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Recent Determinations

Posted: 23 March 2016

Summary of Determinations issued in 2015.


The total number of applications continues to reflect the decrease in determination applications being received for legacy1 building work since the peak of 2004-2010. However, this is being offset by a greater number of applications received involving other issues, lifting “non-legacy” determinations to numbers significantly higher than pre-2004 levels and continuing to trend upward.

The issues covered by determinations are becoming increasingly broad and complex, with a larger proportion dealing with legal or technical matters that are significant or novel.

Hot topics

Canterbury earthquake sequence – ongoing.

Determinations issued involving matters arising directly as a result of the Canterbury Earthquake Sequence made up four of the 85 determinations in 2015. Topics involved the issuing of dangerous building notices relating to geotechnical hazards (in one case the failure to issue such a notice), with the remainder concerning compliance with the Building Code of repair2 to earthquake damaged houses or the extent to which compliance was required.

Earthquake-prone building notices – new

2014 and 2015 have seen four applications made in respect of councils issuing earthquake-prone building notices. In the two 2014 cases the decision of the councils to issue the notice was reversed. The reasons for reversal were case-dependent, however, an analysis of the engineering assessments and the councils’ earthquake-prone building policies were commonly undertaken.

It is anticipated that this topic will continue to feature in the coming year as Councils implement their earthquake-prone building policies and more notices are issued and disputed by owners. In addition, it is anticipated that the Building (Earthquake-prone Buildings) Amendment Bill3 will be passed in 2016, though there is likely to be a lag before disputes arising from the application of the new Regulations come to determination.

Whether a vehicle is a building - new

Three determinations were made in 2015 that involved the interpretation of “building” under section 8(1)(b)(iii), which includes vehicles that are immovable and occupied on a permanent or long-term basis.  The determinations have established a method of analysis to assist councils in making this decision; however, given a growing interest in small and “tiny houses"4 and an increase in the manufacture of relocatable houses it is likely that more applications on this issue will be received in the coming year.

Fire safety – ongoing

Two applications involved establishing the extent of compliance required when the building work was an alteration to an existing building.

In 2014, three applications turned on which was the correct Risk Group that would apply; no new applications were received in 2015 that centred on this issue. Two determinations were made in 2015 that involved material groups and whether a modification to the Building Code could be granted. The determination granted a modification in both cases.

Significant and novel issues

Significant and novel issues often arise in determinations when the methodology for establishing compliance is unclear or a council has taken the view that an alternative solution does not comply with the Building Code.

Topics that have arisen in determinations issued in 2015 included:

  • The application of importance levels in the seismic loading standard AS/NZS 1170 as a means of compliance with B1/VM1. (2015/059)
  • The assessment required under section 115 when there is a change of use to only part of a building, particularly how the phrase “the building, in its new use” in section 115 applies and in respect of Building Code clause B1 Structure. The determination also considered information provided by way of an Initial Seismic Assessment (ISA) in relation to that assessment, and the separate functions performed by authorities under section 112 and section 115. (2015/070)
  • Whether separate residential units within one structure can be considered three separate buildings for the purpose of section 100, and whether a compliance schedule is required for lifts serving the residential units that are located within three-dimensional freehold titles. (2015/074)
  • The acoustic performance of apartment entry doors to a retirement village building (2015/004), and whether a building used as retirement care can be classed as “specialised accommodation” for the purpose of granting a modification in respect of acoustic performance (2015/007)
  • Whether there is evidence currently available that would indicate whether asphalt shingles used as part of a rainwater harvesting system will leach contaminants or
  • particulates to an extent that would make the collected water unsuitable for human consumption (2015/056)
  • The means by which compliance with Clause B2.3.1 could be established for laminated veneer lumber CCA treated in accordance with AS1604.4:2012 and used as structural framing members in situations where hazard class H3.2 or less would be used. (2015/079)
  • The likelihood of damage to an adjacent property from additional load in relation to an underground water system (spring / puna). (2015/052)
  • Compliance of proposed wall and roof repairs in respect of interstitial condensation, taking into account the expected occupancy of the units and factors affecting ventilation, the site and location, the past history of damage to the buildings, and the provisions proposed for reducing the risk of condensation. (2015/057)

Historical context and trends
Applications received and processed

Graph showing determination applications 2015

2015 saw a slight lift from the previous year, with 100 applications processed (2014: 75) and 85 determinations issued (2014: 65).

Legacy determinations

The number of applications dealing with legacy building work appears to be starting to plateau after trending downward from the 2004-2010 peak. In 2015, 27 out of 85 determinations issued (32 per cent) were legacy determinations. No applications were made specifically for durability modifications and no durability modifications were made as part of any determination decisions, signalling that this issue is largely being dealt with directly by councils. (See the following for a breakdown of legacy categories.)

Legacy and non-legacy determinations

Principle categories5  – breakdown for 2015

Legacy categories 2015no.%
>Weathertightness 22 26
Weathertightness (remedial work - legacy) 1 1
Durability (modification) 0 0
Building Certifier 3 4

Non-legacy categories

In the categories other than legacy, a significant proportion of the determinations issued in 2015 involved disputes regarding compliance with the Building Code, either how to establish compliance or whether building work that had been done was compliant.
Fire safety was a prominent single issue this year with determinations used as a means by which the industry could gain clarity on the use and interpretation of the compliance documents (the Acceptable Solutions C/AS1 to C/AS7 effective from July 2012) and the extent to which buildings being altered must comply.

Code Clause 
Multiple/various clauses 10
B1 – Structure *8
B2 – Durability (timber) 2
C – Fire Safety 7
C– Fire Safety - single means of escape 1
E2 – Weathertightness (cladding/not legacy) 6
F4 – Pool Safety 4
E1 – Surface water (nuisance) 1
Total 41

* Three of the B1 Structure determinations related to repairs resulting from damage caused by the Canterbury Earthquake Sequence.

The remaining categories for which determinations were issued in 2015 are as follows:

Building Controls process 6
Dangerous building 3
Earthquake-prone building 2
Building Act Interpretation 7
Natural Hazards 2


  • The principle category “Building Controls Process” previously included notices issued under section 124 for dangerous, insanitary, affected, or earthquake-prone buildings. Given that councils are now issuing more of these notices and consequently more applications are being received when the notice is disputed, these are now being recorded separately.
  • Building Controls Process remained proportionately high, with half of these relating to alterations and disputes regarding the extent to which the building work and the building after the alteration is required to comply.
  • Three of the six determinations involving interpretation of the Building Act related to a dispute as to whether structures that the owners considered were vehicles fell within the definition of a building under the Building Act. It is expected that more applications of this nature will be received in 2016.
  • While no disability access-related determinations were issued in 2015, one application was received for access to a pool and it is anticipated this will be issued early in 2016.

Parties involved: The applicants

Eight-two per cent of all applicants for determinations issued in 2015 were the owner of the subject building, seven per cent were the council, nine per cent were LBPs involved with the building work, and one per cent (one application) was from a neighbour.


1. The term ‘legacy’ is used to refer to determinations that involve dwellings consented under the Building Act 1991 and for which no code compliance certificate was obtained. The common issues for these types of determinations are weathertightness concerns, involvement of building certifiers, and modifications of the durability clause B2.3.1

2. This included repairs that had already been carried out and proposed repairs, and building work that was carried out under Schedule 1 without building consent being obtained.

3. The changes including varying the timeframes for identifying and strengthening earthquake-prone buildings dependent on the seismic risk of the area, reducing the scope of buildings to which it applies, prioritising some buildings, and requiring earlier upgrades when substantial alterations are undertaken.

4. The tiny house or small house movement is a description for the architectural and social movement that advocates living in small homes.  The distinction in size is generally less than 93m2 (a “small house”) and less than 37m2 (a “tiny house”).

5. Individual determinations may (and often do) deal with issues across more than one code clause or section of the Act.  For classification purposes, each determination is recorded under a single ‘principle category’ that best represents the main issue to be resolved.

This information is published by the Ministry of Business, Innovation and Employment’s Chief Executive. It is a general guide only and, if used, does not relieve any person of the obligation to consider any matter to which the information relates according to the circumstances of the particular case. Expert advice may be required in specific circumstances. Where this information relates to assisting people: