Posted: 29 July 2016
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 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.
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 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.
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