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Determination 2017/062

Posted: 28 November 2017

Determination 2017/062 discusses the requirements about attaching a section 37 certificate under the Building Act.

Background

A section 37 certificate is attached to a building consent and acts as notice to an owner that a resource consent will be required. The section 37 certificate also stops either all or some of the building work from starting until a resource consent has been granted. 

A building consent was issued by the building consent authority (BCA) for a proposed two-storey house, with a section 37 certificate attached to the building consent. The section 37 certificate identified height and ventilation issues infringing the District Plan rules. 

These issues were resolved and the section 37 certificate was removed from the building consent. However, when construction started the owners noticed their house was facing a different direction to the neighbouring houses. They contacted the BCA who identified that the orientation of the house infringed the District Plan rules. The BCA placed a ‘section 37 tag’ on the issued building consent to prevent further building work until a resource consent was obtained. 

Discussion

Resource consent is required when proposed building work does not comply with, or will infringe, the council’s District Plan rules and regulations that are set out under the Resource Management Act (RMA). 

The section 37 certificate that was attached to the building consent did not include the incorrect orientation of the house. The determination noted the removal of the section 37 certificate did not exempt the building work from requiring resource consent for this infringement. 

The BCA placed a ‘section 37 tag’ on the building consent. However, section 37 of the Building Act only allows for certificates to be attached to a building consent application, and cannot be retroactively attached after consent has been issued. Consequently, a second section 37 certificate could not be attached to include the incorrect house orientation. 

The determination noted the BCA was correct to alert the owners that the house orientation infringed the District Plan and that a resource consent was required. However, as the building consent had been issued, a further section 37 certificate could not be attached. Therefore, the BCA should have used the enforcement provisions of the RMA to remedy any infringements.

Determination 2017/062 in full.

Previous determinations is a register of all previous determinations.

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: