What is a determination?
A determination is a binding decision made by the Department of Building and Housing. It provides a way of resolving disputes, questions, or interpretations about the rules that apply to buildings, how buildings are used, building accessibility, and health and safety. In broad terms, the rules arise from the requirements of the Building Act or the Building Code.
Most determinations are requested because the person applying for the determination disagrees with the council about decisions the council has made about a building. However, a determination can be applied for by the council itself, a neighbour who is affected by building work, or a building user if the matter is about access and facilities for people with disabilities.
A determination can be about building work that is planned, partly done or completed. You may have already asked for advice from the Department on the same question. A determination is different in that the Department takes a detailed look at the matter and makes a legally binding decision.
What can a determination be about?
We can make a determination about:
- whether a building or building work complies with the Building Code
- a council's decision on a building consent, a notice to fix from the council, a code compliance certificate or a compliance schedule (including time extensions to building consents and code compliance certificates)
- a council's decision to grant or refuse a waiver or modifications to the Building Code
- a council's decision on a certificate of acceptance, a compliance schedule, a notice to fix, or a certificate for public use
- a council's decision on building alterations, a change of building use, subdivision of buildings, and dangerous, earthquake-prone and insanitary buildings
- a council's decision on dams.
Who can ask for, or be party to, a determination?
You can ask for, or be involved as a party to a determination, if you are:
- the building owner or the owner's agent
- the council that issued the building consent
- the owner of other property when the determination is about the protection of that property (for example, the potential spread of fire from one property to another, surface water run-off or land stability)
- a government department or Crown agency or other person or organisation that has a statutory duty under the Act, such as the New Zealand Fire Service or Occupational Safety and Health
- anyone with a direct interest in the matter where it relates to access and facilities for people with disabilities.
The Department can initiate a determination where it believes it is necessary to achieve the aims of the Building Act.
The council will almost always be a party to the determination. We may ask other people or organisations to become involved if necessary.
Applying for a determination
Information on applying for a determination, forms, and fees can be found on the Department's website: www.dbh.govt.nz
The steps in the determination process
Receive and accept the application
When we receive the application, we will decide whether the dispute or question is one that the Building Act applies to. If it is, we will tell the person who applied and the other parties that a determination has been applied for. We must do this within 10 working days.
Look in detail at the application
We will look at all application information and will ask for clarification or any information that may still be required. We may also need to clarify the matter being disputed.
Appoint an independent expert
Determinations often concern technical matters and we will sometimes engage an independent expert at our expense to investigate and report on the matter. The expert will provide a written report that is copied to all the parties for their comment. For complex determinations, more than one expert may be appointed.
In some instances an expert will not be necessary and the matter may be referred to the Department's own technical advisors.
Provide a draft determination
We will produce a draft determination after we have received the expert's report and the parties have commented on it. We will then send the draft determination to the parties for comment.
Hold a hearing if one is requested
You may request a hearing, which would normally be held following the release of the draft determination. Legal representation is not necessary, although you can have a lawyer attend and speak on your behalf if you wish.
You can request a hearing at the time of application or at any time during the determination process.
Issue the final determination
We will issue the final determination after the parties have commented on the draft and after any hearing is held. The final determination will respond to matters you may have raised in response to the draft determination or at the hearing, if one was held.
How long it takes to get the determination?
We are required to issue the final determination within 60 working days of receiving the application, or longer if agreed to by the parties.
The 60-day period does not include time when we may be waiting for documents or information the Department has required from parties. If you can't give us the information by the date given, you can ask for an extension. We have the power to make the determination if the information requested is not provided in reasonable time.
The availability of earlier determinations and how they are used
Determinations provide decisions that can be used by councils and others as a guide when faced with a similar set of facts.
Once issued, determinations are available free from our website. You can search for a determination by Building Code clause, subject or keyword, or you can browse them all.
We also include a summary of interesting determinations in this newsletter.
More Information
A guide to Building Act determinations is available on the Department's website.