1. On 22 September 2021, the Council issued planning permit number P436/2020 (Planning Permit) authorising, under the Wellington Planning Scheme (Planning Scheme):

(a) 'retrospectively',[3] development of the Dwelling; and

(b) use of the Subject Land for the purposes of 'caretaker's residence'.

1. After[4] the Planning Permit was issued, the MBS 'withdrew' (or, perhaps more correctly, cancelled)[5] the 2017 Order.
2. While condition 1 of the Planning Permit refers to certain things[6] that must be done '[p]rior to the endorsement of plans', the Planning Permit does not require further or amended plans to be submitted (from which, we infer, the plans submitted with the application were considered adequate), however, no plans have been endorsed by Council under the Planning Permit.
3. In or around September 2024,[7] Council's acting manager of land use planning wrote to the Applicant's (former) solicitors (relevantly):

The dwelling does not currently have planning approval and hence would require retrospective planning approval for it to be legalised

1. Notably, this letter does not refer at all to the Planning Permit.
2. On 30 September 2024, the MBS issued a building notice (2024 Notice), inviting the Applicant to show cause why the Applicant should not be required to:

1. The stated reason for the issue of the 2024 Notice was:

building work in the form of the construction of a dwelling has been carried out without a building permit being in force contrary to Section 16 of the Building Act 1993.

1. On 24 February 2025,[8] the Applicant's solicitors wrote to the MBS:

(a) providing:

(i) a report prepared by Mr Simon Flahavin of Keystone Building Surveyors dated 14 February 2025 (Keystone Report);

(ii) a bushfire attack level (BAL) assessment report prepared by Fire Risk Consultants;

(iii) a BAL Certificate issued 12 February 2025; and

(iv) the Structural Assessment; and

(b) saying:

As set out in the Keystone report, Mr Flahavin considers that the following works are required for the dwelling to be suitable for occupation:

• Rectification works so that the dwelling can be considered to meet the BAL 12.5 requirements; and
• Installation of additional smoke detectors.

We are instructed that our client would like to undertake these works as soon as possible and seek confirmation from the Municipal Building Surveyor as to what permissions are required for these works or if they can be undertaken in the current enforcement process.

We also request that Council confirm that subject to the rectification works identified being completed that Council will cancel or withdraw the building notice and take no further enforcement action in this matter.

1. On 25 March 2025, the MBS issued a building order (2025 Order) in which he recorded his opinions that:

building work in the form of the construction of a dwelling has been carried out without a building permit being in force contrary to Section 16 of the Building Act 1993.

insufficient cause has been shown by the Owner and that for the reasons set out in the building notice the making of this Order is warranted.

1. On 9 April 2025, the Applicant's solicitors wrote to the MBS requesting (among other things) the MBS to cancel the 2025 Order.
2. On 14 April 2025, the MBS responded, refusing to cancel the 2025 Order.
3. On 23 April 2025, the Applicant commenced appeals, seeking reviews of:

(a) the decision of the MBS to make the 2025 Order; and

(b) the decision of the MBS to refuse to cancel the 2025 Order.

1. During the hearing of the appeals on 10 July 2025, the Applicant relied on the author of the Keystone Report, Mr Simon Flahavin.
2. For the reasons set out below,[9] we have determined that the decision to make the 2025 Order should be set aside and substituted with a decision of the BAB that a building order be made in different terms.[10]
3. As a consequence of the above, we have determined that the decision to refuse to cancel the 2025 Order should be affirmed.

1. As noted above, the 2025 Order required complete demolition of the Dwelling.
2. In material filed with the BAB, the Applicant:

it is unreasonable for the Respondent to issue the Building Order in light of its response to the Building Notice, especially as the Structural Assessment and Report prepared by Chris O'Brien & Company Pty Ltd confirms that the dwelling (including attached verandahs) is structurally adequate and safe for domestic occupation. Given the minor nature of the rectification works recommended by Keystone Building Surveyors, the Respondent ought to have either issued a building order under section 113 of the Act for minor work or action, or requested further response from the Applicant.

orders or relief from the Board that the Building Order be cancelled, conditional upon the completion of the following work as set out in the Inspection and Assessment of Suitability Report prepared by Keystone Building Surveyors dated 14 February 2025:

a) Rectification works so that the dwelling meets the BAL 12.5 requirements; and

b) Installation of additional smoke detectors, which are hardwired and adequately placed so that the sleeping rooms are separated from the living rooms.

1. The MBS's written material opposed the relief sought by the Applicant, citing three reasons:

a) The Keystone Building Surveyors report failed to address and provide solutions for multiple building non-compliances,

1. Before us, the MBS could not provide any reasons for the claim that the planning permit had expired, and abandoned that ground, leaving only the remaining two matters, which we address below (albeit in the reverse order).
2. Before addressing those matters, we first note that, before us, the MBS agreed that it was appropriate for us to set aside the decision to make the 2025 Order and substitute it with our own decision to make an order is different terms (addressing the two matters identified above).
3. It is also appropriate for us to make some brief comments about the Planning Permit and the Injunction.

1. It was common ground before us that, under the Planning Scheme, the Dwelling requires a planning permit.[11]
2. It is clear that there is a dispute (in relation to which, we have no jurisdiction) between the parties as to whether the Planning Permit has expired (or is otherwise of any force or effect). It is also clear that the Applicant will have to take steps to attempt to resolve that dispute.
3. Section 24 of the Building Act 1993 (Act) provides (relevantly):

(1) ... the relevant building surveyor must not issue a building permit unless he or she is satisfied that -

(c) any relevant planning permit or other prescribed approval has been obtained; and

(d) the building permit will be consistent with that planning permit or other prescribed approval.

1. Even leaving aside the argument regarding validity of the Planning Permit, it is clear that, as Council has not endorsed any plans under the Planning Permit, it would not be possible for a building surveyor to determine whether any proposed building work will be consistent with the Planning Permit.
2. Section 111(5) of the Act provides:

A building order under this section may direct the owner of a building, land or a place of public entertainment to carry out building work, protection work or other work required by the regulations in relation to the building, land or place.

Despite anything to the contrary in this Act or the building regulations, a person who carries out work in accordance with an emergency order or building order in force under this Part is not required to obtain a building permit or comply with the building regulations unless the relevant building surveyor so directs

(a) we have identified rectification work which we consider should be done promptly, and in relation to which we will not require a building permit to be issued before that work is done; and

(b) where we have decided that a building permit should be issued before rectification work is done, we have recognised that resolution of the dispute regarding the Planning Permit may take a considerable amount of time, and we have set the due date for compliance with that in mind.

1. During the hearing, we identified a concern about us considering whether to make any orders in relation to the 2025 Order, in circumstances where, so far as we know, the Injunction remains in force.
2. In order to ensure that we were exercising the BAB's jurisdiction in a meaningful way, and to give us comfort that the Applicant would not remain at risk of punishment for failing to comply with the Injunction, even if it complied with our orders, we asked whether the MBS was prepared to give an undertaking to take whatever action is necessary to have the Injunction set aside or revoked.
3. Once we received that undertaking, we proceeded with the hearing.

1. The MBS asserted that the Dwelling is unsafe for occupation for two key reasons:

(a) lack of smoke detection; and

(b) not constructed to appropriate bushfire attack level (BAL).

1. The Applicant agreed that these matters need to be addressed, and indicated a willingness to do so.

1. In our view, smoke detection is a matter which should be addressed promptly.
2. Accordingly, our decision includes a requirement to have hard-wired smoke alarms installed, in accordance with Part 9.5 of the ABCB Housing Provisions 2022, by a licensed electrician without a building permit first being issued.
3. Furthermore, we will direct the Applicant to provide the MBS with a certificate of electrical safety evidencing the installation of the smoke alarms.

1. It was common ground between the parties that work needs to be done to upgrade the Dwelling to the required BAL, however we were not presented with a complete and detailed list of all of the things that would need to be done.
2. In these circumstances, we consider the appropriate approach is for a building order to be made requiring:

(a) the carrying out of all necessary building work to upgrade the Dwelling to the required BAL; and

(b) that work to be performed in accordance with a building permit.

1. By this means, it will be a matter for the relevant building surveyor appointed for that building work (RBS) to assess the proposed building work and ensure that the BAL rating is achieved.
2. In circumstances where the Dwelling has been in its current state, and occupied, for many years, including seven or eight years after the MBS cancelled the 2017 Order, we consider this to be a matter that can be addressed in the timeframe that is likely to apply while the Planning Permit dispute is resolved.

1. The MBS identified multiple issues of building non-compliances, some of which were conceded by Mr Flahavin.
2. We do not consider it necessary to record all of these matters. Instead, we will direct the making of a building order requiring all necessary building work be done to bring the Dwelling into compliance with the Building Regulations 2018 (Regulations).
3. Again, by requiring that work to be done in accordance with a building permit, it will be a matter for the RBS to ensure that all that needs to be done is done.
4. We will also require an occupancy permit be issued and provided to the MBS.

(a) if the dispute regarding the planning permit is not resolved in the Applicant's favour, it will not be possible to obtain a building permit to bring the Dwelling into compliance with the Regulations; and

(b) the work required to bring the Dwelling into compliance with the Regulations might be too difficult or too expensive to undertake.

1. In either of these scenarios (or, if the Dwelling is not to be brought into compliance with the Regulations for any other reason), the building work that has been carried out to turn the Shed into the Dwelling should be demolished, and the Shed should be returned to its permitted condition.
2. We will make orders accordingly.

[1] Clause 17 of Schedule 3 to the Building Act 1993 provides: 'Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs'.

[2] Somewhat unhelpfully, none of the notices or orders are identified by a unique reference number.

[3] While planning permits issued after development has been carried out do not have any retrospective effect (Planning and Environment Act 1987, s 67, Van Egmond v City of Knox, Bassett & Ors (1985) 3 PABR 249), the term 'retrospective' is widely used to refer to the grant of a planning permit after all development authorised by that planning permit has already been completed.

[4] There is some inconsistency in the MBS's contentions. On the one hand, the MBS said that the 2017 Order was 'withdrawn in 2020'. On the other hand, it was said (and appeared to be common ground between the parties) that the 2017 Order was 'withdrawn' (though, we conclude it was more likely cancelled) after the Planning Permit was issued. The Planning Permit (a copy of which was before us) was issued on 22 September 2021.

[5] Again, no record of this decision was before us. The MBS referred to cancellation of the 2017 Order, but s 116 of the Act gives the MBS the power to cancel a building order.

[6] The detail of which is not important here.

[7] The letter is dated 25 September 2022, however it refers to 'correspondence ... dated 26 July 2024 and ... follow up correspondence dated 29 August 2024', so cannot possibly have been sent in 2022. We therefore conclude that it was most likely sent in September 2024.

[8] The Applicant indicated that the time within which representations could be made in response to the 2024 Notice was, at the request of the Applicant, extended by the MBS, however this is not reflected in the 2025 Order.

[9] We have considered all of written and oral submissions made by the parties and (relevant) material filed with the BAB, however, we do not consider it necessary to refer to or cite all of the material put before us, instead focussing on the key points leading to our findings.

[10] A position ultimately supported by the MBS.

[11] Regardless of whether it is characterised as a 'Dwelling' or a 'caretaker's residence'.