Posted: 23 March 2017
The determination considered whether the building consent authority (BCA) correctly exercised its power of decision in refusing to amend the building consent and whether the slate tiles complied with the relevant Building Code clauses. The question was also raised as to whether the product substitution was a minor variation and an amended plan need not have been applied for, and subsequently a code compliance certificate (CCC) could be issued.
The building work and background
The house is a single-storey residential house in a medium wind zone, with a 29° pitch hipped and gabled roof that was originally consented with concrete tiles.
The developer applied for an amendment to substitute the concrete roof tiles with the slate tiles. The slate tiles are manufactured in the United Kingdom and have been supplied in New Zealand for three years. The BCA requested a CodeMark certificate or BRANZ appraisal for the slate tiles to support the amendment application. While no appraisal was provided to the BCA, the roofing company provided the manufacturer’s certification and other information, which was deemed insufficient by the BCA to establish compliance. Even though no amendment was issued, the house was completed with the roof clad in slate tiles, with inspections passed by the BCA.
When the developer applied for a CCC, the BCA requested further information to establish compliance of the slate tiles. The BCA refused to issue the CCC because the information requested was not supplied and the amendment to consent had not been issued.
The BCA did not issue the amendment as it believed it did not have reasonable grounds on which to be satisfied that the tiles, as installed, would comply with the Building Code. Further information was provided during the determination process and the Ministry of Business, Innovation and Employment (MBIE) concluded that the slate tiles complied with the relevant clauses: B1, B2, E2 and E3. However, MBIE determined that the BCA correctly exercised its powers in refusing to grant the amendment as it did not have sufficient information before it at the time.
During the determination the question arose as to whether the product substitution required an amendment to the consent or if it was a minor variation. If a variation is minor then an applicant can apply to amend the building consent and the amendment does not need to be in a prescribed form, and does not require the BCA to issue an amended consent – the minor variation needs only to be recorded in writing. Therefore, if the substitution was compliant with the Building Code and considered to be a minor variation, the amendment would not have been required and this would remove the BCA’s outstanding issue in refusing to issue the CCC.
A minor variation is a minor modification, addition, or variation to a building consent that does not deviate significantly from the plans and specifications to which the building consent relates. MBIE concluded that a minor variation by way of recording the product substitution was not appropriate in this case because the tiles were relatively novel in terms of their composition, there was a different means to establish compliance from the approved concrete tiles, and there was reliance on overseas certification to support their compliance with the Building Code. MBIE concluded that the building consent required an amendment to remove the concrete tiles, and that as the composite slate tiles had been installed, a certificate of acceptance for that work only would need to be applied for.
The determination confirmed that the BCA was correct to refuse to amend the building consent based on the information before it at the time it made its decision, and that there were reasonable grounds to conclude the roofing system, as installed, complied with the relevant clauses of the Building Code.
Determination 2016/046 in full.
Previous determinations is a register of all previous determinations.