Before You Spend Thousands on a Council Notice.

An Abatement Notice from Council is serious and should never be ignored. But before a homeowner spends thousands of dollars removing work, demolishing structures or trying to “put things back”, there is another question worth asking: has the notice itself been properly assessed?

There is something intimidating about receiving a formal compliance notice from Council. Most property owners are not planners, architects or lawyers, and when a letter arrives carrying a Council logo, quoting legislation and telling them their property is non-compliant, the natural assumption is that the matter has already been investigated and decided, therefore, the works must be fixed.

And sometimes that assumption is entirely justified, but one thing I have learned from working with property compliance is that it is important to separate Council’s legal authority to enforce the law from an individual Council officer’s (a human being's) interpretation of that law. It is crucial to understand, these are not the same thing.

Two formal notices from Councils that New Zealand property owners may encounter are an Abatement Notice and a Notice to Fix. They operate under different legislation and deal with different types of compliance. An Abatement Notice is associated with resource management and planning matters under the Resource Management Act 1991, while a Notice to Fix relates to breaches of the Building Act 2004 or regulations made under it.

Under section 322 of the Resource Management Act, an enforcement officer may issue an Abatement Notice requiring somebody to stop an activity that is considered to contravene the Act, regulations, a planning rule or a resource consent. A notice can also require someone to take action considered necessary to achieve compliance.

Council acts as an authority enforcing the law, but Council officers still have to interpret it

I think many homeowners unconsciously view Council as a ruling body, which is understandable. Councils do have significant statutory powers: they grant consents, conduct inspections, investigate complaints, issue enforcement notices and can require property owners to undertake remedial work.

But Councils do not dictate the law. Authorities exercise powers given to them under those Acts. In the planning context, local authorities also prepare district and unitary plans containing detailed rules that can regulate everything from building height and earthworks to yards, parking, landscaping and subdivision.

In Auckland, much of that framework is contained in the Auckland Unitary Plan. Those rules have legal effect, but applying them to an individual property still involves interpretation. Someone has to identify the correct rule, understand its wording, check definitions, determine what zone or overlay applies, establish the relevant dimensions and then compare the actual work on the property against those requirements.

That “someone” is a human being.

It is therefore entirely possible for an enforcement concern to be legitimate while the assessment, calculation or remedy proposed by an individual officer is not completely correct. And I have come across this more than once.

In one earlier case involving a property in the Kaipara District, Council raised concerns about what appeared to be excessive earthworks. Looking at the property at one point in time, there was clearly a substantial amount of earth that had been moved, and the accumulated volume appeared to exceed the permitted threshold.

Concepts and Consents reviewed the planning provisions applying to that particular property, checked the dimensions of the work, considered topographical information and used historical aerial imagery to establish how the earthworks had developed over time. What became significant was that the work had not happened as one large earthmoving operation. It had taken place progressively over several years.

The relevant permitted threshold applied to the amount of earthworks that could be undertaken during a particular annual period. The owner had moved approximately the permitted amount during each applicable period. Over several years, those individually permitted amounts naturally accumulated into a larger overall change to the site, but the particular rule we were assessing did not impose the cumulative overall maximum that had effectively been assumed.

A recent Auckland case demonstrated the same principle in an even more visual way. The homeowner had an area of grass in front of her Central Auckland property that had become difficult to maintain. Large street trees created considerable shade, attempts had been made to reseed the lawn but the area regularly became muddy during wet weather. According to the homeowner, mud was being tracked onto the public footpath.

Eventually, she had the area concreted.

Council subsequently inspected the property and advised her that it considered the property non-compliant with the Auckland Unitary Plan. The issue raised was the requirement for landscaping within the front yard of a property in the Residential – Mixed Housing Suburban Zone. Council advised that 50% of the front yard was required to comprise landscaped area.

There was nothing inherently unreasonable about Council investigating that issue, as the Mixed Housing Suburban provisions do contain a front-yard landscaping requirement. Standard H4.6.10 (above) requires at least 50% of the front yard to comprise landscaped area, while H4.6.7.1 standard identifies a 3m minimum front yard (below).

When the homeowner first contacted me, she was already under the impression that the newly poured concrete would largely have to be removed. She was quite upset about the fact that she had spent money trying to solve a practical problem at her property and now believed she would have to spend more money undoing that work, only to return the area to the same muddy condition she had been trying to eliminate.

Her email captured the problem quite well:

“Is there any point in drawing up a plan if the majority of the newly installed concrete area has to come out? … The compliance officer is making it sound like the entirety of the area that was newly installed has to come out.”

What concerned me was not simply whether the property complied. The first question was whether removing almost everything was actually the only way to achieve compliance. It was not, because “Landscaping” does not necessarily mean putting the grass back.

However, ordinary English and planning terminology are not always the same thing.

A homeowner hearing that 50% of the front yard must be “landscaped” might understandably imagine that half of the area needs to be lawn or garden. But the Auckland Unitary Plan definition is broader than that. Depending on the particular construction and design, landscaped area can include planting and ground cover, but it may also include qualifying open-jointed paving, certain uncovered decks and pathways within specified limits.

I explained to the homeowner that sections of the concrete could potentially be cut out strategically and replaced with planting. Parts of the layout could potentially operate as permitted pathways, while other sections might potentially be reconstructed using qualifying open-jointed pavers or slabs. Returning the front area to something close to its previous condition might still prove to be the cheapest solution, but it was not necessarily the only compliant and practical solution.

There was also another pathway worth understanding. If the owner wanted to retain a configuration that did not comply with the permitted standard, she could investigate whether a retrospective Resource Consent was viable. That would involve additional professional and Council costs, but it remained materially different from being told, or left with the impression, that all of the new concrete simply had to come out.

And unfortunately, this was not the only issue with the notice. Council supplied its calculations, and the issue became significantly more concerning, stating that “front yard” was 101.3m². The Council officer calculated that the original landscaped area was approximately 47.5m², or 46.9% of the front yard, and that after installation of the new parking pad the remaining landscaped area had reduced to approximately 19.3%. The homeowner was advised that reverting to what had previously been consented would achieve compliance. Council also provided an aerial GeoMaps image showing exactly how it had obtained the 101.3m² figure, and this is where another misinterpretation of the law occurred.

The highlighted area Council called the “front yard” (shown above) effectively encompassed the large area of land sitting between the dwelling and the road. So the compliance officer was not measuring a 3m-deep strip from the relevant front boundary (as per the Auckland Unitary plan rules).

However, the front yard for the purpose of this particular standard is not automatically every square metre of open land that happens to sit visually “in front of the house”. The relevant planning yard is established from the property boundary and the specified yard depth, which was 3m in this case (shown below).

As you can see from the illustrations, the difference was substantial. Council had treated approximately 101.3m² as the relevant front-yard area, while the 3m strip applicable under the relevant planning standard measured approximately 49.6m². That meant the landscaping calculation (and therefore the extent of remedial work potentially required) had been based on an area more than twice the size of the actual front yard under the Auckland Unitary Plan.

It is also important to be clear that the front-yard landscaping requirement is only one part of the overall planning assessment. Other controls may still apply to the site, including total landscaped area, impervious-area limits, stormwater considerations and any other relevant standards or overlays. Those matters need to be checked separately. The issue discussed here is much narrower: whether Council correctly identified and measured the area to which the 50% front-yard landscaping rule applies.

There is also a further layer of complexity in this particular case. Under Plan Change 120, the property is proposed to be rezoned from Residential – Mixed Housing Suburban to Residential – Mixed Housing Urban. Under the Mixed Housing Urban provisions, the minimum front yard is reduced from 3m to 2.5m. That means the area subject to the front-yard landscaping calculation would reduce again if those provisions are legally applicable to the property at the relevant time. The Mixed Housing Urban standard still requires at least 50% of the front yard to comprise landscaped area, but the yard itself is smaller.

This is exactly why a compliance assessment cannot be reduced to a single aerial image and a percentage. The correct zone, the correct yard depth, the legal status of any plan changes, the applicable definitions and the other site-wide development controls all need to be considered together before a homeowner is told what must be removed or altered. And the broader lesson is not that Council notices should be ignored or treated with suspicion by default, they definitely should be taken seriously. But taking them seriously also means understanding what is actually happening on your property, what rule is being applied, and why. A formal notice is still the result of someone interpreting legislation, planning provisions, measurements and site conditions, and that interpretation is not beyond question.

Kiwi property owners should not feel that receiving a Council notice means they have lost the right to understand, verify or question the basis of the decision. Before spending money, removing work or making irreversible changes, it is worth asking for a professional advise checking how it applies to the property and, where necessary, getting independent advice.

Blindly following an authority is not the same as complying with the law. The goal should be to understand the actual compliance issue and resolve it correctly.

My message is: "Know what is happening on your property. Understand the rule being applied. Then make the decision."