Building consents FAQS

By Meika McHardy - 12 Dec 2019

When do you need a building consent?

The starting position, as stated in section 40(1) of the Building Act 2004 (BA), is that a person must not carry out any building work without a building consent. There are, however exemptions to that general rule (section 41 of the BA) and most of those are found in schedule 1 of the BA.

Perhaps the most commonly known exemption is the so called 'like for like' exemption for replacement of a component with a comparable component that is put in the same place. Another example is the exemption where the work has to be carried out urgently for the purpose of saving or protecting life or health or preventing serious damage to property, provided the owner must, as soon as practicable after completion of the building work, apply for a certificate of acceptance.

Whose responsibility is it to get a building consent?

Although it is primarily the responsibility of the owner(s) to apply for a building consent before the building works begin (section 44 of the BA), the BA clarifies that no person may carry out building work except in accordance with a building consent. So a builder who carried out building work without the requisite consent first being obtained, is just as much on the hook. This is the case irrespective of whether an owner delegated the task of obtaining building consent to the builder or not. It is worth noting that, due to the very broad definition of "building work" in the BA (that includes sitework), even preliminary work will need to wait until building consent is issued.

Are there exceptions to the exemptions?

The exemptions in schedule 1 of the BA are heavily qualified and a person seeking to rely on an exemption will need to give careful consideration to the exceptions to the exemptions. A common pitfall is the exception to the so-called 'like for like' exemption in respect of repair and replacement of any component that has failed the durability requirement in the building code. This often occurs in the context of weathertightness issues.

The durability requirements are found in schedule 1 of the Building Regulations 1992 which sets out a three tiered approach for the minimum periods for which the performance requirements of the building code must be satisfied. Depending on the nature of the building element, the durability requirement is for a minimum of 5 years, 15 years or the life of the building (at least 50 years).

What are the consequences of failure to obtain building consent?

Failure to obtain a requisite building consent is an offence and there may be serious consequences for several parties involved. This was illustrated in the relatively recent case of Auckland City Council v Plastertech Systems Ltd [2017] NZDC 21464 (upheld on appeal to the High Court) which related to the replacement of a window flashing (where there had been water ingress through the window) that was carried out without a building consent.

In that case, the Auckland City Council successfully prosecuted the subcontractor for carrying out the work, the head contractor for procuring the offence and the directors of both those companies for assisting and procuring the offence. On sentencing, the directors of the companies were discharged without conviction but the head contractor and subcontractor were ordered to pay fines of $25,000 and $10,000 respectively. In his decision, Judge Collins noted that the seriousness of the matter was increased due to the fact that the work was in relation to a failure in weathertightness.

In addition to prosecution and hefty fines, there are other liabilities that may arise. An owner could be liable to a subsequent purchaser in respect of breach of standard vendor warranties that provide that any requisite building consent was obtained for work carried out. Council can also issue a notice to fix, which may require the owner to demolish the building work. A builder who is a licensed building practitioner could also face disciplinary proceedings by the Building Practitioner's Board.

What can you do if building work has started without a consent?

You cannot get a building consent retrospectively. If building work has been completed without a building consent, you should apply to the relevant council for a certificate of acceptance for the building work. This is typically referred to as approval on the basis of as-built plans. It is within the council's discretion to decide if it will issue a certificate of acceptance so there is no guarantee you will get it.

What can you do if you are not sure if you need a building consent?

Most people will need to seek advice from a professional such as an architect, engineer, builder, building surveyor or Council employee to determine whether proposed building work is exempt from the general requirement to get a building consent.

It is possible to seek an exemption from Council, even if a building consent is required, as Council has the discretion to waive the requirement for a building consent. In situations where you are unsure if building consent is required, it would be prudent to seek an exemption.

For more on building consents or any other property/building related issues contact Meika McHardy or any member of our Property, Buiiding and Construction Disputes team.