Local Authority unreasonably failed to consider planning implications for building addition

Local Government
Ombudsmen Act 1975
Related legislation:
Building Act 2004,
Resource Management Act 1991
Legislation display text:
Ombudsmen Act 1975, Building Act 2004, Resource Management Act 1991
Local Authority
Dame Beverley Wakem
Case number(s):
Issue date:

Local Authority unreasonable to require the complainant to obtain a resource consent for completed building work, which had been authorised by the Council three years previously

This complaint was about a decision by the Local Authority to require the complainant to obtain a resource consent for completed building work which had previously been authorised by the Council. The Council had granted a building consent in 1999 for the conversion of a barn into a sleep-out and workshop space. An amendment was later approved by the Council in 2001, allowing for three dormers to be added to the building.

The Council acknowledged that at the time, it did not consider the planning implications of this amendment, despite having taken enforcement action in relation to the complaints about the use of the barn for a dwelling house.

The complainant completed the addition of the dormers in 2001, then in 2004 the Council issued the complainant with a certificate under section 35(1A) of the Building Act, stating that resource consent was required. The Council subsequently refused to issue a Certificate of Compliance (COC) for the three dormers and the complainant was faced with the choice of either removing them at his own expense or pursuing a declaratory judgement in the Environment Court.

Section 35(1A) allowed the Council to ‘attach to a building consent issued under section (1) of this section a certificate, in the prescribed form, to the effect that an authorisation under the Resource Management Act has not yet been obtained and until that authorisation has been so obtained…no building work may proceed’. The Council acknowledged that section 35(1A) was discretionary and that its intent was to prevent work approved by a building consent from proceeding until the appropriate planning consent had been obtained. While the Ombudsman was not aware of any judicial determination as to precisely when a section 35(1A) should be issued, a relevant court decision appeared to make the assumption that the consent and the certificate would be issued concurrently.

The Ombudsman considered that the Council had acted unreasonably. While the complainant had carried out the unconsented work on the barn, the Ombudsman considered that the complainant had built the dormers in good faith, in reliance upon an approved amendment to a building consent, which was not tagged with a section 35(1A) certificate at the time of its approval.

The Council acknowledged that the lack of consideration of the planning implications of the amendment was an oversight on its part. In light of this, the Ombudsman questioned whether it was reasonable for the Council to have issued the complainant with a section 35(1A) certificate three years after the building consent to which it purported to relate had been granted, and when the work to which the consent applied had already been completed.

The complaint was sustained.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

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