or building in these Acts.
One could think, well, wonderfull, all that reading just to learn that there was no definition of those terms? Yes, true, but one could be led to assume that these terms had a somewhat “ordinary” meaning which did not require a definition. The New Zealand Law dictionary did also not have a definition of these terms before 1991. It was only since the enactment of the Building Act that this Law Dictionary included a definition of “building” referring to the Building Act 1991 and later 2004 (incl. relevant case law, the newest being Dall and Te Puru).
However, quite understandably so, there still is no “structure” definition to be found. It has been often said in courts that there is no such option to defining “structure” exhaustively. For the purpose of the RMA, the term structure is limited to a list of things “made by people”. That sounds somewhat ordinary, but would mean that no tree or natural rock feature or mental representation is what is intended to be captured by this definition. Judging from the list of items, namely “building”, “device”, “equipment” and “facility” which are “fixed to land”, we are further restricted to land based objects.
In no document that I had access to, which are the Hansard Reports on all readings of the Bill, and those for the Building Bill 1990 and 2003, the confidential Departmental report from June 1990, the SOPs, nowhere is the definition of “structure” discussed or explained.
What the Confidential Departmental Report states, however, is the following:
“The drafting style of the Bill has been to avoid using terms in other than their normally understood meaning as far as possible. Additionally, the Bill has attempted to use generic concepts to describe matters and sought to avoid defining things by using exhaustive lists to avoid the likelihood of an omission from the list which normal usage would place within a definition.”
When I read through the relevant documents in respect of the Building Bill 1990, I found in one departmental report which commented on submissions received to be laid before MPs. In there, one submitter suggested that the Building Bill requires a definition of “structure” as this term was and still is not defined in the Building Act. The comment made to Parliament was that it is not agreed that such definition is required as these terms have “natural” meanings. Another submitter wanted the bill to extend to other structures, like roads and was again reminded that this was not necessary as the bill is only looking into certain structures, namely buildings and does not extend to roads.
Even though the RMA is the RMA and not the Building Act, both Acts were enacted very close in time and as the RMA does not contain a definition of “building”, but a definition of “structure”, listing “buildings” as one of its elements, it is somewhat logical to also look into this Act to gain an understanding of how Parliament intended those two Act working together. In my view, it becomes relatively clear that Parliament did not intend to make legislation more complex than it already is by introducing specific definitions that other, very closely linked Acts already contain.
Regardless, from all those documents and weeks of reading, I am still not quite sure what the Parliament understood by “fixed to land”. Was this a term that was sufficiently understood and deliberately chosen? My answer is yes as there is a presumption that the legislator choses words deliberately and with great care.
Well, in that case, a look into past legislation seems again relevant. The various Town and Country Acts gave me some hints. When one looks in legislation from the early 1900s, the legislator used the term “building which is erected”. However, in the 1940s there was an amendment of this legislation and its was extended to “materials and things brought onto the land”. Latest here one can see that there is a clear difference between things which are erected or fixed and things/materials which are located on the land. So, from this time onwards, this understanding needs to be presumed even though the wording has since slightly changed from erected to fixed and to the more generic “structure” instead of simply covering “buildings” alone.
The last labour government tried again to reform the RMA and produced a whole new heap of paperwork which I read. The good thing: documents are recent and digital and can be found on the Parliament website. It is however, very time consuming to read through all that paperwork. Another good thing (in terms of the reading) that quite a large number of the content was somewhat recycled from way back then and wasn’t much new reading.
With the old documents from 1989 onwards, I had to go to the Parliamentary Library and ask for specific reports that I thought could be of assistance for that interpretation exercise. I have to say that the Parliamentary Library was extremely helpful and really quick. It was only for my very recent and last request that they took a bit longer, acknowledging the “beast” which the RMA undoubtedly is in terms of the masses of paperwork to go through.
Another really helpful find was the Ministry of the Environment’s papers on the National Planning Standards from 2018. I think they started around 2014 to investigate via Boffa Miskell how definitions from the RMA are used in District Plans and what other definitions not contained in the RMA are then used in various District Plans throughout New Zealand. Not surprising, a huge number of definitions was counted, some similar, some identical, some different throughout the country, making it very clear and obvious that this chaos does not help good practice in resource management and consistency across the nation.
Long story short, the National Planning Standards were designed and those did also contain a number of definitions. The National Planning standards are, just as a District Plan, secondary legislation under the RMA. They are not relevant for the appeal, but what is interesting is that they had to perform statutory interpretation of terms used in the RMA in order to understand the scope of those terms and to see whether or not they could then define an additional term not yet captured by the RMA. And which terms come up as well? Sure, “structure” and “building”. The documents which were prepared contain quite a detailed description of what the Ministry perceives the Parliament to mean with “fixed to land”.
In their view, shipping containers and mobile homes are not usually fixed to land. In order to still capture them, they intended to decouple “buildings” and “structures”. I don’t think it’s a clever way of making legislation to simply sneakily try and avoid the obvious and create more confusion by trying and making them buildings somehow.
I looked into some planning provisions over in the UK and thought that there were quite some helpful things that they came up with. They came up with the idea of a site. And then they added certain requirements onto that depending on where the site was. That makes a bit more sense. One of the main advantages from mobile homes is that the owner of the property does not have to be the owner of the mobile home. So, the landowner is charged with providing a certain site to a certain standard and the mobile home owner is to look after his asset. And is free to leave. Without losing his home. Making something a building which is then registered on a title makes things a) really long and b) creates real complexity for example in case the landowner can no longer afford the mortgage and the bank may make claims. Surely, there are concepts like tenants fixtures, but there are also concepts where there is no exchange of money between a landowner and someone on their land - like in our case. There are many who also want to house their young adult children or their elderly parents or in-laws without exchange of money and without any interest in depriving these of their assets either. This needs to be considered in times where it is becoming more and more common for many people to invest in mobile homes and not traditional properties with houses on them.
And there are people who have a change in circumstances, like divorce and these people may only need temporary housing and red tape does not support those in immediate need.
But that’s past the point of statutory interpretation. The point that I wanted to make here however is that a building is a building and a mobile home is a different thing. Both may provide accommodation, or even a home. Both may have effects on the environment and all effects the environment can be addressed via the RMA, be it under a land use rule or because of its effects alone. To say that there is a gap in the legislation is in my opinion, not quite correct. I feel that the mobile home discussion makes one issue very clear and that is that Councils seem to think that they can register pecuniary interest on virtually everything that people choose to do on their land.
How this is in line with what was the initial intention of Parliament with this Act, I cannot see.
The enactment of the RMA deliberately moved away from the presumption of the TCPA that everything was prohibited unless allowed by a rule. It went back to the common law right that everything is allowed unless prohibited or restricted by a rule, imposing quite a duty on Council to make useful rules.
Our Mayor here in Tasman states publicly that he believes that people who make money from sharing their land, should give back to the community. With all respect, but the RMA looks into protecting the environment, not filling a council’s pocket.
If people are making money, this is their personal choice. If they are harming the environment, this becomes an RMA issue.
Councils have successfully increased rates and there is no end in sight. More and more people need to find ways to keep doing what they are doing. Some will go and ask for a rate rebate, which in turn needs to be paid by those that are already paying. Or sell and go on benefit. Or sell and try to find a rental in a tight market. I’d rather see people helping each other, becoming resilient, working together and living a lifestyle with the least use of concrete and other features that permanently and irrevocably alter a property. I don’t think it is much of a Kiwi spirit to live on huge rural sections as a couple of two in a huge mansion, surrounded by various car parks and swimming pools an don the other hand be apologetic because a group uses a property productively and communally, but not commercially. But it appears much of a bureaucracy desire, either through higher rates or through a never ending permit cycle for the next driveway, the new pool door or whatever extra one is then asked to pay the council.
No matter what stories a mayor comes up with - there is a fundamental constitutional principle that legislation must be clear and precise so that those bound by it understand it.
Does straining a definition beyond recognition achieve the purpose of the Act?
I don’t think it does. It clearly avoids consultation processes where the public gets their say when a plan or law change is intended.
However, making clear what scope a word used in legislation has, provides clarity and gives opportunity for a council or Parliament to consider whether current law is fit for purpose. If mobile homes aren’t covered, then one would have to start to look into the environmental effects of those objects on a piece of land and I think it would be an interesting journey and may help to lift some veils.