Codewords Issue 78

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31 May 2017

In this issue:

We’re five months into the year and we just keep picking up speed as we go. The last two months have been particularly busy – here’s a selection of what’s been going on.

  • Over the next few months, MBIE will be reminding homeowners about their rights and responsibilities when building or renovating. In particular, we’ll be highlighting the value of having a written contract and telling homeowners to ask their contractor for a disclosure statement and checklist. These measures encourage a professional, no-surprises relationship between you and your client, and can help a build or renovation run well. You can find more information and watch the video on Why contracts are valuable.
  • MBIE and the New Zealand Geotechnical Society jointly released two new geotechnical engineering guidance documents as part of the Earthquake Geotechnical Engineering Practice series. The modules are: Module 5: Ground improvement of soils prone to liquefaction and Module 6: Earthquake-resistant retaining wall design. In addition, MBIE published a Field Guide: Rapid post disaster building usability assessment – Geotechnical to assist geotechnical professionals in the assessment and categorisation of land instability in conjunction with a rapid building assessment process during a State of Emergency or during a lesser event in special circumstances. A lot of work went into producing these documents and they are well worth reading.
  • On 18 May, MBIE went live with the refreshed Smarter Homes website with updated information and a new look, offering options on how to create a more efficient, drier and generally smarter home. The website includes information on how to go above and beyond the Building Code. I recommend you take a look – there’s some great info in there.
  • In April, Christchurch City Council’s Partnership Approval Programme initiative (which was profiled in Codewords 76) won national recognition at the New Zealand Society of Local Government Managers (SOLGM) Excellence Awards, picking up the top award in the Local Government Funding Agency’s Transforming Service Delivery category. The initiative is aimed at helping big building projects to get through the consenting process. You can read more about the award on the Christchurch City Council website.

Looking ahead, from 1 July 2017 the Building (Earthquake-prone Buildings) Amendment Act 2016 (the Amendment Act) is expected to take effect. Building users, owners, councils and engineers need to be aware of the upcoming changes to how earthquake-prone buildings will be managed, as this will affect you. New framework for managing earthquake-prone buildings on the MBIE Corporate website has further information.

The building and construction industry continues to ramp up activity with growth forecast for all regions in the 2016 National Construction Pipeline Report. Building consent activity nationally for the first three months of 2017 has shown strong growth with dwelling numbers tracking slightly ahead of our 2016 forecast.

Work has begun on the 2017 pipeline report, which will contain all its standard features of national and regional forecasts, and comparisons to previous forecasts. Improvements planned for this year’s report include a refresh of the methodology used for the non-residential building and civil construction forecasting, including regional level detail. This refinement will improve reliability and provide a clearer view of the forward pipeline of work for these areas of the industry.

Given how busy everyone is, I hope you take a break on Queen’s Birthday weekend – because the next long weekend isn’t until October!

The Smarter Homes website has been refreshed with updated guidance on how to create a more efficient, drier and generally smarter home.

Code and technical changes

New system for managing earthquake-prone buildings

Protecting people from harm is the primary objective of a new system for managing earthquake-prone buildings that is expected to take effect from 1 July this year.

The new system will change the way earthquake-prone buildings are identified and managed. The changes will be introduced through the Building (Earthquake-prone Buildings) Amendment Act 2016 (the Amendment Act). 

The changes are important for councils, building owners, engineers and building users.

The Amendment Act will create a single national policy framework for managing earthquake-prone buildings. It categorises New Zealand into three seismic risk areas and sets timeframes, based on seismic risk, for identifying, strengthening or removing earthquake-prone buildings.

It will also provide more information for people using buildings. Councils will be required to identify potentially earthquake-prone buildings, issue earthquake-prone building notices and publish information about earthquake-prone buildings in a public register.

Building owners will be required to display notices if an engineering assessment confirms their building is earthquake-prone.

The Ministry of Business, Innovation and Employment (MBIE) will publish a methodology that will help councils and engineers identify and assess earthquake-prone buildings.

“Earthquake-prone buildings are a potential risk to people and other property in earthquakes,” says John Gardiner, MBIE Manager Determinations and Assurance, who is managing the implementation of the Amendment Act.

“The changes in the Amendment Act are designed to manage and reduce the risk to people – be they occupants or passers-by. The law focuses on the most vulnerable buildings, in terms of the risk to public safety.”

The Amendment Act will apply to non-residential buildings and residential buildings that are two storeys or more, have three or more household units or are used as a hostel, boarding house or other form of specialised accommodation. However certain buildings with a low risk to life safety such as farm buildings, retaining walls, fences and monuments are excluded.

Under the Amendment Act, certain types of earthquake-prone buildings that are considered a higher risk are called ‘priority buildings’. The ‘priority buildings’ category applies in high and medium seismic risk areas. The seismic risk areas are based on the seismic hazard (Z) factor set in New Zealand Standard 1170 and the map is indicative only.

A map of the seismic risk areas is available on the MBIE Corporate website.

Priority buildings are considered higher risk, because of their construction, type, use or location. Councils will need to consult their community to help identify routes with priority buildings.

Priority buildings must be identified, strengthened or demolished in shorter time frames than other buildings. The two tables below shows the time frames.

Seismic risk areaTAs must identify potentially earthquake-prone buildings within:Owners must strengthen or demolish earthquake –prone buildings within the timeframes below (from the date the EPB notice is issued):
Priority Other Priority Other
High 2.5 years 5 years 7.5 years 15 years
Medium 5 years 10 years 12.5 years 25 years
Low N/A 15 years N/A 35 years

When the council identifies potentially earthquake-prone buildings, building owners will be required to commission an engineering assessment on their building within 12 months from the date the council notice is issued.

If the building is confirmed as earthquake-prone then the owner must take action within the relevant time-frame to strengthen or demolish their building. Depending on their circumstance, they may be able to apply for an extension or an exemption from this requirement.

“The aim is to strike an appropriate balance between protecting people from harm in an earthquake, the impacts on heritage and the costs of strengthening or removing earthquake-prone buildings,” says John.

“We will be working with councils and engineers over the coming months to help them with the transition to the new system, and providing information for building owners.”

Managing earthquake-prone buildings has more information.

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Consultation opens on new fire safety proposals

MBIE is seeking your feedback on proposals aimed at improving fire safety regulations for New Zealand buildings. The consultation will run from 15 May to 14 July 2017.

MBIE is consulting on the following proposals:

  • increase flexibility in use of internal surface finishes
  • clarify Building Code requirements for structural performance in fire
  • update the Verification Method and include more safeguards for tall buildings
  • support Alternative Solutions for fire designs by issuing guidance.

The new proposals are aimed at making fire safety requirements easier to understand and apply, promoting innovation in fire safety engineering and design, and supporting collaboration between building professionals.

The proposals are mostly adjustments and rebalancing designed to simplify and support the way fire design is currently performed, or to facilitate a shift towards how it should be performed. Changes to the fire safety requirements are relatively minimal apart from some additional or new requirements for specialised areas such as tall buildings, where MBIE considers it necessary to include more safeguards for building occupants and firefighters.

MBIE has received input from the New Zealand Fire Service, the Society of Fire Protection Engineers, building control officials and architects, and has worked with international fire engineering experts to develop these proposals.

View the proposals and make a submission on the MBIE Corporate website

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Pool safety Acceptable Solutions and territorial authority guidance

MBIE has published two new Acceptable Solutions for Building Code Clause F9 Means of restricting access to residential pools, and guidance for territorial authorities on provisions for residential pools under the Building Act 2004.

On 1 January 2017 the Building (Pools) Amendment Act repealed the Fencing of Swimming Pools Act and inserted new provisions into the Building Act 2004. The Amendment Act created Building Code Clause F9.

The new Acceptable Solutions

F9/AS1 applies to barriers to residential pools and F9/AS2 applies to small heated pools with a water surface area of 5m² or less, such as spa pools.

F9/AS1 uses most of the requirements for barriers and fences, gates and doors that were given by the Schedule to the Fencing of Swimming Pools Act.

Small heated pools may have a removable cover instead of a fence as long as it complies with the requirements of the Building Code. F9/AS2 specifies the construction of covers and their robustness. Many of the covers manufactured over recent years are likely to meet the F9/AS2 specification.

MBIE sought feedback on the proposed new Acceptable Solutions for Clause F9 from 2 November–16 December 2016.

Territorial authority guidance

The Building Act requires territorial authorities to enforce the requirements for residential pools to have barriers. The guidance describes the residential pool provisions and aims to help territorial authorities to enforce the requirements.

F9 Restricting access to residential pools has the Acceptable Solutions and the territorial authority guidance.

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New geotechnical modules and field guide published

On 31 May 2017 MBIE and the New Zealand Geotechnical Society (NZGS) published two new geotechnical engineering guidance documents, and MBIE published a new Field Guide: Rapid Post Disaster – Geotechnical.

Geotechnical modules

MBIE and the NZGS have jointly released two new geotechnical engineering guidance documents as part of the Earthquake Geotechnical Engineering Practice series. This joint guidance has been published as Building Act section 175 guidance.

The two new modules are:

  • Module 5: Ground improvement of soils prone to liquefaction
  • Module 6: Earthquake-resistant retaining wall design

These versions are being issued for public comment. Geotechnical and structural engineers are encouraged to make use of these documents and return comments to within six months for consideration by the editorial committee. Comments are also welcome from others working in earthquake engineering.

Module 5

This module covers the design of ground improvement and supports the Canterbury Earthquakes Royal Commission recommendations to prepare national guidelines specifying design procedures for ground improvement, to provide more uniformity in approach and outcomes.

Module 6

This module covers the seismic design of retaining walls of a routine nature throughout New Zealand and should be used in conjunction with established handbooks that cover other aspects of retaining wall design in all situations and soil conditions. It builds on and generalises the MBIE-issued supplementary guidance supporting the Canterbury rebuild seismic design of retaining structures for residential sites in Greater Christchurch with accompanying worked examples.

Read the geotechnical guidelines

New Zealand Geotechnical Society

Geotechnical engineering education programme

An education programme supporting the release of Modules 5 and 6 will be developed and advertised in due course.

Module 3 Geotechnical education now available online

An online tutorial on ‘Identification assessment and mitigation of liquefaction hazards’ is now available on the Institution of Professional Engineers New Zealand (IPENZ) website.

You will need to register online to access the tutorial. Viewing the presentation and undertaking the related quiz can be claimed as Continuing Professional Development (CPD) hours.

This learning resource on Module 3 of the Earthquake Geotechnical Engineering Practice series is available free to all geotechnical professionals. It is part of a joint education initiative between MBIE, IPENZ and the NZGS to run over several years. 

View the geotechnical educational programme

Upcoming geotechnical education for Rockfall: Design considerations for passive protection structures

An online tutorial will soon be available on the IPENZ learning webpage, providing instruction on the design of passive rockfall protection structures that act to reduce the effects of falling rock on people and/or infrastructure. The tutorial will be available free to all geotechnical professionals.

Rockfall: Design considerations for passive protection structures is joint guidance published by MBIE, the NZGS and the New Zealand Transport Agency.

New field guide for rapid post disaster building usability assessment – geotechnical

MBIE has published a field guide to accompany two existing field guides for post disaster building assessments for earthquakes and for flooding.

This Field Guide: Rapid Post Disaster – Geotechnical assessment toward building usability has been produced to assist geotechnical professionals in the assessment and categorisation of land instability in conjunction with a rapid building assessment process during a State of Emergency or during a lesser event in special circumstances. The field guide contains a standard field data collection form to be used during geotechnical rapid building assessment.

The geotechnical component of a rapid building assessment process involves the rapid assessment of the impacts of land instability on commercial, industrial and residential buildings that could affect the safety of people. This is the third in a series of field guides that target a uniform approach to rapid building assessment.

Rapid post disaster building usability assessment – geotechnical

Rapid post disaster building usability assessment – earthquake

Rapid post disaster building usability assessment – flooding

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Safe trays within household units

Building System Performance has been asked for clarification about the amendment to Paragraph 5.2.3 Safe trays in Acceptable Solution for Water Supplies G12/AS1, which was published on 1 January 2017, and will come into full effect on 1 June 2017.

The amendment means that if:

  • you are installing a storage water heater, and
  • you didn’t have one installed previously, and
  • G12/AS1 is your nominated means of complying with the Building Code;

then a safe tray is required with storage water heaters when installed in household units and occupancies adjoining household units.

When replacing an existing storage water heater with another storage water heater, a safe tray is not required, but it is recommended and will give additional protection to the homeowner from water damage.

Why are safe trays required?

Safe trays are required as a means to prevent water damage to household units caused by storage water heaters.

Why aren’t safe trays required for replacement storage water heaters?

Installing a new storage water heater, including attaching the pipes, valves and seismic restraint, is new building work that is required to comply with the Building Code.

However, replacing an existing storage water heater is considered an ‘alteration to an existing building’ under the Building Act. The Building Act has upgrading provisions for alterations. These provisions relate to means of escape from fire, and access and facilities for people with disabilities, and that after the alteration the building will continue to comply to at least the same extent as it did before the building work.

Where an existing storage water heater does not have a safe tray, and is replaced as an alteration to an existing building, then a safe tray is not required, as the building is only required to comply to at least the same extent as before the alteration.

Are there other places that safe trays are not required?

Safe trays are not required in buildings that are not household units, unless the adjoining occupancy is a household unit. Buildings solely used as commercial buildings such as offices or warehouses do not require safe trays.

Safe trays are not required for non-storage water heaters, such as under-bench boilers/chillers and instantaneous water heaters.

Options to consider for new or replacement storage water heaters where a safe tray is difficult to install

If a safe tray is difficult to install, in either a new or replacement situation, other options can be discussed between the plumber or building designer and the owner of the building. These can include:

  • locating the storage water heater outside
  • using instantaneous water heaters.

Acceptable Solution for Water Supplies G12/AS1 has further information.

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Know your rights, do your homework and rebuild with confidence

MBIE has updated its suite of booklets for homeowners and contractors completing residential building work. You can read these resources online, download them or contact MBIE for copies.

For homeowners: Know your rights

If you’re a homeowner considering residential building work, you need to know about the consumer protection measures, which encourage a professional, no-surprises relationship between you and your contractor. Knowing your rights and obligations will help you make informed decisions about your building work.

Know your rights: A homeowner’s guide to the consumer protection measures when building or renovating

For contractors: Do your homework

If you’re a contractor doing residential building work, it’s your business to understand the consumer protection measures, which encourage a professional, no-surprises relationship between you and your client. This booklet will guide you through the key consumer protection measures related to residential building work including contracts, checklists and disclosure statements, as well as what information you must give the homeowner.

Do your homework: A contractor’s guide to rights and obligations when contracting with homeowners

Rebuild with confidence

This booklet is for homeowners affected by the Hurunui/Kaikōura earthquakes to help them plan and manage the rebuild or repair of their home.

Rebuild with confidence: A guide for homeowners rebuilding after the Hurunui/Kaikōura earthquake

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LBP knowledge link

LBP Registrar update (Codewords 78)

Welcome. In this issue we’ve included an article to enhance your regulatory knowledge in relation to district planning requirements and avoiding discharging construction waste into the stormwater drainage network.

Paul HobbsPaul Hobbs

Our second article is about Schedule 1 – exempt building work, which is part one of a three-part series that will feature Codewords over the next few publications.

In part one of this series we deal with some of the basic fundamentals of Schedule 1 and then drill down on four specific exemptions: detached dwellings not exceeding 10m2, retaining walls, fences and hoardings and decks, platform, bridges and boardwalks.

We get many varied queries about Schedule 1 and a significant number of complaints that go to the Building Practitioners Board (the Board) include building work completed using Schedule 1. In a recent Board decision, Northland-based LBP Grant Tromp’s licence was cancelled for three breaches of the Building Act 2004, when he undertook work beyond his competency and failed to secure a building consent when one was required.

In other news we recently licensed the 20,000th LBP carpenter which represents a significant milestone for the Scheme. Carpenters currently account for 66 per cent of the 30,500 licences issued.

Thanks for reading – until the next LBP update,

Paul Hobbs

Registrar Building Practitioner Licensing

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Outside drains: don’t pollute our waterways

Unlike the wastewater system, water that goes down stormwater drains flows straight into local streams and the sea without being treated. Anything else that goes down there – mud, concrete, paint – will pollute our waterways and everything that lives in them.

Licensing classes

For example, concrete and cement products are extremely toxic and can raise the pH levels of streams, killing all wildlife. It takes 100,000 litres of fresh water to dilute just one litre of concrete slurry to safe levels. 

The consequences aren’t only severe for wildlife – discharging contaminants to stormwater drains can result in a $750 fine under the Resource Management Act (RMA) and possible further court action. 

One of the things resource consent inspectors look for on-site are the environmental controls you have in place to prevent contaminants such as sediments, clays and concrete products, entering the stormwater network.

Below are some easy, inexpensive tips to ensure clean rainwater is the only thing that goes down stormwater drains at your site.

Stormwater drains at your site
Poor site controls

Poor site controls can result in clay running off a site to the road, down a drain and straight into our local streams and beaches.

Do it right

  • Create a stabilised entranceway for your site by putting down GAP 65 aggregate (heavy grade fill), giving tradespeople a place to park and stopping them driving over exposed clay or dirt and tracking it onto the road.
  • Install a silt fence on the downhill side of your site to capture sediment run-off. 
Example of a silt fence on the downhill side
Diagram of a silt fence

Never let concrete slurry or wastewater enter stormwater drains on your site, or on the road.

  • Keep stockpiles of sediment or soil behind your silt fence, or cover them with plastic sheeting or hay mulch.
  • Keep as much grass coverage on-site as possible.
  • Before pouring concrete, de-water pile holes and footings to stop slurry spilling out and into drains.
  • Never wash concrete equipment where runoff may enter the stormwater drain – wash on unsealed ground such as grass or aggregate.

Remember, you are responsible for your subcontractors so ensure delivery companies or concrete placers don’t wash concrete slurry to the stormwater drains.


1) Outside stormwater drains flow:

a. to a treatment plant
b. to local streams and the sea
c. nowhere

2) How deep should a sediment fence be dug into the ground?

a. 500mm
b. 200mm
c. It should sit on top of the ground

3) How many litres of fresh water does it take to dilute one litre of concrete slurry?

a. 10L
b. 1000L
c. 10,000L
d. 100,000L

4) A stabilised entrance way with GAP 65 aggregate should be installed to:

a. park on
b. keep the road clean
c. gain better access to your site
d. all of the above

5) How much is an RMA fine for discharging pollutants to the stormwater system?

a. $300
b. $500
c. $750
d. $1000

Check your answers

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Know your stuff: Exempt Building Work, Part 1

Checking if you need a building consent is an important step in any building project. If a building consent isn’t issued and was required, the council may issue an infringement notice or seek to prosecute the homeowner (with possible heavy fines), who is then likely to want answers from you.

Licensing classes

The homeowner has the ultimate obligation to obtain all required permissions and consents – they can do this themselves, or get someone to do it on their behalf.

Carrying out work without first obtaining a building consent is a common failing the Building Practitioners Board (the Board) often sees, and takes into consideration when acting on complaints against LBPs. We want to help make sure you don’t make this mistake.

This article will introduce exempt building work and some of the common and measurable exemptions.

Section 41

Under the Building Act (the Act), all building work requires a building consent, unless it is covered by sections 41 and 42A of the Act. Work covered by section 41 is known as exempt building work which means it doesn’t require a building consent.

Section 41 recognises that a number of things considered ‘building work’ are low risk. It allows for a list of building work that doesn’t require a building consent under Schedule 1 of the Act. If your building work isn’t covered by an exemption you must make sure there is a building consent before you begin work.

All building work must comply with the Building Code, regardless of whether a building consent is required.

Schedule 1

Schedule 1 lists the items of exempt building work. If you’re working outside of those items listed, you need to obtain a building consent before beginning work. Here we give some generalised examples – always refer to Schedule 1 for the details of what’s exempt and what’s not:

Exemption 3 – Single-storey detached buildings not exceeding 10 square metres in floor area

You’re able to build some single-storey detached buildings like sheds, cabins or sleep outs with a net floor area (total usable floor area within the enclosing walls) of less than 10 square metres without a building consent. There are exceptions, for example, it cannot include any sanitary facilities.

If the building has a net floor area of more than 10 square metres or it does not meet the details of the exemption, it will need a building consent. This structure also cannot be closer to the boundary or any residential building than its total height. In this case, you’ll need a building consent.

Exemption 20 – Retaining walls

A retaining wall does not require a building consent if it is retaining less than 1.5 metres of ground and does not support a surcharge. A surcharge is an additional load on the land, such as a car park or driveway, a slope or a building (Schedule 1 guidance provides more detail).

Exemption 21 – Fences and hoardings

You can build a fence or a hoarding up to 2.5 metres above the supporting ground without a building consent. However, you still need to comply with requirements of the Fencing Act 1978 for boundary fences and, in many cases, with district plans. This may mean a resource consent is required if the fence is above 2.0 metres in height.

Exemption 24 – Decks, platforms, bridges, boardwalks, etc

Building work in relation to a deck, platform, bridge, boardwalk or the like does not require a building consent as long as it is not possible to fall more than 1.5 metres from that surface.

You’ll still require a safety barrier where there is a potential fall of 1 metre or more, but no consent would be required given the above.

Next time…

The next article in our Exempt Building Work series will cover off some of the more complex, common exemptions.

Until then, you can read detailed guidance about exempt building work, including practical examples.

Building work that does not require a building consent

Please note that this guidance will be updated to include exemption 21A Means of restricting access to small heated pools.


1) Which of the following statements is true?

a. All building work must have a building consent
b. All building work must comply with the Building Code
c. All building work must have a building consent and comply with the Building Code

2) If I want to build a fence at the rear of my property, how high can I build without needing to obtain a building consent?

a. 1 metre
b. 3 metres
c. 2.5 metres
d. 1.5 metres

3) I am building a 15 square metre detached sleep-out for my son, do I need to obtain a building consent?

a. Yes
b. No, you can start right away

4) I want to build a retaining wall down one side of my property which will be only 1 metre high, what else should I look out for if I don’t want to get a building consent?

a. Whether any additional load will be weighing on the retaining wall, such as a driveway
b. Whether I had a building consent to build my house
c. Whether my neighbour will grow plants on my nice new wall

Check your answers

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Woodwork student works through ranks to train LBPs

Winstone Wallboards technical training and support manager Dale Olsen has spent 30 years in the building industry – and credits his high school woodwork teacher for giving him some good advice that got him on track to success.

Dale OlsenDale Olsen

“When I was about to finish school, I wasn’t sure what I wanted to do. So I talked to my woodwork teacher who said I should consider a career in the building industry.”

Dale started with a cadetship with Fletcher Residential when he was 19, where he built houses on-site while studying at Carrington Polytech in Auckland.

“I’ve worked my way up from being the boy on-site, to supervisor, project manager and now one of the managers on our technical team,” says Dale.

He looks after the team that provides a helpline service to the industry. The service takes around 70 calls per day from builders, inspectors, architects, engineers and homeowners based all around the country – and they get all sorts of queries.

“We had someone ask, ‘My dog has eaten some plasterboard, is he going to die?’ Our tech guy responded, ‘Depends, if he’s eaten the whole sheet then it’s not looking good!’

“We like to have a laugh, and when we aren’t on the phones, we move around the country providing training to those in the building industry.”

Dale firmly believes in building up the knowledge of those in the industry.

“It’s important for the young ones to remember that there is a place for your knowledge and experience beyond swinging a hammer.

“Being part of the LBP scheme and keeping my licence current encourages me to stay updated with the same learnings as the team on-site.”

Dale’s final piece of advice for the LBPs out there: “I haven’t met anyone that has all the answers yet. We are all on the bus together and the more we can learn together the better off the industry will be.”

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Recent determinations

Determination 2017/015 – Summary

Determination 2017/015 discusses the definition of an “owner” and whether a section 75 certificate was required on the building consent. It also discusses whether a building consent for work spanning two allotments can be granted to a leaseholder without a section 75 certificate.


A section 75 certificate requires that, where a building spans two or more allotments held by “the owner in fee simple”, none of the allotments can be transferred or leased except in conjunction with the other relevant allotments.

A building consent was issued by the building consent authority (BCA) to the leaseholder for Stage 1 (foundations and drainage) for a proposed seven-storey hotel and carpark building. The proposed building is to be constructed over the boundary of two allotments. The BCA did not require a section 75 certificate to be registered as a condition of granting the building consent.

The owner believed a section 75 certificate was required and the BCA was incorrect to grant the consent without one. The owner is the fee simple owner of the allotments, while the leaseholder holds the current lease for the two allotments and is entitled to the rack rent from the land. 


The Building Code does not allow a building to be built over an allotment boundary unless those parts of the building on different allotments are fully protected from each other in terms of fire safety and structure, or if a section 75 certificate is registered on the title.

Section 75 allows for a fee simple owner to construct a building over allotment boundaries without fully protecting the parts on different allotments from each other. Under section 75, if this right is exercised, the owner can only sell or lease the relevant allotments as a parcel. 

The term “owner of the fee simple” is referenced throughout sections 75–83. The determination’s interpretation of the Act is that these sections are only relevant if the fee simple owner is proposing the building work. A section 75 certificate can be viewed as conferring a right to an owner, by providing a quicker and more convenient way for building work to proceed across the boundary of two allotments, without the need for party walls or amalgamation of the allotments. 

The determination noted that limiting the application of section 75 to fee simple owners does not stop leaseholders from building across allotment boundaries. They may still build across the boundary of an allotment, as long as the building work on each allotment is fully protected from each other. Whether a leaseholder is able to undertake the building work is a matter between the leaseholder and the owner, and is not a matter for a BCA to take into account when deciding whether to grant the building consent. A building consent is not an authorisation for an owner to do something they may be restricted from doing under some other enactment, by a contract, by the terms of a lease, or by some other property law obligation, such as a covenant on a title. 

The decision

The determination found that the BCA was correct to conclude that a section 75 certificate was not required when the leaseholder applied for this building consent. Section 75 did not apply to the leaseholder’s application for this building work. The decision confirmed the granting of the building consent.

Determination 2017/015 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: