A number of recent Ministry of Business Innovation and Employment (MBIE) determinations, and District and Environment Court decisions have discussed the legality of 'tiny houses', and specifically the question of whether they need to comply with the requirements of the Building Act 2004 (Building Act) and Resource Management Act 1991 (RMA).
The crux of these cases tends to centre on whether the tiny house in question is a "building", and therefore must comply with the requirements of the Building Act, or whether the tiny house is a (moveable) vehicle, which are not considered buildings for Building Act purposes. Another commonly raised issue is whether a tiny house is required to comply with the relevant district plan. In this article we focus on two recent decisions which consider these two questions – Dall v MBIE  NZDC 2612 and Antoun v Hutt City Council  NZEnvC 6.
Dall v MBIE
This District Court case involved an appeal against an MBIE determination (2019/017) that the tiny house Mr Dall had built was a "building" pursuant to the Building Act and therefore required building consent.
Mr Dall's tiny house has a trailer substructure with a dwelling superstructure. MBIE determined that, due to the tiny house's characteristics as a whole and its essential nature (in which it is used as a dwelling rather than as a vehicle), it did not constitute a vehicle for the purposes of the Building Act. Rather it determined that it was a "moveable structure" and therefore a "building" which must comply with the Building Act. The District Court disagreed with this finding, and we summarise below the salient points of its decision.
We start by looking at what constitutes a building. Section 8 of the Building Act defines what a building means and includes under the Act, and relevantly provides:
- In this Act, unless the context otherwise requires, building—
- means a temporary or permanent movable or immovable structure (including a structure intended for occupation by people, animals, machinery, or chattels); and
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 ...
Applying the Court of Appeal's previous interpretation of s 8(1)(b)(iii), the District Court used the below methodology to determine whether the Building Act applied to Mr Dall's tiny house:
- Is the tiny house a "vehicle" or "motor vehicle" (pursuant to s 8(1)(b)(iii))?
- If so, is the tiny house immovable and occupied by people on a permanent or long-term basis? If so, then the tiny house is a "building". If the tiny house is a vehicle but is not immovable or not occupied by people on a permanent or long-term basis, then it is not a building;
- If the tiny house is not a vehicle at all, does it otherwise come within the general definition of "building" in section 8?
Accordingly, we start with whether the tiny house is a vehicle or motor vehicle. If the tiny house falls within either the definitions of "vehicle" and/or "motor vehicle" in the Land Transport Act 1998 (or a wider definition of vehicle/motor vehicle based on their natural and ordinary meaning in light of the purposes of the Building Act), then the tiny house is a vehicle. The use of the tiny house is not relevant to determining whether it is a vehicle.
In this case, the Court found that the tiny house was a vehicle, in that it is a "contrivance equipped with wheels" (pursuant to the Land Transport Act 1998 definition). The tiny house has wheels, axles, brakes, lights, drawbar, and a trailer hitch. The Court also stated that the tiny house is no less a vehicle (and no less movable) simply because it was over dimension for use on the road and therefore must comply with certain road safety requirements when it is on the road.
Next is whether the tiny house is immovable and occupied by people on a permanent or long-term basis. The term "immovable" must not be strictly interpreted as "incapable of being moved". In New Zealand it is commonplace for large buildings to be relocated from one site to another; in fact, almost any building or structure is capable of being moved in some way. Accordingly, the Court held that whether a structure is "immovable" in terms of s 8(1)(b)(iii) is a matter of degree. It will require consideration of, for example, the design, functional characteristics, and purpose of the structure. Ultimately, each case will turn on its own facts.
The Court found that Mr Dall's tiny house was not immoveable for a number of reasons, including:
- that it has wheels, chassis, axles, brakes, lights, drawbar, and trailer hitch;
- its functional design allows it to be attached to a vehicle and moved with relative ease;
- it has a valid registration and warrant of fitness;
- it is incapable of being fixed to the ground / being removed from the trailer;
- it is self-contained in terms of services;
- it is indistinguishable in any material way from a caravan.
As the tiny house is a vehicle and is not immovable, it is not a building for the purposes of the Building Act. Mr Dall therefore does not require building consent.
Antoun v Hutt City Council
In this Environment Court case, a tiny house was constructed in the back yard of a property in Lower Hutt. The Council, responding to a complaint from a neighbour, inspected the site and concluded that the tiny house did not comply with the requirements of the city's District Plan, and that it required building consent. After unsuccessfully engaging with Mr Antoun, the Council issued an abatement notice requiring the removal of the tiny house.
The city's District Plan does not restrict the use of buildings (tiny or large) for dwellings, as long as various permitted activity conditions contained in Rule 4A 2.1.1 are complied with. These conditions address matters such as net site area, yard requirements, recession planes, maximum height, and site coverage. These types of controls are included in every district plan we (and the Judge) have ever seen.
Mr Antoun contended that the tiny house was a vehicle (or at least that, upon completion, it is intended to be a vehicle), and therefore did not require building consent or resource consent. The onus was on Mr Antoun to prove this, and the Court was not convinced. It found that this tiny house was clearly not a vehicle. It had no axles or wheels attached to it, and Mr Antoun did not submit any evidence which convinced the Judge that the axles and (separate) wheels he had acquired, which he asserted would be attached to the tiny house in future, would render it movable. We note that the tiny house (or rather the separate axels) was somehow registered as a trailer at the time of the hearing, however this did not sway the Judge. As the tiny house was clearly not a vehicle, building consent is required.
This leaves the issue of whether or not the tiny house was a structure in RMA terms, and therefore required to comply with the provisions in the District Plan relating to structures.
Structure is defined in the RMA as "...any building, equipment, device, or other facility made by people and which is fixed to land...". The key question in determining whether the tiny house is a structure is whether it is "fixed to land" (as it is clearly a facility made by people).
The Judge found that the tiny house was fixed to the land according to the definition of "fixed' proffered by Mr Antoun – "something that does not change; placed or attached in a way that does not move easily". He also found it satisfied a range of other matters which indicated that the tiny house might be regarded as being fixed to the land. These included:
- the test for whether an object is a fixture or a chattel (the degree of annexation and the object of annexation);
- the Oxford English Dictionary definition of "fixed";
- the appearance, design and capacity of the tiny house to be used for permanent occupation;
- the intent to connect the tiny house to council services;
- that it could remain permanently in its current position due to the way it was constructed (i.e. the clearing of topsoil and the laying, levelling and compacting of a layer of base course gravel);
- the infeasibility of moving the tiny house / converting it into a trailer; and
- the legal and practical difficulties of moving the tiny house, as a trailer or otherwise (due to its location and construction).
Accordingly, the Judge found that the tiny house is a "structure" and therefore captured by the rules in the District Plan relating to structures (e.g. net site area and site coverage, recession planes, and maximum height).
These recent cases provide some further clarity on when a tiny house may constitute a vehicle (and therefore need not comply with the Building Act) and when they will be considered structures (and are therefore likely required to comply with the local district plan). However, both of these cases were determined on the specific facts, principally the construction and placement of the tiny houses in question.
We expect that the question of whether building consent or resource consent is required won't ever have a simple one size fits all approach, however these cases do illustrate that it is possible to build a tiny house that does not require either a building consent or a resource consent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.