The case of a young family in Mosgiel who were forced to fix or get rid of their treehouse after a neighbour’s complaint gained national media attention.
It all started because the neighbour felt their privacy was being breached by the children in the treehouse, which overlooked their backyard. The council was obliged to investigate, and discovered it didn’t meet building standards.
Their case ended happily – the local Rotary Club offered to rebuild the treehouse to make it compliant.
But the story raises important issues for councils – what steps, if any, should they take in the face of a neighbourhood complaint, which may range from petty to vindictive?
What are the council’s obligations?
A council should always investigate when it receives information or a complaint which suggests a breach of the Building Act.
“Ignoring a complaint could open up the council to legal and reputational risks.”
Ignoring it could open up the council to legal and reputational risks, especially if the complaint discloses potentially serious issues.
In the treehouse case, the fallout could have been significant if the council dismissed the complaint and a child had fallen and been injured.
Power to inspect
An authorised council officer can inspect properties during normal working hours or while building work is being carried out.
Some of the situations in which inspections can be done are to check whether building work is being carried out without a building consent; to check whether swimming pools are properly fenced; and to identify dangerous, earthquake-prone or insanitary buildings.
The council is also obliged to keep records of complaints and how they have been dealt with.
The process for investigating complaints
The council needs to first consider whether the information should be noted on the property’s LIM. Depending on the complaint, it could be compulsory or optional for it to be included on future LIMs.
The council’s next step is to assess whether it has reasonable grounds to consider whether the Building Act has been breached.
“Unless the complaint can be dismissed out of hand, further investigation is likely to be justified.”
A complaint alone is not likely to satisfy the council. Unless the complaint can be dismissed out of hand, further investigation is likely to be justified. At the very least, an inspection should be carried out when it has been alleged or suspected that the Building Act has been contravened.
Can the council enter a property?
A council needs consent from the occupant of the property to enter their home. If consent is refused or cannot be obtained, all is not lost.
The council should first carefully record the failure to get consent. The council can then apply for a court order to get access – as long as it is required for legitimate reasons under the Building Act. To get an order, the council will need evidence of likely non-compliance. This is where the nosy neighbour’s complaint may come in handy.
There are also special powers which allow local authorities to enter occupied properties without prior notice – though notice must be given as soon as possible after entry.
These powers can be used if:
- there is a sudden emergency causing or likely to cause death or injury or damage to the environment; or
- danger to any works on a neighbouring property.
“If the complaint stacks up, council has a range of options.”
If the complaint stacks up, or if council identifies other compliance problems while on site, it has a range of options. A council can talk to the owner, issue a notice to fix, or in extreme cases, issue a dangerous building notice.
The council also has a range of prosecution powers. The appropriate response depends on the facts of the case – and Rice Speir is able to help if required.
We regularly assist councils to obtain orders allowing entry into housing units where required, advise on LIM notations, the appropriate response to complaints, and any further steps relating to suspected breaches of the Building Act. Feel free to contact us for further information or to assist with dealing with complaints you may have received.