Last updated: 15 March 2016
Disputes can cause delays to the construction process, or building sale, so MBIE tries to issue determinations as quickly as possible, and follows a set process.
We are required to avoid unnecessary delay and formality and recognise tikanga Māori.
We must also follow the ‘rules of natural justice’. This is significant because they require us to:
- ensure the party whose decision is being disputed (usually the council) knows the application has been made
- ensure all relevant material is copied to all parties, for example, draft determinations, correspondence, experts’ reports
- give enough time for the applicant and other parties to respond to reports, submissions by other parties, etc
- grant a hearing if one is requested
- give reasons for the decision reached.
We understand that progress on a building project or a house sale, for example, may be being held up by the determination. We will aim to issue the determination as quickly as possible to minimise disruption.
The steps in the determination process
Application received and accepted
When we receive the application, we will decide whether the Building Act applies to the dispute or question. If it is a valid application by a relevant party relating to the Building Act, the fee must be paid. We will then confirm the acceptance to the applicant and tell the other parties that a determination has been applied for and has been accepted. We must do this within 10 working days.
Application reviewed in detail
We will look at all application information and ask for clarification if needed, or any other information that might help us make a determination. We may also need to clarify the matter being disputed.
Independent expert appointed
Determinations often concern technical matters. If needed, we might engage an independent expert at our expense to investigate and report on the matter. We will forward a copy of the expert’s written report to all the parties for their comment. For complex determinations, we might appoint more than one expert.
We will review all of the information and produce a draft of the determination. The draft will be sent to all parties for comment.
Holding a hearing, if requested
Any party to a determination can request a hearing. This is more like a professional meeting or technical discussion than a formal hearing. Legal representation is not necessary, although you can have a lawyer, technical advisor or agent attend and speak on your behalf if you wish. It provides an opportunity, before the final determination is issued, for the parties to present their view on the matter in dispute in person, or through an agent, before the Manager, Determinations and Referee(s). MBIE will not make a decision at the hearing.
If a hearing is held it will usually be after the release of a draft determination. Written material can be submitted at a hearing, but any significant amounts of information should be supplied before the hearing. That way other parties have time to consider it and can respond at the hearing.
A hearing can be requested at any time during the determination process. Hearings usually take place somewhere local to the parties. Sometimes site meetings are held to clarify technical issues arising from the determination.
Final determination issued
We will issue the final determination after all parties have commented on the draft and after any hearing. The final determination will respond to matters raised in response to the draft determination or at the hearing, if one was held.
The final determination will appear on MBIE’s website, as public information and will be held by the National Library.
How long a determination takes
We understand that a dispute may delay progress on a building project or a house sale, so we try to issue the determination as quickly as possible.
We are required to issue the final determination within 60 working days of receiving the application, or longer if all parties agree.
This period does not include the time it takes for us to get additional information, or the period when the parties are commenting on a draft. The ‘clock is stopped’ during these times. If you can’t give us the requested information by the date given, you can ask for an extension. If the information requested is not provided in reasonable time we have the power to make the determination without it.
Required building work – prior to a determination
The council generally can only make you do work that relates to safety while you're waiting for the determination to be issued. In that case, MBIE will issue an ‘interim direction’ under section 183 of the Building Act. This means you must comply with the notice issued by the council about work that is dangerous, earthquake-prone or insanitary, and this remains in effect while the determination proceeds and must be complied with. In any other instances, the council can’t require you to carry out building work related to the determination unless MBIE agrees this is necessary.
Questioning the determination
If you think something in the final determination is wrong, or you wish to correct an error, you can ask us to clarify or correct the error and reissue the determination. For example, we can correct inconsequential mistakes, such as an incorrect date. However:
- you cannot raise new information or new matters; clarification is not an avenue for re-litigation of the matters covered in the determination
- we can’t make changes that affect the other parties, unless the parties also agree to the change
- we can’t make any changes if the determination is being appealed.
Clarifications or corrections can only be made within 20 working days of the determination being issued, so if you are seeking a clarification, you should notify us as early as possible after receiving the final determination.
If you believe the determination reached the wrong decision, the determination can be appealed through the District Court. The notice of appeal must be filed with the Registrar of the District Court within 15 working days after the determination is issued.