Applying discretionary exemptions for flood damaged buildings

Last updated: 7 December 2023

When homes have been damaged by floodwaters, territorial and regional authorities are able to use their discretion to allow proposed building work to be carried out without obtaining a building consent.

Information on this page provides a consistent starting point for Building Consent Authorities (BCAs), Territorial Authorities (TAs) and Regional Authorities (RAs) when considering how to plan for and apply their discretion (known as a discretionary exemption), in relation to flood damaged buildings.

Granting discretionary exemptions

BCAs, TAs and RAs can grant discretionary exemptions provided that:

  • the work is likely to comply with the Building Code, or
  • if the completed building does not comply, it is unlikely to endanger people or any building, whether on the same land or on other property.

All building work, whether it needs a building consent or not, must be carried out in line with the Building Code and should not reduce the level of the building’s performance compared to its pre-flood condition. It must also comply with any other relevant legislation, such as the Resource Management Act 1991.

BCAs, TAs and RAs should avoid issuing blanket discretionary exemptions for building work where possible and should always consider providing constraints around any discretionary exemptions that are:

  • attributed to a certain event
  • within a limited timeframe
  • within a certain geographic area
  • a certain type of building or element.

Things to consider

If BCAs, TAs and RAs grant discretionary exemptions, they should consider:

  • Developing a clear policy and procedure for accepting, assessing, and granting discretionary exemptions under Schedule 1(2) of the Building Act.
  • Providing and communicating a clear process to anyone applying for a discretionary exemption that sets the expectations.
  • Ensuring it is clear that a discretionary exemption must still be applied for (including providing supporting evidence and payment of any fees), even if they have indicated the particular type of building work that may be considered for a discretionary exemption.
  • Ensuring it is clear that each application will be reviewed and decided on individually.
  • Noting that a discretionary exemption under Schedule 1(2), or any clause of Schedule 1, means that any associated building inspections would not occur, expect in agreement with the building owner.
  • Ensuring homeowners are aware of the liability they retain for building work carried out under a discretionary exemption and that a Code Compliance Certificate will not be provided by the Council on completion of the building work.
  • Providing a way for homeowners to place a record of the exemption on the property file.

If BCAs, TAs and RAs choose to specify certain types of building work that may be considered for a discretionary exemption, they should provide a clear description of the type of work being considered and list the evidence and documentation required to support an application.

When determining the likelihood of risk, consider the location of the building work and its proximity to the property boundary and/or other buildings.

When determining the likelihood of compliance with the Building Code, consider the following:

  • any substantial previous demonstration of competence in carrying out similar work by those undertaking the project
  • the complexity of the building work relative to the competence of those carrying it out, and
  • any independent quality assurance systems or checks that will be applied in the course of the work.

In addition to these, there are other areas that BCAs, Tas and RAs should consider. Read about these in the quick guide in the resources section of this page.

Recording your decisions

In all cases, it is important that BCAs, TAs and RAs record their decision, the reason for it and the outcome, and include this information on the property file relating to the building work.


Quick guide

The quick guide contains the information available on this page, along with some additional information.

Discretionary exemptions for flood damaged buildings quick guide [PDF 1.4MB]

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: