Tiny house project – Will yours pass muster?

People all around the world are choosing to downsize the space they live in, and adopting the minimalistic approach, i.e. living with less. This has resulted in the tiny house movement picking up pace.  The tiny house movement is a movement that advocates living simply in small houses.  After all, there are benefits of living simply in a small house – imagine living free from rent, mortgage and bills.

So, the question to consider is whether you need permission from the local authority to have a tiny house on your property or can it be considered a movable vehicle (and thus not a building), and therefore escape the requirements of the consenting process.

In New Zealand, there are two recent decisions about tiny houses – one from the Environment Court in Fadi Antoun v Hutt City Council [2020] NZEnvC 6 (that came out in April 2020), and the other a  District Court decision in Dall v MBIE [2020] NZDC 2612 upholding that “a movable vehicle is not a building”.

Fadi Antoun v Hutt City Council 

The appellant in Fadi argued that the tiny house was a vehicle and therefore could not be considered to be a structure under the Resource Management Act 1991 (RMA).   On this issue, the Judge found that, while the structure had two unconnected axles and separate wheels which the appellant had apparently registered as a trailer, there was no evidence that the tiny house could be incorporated into a roadworthy vehicle.  It was a stand-alone, two-storey building constructed on steel beams.

The judge found that “the contention that the tiny house is a vehicle to be a flight of imagination advanced to justify the failure to apply for any necessary resource consents to construct it.”   The Court held that the tiny house was fixed to land in such a way as to be a structure as defined in the RMA for the following reasons:

1. The appearance, design and capacity of the tiny house as a dwelling house capable of being used for permanent occupation;
2. The intention to connect the tiny house to services;
3. The method of construction and that it sat firmly on the land in a stable position; and
4. That the tiny house was not a vehicle and could not be converted into a trailer or loaded onto a vehicle.

Accordingly, the tiny house was required to comply with the rules of the district plan.

Dall v MBIE

The Fadi decision can be contrasted with the District Court’s decision in Dall v MBIE in which the judge was satisfied the structure was a vehicle because it was registered and warranted, and was not immovable.

Mr Dall constructed a tiny house, or a unit comprising a trailer (the substructure) and a dwelling which was constructed on the trailer (the superstructure).

MBIE was required to determine whether the Unit was “building” in terms of s 8 of the Building Act 2004 (Act) and thus subject to the requirements of the Act, or whether the Unit was a “vehicle” or a “motor vehicle” and therefore excluded from the definition of “building” pursuant to s 8(1)(b)(iii) of the Act.  MBIE concluded that the Unit was a building and that the Council was correct to issue a notice for fix under the Act.

Mr Dall appealed that determination to the District Court and requested that the determination of MBIE be set aside and that the Court order that the Unit is a vehicle or a motor vehicle and not a building in terms of s 8 of the Act.

The Court considered the definition of “building” under s 8 of the Act.

Section 8 of the Act defines what a building “means and includes” under the Act:

(a)     means a temporary or permanent moveable or immovable structure; and

(b)      includes –

(iii)   a vehicle or motor vehicle that is immovable and is occupied by people on a permanent or long term basis; and….

The Court noted that the definition in s 8(1)(b)(iii) states that a building will include a vehicle or motor vehicle, but only to the extent that the vehicle is immovable and is occupied by people on a permanent basis.

The Court also noted that:

[38] In New Zealand it is commonplace for buildings, sometimes quite large houses and even multi-story steel or concrete buildings, to be constructed at one site and then moved or “relocated” to another site. It is easy to move some buildings, difficult to move others, and impracticable or economically not feasible to move the rest.  The point is, almost every building or structure is capable of being moved in some way.

Whether a structure is “immovable” in terms of s 8(1)(b)(iii) is therefore a matter of degree and requires consideration of the design, functional characteristics, and purpose of the structure.

The Unit was held to be a vehicle for the purposes of s 8(1)(b)(iii) as it was equipped with wheels, axels, brakes, lights, drawbar and a trailer hitch.

Given the Unit was a vehicle, the Court then considered whether it was immovable and occupied by people on a permanent long term basis.

The Court held that the Unit was not immovable because it possesses wheels, chassis, axels, brakes, lights etc. The functional design was such that it could be attached to a vehicle and moved with ease. The Unit was incapable of being fixed to the ground. The Court noted that its finding would have been different if the Unit was designed so that it could be moved off the wheels and fixed to the land. The Unit was built in such a way that it was incapable of being removed from the trailer.

Analysis

In my view, by nature, the structure/tiny house must be ‘temporary’, and should be able to be moved if necessary.   It should not be ‘fixed’ to land. Applying the District Court’s decision in Dall, you are most likely be allowed to place the tiny house on your property without having to apply for resource consent.  However, whether a structure is “immovable” in terms of s 8(1)(b)(iii) is a matter of degree and requires consideration of the design, functional characteristics, and purpose of the structure on a case by case basis.

Also note the Court’s reasoning about houses being relocatable. Every house can be relocated; however for a structure to be excluded from the definition of “building” under s 8(1)(b)(iii) of the Act it must be moveable (as and when necessary) and should not be fixed to land permanently.

The factors that you might need to consider for your next tiny house project are:

1. How is the structure constructed, i.e. is it on a trailer and then the unit?
2. Does it have wheels, chassis, and axels?
3. Can it be easily towed if necessary (subject to safety requirements of Land Transport)?  You don’t have to tow and/or move it every so often but can it actually be towed and/or moved if necessary?

So do you think your tiny house project will pass muster?

For more detailed advice about your next tiny house project please contact our Resource Management specialist lawyers.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.