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Note: this determination is subject to a clarification.

Note: Determination 2022/028 was modified under section 211(1)(a) of the Building Act 2004 by the District Court on 25 July 2023 in [2023] NZDC 15205. Read the judgement.

This determination considers whether the authority was correct in its exercise of powers of decision to refuse to grant a building consent for alterations to an existing detached dwelling, and its subsequent decision to issue a notice to fix. In deciding these matters, I have also considered whether the building work could have been carried out urgently in advance of obtaining a building consent, and whether the owners are now required to apply for a certificate of acceptance.

This determination considers the compliance of the building work in light of a refusal to issue a code compliance certificate; the refusal was primarily on the grounds of concerns regarding weathertightness and durability of the exterior cladding given the building’s age and its history.

This determination was sought by the owner of an adjacent property who was of the view that the retaining wall and site works did not comply with the Building Code.

This determination discusses who can be issued with a notice to fix, in particular when building work was undertaken by a previous owner without building consent having been obtained. It also considers the compliance of building work and discusses circumstances where building work departs from Acceptable Solutions or New Zealand Standards.

Note: This Determination was set aside by order by the District Court as a result of an appeal under section 208 of the Building Act. The Court order was made by consent of the parties after the respondent Council conceded it failed to comply with the statutory provisions governing notices to fix.

Note: The decisions in this Determination were confirmed on appeal to the District Court. See: Auckland Council v Jayashree Limited (District Court, Auckland, 14 February 2019, CIV-2018-004-00820).

Read appeal judgement [PDF 503KB].

This determination considers whether the authority was correct to issue a notice to fix in regard to unconsented building work and a change of use from a single house to sleeping accommodation. The determination also considers the authority’s decision regarding the certificate of acceptance.