MBIE: A hedge is not a barrier

A Ministry of Business, Innovation and Employment (MBIE) determination has ruled that a hedge is “not a barrier” in the eyes of the Building Code 

The determination was sought by the owners of the Lazarette Loop property after Timaru District Council refused to issue a Code Compliance Certificate (CCC) for their building work due to retaining walls on their property. 

“The refusal is in relation to the sudden change in level where retaining walls have been constructed. The authority is of the view that the retaining walls are associated with the dwelling and are not protected by a barrier that complies with Building Code Clause F4 – Safety from falling,” wrote MBIE Lead Determinations Specialist Peta Hird. 

Two retaining walls create the sudden change in level, where the ground slopes down. A concrete patio and grass lawn lie between the property’s dwelling and the 1.1m high upper retaining wall. 

“The lower retaining wall approximately follows the northern boundary of the property. The upper retaining wall is inset from this and is approximately 23m in length along its northern section, with returns either side that taper off in height. The returns on either side end within 5m of the patio/dwelling,” wrote Hird. 

Not adequate protection 

When the determination was published in January 2025, the upper retaining wall had a fence formed of vertical steel waratahs with chicken wire mesh between. Adjacent was a hedge of Akapuka bushes (Griselinia Lucida) that was approximately 1.05m high and 0.7m deep. 

Timaru District Council has been engaged in discussion with the property owners since a building consent for the construction of a single storey, three-bedroom dwelling and adjoining garage was submitted on 19 March 2019. Consent was granted on 5 June 2019, with amendments and minor variations made from May to October 2019. However, the final approved plans did not include retaining walls. 

Construction was carried out in 2019, and a CCC applied for on 16 December 2019. During the construction, the two retaining walls were built. This led to the failure of the final inspection as the retaining walls were not compliant with clause F4. 

 In response, the property owners installed a temporary barrier made from construction fence hoardings – however, it was deemed non-compliant during an inspection in July 2021. 

Can a hedge be a barrier? 

During subsequent correspondence between Timaru District Council and the property owners, the Council reiterated the fencing system had to be tied and supported fully. During this correspondence, the use of hedging as a barrier was raised. 

“The authority (council) was of the view that a hedge might be a suitable carrier once it’s established enough to fit the barrier requirements, but that this may take years,” wrote Hird. 

Another inspection was conducted on 9 February 2024. By this time, the hedge had grown and the construction fence hoardings replaced with a waratah and wire fence. However, it was deemed non-compliant, as the hedge could not be counted as a barrier. 

Hird said a barrier must reduce the likelihood of accidental falls, which the hedge did not achieve. 

“The hedge, as it currently stands, limits access to the top of the retaining wall along its length. However, it is reasonably foreseeable that future owners of the property may change the landscaping [of] the backyard, including the removal of the hedge, with the effect of increasing the likelihood of an accidental fall from the upper retaining wall. 

“I therefore conclude there is a reasonable probability that people will, or could be, on or in close proximity to the top of the upper retaining wall, such that there is likelihood of accidental fall.” 

Not a building 

Hird added that, given a hedge is likely to be impacted by seasonal growth patterns and have variable lifespans, it could not be counted as a building. 

“For this reason, it is untenable for the compliance of a barrier for the safeguarding of people from an accidental fall to be assessed in reliance on a hedge. 

“As the hedge is not a building, its planting, growth and maintenance is not building work under the Act. The hedge does not satisfy the requirements of the Building Code… and I confirm the authority’s decision to refuse to issue a code compliance certificate.”