Determinations issued

Concrete house.

Determination 2009/6

Regarding the issuing of a code compliance certificate for a house constructed of pre-cast concrete panels

This determination arose from the decision of a building consent authority (BCA) to issue a code compliance certificate (CCC) for a house built of pre-cast concrete panels. The BCA applied for the determination because it wished to withdraw the CCC as it no longer believed the work was Code compliant. The other party was the owner; the builder was included as a person with an interest in the matter.


A building consent was granted for the house and the BCA completed various inspections during construction. The builder issued an undated producer statement for construction review, which included the construction of the pre-cast concrete wall panels. The statement, which was accepted by the BCA, said that the pre-cast panels, among other items, had been constructed in accordance with the building consent. The BCA then issued the CCC.

The owner subsequently noticed a number of defects in the pre-cast panels and other parts of the house, and engaged a number of experts to inspect it. Both the owner and the applicant accepted that the house did not comply with the Building Code.

The power to withdraw a code compliance certificate

The determination considered whether a BCA had the power to withdraw a CCC, or whether this power could be exercised only by the Department by way of a determination.

The determination cited a recent High Court case in which a territorial authority purported to withdraw a CCC. The Judge in that case said 'there is no provision in the Building Act 2004 permitting the rescission of a [CCC].' While this was an observation made by the Judge and not a binding statement on the Department, it was taken account of in the determination. The determination took the view that the only way a territorial authority, or BCA, could withdraw a CCC was by way of a determination.

The compliance with the building consent

The building consent required a registered engineer to observe the construction of the pre-cast panels. This condition was not met, as the producer statement was issued by the builder. While producer statements can assist BCAs to assess Code compliance, such documents have little value unless they are provided by a suitably qualified person with expertise in the field to which the particular producer statement relates.

The determination noted there was no dispute between the parties that elements of the building were not Code compliant, and it was clear the house did not comply with the Building Code. Further, there were various differences between the consent documents and what was built, especially with respect to the pre-cast panels. The determination noted that these inconsistencies should not have gone undetected by the BCA.

In summary, the determination found that the CCC was issued for work that was neither Code compliant, nor built in accordance with the building consent. The BCA should not have issued a CCC for the house.

The decision

In accordance with section 188 of the Act, it was determined that:

  • a) the BCA's decision to issue a CCC for the building was reversed, and
  • b) the house did not comply with the building consent, nor with the Building Code.

Determination 2009/1

The Code compliance of alterations to a private hospital building

The matter for determination was the Code compliance of alterations that changed the use of a day-stay hospital. The parties were the building owner, the building consent authority (BCA), the New Zealand Fire Service, and the tenants who run the hospital and who commissioned the alterations. The building owner applied for the determination.


The alterations established a ground floor theatre suite, a recovery area, an administration area, ancillary spaces, and a first-floor plant room over the theatre suite ('the tenancy'). The BCA issued a building consent in 2001, and later a code compliance certificate, for the alterations on the basis that the building would be used for day-stay patients only.

In 2006 the tenants advised the BCA that it wished to operate the hospital with overnight stay. Following extensive discussions between the tenant, the building owner, and the BCA, supported by numerous consultant reports, the BCA issued a building consent in 2007 that required the fire systems to be upgraded including the installation of a sprinkler system.

The building owner objected to the issuing of the 2007 building consent on the grounds that the building fell short of complying 'as nearly as is reasonably practicable' with the Building Code with respect to fire safety. The building owner's main areas of concern were the:

  • use of evacuation slings as a secondary means of escape from the theatres
  • theatres not being fire or smoke separated from each other and the plant room
  • recovery areas being in the same firecell as other use areas
  • requirement that a 12-patient limit be placed on the tenancy.


The determination accepted that a sacrifice/benefit analysis needed to be conducted about whether the tenancy complied 'as nearly as is reasonably practicable' as required by the Building Act and considered the areas of concern raised by the building owner.

Secondary means of escape from the theatres

The tenants initially proposed that evacuation slings be used for the emergency evacuation of patients from the theatres to overcome the lack of direct access to a place of safety (in this case the outside). The tenants then proposed an alternative method using ambulance gurneys.

The determination considered neither method was acceptable and decided that the existing egress route must be altered to accommodate theatre trolleys. The benefits from the improved egress far outweighed the estimated cost for carrying out the work.

Fire separation within the tenancy

The fire separation between the theatres and rest of the tenancy was found to be adequate, and the improved egress from the theatres would negate the requirement to fire-rate the walls between individual theatres. While the fire separation of the plant room from the theatres did not achieve the required minimum, the other building features meant the separation was acceptable as an alternative solution. It was accepted that sufficient time would be available to stabilise a patient for evacuation who was undergoing surgery. The determination considered the fire separation between the recovery areas and rest of the tenancy was adequate.

Twelve-patient limit

The tenancy had more occupants than previously proposed by the tenants. The determination considered it did not matter whether the occupants were able to walk or not, their presence alone exceeded the limits of the relevant Compliance Document (in this case C/AS1) used to design the tenancy's fire features.

Separation of the recovery areas into suites containing no more than 12 occupants (whether the occupants were in beds or not) was necessary to meet the requirements of C/AS1. The estimated cost to fire-separate the two recovery areas did not outweigh the benefits from the provision of fire separation.

The decision

It was determined that the tenancy, as presently constructed, did not comply as nearly as is reasonably practicable with Clause C of the Building Code.

These are summaries only. The full determinations (along with all other determinations issued) can be viewed on our website.