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Key findings of the review

9 - Compliance schedules and the building warrant of fitness regime

Purpose

To evaluate the effectiveness of the Council's compliance schedule and building warrant of fitness (BWoF) regimes.

Background

Sections 100 to 111 of the Building Act 2004 set out the responsibilities for owners, territorial authorities and building consent authorities where buildings contain specified systems. Where specified systems (ie, fire alarm systems, lifts etc) are installed in a building the building must have a compliance schedule, issued with the last code compliance certificate, and the owner must maintain a BWoF.

Initial review

At the time of the review around 2600 buildings had compliance schedules. There were 155 BWoF certificates listed as overdue (ranging from one day to 1000 days). Of these, 13 buildings that have high occupant loads belonged to the Council. The Council could not explain why some BWoFs were so overdue.

The 2002 technical review made similar findings.

Recommendations made to the Council Action taken by the Council before the follow-up review
Review the BWoF system to assess why some BWoFs are significantly overdue. This recommendation was not implemented.
Introduce appropriate enforcement action of these breaches of the Building Act 2004. The Council's enforcement team monitors compliance with notices to fix and takes follow-up action when necessary.
Ensure that adequate staff cover is available in the event of absence.

Follow-up review

The Department found that the Council's enforcement team was responsible for auditing BWoFs and engaging in related enforcement action. The team contacted owners of buildings with overdue BWoFs and undertook on-site inspection audits of the specified systems and, where required, issued a notice to fix. The team proactively monitored compliance with notices to fix and took follow-up action if no progress had been made after 14 days. At that stage the Council instigated a prosecution process. In most cases the building owner complied with the requirements of the notice to fix before court procedures were instigated.

This team is also responsible for compiling compliance schedules from work completed by the Council's processing contractors. The processing contractors provided the team with information on specified systems contained in the building and inspections and certifications undertaken during construction. The team compiled the compliance schedule and double-checked that the systems were appropriate for the building. All officers on this team were warranted under the Building Act 2004, Local Government Act 2002, Resource Management Act 1991, Fencing of Swimming Pools Act 1987 and relevant bylaws.

Despite the initiatives noted above, the Council's records showed that over 400 BWoFs were overdue. This was an increase on the number of overdue BWoFs since the time of the initial review. The Department found no evidence that the Council had introduced a formal mechanism for assessing why some BWoFs are significantly overdue, as recommended in the initial review.

Recommendations made to the Council Response from the Council
Implement strategies to clear the backlog of overdue BWoFs including: continuing to carry out audits of BWoFs ensuring the enforcement team has adequate staff to proactively reduce the number of overdue BWoFs. The resourcing of overdue BWoFs is being considered, but no specific course of action has yet been determined.

Additional comment from the Council

In March 2008 the Council provided the Department with further information as to its actions regarding this part of the technical review. The Council noted the initial review stage of the review was carried out under the Building Act 1991, which only required the owner to sign and return the annual BWoF. There was no formal auditing; however, inspections were undertaken when BWoFs were not received and prosecution proceedings were pending. This made for an easily managed system, as the documentation process was not as onerous as those introduced in the Building Act 2004 and numbers of overdue BWoFs could be controlled at minimum levels.

The Building Act 2004 brought in a significant level of change and responsibility for technical correctness as well as the ability to charge for BWoF annual returns. The introduction of 12A certificates (certificates of compliance with inspections, maintenance, and reporting procedures) to be signed by an independently qualified person (IQP) to accompany the BWoF return identified around 50% of BWoF returns were false, as the owner was signing the warrant without IQP inspections being undertaken. This caused a significant rise in the BWoFs that were overdue and it took some 18 months to work these out of the system.

This coupled with the complexities of form 11 requests (20%) (applications for amendments to compliance schedules) that required back-checking of building consents to establish whether building consents had been issued for adding or deleting specified features. This checking process cannot be understated and is compounded by the number of non-finalised building consents (no code compliance certificates issued).

Implementation of a cost recovery structure and its impact on BWoF returns (which affected around 80% of returns for two years) where BWoFs would not be accepted without the required processing fee has had a significant effect on the number of overdue BWoFs. There was also a strong reluctance by some building owners to pay for their BWoF returns. This also diverted resources for a considerable time and has impacted on clearance rates.

The system has grown by some 400-500 new compliance schedules between the 2004 and 2007 phases of the technical review, which have also added to workloads.

Additionally, the conversion of compliance schedules issued under the Building Act 1991 to the specified systems (when requested by an owner or IQP, when issuing a building consent) introduced by the Building Act 2004 has added considerably to workloads and the team's ability to address the overdue BWoFs.

Another issue is the lack of communication between the Council's four internal databases. Each system has to be accessed separately to confirm information, which is time and labour intensive. Internally, Council departments and building owners do not always communicate all information relating to subdivisions and unit titles, which impacts on buildings at BWoF return stage as Lots and deposited plans (DPs) and owners and specified systems have changed again requiring additional time and labour to investigate and correct.

New processes and database changes were implemented with varying degrees of success. Since 2004 there have been two additional staff plus an inspector hired to undertake the audits. Currently, we are also looking at deploying another staff member into this area. The full information management system upgrades are currently being implemented and this will assist to make the processing of BWoFs more effective and efficient.

The Council is now concentrating on clearing the backlog of some 400 overdue BWoFs and most of these are at the final stage of referral for prosecution. A staff member has been deployed to assist with this.

Conclusion

At the time of the follow-up review the Council had made limited progress towards implementing recommendations. The Department acknowledges additional feedback recently provided by the Council, which highlighted compliance issues, and Council initiatives to address these issues. BWoF and compliance schedule requirements were introduced in 1991 and the Council must fully comply with these requirements and reduce the backlog of outstanding work as soon as possible.