Determination upon Building Works Encroaching onto Neighbouring Property

For the final article of 2023, we are reviewing the recent MBIE determination 2023/033. This Determination addressed building work that encroached across the boundary of two properties. The Determination addressed issues of compliance with B1 Structure, B2 Durability and C3 Fire (affecting areas beyond the fire source) of the Building Code (“the Code”), the territorial authority’s decision-making as regards to granting the building consent (“the BC”), the third amendment to the BC, the issuing of a Code Compliance Certificate (“the CCC”), and the authority’s alleged failure to issue a notice to fix. This article will be focused on compliance with the Building Code, granting of the BC, the grant of the third amendment and the issue of the CCC. 

Facts

  • The building work at issue concerns remediation work that addressed the damage caused from the Canterbury Earthquakes.

  • The building work comprised of:

o   Replacement of part of the driveway, the parking bay, retaining wall under the parking bay, and associated earthworks;

o   The repair and reinstatement of the timber vehicle deck due to the installation of new structural steelwork; and

o   Construction of the barrier along the edge of the parking bay and timber vehicle deck.

(“the Works”)

  • An application for a building consent was received by the Council in March 2015.

  • On 4 August 2015, the Council granted the BC.

  • On 7 March 2016, the Applicant advised the Council that a report from a registered surveyor indicated that some of the Works carried out encroached over the boundary onto the Applicant’s property.

  • After a PS4 was issued for the Works, on 9 August 2016, the Council advised the Owners of the property who commissioned the Building Works, that the consented plans were not compliant with the Code because the Works extended over the boundary and that the boundary was not shown on the plans. The Owners had to provide revised plans with the boundary lines and a compliant solution to remedy the effects of work over the boundary.

  • In March 2017, a third application was submitted to amend the BC in relation to the encroaching timber vehicle deck and the parking bay. This was granted by the Council.

  • The encroaching elements were only partially removed as the contractors were not allowed to carry out the works on the Applicant’s property.

  • The Council conducted final inspections which passed. Subsequently, a CCC was issued on 13 August 2018.

Outcome

Compliance with the Code

The Determination ruled that the building work that was the subject of the Determination did meet clauses B1 and B2 of the Code. It also ruled as regards C3 (means of escape from the building) the works complied as nearly as is reasonably practicable with the provisions of the Code. 

Grant of the BC

It was determined the Council was incorrect to grant the BC. Most important to the analysis was section 14B which requires an owner to “obtain any necessary consents” and section 7 which defines an Owner as “the owner of the fee simple of the land”. MBIE concluded that the regulatory system requires the applicant of a building consent to be either the owner of the land in which the works will take place, or their authorised agent. As no application was lodged by the Applicant or its authorised agent for the Works on the Applicant’s property, the Council could not grant the BC.

Third Amendment

Similarly, MBIE ruled that an application to amend a building consent must be made by the owner of the land or its authorised agent. As the Owner, nor its authorised agent, made the amendment application (as regards the encroached property of the Applicant), the Council was incorrect in granting the amendment to the Owners.

CCC

As MBIE determined that the Council was incorrect to have issued the BC and the third amendment to the BC, it followed that the decision to issue the CCC was also incorrect. MBIE took the further step of reversing the CCC.

Remedies for the BC and Third Amendment Issue

Despite deciding that the decisions to grant the BC and third amendment were incorrect, MBIE ruled that it would not reverse those decisions.  MBIE was swayed by these factors:

  • the compliance of the Works with the Code;

  • the Works carried out on the Applicant’s property being discrete with only a small amount of work covered by the BC;

  • the reliance by the Owners on the BC with the Works having been carried out; and

  • the significant implications of reversing the decision to grant the BC and the third amendment in obtaining a CCC.

Note: This article is not intended to be legal advice (nor a substitute for legal advice). No responsibility or liability is accepted by TM Bates & Co. or Building Today to anyone who relies on the information in this article.