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Building work being undertaken may adversely affect neighbouring properties and adjoining land. This work may include the construction, erection, assembly or placement of buildings or incidental structures, site work and demolition work.
If not managed correctly, building or associated work that does affect adjoining land can result in ongoing disputes between neighbours. It can also mean builders and their workers are unsure of their responsibilities.
The Building Act sets out circumstances that require those who are proposing to do building work that is reasonably likely to affect adjoining land to obtain consent of the affected adjoining land owner and provide notice before commencing the proposed work. These circumstances (points 1-6 below) are known as notifiable events for the purposes of providing notification.
In most instances when consent is required, it can be obtained during the course of the building process when relevant work is to be undertaken and is outside of the building permit process (points 3-6 below). The exceptions are when work is likely to either encroach or adversely affect other land (points 1 and 2 below).
Consent required before a permit issued
The first two circumstances will require the adjoining land owners’ consent prior to a building permit being granted by a permit authority, which in most cases is the relevant local government:
Consent will also be required if a triggering event occurs after the permit has been granted.
Consent required outside of the permit process
The other four circumstances that may require the adjoining land owners’ consent, although this is not required as part of the permit process, are:
Close wall means a wall, fence, post or column, whether free standing or attached to, or forming part of, a building or structure, that is so close to a boundary of the land on which the wall or fence is located that it is not reasonably practicable to build a separate dividing fence along the boundary.
Section 80(3) of the Building Act states that:
“A person responsible for work that requires the removal of a fence, gate or other barrier to land on or beyond the boundaries of the works land must ensure that –
In certain circumstances, where the work needs to be done as a matter of urgency, consent or a court order is not needed prior to the work. However, the person responsible for the work must notify affected adjoining land owners of the work and the reasons for it as soon as practicable after it is done.
There are two forms for giving notice and requesting consent:
While it is not ideal, consent can also be in the form of an exchange of letters or emails, however this must contain all the information prescribed on the relevant form including a clear description of the works proposed, how the land will be affected and when and details of the person responsible for the work.
How to obtain or give consent
The builder, owner or other worker proposing works on adjoining property must first give the affected owner an official Building and Energy Form BA20 or BA20A. The owner has a 28 day period in which to give written consent.
What if consent is refused?
If consent is not given, the person responsible for the work can seek a court order through the Magistrates Court. If a court order is issued, both you as the adjoining owner and the person responsible for the work must adhere to the provisions of the court order. If neither consent is given nor a court order issued, the work affecting other land must not proceed.
What if a builder starts work prior to obtaining consent?
Local governments can enforce non-compliance with these requirements. If consent is not obtained, affected owners should contact their local government. A penalty of up to $25,000 applies for non-compliance under the Building Act.
A builder may attach to a building permit application a written statement that the permit authority may take into account for the purposes of satisfying itself that the application meets the requirements of section 20(1)(g) and (h) of the Building Act 2011 and regulation 16(3)(a) of the Building Regulations 2012.
The statement can be signed by:
The statement should set out that the following will not occur in respect of the building or incidental structure which is the subject of the application: