Tenancy Tribunal Allows Fence Construction on Accessory Unit

__________________________________________________________________________________ [NAME] 1

[2025] [NAME]

TENANCY TRIBUNAL AT WELLINGTON | TE TARAIPIUNARA RETIHANGA KI TE WHANGANUI-A-TARA

APPLICANT: [redacted] Owner of a principal unit, Owner of a principal unit

RESPONDENT: [redacted]

ORDER

1. By consent, the Tribunal declares that the [NAME]’s can build a fence on their accessory unit, but in doing so must comply with all other legal obligations around fencing, or other obligations under the Unit Titles Act 20210.

2. [NAME] must pay [NAME] $250.00 toward the filing fee immediately.

REASONS

1. The Tribunal must consider an application filed by two unit owners, seeking to have a declaration regarding the ability to construct a fence on their accessory unit.

2. The premises in question are a complex of townhouses in Wellington.

3. The [NAME] is undertaking a range of work at the complex, which includes building stairs on common property, and also some drainage works. I understand that has caused a significant impact on the Applicants unit.

4. In any event, the Applicants wish to build a fence wholly on their accessory unit to enhance privacy for their tenants.

__________________________________________________________________________________ [NAME] 2

5. The unit owners properly raised this with the [NAME], seeking the [NAME]’s permission to proceed. While there are differing recollections between the parties on what happened, it seems to me that the [NAME] did not refuse to allow the building of the fence, but was more focused on how that would sequence in with the other works it was doing (ie, the building of the stairs and drainage works).

6. In that regard, [NAME], the [NAME] chair, wrote to the Applicants on 16 January 2025 stating:

To be clear, the BC is not opposed in principle to a fence between your back area and the common area path and new steps – so long as it is built at the right time and in the right place.

We regard the right time as after the current building project at the back is completed. The construction of any fence logically comes after we excavate the back area to complete the drainage work and construct the new steps, in accordance with the plans that have been approved by the BC since 2023. Otherwise, there are risks that the fence will need to be removed while this work takes place, that construction of a fence will slow down or get in the way of the main building work, and that it will be constructed in a way that gets in the way of the main building project.

We are very happy to work with you to figure out where and how to construct a fence after the main building work is completed, if you still want one at that point. That is only a few months away now, given that the project is due to finish around the end of April or so. I’m happy to start discussions with the [NAME] team on where a fence might go, so they allow for it as they continue their work, if you accept that it should wait until then.

On location, the question seems to be a question of who gives way to who, given that there is a downpipe, a sump, and the new stairs all very close to where you want to build a fence. The BC’s view is that any fence needs to work around these elements, which are all part of an existing and properly approved building project that is now well advanced.

7. At the hearing today, [NAME] for the [NAME], confirmed that they are not at all opposed to a fence being built, but again emphasised that the issue for the [NAME] was timing, to ensure there was no detriment or impact to the current works being undertaken at the complex.

8. The Applicants referred me to an earlier decision of the Tribunal [NAME] v [NAME] 326889 [2025] NZTT 9050924. That was an earlier decision of mine, but in that case I set out the relevant law that applies around a unit owner making additions to their unit, which would include an accessory unit.

9. But as I noted, there is a statutory expectation that unit owners can undertake additions to their units, but there are some limitations set.

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10.Section 79 of the Unit Titles Act 2010 relates to the rights of unit owners and confirms that:

An owner of a principal unit-

…

(e) subject to section 80(1)(h) and (i), may make any alterations, additions, or improvements to his or her unit so long as these are within the unit boundary and do not materially affect the use, enjoyment, or ownership interest of any other unit or common property:

11.Section 80(1)(H) an (i) relate to the responsibilities of principal unit owners, and hold:

An owner of a principal unit –

…

(h) must notify the [NAME] of his or her intention to carry out any additions or structural alterations before the commencement of any work:

(i) must not make any additions or structural alterations to the unit that materially affect the use, enjoyment, or ownership interest of any other unit or the common property without the written consent of the [NAME]:

12.So broadly [NAME] had a right to make alterations, additions or improvements to their unit, as long as that occurred in their boundary and did not affect the use, enjoyment or ownership interest of the other units or common property. [NAME] needed to let the [NAME] know about the planned works as they did.

13. In any event, [NAME] confirmed that [NAME] could build the fence, this is not opposed, and so I make a declaration by consent on that.

14.But I also recognise the position that the [NAME] has taken is very sensible, that is to engage with [NAME] to ensure that the timing of the work does not impede the other building and drainage works the [NAME] has ongoing. Putting strict legal rights to one side, that is plainly sensible, especially given the current works are almost at an end (an estimated 6 odd weeks to go to completion).

15.At the hearing today, the parties agreed on a very sensible way forward. The parties agree they will have a site meeting within the next week ideally, with [NAME], the BC, the builder and the drain layer. At that meeting the

__________________________________________________________________________________ [NAME] 4

parties will discuss timings and needs, and I am certain that they will be able to agree on when it would be sensible for the fencing works to commence.

16.Otherwise the only remaining matter is costs – the filing fee. This case could be viewed one of two ways, that [NAME] were successful given they have the declaration they applied for, or that a declaration may have been unnecessary.

17. I have reviewed the emails, and I can understand the application being filed, because technically the [NAME] was opposing the fencing works on a timing basis at least.

18.Overall, I consider the fair approach is that the parties divide the filing fee in equal measure, and that is ordered.

[NAME] 07 May 2025

__________________________________________________________________________________ [NAME] 5

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