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Codewords Issue 73

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29 July 2016

In this issue:

Welcome to Codewords

Construction activity continues at unprecedented levels around the country – builders will be happy that the weather continues to stay unseasonably mild.

In June we welcomed Anna Butler as General Manager of Building System Performance. This is a critical position in MBIE because the building system provides a key foundation to our economy. Anna has a proven track record in providing strong leadership and building effective teams that deliver. She was previously General Manager Housing, Income Support and Employment at the Ministry of Social Development and has played a pivotal role in major reform programmes that involved significant stakeholder engagement. 

We will also shortly welcome Peter Sparrow to provide additional technical support to our senior management team, as a Director of Building System Performance. Peter was most recently Director, Building Control and City Rebuild at Christchurch City Council. He’s had a strong and long history with MBIE, as manager of our Consent Authority Capability and Performance team for several years and, before that, Senior Adviser within the Department of Building and Housing. 

On a slightly different note, I’d like to acknowledge our relatively smooth transition to the new building.govt.nz website. Visitors are more satisfied, compared to the old site, especially those using tablets and phones. Our analysis shows that the 50,000 people using the site each month are staying longer during visits and not bouncing around or off the site but settling on pages where they get what they need. Of those users, almost 50 percent are new to the site each month.

The changes we’ve made should ensure more New Zealanders are better able to understand their rights and obligations – leading to safer, healthier, more durable buildings for everyone. 

We are making ongoing improvements and fixes to the site, as well as the ‘business as usual’ updates. You, our audience, are sometimes the first people to come across a problem and we are keen to help you and fix things too. It’s important to note that you might not always find what you are looking for, sometimes because there is a problem and sometimes because you are approaching it from an angle we haven’t anticipated. 

Email info@building.govt.nz if you have any concerns or questions.

This Codewords includes an update on pool fencing, as well as reminders about the ban on installing foil insulation and consultation on proposed changes to various Acceptable Solutions and Verification Methods.

I’d also like to draw your attention to the release this week of valuable information on projected construction growth. This is explained in detail in the building and construction forecasting until 2021 media release on our MBIE Corporate website.

Code and technical changes

Mandatory council inspection of pools proposed

Proposed changes to the fencing of swimming pools legislation include mandatory pool inspections, changes to spa pool barrier requirements and new enforcement powers for territorial authorities (councils).

The Building (Pools) Amendment Bill currently before Parliament aims to improve safety for young children and remove unnecessary compliance costs. If passed, it will amend the Building Act 2004 and repeal the Fencing of Swimming Pools Act 1987. 

The Bill proposes that territorial authorities (councils) will have to inspect all residential pools in their district every three years. Inspections have been shown to improve compliance and we estimate that mandatory inspections would reduce a further six drownings per decade.

Another significant proposal in the Bill is that spa pools and hot tubs with safety covers would no longer require a fence. This change is not expected to compromise safety because spa pools with safety covers are estimated to pose a low drowning risk.

If passed, the Bill would create a more effective range of enforcement tools for territorial authorities – notices to fix and infringement notices, as well as court prosecutions. This improves on the existing provisions where the only enforcement is prosecution.

These changes would take effect after the Bill has been passed by Parliament (it's currently at the second reading in the legislative process). In the meantime territorial authorities must continue to operate under the current law.

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Building consent exemptions clarified

An amendment to building consent exemptions means all carports can meet the exemption requirements (free-standing and attached). We also explain the 10sqm rule relating to single-storey detached buildings.

Exemption 18 now covers free-standing as well as attached carports

Clause 18 (more commonly known as exemption 18) of Schedule 1, which deals with carports, was amended by the Building (Exempt Building Work) Order 2016. We have also amended our guidance document ‘Building work that does not require a building consent’ to reflect this change.

From 30 June 2016, you don’t need building consent for a carport, whether free-standing or attached, that is on the ground level and no greater than 20m2 in floor area. Previously, the exemption referred only to attached carports.

How the 10m2 rule applies (in relation to single-storey detached buildings)

A question often asked is “how is the 10m2 measured for exemption 3 (single-storey detached buildings)?”. The short answer is, by the net floor area.

This measurement is reflected in some of the examples provided in MBIE’s guidance document, ‘Building work that does not require a building consent’.

You can also find a definition for the term ‘net floor area’ in the document’s glossary. There it is described as ‘The total usable floor area in a building, measured to the inside of the enclosing walls’ (see page 107).

Building work that does not require a building consent  

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Building Code reference document changes proposed

Consultation is open on proposed changes to a number of Building Code reference documents - Acceptable Solutions and Verification Methods.

The proposal involves:

  • amending 32 existing Acceptable Solutions and Verification Methods
  • updating references to Standards and industry documents that are cited in Acceptable Solutions and Verification Methods
  • introducing two new Acceptable Solutions: E2/AS4 for Torch-on Membrane Systems for Roofs and Decks, and E3/AS2 for Internal Wet Area Membranes.

The proposed changes are intended to ensure these Building Code reference documents reflect the latest industry developments, research and building practice. 

The consultation runs from 19 July 2016 until 31 August 2016.

You can read about the proposed changes and find out how to participate in the consultation for amending Acceptable Solutions and Verification Methods 2016 on the MBIE Corporate website.

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Increased resilience with geotechnical database

New Zealand Geotechnical Database is a searchable, web-based repository of geotechnical data uploaded by various individuals, agencies and clients with access to the database.

Shared data, shared benefits – that's the philosophy behind an initiative to pool various sources of geotechnical information held across New Zealand into one place. Under MBIE's stewardship, in partnership with the Earthquake Commission (EQC), the New Zealand Geotechnical Database went live in June.

Building Controls Update 187 has more information about accessing the database.

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Ban on foil insulation now in force

Ban now in place on retrofitting or repairing foil insulation.

A ban on retrofitting or repairing foil insulation in residential properties came into force on 1 July 2016, to reduce the safety risks associated with installing this product. 

The ban, declared by the Chief Executive of MBIE, applies to the following building methods:

  • the installation of foil insulation into residential buildings with an existing electrical installation (retrofitting foil insulation)
  • the repair of foil insulation in residential buildings with an existing electrical installation (such as stapling ripped or damaged foil back onto the floor joists of a building).

Building Controls Update 188 announced the ban and explains it further

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LBP knowledge link

LBP Registrar’s update- the good, the bad and the mandatory

LBP Registrar’s update, from the Registrar Building Practitioner Licensing, Paul Hobbs.

Welcome to the LBP section of Codewords 73. This issue I’ve included a bit of everything – the good, the bad and the mandatory.  

The good

The LBP scheme has just passed a significant milestone - issuing its 30,000th licence! 

Peter Watson of Canterbury is LBP number 30,000. Peter works for H&R Garlick Builders, a Canterbury-based residential building company that is also a member of the Registered Master Builders Association. Peter is 24 years old and a well-qualified applicant, holding a level four qualification in carpentry. He is also our profiled LBP later in this issue of Codewords.

Licensing the 30,000th LBP signifies a noteworthy milestone in the scheme's nine-year existence. Growth has been particularly strong since 2012, when the scheme became compulsory for people doing restricted building work. Almost 20,000 licenses were issued in the four-year period since then.

We currently have a total of 24,850 individual LBPs, the number fluctuating as people move into and out of the scheme over time, but increasing  overall. The increase is good news in light of heightened building activity. 

See recent news on building and construction forecasting on the MBIE Corporate website.

LBP number 30,000 Peter Watson receives a commemorative certificate from Hon Minister Nick Smith, accompanied by LBP Registrar Paul Hobbs. Certificate printed on 18mm CD untreated plywood.To mark the milestone, Hon Minister Nick Smith (centre) presents LBP number 30,000, Peter Watson, with a commemorative certificate printed on 18mm CD untreated plywood. LBP Registrar Paul Hobbs, at right, attended the presentation.

The bad

In other news, the Building Practitioners Board (the Board) has cancelled the licence of Wairarapa Licensed Building Practitioner (LBP) Cecil Sinclair. The disciplinary penalty handed down by the Board in this instance represents the firmest action taken by the Board to date. You can read more about this in a article below.

It's also worth pointing out that the Board is still receiving far too many complaints about LBPs not providing records of work (RoWs). As a rule of thumb, a RoW should be provided to both the owner and council (the Territorial Authority) once restricted building work has been completed.

Restricted building work has more on Records of Work.

The mandatory

We  update you on changes to glass barrier requirements. Glass barriers are now commonplace on decks and around stairs, so the time is right to update information in this space about design and construction.

We've also included a timely reminder for those entering into building contracts (hopefully you're all aware that you need a contract for any work costing $30,000 or more, including GST). Check that you are up with changes that kicked in last January, tightening up requirements to protect the consumer.

Good luck, apprentices

Registered Master Builders apprentice of the year 2016 logo.

Good luck to all apprentices competing for Registered Master Builders’ 2016 Apprentice of the Year. Now in its tenth year, we support this event to celebrate and reward exceptional new talent and skills leadership. I’m looking forward to 4 November, when I’ll join others in the industry to judge the national finals.  

Watch a video about the competition

As the weather gets colder remember to watch out for winter slip hazards on site. Numb or frozen appendages can also be a cause for concern-so keep safe!

Paul Hobbs
Registrar Building Practitioner Licensing

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Builder loses LBP status due to tax evasion convictions

A Wairarapa builder has lost his status as a licensed building practitioner (LBP), after the Building Practitioners Board learnt of his convictions on 91 charges of tax evasion.

The Board heard Cecil Sinclair’s tax evasion spanned a ten-year period, from 2001 to 2011. Mr Sinclair has a further 11 convictions in his criminal history going back as far as 1967, including five dishonesty offences.

The Board held that Mr Sinclair’s convictions reflected adversely on his fitness to carry out and supervise building work, which often involves handling client funds or entering into credit arrangements.

Registrar of Building Practitioner Licensing Paul Hobbs says the Board’s decision should send a clear message that dishonest or fraudulent behaviour is not acceptable in today’s building industry.

“It’s important consumers are able to feel confident in the integrity of their licensed builder, and decisions such as this one help protect the strength and reputation of the industry as it grows,” he said.

Anyone working in the building industry must disclose certain information to clients whose work is valued at $30,000 or more (including GST), or if the client asks for it. This is in the form of a disclosure statement and also in a contract.

Know your stuff later in this issue has more on this subject.

Without LBP status, Mr Sinclair can no longer do or supervise restricted building work. This is work that is critical to the structure and durability of a residential building.

As part of the ruling, Mr Sinclair cannot be re-licensed as an LBP for at least three years, the longest period of time a person has been banned from relicensing. His name has been removed from the LBP register and he has been ordered to pay costs.

This decision follows other significant Board decisions in 2015, where the Board took similar steps to discipline LBPs. Read about them on the MBIE Corporate website:

Licensed Building Practitioner held to account for poor workmanship – May 2015

Action taken against poor building work – July 2015

You can also read about making complaints about an LBP on the LBP website.

Restricted building work explains the types of building work that must be done by an LBP.

Lessons learnt

As with most other occupational licensing regimes operating in the building sector, the LBP scheme requires individuals to act in a fit and proper manner. Where LBPs have not upheld this standard they can expect to be held to account.  

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Overview of recent glass barrier changes

Designers need to be aware of an amendment to glass barrier requirements in Acceptable Solution B1/AS1. It now cites the glass barrier requirements in section 22 of NZS 4223.3:2016 Glazing in buildings – Part 3: ‘Human impact safety requirements’.

Article is relevant to LBP Skills Maintenance and the Design licence class.Article is relevant to LBP Skills Maintenance and the Design licence class.

Designers should note a recent amendment to glass barrier requirements, intended to create a ‘second line of defence’.

The amendment means that Acceptable Solution B1/AS1 now cites the glass barrier requirements in section 22 of NZS 4223.3:2016 Glazing in buildings – Part 3: 'Human impact safety requirements’.

The 1999 version of Part 3 gave thicknesses for glass in barriers but no details of the construction of the whole barrier.

The changes came into effect on 1 June 2016 by way of Amendment 13 to B1/AS1.

The figure below shows an example barrier from NZS4223.3:2016.

This is a figure of an example barrier from NZS4223.3:2016.This shows an example barrier from NZS4223.3:2016.

NZS 4223.3:2016 has diagrams for nine different barrier configurations that incorporate glass. It also provides the necessary glass thicknesses for different types of safety glass.

Where these barriers have an unsupported glass top edge there must be an interlinking rail of some type. It must be strong enough to provide reasonable support for a person impacting the barrier should a glass pane fail. The interlinking rail needs to be either:

  • at the top edge (1m or 1100mm height)
  • or alongside it. 

The objective is to provide a ‘second line of defence’ because, while glass barriers can be very strong, glass is a brittle material and does not break or fail in a ductile way.

The interlinking rail needs significant bending strength as it must be able to span the gap that would result from any individual pane failing or being broken. The frame itself, as well as any necessary interlinking rail, will still require specific structural design.

Building consent applications for glass barriers:

  • accepted before 1 June 2016 may use the old version of B1/AS1 (Amendment 12)
  • made on or after 1 June 2016 must comply with the new barrier requirements in Amendment 13 if B1/AS1 is used, or achieve an equivalent level of performance using an alternative solution.
  • should include appropriate documentation, showing compliance with the barrier requirements in B1/AS1 Amendment 13, and sourced from barrier suppliers or suitably qualified engineers.

Existing glass barriers do not need to be upgraded to comply with the new requirements, although it may be possible to retrofit structural glass barriers to comply with NZS 4223.3:2016.

Only section 22 of NZS 4223.3:2016 came into force in B1/AS1 on 1 June 2016. Other sections of NZS 4223.3:2016 are not part of B1/AS1 Amendment 13, but may be used as part of an alternative solution.

BC Update 185 has information about upcoming consultation on the change.

Quiz

  1. When did amendment 13 to B1/AS1 citing NZS4223 Part 3 come into force?
  2. If you now design or specify a propriety glass barrier that does not meet the recently amended B1/AS1 requirements, what is your other compliance pathway?
  3. What is the purpose of providing an ‘interlinking rail’ as part of the barrier assembly?
  4. Do existing barriers have to be upgraded to comply with the new requirements?

View the answers

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LBP profile on Peter Watson

Builder Peter Watson is a lucky man, the kind of guy who wins lucky draw prizes and raffles.

When builder Peter Watson got the call to say he was to receive the 30,000th LBP licence to be issued, he wasn’t surprised.

“I always seem to be lucky with this kind of stuff. I told the boys on site and we all had a good laugh about it,” said Peter, who had only recently traded a pair of gumboots for steel caps.

“I was working on a sheep and beef farm when the Christchurch earthquake hit. I thought it would be a good time to get my trade and make a difference, so I moved to Christchurch.”

“I took up carpentry – I really like building things. Carpentry is the sort of trade you get to do a bit of everything, rather than concentrating on the one thing. One day you might be working on a roof, the next on a staircase, the next cabinetry – it’s a different thing every day." 

Peter finished his carpentry apprenticeship a year and a half ago, and currently works for Christchurch building company H&R Garlick.

“Having finished my apprenticeship and taking my work a bit more seriously, getting my LBP licence seemed like a logical next step. If I decide to branch out in my own business in the future, it will be really important too.

“I’m still pretty new to the trade so I want more people to teach me things! Building is the kind of industry where you are constantly learning from others – smarter, more efficient ways of doing things – and for the moment I am enjoying soaking up as much information as I can.”

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Know your stuff: Consumer protection

Are you up with the play on how to meet consumer protection measures relating to residential building work?

Article is relevant to LBP Skills Maintenance and all licence classes. Article is relevant to LBP Skills Maintenance and all licence classes.

If you do residential building work, you should know that all agreements entered into from 1 January 2015 need to meet the consumer protection requirements (it’s Part 4A of the Building Act).

This means you may need to provide your client with certain information, including:

  • disclosure statement and checklist
  • written contract
  • post-construction information.

Firstly, the Act says other laws are not affected by these new provisions and may still apply to your work (for example, the Consumer Guarantees Act).        

Secondly, the measures only apply to:

  • someone who contracts directly with a client (not someone who subcontracts to, or is an employee of, a contractor)
  • residential building work (meaning work for, or in connection with, the construction, alteration, demolition or removal of a building).

Thirdly, the consumer protection measures set out in the Act do not apply to design work by itself (but may apply to a project manager who has engaged someone to prepare drawings).

These points outline general requirements that may apply to you. If a dispute arises from a contract, you should seek legal advice specific to your situation.

Disclosure statement and checklist

Both must be provided to a client if the building work will be worth $30,000 or more (including GST), or if the client asks for it. We suggest keeping your disclosure statement up-to-date so you can easily provide it when needed.

Consumer protection – disclosure and checklist has the official versions of these documents. You cannot alter them, except to add your own disclosure information.

Written contract

A written contract is mandatory for all residential building work with a value of $30,000 or more (including GST). 

It’s a good idea to have a written contract for any building work, even if it’s below the $30,000 threshold. That way you have a clearer path to resolve any disputes.

Contracts for your building work outlines the information you need to include in a contract, as prescribed in the regulations.

If you don’t include all of the required information, some of the terms are implied by the Act. This means the Act says that they still apply to your contract even if they are not stated in the contract.

Contracts and problems that may occur will help you see potential pitfalls.

Post-construction information

You also need to provide your client with information once the work is completed, regardless of the value of the work.

You must provide your client with:

  • a copy of any current policy of insurance that you hold for the building work being done (however, not a policy that expires on completion of the work)
  • a copy of any guarantees or warranties that apply to materials or services that are part of the building work
  • information about materials and methods required to maintain any element of the building work to the durability requirements of the Building Code.

In each of these instances, failure to provide these documents to clients can result in an infringement offence and a fee of $500.

Contractors: Do your homework has more information about other elements of the provisions (such as the implied warranty under the Act or the dispute resolution suggestions)

Building or renovating? Know your rights covers the same information but is written for homeowners.

Quiz

1   Does the $30,000 value of the work include or exclude GST?

2   What kind of work do these consumer protection measures cover?

3   Who do these measures apply to on a project?

  • the main contractor on a multi-storey commercial project
  • a plumber working for the main contractor
  • the homeowner's best friend
  • anyone who contracts directly to the client to do residential building work.

4   You have to have a written contract for all building work. True or false?

5   Can you break down the cost of a job into smaller amounts (like $20,000) multiple times to get around these provisions?

View the answers

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Recent determinations

Determination 2016/018 – Summary

The determination considered whether the construction of the two-cell rammed earth building (earthship) was exempt under Schedule 1 and whether the Building Consent Authority (BCA) was correct to issue a notice to fix.

The applicants were the owners, and the other party was the BCA. The BCA had issued a notice to fix for the construction of the earthship without building consent having been obtained; the issue of the notice was not in dispute.  The remedy recommended in the notice was that a determination be sought, and that failing this, the building must be removed. 

The building

The owners began building a single cell U-shaped earthship, but during construction opted to add a second cell.  The cells share drainage and earth berms, but have separate structural walls and roofs.  The “open end” of each U-shaped cell is approximately 3m, with the depth less than 3.5m.  Construction was reinforced rammed earth and tyre walls, a reinforced concrete arched roof, and a mix of glass bottle and aluminium cans set in concrete to close in the U-shape.  Each cell has a timber mezzanine floor.

The intended use of the earthship at the time of construction was for storage of tools and food, and to provide shelter while the owners worked on the property.  The owner also considered it may have a future use as sleeping accommodation. The earthship was to test the construction method before the owners considered constructing a dwelling using the same method.

Discussion

In issuing the notice to fix the BCA stated that it would be unable to issue a certificate of acceptance because the building work had been completed and was ‘covered up’ so an assessment of compliance could not be made.  The determination noted that a certificate of acceptance for building work carried out without building consent when consent was required almost always involves building elements that are concealed and unable to be inspected.  Previous determinations were referred to that discuss the evidence base for issuing certificates of acceptance.

The notice to fix also included in the remedy that a determination be applied for.  An appropriate remedy would have been for the owners to apply for a certificate of acceptance and the BCA to make an assessment as to compliance with the Building Code; any application for a determination, if required, would follow such an assessment and not precede it.

The determination set out the steps that the parties involved could take to regularise the building work, noting that it was for the owners to establish the intended use of the building and compliance with the relevant clauses of the Building Code.  The determination referred to a set of New Zealand Standards for earth buildings, noting that this may assist the owners in understanding the sort of information that would be required to support an application for a certificate of acceptance.

The decision

The determination confirmed the BCA was correct to issue a notice to fix for construction of the earthship without building consent when consent was required, but modified the notice to remove reference to an application for a determination and to provide for the application of a certificate of acceptance as a remedy.

Determination 2016/018 in full.

Previous determinations is a register of all previous determinations.

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Determination 2016/010 – Summary

The determination considered whether the houseboat is a ‘building’ for the purposes of the Building Act and whether it comes under one of the exceptions listed under section 9.

This determination considers the Building Consent Authority’s exercise of its powers of decision in issuing a notice to fix for a houseboat used as temporary accommodation.  The determination turned on whether the houseboat is a building under the Building Act 2004 and provides for some guidance around when a boat falls within the building regulatory regime.

The applicant was the owner, and the other party was the Building Consent Authority (BCA). The BCA had issued a notice to fix for the houseboat being constructed without building consent first being obtained.

The houseboat

The houseboat was constructed on four rota-moulded pontoons 6m long and 450mm in diameter.  A combination of timber and stainless steel strapping connect the pontoons.  The “deck” or building platform on the pontoons is constructed from tongue and groove timber, and the walls are corrugated iron attached to laminated timber beams.  

The houseboat is fitted with a kitchen bench and sink, a shower unit, vanity and toilet.  There is an external water heater, along with plumbing for kitchen, toilet and bathroom water supply and waste pipes.  It was being used as temporary accommodation for family members and was located on dry land.

Discussion

The determination considered the houseboat is a structure, and was therefore a ‘building’ for the purpose of the Act unless it came within one of the exceptions listed in section 9 as a “vessel, boat, ferry or craft used in navigation…”.

The Act does not require a means of propulsion for the houseboat to be considered a ‘vessel’ or ‘boat’, and it was accepted that the houseboat can float.  However, the test for whether the houseboat is not a building has a further requirement, being that it is “used in navigation”.

While the houseboat may be able to be repositioned to a new location across sheltered water, the determination concluded that the users of the houseboat are not likely to be travelling across water or changing the site of the houseboat to be in the water on a frequent basis (if at all); its primary use in the long term is for residential purposes on dry land as opposed to being used in navigation on a water body.  

Even if the houseboat was floating on water in a moored or anchored position, it is not intended to be “used in navigation”.  While the evidence is that the houseboat could be repositioned, this will only occur infrequently and is not sufficient for the houseboat to fall within the exception to the definition of a building under section 9.  It was noted that further guidance from the Ministry is required to explore different scenarios and when a boat, vehicle or aircraft changes to being a ‘building’ for the purposes of the Act.

The decision

The determination confirmed the BCA was correct to issue a notice to fix for the houseboat as it falls within the definition of a building for the purposes of the Act.

Determination 2016/010 in full.

Previous determinations is a register of all previous determinations.

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Previous issues

About Codewords: Our Codewords newsletter is published six times a year. It will keep you up to date on the latest regulatory and related information for the building and construction industry.

Codewords issues are available for two years after their publish date. If the issue you are looking for is older, please contact us.

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: