Regulation 7(2)(d)(v) – Granting, refusing to grant, and issuing building consent

Last updated: 10 April 2017

 

MBIE’s guidance on meeting the accreditation requirement

Regulation 7(2)(d)(v) of the Building (Accreditation of Building Consent Authorities) Regulations 2006 (the Regulations) must be read in conjunction with regulations 5 and 6.

The policies and procedures required by regulation 7 must be written and/or electronic, and appropriate for purpose.

A building consent authority (BCA) must ensure that the policies, procedures and system required by regulation 7 are consistently and effectively implemented. BCAs must ensure they record the decisions they make under regulation 7, including the reasons for the decisions, as well as the outcomes.

Checklist for regulation 7(2)(d)(v) outlines the minimum criteria for compliance.

Regulation 7(2)(d)(v) requires a BCA to have policies, procedures and systems for deciding a consent application that include processes for:

  1. granting a building consent
  2. issuing a building consent
  3. agreeing a timeframe (other than 12 months) after which a building consent may lapse
  4. refusing a building consent, including the detail at which reasons will be provided

Granting a consent

Granting a consent under section 51 of the Act

A BCA’s process for granting a building consent must enable it to comply with the legal test in section 49 of the Building Act 2004 (the Act). It is important to note that a BCA is not required to grant a building consent, regardless of the time limit imposed in section 48 of the Act, if it has not received any required fees and levies.

Granting a consent subject to section 72 of the Act

Where a building consent is granted subject to section 72 of the Act, the BCA must comply with the notification requirements in section 73 of the Act. 

Granting a consent subject to section 77 of the Act

Where a building consent is granted subject to section 77 of the Act, the BCA must:

  • ensure that the territorial authority has issued any certificate required under section 75(2)
  • note on the consent any conditions imposed in the certificate issued by the territorial authority.

Granting building consent applications is a technical job. It must be undertaken by a competent employee or contractor. However, it is not a breach of the Regulations where a manager has been given the administrative authority to officially sign out a building consent on the BCA’s behalf, even where the decision related to that consent has (effectively) been made by someone else.

Issuing a consent

A BCA’s process for issuing a building consent must comply with the requirements of section 51 of the Act and ensure that:

  • it is issued consistently with the requirements of the prescribed form
  • it advises the applicant of its entitlement to undertake inspections under section 90 of the Act
  • it includes, as required, a copy of:
    • any project information memorandum
    • the applicant’s development contribution notice under section 36 of the Act (if any)
    • a certificate issued under section 37 of the Act (if any)
  • it includes, as required, the following notifications:
    • those under section 73 of the Act
    • that Heritage New Zealand Pouhere Taonga has been notified under section 39 of the Act
  • if a compliance schedule is required as a result of the building work, state:
    • the specified systems that must be covered by the compliance schedule
    • the performance standards for the specified systems that are required
  • if an amendment to an existing compliance schedule is required as a result of the building work, state:
    • the specified systems that must be covered by the compliance schedule
    • the performance standards for the specified systems that are required
  • it provides for any territorial authority documents or information to be sent to an applicant if and when they are received (s 51(1)(3)(4))
  • it provides that the applicant is advised of any requirement under any other Act which will prevent the commencement of building work (s 51(2)), eg the Resource Management Act.

If a BCA does not receive any document or information from the territorial authority in the timeframe within which it must process and decide a building consent, it is not a breach of the Act or the Regulations to not provide any of the territorial authority information detailed in section 51 of the Act. Section 51(4) requires the BCA to send this information on when it is received.

Agreeing a timeframe (other than 12 months) after which a consent may lapse

A building consent automatically lapses 12 months after the date of issue if no building work has commenced. However, section 52 of the Act provides that a BCA can allow it to remain valid for a further period.

A BCA must have a policy, procedure and system for making a decision on whether to extend the timeframe in which a consent remains valid. It is sufficient that the policy is only applicable on receipt of an application. A BCA is not required to take any active steps to lapse or consider extending every consent to which section 52(b) may apply.

A BCA’s policy should also address how long an extension can be made for, and whether further extensions can be granted. It is sufficient that the policy provides that these decisions be made on a case-by-case basis. The Ministry of Business, Innovation and Employment notes that there are no legal limitations on a BCA’s decisions in these circumstances.

Refusing a consent and providing reasons

A BCA’s policy, procedure and system must provide for the refusal to grant a building consent application:

  • where the information received, at any time prior to granting a consent, is materially insufficient or inadequate
  • in writing, stating the refusal and reasons for the refusal.

Returning or rejecting a consent application at initial receipt and checking

A BCA does not have to accept for processing any application that is not a complete application and does not comply with the Act and associated regulations (and does not contain all the relevant information).

A BCA’s policy, procedure and system may provide that it returns or rejects a non-complete application. It is adequate for the BCA to:

  • advise the applicant that the application is non-compliant with the Act and associated regulations
  • reference the relevant information that is absent or where the application is deficient.

For example, the BCA may make a statement such as:

“We consider that your application is non-compliant with the Building Act 2004 and associated regulations that require us to be provided with certain information. Insufficient information has been provided in the prescribed Form 2 (Application for project information memorandum and/or building consent). It was noted that several required fields were not populated (this included the legal description of land where the building is located, owner and contact details, estimated value of the building work). Furthermore, the applicant has not signed Form 2.”

Refusing a consent application on assessment prior to processing

A BCA’s policy, procedure and system may provide that it refuses a materially insufficient and inadequate application. It is adequate for the BCA to:

  • advise the applicant that the application is materially insufficient
  • reference the relevant information that is absent or deficient.

For example, the BCA may make a statement such as:

“We are refusing your application for a consent. We consider that the application and accompanying information were insufficient for us to make a decision about your proposed building work’s compliance with the New Zealand Building Code. In particular:

  • A generic specification has been provided which includes trades and products/materials that are not relevant to this project. The specification should be edited so that it accurately reflects the proposed building work.
  • A report is required on how the owner intends to address the building’s means of escape from fire, protection of other property, sanitary facilities, structural/fire-rating performance, and access/facilities for people with disabilities. This report will assist the council in making a decision on the level of upgrade required for this building.
  • We require information about the proposed inspection, maintenance and reporting procedures for the modified and new specified systems.”

Refusing a consent application after an RFI and as a result of processing

The RFI process is not intended to act as a safety net for a poorly written application. A BCA can refuse a building consent if the information received in response to an RFI is materially insufficient and inadequate. There is little value in trying to use multiple RFI processes to try to rectify a consent application that has material or multiple flaws.

A building consent must also be refused where the employee or contractor processing the consent is not satisfied on reasonable grounds that the building work would comply with the Building Code.

Section 50 of the Act provides that where a building consent is refused an applicant has to be given:

  • written notice of the refusal to grant an application
  • reasons for the refusal.

A BCA may provide written notice by way of letter, fax or email.

When refusing a building consent as a result of processing, it is adequate for a BCA to state:

  • it is not satisfied on reasonable grounds that the building work would comply with the Building Code
  • the relevant Building Code clause where the application is deficient.

For example, the BCA may make a statement such as:

“We are refusing your application for a consent. We are not satisfied on reasonable grounds that your proposed building work would comply with the New Zealand Building Code. In particular:

  • We are not satisfied, on reasonable grounds, that the proposed wall cladding product, recently introduced to New Zealand, complies with Building Code clauses B2 (Durability) and E2 (External moisture)
  • Our request for further information (RFI) about the cladding has not been supplied within what is considered to be a fair and reasonable timeframe (that was 30 working days from the date of the original RFI)”.

A BCA is not required to provide detailed reasons for each Building Code clause as to why an application may be deficient, or to detail all the deficiencies. It is also not required to provide any advice on how to rectify any deficiencies. This may blur the lines between the role and responsibilities of the applicant, and the role of the BCA (as the regulator).

You can read the following on the Legislation website:

Administrative authority definition can be found in the glossary.

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: