Legislative requirements

Changes made to an existing building are an alteration. This may include, for example, increasing or decreasing the floor area, making or closing an opening, erecting or demolishing a wall, etc.

The building consent can only be granted where the BCA is satisfied that the building will: 

• comply as is reasonably practicable with the Building Code provisions for means of escape from fire and access and facilities for people with disabilities (as required)
• continue to comply with the other provisions of the building code to at least the same extent as before the alteration.

The Act advises that if part of a building is altered, upgrade provisions for the rest of the building are triggered.  When applying for building consent to alter an existing commercial building, you will need to provide a suitable report covering means of escape from fire (fire report) and access and facilities for people with disabilities.

If you are altering a building that is subject to an earthquake prone building Notice, section 133AT of the Act provides additional upgrade exclusions.

When altering a commercial building make sure the design professionals have appropriate skills, experience and competence to make the application to avoid your application being suspended or refused.

MBIE has developed a five-step process including a simple flow chart that will help you to understand how you can meet the requirements and the information you will need to provide.

Notice must be given if the owner of a building proposes to subdivide land in a manner that affects a building. If the owner fails to give written notice in these circumstances, they commit an offence and are liable to a maximum fine of $5000.

A Territorial Authority must not issue a certificate under section 224(f) of the Resource Consent Management Act 1991 for the purposes of giving effect to a subdivision affecting a building or part of a building unless it is satisfied, on reasonable grounds, that the building will comply, as near as is reasonably practicable, with every provision of the building code that relates to one or more of the following:

• Means of escape from fire
• Access and facilities for people with disabilities (if this is a requirement for the building)
• Protection of other property.

The building must also continue to comply with the other provisions of the building code at least to the same extent as before the subdivision application was made. This will often require a building consent application to undertake any necessary work to upgrade a building.

For further information view the Building Act 2004.

The use of a building is categorised by law. These uses are found in: Building (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005, Schedule 2.  Change of use is covered by sections 114 and 115 of the Building Act 2004.

If an owner wishes to change the use of a building, then they are required to give Council written notice of the proposed change.

Common examples of change of use are:

• residential house to restaurant
• warehouse to apartments
• dwelling to childcare facility.

A change of use can trigger more onerous requirements e.g. certain systems or elements within the building may need to be changed or upgraded. The change of use cannot be made until Council gives the owner written confirmation that the requirements of the Building Act and Building Code have been complied with.

All buildings are expected to have an indefinite life, exceeding 50 years. Sometimes, they could be assessed as having a life of less than 50 years. For example, due to the building only having a temporary location or use. These factors and the building's intended life need to be stated on the building consent application if applicable.

If a building with a specified intended life is planned, it will be a condition of the building consent that is issued, that the building will be altered, demolished or removed before the end of this stated life.

The building owner may give written notice requesting an "extension of life", and if the Council is reasonably satisfied that the building can satisfactorily perform to the building code, a further specified time/life may be agreed.

Natural hazards are addressed by a range of regulatory processes, some of which arise under the Building Act 2004. The Building Act defines a 'natural hazard' as: 

• Erosion including coastal erosion, bank erosion, and sheet erosion
• Falling debris including soil, rock, snow, and ice
• Subsidence
• Inundation including flooding, overland flow, storm surge, tidal effects and ponding
• Slippage.
  

The Building Consent Authority (BCA) must refuse to grant a building consent for the construction of a building, or major alterations to a building, under Section 71(1)(a) & (b) of the Building Act if: 

• the land is subject to 1 or more natural hazards, or the building work is likely to accelerate, worsen, or result in a natural hazard on that land, or any other property.
  

However, under Section 71(2) the restriction on the BCA's ability to grant a building consent does not apply if: 

• The BCA is satisfied that 'adequate provision' has been made, or will be made, to:

(a)  protect the land, building work, or other property from the natural hazard (s); or
(b)  restore any damage to that land or other property as a result of the building work.

To demonstrate that 'adequate provision' has been made for the purposes of Section 71(2)(a) or (b), applicants are required to provide a site-specific report from a Chartered Professional Engineer in support of their building consent application. The BCA will take that report into account when deciding whether Sections 71(2)(a) or (b) apply.

The report must address sections 71(2)(a) and/or (b) (as the case may be) and confirm that the applicable statutory requirements will be satisfied, including:

• Confirmation that suitable mitigation of the relevant natural hazard has been or will be achieved on site
• Confirmation that the proposed design incorporates appropriate protection of the land, the building work, or other property and/or that any damage to the land or other property will be restored
• Producer Statement (PS1) certification of the design
• Assessment of compliance with the NZ Building Code.
  

Despite the requirements of Section 71, there are instances when the BCA must grant a building consent for building work on land subject to natural hazards. The criteria are set out in section 72 of the Building Act. They are:

• The proposed building work will not accelerate, worsen, or result in a natural hazard on the land on which the building work is to be carried out or on any other property; and
• The land is subject to, or is likely to be subject to, one or more natural hazards; and
• It is reasonable to grant a waiver or modification of the building code in respect of the natural hazard (if required).
  

All these criteria must be satisfied before section 72 will operate to avoid the restriction on a BCA's ability to grant a building consent that arises under section 71(1).

When a building consent is granted under section 72, the BCA must notify the Registrar-General of Land of the consent.  The Registrar-General of Land will then place an entry on the title of the land, confirming that the building consent has been granted under section 72 and identifying the natural hazard concerned (see Section 74 of the Building Act for more details).

Please note that an entry on a title under Section 74 of the Building Act may affect insurance arrangements for the proposed building work, or any existing building or land to which it relates.

Resource consent focuses on land use and environmental effects (what you are doing and where), while building consent ensures the structural safety and compliance of the construction itself (how you are doing it). Resource consent is required if you are changing land use, subdividing, or breaching council rules, whereas building consent is needed for most construction, plumbing, and structural alterations.

When you submit your building consent application, our planners will check to make sure it complies with the District Plan. If it doesn’t you will need to apply for a resource consent. 

Where you need to apply for a resource consent (this usually means you cannot start construction until resource consent has been obtained).

Some building consent applications need to be referred to Fire and Emergency New Zealand (FENZ); this typically involves commercial, industrial or communal residential / non-residential type buildings.  

We will refer your application to FENZ if it involves a fire design for these types of buildings and the following measures apply: 

• compliance with clauses C1-6, D1, F6 or F8 of the Code is established other than by compliance with the provisions of an applicable compliance document (e.g. through an Alternative Solution); or
• involves a waiver or modification of clauses C1-6, D1, F6 or F8 of the Code.
• an alteration, change of use or subdivision that affects fire safety systems including any building work on a specified system relating to fire safety except where the effect is minor (e.g. minor changes and fit outs are permissible).

For more information, see the notice on the New Zealand Gazette website.

Public premises are defined as:

Any building which is open to the public whether for free or payment of a charge, include but are not limited to:

• shopping malls
• cinemas
• marae
• camping grounds
• garages and workshops
• funeral homes
• office / retail complexes
• rest homes

These buildings cannot be used or occupied until a Code Compliance Certificate (CCC) is issued. This is because public premises will generally have systems within the building which contribute to life-safety and the wellbeing of the building users.

A Certificate of Public Use may be required for periods of time in which a building may be required to be used before the Code Compliance Certificate is issued. Each application will be considered on a case-by-case basis.

Information required

Building consent applicants must provide information about how the public will be protected whilst building work is underway, including but not limited to the following issues:

• What parts of the building are occupied and or will the public have access too?
• What access / egress routes will be compromised by the building work (walking near or through building work)?
• What hazards will the public potentially face because of the building work?
• What protection measures can be put in place to protect the public?
• What safety systems are in place to protect the public or building occupants (i.e. will specified systems be operational during construction)?
• What mitigation measures can be implemented to ensure the safety of the users where life safety features have been disconnected / decommissioned?
• What alternative safety features can be utilised to provide the same or better security in terms of the health and safety of the public, where safety features are not operational?
• What protection measures are in place?
• Paving and ramps
• Fencing off the construction area
• Hoardings - protection from falling objects.

All buildings must have a building consent prior to construction, unless exempt. The definition of a building and building work is defined in Sections 7, 8 and 9 of the Building Act 2004.

Section 40 states that buildings are not to be constructed, altered, demolished, or removed without consent:

1. A person must not carry out any building work except in accordance with a building consent
2. A person commits an offence if the person fails to comply with this section
3. A person who commits an offence under this section is liable on conviction to a fine not exceeding $200,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence has continued.
   

If the owner or the owner’s predecessor has carried out building work which required a building consent, and they did not obtain one, it could pose problems when selling your property.  For example, if the work is not legally recognised the sale might fall through and / or it could impact on insurance in the event of a claim.

There are typically two instances when a Certificate of Acceptance (COA) maybe requested:

1. Unauthorised building work has been undertaken
2. Work carried out under urgency.
   

Unauthorised work

You can apply for a certificate of acceptance for work done without a building consent. The value of a certificate of acceptance to the building owner and a potential buyer will ultimately depend on how much of the work the council was able to inspect. In many circumstances, it's not possible to see everything so the certificate will only specify the elements of the building that can be approved.

If an owner wishes to apply for a COA, they will need to provide the same level of information that would have been required, if they had applied for a building consent.  The building work must comply with the Building Code in place when making the application, rather than when the work was undertaken.  In addition, the owner may need to provide sales dockets, to verify timber treatment, concrete strength, R values for insulation, photos of construction and any other evidence they have that will assist with compliance.

Works carried out under urgency

Following an emergency, some buildings may require remediation or urgent works to reduce the risk to people.

Urgent works can include demolishing all or part of a building if it:

• cannot be stabilised
• is an immediate risk to life safety, or
• cannot be adequately barricaded without preventing access to a critical route or significantly disrupting homes and businesses.
  

Emergency repairs/urgent works must still meet certain requirements as per section 41 of the Building Act. It must be building work for which a building consent cannot practicably be obtained in advance because the building work must be carried out urgently:

for the purpose of saving or protecting life or health or preventing serious damage to property; or

to ensure that a specified system in a building that is covered by a compliance schedule or would be covered if a compliance schedule were issued in respect of the building, is maintained in a safe condition or is made safe.

Building work must still comply with the Building Code, and certain types of building work, such as restricted building work, must be carried out or supervised by a licensed building practitioner.

Following the repeal of The Fencing of Swimming Pools Act 1987 the requirements to install barriers around pools, to protect young children from the dangers of unfenced swimming pools, is now covered under the Building Act and Clause F9 of the Building Code.

The Act and Building Code set out the types of barriers/fencing or other requirements you need to have around your pool. It is a requirement that all spa pools, hot tubs and swimming pools in our district are registered and inspected every three years.

Pools such as blow-up type pools, even if temporary, require barriers to safeguard children under five years old. Some spa type pools with lockable lids are exempt from the requirements for fences certain however, other criteria may still apply.

Under the Building Act 2004 Council is required to assess the earthquake risk of certain buildings within the district.  Buildings that are determined to be earthquake-prone are required to be strengthened or demolished within specific timeframes set by the legislation. 

In general, this only applies to non-residential buildings (commercial or industrial) and some larger residential buildings.

BuiltReady is a voluntary offsite manufacturer certification scheme that has been designed to support innovative and efficient building methods, giving consumers more building choices and reduced building and consenting times and costs.

BuiltReady is suitable for offsite manufacturers based in New Zealand and overseas that design (where relevant), manufacture, assemble, transport and install modular components.

A modular component that has a certificate that was issued by a registered manufacturer must be accepted by BCAs as meeting the requirements of the Building Code when used in accordance with details on the certificate.

The BCA has up to 10-working days from the date of acceptance to either issue or refuse your BuiltReady application. They may need to contact you for further information on aspects of your application during the assessment process.

If this is the case, they will ‘stop the clock’ and will not continue processing your application until they receive the requested additional information. They will ‘restart the clock’ and continue assessing your application when they receive the information.

For more information see the  MBIE website or Building Act 2004, Sections 272–272ZJ.

Follow the process for a normal building consent.