By Meika McHardy - 12 Dec 2019
We are often asked about the rules and regulations around
building consents. We have put together answers to some of the most
frequently asked questions.
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.