Welcome to the 90th issue of Codewords.
On 16 April we opened consultation on proposals to change New Zealand's building law. We're now halfway through the submission period and the response so far has been great. These are major changes that aim to address longstanding issues in the building and construction sector and lift performance. You've got until Sunday 16 June 2019, 5pm to have your say – the success of our building laws relies on the feedback we receive. I encourage you to review the proposals and make a submission.
The building law reform is just one of a number of initiatives government is taking to support the sector to transform. On 14 April, the Construction Sector Accord was signed by both Government and construction industry leaders. This partnership sets out an agreed vision and targets key priorities needed to strengthen the sector. These include expanding workforce capability, rebalancing risk, improving health and safety and boosting the supply of affordable and durable housing. The Accord Development Group will soon be consulting widely across the sector, and an action plan will be published by the end of 2019. Keep your eyes peeled.
Another exciting development is the new Skills in Construction website. This was launched on 16 May as a cross-agency platform outlining the skills strategy and action plan – a six-point initiative focusing on construction sector recruitment, training, and school leavers gaining employment. Check out the new website.
Enjoy this issue of Codewords, which includes articles about two relationships MBIE is fostering to deliver a better Building Code framework – one with Engineering New Zealand (ENZ) and the second with Standards New Zealand (SNZ).
Until next time,
GM Building System Performance (BSP)
Ministry of Business, Innovation and Employment
Building system updates
Have your say on major changes to building laws
On 16 April, consultation opened on proposals to make the biggest changes to building laws since the Building Act came into force in 2004.
The reforms aim to address a number of long-standing problems in the building sector. They were developed following a series of meetings that the Ministry of Business, Innovation and Employment (MBIE) held with the building sector last year to find out more about the challenges it is facing.
The changes proposed are wide ranging and affect most parts of the building system. Here’s a brief summary of the five key areas where changes are proposed:
Building products and methods
With around 600,000 building products available on the New Zealand market, it's important that regulations help people choose the right product for the job. The current regulatory settings for building products have gaps and disincentives that make the system less efficient.
We're looking to widen the purpose of the Building Act so that building products and methods will be properly regulated. This will reflect the key role that products play in building work.
We're also proposing that building products and suppliers provide a minimum level of publicly accessible information about their products, so that building consent authorities (BCAs), designers, builders and consumers have access to better information. This will allow them to make better decisions about what products will comply with the Building Code.
MBIE is also looking to create an explicit responsibility on manufacturers and suppliers to ensure that a building product is fit for its intended purpose, so that they can be held accountable if it fails due to the way it was designed or manufactured.
Another proposal in this area is to amend the Building Act to allow for a regulatory framework that would future-proof the building system for Modern Methods of Construction (MMC), and make consenting an easier process.
Occupational regulation aims to protect the public from harm by ensuring services are performed with reasonable care and skill. However, currently the occupational regulatory system doesn’t capture all of the risks in the building process. It’s not always clear that the people authorised to carry out restricted work are competent, and there are challenges to holding people to account for substandard work or poor conduct.
The three occupations where we see the most pressing need for change are licensed building practitioners (LBPs), engineers, and plumbers, gasfitters and drainlayers.
For LBPs, we want to broaden the definition of restricted building work to include more complex non-residential building work. The new definition would include all residential building work, including simple houses and mixed-use residential/commercial buildings and apartments. It would also include level three and some level two commercial and communal buildings.
We also want to raise the competence standard for LBPs to enter and remain in the LBP scheme. We're proposing a 'fit and proper person' test as a prerequisite for entry to the scheme. This would be supported by a code of ethics, to establish a clear standard against which to measure LBP behaviour.
For engineers, we're looking to establish a new voluntary certification scheme for engineers and phase out Chartered Professional Engineer (CPEng).
We also plan to restrict who can carry out or supervise safety-critical engineering work within the building sector. This would cover all medium- to high-complexity work and be triggered by factors such as building size, use and location. We also propose to establish a new licensing scheme to regulate who can carry out or supervise engineering work that has been restricted.
The proposed changes for plumbers, gasfitters and drainlayers are comparatively minor – they include repealing the sanitary plumbing exemption for the homeowners in certain areas and rural districts, and the exemptions for restricted sanitary plumbing, gasfitting and drainlaying work under supervision.
Risk and liability
We know that building work doesn't always go right, and that fairer outcomes are needed when things go wrong.
We're proposing that builders be required to offer clients a guarantee or insurance product that would cover the home or renovation for 10 years, even if the builder is no longer in business. The product would be linked to the home via the Land Information Memorandum (LIM) and would transfer to the new owner if the home is sold. Homeowners could choose to opt out of purchasing the product.
We are also proposing to leave the liability settings for BCAs unchanged at this stage.
The building levy is payable by building owners or developers on successful building consent applications for projects that are worth more than a specified amount. The revenue from the levy is used to fund a range of MBIE functions and activities under the Building Act.
The current levy is higher than it needs to be, so we're proposing to reduce it from $2.01 to $1.50, to bring it in line with Treasury's best practice guidelines. So, for example, on a $310,000 private house development, the levy bill would reduce from $623 to $465.
We're also proposing to standardise the threshold that the levy applies to at $20,444. Therefore it will cost homeowners or developers $1.50 per every $20,444 spent on the build. This lower threshold will mean fewer consent applications would incur the levy.
We're also planning to amend the Building Act to enable MBIE's Chief Executive to spend the levy on broader stewardship of the sector, which would support medium- to long-term improvements to the building regulatory system, as well as monitoring and oversight.
Offences, penalties and public notification
We want to make sure that enforcement agencies have enough time to investigate possible offences, so we propose to extend the time to lay a charge under the Building Act from six months to 12 months.
To ensure the consequences are fair in proportion to the offence, we are proposing to increase maximum financial penalties for both individuals and organisations. There would be higher maximum penalties for organisations than for individuals.
Currently, penalties have uneven impacts on individuals versus organisations. Higher penalties for organisations will provide stronger incentives for them to comply. This will make our penalty regime more aligned with similar regimes, such as that of WorkSafe.
Consultation closes on 16 June, so this is your last chance to make sure your views are considered – don't miss out!
You can also sign up to receive updates about the building reform programme by joining the mailing list.
MBIE commissioning review of seven key New Zealand Standards in the next year
The New Zealand Building Code references over 400 Standards as primary references in the Acceptable Solutions and Verification Methods.
Many of these Standards contain performance solutions and settings for Building Code compliance. MBIE is reviewing these to ensure they are fit for purpose and kept up to date, as part of our wider role to develop and maintain the Building Code.
MBIE and Standards NZ have been working collaboratively to agree on the prioritisation of Standards to be reviewed in the year July 2019 to June 2020. Priority has been placed on Standards that contribute to the densified housing solutions, but a number of criteria have been considered. These include an analysis of how critical the Standard is for showing compliance with the Building Code, the overall use by the sector, and if the Standard still sets an appropriate level of performance for New Zealand.
This collaboration and analysis has resulted in a priority list of Standards for MBIE to review over the next 12 months. We will work with Standards NZ and the relevant technical associations to commission and support the review of the following Standards:
- NZS 3604:2011 Timber-framed buildings (referenced in B1/AS1 and E2/AS1)
- NZS 4431:1989 Code of practice for earth fill for residential development (referenced in B1/VM1)
- NZS 3404 Parts 1 and 2:1997 Steel structures (referenced in B1/VM1) or AS 4100 Steel Structures
- NZS 4211:2008 Specification for performance of windows (referenced in E2/AS1)
- NZS 4510:2008 Fire hydrant systems for buildings (referenced in C/AS2)
- NZS 4303:1990 Ventilation for acceptable indoor air quality (referenced in G4/AS1)
- NZS 4218:2009 Thermal insulation – Housing and small building envelope (referenced in H1/AS1)
Collaboration with Engineering New Zealand leads to partnership
MBIE and Engineering NZ have been collaborating over the past 18 months to develop a framework to draw on the engineering and technical expertise within the ENZ membership.
Now MBIE and ENZ have agreed to a partnership that will provide certainty and continuity of information and advice from the engineering sector. This partnership contributes significantly towards MBIE's commitment to engaging and collaborating with the building and construction sector.
A benefit of the agreement will be using the project management capabilities and technical network of ENZ to deliver MBIE-commissioned projects. These will inform and provide insights into the Building Code.
Two projects recently commissioned by MBIE represent an initial investment of up to $1.2 million over the next two years. They are:
- completing the Geotechnical Practice Series (the geotech modules) and preparing selected topics for conversion into Acceptable Solutions; and
- collecting evidence of the impact of using the technical proposal (yellow chapter) of the Engineering Assessment Guidelines for building earthquake assessments.
These projects will provide much-needed compliance information for geotechnical engineers and case study evidence that evaluates current performance settings for seismic analysis.
More project funding cases are being prepared, with the intent to use the ENZ network, along with their technical and project management capability to deliver concurrent projects.
New Fire Acceptable Solution effective from 27 June 2019
MBIE will be publishing a new Acceptable Solution for fire this year.
The new C/AS2 covers the C clauses in the Building Code, and replaces the Acceptable Solutions C/AS2 to C/AS7. C/AS1 remains unchanged. The new C/AS2 will come into effect 27 June 2019, and has a transition period of four months.
Prior to 2012, there was one Acceptable Solution for fire, C/AS1. This document was then split up into seven Acceptable Solutions based on the risk group (or use) of the building. After receiving feedback from the sector, and holding various workshops across the country, six of the seven Acceptable Solutions are now being merged into one.
During public consultation, feedback was received from 38 organisations (private consultancies, government agencies, professional bodies, industry and research agencies) for the new C/AS2. In addition to the prescribed questions, an additional 700 comments were received on the Acceptable Solutions. Some of the proposed changes are considered technical changes that should be sent out for public consultation, and therefore could not be implemented in this upcoming edition. MBIE will review these and process them at a later stage. Where the changes were editorial, such as formatting or rewording to provide better clarification, these were incorporated where possible in the new C/AS2.
Key changes to performance settings
The majority of submissions supported the following technical changes:
- limiting the exemptions for sprinklers with dual water supply for unprotected openings in external wall areas within one metre of the boundary or where storage height is greater than three metres high (Section 5.2.2.a)
- simplifying the content in C/AS2 by referencing D1/AS1 – Access routes, rather than repeating the content from D/AS1
- adjusting building height demarcations for external wall cladding requirements from 7 to 10 metres to be consistent with the Building Code Clauses (Section 5.8.1)
- allowing full height group sleeping area partitions (Section 4.6.2)
- removal of a generic smoke control requirement for air handling system shutdowns (Section 4.18.1)
- setting the height restriction for balcony balustrades at 1100 mm minimum, not maximum, in line with F4/AS1 (Sections 3.11.5 and 3.11.6).
Additionally, there are numerous minor changes.
After considering sector feedback, MBIE did not adopt the proposed change to allow storage buildings to consider their intended storage versus the storage capacity, as this was thought too difficult to enforce.
Although there are new tables included to clarify requirements for fire safety, they are not a technical change. Key principles and settings that have historically been included in the Acceptable Solutions are unchanged, for example the travel distance measurement.
Education about the changes
MBIE will be hosting a webinar on 30 May with Local Government Zealand, and presenting at the Technical Series Seminar in June for the New Zealand Institute of Architects (NZIA). Another webinar will be held for fire engineers (SFPE) – this date is still being confirmed.
Thank you to all the submitters for taking the time to provide feedback; public consultation is important as it helps us shape the building regulatory system to support you and your industry.
To keep up to date with building regulations and related information, you can subscribe to Building Controls Updates.
LBP knowledge link
LBP Registrar update (Codewords 90)
Welcome to another issue of LBP Knowledge.
The consultation on proposed building sector reforms is underway and you've got until the 16th of June to have your say. Significant changes that aim to address long-standing problems in the sector are being proposed, and your feedback is important. It's a vital part of the process as we work to improve on the issues raised during our discussions with key stakeholders in 2018.
In this edition of Codewords, our first article completes the two-part series on labour-only contracts. The first part discussed the difference between liability and accountability and how this applies to building consents. This time, we look at an LBP's responsibility to provide accurate Records of Work (ROW) and produce quality work, and what can happen if you don't.
Our second article provides guidance on what to do with your licence if you have to take time off work for reasons outside of your control. There have been a number of enquiries over the recent months from licensees who have been hit by serious health issues. Many of them had come to us after their options had expired. Although we worked hard to try and find a solution for them, the process is much easier if LBPs let us know of their situation before their licence expires. We want you all to be fully aware of the process and the options available to you.
Thanks for reading, until next time.
Your duty in labour-only contracts – Records of Work
This is the second article in a two-part series highlighting common misunderstandings about the responsibilities of an LBP under a labour-only contract.
The first part discussed the difference between liability and accountability and how this applies to building consents. This issue will look at an LBP’s responsibility to provide accurate Records of Work (ROW) and produce quality work.
Records of Work
A ROW must be provided by each LBP completing restricted building work (RBW) on a project, as required by the Building Act 2004. The ROW must be supplied to the homeowner and the Territorial Authority.
A common complaint received by the Building Practitioners Board (the Board) is that an LBP didn't provide a ROW for a range of reasons, including:
- misunderstanding that providing a ROW will generate additional liability for the work
- being complacent or forgetful about completing paperwork
- withholding the ROW due to a dispute regarding payment or quality of work.
None of these, however, are valid reasons not to provide a ROW. As an LBP you have an obligation to provide the ROW, regardless of if there are contractual or payment disputes. You do not need to wait for the entire project to be complete to issue your ROW, just for your part of the work to be finished. In a situation where the contract has broken down, and you are unlikely to do any more work, you can still provide a ROW for the work you've already done.
The completed ROWs must also be accurate. An employer may find it easier to get one LBP to provide a ROW for all restricted building work completed within their class of licence, where in fact more than one LBP has carried out the work. Each LBP who has undertaken restricted building work must complete a ROW, or they will be in breach of their legal obligations. In other cases, an employer may be understaffed and request an LBP to provide a ROW stating that they supervised work done by unsupervised, unlicensed workers. An LBP should resist doing this, as they may be held accountable for the work done.
When you complete a ROW, ensure that the details are correct, as it creates an accurate record of who did what restricted building work. If there is an issue with the work completed and you were the LBP who did the ROW, it will be harder to prove that someone else is responsible for the work and you will expose yourself to the risk of disciplinary action.
Aside from the right to carry out RBW, a building practitioner's licence shows the public and potential clients that you meet a minimum standard of competency. This provides confidence in your knowledge and skill, and raises you above an unlicensed building practitioner. Regardless of if you are directly hired by the homeowner or subcontracted, you must complete work to a professional standard and only do work you are competent to do. If you are learning a new technique within your licence class, ensure you get advice and support so you know you are doing it correctly. You will still need to complete a ROW, as you are the one doing the work.
It can be difficult to say no when an employer asks you to do work outside your competence or substandard work. There may be financial or time constraints putting pressure on the project. Your responsibility, however, is to only carry out building work that you can do competently and to a reasonable standard. To protect yourself you could say no when an employer asks you to compromise your professional integrity to meet their targets. While you may not have to answer to the homeowner directly, you can still be held accountable by the Board for any negligent or incompetent work you do.
Working under a labour-only contract may reduce your liability in court, but it does not reduce your accountability as a LBP in front of the Board. If you fail to meet your obligations as an LBP, regardless of what your employer has instructed you to do, you may face disciplinary action. This could include fines and losing your licence for a period of time.
1. When should you provide a ROW to the homeowner and Territorial Authority?
a. Once you have finished working on your section of the RBW.
b. Once the entire building project is complete.
c. Once the client has paid for the work completed.
2. Your employer asks you to complete all the ROWs on a site, including for RBW completed by other LBPs and/or unlicensed builders you did not personally supervise. Why should you say no?
a. If there is a problem with the RBW, it will be harder to prove you are not responsible for it.
b. You are undermining the LBP scheme by enabling unlicensed and unsupervised builders to do RBW illegally.
c. You could be disciplined by the Board for not complying with your obligations.
d. All of the above.
3. You are completing RBW within your licence class, but you are using a material or technique you are unfamiliar with, so you get another LBP with more experience to give you some tips and guidance. Who should complete the ROW?
a. The other LBP providing guidance on the work, as they are the expert.
b. You, as you are doing the work.
c. Both you and the expert LBP.
4. A project is running behind schedule. To try and catch up, your employer asks you to do extra work on a job which is outside your area of competence. What should you do?
a. Agree, they are in a tight spot and being a team player will help to complete the project and make the client happy.
b. Say no, because you might end up doing a poor job and the Board could penalise you personally for doing incompetent work.
c. Agree, but only if someone who is competent assists or supports you so you can be assured you are doing it correctly.
d. B & C are acceptable.
Navigating career breaks as an LBP
Life is unpredictable, and sometimes a serious life event can turn your world upside down and affect your ability to work.
A break from work can happen due to circumstances outside your control, and you may not always know how long you will be off work for. An accident or serious medical condition can keep you off the tools for months or even years. Family commitments might take you overseas, or out of the building industry for a time.
Managing your Licensed Building Practitioner (LBP) licence may be the last thing on your mind, but the process is simpler than you think. If you intend to return to working as an LBP, or want to keep your options open, you may want to voluntarily suspend your licence to make it easier to return to carrying out restricted building work (RBW) at a later date. This will also reduce costs compared to maintaining a licence during the time you’re not using it.
Putting your licence on voluntary suspension
You may request for your licence (or classes of licence) to be suspended for up to two years. While your licence is suspended, you cannot carry out or supervise RBW, however you are relieved from paying relicensing fees to maintain your licence. The public register will list your licence as suspended 'at the request of the practitioner', so while others know you are not licensed to work, clients will also know the suspension was not imposed by the Building Practitioners Board (the Board) or Registrar for disciplinary reasons.
To request voluntary suspension, go to the LBP website and fill in the 'Voluntary suspension of licence' form.
You will need to:
- submit the completed form at least 10 working days before your elected suspension start date; and
- pay the required fee of $50.00.
Why not just let your licence lapse?
If you do not renew your licence it will automatically become suspended for a year before it is cancelled (unless you relicense within that year). This may suit some people who will be returning to work in a month or two. There are a few downsides though to letting your licence suspend automatically rather than voluntarily, including:
- When you relicense, your relicensing date doesn't change, so you will effectively still be paying to be licensed while suspended.
- The suspension on the public register will be listed as 'Failure to comply with the conditions of licensing' and indicate you have fees owing.
- If it turns out you need more time off work, you may have to relicense before you want to return to work or risk having your licence cancelled and having to reapply.
Maintaining your skills maintenance
You will need to continue to maintain your skills while your licence is suspended by completing your required skills maintenance. Keeping up with your skills maintenance is a licensing requirement, but is also a good way to keep your knowledge up to date for when you do return to work.
While on voluntary suspension, you will still have access to the LBP online portal to add your skills maintenance activities. It is best to try and do some activities before you intend to return to work, so you don't have too much catching up to do when you apply to end your voluntary suspension. Reading Codewords and doing some elective activities may be achievable while recuperating or being away from the construction site. On-the-job learning may be more challenging to complete, and could require a bit of planning.
If it is less than two years since your last skills maintenance round, you may not need to have completed all your skills maintenance before getting your licence back. The licensing team will be able to assist you if you are unsure of your requirements.
Returning to work
You can revive your voluntarily suspended licence at any time by visiting the LBP website and completing the 'End of voluntary suspension of licence' form.
Once your request is received, you will be contacted to advise you of your requirements for uplifting your suspension. Requirements might include:
- paying all or some of a relicensing fee, and
- providing evidence of your skills maintenance activities while you have been on voluntary suspension.
Sometimes LBPs contact the Ministry of Business, Innovation and Employment (MBIE) after their licence has been suspended or cancelled and ask to put their licence on hold. They may have been off work for months, but just haven't thought about their licence until they received the letter notifying them that it is no longer active. However, to put a licence on voluntary suspension, it needs to be active. Therefore if your licence has been suspended because you did not renew on time, you may have to relicense before you can start a voluntary suspension, which can be a hassle.
It is much easier for you and the licensing team if you get in touch while your licence is still active. A voluntary suspension is cost effective, and can be lifted whenever you want within the two-year period. This gives you flexibility if you are not sure when you will be coming back.
1. Why should you contact the licensing team sooner rather than later for a voluntary suspension?
a. To ensure your licence doesn't expire.
b. To save money on licensing, as you will not be paying for your licence while you aren't using it.
c. To reduce stress.
d. All of the above.
2. After a voluntary suspension, what do you need to do to get your licence back?
a. Complete and submit the 'End of voluntary suspension of licence' form and the licensing team will let you know what fees and skills maintenance are due.
b. Pay the fees for a new licence application.
c. Wait two years.
3. Why is it better to have a voluntary suspension rather than let your licence lapse and have it automatically suspended?
a. It saves money.
b. The reason for suspension is shown on the public register.
c. It reduces the risk of losing your licence and having to apply for a new one.
d. All of the above.
What does 'easily cleaned' mean in Building Code clause E3?
Determination 2019/009 discusses whether a carpet in a laundry could be ‘easily cleaned’.
Clauses E3.3.3 and E3.3.5 state that surfaces must not only prevent water seeping through them but also be 'easily cleaned'. The Building Code does not define 'easily cleaned'.
A designer submitted a building consent that included the use of carpet glued over a concrete slab for a laundry in an attached garage. The carpet was described as 'non-absorbent', but was not impervious.
The building consent authority (BCA) and designer disagreed over whether the proposed carpet could be 'easily cleaned'. The designer believed it could, using the carpet supplier's cleaning procedures: vacuuming, spot cleaning with warm water and detergent for soiling, and the use of a wet and dry vacuum to remove moisture. The BCA believed the carpet was not easily cleaned and would allow mould to grow.
The determination considered the functional requirement of Clause E3.2(a) to help define 'easily cleaned'. It requires buildings to be constructed to avoid the likelihood of mould growing or build-up of contaminants on surfaces and other building elements. Therefore, the determination considered 'easily cleaned' meant that any contamination could be removed with little exertion and without specialist equipment.
For guidance, the determination referenced the finishes and linings listed in E3/AS1 as impervious and easily cleaned. These surfaces shared common features, which included being solid, dense, flush, smooth, uniform, and were waterproof. Little exertion or specialist equipment would be needed to clean these surfaces.
In this case, the proposed carpet was soft, textured and uneven, which increased the chance of contaminants becoming trapped. The increased effort to clean textured surfaces meant it was likely that not all contaminants would be removed. This would result in the build-up of contaminants over time in the carpet.
The determination decided the carpet would hold contaminants and remain wet for longer periods of time than those surfaces listed in E3/AS1.
It was found that the carpet in the laundry space of an attached garage did not comply with the 'easily cleaned' performance requirement of clauses E3.3.3 and E3.3.5.
You can read previous determinations in the determinations register.