Council’s powers questioned

October 29, 2013

in Property

Property: HousingMany people may not realise that any property owner can apply to the Department of Building and Housing for a determination as to whether particular building or construction matters comply with the Building Code or to determine whether a Council has properly exercised its powers in relation to the Building Act.  This may be in relation to Council’s refusal to issue Code Compliance Certificates or building consents.

A recent decision of the Department highlights that Councils do not have unfettered power in respect of Building Act matters.  The case involved a property in Torbay, Auckland whereby the owners had applied for a building consent to have the dwelling reclad.  The Council not only refused to issue a building consent they also issued a “Notice to Fix” which would require very substantial expenditure by the property owners in order to have the dwelling comply with the Building Code.  After some deliberation the Department found that Council had incorrectly exercised its powers in issuing the Notice to Fix and reversed the Notice but upheld the Council’s right not to issue a Code Compliance Certificate without further evidence that the dwelling would comply with the Code.

This decision highlights the ability for people to have Council decisions regarding their powers under the Building Act reviewed without having to go to the expense of issuing Court Proceedings.  It provides a relatively inexpensive useful forum and means for people to have a review of Council decisions under the Building Act.

If you require any legal advice in the area of Building and Construction Law or further information on the matters dealt with in this publication we are able to provide assistance.  Please contact the lawyer at Farry and Co. who normally advises you, or alternatively contact:

Michael Nidd

03 477 8870 or 09 379 0055


The information contained in this publication is intended as a guide only.  It does not constitute legal advice and should not be relied upon as such.  Professional advice should be sought before applying any of the information to particular circumstances.  While every reasonable care has been taken in the preparation of this publication, Farry and Co. does not accept liability for any errors it may contain. 

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