When consenting a development project part of what is considered by the council is the effects on the neighbouring properties and people. If part of the consent is deemed to have an adverse effect on these people then you may be required to get their approval to proceed with the consent.
This most commonly manifests where there is a requirement for the developer to tie into services that are on a neighbouring property. In this blog we detail what a neighbours consent is, when it is required, how to get it and the risks of not completing it properly.
What is neighbours consent?
Neighbours consent typically comprises a document that details work to be completed and is signed by the affected party confirming their approval. The Auckland Council provides a standard document for this that they will typically require as part of their consent process. Often the plans of the intended work will be attached to the agreement as well as a description of the work, this is best practice.
Funders will also require a copy of the neighbours consent as it is a key risk to the development. If you require works to be completed on a neighbours property and do not hold the consent the neighbour can reasonably stop you from completing that work. That impedes you completing the project and therefore is a significant risk for the project.
The standard document from council as well can be challenged and are normally revocable. At LPL we have seen instances where, whilst there was a council consent document signed, when it came time to do the work the neighbour sought to prevent it from happening and can be difficult to enforce. We recommend having a legal document drawn up from your solicitor that is readily enforceable and identifies what the proposed work is, when it will occur, who will be doing it and how long it will last. You should also confirm the agreement is non-revocable and passes on with ownership of the property. In the event the neighbour then tries to renege you will be on a solid footing to enforce the agreement.
When it is required
A neighbours consent will be required as part of your Resource Consent (RC) or Engineering Planning Approval (EPA). The council will request it be in place if there are works on the property development that affect a neighbouring property. Most commonly this is seen where there is a requirement to tie into wastewater or stormwater lines on a neighbouring property and some directional drilling and/or civil works is required to accomplish this. These works, naturally, will have a direct effect on the neighbouring property and therefore consent will be required.
Other areas that may require consent is where there is a shared right of way (i.e. you are developing to the rear of another site and share a driveway). Properties that have a shared right of way will normally have an easement that grants the respective owners of the relevant properties access to their property by crossing over the easement. Your ability to develop the rear property will have reliance on this easement and if it is determined that the development increases the burden on the land above what was envisioned of it’s intended use then the works may be prevented from being consented. Most consents will also require an upgrade of the driveway and vehicle crossing which results in this right of way being blocked during construction which itself is a clear breach.
There is also land use rights with land that can be breached on sites where there are multiple levels being constructed and cranes etc. may breach the boundary above the ground. There in these instances needs to be a good consideration around delivery and install of materials on site.
Normally this will be reflected as a condition on the consent document and required to be in place before works can commence.
How to get a neighbours consent?
As above, there is a standard document on the council website which can be sufficient. We, however, do recommend consulting with your legal council and getting a formal document drawn up that may be more enforceable to ensure that the consent is honoured.
Once you have prepared the form along with a copy of the plans for the works being consented to, you simply need to approach the owner of the subject property(ies) and secure their signature and consent. Often this can be achieved by explaining to them what you are intending to develop and why you need the consent and most people may happily approve the works.
Occasionally, however, you may need to provide an incentive to secure the approval. This can be common as property owners may recognise an alternative solution to the works could be expensive and given the project has progressed to the consent stage the developer needs the approval to proceed. In most instances we see this reflected as a payment in consideration for the work. There will also be costs to reinstating the subject property to its original state post completion of the works.
In these scenarios it becomes even more imperative to ensure that you have your agreement drawn up and reviewed by legal council to ensure that it is enforceable.
It is important to note that the consent is required from the property owner NOT the current tenant. This may mean searching online or speaking with the tenants of the property to try to find the owner. We have at Lateral Partners gone door knocking ourselves with clients to secure these approvals.
Tips and Tricks
Engage Early - when you are reviewing a development site and working through the planning, if you identify a possible need for a neighbours consent engaging with them early always pays dividends. This may end up guiding you through the consenting process, if the neighbour becomes obstinate you may choose a different solution or if they are receptive you can move forward with comfort. It also gives them time to get their head around what you are looking to achieve and therefore won't become a rush later in the project.
Utilise a property lawyer to produce the consent – as mentioned above, the council document isn’t always easily enforceable and engaging with a specialist lawyer to produce a document for the neighbours to sign is worth the time and cost. Done well this will ensure, once the approval is secured, there is little to no chance on the neighbour reneging.
Be willing to negotiate – whilst securing the approval for the best price (or free) should always be your anchor point, don’t be afraid to negotiate with the neighbour in the interests of securing the approval. Be friendly with this as well, I have found sharing a beer or bringing a bottle of wine to say thanks can go a long way in getting the right outcome.
A neighbours consent, whilst seeming a minor item, can have a major impact if it isn’t contracted properly or secured at all. Amending your consent can be a costly and timely process so make sure you give it a good shot with your neighbour. More costly and harder to change is if the consent is challenged partway through and hasn’t been contracted properly. This can stall a project with funding in place and sunset dates on the clock costing time, money and bringing unnecessary risk. As they say in construction – measure twice and cut once.
If you have any further questions, reach out!
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