(a) Provided a background with respect to the issue of the SBW order after it discovered the Applicant's fence had been constructed without a building permit;

(b) Provided a photo of the Applicant's partly constructed fence, being the installation of the fence posts, together with plans of the proposed fence; and

(c) Providing photos of fences along Gloucester Drive illustrating the predominant front fence heights, generally being open or low fences less than 1.5 metres in height, with the exemption of 10, 19 and 52 Gloucester Drive.

1. In considering all written submissions, reports and other material filed prior to the hearing, we find that the Council's decision to refuse the Applicant's application pursuant to reg 89 of the Regulations, should be quashed.
2. Reg 89(3) of the Regulations expressly states:

The report and consent of the relevant council must be obtained to an application for a building permit in relation to a design that does not comply with this regulation.

1. It is clear from reg 89(3) that report and consent can only be obtained for an application for a building permit in relation to a design that does not comply with regulation 89. In other words, report and consent can only be applied for with the Council, prior to:

(a) a building permit being issued for a fence design that has a height above 1.5 metres; and

(b) prior to a design being constructed and/or installed.

1. The drafting of reg 89(3) can only be interpreted to mean that a retrospective report and consent application to the Council has no legal effect, after the design is already existing, constructed or installed, without a building permit.
2. In the Council's SoC, submissions were made that on 5 February 2025 it became aware that fence posts were installed by the Applicant on the Subject Land without a building permit. The Council also provided a photo of the installed fence posts, being Attachment 1 to its SoC, as seen below:

Extract of Attachment 1 of the Council's Statement of Contentions

1. We are therefore of the view that the Council did not have jurisdiction to make a report and consent decision pursuant to regulation 89, as:

(a) the fence posts had already been constructed on the Subject Land without a permit, resulting in the Council issuing the SBW order; and

(b) the fence posts were existing prior to the Applicant's report and consent application.

1. For this reason, the Council's purported report and consent decision of 13 March 2025, is quashed (to the extent needed), as it has no legal effect.
2. Notwithstanding our findings, the Applicant is at liberty to make an application to the BAB seeking a modification or variation of reg 89, although we make no indication of the likely outcome of that application. We also add that the BAB is not bound by its earlier determinations.

[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'.