Determination 2009/60: Reuse of existing barriers for a house

This determination arose from a dispute between the building consent authority (BCA) and a homeowner about whether the existing barriers to a deck and a walkway adjacent to remedial cladding work could be reused in their present form. The BCA refused to issue a building consent for the house that included the reuse of the existing barriers. The owner applied for the determination.


The house was built in 1990. The building work was for the partial re-cladding of the house and involved the removal, minor alteration, and re-fixing of two stainless steel barriers immediately adjacent to the re-cladding. The barriers had widely spaced balusters with no infill between and there were other similar barriers used elsewhere in the house. The requirements of the Building Code for barriers to restrict the passage of children under six did not come into effect until December 1994.

The owner queried whether the reuse of the barriers constituted building work and, if so, whether section 112 of the Building Act 2004 applied to such work.

The BCA was of the opinion that as the barriers were to be modified, section 112 did not apply, and that the barriers should be modified to reduce the size of the openings, in order to comply with the current requirements of the Building Code.


Section 112 says that a BCA must not grant a consent for the alteration of an existing building, unless after the alteration the building will comply as nearly as is reasonably practicable with the Building Code with respect to means of escape from fire and access and facilities for persons with disabilities, but that it must continue to comply with the other provisions of the Building Code to at least the same extent as before the alteration.

As the building work was for work in a detached dwelling, while the provisions for means of escape from fire applied in terms of section 112 (in this instance with respect to the provision of smoke alarms), the provisions for access and facilities for persons with disabilities did not.

The determination considered that the recladding work must comply fully with the requirements of the Building Code. It was inappropriate to apply section 112 to the recladding work because, if section 112 was applied, it could be argued that the recladding work need only meet the requirements of the Building Code to the same extent as the defective elements being replaced.

The determination took the view that section 112 should be applied to the whole building as altered, which in this instance included the barriers themselves. It was determined that the deck barriers could be reinstalled in their current form for the following reasons.

  • The barriers were incidental to the remedial work being undertaken.
  • The barriers themselves were subject to only minor alterations.
  • The barriers were to be reinstated in exactly the same location as before.
  • The barriers were Code-compliant to the same extent as before the alteration.
  • The decks themselves were not to be altered or extended.

Although it was found that the barriers could be re-installed in their present form, it was strongly suggested that the applicant take steps to improve their safety features.

Determination 2008/4 dealt with a similar situation involving barriers to a bridge that was being widened, but which required the barriers to the bridge to be modified. Determination 2009/60 did not consider the outcome of the earlier determination was relevant because the bridge barriers were an integral part of the work to widen the bridge.

The decision

The determination reversed the decision of the BCA to refuse to issue the building consent.



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