Environmental / Resource Management

Consent Declined! The Issue of Retrospective Building Consents

In Environment Waikato v Sutherland the District Court has overturned a determination by the Chief Executive of the Department of Building and Housing (Chief Executive) and confirmed that retrospective building consents are not available under the Building Act 2004 (BA'04) (nor the former Building Act 1991 (BA'91)).


In August 2004, Mr Sutherland applied for a resource consent to construct a small dam. The size of the proposed dam meant it did not require building consent. Resource consent was granted in November 2004 and work started immediately. During construction the size of the dam increased to the point where a building consent became necessary.

An application for building consent was made and retrospective building consent was issued by the South Wairarapa District Council (District Council) on 11 June 2007. On 11 July 2007, an application was made for a code compliance certificate for the dam. In the interim, responsibility for building consent functions for dams had been transferred to the Waikato Regional Council (Regional Council).

The Regional Council advised that a code compliance certificate could not be issued as the retrospective building consent had been issued in error. Mr Sutherland sought a determination from the Chief Executive in relation to the decisions by the District Council to issue retrospective building consent and the Regional Council to decline to issue a code compliance certificate based on the retrospective building consent (Determination).

The Determination

The Chief Executive reviewed two earlier Court decisions. The first was Brodie v Wellington City Council where Justice Doogue accepted a territorial authority's policy that allowed retrospective consents to be issued. In Morresey v Palmerston North City Council in the District Court, Judge Callaghan referred to Brodie and noted that:

"If anything that case confirms that retrospective consent can be given..."

The Chief Executive acknowledged that both of these cases were decided in terms of the BA'91, which had no provision for issuing certificates of acceptance. However, he was of the opinion that the cases recognise that a territorial authority may still, as a matter of internal policy, issue a retrospective building consent. The Determination confirmed the District Council's decision to issue the building consent and reversed the Regional Council's decision to decline to issue a code compliance certificate.

The Appeal

The Regional Council appealed against the Chief Executives Determination. Mr Sutherland and the District Council took no part in the appeal.

The Regional Council's arguments were based on the relevant provisions of the BA'04, the Select Committee Report accompanying the BA'04, the decision in Waitakere City Council v Eurovision Building Removals Limited and the Department of Building and Housing's Guide for Building Consent Authorities. It sought to distinguish the two cases relied on in the Determination on the basis that they were decided in terms of the BA'91 which did not contain provisions for certificates of acceptance.

There was no argument presented in support of the Determination, although the Chief Executive did file a report which stated that he remained of the opinion that there were legal differences between code compliance certificates and certificates of acceptance. He therefore concluded that it did not follow from the introduction of a code of acceptance scheme in the BA'04, that the former practice of issuing retrospective building consents was no longer available.

Judge Tuohy reviewed the two decisions relied on in the Determination and found that there was nothing in the Brodie decision which amounts to a recognition of the legality of issuing retrospective building consent. Further, he found that there was nothing in the Morresey case which determined the issue of whether a retrospective building consent could be issued under the BA'91 and concluded:

"...I do not consider the two cases cited provide support for an interpretation of either Act which would permit the issue of building consents after the work had been carried out."

Judge Tuohy found that the matter does not turn on the introduction of the certificate of acceptance scheme in the BA'04 and held that the former practice of Council's issuing retrospective consents was without statutory foundation. The Court's decision in this case confirms what was widely accepted by Councils prior to the Determination, ie they are unable to issue retrospective building consents. Further the inability to obtain a code compliance certificate for work carried out without a building consent is not a reason to read the provisions of BA'04 in a way that allows for retrospective consents to be issued.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.


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