The Building Act 2004 — a refresher course

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Timothy Bates of Auckland law firm Legal Vision.

In this month’s article, I wish to review several of the key provisions of the Building Act 2004.

Section 8 defines “building”, and sets out what would not be considered to be a building. The definition of “building” is inclusive rather than exclusive, and places most structures into the ambit of the Building Act 2004.

It is noted that this definition has expanded from the 1991 version to now include the following structures:

A fence around a swimming pool.

A vehicle that is immovable and that is occupied on a permanent or long-term basis.

A mast, pole or telecommunications aerial more than seven metres tall and attached to a building.

Section 49 sets out the criteria that a Building Consent Authority (BCA) will apply to grant a building consent. It provides:

Grant of building consent

(1) A building consent authority must grant a building consent if it is satisfied on reasonable grounds that the provisions of the building code would be met if the building work were properly completed in accordance with the plans and specifications that accompanied the application.

(2) However, a building consent authority is not required to grant a building consent until it receives:

(a) any charge (or fee) fixed by it in relation to the consent; and

(b) any levy payable under section 53 …

[(c) Repealed.]

 

It utilises the historically problematic terminology “satisfied on reasonable grounds”.

The position is no different as regards the issue of Code Compliance Certificates. Section 94 again uses the test of “satisfied on reasonable grounds”, but this time it relates it back to compliance with the consent.

It is apparent though, in terms of the interplay of these two sections, that the issue of the consent is of primary importance.

Once this issues, so long as the building work complies with it, then the most likely outcome is the issue of a Code Compliance Certificate.

Practically speaking, this means where changes to design are encountered during the course of a build (for example, passive fire compliance required in the context of multi-unit remediation), then the property owner will be required to seek an amendment to its consent before progressing further if it wishes to obtain a Code Compliance Certificate at the conclusion of the build.

A related provision in terms of the issue of the original consent is Section 19, which sets out how compliance with the Building Code is established. It provides that compliance may be achieved by the following methods:

Compliance by method of a determination by the chief executive being a whole determination process.

A multiple use approval issued by the chief executive which streamlines the building consent process for house designs to be replicated on scale.

A current product certificate issued by the chief executive which is effectively a building method or product that has been deemed to be code compliant.

Compliance with the Regulations that are made under section 20 of the Act which, in turn, calls up Section 401, being Regulations issued for earthquake-prone buildings.

Section 14 is interesting in that it sets out the responsibilities of various stakeholders in construction work. In particular, responsibilities of the owner/builder/designer/BCA are defined.

Nevertheless, Section 17 clears up any potential chasm of responsibility created between a consent incorrectly issued and a builder slavishly following the consent, or a builder carrying out work that does not need a consent.

All building work carried out must comply with the building code, even if no building consent is required for it.

Section 112 addresses alterations made to existing buildings.

So, ultimately, one will not get a consent for the alteration of an existing building unless the Regulator is satisfied the building will, after the alteration, comply as much as possible with those aspects of the building code relating to the means of escape of fire and access/facilities for people with disabilities.

However, this is not the end of the matter. A person may still obtain a consent to complete an alteration of an existing building if it can show that precise compliance with the building code will prevent the alteration going ahead, and the alteration would result in improvements to the means of escape as well as access/facilities for the disabled.

However, it is important to realise that the compliance and/or improvement relating to the means of escape of fire and access/facilities for people with disabilities must be in respect of the whole building, not just the altered aspect.

 

Note: This article is not intended to be legal advice (nor a substitute for legal advice). No responsibility or liability is accepted by Legal Vision or Building Today to anyone who relies on the information contained in this article.

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