Last updated: 28 July 2017
Determinations are legally binding decisions made by the Ministry of Business, Innovation and Employment (MBIE). They are for matters of doubt or dispute to do with building work outlined in the Building Act and the Building Code. They are not for disputes about workmanship. Most determinations are applied for by building owners, but councils and certain other people can also apply.
Is a determination right for you?
A determination can be useful if you disagree with a council’s decision under the Building Act or Building Code, but it isn’t the best option for everyone. There are other ways to try to solve your dispute.
You may have already asked MBIE for an opinion or advice about the same question. A determination is different because MBIE takes a detailed look at the specific matter and makes a legally binding decision. The law that covers determinations is set out in the Building Act 2004 (sections 176-190).
If you have been unable to resolve a problem by talking to the people involved, you may need to take a different approach or next step. Consider these options.
- First steps – self-resolution
- Activate your consumer rights
- Formal complaints
- Mediation, arbitration and adjudication
- Disputes Tribunal and courts.
Examples: Reasons for wanting a determination.
A building owner might want a determination when:
- a council refuses to issue a building consent for a proposed building
- they have been refused a code compliance certificate for a building that appears to be completed and they believe is compliant
- building work on a neighbouring property is affecting the stability of their own property
- they disagree with a notice to fix.
A determination might not be right for your situation. There are other options for handing disputes, including using consumer rights, contracts and mediation.
Who can apply for a determination
You can apply for a determination if you are a:
- building owner
- licensed building practitioner concerned with the relevant building work
- council or building consent authority
- person who has been issued with a notice to fix
- neighbour or owner of an 'other property' where the building work of a nearby property is affecting the protection of your own. This relates to issues such as land stability, surface water run-off and potential spread of fire between properties
- person with a direct interest in the issue if it relates to access and facilities for people with disabilities
- person or organisation who or that has a right or an obligation under any other Act to give written notice to a territorial authority in respect of matters to which this Act relates.
Section 176 of the Building Act sets out who is eligible to apply for a determination. Those involved in a determination, including the person who applies for it, are called ‘parties’.
MBIE can also initiate a determination if it believes this necessary to achieve the aims of the Building Act.
If you choose to apply for a determination, you will be legally required to send all parties a copy of your application.
Being a party to someone else's determination
The list of those who may be parties to a determination is the same as those who can apply for one. The council is usually a party to a determination. MBIE might also identify parties that need to be involved.
If someone has applied for a determination and identified you as a party, they will send you a copy of their completed application. They will also send a form for you to complete and return to MBIE.
If you are a party to a determination, you will get copies of all information and correspondence from the other parties and MBIE. You can also provide your own information and comments as the determination proceeds.
Example: Parties to a determination
A building owner asks for a determination. They believe the builder (a licensed building practitioner) did not build their house in accordance with the plans, and that the council should not have issued a code compliance certificate for this building work. In this case, the parties to the determination are the 'building owner', the 'builder' and the 'council'.
Persons with an interest
It is appropriate to include in the determinations process persons whose rights, obligations or interests might be affected by the outcome of the determination. Where those persons do not meet the test of a party under section 176, they are included as a person with an interest.
Persons with an interest in a determination may include:
- a person involved in a civil dispute where the determination may be used in evidence
- designers and builders whose work is the subject of the determination but who do not meet the definition of a party under section 176 – typically designers and builders whose work is in respect of buildings or building work that is not Restricted Building Work
- developers, franchise holders, sector bodies
- a manufacturer or supplier of a product
- a neighbour who is not a party under section 176(e)(i) as the matter for determination does not relate to a provision in the building code that has the purpose of protecting other property, but has an interest in the determination (e.g. as it relates to building work near their boundary).
There may be others to be considered as persons with an interest where the outcome of the determination may set a precedent or have national significance.
At any stage during the determinations process, parties or persons with an interest in the determination may be identified either by the Ministry or one of the parties involved. When a person with an interest has been identified, the Ministry will notify the parties involved in the determination.
What determinations can decide
A determination can:
- make a decision on whether building work complies with the Building Code. The building work can be planned, underway or complete.
- confirm, reverse or modify council decisions on certain issues. For example, a determination may say the council was correct to refuse to issue a particular building consent.
A determination is not intended to replace the council's decision-making process and responsibility, but rather to consider particular matters in dispute.
Determinations can only consider council decisions relating to:
- building consents
- notices to fix
- code compliance certificates
- compliance schedules
- certificates of acceptance
- granting waivers or modifications of the Building Code
- discretionary exemptions from requiring building consent (which councils can make under Schedule 1(2) of the Building Act)
- compliance requirements for building alterations
- changes of building use
- building code compliance requirements for a building subdivision
- dangerous, affected, and insanitary buildings
- earthquake prone buildings
- certificates for public use
- certificates issued under section 224(f) of the Resource Management Act 1991
In most cases, applications for determinations are in regards to council decisions. However, during an emergency 'responsible persons' may exercise powers under the Act.
A building owner or other affected party may apply to MBIE for a determination on any decision by a responsible person about:
- measures to protect buildings or keep people at a safe distance
- notices or placards restricting the use of buildings
- 'other works' to remove or reduce risks
- works to make buildings suitable for long-term use or occupation.
An application for a determination cannot be made if the responsible person was the Minister for Building and Construction or a territorial authority acting under the direction of the Minister.
What determinations can't decide
A determination can only be made on the matters described above. A determination is unable to consider:
- Resource Management Act or District Plan disputes
- Contractual disputes
- Disputes with neighbours – unless you are the owner of 'other property' as described above.
A determination is not a substitute for product certification – these should be directed to the relevant product certification body.
RMA disputes and the Environment Court – Ministry for the Environment
Contractual disputes and the Disputes Tribunal – Disputes Tribunal
Use of previous determinations
Previous determinations may provide some guidance if you are faced with similar problems. Each determination is clearly written so you can see the analysis leading to the decision.
MBIE is not bound by previous determinations in the same way a court is bound by the decisions of a higher court. However, they are taken into account if the circumstances are similar.
Search previous determinations for free downloads of determinations – Building Code Hub
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