2. Territorial and regional authority discretionary exemptions

Temporary outdoor event seating and a statue

Territorial authorities (councils) can use their discretion to exempt certain proposed building work from requiring a building consent.

What the law says

Subject to section 42A of the Building Act, Schedule 1 exempts the following from a building consent:

Any building work in respect of which the territorial authority or regional authority considers that a building consent is not necessary for the purposes of this Act because the authority considers that:

(a) the completed building work is likely to comply with the building code; or
(b) if the completed building work does not comply with the building code, it is unlikely to endanger people or any building, whether on the same land or on other property.

Guidance on the exemption

Exemption 2 allows territorial authorities (city or district councils) or regional authorities (regional councils) to use their discretion to exempt any proposed building work from the requirement to obtain a building consent if the territorial or regional authority considers that the circumstances in (a) or (b) of the exemption are met.

This is the only exemption in Schedule 1 which requires a territorial or regional authority to make a decision about any proposed building work. For all the other exemptions, it is up to the owner to decide whether an exemption in Schedule 1 applies.

This exemption can be applied across a wide range of building work. At one end of the scale, the council may choose to exempt simple, low-risk, repetitive-type building work; eg relating to farm buildings, proprietary garages or bus shelters (typically buildings of importance level 1 from Building Code clause A3 – Building importance levels).

At the other end of the scale, the building work could be for complex engineered projects where the construction will be designed and supervised by chartered professional engineers. These might include complex temporary stage and lighting towers, or major infrastructure projects such as motorway tunnels, electrical substations for rail networks or substantial wharf repairs.

In these cases, the work is likely to comply, because skilled professionals are doing or supervising the work, and furthermore, council’s processing and inspecting procedures would add little value to the overall process.

As a building owner:

  • If you want your proposed building work to be considered for this exemption, we suggest that you or your agent start by discussing it with the relevant council.
  • It is then likely that you will have to make a formal written request.
  • In making its decision on whether or not to require a building consent, the council will take into account what it considers the risk is, that your building work will not comply with the Building Code or will endanger people or property.

As a territorial or regional authority:

You should have procedures for making formal decisions under exemption 2 that meet the criteria of subclauses (a) and (b) above.

When determining the likelihood of compliance, we suggest your considerations include:

  • any substantial previous demonstration of competence in carrying out similar work by the people who will carry out this work (eg a history of previous building work in the council’s district)
  • the complexity of the building work relative to the competence of the people who will carry it out, and
  • any independent quality assurance systems or checks that will be applied in the course of the work.

In determining the likelihood of endangerment, we suggest your considerations include:

  • the location of the building work (eg whether it is high density urban or remote rural), and
  • how close it will be to the property boundary and/or other buildings.

In all cases, we recommend that you (the territorial or regional authority) record your decision, the reason for it and the outcome, and place this information on the property file relating to the building work.

The Ministry has produced a guidance document that outlines good practice relating to the use of this exemption (which corresponds to exemption (k) in the December 2010 version of Schedule 1) and also covers some suggested policy and procedures.

Guidance in relation to Schedule 1(k) exemptions and issuing building infringement notices [PDF 590 KB].

Any type of building work could potentially be considered under this exemption. However, all building work carried out under this exemption should comply fully with the Building Code and all other relevant legislation.

Council policies for allowing discretionary exemptions will vary depending on the scope of the building work and who is undertaking that work. Therefore, as it is difficult to give general examples of the possible application of this exemption, we have shown a series of projects which were considered exempt building work by one territorial authority. These were (clockwise from left):

  1. Temporary wharf
  2. Statue
  3. Substantial wharf repairs
  4. Bus shelter
  5. Electrical substation for the rail network.
  6. Freestanding sign
  7. Temporary tiered seating



Check with the council

It is recommended that you discuss with council, or check its website, to see if the council has a policy to exempt certain building work under exemption 2, which may, or may not, require a formal application.

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: