Building Act 2004 overview

The Building Act 2004 introduced some significant changes to the way the building industry in New Zealand is regulated, with the intent of providing greater assurance to consumers. It is larger, both in size and scope, than the Building Act 1991. New measures were introduced, such as registration of building consent authorities and the licensing of building practitioners.

What happened when

On 31 March 2005, the Building Act 1991 was repealed and the main parts of the Building Act 2004 came into force. Other parts of the Building Act 2004 came into force on 30 November 2004.

For the period from 30 November 2004 to 31 March 2005 the two Acts ran concurrently. The Building Act 2004 provides for this in two ways.

• The Building Act 2004 is implemented in stages.
• The Building Act 2004 contains a number of transitional provisions that determine how regulatory matters that were begun under the 1991 Act are to be managed under the 2004 Act.

It is important to note that parts of the Building Regulations 1992 (First Schedule), mainly the Building Code, passed under the 1991 Act, continue in force under the 2004 Act.

The Building Industry Authority was responsible for administering the Building Act 1991. On 30 November 2004 this responsibility passed to the Chief Executive of the Department of Building and Housing and the Building Industry Authority was dissolved.

Navigating the Act

The Building Act 2004 is set out in five parts.

• Part 1 includes the purpose and principles of the Act, and its interpretation. These sections provide an important reference when reading and interpreting the Act.
  
  
• Part 2 (and Schedules 1 and 2) deals with matters relating to the Building Code and building control (for example, building consents).
  
  
• Part 3 sets out the main functions, duties and powers of the Chief Executive, territorial authorities, building consent authorities and regional authorities. It also deals with the accreditation of building consent authorities and dam owners, and product certification.
  
  
• Part 4 (and Schedule 3) deals with matters relating to the licensing and disciplining of building practitioners.
  
  
• Part 5 (and Schedule 4) deals with miscellaneous matters including offences and criminal proceedings, implied terms of contracts, regulation-making powers, amendments to other enactments and the repeal of the Building Act 1991, and the transitional provisions from the Building Act 1991 to the Building Act 2004.

Purpose of the Act

The Building Act 2004 aims to improve the control of, and encourage better practices in, building design and construction to provide greater consumer assurance. That means:

• more clarity on the standards we expect buildings to meet
• more guidance on how those standards can be met
• more certainty that capable people are undertaking building design, construction and inspection
• more scrutiny in the building consent and inspection process
• better protection for homeowners through the introduction of mandatory warranties.

The Building Act 2004 articulates four broad goals.

• People can use buildings safely and without endangering their health.
• Buildings have attributes that contribute appropriately to the health, physical independence and wellbeing of the people who use them.
• People who use a building can escape from the building if it is on fire.
• Buildings are designed, constructed and able to be used in ways that promote sustainable development.

Principles of the Building Act

The Building Act 2004 does not contain an equivalent to section 47 of the Building Act 1991, which contained guidance on how a territorial authority should exercise its powers. Under the Building Act 2004, section 4 ‘Principles’ is now more important. It should be taken into account when performing functions or duties or exercising powers relating to the granting of waivers or modifications of the Building Code, and the adoption and review of policies on dangerous, earthquake-prone or insanitary buildings.

The Building Act 2004 re-states many of the principles outlined in the Building Act 1991, and makes explicit some of the implied principles of that legislation (for example, that innovation is important). However, some significant new concepts have been introduced, including a particular focus on the household unit, and that whole-of-life costs of building work are to be considered.

This is a summary of the principles:

• Household units have an important role in the lives of the people who use them, and are accorded a special focus.
  • The Building Code as it relates to household units is important, and household units should comply with the Building Code.
  • Maintenance requirements of household units should be reasonable, and owners of household units should be aware of the maintenance requirements of their household units.
• To ensure that harmful effects on human health resulting from the use of building methods, products, design or building work are prevented or minimised.
• Buildings should be durable.
• Special traditional and cultural aspects of the intended use of a building should be recognised.
• The whole-of-life costs of a building should be considered.
• Standards are important in achieving compliance with the Building Code for building design and construction.
• Innovation in methods of building design and construction is important.
• People who undertake a rescue operation or firefighting in a building should be able to expect a reasonable level of protection from injury or illness while doing so.
• The extent and effects of the spread of fire should be limited to protect other household units and other property.
• Other property should be protected from physical damage resulting from the construction, use and demolition of a building.
• People with disabilities should be able to enter and carry out normal activities and processes in a building.
• Buildings of significant cultural, historical or heritage value should be preserved.
• Energy use in buildings should be efficient.
• Buildings should use renewable sources of energy.
• Material use in buildings should be efficient and sustainable.
• Water use in buildings should be efficient and promote water conservation.
• Waste generated during the construction process should be reduced.

Meaning of ‘building’

The meaning of ‘building’ has not changed significantly from the Building Act 1991. However, there have been a few important changes. Notably, the following structures are buildings.

• 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 7 metres tall and attached to a building.
• The non-moving parts of a cable car attached to or servicing a building.
• After 30 March 2008, the moving parts of a cable car attached to or servicing a building.

The definition of ‘building work’ in the Building Act 2004 has been expanded to include work ‘on an allotment that is likely to affect the extent to which an existing building on that allotment complies with the Building Code’. As well as including sitework, ‘building work’ now also includes building design that is declared through Order in Council to be restricted work. This means building consents will be required in situations where they may not previously have been required.

Example: Approval is granted for a subdivision which includes subdivisional drainage by a network utility operator. The invert levels are below the pile foundations of an existing dwelling on the site. As this work may affect the existing dwelling, a building consent is required for the work.

Transitional arrangements

The Building Act 2004 will be implemented over a period of 5 years.

There are three key dates on which various sections of the Act come into force. Appendix 1 of the Building Officials’ Guide to the Building Act 2004 provides tables that can be used as a reference to the commencement dates for these sections.

Outlined below are the transitional provisions surrounding the Act implementation, in order of commencement.

30 November 2004

• The Building Industry Authority ceased to exist and the transitional provisions surrounding the dissolution of the Building Industry Authority and the regulation-making powers under the Building Act 2004 began. The provisions setting out the functions of the Chief Executive began, including the obligation to review the Building Code.
• The obligation of territorial authorities to adopt a policy within 18 months on dangerous, earthquake-prone or insanitary buildings began.
• Provisions under the licensing regime for building practitioners began.
• The Building (Forms) Regulations 2004 (except regulations 5 and 8 and Part 2 of the Schedule) came into force.

30 November 2004 - 31 March 2005

The Chief Executive performed the functions and duties, and exercised the powers of, Building Industry Authority under the Building Act 1991.

31 March 2005

• The Building Act 1991 was repealed. Apart from a few sections relating to licensed building practitioners (LBPs), the rest of the Building Act 2004 came into force. This includes all the building control provisions relating to building consents, code compliance certificates and compliance schedules, including the transitional provisions.
• The Building Regulations 1992 (except regulation 3 and the First Schedule, ie, the Building Code) were revoked.

30 November 2004 - 31 May 2006

The period in which territorial authorities and regional authorities must apply to register as building consent authorities (BCAs). Building certifiers approved under the Building Act 1991 may also apply to be registered as BCAs.

31 May 2006

Territorial authorities must have adopted a policy on dangerous, earthquake-prone and insanitary buildings.

After 30 November 2007

Only BCAs registered under the Building Act 2004 may perform functions relating to building control.

30 November 2009

Restricted building work must be carried out or supervised by a licensed building practitioner. On this date, all the sections of the Building Act 2004 have come into force and the transitional period ends.

More detailed transitional provisions

These can be found in sections 429-450 of the Building Act 2004, which includes the transitional arrangements for:

• determinations
• levies
• project information memoranda and building consent applications made under the 1991 Act but not yet issued
• notices to rectify
• code compliance certificates
• certificates of acceptance
• compliance schedules
• Building Code Compliance Documents
• other matters.

 

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Changes and new provisions under the 2004 Act

A building official needs to know the following information about the Act. Much of this material will be familiar from the Building Act 1991, but there are a number of changes as well as some new provisions. Appendix 2 of the Building Officials’ Guide to the Building Act 2004  provides detailed Building Act translation comparing the 1991 and 2004 Acts.)

Key changes and provisions include relate to:

• the Building Code
• warnings and bans
• determinations
• regulations
• powers of the Minister
• functions and powers of the Chief Executive
• product certification
• Compliance Documents
• development contribution
• forms
• evacuation scheme
• Inspections
• restricted building work
• section 37 certificate

The Building Code

Commencement date: 31 March 2005 Sections: 16-21

Sections 16-18 are similar to the Building Act 1991.

• Section 16 provides that the Building Code prescribes functional requirements for buildings and performance criteria with which buildings must comply in their intended use.
• Section 17 states that all building work must comply with the Building Code.
• Section 18 provides that no building work is required to achieve performance criteria additional to or more restrictive than that required by the Building Code.

Section 19 is equivalent to section 50 in the Building Act 1991, and states the ways in which compliance with the Building Code is established. These means are summarised as:

• compliance with regulations which provide only one means of complying with the Building Code
• compliance with a Compliance Document
• a determination made by the Chief Executive of the Department of Building and Housing
• a current product certificate
• an energy work certificate.

In considering compliance with the Building Code, a building consent authority:

• must have regard to any relevant warning or ban
• may have regard to any guidance information published by the Chief Executive.

Sections 20 and 21 are new provisions, and allow for regulations to prescribe that only a specific Acceptable Solution, Verification Method or product certificate can be used to demonstrate compliance with the Building Code.

Warnings and bans

Commencement date: 31 March 2005 Sections: 26-30

The Chief Executive can:

• issue a warning about a building method or product
• ban a building method or product.

This can be done if the Chief Executive believes on reasonable grounds that the use of a building method or product is likely to result in building work failing to comply with the Building Code.

If the Chief Executive issues a warning or ban, he or she must publicly notify:

• the warning or ban
• the date when the warning or ban comes into force
• whether the ban applies to building consents already granted
• the procedure followed when issuing the warning or ban.

Where a warning has been given, a building consent authority must have due regard to that warning when issuing a code compliance certificate or determining whether something complies with the Building Code. Consideration would need to be given to whether or not that warning was relevant to the particular building work that had been inspected.

A building consent authority cannot grant a building consent or a code compliance certificate where a banned building method or product is involved. However, a building consent authority may issue a code compliance certificate if the consent was granted before the ban came into force.

It is an offence to use a banned building method or product.

Determinations

Commencement date: 30 November 2004 Sections: 176-190

The Building Act 2004 contains some important changes to the determinations process.

More parties can now apply for a determination. The two notable additions are:

• a licensed building practitioner concerned with the relevant building work
• any person who has a direct interest in the provision of access and facilities for people with disabilities to and within a building. The change relating to the provision of access and facilities for people with disabilities is important because users of a building intended for public use may apply for a determination.

In addition to the parties, the Chief Executive of the Department of Building and Housing may now initiate a determination.

An application for determination must be made on form 14 of the Building (Forms) Regulations 2004.

The Chief Executive must make a determination under the Building Act 2004 within 60 working days of receiving the application or deciding to initiate the determination.

A wide range of decisions that territorial authorities and building consent authorities make are able to be determined. This is a significant shift from the Building Act 1991, under which applications for determination were largely limited to whether building work complied with the Building Code. Matters that can be determined are:

General decisions

Whether particular matters comply with the Building Code.

Building consent authority decisions

1. Building consents, code compliance certificates or compliance schedules
    
   • Issuing.
   • Amending (not in respect of compliance schedules).
   • Refusal to issue.
   • Any conditions imposed (not in respect of building consents or code compliance certificates).
     
2. Time extensions:
    
   • Refusal to grant an extension of time for commencement of building work.
   • Refusal to grant an extension of the 2-year period during which a code compliance certificate must be applied for.
     
3. Notices to fix:
    
   • Issuing.
   • Amending.
   • Any conditions.

Territorial authority decisions

• Granting or refusing a waiver or modification of the Building Code.
• Issuing, or refusing to issue, a certificate of acceptance.
• Amending a compliance schedule.
• Issuing, amending or imposing a condition on a notice to fix.
• Exercising powers that relate to alterations to, or changes in the use of, a building.
• Issuing a certificate under section 224(f) of the Resource Management Act 1991.
• Exercising powers that relate to dangerous, earthquake-prone or insanitary buildings or the failure to exercise those powers.

Note that a territorial authority may perform the functions of a building consent authority. This means that all of the items listed under the building consent authority and territorial authority headings may be the subject of a determination.

Regulations

The Act provides for regulations to be made in relation to the following.

• When Acceptable Solutions and Verification Methods must be used.
• Building levy.
• All building practitioner licensing matters.
• Regulating and controlling the construction, maintenance and demolition of buildings.
• Information to be provided to the Chief Executive by territorial authorities, building consent authorities and regional authorities.
• Restricted building work.
• Specified systems for compliance schedule purposes.
• Defining ‘moderate earthquake’.
• Defining ‘moderate flood’.
• Building consent authority accreditation and registration.
• Product certification.
• Charges and fees by the Chief Executive.
• Dam safety.
• Infringement offences.
• All forms.
• Any other matters contemplated by the Act necessary for its administration or necessary for giving it full effect.

Powers of the Minister

Commencement date: 31 March 2005 Sections: 277-281

If the Minister considers the territorial authority is not properly performing its functions or duties, or exercising its powers under this Act, the Minister may appoint one or more people to act in place of the territorial authority. That person or people will have all the functions, duties and powers of a territorial authority given to them by the Minister.

Functions and powers of the Chief Executive

Commencement date: 30 November 2004 Sections: 169-211

The Chief Executive must:

• report annually to the Minister on current and emerging trends in building design, building technologies and other factors
• consult with the New Zealand Fire Service Commission regarding fire safety and fire-engineering practice and the chief executive of the department of state responsible for disability issues in the case of disability issues.

The Chief Executive may:

• seek independent and specialist advice from a building advisory panel on any building issues
• publish guidance information for organisations and people carrying out functions under the Building Act 2004.

The Chief Executive may investigate complaints made about a registered building consent authority. After conducting an investigation, the Chief Executive can:

• issue a warning
• require a building consent authority to take remedial action
• limit the functions that a building consent authority may perform
• in the case of a building consent authority that is not a territorial authority or regional authority, suspend registration and record the suspension in the Building Consent Authority Register, or revoke registration and remove the building consent authority’s name from the register
• in the case of a territorial authority or regional authority, recommend to the Minister that the Minister appoint one or more people to act in the place of the territorial authority or, as the case may be, the regional authority in relation to all or any of its functions.

As well as responding to complaints, the Chief Executive has the power to:

• monitor the performance of territorial authorities, building consent authorities and regional authorities of their functions under the Act
• carry out reviews of territorial authorities and regional authorities.

The Chief Executive is given access to all relevant information and has broad powers of investigation, including the right to enter land or buildings where appropriate. The Chief Executive may conduct a review of whether a territorial authority is properly performing its functions and duties, or is properly exercising its powers under this Act. They must report to the Minister if they believe the territorial authority is not doing so.

The Chief Executive may appoint various bodies to accredit building consent authorities, dam owners and product certification bodies.

Product certification

Commencement date: 31 March 2005 Sections: 261-272

A building method or product may be certified. A certified product is deemed to meet the requirements of the Building Code.

A product certificate must:

• clearly state any matters that should be taken into account in the use or application of a building method or product
• be reviewed annually.

A product certification body, for example, a laboratory, test facility or research institute, does the certification. Product certification bodies must be accredited. The accreditation process ensures an organisation has the necessary technical competence and adequate systems in place to undertake building method or product certification.

A product certification accreditation body, appointed by the Chief Executive, undertakes the accreditation. As part of the accreditation process, product certification bodies must be audited on a regular basis.

Compliance Documents

The term ‘Compliance Document’ under the Building Act 2004 is equivalent to an Approved Document under the 1991 Act. Building officials know these documents as containing Acceptable Solutions and Verification Methods.

A Compliance Document can make reference to material contained in a reference document or Standard. This material then forms part of the Compliance Document.

The Chief Executive must ensure that a digital copy of a new Compliance Document is available on the Department’s website free of charge promptly after it has been issued.

Development contribution

The development contribution is provided for in the Local Government Act 2002. A territorial authority can require a contribution for development if the effect of the development is to require new or additional assets or assets of increased capacity and, as a consequence, the territorial authority incurs capital expenditure to provide for reserves and infrastructure. Examples would be roads and drains.

Forms

The Building (Forms) Regulations 2004 state specific information that must be included in forms, and the order that it must be presented in. The Department of Building and Housing will provide templates of the prescribed forms.

Generic information that must be included on most forms is as follows.

• Details of where the building work is located:
  • street address
  • legal description of land where the building is located
  • building name
  • number of levels, including ground level and any levels below
  • level and unit number
  • area: total floor affected by building work
  • current, lawfully established use, including number of occupants per level and per use.
• Name of the owner:
  • mailing address
  • phone numbers
  • fax number
  • email address.
  • Name and details (as above) of the agent (only required if application is being made on behalf of the owner).
  • The year when the building was first constructed.

Evacuation scheme

The territorial authority should include a note in the PIM stating that, under section 21A of the Fire Service Act 1975, provision for a scheme that provides for evacuation from the scene of a fire is required. It is then up to the applicant to resolve this matter with the New Zealand Fire Service.

Many building officials may not be certain about when an evacuation scheme will be required. See page 58 of the Building Officials’ Guide to the Building Act 2004  for the wording of Section 21A of the Fire Service Act 1975.

Inspections

An authorised officer can enter the premises and inspect building work at all times during normal working hours or while building work is being carried out. The officer must produce to the occupier written evidence of his or her identity when first entering private land and when requested at any other time.

Restricted building work

This means building work that requires a building consent and relates to an element of a building that is critical to the integrity of the building and the health and safety of its occupants, and is declared by the Governor-General, by Order in Council, to be restricted building work for the purposes of the Building Act 2004. It also includes building work on the building envelope and the structural support of a building. Design work that relates to building work that is the type specified by the Governor-General by Order in Council to be restricted building work for the purposes of this Act is also included.

Section 37 Certificate

This is a notice that the work requires a resource consent, similar to the section 35(1A) form in the Building Act 1991.

Gazette notice

A Gazette notice is a notice issued by the Chief Executive of the Department of Internal Affairs in the Gazette. The Gazette is issued weekly. A Gazette notice is not a regulation. Rather, it is a formal public notice that has legal effect and must be complied with. The Chief Executive of the Department of Building and Housing must provide (section 46(1)) a copy of the notice to every building consent authority as soon as possible after the Gazette notice has been issued. A copy of this notice is included on page 59 of the Building Officials’ Guide to the Building Act 2004.

Offences under the Act

The Building Act 2004 provides for a number of new offences. These offences are located with their relevant subjects, rather than being assembled in one part of the Act. The offences aligned to functions described in this section have been summarised and grouped below. Other offences in the Act are not listed here.

Subject	Section	Offence	Initial fine	Futher fines (for each day the offence is continued)
Building consents	40	If a person carries out any building work except in accordance with a building consent.	$100,000	$10,000
	363	A person who owns, occupies or controls premises to which section 362A applies must not use, or permit the use of, any part of the premises where it is affected by building work that does not have a building consent.	$200,000	$20,000
Code compliance certificate	363	A person who owns, occupies or controls premises to which section 362A applies must not use, or permit the use of, any part of the premises where it is affected by building work that does not have a code compliance certificate or certificate for public use.	$200,000	$20,000
	364	A residential property developer commits an offence if they (a) complete the sale of the household unit and/or (b) allow a purchaser of a household unit to enter into possession of the household unit, before a code compliance certificate is issued in relation to that household unit. This applies unless a Form 1 agreement from the Building (Forms) Regulations 2005 has been entered into. This offence does not apply to sale and purchase agreements entered into before 30 November 2004.	$200,000	N/A
Certificates of acceptance	42	If a person fails to apply for a certificate of acceptance after urgent building work has been carried out without a building consent.	$5,000	N/A
Compliance schedules and building warrants of fitness	101	If a person is the owner of a building for which a compliance schedule is required but no compliance schedule has been obtained.	$20,000	$2,000
	108	If a person (a) fails to display a building warrant of fitness that is required to be displayed under section 108, (b) displays a false or misleading building warrant of fitness or (c) displays a building warrant of fitness otherwise than in accordance with section 108.	$20,000	N/A
Change of use, extension of life, and subdivision of land	114	If a person is an owner of a building and does not give written notice to the territorial authority if the owner proposes (a) to change the use of a building or (b) to extend the life of a building that has a specified intended life or (c) to subdivide land in a manner that affects a building.	$5,000	N/A
Earthquake-prone, dangerous or insanitary buildings	124	Where a territorial authority is satisfied that a building is dangerous, earthquake-prone or insanitary and a written notice is given to (a) reduce or remove the danger or (b) prevent the building from being insanitary, and this is not carried out within the time stated in the notice.	$200,000	N/A
	128	Where a territorial authority has put up a hoarding or fence in relation to a building or attached a notice warning people not to approach the building, and a person (a) uses or occupies the building or (b) permits another person to use or occupy the building.	$200,000	$20,000
Notices to fix	168	If a person fails to comply with a notice to fix.	$200,000	$20,000
Warnings and bans	27	If a person uses a building method or product with a ban on it.	$200,000	N/A
Building levy	58	If a person fails to pay the levy on their building consent.	$5,000	N/A
Use of building	116B	If a person uses a building, or knowingly permits another person to use a building, (a) for use for which the building is not safe or not sanitary; or (b) that has inadequate means of escape from fire.	$100,000	$10,000

Fees chargeable under the Act

Section	Fee can be charged for
219, 33(1)	PIM application
219, 240, 45(1)(d)	Building consent application
60	Territorial authorities can retain a percentage of the building levy
219, 97(d)	Certificate of acceptance application
102(2)	Issuing a compliance schedule
219, 106(3)(c)	Owner’s application to amend a compliance schedule
107(5)	Issuing an amended compliance schedule
111(2)	Inspection of specified systems
217(4)(b)	Photocopying facilities
219	A territorial authority may charge a fee in relation to a building consent or the performance of any other function or service under the Act
240	A building consent authority may charge a fee in relation to a building consent or the performance of any other function or service under the Ac

A fee may also be charged under the Local Government Official Information and Meetings Act 1987 where the territorial authority has supplied information to the public in accordance with that Act.