Schaeffner v Tasman District Council
[2025] NZHC 1152
•15 May 2025
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2024-442-000044
[2025] NZHC 1152
UNDER the Resource Management Act 1991 IN THE MATTER OF
an appeal against an enforcement order under section 299 of the Act
BETWEEN
MATHIAS AND CHRISTIN SCHAEFFNER
Appellants
AND
TASMAN DISTRICT COUNCIL
Respondent
Hearing: 17 February 2025 Counsel:
Appellants in person
S F Quinn and M T N Campbell for Respondent
Judgment:
15 May 2025
JUDGMENT OF LA HOOD J
Does a tiny home need a resource consent?
[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.1 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.
1 Attached to this judgment are the two photographs of the tiny home that are attached to the Environment Court decision under appeal: Tasman District Council v Schaeffner [2024] NZEnvC 180 [Decision under appeal].
SCHAEFFNER v TASMAN DISTRICT COUNCIL [2025] NZHC 1152 [15 May 2025]
[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.
Background
[4] On 7 December 2021, the tiny home came to the attention of the Council by way of an anonymous complaint and the case was assigned to a Council enforcement officer to investigate.
[5] The property is owned by the appellants and is located on the corner of Neudorf Road and Moutere Highway in Tasman. There is an existing residence, occupied by the Schaeffners, located some 100 metres from the tiny home.
[6] From evidence collected through the execution of a search warrant and the ongoing occupation of the tiny home, the Council formed the opinion that it was in breach of the TRMP. On 29 September 2022, the Council wrote to Mr Schaeffner alerting him to its findings and giving options for compliance, which included obtaining a resource consent. No response was received to this letter. On 15 December 2022, the Council wrote a further letter to Mr Schaeffner. On 6 April 2023, the Council applied to the Environment Court for enforcement orders. In the Environment Court, the Schaeffners raised a variety of complaints about the Council’s handling of the investigation that are not relevant to the issues I need to determine on appeal.
The Environment Court Decision
[7] The Environment Court noted that the principal issue of whether the tiny home meets the definition of “dwelling” depends on various definitions in the RMA and TRMP, but ultimately comes down to whether it is “fixed to land”.2
[8] In determining that issue, Judge Reid started by canvassing the evidence of the Council’s enforcement officers and the appellants.3 It is helpful to set out the Judge’s summary of that evidence:
[19] I will now summarise the evidence from Council officers Mr Galbraith and Mr Waters:
(a)in June 2022 after receiving a complaint from the public, Mr Waters and another Council officer visited the property to carry out an inspection but were asked to leave. The officers returned to the property on 22 August 2022 with a search warrant. Also present were two police officers;
(b)the Council officers took photographs of what they saw. Attachment 1 is the view of the tiny house from outside the gate on the day in question. Attachment 2 is a closeup of the tiny home. From the photographs the tiny house sits on a trailer with two axles and four wheels. It has a tow bar, jockey wheel, road lights, and a registration plate;
(c)the interior of the tiny home is visible through the windows. A kitchen, bathroom, laundry, and living area downstairs can be seen. There is a mezzanine floor containing a sleeping area. There are pot plants, kitchen items, ornaments and items hung on the wall;
(d)there is an external door to the tiny home with steps made of pallets leading up to the entrance;
(e)several plastic pipes have been extended through holes made in the floorboards of the tiny house. These pipes lead to a sump or gully trap near the front door. The pipes come from below the bathroom, kitchen, and laundry areas;
(f)the tiny home has a corrugated steel roof with guttering, there is a downpipe at the rear extending from the roof to a plastic water tank sitting on pallets. Rainwater collects in the tank;
(g)there is another building located adjacent to the tiny house (the yellow building) which appeared to the Council officers in August 2022 to be being used as a massage studio. Next to the
2 Decision under appeal, above n 1, at [4].
3 At [15]–[24].
yellow building is a shed containing household items, and a pump. There is a buried electric cable running from the tiny house to the pump;
(h)from his experience Mr Waters concluded that the tiny house has a composting toilet. Composting toilets separate liquids (urine) and solids within the toilet. The solids are contained within the main chamber of the toilet and the liquids flow out of the system in a pipe to containment elsewhere. In this case, the urine was being conducted via a pipe though the floor to an external plastic container;
(i)there are wind-down stabilisers and wooden blocks underneath the tiny house. There are various pipes, timber and other materials stored under the tiny house;
(j)gas supply is self-contained. There are external gas pipes leading to an enclosed box behind the tow bar labelled “flammable gas”. This is where it would be expected a gas bottle would be stored, although a gas bottle is not visible in the photographs;
(k)the photographs show that the tiny house is serviced by a driveway and gate that is separate to the main house. There are gardens, various pot plants and other materials around the tiny house;
(l)Mr Galbraith is a compliance officer employed by the Council. He drives past the site on the way to work each day. The tiny home and any vehicle parked outside were clearly visible from the road. He first noticed the tiny home and a car parked outside in mid-2021. He saw lights on in the evenings and sometimes a person outside the tiny home. From what he saw he considered that the tiny home was being occupied as a dwelling from mid-2021 to early November 2023, when he affirmed an affidavit in these proceedings.
[20] Mr Schaeffner appeared for questioning on Mr and Mrs Schaeffners’ joint evidence. I summarise the relevant matters from their evidence as follows:
(a)Mr Schaeffner says that the tiny home was constructed off-site and towed by a transportation company (Lift N Shift Ltd) approximately 50 km along public roads to its present location. While accepting that a specialist moving company had been hired to tow the tiny home, Mr Schaeffner maintained that there was nothing special about the vehicle used (a Toyota Hilux) with a towing capacity of 3.5 tonnes. The 2021 video shows the tiny home being towed to the site. The tiny home has not since been moved, the only exception being when it was moved on 2 July 2023 as part of the demonstration video;
(b)the tiny house was built in accordance with the Land Transport Rule: Vehicle Dimensions and Mass Rule 2016. The tiny home measures 2.5 m in width, 4.10 m in height at its highest point
and 8.90 m in length (including the towbar fixture) which, I was told, is the maximum size;
(c)Mr Schaeffner said that the tiny home has solar panels on the roof which generate electricity. The buried extension cable conveys power from the tiny home to the pump and water is pumped back to the tiny home via an underground pipe;
(d)the demonstration video shows the tiny house being disconnected from the services and towed by a tow truck a short distance to the gate. A jack is used to raise the tiny home so that blocks of wood underneath it can be removed. Mr Schaeffner is shown disconnecting an underground pipe or hose supplying water to the tiny home with a spanner. Mr Schaeffner said that the pipes connecting to the tiny home can easily be detached in “less than a minute”;
(e)in the demonstration video four pipes leading from the kitchen, laundry and bathroom under the tiny home are disconnected from the gully trap by removing the end extenders on each pipe. This exercise is relatively straight forward because the extenders are not glued in place. However, the extensive piping under the tiny house remains in place. Pipes hang down from the holes through the floor and extend to a point in front of the wheels adjacent to the gully trap. The tiny home is towed without these pipes being removed;
(f)Mr Quinn questioned Mr Schaeffner about the process required to move the tiny home. Mr Schaffner confirmed that in addition to the pipes the power cable needed to be disconnected, wooden blocks for levelling out needed to be removed using a “standard jack” and the downpipe from the gutter to the water tank needed to be disconnected and removed;
(g)before being moved items inside the tiny home needed to be packed away. Mr Schaeffner maintained that this was no different to a normal caravan and the packing needed was similar to what might occur at the end of a holiday at a campground;
(h)once the tiny home was moved items left behind where it had been included the rainwater tank, the gully trap, the power cord connecting to the pump, the water hose connection to the pump. Gravel is left where the tiny home had been and the driveway;
(i)Mr Schaeffner said that the yellow building, shed and water tank were present prior to the tiny house arriving. If the tiny home was removed, they would remain as they had previously. Mr Schaeffner did not accept that the yellow building was being or had been used for running a massage business;
(j)Mr Schaeffner’s evidence was that the tiny home had been occupied continuously from the time it was moved onto the site, a period of approximately 2 and a half years;
(k)Mr Schaeffner accepted that the occupation of the mobile home was separate to the occupation of the main house. Services are not connected to the main house and the occupants are effectively self-sufficient.
[9] The Environment Court did not think there was a significant difference of approach between the parties on the applicable law. Both counsel relied on two previous Environment Court cases dealing with tiny homes that approached the issue of “fixed to land” by considering the degree of annexation and the object, or intent, of annexation.4 The Judge then proceeded to use this framework to consider whether the tiny home was “fixed to land” and therefore a “structure” under the RMA.
[10] The Environment Court held that “the tiny home is fixed to the land in such a way as to be a structure as defined under s 2 of the RMA”.5 The reasons for this included:
(a)The property law cases regarding whether an object is a chattel or part and parcel of the land may be a helpful way to analyse the facts, but the focus must be on the definition of “structure” in the RMA. In particular, there should not be a reading down of the definition of “structure” in the context of the definition of “building” in the TRMP, which states that a “building” is a structure “whether moveable or immovable, temporary or permanent.” Therefore, a building (and a structure) is able to be both temporary and moveable.6 It follows that, in this statutory context, an object secured to the ground for a particular event, which is to be removed after the event, would meet the definition of a structure whereas such a building would likely be a chattel under the property law approach.7
(b)In terms of the degree of annexation, the tiny home has been connected to self-contained infrastructure installed on the property using extensive piping (including electricity, water, rainwater and
4 At [35]; citing Antoun v Hutt City Council [2020] NZEnvC 6; and Beachen v Auckland Council
[2023] NZEnvC 159.
5 At [57].
6 At [36]–[38].
7 At [38]–[40].
wastewater). The wastewater is conveyed through a purpose built disposal system that conveys the water to a gully-trap and connects the tiny home to the ground.8 Attachment to the ground is further demonstrated by the water supply system, which involves an underground cable leading from the tiny home to a pump and water tank separate from the tiny home, and a water pipe from the tank returning underground to the tiny home.9
(c)The rainwater collection system (including a down pipe attached to a rainwater collection tank), along with gardens, plantings, a gravel pad, a driveway, pallets and the proximity of a nearby yellow building, shed and water tank all show the tiny home is integrated to the site. It has the appearance of a separate lived-in residential unit.10 Much of this infrastructure would be rendered purposeless if the tiny home were towed away.11
(d)In addition to the need to disconnect the pipes and cable to the on-site infrastructure, the piping (particularly the wastewater piping) that hangs underneath the tiny home after the disconnection process means the tiny home can only be moved with difficulty.12
(e)Although of much less significance to the degree of annexation, the weight of the tiny home was resting on wooden blocks underneath it (along with the wheels). A jack is required to lift the tiny home so that these can be removed.13
(f)In relation to the object of annexation, the infrastructure, the modifications to the tiny home, and the furnishings and personal contents of the tiny home, make it clear that the intention is for it to remain on site as a lived-in, residential unit on a long-term or permanent
8 At [44]–[46].
9 At [47].
10 At [48].
11 At [49].
12 At [50].
13 At [51].
basis.14 This is confirmed by the evidence that it has in fact been occupied on a permanent basis for over two and half years.15
[11] The Court’s findings meant there was breach of the TRMP, which established grounds for an enforcement order.16 The Judge decided that “there are no circumstances, exceptional or otherwise, that would justify the court refusing to grant an order”.17
Appeals to the High Court from the Environment Court
[12]Section 299 of the RMA provides the ability to appeal to the High Court:
(1)A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.
(2)The appeal must be made in accordance with the High Court Rules 2016, except to any extent that those rules are inconsistent with sections 300 to 307.
[13] Appeals on decisions made by the Environment Court to the High Court are therefore on questions of law. The High Court should only interfere with a decision of the Environment Court where it is satisfied that the Environment Court:
(a)applied a wrong legal test; or
(b)came to a conclusion without evidence or one to which, on evidence, it could not reasonably have come; or
(c)took into account matters which it should not have taken into account; or
14 At [52]–[53].
15 At [52]–[54].
16 At [57].
17 At [61].
(d)failed to take into account matters which it should have taken into account.18
[14] The question of the weight to be given to the relevant considerations is for the Environment Court alone and is not for reconsideration by the High Court as a point of law. Any error must be a “material” error, in the sense it materially affected the result of the Environment Court’s decision.19
Tasman Resource Management Plan
[15] As the Council is a unitary authority, the TRMP is a combined regional and district plan. The property is located in the Rural 1 Zone and subject to Chapter 17 of the TRMP. The Environment Court found the tiny home contravened r 17.5.3.1(b) in Chapter 17. Rule 17.5.3.1(b)(i) states:
Construction, alteration, or use of a building is a permitted activity that may be undertaken without a resource consent, if it complies with the following conditions:
…
(b)Any building that is constructed is not:
(i)a dwelling; or
…
[16]The TRMP sets out the principal reason for this rule:20
The construction of buildings, especially dwellings, has been recognised as a contributing factor to fragmentation of land which limits the productive values, including versatility of land. The rules relating to land use, including those for buildings and location are to control the adverse effects of land fragmentation on the productive values of the land, as well as on rural character and amenity values. The more highly valued versatile land in the Rural 1 Zone is at greater risk of fragmentation and the rules seek to limit those adverse effects through more stringent controls than in Rural 2.
Small subsidiary units that are dependent on the main dwelling are permitted, whereas consent is required for additional dwellings because of their
18 Resource Management Act 1991, s 299(1); Ayrburn Farm Estates Ltd v Queenstown Lakes District Council [2012] NZHC 735, [2013] NZRMA 126 at [34], cited in Puketotara Lodge Ltd v Bluegum Gospel Hall Trust [2024] NZHC 3306 at [29].
19 Ayrburn Farm Estates Ltd v Queenstown Lakes District Council, above n 18, at [35]–[36], cited in Puketotara Lodge Ltd v Bluegum Gospel Hall Trust, above n 18, at [29].
20 Tasman Resource Management Plan, Chapter 17 at 126.
propensity to contribute to land fragmentation. Cooking facilities are not allowed in these subsidiary units as these can encourage separation and independence from the main dwelling.
[17]The TRMP defines a “dwelling” as:21
Dwelling – means a building or part of a building for a single self-contained housekeeping unit, whether of one or more persons (where “single self- contained housekeeping unit” means a single integrated set of sleeping, ablution, and cooking facilities under a continuous roof and fully enclosed walls). A minor dwelling is a dwelling that is up to 80 square metres in area excluding any garage. Where any garage is attached to the minor dwelling the total area of the building is no more than 120 square metres.
[18]The TRMP also defines a “building” as (relevantly):22
Building - means any structure (as defined in the Act) or part of a structure whether temporary or permanent, movable or immovable, including accessory buildings but does not include:
…
(f) any vehicle, trailer, tent, caravan or boat whether fixed or movable, unless it is used as a place of long term accommodation (for two calendar months or more in any year), business or storage;
…
[19]The RMA definition of “structure” adopted by the TRMP is:23
… any building, equipment, device, or other facility made by people and which is fixed to land; and includes any raft.
Grounds of appeal
[20]The appellants’ submissions distilled their argument to six grounds of appeal:
(a)The Environment Court was wrongly influenced by the TRMP when interpreting the definition of “structure” under the RMA (Ground One);
21 Tasman Resource Management Plan, Chapter 2 – Meaning of Words at 11.
22 Tasman Resource Management Plan, Chapter 2 – Meaning of Words at 6.
23 Resource Management Act, s 2.
(b)The Environment Court failed to properly interpret the meaning of the words “fixed to land” within the definition of “structure” under the RMA (Ground Two);
(c)The Environment Court erred when considering the “degree of annexation” of the tiny home (Ground Three);
(d)The Environment Court erred when considering the “object of annexation” of the tiny home (Ground Four);
(e)The Environment Court erred in its interpretation of “building” within the definition of “structure” under the RMA (Ground Five); and
(f)The Environment Court erred in its application of TRMP r 17.5.3.1(b) by considering the tiny home was a “building that is constructed” (Ground Six).24
[21] It is not contested that if the tiny home requires a resource consent, an enforcement order can be made under s 319 of the RMA.25
Ground One: the Environment Court was wrongly influenced by the TRMP when interpreting the RMA
[22] As the Environment Court noted, there is an element of circularity in the applicable definitions.26 The TRMP’s definition of “building” adopts the RMA’s definition of “structure”, which includes “any building … or other facility made by people and which is fixed to land”. However, in the Environment Court, the parties agreed that the sole issue is whether the tiny home is “fixed to land”.27
24 Noting that the appellants’ written submissions do not refer to this as a separate ground, but it is convenient to address this issue as a separate ground.
25 Resource Management Act, ss 314(1)(a)(i) and (b)(i) and 319(1). And see Russell v Manukau City Council HC Auckland HC54/95, 29 November 1995, [1996] NZRMA 35 at 15, cited with approval in Hamilton City Council v Global Metal Solutions Ltd [2021] NZEnvC 188 at [40]; and Auckland Council v Blackwell [2011] NZEnvC 352 at [43].
26 Decision under appeal, above n 1, at [13].
27 At [14].
[23] There are other aspects of the TRMP definitions that have the potential to cause confusion. For example, as addressed further below, its definition of “building” appears to be at least partially modelled on the definition of “building” in the Building Act 2004, which includes the phrase, “means a temporary or permanent movable or immovable structure…”. In addition, paragraph (f) appears to be designed to include within the definition a “vehicle” or “trailer” that “is used as a place of long term accommodation” “whether fixed or movable”. However, this appears to overlook the imported definition of “structure” in the RMA, which requires that any such vehicle or trailer must be “fixed to land”. To add to the confusion, the RMA contains a definition of “dwellinghouse” that is different to the definition of “dwelling” in the TRMP.28
[24] The appellants submit the Environment Court allowed the TRMP’s definition of “building” (particularly the words “whether temporary or permanent, movable or immovable”) to improperly influence its interpretation of the meaning of “fixed to land” in the RMA’s definition of structure.29
[25] Judge Reid referred to this definition in the context of considering the application of the property law approach to ascertaining the meaning of “structure”. This included whether something is “fixed to land” in the context of a definition of “building” that includes temporary or movable structures.30 The Judge also considered the implications of the property law approach for district plans generally.31
[26] I accept as a general proposition that only in particular circumstances will it be appropriate to interpret primary legislation by reference to secondary legislation. However, in this case Judge Reid was not considering a provision in secondary legislation as an aid to interpreting the primary legislation. He was considering a definition in secondary legislation directly applicable to the alleged breach of a rule in
28 Resource Management Act, s 2: The RMA definition of dwellinghouse is:
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
29 Off Road New Zealand (1992) Ltd v Machinery Inspector [2019] NZHC 1996 at [59], citing
Interfreight Ltd v Police [1997] 3 NZLR 688 (CA) at 692.
30 Decision under appeal, above n 1, at [37]–[42].
31 Decision under appeal, above n 1, at [38], fn 14.
the secondary legislation. I accept the Council’s submission that the Environment Court was, in this context, essentially considering the consequences of a narrow interpretation of “fixed to land” that purely adheres to the property law test of whether something is a chattel. In my view, the Judge was correct to assess this issue by reference to the full legislative context. This must include the full definition of “building” in the TRMP, which is a significant element in the rule that is alleged to have been breached.
[27] Furthermore, the appellants’ submission assumes that there is an inherent conflict between a building being “fixed to land” and movable and temporary. I do not accept there is any such conflict (as the appellants’ reliance on the Building Act 2004 definition demonstrates, which is an issue I return to below).32 Moreover, the Judge did not say that the TRMP definition of “building” could alter or govern the meaning of “fixed to land”, expressly stating that he set out his reservations for “completeness.”33 Any error, if it were to exist, is therefore immaterial.
[28] The correct interpretation and application of “fixed to land” in this context is the ultimate issue to be resolved on appeal. It is a question of law for my determination irrespective of any error in the Environment Court’s approach.
[29]I therefore reject this ground of appeal.
Ground Two: The Environment Court failed to properly interpret the meaning of the words “fixed to land” within the definition of “structure” under the RMA
[30] The appellants contend the Environment Court erred by failing to properly consider the history, context and purpose of the definition of “structure”, the dichotomy between realty and chattels, and the ordinary meaning of the words “fixed to land”.
[31] In support of their position, the appellants rely on the National Planning Standards (NPS) and the Ministry for the Environment’s associated responses to consultation on those standards, the Inland Revenue Department’s Interpretation
32 See [63] onwards below.
33 Decision under appeal, above n 1, at [42].
Statement IS 10/02 on the meaning of “building”, and case law relating to whether something is a chattel in the property law sense.
[32] The Inland Revenue Department’s Statement on the meaning of “building” for purposes of the depreciation provisions in the Income Tax Act 2007 is not relevant or helpful to interpreting whether something is “fixed to land” in the quite different statutory context of the RMA.
[33] I also find the NPS and associated consultation to be of little relevance. The appellants acknowledge it has “no legal relevance” but consider I might be assisted by considering its reasoning. I do not find it of much assistance beyond identifying some of the ambiguity in the definitions under consideration. Amendments to provide clarity would seem eminently sensible, but the Court must interpret the relevant provisions in their current form.
[34] In respect of the property law cases, I consider the Judge was right to say that while they may provide some guidance, caution is required in applying them in this context. As the Judge said, “the issue in this case is the application of the statutory definition of ‘structure’ in the RMA to the facts, and not whether the tiny home is in fact a chattel or a fixture in a property law sense.”34
[35] This approach reflects that ownership per se is not an issue under the RMA. Rather, the focus and purpose of the RMA is on the sustainable management of natural and physical resources.35 In Coleman v Kingston, the High Court said:36
The Resource Management Act floats, rather like oil on water, across the top of ownership rights without affecting the underlying substance.
34 Decision under appeal, above n 1, at [36].
35 Wellington Badminton Assn Inc v Wellington City Council [2011] NZEnvC 343 at [43.8], approving Haddon v Auckland Regional Council (1993) 1B ELRNZ 8, [1994] NZRMA 49. See also Te Whānau a Kai Trust v Gisborne District Council [2023] NZCA 55 at [19].
36 Coleman v Kingston HC Auckland AP103-SW00, 3 April 2001 at [28].
[36]The High Court has also recently observed that:37
… the RMA provides a regulatory framework for the use of land. Title and ownership are matters outside its ambit.
[37] I therefore accept the Council’s submission that the RMA’s purpose of sustainable management must govern the RMA definition of “structure”, including whether something is “fixed to land”. The purpose section of the RMA provides:38
(1)The purpose of this Act is to promote the sustainable management of natural and physical resources.
(2)In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while—
(a)sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(b)safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
(c)avoiding, remedying, or mitigating any adverse effects of activities on the environment.
[38] I also accept the Council’s submission that the property law cases are concerned with ownership (whether ownership of an object passes to a new landowner because it has become part and parcel of the land). An analysis that simply adopts the property law approach addresses a question that the RMA is not concerned with.
[39] What is required in this case is an overall assessment of whether an object is a “structure” because it is “fixed to land” in light of the purpose of the RMA and the overall context.39 That context must include the rule in the plan under consideration, which was designed to protect against the adverse effects of land fragmentation on the productive value of land, as well as on rural character and amenity values.40 It might
37 Te Whānau a Kai Trust v Gisborne District Council [2022] NZHC 1462 at [85]. Leave to appeal to the Court of Appeal and Supreme Court declined: Te Whānau a Kai Trust v Gisborne District Council, above n 35; and Te Whānau a Kai Trust v Gisborne District Council [2023] NZSC 77.
38 Resource Management Act, s 5.
39 Legislation Act 2019, s 10.
40 Powell v Dunedin City Council [2005] NZRMA 174 (CA) at [12] and [32]–[37].
be helpful to organise that analysis in terms of the degree and object of annexation or attachment to the land, but what is paramount is an overall contextual finding regarding whether the object is a “structure” for the purposes of the RMA.
[40] This approach aligns with the previous Environment Court approach in Antoun v Hutt City Council (Antoun) and Beachen v Auckland Council (Beachen).41 In Antoun, Judge Dwyer was assisted not only by considering the degree and object of annexation, but also undertook “a wide consideration” of all the relevant matters.42 In Beachen, Judge Dickey considered the degree and object of annexation to be “two main indicators of whether a building is fixed to land” and then undertook a more contextual analysis of the tiny home in question, concluding that it was a structure for the purposes of the RMA.43
[41] Previous case law on the RMA’s definition of “structure” is also helpful. In Ohawini Bay Ltd v Whangarei District Council, the Environment Court held that concrete blocks held in place by gravity which formed a retaining wall were “fixed to land” and a structure under the RMA.44 In reaching this conclusion, the Court drew on the Shorter Oxford English Dictionary definition of “fixed”, being “[d]efinitely and permanently placed or assigned; stationary or unchanging in relative position; definite, permanent, lasting.”45
[42] In Tasman District Council v Way, the Environment Court, when considering whether a vessel was “fixed to land” for the purpose of the RMA definition of “structure”, stated:46
[49] We do not consider that the word fixed as used in the definition of structure requires that a device or facility must be so attached to land that it cannot be moved at all. The Concise Oxford Dictionary includes this meaning of fix: attach or position securely. The NZ Oxford Dictionary includes this definition: make firm or stable; fasten, secure… Accordingly we hold that anchors which are intended to hold a vessel securely in place may provide a means of fixing for the purposes of RMA. Assessing whether or not that has
41 Antoun v Hutt City Council, above n 4, at [58]; and Beachen v Auckland Council, above n 4.
42 At [40]–[58].
43 At [24] and [41]–[46] (emphasis added).
44 Ohawini Bay Ltd v Whangarei District Council EnvC Auckland A68/06, 31 May 2006 at [24]– [25].
45 At [24]; citing Lesley Brown (ed) New Shorter Oxford English Dictionary (Oxford University Press, Oxford, 1993) at 655.
46 Tasman District Council v Way [2010] NZEnvC 349 (footnotes omitted, final emphasis added).
happened in any given case requires the Court to take a broad view of all the relevant facts and circumstances.
[43] The Court considered that the means of fixing (four anchors), the period of fixing (more than six months) and the vessel’s restricted navigability, meant it had been fixed in such a way as to become a structure despite the occasional departure from its main location.47 The Court also noted that the vessel had established a long term base on its main location, which was demonstrated by the “infrastructure (water supply) … storage of building materials on shore and the track beaten along the foreshore … by regular continued usage.”48
[44] I therefore reject the appellants’ submission that the property law approach to whether an object is a chattel should govern the meaning of “fixed to land”.49
[45] It follows that I see no error in the Environment Court’s approach. Judge Reid analysed the evidence through the lens of the degree and object of annexation, then ultimately made an overall finding that “the tiny home is fixed to land in such a way as to be a structure as defined under s2 of the RMA”.50 Moreover, I agree with the Judge’s analysis and conclusion.
[46]Therefore, this ground of appeal fails.
Ground Three: The Environment Court erred when considering the “degree of annexation” of the tiny home
[47] Under this ground, the appellants rely on a number of property law cases that consider the “degree of annexation”. With the exception of Antoun and Beachen, these cases are not directly applicable to the question of whether something is a “structure” under the RMA as they concern questions of ownership and property rights. As I have already said, I consider them to be of limited assistance.
47 At [52].
48 At [51].
49 The leading cases on the property law approach are Elitestone Ltd v Morris [1997] 1 WLR 687 and Auckland City Council v Ports of Auckland Ltd [2000] 3 NZLR 614 (CA).
50 Decision under appeal, above n 1, at [57].
[48] The appellants’ contentions under Ground Three include that the Environment Court erred by:
(a)Not having evidence of there being “substantial modification” in the form of cutting holes in the floor for the piping since the tiny home arrived at the property.
(b)Referring to the connections to the tiny home as “infrastructure”, despite this not meeting the RMA’s definition of “infrastructure”.
(c)Failing to take into account that the connections to the tiny home “can be easily and quickly removed without any damage”.
(d)Not having evidence to conclude that “much of the infrastructure would be rendered purposeless if the tiny home were to be towed away.”
(e)Concluding that a “structure” is able to be moved, and therefore the tiny home can be a “structure” despite being moveable without material injury. The appellants contend that the fact that the tiny home can be moved horizontally (rather than vertically, like a pontoon) constitutes a weaker degree of annexation.
[49] I do not consider it is relevant whether modifications in the form of cutting holes in the floor for the piping occurred before or after the tiny home arrived at the property. I consider the Judge was correct to consider that the combination of factual matters means the tiny home is sufficiently attached or connected to the land to be “fixed to land” in this statutory context. When the holes were cut for pipes to be attached is of little moment. What is relevant is the existence of the piping and its connection to the land, along with the other items integrating the home to the land. The Judge was right to rely on these matters.
[50] There was no requirement for Judge Reid to ensure his use of the word “infrastructure” accorded with the definition in the RMA. It is clear the Judge was referring to “infrastructure” in the ordinary sense, and more importantly it is clear what
he meant by infrastructure in this context (the totality of the matters that connected the tiny home to the land). The RMA definition of “infrastructure” is simply irrelevant to the Judge’s analysis.
[51] It is also clear that Judge Reid did take into account the evidence of how quickly the tiny home could be removed. He referred to the video (which is a little under 13 minutes long) said to demonstrate the time it took for the tiny home to be detached from the surrounding infrastructure and towed a short distance to the gate of the property.51 However, the steps required to disconnect the piping and cabling and jack up the tiny home, combined with the piping that remained hanging underneath the tiny home following disconnection, meant “the tiny home cannot simply be driven away” and “that it can only be moved with difficulty”.52
[52] In any event, having reviewed the evidence (including the video), it is clear the Judge has not made any factual error about what is required before the tiny home can be moved (and certainly not one that could amount to an error of law). Although the Judge did not expressly refer to it, I note that Mr Schaeffner’s evidence was that, if they had intended to move the home off the property onto a public road, he “would check everything underneath and maybe with cable ties tie it up to the frame of the trailer and make it – would have made it more secure, but there was no intention to go on public roads.” I therefore consider the Judge made no error in his consideration of the steps required before the tiny home could be moved to another property.
[53] I also consider the Judge made no error by concluding the physical aspects of the site supporting the tiny home would be rendered purposeless if it was towed away. The video, photographic and other evidence supports the conclusion that the plantings, gravel pad, driveway, pallets and rainwater tank, along with the proximate yellow building, shed, water pump and buried cable and pipe, show the tiny home is integrated to the site through purpose built modifications. The Judge correctly understood the factual position and made no error in his assessment of it (and certainly not one that could amount to an error of law).
51 Decision under appeal, above n 1, at [50]–[51].
52 At [50].
[54] I also reject the appellants’ contention that, because the tiny home is movable without being cut up or otherwise injured, it cannot be “fixed to land”. There is no authority to support such an absolutist and narrow interpretation of “fixed to land”. It begs the question of what is meant by “movable” or “mobile”. Homes that are designed to be “mobile”, such as caravans, are capable of being modified so they become “fixed to land”. A label of movable or mobile is of limited assistance in assessing whether the definition of structure in the RMA is met.
[55]I therefore reject this ground of appeal.
Ground Four: The Environment Court erred when considering the “object of annexation” of the tiny home
[56]Under this ground, the appellants contend the Environment Court erred by:
(a)Considering the long-term home occupation as part of the object of annexation test.
(b)Considering the apparent intention that the tiny home stay on the property on a long-term or permanent basis.
(c)Considering the timeframe for how long the tiny home has been located on the property.
(d)Failing to consider the different ownership of the tiny home and the property.
[57] As already noted, I agree with the Judge that considering whether something is “fixed to land” under the headings of “degree of annexation” and “object of annexation” can be a helpful way to analyse the facts. However, the overall question is whether an object is a “structure” because it is “fixed to land” in light of the purpose of the RMA and the overall context.
[58] It follows that the Environment Court was correct to consider relevant the long- term occupation of the tiny home, how long it had been located on the property, and whether there was an intention to remove it in the future.
[59] I also see no error in Judge Reid’s conclusion that separate ownership of the tiny home is not inconsistent with any intention for it to be part of the land given this has not prevented its integration to the property for a period of at least two and a half years53 Moreover, as discussed above, the RMA is not concerned with property rights but with the sustainable management of resources. As the TRMP states, the principal reason a resource consent is required for additional dwellings is “to control the adverse effects of land fragmentation on the productive values of the land, as well as on rural character and amenity values.” 54
[60]For these reasons, I reject this ground of appeal.
Ground Five: The Environment Court erred in its interpretation of “building” in the definition of “structure” under the RMA
[61]The essence of this ground of appeal is that the tiny home cannot be a “building
… or other facility” under the RMA definition of “structure”.
[62] The appellants acknowledge that this argument was not made in the Environment Court. As already noted, the sole issue in the Environment Court was whether the tiny house is “fixed to land”.55
[63] The appellants contend the term “building” under the RMA definition of “structure” should be aligned to the definition in s 8 of the Building Act 2004, which I have touched on already. The relevant parts of that definition are:
(1)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
53 Decision under appeal, above n 1, at [56].
54 Tasman Resource Management Plan, Chapter 17 at 126.
55 Decision under appeal, above n 1, at [14].
(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; and
…
[64] The appellants contend that as the tiny home meets the definition of a motor vehicle under the Land Transport Act and is not immovable, it does not meet this definition of building.56
[65] The purpose of the Building Act is, broadly, the regulation of building work to ensure health and safety.57 This can be contrasted with the RMA’s wider purpose of promoting the sustainable management of natural and physical resources.58 I accept the Council’s submission that adopting the Building Act’s definition of “building” in the RMA’s definition of “structure” risks frustrating the RMA’s purpose. The meaning of “building” must be ascertained in light of the distinct purposes and contexts of the two pieces of legislation.59 There can be no suggestion that the Building Act was intended to provide a universal definition of “building” applicable across all legislation; the definition provision starts with the standard wording “In this Act …”.60
[66] This conclusion is supported by the High Court’s decision in Woodward v Astrograss Allweather Surfaces Ltd.61 In that case, Anderson J held that the word “structure” in the Building Act 1991’s definition of “building” should not adopt the RMA definition of “structure” (which, as already noted, includes the word
56 It has been held in the District Court that a mobile tiny home, which was materially indistinguishable from a caravan, does not meet the Building Act 2004 definition of “building”: Dall v Chief Executive of the Ministry of Business Innovation and Employment [2020] NZDC 2612.
57 See Building Act 2004, s 3.
58 Petone Planning Action Group Inc v Hutt City Council NZEnvC Wellington W020/08, 2 May 2008 at [141].
59 Legislation Act, s 10.
60 Building Act, s 8(1).
61 Woodward v Astrograss Allweather Surfaces Ltd HC Auckland HC112/96, 25 November 1996.
“building”).62 In addition, although “building” is not defined in the RMA, the RMA expressly states when the Building Act definition is applicable (for example, see s 10B, which allows contravention of a district plan for existing building works). This is a further indication that the Building Act definition should not be applied generally to the RMA.
[67] The Council submits that a wider interpretation of “building” is required for the RMA’s definition of “structure”. It submits a plain meaning of building is helpful and the Shorter Oxford English Dictionary defines building as “a thing which is built”.63 The Council says building should not be exhaustively defined to ensure the RMA’s sustainable management purpose is maintained, but the dictionary definition is still helpful and clearly the tiny home is a building under that definition. On the other hand, the appellants contend that the definition of building in the New Zealand Law Dictionary is more helpful, namely “a temporary or permanent movable or immovable structure” (followed by reference to the Building Act definition that does not include the part of the definition relating to motor vehicles: s 8(1)(b)(iii)).64
[68] I agree with the Council that an approach that gives full effect to the RMA sustainable management purpose is preferable to the adoption of definition from an Act with a different purpose and regulatory focus. Even if an object meets the definition of motor vehicle in the Land Transport Act and is movable, its degree of connection to the land may be such that its potential environmental impact means it should be subject to control under the RMA (even if it is unlikely to give rise to any building safety concerns).
[69] But even if I am wrong about this, I consider the tiny home would fall within “other facility made by people” in the RMA definition of “structure”. The Collins English Dictionary defines “facility” as “the means or equipment facilitating the
62 At 6–7.
63 William R Trumble and Angus Stevenson (eds) Shorter Oxford English Dictionary (5th ed, Oxford University Press, Oxford, 2002).
64 I was provided with the 2002 and 2022 edition of this publication, with each cross-referencing to the Building Act in force at the time: Peter Spiller New Zealand Law Dictionary (10th ed, LexisNexis, Wellington, 2022); Peter Spiller, MS Hinde and GW Hinde Butterworths New Zealand Law Dictionary (5th ed, LexisNexis Butterworths, Wellington, 2002).
performance of an action”.65 In Ohawini Bay Ltd v Whangarei District Council, the Environment Court held that the term “facility” is very broad and quoted the following definition from the Shorter Oxford English Dictionary: “…[n]ow also, an amenity or service which enables something to be done.”66 The tiny home is a “means or equipment” designed for dwelling, or an “amenity … which enables something to be done”, namely, a person to live in it.
[70] The appellants cite no authority for the proposition that “other facility” should not include a tiny home, except for observations made in the Ministry for the Environment’s response to consultation over the NPS that “facility” might bear the meaning of a larger building or complex. However, that comment was in the context of recommendations about removing uncertainty about the meaning of “facility” and acknowledged that items such as shipping containers, motor homes, caravans and house trucks may also fall within the meaning of “facility”.
[71] It follows that I consider a broad meaning of the phrase “building … or other facility made by people…” that captures the tiny home accords with the RMA’s purpose. The parties and the Judge therefore correctly focused on whether the tiny home is a “structure” because it is “fixed to land”.
[72]For these reasons, this ground of appeal fails.
Ground Six: The Environment Court erred in its application of TRMP rule 17.5.3.1(b) regarding considering the tiny home was a “building that is constructed”
[73] Under this ground of appeal, the appellants contend that the tiny home is incapable of breaching r 17.5.3.1(b) of the TRMP because it is not a “building that is constructed” given it was constructed off-site. This was also not an argument advanced in the Environment Court.
[74] The appellants’ submission requires an interpretation of r 17.5.3.1(b) that the plain words are simply unable to bear. There is nothing in r 17.5.3.1(b) that specifies
65 Duncan Black and others (eds) Collins English Dictionary: 30th Anniversary Edition (10th ed, HarperCollins Publishers, Glasgow, 2009).
66 Ohawini Bay Ltd v Whangarei District Council, above n 44, at [23] and [24] (footnote omitted);
New Shorter Oxford English Dictionary, above n 45, at 903.
where a building needs to be constructed. The chapeaux to r 17.5.3.1 refers to the “construction, alteration, or use of a building”. Therefore, r 17.5.3.1(b) makes the use of a building permitted only where it is “[a]ny building that is constructed [that] is not
… a dwelling”. It does not matter where the tiny home was constructed, merely that it was constructed and then used. Moreover, an interpretation of r 17.5.3.1(b) that excludes buildings that have been relocated would clearly frustrate the RMA’s sustainable management purpose.
[75]Accordingly, this ground of appeal also fails.
Conclusion
[76] Whether a building or other facility is sufficiently connected to a property to be considered “fixed to land” will be a matter of fact and degree in light of the sustainable management purpose of the RMA and the overall context. In this case, the context includes the rule’s purpose of protecting against the adverse effects of land fragmentation on the productive value of rural land, and on rural character and amenity values.
[77] I consider the Environment Court made no error of law or principle in its approach to the interpretation of the relevant provisions of the RMA and the TRMP. Nor did the Court err in its assessment of the evidence in a way that could amount to an error of law.
[78] The Environment Court correctly focused on whether the tiny home is “fixed to land”, and appropriately organised its assessment by reference to the degree of the tiny home’s attachment or connection to the land and the intention of that connection. The Judge was entitled to conclude that the combination of the physical aspects of the connection to the land and the purpose of the connection (for long-term residential accommodation) means the tiny home is fixed to land, and requires a resource consent. I agree with that conclusion.
[79] I am not persuaded that there has been any error of law in the Environment Court’s approach. However, even if this were a full-merits appeal, there would be no basis to allow the appeal as I agree with the Judge’s factual conclusions.
Costs
[80] My preliminary view is that the Council is entitled to costs on a 2B basis. If costs cannot be agreed, the parties should file memoranda within 15 working days (limited to five pages), and reply memoranda (limited to two pages) five working days thereafter. Costs will be determined on the papers.
La Hood J
Solicitors:
Tasman Law, Richmond for Respondent
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