Council officers often enter private properties to carry out their statutory duties. The recent decision in Taupō District Council v Paalvast [2026] NZDC 3814 confirms that, provided they follow the correct steps, they can do so lawfully without risking a claim against them in trespass.
This is an important decision – and may be relied on as confirmation of statutory authority to enter under similar legislation including the Building Act 2004, Resource Management Act 1991, and Fire and Emergency Act 2017. The decision also confirms that MBIE determinations can only be challenged through the appropriate pathways – not by filing proceedings against the Council involved.
Dispute over whether punga retaining wall was “building work”
In early 2022 Taupō District Council received a complaint about a retaining wall that was being constructed from punga logs without a building consent. Council officers inspected the property and, over the following months, issued several notices to fix for performing building work without a building consent. The property owner’s position was that building consent was not required because the retaining wall was not “building work”.
The Council applied to MBIE for a determination on whether the retaining wall was building work for the purpose of the Building Act. MBIE issued a comprehensive determination that confirmed the Council’s assessment: the retaining wall was “building work” for the purposes of the Building Act. MBIE also confirmed that the retaining wall did not comply with the Building Code.
Proceedings filed against the Council
Rather than appealing MBIE’s determination or applying for a determination on the notices to fix (the statutory avenues available) the plaintiffs filed legal proceedings against the Council for trespass, fraud, and illegality.
Trespass allegations: high threshold – low evidence
The Court confirmed that warranted Council officers hold a statutory power to enter land to perform inspections under s 227 of the Building Act, and that there was no evidence that the Council officers had not complied with the requirements when entering private property, including to produce their warrants.
The plaintiff was not present when the Council officers performed the inspections, and he had not produced any evidence from anyone who was. The tort of trespass protects ‘possessory rights’. The plaintiff was not the owner or occupier of the property when the Council officers entered. He therefore lacked standing to bring any claim in trespass.
Challenge to MBIE determination – wrong forum
The plaintiff alleged that MBIE’s determination was incorrect, illegal and fraudulent, including because it had not been signed by the chief executive of MBIE. The Court struck out those allegations on the basis that they were in fact challenges to the MBIE determination itself – and it was inappropriate to challenge them in civil proceedings.
To challenge the MBIE determination, the plaintiff needed to either appeal it to the District Court within 15 working days of issue, or apply to the High Court for judicial review. The plaintiff had not taken either of those steps – but had instead filed civil proceedings against the Council. The District Court had no jurisdiction to consider the merits of the MBIE determination, or the Council’s notices to fix, in the context of those civil proceedings.
Key take-aways for Councils
- Keep your processes tight: Accurate records of site visits, identity checks, warrant production, and interactions with owners, are essential.
- Encourage early use of MBIE determinations: They are the correct pathway for resolving disputes about NTFs and other compliance actions.
- Don’t be deterred by broad allegations: Claims framed as “unlawful” action often mask attempts to re‑litigate issues already that have already been determined.
- Seek advice early: If a claim related to a determination or a notice to fix, strike‑out may be appropriate.
Overall, Taupō District Council v Paalvast [2026] NZDC 3814 is a reassuring decision for Councils and agencies that are empowered by statue to enter private property. It confirms that trespass claims involve a high threshold and that, as long as the correct processes are followed, will not succeed when officers are using a statutory power to enter. We were pleased to support the Council with this matter.
