Key findings of the review
4 - Procedures for determining compliance with the Building Code
Purpose
To review the key processes and procedures the Council uses when accepting, vetting and processing applications for building consents, and how it establishes whether applications comply with the Building Code. These processes include:
- consent application vetting and lodgement processes (4.1)
- project information memoranda (PIMs) processing (4.2)
- building consent processing (4.3)
- use of notations and endorsements on building consent documents (4.4)
- peer review and external assessment (4.5)
- amendments to building consent applications and requests for additional information (4.6)
- code compliance certificates (4.7).
4.1 Consent application vetting and lodgement processes
Purpose
To assess how well the Council accepts and vets applications for building consents.
Background
Good-quality drawings and specifications submitted with the building consent application help ensure efficiencies in processing and improved compliance outcomes. Poor-quality or substandard documentation often results in applications being suspended while further information is requested.
Initial review
Although building consent officers were vetting building consent applications prior to lodgement, they were not consistently rejecting poor-quality documentation.
Recommendations to and actions taken by the Council
| Recommendations made to the Council |
Action taken by the Council before the follow-up review |
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Strengthen processes for receiving and vetting building consent applications to ensure building consent applications with substandard documentation are not accepted. This could be achieved by:
- clearly defining the information that must be provided before it will accept building consent applications ensuring such information requirements are communicated to staff
- providing training for consent vetting staff to ensure they can readily identify applications with insufficient information
- implementing mechanisms to help ensure consistent application of vetting processes (eg, peer review and internal processing audits)
- communicating its minimum information requirements to appropriate external stakeholders.
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The Council developed a new vetting checksheet and informed major stakeholders of its new approach. |
Follow-up review
The Council developed a new vetting checklist and guidance notes to accompany every building consent application form. Council staff were involved in the development of this material. Building consent officers vet application content against this checklist at the time of consent lodgement and reject applications that do not have sufficient information.
The Council has informed major stakeholders of this new approach and advised it was experiencing a significant improvement in the level of documentation being provided with consent applications. Evidence was found showing that many building consent applications still lacked sufficient detail and evidence to ensure compliance with the Building Code would be achieved.
The Department noted the improvements, but reiterated the recommendation made to the Council in the initial review.
Recommendations to and actions taken by the Council
| Recommendations made to the Council |
Response from the Council |
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Continue to strengthen the process for receiving and vetting building consent applications consistent with that recommended in the initial review. This includes:
- clearly defining the information that must be provided before it will accept building consent applications
- ensuring such information requirements are communicated to staff
- providing training for consent vetting staff to ensure they can readily identify applications with insufficient information
- implementing mechanisms to help ensure consistent application of vetting processes (eg, peer review and internal processing audits)
- communicating its minimum information requirements to appropriate external stakeholders.
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Council advised that it is continuing to improve the vetting procedure, which includes staff training. |
Conclusion
The Council partially progressed the Department's recommendations although work is ongoing. Given the findings of the case studies, the Department reiterates the importance of ensuring that the vetting process is sound, with both staff and stakeholders being clear about information requirements to help ensure substandard building consent applications are not accepted.
4.2 Project information memoranda (PIMs) processing
Purpose
To examine how the Council uses project information memoranda (PIMs) as part of its building control operations.
Background
Sections 31-39 of the Building Act 20047 cover applications for PIMs. These sections specify the minimum information a PIM must include. Information not apparent in the district plan must be included. This includes details of other authorisations, such as details of stormwater and utility systems, and other features or characteristics likely to be relevant to the design and construction of the building on that site.
Initial review
The Council had sound processes relating to site visits of all PIM applications involving new dwellings, residential alterations and effluent disposal systems. However, the Council was not consistently achieving compliance with its statutory timeframes for the issuing of PIMs.
Poor performance in processing timeframes was attributed to high volumes of work, lack of staff resource, and implementation of changes to the District Plan. These factors, for a transitional period, increased processing timeframes significantly.
Recommendations to and actions taken by the Council
| Recommendations made to the Council |
Action taken by the Council before the follow-up review |
| Review the processes used to develop PIMs, and the resources allocated to producing them, to ensure that it consistently meets the timeframes prescribed under the Building Act for producing them. |
The Council reviewed its PIM processes and employed two dedicated PIM processing staff. |
Follow-up review
The Council improved its level of compliance with the statutory timeframe for the processing of project information memoranda by employing two dedicated processing staff. The Department found a discrepancy in how consistently the Council was recording the need for an Evacuation Scheme, as required under the Fire Services Act 1975, in its project information memorandum.
Recommendations to and response from the Council
| Recommendations made to the Council |
Response from the Council |
| Ensure consent applicants are advised when an Evacuation Scheme is required and that this is recorded on the project information memorandum. |
The Council noted the Department's finding and queried whether this recommendation should have formed part of the follow-up review. However, the Council advised that it does now include a reference to Evacuation Schemes in its project information memoranda where it is appropriate. |
Conclusion
The Council has implemented the Department's recommendations. The Building Act 2004 was passed part way through this review process. It is the responsibility of all councils to amend their systems and processes to reflect the new Act. At the time of the follow-up review, inconsistencies were again found in the Council's recording of the need for an Evacuation Scheme on project information memoranda.
4.3 Building consent processing
Purpose
To ensure the Council has a sound methodology for processing applications for building consents.
Background
Territorial authorities or building consent authorities should have systematic processes in place to assess applications in a thorough, consistent and timely manner. This process should clearly document the technical basis for issuing the building consent and the subsequent compliance certification.
Initial review
The Council had no formal policy or procedure for the processing of building consents and did not conduct audits of its systems to demonstrate that compliance with the Building Code was being consistently achieved. At the time of the review, the Council had recently adopted a checklist system for building consent processing. However, the Department found no evidence that this checklist was in widespread use or was being used effectively.
Recommendations to and actions taken by the Council
| Recommendations made to the Council |
Action taken by the Council before the follow-up review |
| Implement a policy to underpin its consent processing activities. This should include an effective checklist to demonstrate due consideration has been given to all appropriate Building Code provisions and to provide an audit trail for each consent. |
The Council upgraded its processing checklist. |
| Implement other quality assurance mechanisms (such as peer review and internal audits of consent processing activities) to ensure staff are consistently and accurately using the new process. |
The Council developed a review process to check whether the Council's consent processing proceedures had been followed. |
| Ensure it has sufficient consent processing staff to enable consistent and rigorous processing of the increased work volumes being faced by the Council. |
The Council partially fulfilled this recommendation by separating technical staff into either processing or inspection teams. |
Follow-up review
The Council started the process of developing and documenting formal policies and procedures for building consent processing. The building consent processing checklist had also been upgraded by aligning the order of the prompts on the checklist with Building Code Clauses B1 to H1. Staff members were also being encouraged to document their reasoning for approving alternative solutions on the back of the checklists.
The new senior building consent officer had implemented a building consent review process. Two building consents were randomly reviewed per week to determine if the Council's processes were followed. The review team considered that this process did not constitute a comprehensive audit as it largely consisted of a process check rather than an assessment of whether Code compliance had been achieved.
The Department noted that the Council was achieving 92 percent compliance with processing timeframes over the previous 3 months, although this was partly due to staff working overtime.
Evidence from case studies revealed consent documentation was not being consistently date stamped when received and that building consent documentation, application forms and code compliance certificates were not consistently identifying the building's intended or approved use.
Recommendations to and response from by the Council
| Recommendations made to the Council |
Response from the Council |
| Continue to improve processing checklists. |
The Council advised that it has undertaken further work on the documentation of consent processing procedures as part of its preparations to be accredited as a building consent authority. |
| Formally document the basis for peer review and auditing processes. |
| Enhance consent review processes to include an assessment of whether Code compliance has been achieved. |
Conclusion
The Council has partially implemented the recommendation. It also advises that work is ongoing as it prepares for accreditation as a building consent authority. However, because this occurred after the follow-up review visit, the Department did not assess that work.
4.4 Use of notations and endorsements on building consent documents
Purpose
To examine the Council's use of building consent conditions and plan notations.
Background
Consent conditions or notations can be used as educational tools and to highlight aspects of construction requiring particular attention. Conditions should not be applied to cover deficiencies in consent documentation, that should be rejected at lodgement. While this enables the Council to avoid requesting additional information and can sometimes help to expedite processing, it fails to meet the requirements of the Act. The incorrect use of notations or conditions may place the Council in the role of being a designer, not an appropriate role in the building control context. Nominating design solutions may also have cost implications for the consent applicant and should therefore be left to the designer and applicant to determine.
Initial review
The Council was making extensive use of notations and endorsements, which in some cases were being used to cover deficiencies in building consent documentation.
Recommendations to and actions taken by the Council
| Recommendations made to the Council |
Action taken by the Council before the follow-up review |
| Develop a policy to clarify when the use of consent conditions and notations is appropriate. |
The Council developed a policy to clarify when the use of conditions and notations is appropriate. |
Follow-up review
The Council developed a formal policy outlining the purpose, responsibility, and use of stamps and stickers and provided this to relevant staff. The senior building officer is now responsible for regularly reviewing the use of notations.
No specific recommendations were made in the follow-up review.
Conclusion
The Council implemented the Department's recommendation.
4.5 Peer review and external assessment
Purpose
To assess the Council's peer review procedures and the use of external expertise in its building control operations.
Background
Territorial authorities and building consent authorities have a responsibility to ensure building consents and code compliance certificates are issued correctly, and that inspections are carried out effectively. An internal peer review system helps ensure the systems used for regulatory building control are rigorous and consistent. Additionally, by using appropriate technical specialists, the Council will ensure building consents comply with the Building Code and buildings are completed in accordance with the consented plans and specifications.
Initial review
The Council did not have any formal procedures for peer review of inspection work, nor was there a formal audit trail to demonstrate how processing or inspection officers ascertained that Code compliance was being achieved.
Recommendations to and actions taken by the Council
| Recommendations made to the Council |
Action taken by the Council before the follow-up review |
| Ensure robust peer review processes are implemented at all stages of the consent processing, inspection and approval processes. |
The Council had not implemented this recommendation. |
| Ensure peer review is appropriately documented and kept on file with the consent documentation. |
The Council had not implemented this recommendation. |
| Ensure appropriate peer reviews for applications containing areas of specialisation undertaken in-house (eg, fire design). |
The Council had not implemented this recommendation. |
Follow-up review
The Council was rarely undertaking technical peer review of consent processing, inspection and approval work and had yet to document its policies and procedures in this area. Where peer review was occurring, such as between processing officers, the process was informal and not documented. The Council was also still not outsourcing peer review of consent applications containing areas of specialisation outside the competence of in-house staff.
Recommendations to and response from the Council
| Recommendations made to the Council |
Response from the Council |
| Develop robust policies and processes for peer review and implement these at all appropriate stages of the consent processing, inspection and approval processes. |
The Council advised that it is working towards this as part of its preparations to be accredited as a building consent authority. |
| Ensure peer review is appropriately documented and recorded. |
The Council advised it is working towards this as part of its preparations to be accredited as a building consent authority. |
Conclusion
The Council did not implement the Department's recommendations during the review. The Council advised it has begun work to implement these recommendations as part of its preparations for accreditation as a building consent authority. However, because this occurred after the follow-up review visit, the Department did not assess that work.
4.6 Amendments to building consent applications and requests for additional information
Purpose
To consider how amended building consents are processed and how the Council makes requests for further information on consent applications.
Background
Applications to amend a building consent must be made in the same manner as the original application as required under section 45(5)8 of the Building Act 2004. Councils can also require further reasonable information in respect of a building consent application. If a council lawfully does this, the application is suspended until the council receives the required information as required under section 48(2)9 of the Act.
Initial review
The Council was expending significant resource requesting further information during building consent processing.
Recommendations to and actions taken by the Council
| Recommendations made to the Council |
Action taken by the Council before the follow-up review |
| Review recent requests for additional information to identify any recurring deficiencies. Missing information can be more readily identified during the consent vetting procedures. |
The Council developed an enhanced vetting checklist. |
Follow-up review
The Council had developed and implemented a new vetting checklist, which was reducing the number of requests for further information. The Department also found that the Council was still not adequately reviewing requests for additional information to identify recurring deficiencies.
Recommendations to and response from the Council
| Recommendations made to the Council |
Response from the Council |
| Continue to review requests for additional information to identify any recurring deficiencies. Such deficiencies should then be included for checking on the lodgement vetting sheet to reduce processing delays. |
Council has advised it has now adopted this recommendation. |
Conclusion
The Council has adopted this recommendation and is continuing work to review requests for additional information to identify recurring deficiencies.
4.7 Code compliance certificates
Purpose
To examine the Council's processes regarding issuing of code compliance certificates.
Background
Sections 91-95 of the Building Act 2004 contain provisions on the issuing of code compliance certificates. In summary, these provisions require that:
- an owner apply for a code compliance certificate (in the prescribed form) as soon as practicable after building work is completed
- a building consent authority issue a code compliance certificate if it is satisfied, on reasonable grounds, that building work complies with the building consent
- a building consent authority be satisfied any specified systems are capable of performing to the performance standards set out in the building consent
- a building consent authority must decide whether or not to issue a code compliance certificate within 20 days of receiving an application for a code compliance certificate or other further period agreed between a building consent authority and owner.
Section 92(1) of the Building Act requires building owners to apply for a code compliance certificate, after all building work to be carried out under their building consent has been completed. If the building consent was issued after 31 March 2005 and no application has been made to the building consent authority within 2 years of the date on which the building consent was granted, the building consent authority must decide whether to issue a code compliance certificate (section 93(2)(b)(i)). Although it is not required by the Building Act 2004, the Department also considers it good practice for building consent authorities to have a system to proactively follow-up on all building consents issued under the Building Act 1991 that have not had code compliance certificates issued.10
Initial review
The Council was not always undertaking appropriate enforcement action at the code compliance certificate stage when aspects of non-compliance were identified. Rather than risk confrontation, the Council preferred to encourage compliance rather than issue a notice to rectify.11 Enforcement action was generally considered an action of last resort.
The review also identified that the Council had around 9,000 old building consents issued under the Building Act 1991 that did not have code compliance certificates issued for the building work.
Recommendations to and actions taken by the Council
| Recommendations made to the Council |
Action taken by the Council prior to the follow-up review |
| Develop policy and procedures for dealing with all outstanding or uncompleted building consents. |
The Council had partially developed policies and procedures in this area. |
| Issue a notice to rectify in accordance with section 43(6) of the Building Act 1991 if it is not able to issue a code compliance certificate because the work does not comply with the Building Code. |
The Council had not implemented this recommendation. |
| Manage non-compliance within a risk management framework and take enforcement action whenever appropriate. |
The Council had not implemented this recommendation. |
Follow-up review
The Council had not fully developed its policies and procedures for issuing code compliance certificates. The Council has worked to reduce its backlog of building consents issued under the 1991 Act that have not had code compliance certificates issued.
The review team found that the Council still prefers to encourage compliance. This is generally achieved by issuing a 'notice of non-compliance' if a code compliance certificate could not be issued at the time of the final inspection. The Council advised the review team that a formal policy and procedure has been adopted; however, this policy and procedure was not implemented at the time of the follow-up review.
Recommendations to and response from the Council
| Recommendations made to the Council |
Response from the Council |
| Continue to work towards reducing the backlog of building consents that have not had a code compliance certificate issued for the building work. |
The Council queried the rationale for this recommendation. However, it also advised that it has adopted a formal policy and procedure on this matter as part of its preparations to become accredited as a building consent authority, which it believes will assist to produce superior compliance outcomes for all concerned. |
| Implement a policy providing for the issue of a notice to fix at the time of final inspection if non-compliance is identified (rather than issuing a 'notice of non-compliance'), if the non-compliance is such that a notice to fix is appropriate in the circumstances. |
The Council has included in its documented policies the following provision relating to code compliance certificates.
'Where the application (for a code compliance certificate) is refused, the owner or agent is notified in writing, giving reasons for the refusal, and… advised that the building work is so seriously non-complying as to result in a Notice to fix to be served. In such circumstances, the procedure outlined in BCA-07-01 Notice to fix, will be followed.'
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Conclusion
The Department considers that the Council has implemented the majority of the initial review recommendations, although ongoing effort is required for following-up old consented building work that has not had a code compliance certificate issued.
The Department notes that all building consent authorities must decide whether to issue or refuse to issue a code compliance certificate for building work that has a building consent issued under the Building Act 2004 within 2 years of the date the consent was granted.
In addition to this, the Department also considers it good practice for councils to have a system for appropriately following up on all outstanding building consents, including those issued under the former Building Act 1991. There are benefits to both homeowners and building consent authorities from such an approach (rather than a more passive approach of waiting for the owner to apply, which may take a long time). It will increase homeowners' awareness of their legal obligations and give them the time to plan how to redress any non-compliance identified (rather than having to urgently resolve non-compliance issues in potentially stressful situations such as when selling their houses).
Following up on outstanding building consents sooner rather than later is also likely to assist the Council's own risk management practices and minimise the chance for other compliance issues to surface over time. The Department also notes that many councils operate such systems for proactively following up outstanding building consents and that the Building Act 2004 enables councils to charge for follow-up activities under the Act.
The Department also considers that issuing a notice to fix may be more appropriate in some cases than issuing a 'notice of non-compliance' at the time of final inspection. The key point is that councils should select the most appropriate mechanism for the circumstances of each case. For example, if the non-compliance has health or safety implications or could lead to significant building failure, then we believe a notice to fix would be more appropriate than issuing a notice of non-compliance. If it was a more minor non-compliance then it may well be that a notice of non-compliance is more appropriate.