Environmental / Resource Management
In a recent determination, the MBIE clarified the limits of Building Consent Authorities (in this case, the Ōpōtiki District Council) changing and/or reissuing a building consent.
On 1 June 2023, the Council issued a building consent for a new single storey dwelling and associated construction work. Approximately one month later, on 3 July 2023, the Council sent a letter to the property owners advising that an administrative oversight had occurred and a s73 notice would be registered against the property's title.*
When the owners challenged this decision, the Council maintained its position, asserting that the decision could not be reversed, and the s73 notice was already registered against the record of title.
By the time the Council attempted to re-issue the consent (ie 3 July 2023), the owners had already:
- commenced building work; and
- incurred substantial expenses totalling $159,000 towards purchasing pre-cut and tanalised solid timber for construction.
As the dispute remained unresolved, the owners sought a formal determination from MBIE which determined that the Council lacked the statutory authority to re-issue the building consent on 3 July 2023.
Regarding the Council's claim of an administrative oversight, MBIE held that s 46 of the Legislation Act 2019 was restricted to correcting errors or omissions, and did not provide grounds for re-issuing a consent involving "material changes".
Interestingly, the Council's processing checklist did not support its claim of granting consent under s72.** Instead, the checklist comments indicated to the MBIE that adequate provisions were made under s71(2).***
MBIE instructed the council to notify the Registrar General of Land that:
- the 3 July 2023 consent had no legal effect; and
- the notice should not have been entered on the record of title.
This determination underscores the importance of careful initial consent processing and the legal limits of modifying building consents.
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* Section 73 specifies the notifications to be required as a condition of a building consent granted under s72.
** An application required to be refused under s71 may nevertheless be granted under s72 in certain circumstances.
*** Section 71 provides that a building consent authority must refuse to grant a building consent for work on land subject to certain natural hazards unless the authority is satisfied that the land, building work, or other property will be protected or that any damage will be restored.
