The Building Act 2004 includes powers for the management of buildings located in a designated area following an emergency. Some of these powers can be the subject of a determination.
Powers of decision relating to buildings affected by emergency
The Building Act (at section 133BC) allows for a territorial authority or the relevant Ministers to designate an area following an emergency. Specified powers can then be exercised by 'responsible persons' (as outlined by sections 133BJ and 133BK of the Act) for the management of buildings located in the designated area. Some of these powers can be the subject of a determination.
This page relates specifically to determinations regarding the power of decision where buildings are affected by emergency.
What a determination can decide (relating to powers of decision relating to buildings affected by emergency)
Section 177 of the Building Act outlines the specific sections of the Building Act, which relate to buildings affected by emergency, and which may be the subject of a determination. A determination can confirm, reverse or modify the following decisions by a responsible person:
- Section 133BS (put in place measures to keep people at a safe distance or protect buildings)
- Section 133BT (place notices and signs on buildings)
- Section 133BW (carry out and/or direct works to remove or reduce other risks)
- Section 133BX (direct works for long-term use or occupation of buildings)
What a determination can't decide (relating to powers of decision relating to buildings affected by emergency)
In respect of decisions relating to buildings affected by emergency, MBIE can only make a determination on the matters above.
In addition, a determination cannot be made in relation to the exercise of powers by the Minister or a territorial authority acting on the direction of the Minister.
Who can apply for a determination
The list of those who may be a party to a determination relating to a building affected by emergency is the same as those who may be a party to a determination generally.
When an application is made, decisions of a responsible person relating to section 133BW and section 133BX are suspended until MBIE has made a determination. Decisions of a responsible person relating to section 133BS and section 133BT remain in force until a determination has been made.
Applying for a determination (relating to powers of decision relating to buildings affected by emergency)
If you're unsure whether applying for a determination is your best option, you can contact us for more information.
You can submit your application one of two ways:
- through our online application form
- through our PDF paper application form.
If you choose to use our paper application form, please keep in mind it’s in two parts:
- Part 1: Application for determination
- Part 2: Party to an application for determination.
The following steps are all inclusive in our online application form, with the exception of sending each of the other parties a copy of the determination. Please note that you are legally required to send all parties a copy of your application for determination.
If you use the pdf application you will need to send MBIE:
- your completed Part 1
- your supporting documents
- the correct application fee.
If you use either the pdf application or the online application you will need to send each of the other parties a copy of:
- your completed Part 1 (if you use the online form, your completed application)
- your supporting documents
- Part 2 with section M filled in (they will need to complete the rest of this form and return it to MBIE).
The last part (regarding section M) is not required if you use the online portal.
If you are using our PDF paper application form, please scan this and submit an electronic copy. If you have large attachments to submit, contact us and we will advise on how best to send these to us.
NOTE: The information and supporting documents provided are important for MBIE to make a determination. If you do not provide the relevant information, or MBIE needs to make a request for further information that is missing, this will result in delays in making a determination. The application form has suggestions about what to include and how to present your supporting information.
For more information relating to the cost of a determination, reasons your application may be declined and withdrawing your application.
Timeframes and if further information is required
In respect of the powers exercised under sections 133BS, 133BT, 133BW, or 133BX of the Building Act, MBIE is required to issue the final determination within 60 working days of receiving the application, or in some situations within 15 working days.
MBIE is required to issue the final determination within 15 working days of receiving the application, if:
- the application relates to powers exercised under section 133BS, 133BT, 133BW, or 133BX of the Building Act, and
- the application for determination is made within 6 months after the date the area is 'designated' for building emergency management under the Building Act, and
- the chief executive (or those acting under delegated authority from the chief executive) considers the subject matter is not complex, and
- the chief executive (or those acting under delegated authority from the chief executive) considers subject matter is not relevant to other buildings in the designated area.
If your application does not meet the above criteria, the timeframe to make a determination is within 60 working days of receiving the application.
MBIE will advise you of the relevant timeframe when your application for determination is accepted.
MBIE may need additional information from you to support a determination. The process will take longer than the relevant timeframe if further information is required in order for MBIE to make a decision. The 60 working days or 15 working days timeframe can also be extended if all parties agree.
If you are unable to provide the information in the timeframe requested you can ask for an extension, but MBIE can make the determination without it if the information cannot be provided in a reasonable timeframe.
If you're unsure about the relevant timeframe for a determination, you can contact us for more information.
Steps in the determination process (relating to powers of decision relating to buildings affected by emergency)
Our steps in the determination process page describes the process for a determination that must be issued within 60 days of receiving an application, including requesting clarifications and appealing an issued determination which are also relevant to those required to be issued within 15 working days.
The key steps in the process for a determination that must be issued within 15 working days of receiving an application are explained below:
MBIE receives and considers the application
When MBIE receives an application for a determination the first step is to consider whether the applicant is a 'party', and whether the particular matter is something that can be determined under the Building Act.
MBIE will also consider whether the application form has been completed and the relevant information has been provided. MBIE will not start working on the determination if the application form is incomplete and the correct fees have not been paid.
MBIE will advise the parties whether we will make determination on the application and the relevant timeframe to issue a final determination.
MBIE will assess all the information provided with the application. Once we have assessed the information we may need to ask for clarification or for any other details that might help us make a determination. If MBIE needs to make a request for further information or information that is missing, this will result in delays in making a determination.
Final determination issued
Once we have the relevant information a decision can be made. Given the 15 working days timeframe it is unlikely a draft determination will be issued to the parties prior to the final determination being made; this is at the discretion of the chief executive (or those acting under delegated authority from the chief executive). Once a decision is made the final determination will be issued.
If you need more help, contact MBIE on:
Phone: 0800 24 22 43