Building Act 2004
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Reprint as at 12 November 2018
Building Act 2004
Public Act |
2004 No 72 |
|
Date of assent |
24 August 2004 |
|
Commencement |
see section 2 |
Note
Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.
Note 4 at the end of this reprint provides a list of the amendments incorporated.
This Act is administered by the Ministry of Business, Innovation, and Employment.
Contents
1 Title
This Act is the Building Act 2004.
Part 1 Preliminary provisions
Subpart 1—General
Commencement
2 Commencement
(1)
The following provisions come into force on 30 November 2004:
(a)
(b)
Part 1 (except sections 12 to 14):
(c)
sections 131 and 132:
(d)
subpart 1 of Part 3:
(e)
(f)
Part 5 (except sections 414 and 415, 429 to 448, and 450):
(g)
(2)
The rest of this Act comes into force on 31 March 2005 (except sections 45(1)(e) and 45(2) to 45(4) and 84 to 89).
(3)
Sections 45(1)(e) and 45(2) to 45(4) and 84 to 89 come into force on 30 November 2010.
Section 2(3): amended, on 15 March 2008, by section 4 of the Building Amendment Act 2008 (2008 No 4).
Purpose and principles
3 Purposes
This Act has the following purposes:
(a)
to provide for the regulation of building work, the establishment of a licensing regime for building practitioners, and the setting of performance standards for buildings to ensure that—
(i)
people who use buildings can do so safely and without endangering their health; and
(ii)
buildings have attributes that contribute appropriately to the health, physical independence, and well-being of the people who use them; and
(iii)
people who use a building can escape from the building if it is on fire; and
(iv)
buildings are designed, constructed, and able to be used in ways that promote sustainable development:
(b)
to promote the accountability of owners, designers, builders, and building consent authorities who have responsibilities for ensuring that building work complies with the building code.
Section 3: replaced, on 13 March 2012, by section 4 of the Building Amendment Act 2012 (2012 No 23).
4 Principles to be applied in performing functions or duties, or exercising powers, under this Act
(1)
This section applies to—
(a)
the Minister; and
(b)
the chief executive; and
(c)
a territorial authority or regional authority (but only to the extent that the territorial authority or regional authority is performing functions or duties, or exercising powers, under subpart 6A of Part 2 (which relates to earthquake-prone buildings) or in relation to the grant of waivers or modifications of the building code or the adoption and review of policy on dangerous and insanitary buildings or dangerous dams).
(2)
In achieving the purpose of this Act, a person to whom this section applies must take into account the following principles that are relevant to the performance of functions or duties imposed, or the exercise of powers conferred, on that person by this Act:
(a)
when dealing with any matter relating to 1 or more household units,—
(i)
the role that household units play in the lives of the people who use them, and the importance of—
(A)
the building code as it relates to household units; and
(B)
the need to ensure that household units comply with the building code:
(ii)
the need to ensure that maintenance requirements of household units are reasonable:
(iii)
the desirability of ensuring that owners of household units are aware of the maintenance requirements of their household units:
(b)
the need to ensure that any harmful effect on human health resulting from the use of particular building methods or products or of a particular building design, or from building work, is prevented or minimised:
(c)
the importance of ensuring that each building is durable for its intended use:
(d)
the importance of recognising any special traditional and cultural aspects of the intended use of a building:
(e)
the costs of a building (including maintenance) over the whole of its life:
(f)
the importance of standards of building design and construction in achieving compliance with the building code:
(g)
the importance of allowing for continuing innovation in methods of building design and construction:
(h)
the reasonable expectations of a person who is authorised by law to enter a building to undertake rescue operations or firefighting to be protected from injury or illness when doing so:
(i)
the need to provide protection to limit the extent and effects of the spread of fire, particularly with regard to—
(i)
household units (whether on the same land or on other property); and
(ii)
other property:
(j)
the need to provide for the protection of other property from physical damage resulting from the construction, use, and demolition of a building:
(k)
the need to provide, both to and within buildings to which section 118 applies, facilities that ensure that reasonable and adequate provision is made for persons with disabilities to enter and carry out normal activities and processes in a building:
(l)
the need to facilitate the preservation of buildings of significant cultural, historical, or heritage value:
(m)
the need to facilitate the efficient use of energy and energy conservation and the use of renewable sources of energy in buildings:
(n)
the need to facilitate the efficient and sustainable use in buildings of—
(i)
materials (including materials that promote or support human health); and
(ii)
material conservation:
(o)
the need to facilitate the efficient use of water and water conservation in buildings:
(p)
the need to facilitate the reduction in the generation of waste during the construction process.
(q)
the need to ensure that owners, designers, builders, and building consent authorities are each accountable for their role in ensuring that—
(i)
the necessary building consents and other approvals are obtained for proposed building work; and
(ii)
plans and specifications are sufficient to result in building work that (if built to those plans and specifications) complies with the building code; and
(iii)
building work for which a building consent is issued complies with that building consent; and
(iv)
building work for which a building consent is not required complies with the building code.
Compare: 1991 No 150 s 6(2)
Section 4(1)(c): amended, on 1 July 2017, by section 4 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 4(2)(k): amended, on 15 March 2008, by section 5 of the Building Amendment Act 2008 (2008 No 4).
Section 4(2)(q): inserted, on 13 March 2012, by section 5 of the Building Amendment Act 2012 (2012 No 23).
Overview
5 Overview
(1)
This Act replaces the Building Act 1991.
(2)
In this Act,—
(a)
this Part deals with preliminary matters, including—
(i)
the purpose of this Act:
(ii)
interpretation:
(iii)
the application of this Act to the Crown:
(b)
Part 2 and Schedules 1 and 2 deal with matters relating to the building code and building control, including—
(i)
the requirements relating to building work (for example, the requirement for a building consent):
(ii)
the requirements relating to the use of buildings (for example, the requirement for a compliance schedule or the provisions relating to access to buildings by persons with disabilities):
(iii)
provisions for certain categories of buildings (including dangerous, earthquake-prone, or insanitary buildings):
(iv)
provisions for the safety of dams:
(v)
provisions relating to residential pool safety:
(c)
(i)
sets out the main functions, duties, and powers of the chief executive, territorial authorities, building consent authorities, and regional authorities under this Act:
(ii)
(iii)
provides for the appointment of a building consent accreditation body and the accreditation of building consent authorities:
(iv)
provides for the appointment of a dam owner accreditation body and the accreditation of dam owners:
(v)
provides for the appointment of a product certification accreditation body and the accreditation of product certification bodies:
(vi)
sets out a process for the certification of building methods or products:
(d)
Part 4 and Schedule 3 deal with matters relating to the licensing and disciplining of building practitioners, the establishment of the Building Practitioners Board, and the making of rules relating to licensed building practitioners:
(e)
Part 5 and Schedule 4 deal with miscellaneous matters that underpin the substantive provisions of this Act, including—
(i)
offences and criminal proceedings:
(ii)
implied terms of contracts that provide for building work to be carried out in relation to household units:
(iii)
regulation-making powers:
(iv)
amendments to other enactments and the repeal of the Building Act 1991:
(v)
transitional provisions.
(3)
This section is intended only as a guide to the general scheme and effect of this Act.
Section 5(2)(b)(v): inserted, on 1 January 2017, by section 4 of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 5(2)(c)(ii): amended, on 14 April 2005, by section 16(2)(a) of the Building Amendment Act 2005 (2005 No 31).
Transitional, savings, and related provisions
Heading: inserted, on 1 July 2017, by section 5 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
5A Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.
Section 5A: inserted, on 1 July 2017, by section 5 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Application of Act to the Crown
6 Act binds the Crown
(1)
This Act binds the Crown except as provided in subsections (2) to (4).
(2)
This Act does not apply to a Crown building or Crown building work if the Minister of Defence certifies in writing that the building or building work is necessary for reasons of national security.
(3)
An instrument of the Crown may be prosecuted for an offence against this Act only if—
(a)
it is a Crown organisation; and
(b)
the offence is alleged to have been committed by the Crown organisation; and
(c)
the proceedings are commenced—
(i)
against the Crown organisation in its own name and the proceedings do not cite the Crown as a defendant; and
(ii)
in accordance with the Crown Organisations (Criminal Liability) Act 2002.
(4)
The Crown may not be prosecuted for an offence against this Act, except to the extent and in the manner provided for in subsection (3).
Compare: 1991 No 150 s 5
Subpart 2—Interpretation
General
7 Interpretation
In this Act, unless the context otherwise requires,—
abode or place of abode—
(a)
means any place used predominantly as a place of residence or abode, including any appurtenances belonging to or enjoyed with the place; and
(b)
includes—
(i)
a hotel, motel, inn, hostel, or boarding house:
(ii)
a convalescent home, nursing home, or hospice:
(iii)
a rest home or retirement village:
(iv)
a camping ground:
(v)
any similar place
acceptable solution means an acceptable solution issued under section 22(1)
accredited dam owner means an owner of a dam who is accredited under section 258
allotment has the meaning given to it by section 10
alter, in relation to a building, includes to rebuild, re-erect, repair, enlarge, and extend the building
appurtenant structure, in relation to a dam, means a structure that is integral to the safe functioning of the dam as a structure for retaining water or other fluid
Authority means the Building Industry Authority established under section 10(1) of the former Act
Board has the meaning given to it by section 282
building has the meaning given to it by sections 8 and 9
building code means the regulations made under section 400
building consent means a consent to carry out building work granted by a building consent authority under section 49
building consent accreditation body means the person referred to in section 248(2)
building consent authority means a person whose name is entered in the register referred to in section 273(1)(a)
building levy means a levy payable under section 53
building method or product has the meaning given to it by section 20
building work—
(a)
means work—
(i)
for, or in connection with, the construction, alteration, demolition, or removal of a building; and
(ii)
on an allotment that is likely to affect the extent to which an existing building on that allotment complies with the building code; and
(b)
includes sitework; and
(c)
includes design work (relating to building work) that is design work of a kind declared by the Governor-General by Order in Council to be restricted building work for the purposes of this Act; and
cable car—
(a)
means a vehicle—
(i)
that carries people or goods on or along an inclined plane or a suspended cable; and
(ii)
that operates wholly or partly outside of a building; and
(iii)
the traction for which is supplied by a cable or any other means; but
(b)
does not include a lift that carries people or goods between the floors of a building
certificate of acceptance means a certificate issued under section 96
chief executive means the chief executive of the Ministry
classifiable dam has the meaning given to it by regulations made under this Act
code compliance certificate means a certificate issued by a building consent authority under section 95
compliance schedule means a compliance schedule required under section 100
consideration, in relation to estimated value, has the meaning given to it in section 2(1) of the Goods and Services Tax Act 1985
construct, in relation to a building, includes to design, build, erect, prefabricate, and relocate the building
crest, in relation to a dam, means the uppermost surface of a dam, not taking into account any camber allowed for settlement, or any curbs, parapets, guard rails, or other structures that are not part of the water-retaining structure; and for the avoidance of doubt, any freeboard is part of the water-retaining structure for the purposes of this definition
Crown organisation has the meaning given to it by section 4 of the Crown Organisations (Criminal Liability) Act 2002
dam—
(a)
means an artificial barrier, and its appurtenant structures, that—
(i)
is constructed to hold back water or other fluid under constant pressure so as to form a reservoir; and
(ii)
is used for the storage, control, or diversion of water or other fluid; and
(iii)
[Repealed](b)
includes—
(i)
a flood control dam; and
(ii)
a natural feature that has been significantly modified to function as a dam; and
(iii)
a canal; but
(c)
does not include a stopbank designed to control floodwaters
dam owner accreditation body means the person referred to in section 256
dam safety assurance programme means a dam safety assurance programme prepared by an owner of a dam under section 140
determination means a determination made by the chief executive under subpart 1 of Part 3
earthquake-prone building has the meaning given in section 133AB
earthquake rating has the meaning given in section 133AC
employee includes,—
(a)
in relation to a Crown organisation, the chief executive or principal officer (however described) of that organisation; and
(b)
in relation to the New Zealand Defence Force, a member of the Armed Forces (as that term is defined in section 2(1) of the Defence Act 1990)
energy work means—
(a)
gasfitting; or
(b)
prescribed electrical work
energy work certificate means a certificate of the kind referred to in section 19(1)(e)
engineering assessment, in relation to a building or a part of a building, means an engineering assessment of the building or part that complies with the requirements of the EPB methodology
EPB exemption notice means an exemption notice issued under section 133AN
EPB methodology means the methodology for identifying earthquake-prone buildings that is set by the chief executive under section 133AV
EPB notice means an earthquake-prone building notice issued under section 133AL
EPB register means the register of earthquake-prone buildings established and maintained under section 273(1)(aab)
estimated value, in relation to building work, means the estimated aggregate of the consideration, determined in accordance with section 10 of the Goods and Services Tax Act 1985, of all goods and services to be supplied for the building work
falsework, in relation to building work or the maintenance of a building,—
(a)
means any temporary structure or framework used to support materials, equipment, or an assembly; and
(b)
includes steel tubes, adjustable steel props, proprietary frames, or other means used to support a permanent structure until it becomes self-supporting; but
(c)
does not include scaffolding or cranes used for support
fire hazard means the danger of potential harm and degree of exposure arising from—
(a)
the start and spread of fire; and
(b)
the smoke and gases that are generated by the start and spread of fire
former Act means the Building Act 1991
functional requirements, in relation to a building, means those functions that the building is required to perform for the purposes of this Act
gasfitting has the meaning given to it by section 4 of the Plumbers, Gasfitters, and Drainlayers Act 2006
heritage building means a building that is included on—
(a)
the New Zealand Heritage List/Rārangi Kōrero maintained under section 65 of the Heritage New Zealand Pouhere Taonga Act 2014; or
(b)
the National Historic Landmarks/Ngā Manawhenua o Aotearoa me ōna Kōrero Tūturu list maintained under section 81 of the Heritage New Zealand Pouhere Taonga Act 2014
heritage dam means a dam that is included on—
(a)
the New Zealand Heritage List/Rārangi Kōrero maintained under section 65 of the Heritage New Zealand Pouhere Taonga Act 2014; or
(b)
the National Historic Landmarks/Ngā Manawhenua o Aotearoa me ōna Kōrero Tūturu list maintained under section 81 of the Heritage New Zealand Pouhere Taonga Act 2014
high potential impact dam means a dam that has been classified under section 134B as having high potential impact
high seismic risk has the meaning given in section 133AD
household unit—
(a)
means a building or group of buildings, or part of a building or group of buildings, that is—
(i)
used, or intended to be used, only or mainly for residential purposes; and
(ii)
occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household; but
(b)
does not include a hostel, boardinghouse, or other specialised accommodation
immediate pool area means the land in or on which the pool is situated and so much of the surrounding area as is used for activities carried out in relation to or involving the pool
independently qualified person means a person—
(a)
who is accepted by a territorial authority as being qualified to—
(i)
carry out or supervise all or some of the inspection, maintenance, and reporting procedures required for a specified system stated in a compliance schedule; and
(ii)
certify that those procedures have been fully complied with; and
(b)
whose acceptance under paragraph (a) has not been withdrawn by the territorial authority
independently qualified pool inspector means a person—
(a)
accepted by the chief executive as qualified to carry out inspections to determine whether a pool has barriers that comply with the requirements of section 162C; and
(b)
whose acceptance has not been withdrawn
intended use, in relation to a building,—
(a)
includes any or all of the following:
(i)
any reasonably foreseeable occasional use that is not incompatible with the intended use:
(ii)
normal maintenance:
(iii)
activities undertaken in response to fire or any other reasonably foreseeable emergency; but
(b)
does not include any other maintenance and repairs or rebuilding
large dam means a dam that has a height of 4 or more metres and holds 20 000 or more cubic metres volume of water or other fluid
licensed building practitioner means a building practitioner whose name is, for the time being, entered in the register established and maintained under section 298(1)
low potential impact dam means a dam that has been classified under section 134B as having low potential impact
low seismic risk has the meaning given in section 133AD
means of escape from fire, in relation to a building that has a floor area,—
(a)
means continuous unobstructed routes of travel from any part of the floor area of that building to a place of safety; and
(b)
includes all active and passive protection features required to warn people of fire and to assist in protecting people from the effects of fire in the course of their escape from the fire
medium potential impact dam means a dam that has been classified under section 134B as having medium potential impact
medium seismic risk has the meaning given in section 133AD
Minister means the Minister of the Crown who, under the authority of a warrant or with the authority of the Prime Minister, is responsible for the administration of this Act
Ministry means the department of State that, with the authority of the Prime Minister, is responsible for the administration of this Act
minor customisation, in relation to an application for a building consent that incorporates plans and specifications that have national multiple-use approval, means a minor modification, addition, or variation to those plans and specifications that is permitted by regulations made under section 402(1)(kc)
minor variation means a minor modification, addition, or variation to a building consent that is permitted by regulations made under section 402(1)(kd)
national multiple-use approval means an approval issued by the chief executive under section 30F
natural hazard has the meaning given to it by section 71
network utility operator means a person who—
(a)
undertakes or proposes to undertake the distribution or transmission by pipeline of natural or manufactured gas, petroleum, biofuel, or geothermal energy; or
(b)
operates or proposes to operate a network for the purpose of—
(i)
telecommunication as defined in section 5 of the Telecommunications Act 2001; or
(ii)
radiocommunications as defined in section 2(1) of the Radiocommunications Act 1989; or
(c)
is an electricity operator or electricity distributor as defined in section 2 of the Electricity Act 1992 for the purpose of line function services as defined in that section; or
(d)
undertakes or proposes to undertake the distribution of water for supply (including irrigation); or
(e)
undertakes or proposes to undertake a drainage or sewerage system
notice to fix has the meaning given to it by section 164(2)
NUO system means a system owned or controlled by a network utility operator
other property—
(a)
means any land or buildings, or part of any land or buildings, that are—
(i)
not held under the same allotment; or
(ii)
not held under the same ownership; and
(b)
includes a road
outbuilding has the same meaning as in the building code
owner, in relation to land and any buildings on the land,—
(a)
means the person who—
(i)
is entitled to the rack rent from the land; or
(ii)
would be so entitled if the land were let to a tenant at a rack rent; and
(b)
includes—
(i)
the owner of the fee simple of the land; and
(ii)
for the purposes of sections 32, 44, 92, 96, 97, and 176(c), any person who has agreed in writing, whether conditionally or unconditionally, to purchase the land or any leasehold estate or interest in the land, or to take a lease of the land, and who is bound by the agreement because the agreement is still in force
owner-builder has the meaning given to it by section 90B
owner-builder exemption means the exemption for owner-builders set out in section 90D
owner-builder status means the status of a person as an owner-builder
performance criteria, in relation to a building, means qualitative or quantitative criteria that the building is required to satisfy in performing its functional requirements
person includes—
(a)
the Crown; and
(b)
a corporation sole; and
(c)
a body of persons (whether corporate or unincorporate)
person with a disability means a person who has an impairment or a combination of impairments that limits the extent to which the person can engage in the activities, pursuits, and processes of everyday life, including, without limitation, any of the following:
(a)
a physical, sensory, neurological, or intellectual impairment:
(b)
a mental illness
plans and specifications—
(a)
means the drawings, specifications, and other documents according to which a building is proposed to be constructed, altered, demolished, or removed; and
(b)
includes the proposed procedures for inspection during the construction, alteration, demolition, or removal of a building; and
(c)
in the case of the construction or alteration of a building, also includes—
(i)
the intended use of the building; and
(ii)
the specified systems that the applicant for building consent considers will be required to be included in a compliance schedule required under section 100; and
(iii)
the proposed inspection, maintenance, and reporting procedures for the purposes of the compliance schedule for those specified systems
pool—
(a)
means—
(i)
any excavation or structure of a kind normally used for swimming, paddling, or bathing; or
(ii)
any product (other than an ordinary home bath) that is designed or modified to be used for swimming, wading, paddling, or bathing; but
(b)
does not include an artificial lake
pool operator means a person who operates and maintains a pool on a day-to-day basis
prescribed means prescribed by regulations made under this Act
prescribed electrical work has the meaning given to it by section 2(1) of the Electricity Act 1992
prescribed fee includes a fee calculated in accordance with a rate or method prescribed for this purpose in regulations made under this Act
priority building has the meaning given in section 133AE
product certification accreditation body means the person referred to in section 261(2)
property—
(a)
includes land, buildings, and goods; but
(b)
does not include incorporeal forms of property
publicly notify means publish a notice—
(a)
in 1 or more daily newspapers circulating in each of the cities of Auckland, Hamilton, Wellington, Christchurch, and Dunedin; and
(b)
in the Gazette; and
(c)
on the Internet in an electronic form that is publicly accessible at all reasonable times
recognised engineer, in relation to a dam, means an engineer who meets the requirements in section 149
referable dam has the meaning given to it by regulations made under this Act
regional authority means—
(a)
a regional council; or
(b)
a unitary authority
regional council has the meaning given to it by section 5(1) of the Local Government Act 2002
Registrar has the meaning given to it by section 282
regulations means regulations in force under this Act
residential pool means a pool that is—
(a)
in a place of abode; or
(b)
in or on land that also contains an abode; or
(c)
in or on land that is adjacent to other land that contains an abode if the pool is used in conjunction with that other land or abode
restricted building work means any building work that is—
(a)
building work of a kind declared by the Governor-General by Order in Council to be restricted building work; or
(b)
design work of a kind declared by the Governor-General by Order in Council to be restricted building work
rules means any rules made under section 353
scaffolding used in the course of the construction process—
(a)
means a structure, framework, swinging stage, suspended scaffolding, or boatswain’s chair, that is of a temporary nature and that is used or intended to be used for—
(i)
the support or protection of workers engaged in, or in connection with, construction work for the purpose of carrying out the work; or
(ii)
the support of materials used in connection with the work; and
(b)
includes any plank, coupling, fastening, fitting, or device used in connection with the construction, erection, or use of scaffolding
scope of accreditation, in relation to a building consent authority that is not a territorial authority, means the scope of technical competence for which the building consent authority is accredited by a building consent accreditation body in accordance with section 252
seismic work, in relation to a building or a part of a building that is subject to an EPB notice, means the building work required to ensure that the building or part is no longer earthquake prone
sitework means work on a building site, including earthworks, preparatory to, or associated with, the construction, alteration, demolition, or removal of a building
small heated pool means a heated pool (such as a spa pool or a hot tub) that—
(a)
has a water surface area of 5 m2 or less; and
(b)
is designed for therapeutic or recreational use
specialised accommodation means a building that is declared by the Governor-General, by Order in Council, to be specialised accommodation for the purposes of this Act
specified intended life has the meaning given to it by section 113(3)
specified system—
(a)
means a system or feature that—
(i)
is contained in, or attached to, a building; and
(ii)
contributes to the proper functioning of the building (for example, an automatic sprinkler system); and
(iii)
is declared by the Governor-General, by Order in Council, to be a specified system for the purposes of this Act; and
(b)
includes a cable car
statutory authority means an authority or organisation that has the statutory power to classify or register land or buildings for any purpose
supervise, in relation to building work, means provide control or direction and oversight of the building work to an extent that is sufficient to ensure that the building work—
(a)
is performed competently; and
(b)
complies with the building consent under which it is carried out
territorial authority—
(a)
means a city council or district council named in Part 2 of Schedule 2 of the Local Government Act 2002; and,—
(i)
in relation to land within the district of a territorial authority, or a building on or proposed to be built on any such land, means that territorial authority; and
(ii)
in relation to any part of a coastal marine area (within the meaning of the Resource Management Act 1991) that is not within the district of a territorial authority, or a building on or proposed to be built on any such part, means the territorial authority whose district is adjacent to that part; and
(b)
includes the Minister of Conservation or the Minister of Local Government, as the case may be, in any case in which the Minister of Conservation or the Minister of Local Government is the territorial authority under section 22 of the Local Government Act 2002
trade means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to—
(a)
the supply or acquisition of goods or services; or
(b)
the acquisition of household units or any interest in land
unitary authority has the meaning given to it by section 5(1) of the Local Government Act 2002
verification method means a verification method issued under section 22(1)
working day means any day except—
(a)
Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, the Sovereign’s Birthday, Labour Day, and Waitangi Day; and
(ab)
if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and
(b)
the day observed in the appropriate area as the anniversary of the province of which the area forms a part; and
(c)
a day in the period beginning on 20 December in any year and ending with the close of 10 January in the following year.
Compare: 1991 No 150 s 2
Section 7 abode or place of abode: inserted, on 1 January 2017, by section 5 of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 7 acceptable solution: replaced, on 28 November 2013, by section 4(1) of the Building Amendment Act 2013 (2013 No 100).
Section 7 appurtenant structure: amended, on 28 November 2013, by section 4(2) of the Building Amendment Act 2013 (2013 No 100).
Section 7 building work paragraph (b): replaced, on 14 April 2005, by section 3(1) of the Building Amendment Act 2005 (2005 No 31).
Section 7 building work paragraph (c): inserted, on 14 April 2005, by section 3(1) of the Building Amendment Act 2005 (2005 No 31).
Section 7 building work paragraph (d): inserted, on 14 April 2005, by section 3(1) of the Building Amendment Act 2005 (2005 No 31).
Section 7 classifiable dam: inserted, on 28 November 2013, by section 4(6) of the Building Amendment Act 2013 (2013 No 100).
Section 7 compliance document: repealed, on 28 November 2013 (but any compliance document so defined and in force immediately before this date continues in force according to its terms as an acceptable solution or a verification method or both, as the case may be), by section 4(3)(a) of the Building Amendment Act 2013 (2013 No 100).
Section 7 consideration: inserted, on 15 March 2008, by section 6(5) of the Building Amendment Act 2008 (2008 No 4).
Section 7 crest: inserted, on 28 November 2013, by section 4(6) of the Building Amendment Act 2013 (2013 No 100).
Section 7 dam paragraph (a)(iii): repealed, on 15 March 2008, by section 6(1) of the Building Amendment Act 2008 (2008 No 4).
Section 7 earthquake-prone building: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 earthquake rating: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 employee paragraph (a): amended, on 25 January 2005, by section 19(1) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).
Section 7 enforcement officer: repealed, on 28 November 2013, by section 4(3)(b) of the Building Amendment Act 2013 (2013 No 100).
Section 7 engineering assessment: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 EPB exemption notice: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 EPB methodology: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 EPB notice: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 EPB register: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 estimated value: amended, on 15 March 2008, by section 6(2) of the Building Amendment Act 2008 (2008 No 4).
Section 7 gasfitting: amended, on 1 April 2010, by section 185 of the Plumbers, Gasfitters, and Drainlayers Act 2006 (2006 No 74).
Section 7 heritage building: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 heritage dam: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 high potential impact dam: inserted, on 28 November 2013, by section 4(6) of the Building Amendment Act 2013 (2013 No 100).
Section 7 high seismic risk: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 immediate pool area: inserted, on 1 January 2017, by section 5 of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 7 independently qualified person: inserted, on 13 March 2012, by section 6(4) of the Building Amendment Act 2012 (2012 No 23).
Section 7 independently qualified pool inspector: inserted, on 1 January 2017, by section 5 of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 7 large dam: replaced, on 28 November 2013, by section 4(7) of the Building Amendment Act 2013 (2013 No 100).
Section 7 low potential impact dam: inserted, on 28 November 2013, by section 4(6) of the Building Amendment Act 2013 (2013 No 100).
Section 7 low seismic risk: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 medium potential impact dam: inserted, on 28 November 2013, by section 4(6) of the Building Amendment Act 2013 (2013 No 100).
Section 7 medium seismic risk: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 minor customisation: inserted, on 1 February 2010, by section 5 of the Building Amendment Act 2009 (2009 No 25).
Section 7 minor variation: inserted, on 1 February 2010, by section 5 of the Building Amendment Act 2009 (2009 No 25).
Section 7 national multiple-use approval: inserted, on 1 February 2010, by section 5 of the Building Amendment Act 2009 (2009 No 25).
Section 7 network utility operator paragraph (a): amended, on 1 October 2008, by section 17 of the Energy (Fuels, Levies, and References) Amendment Act 2008 (2008 No 60).
Section 7 outbuilding: inserted, on 28 November 2013, by section 4(6) of the Building Amendment Act 2013 (2013 No 100).
Section 7 owner paragraph (b)(ii): replaced, on 15 March 2008, by section 6(3) of the Building Amendment Act 2008 (2008 No 4).
Section 7 owner paragraph (b)(ii): amended, on 13 March 2012, by section 6(9) of the Building Amendment Act 2012 (2012 No 23).
Section 7 owner-builder: inserted, on 13 March 2012, by section 6(4) of the Building Amendment Act 2012 (2012 No 23).
Section 7 owner-builder exemption: inserted, on 13 March 2012, by section 6(4) of the Building Amendment Act 2012 (2012 No 23).
Section 7 owner-builder status: inserted, on 13 March 2012, by section 6(4) of the Building Amendment Act 2012 (2012 No 23).
Section 7 plans and specifications paragraph (c)(iii): amended, on 13 March 2012, by section 6(10) of the Building Amendment Act 2012 (2012 No 23).
Section 7 pool: inserted, on 1 January 2017, by section 5 of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 7 pool operator: inserted, on 1 January 2017, by section 5 of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 7 prescribed: inserted, on 13 March 2012, by section 6(4) of the Building Amendment Act 2012 (2012 No 23).
Section 7 prescribed fee: inserted, on 15 March 2008, by section 6(5) of the Building Amendment Act 2008 (2008 No 4).
Section 7 priority building: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 referable dam: inserted, on 28 November 2013, by section 4(6) of the Building Amendment Act 2013 (2013 No 100).
Section 7 residential pool: inserted, on 1 January 2017, by section 5 of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 7 residential property developer: repealed, on 1 January 2015, by section 4(4) of the Building Amendment Act 2013 (2013 No 100).
Section 7 restricted building work: replaced, on 13 March 2012, by section 6(5) of the Building Amendment Act 2012 (2012 No 23).
Section 7 seismic work: inserted, on 1 July 2017, by section 6 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 7 small heated pool: inserted, on 1 January 2017, by section 5 of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 7 specified system paragraph (a)(i): replaced, on 13 March 2012, by section 6(11) of the Building Amendment Act 2012 (2012 No 23).
Section 7 territorial authority: replaced, on 13 March 2012, by section 6(6) of the Building Amendment Act 2012 (2012 No 23).
Section 7 verification method: replaced, on 28 November 2013, by section 4(5) of the Building Amendment Act 2013 (2013 No 100).
Section 7 working day paragraph (ab): inserted, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).
Meaning of building
8 Building: what it means and includes
(1)
In this Act, unless the context otherwise requires, building—
(a)
means a temporary or permanent movable or immovable structure (including a structure intended for occupation by people, animals, machinery, or chattels); and
(b)
includes—
(i)
a mechanical, electrical, or other system; and
(ii)
any means of restricting or preventing access to a residential pool; and
(iii)
a vehicle or motor vehicle (including a vehicle or motor vehicle as defined in section 2(1) of the Land Transport Act 1998) that is immovable and is occupied by people on a permanent or long-term basis; and
(iv)
a mast pole or a telecommunication aerial that is on, or forms part of, a building and that is more than 7 m in height above the point of its attachment or base support (except a dish aerial that is less than 2 m wide); and
(c)
includes any 2 or more buildings that, on completion of building work, are intended to be managed as one building with a common use and a common set of ownership arrangements; and
(d)
includes the non-moving parts of a cable car attached to or servicing a building; and
(e)
after 30 March 2008, includes the moving parts of a cable car attached to or servicing a building.
(2)
Subsection (1)(b)(i) only applies if—
(a)
the mechanical, electrical, or other system is attached to the structure referred to in subsection (1)(a); and
(b)
the system—
(i)
is required by the building code; or
(ii)
if installed, is required to comply with the building code.
(3)
Subsection (1)(c) only applies in relation to—
(a)
subpart 2 of Part 2; and
(b)
a building consent; and
(c)
a code compliance certificate; and
(d)
a compliance schedule.
(4)
This section is subject to section 9.
Compare: 1991 No 150 s 3
Section 8(1)(b)(ii): replaced, on 1 January 2017, by section 6 of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 8(1)(c): replaced, on 14 April 2005, by section 4 of the Building Amendment Act 2005 (2005 No 31).
Section 8(1)(d): inserted, on 14 April 2005, by section 4 of the Building Amendment Act 2005 (2005 No 31).
Section 8(1)(e): inserted, on 14 April 2005, by section 4 of the Building Amendment Act 2005 (2005 No 31).
9 Building: what it does not include
In this Act, building does not include—
(a)
a NUO system, or part of a NUO system, that—
(i)
is external to the building; and
(ii)
is connected to, or is intended to be connected to, the building to provide for the successful functioning of the NUO system in accordance with the system’s intended design and purpose; and
(iii)
is not a mast pole or a telecommunication aerial that is on, or forms part of, a building; or
(ab)
a pylon, free-standing communication tower, power pole, or telephone pole that is a NUO system or part of a NUO system; or
(ac)
security fences, oil interception and containment systems, wind turbines, gantries, and similar machinery and other structures (excluding dams) not intended to be occupied that are part of, or related to, a NUO system; or
(b)
cranes (including any cranes as defined in regulations made under the Health and Safety at Work Act 2015); or
(c)
any of the following, whether or not incorporated within another structure:
(i)
ski tows:
(ii)
other similar stand-alone machinery systems; or
(d)
any description of vessel, boat, ferry, or craft used in navigation—
(i)
whether or not it has a means of propulsion; and
(ii)
regardless of what that means of propulsion is; or
(e)
aircraft (including any machine that can derive support in the atmosphere from the reactions of the air otherwise than by the reactions of the air against the surface of the earth); or
(f)
any offshore installation (as defined in section 222 of the Maritime Transport Act 1994) to be used for petroleum mining; or
(g)
containers as defined in regulations made under the Health and Safety at Work Act 2015; or
(h)
magazines as defined in regulations made under the Health and Safety at Work Act 2015; or
(i)
scaffolding used in the course of the construction process; or
(j)
falsework.
Compare: 1991 No 150 s 3
Section 9(ab): inserted, on 15 March 2008, by section 7 of the Building Amendment Act 2008 (2008 No 4).
Section 9(ac): inserted, on 13 March 2012, by section 8 of the Building Amendment Act 2012 (2012 No 23).
Section 9(b): amended, on 4 April 2016, by section 232 of the Health and Safety at Work Act 2015 (2015 No 70).
Section 9(g): replaced, on 4 April 2016, by section 232 of the Health and Safety at Work Act 2015 (2015 No 70).
Section 9(h): replaced, on 4 April 2016, by section 232 of the Health and Safety at Work Act 2015 (2015 No 70).
Meaning of allotment
10 Meaning of allotment
(1)
In this Act, unless the context otherwise requires, allotment means a parcel of land—
(a)
that is a continuous area of land; and
(b)
whose boundaries are shown on a survey plan, whether or not as a subdivision—
(i)
approved by way of a subdivision consent granted under the Resource Management Act 1991; or
(ii)
allowed or granted under any other Act; and
(c)
that is—
(i)
subject to the Land Transfer Act 2017 and comprised in 1 record of title or for which 1 record of title could be issued under that Act; or
(ii)
not subject to that Act and was acquired by its owner under 1 instrument of conveyance.
(2)
For the purposes of subsection (1), an allotment is taken—
(a)
to be a continuous area of land even if part of it is physically separated from any other part by a road or in any other manner, unless the division of the allotment into those parts has been allowed by a subdivision consent granted under the Resource Management Act 1991 or a subdivision approval under any former enactment relating to the subdivision of land:
(b)
to include the balance of any land from which any allotment is being or has been subdivided.
Compare: 1991 No 150 s 4
Section 10(1)(c)(i): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Subpart 3—Outline of regulatory roles under this Act
11 Role of chief executive
Under this Act, the chief executive—
(a)
issues acceptable solutions or verification methods and reviews those documents; and
(b)
warns against, or bans the use of, particular building methods or products; and
(ba)
determines applications for national multiple-use approvals; and
(c)
specifies the kinds of applications for a building consent that must be copied to Fire and Emergency New Zealand under section 46; and
(ca)
has the functions set out in section 168A in relation to the implementation, administration, and review of this Act; and
(d)
monitors and reports annually to the Minister in accordance with section 169; and
(da)
monitors, in accordance with section 169A, the application and effectiveness of subpart 6A of Part 2 (which relates to earthquake-prone buildings); and
(e)
publishes guidance information on the requirements of this Act and the building code; and
(f)
(fa)
accepts (and withdraws acceptance of) independently qualified pool inspectors for the purpose of section 162D; and
(g)
makes determinations under subpart 1 of Part 3; and
(h)
reviews the operation of territorial authorities, regional authorities, and building consent authorities in relation to their functions under this Act; and
(i)
grants and revokes accreditation of building consent authorities or appoints a building consent accreditation body to do so; and
(ia)
sets a methodology under section 133AV for identifying earthquake-prone buildings; and
(j)
grants and revokes accreditation of dam owners or appoints a dam owner accreditation body to do so; and
(k)
appoints a product certification accreditation body under section 261; and
(l)
disseminates information and provides educational programmes on matters relating to building control; and
(m)
takes enforcement action (including taking proceedings for offences under this Act) if the chief executive considers that it is desirable to do so—
(i)
to establish or clarify any matter of principle relating to building or the interpretation of this Act; or
(ii)
in cases where 1 or more territorial authorities are unwilling or unable to take enforcement action; or
(iii)
to enforce duties or obligations under Part 4A; or
(iv)
to enforce duties or obligations under section 162E (manufacturers and retailers must supply notice); and
(n)
establishes and maintains the registers referred to in section 273; and
(o)
appoints the Registrar under section 310; and
(p)
prepares proposed rules under section 354; and
(pa)
issues infringement notices under section 372 and under section 371B authorises persons to issue infringement notices; and
(pb)
may provide dispute resolution services under section 175A; and
(q)
carries out any other functions and duties specified in this Act; and
(r)
carries out any functions that are incidental and related to, or consequential upon, the functions set out in paragraphs (a) to (q).
Compare: 1991 No 150 s 12(1)
Section 11(a): amended, on 28 November 2013, by section 75(1) of the Building Amendment Act 2013 (2013 No 100).
Section 11(ba): inserted, on 1 February 2010, by section 6 of the Building Amendment Act 2009 (2009 No 25).
Section 11(c): amended, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).
Section 11(ca): inserted, on 13 March 2012, by section 9 of the Building Amendment Act 2012 (2012 No 23).
Section 11(da): inserted, on 1 July 2017, by section 7(1) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 11(f): amended, on 14 April 2005, by section 16(2)(a) of the Building Amendment Act 2005 (2005 No 31).
Section 11(fa): inserted, on 1 January 2017, by section 7(1) of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 11(h): amended, on 14 April 2005, by section 3(4) of the Building Amendment Act 2005 (2005 No 31).
Section 11(ia): inserted, on 1 July 2017, by section 7(2) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 11(m)(ii): replaced, on 28 November 2013, by section 5(1) of the Building Amendment Act 2013 (2013 No 100).
Section 11(m)(iii): inserted, on 28 November 2013, by section 5(1) of the Building Amendment Act 2013 (2013 No 100).
Section 11(m)(iii): amended, on 1 January 2017, by section 7(2) of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 11(m)(iv): inserted, on 1 January 2017, by section 7(3) of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 11(pa): inserted, on 28 November 2013, by section 5(2) of the Building Amendment Act 2013 (2013 No 100).
Section 11(pb): inserted, on 1 January 2015, by section 5(3) of the Building Amendment Act 2013 (2013 No 100).
12 Role of building consent authority and territorial authority
(1)
Under this Act, a building consent authority—
(a)
issues building consents, but not if a building consent is required to be subject to a waiver or modification of the building code; and
(b)
inspects building work for which it has granted a building consent; and
(c)
issues notices to fix; and
(d)
issues code compliance certificates; and
(e)
issues compliance schedules.
(2)
Under this Act, a territorial authority—
(a)
performs the functions of a building consent authority set out in subsection (1)(a) (including the issue of building consents subject to a waiver or modification of the building code) if—
(i)
the territorial authority is also a building consent authority; and
(ii)
an owner applies to the territorial authority for a building consent; and
(b)
issues project information memoranda; and
(c)
grants exemptions under clause 2 of Schedule 1; and
(d)
grants waivers and modifications of the building code; and
(e)
issues certificates of acceptance; and
(f)
issues and amends compliance schedules; and
(g)
administers annual building warrants of fitness; and
(h)
enforces the provisions relating to annual building warrants of fitness; and
(i)
decides the extent to which buildings must comply with the building code when—
(i)
they are altered; or
(ii)
their use is changed; or
(iii)
their specified intended life changes; and
(j)
performs functions relating to dangerous, earthquake-prone, or insanitary buildings; and
(ja)
enforces duties or obligations under section 162C (residential pools must have means of restricting access); and
(k)
carries out any other functions and duties specified in this Act; and
(l)
carries out any functions that are incidental and related to, or consequential upon, the functions set out in paragraphs (a) to (k).
13 Role of regional authority
Under this Act, a regional authority—
(a)
performs the functions of a building consent authority set out in section 12 to the extent that those functions relate to dams (including the issue of building consents subject to a waiver or modification of the building code); and
(b)
considers and approves dam classifications; and
(c)
considers and approves dam safety assurance programmes; and
(d)
administers the provisions of this Act relating to—
(i)
dam classifications; and
(ii)
dam safety assurance programmes; and
(iii)
dam compliance certificates; and
(e)
enforces the provisions of the building code and this Act and regulations that relate to dams; and
(f)
adopts a policy on dangerous dams; and
(g)
carries out any other functions and duties specified in this Act; and
(h)
carries out any functions that are incidental and related to, or consequential upon, the functions set out in paragraphs (a) to (g).
14 Roles of building consent authorities, territorial authorities, and regional authorities in relation to dams
(1)
The regional authority is responsible for performing functions under this Act relating to a building that is a dam.
(2)
If a building includes a dam,—
(a)
the regional authority is responsible for performing functions under this Act relating to the dam; and
(b)
the building consent authority and territorial authority are responsible for performing functions under this Act relating to the parts of the building that are not a dam.
(3)
For the purposes of subsection (1),—
(a)
sections 31 to 39 apply (with all necessary modifications) as if every reference in them to a building consent authority or territorial authority included a reference to a regional authority; and
(b)
sections 40 to 116 (except section 114(2)(c)), 216 to 218, 220 to 228, 232, 276 to 281, 363A, 371A to 371C, and 374 apply (with all necessary modifications) as if every reference in them to a building consent authority or territorial authority were a reference to a regional authority.
(4)
For the purposes of subsection (2), sections 31 to 116 (except section 114(2)(c)), 216 to 218, 220 to 232, 276 to 281, 363A, and 374 apply (with all necessary modifications) as if every reference in them to a building consent authority or territorial authority included a reference to a regional authority.
(5)
The building consent authority and territorial authority must do everything reasonably practicable to liaise with the regional authority in performing functions or duties, or exercising powers, in relation to a building that includes a dam.
Section 14: replaced, on 14 April 2005, by section 5 of the Building Amendment Act 2005 (2005 No 31).
Section 14(3)(b): amended, on 15 March 2008, by section 8(1) of the Building Amendment Act 2008 (2008 No 4).
Section 14(4): amended, on 15 March 2008, by section 8(2) of the Building Amendment Act 2008 (2008 No 4).
Subpart 4—Outline of responsibilities under this Act
Subpart 4: inserted, on 13 March 2012, by section 10 of the Building Amendment Act 2012 (2012 No 23).
14A Outline of responsibilities under this Act
(a)
are not a definitive and exhaustive statement of the responsibilities of the parties but are an outline only:
(b)
are for guidance only, and in the event of any conflict between any of those sections and any other provision of this Act, the latter prevails:
(c)
do not reflect the responsibilities of the parties under any other law or enactment or any contract that may be entered into between them and are not intended to add to the existing responsibilities of the parties.
Section 14A: inserted, on 13 March 2012, by section 10 of the Building Amendment Act 2012 (2012 No 23).
Section 14A: amended, on 28 November 2013, by section 6(1) of the Building Amendment Act 2013 (2013 No 100).
Section 14A(c): amended, on 28 November 2013, by section 6(2) of the Building Amendment Act 2013 (2013 No 100).
14B Responsibilities of owner
An owner is responsible for—
(a)
obtaining any necessary consents, approvals, and certificates:
(b)
ensuring that building work carried out by the owner complies with the building consent or, if there is no building consent, with the building code:
(c)
ensuring compliance with any notices to fix.
Section 14B: inserted, on 13 March 2012, by section 10 of the Building Amendment Act 2012 (2012 No 23).
14C Responsibilities of owner-builder
An owner-builder is responsible for ensuring that restricted building work carried out under the owner-builder exemption complies with the building consent and the plans and specifications to which the building consent relates.
Section 14C: inserted, on 13 March 2012, by section 10 of the Building Amendment Act 2012 (2012 No 23).
14D Responsibilities of designer
(1)
In subsection (2), designer means a person who prepares plans and specifications for building work or who gives advice on the compliance of building work with the building code.
(2)
A designer is responsible for ensuring that the plans and specifications or the advice in question are sufficient to result in the building work complying with the building code, if the building work were properly completed in accordance with those plans and specifications or that advice.
Section 14D: inserted, on 13 March 2012, by section 10 of the Building Amendment Act 2012 (2012 No 23).
14E Responsibilities of builder
(1)
In subsection (2), builder means any person who carries out building work, whether in trade or not.
(2)
A builder is responsible for—
(a)
ensuring that the building work complies with the building consent and the plans and specifications to which the building consent relates:
(b)
ensuring that building work not covered by a building consent complies with the building code.
(3)
A licensed building practitioner who carries out or supervises restricted building work is responsible for—
(a)
ensuring that the restricted building work is carried out or supervised in accordance with the requirements of this Act; and
(b)
ensuring that he or she is licensed in a class for carrying out or supervising that restricted building work.
Section 14E: inserted, on 13 March 2012, by section 10 of the Building Amendment Act 2012 (2012 No 23).
14F Responsibilities of building consent authority
A building consent authority is responsible for—
(a)
checking, in accordance with the requirements of this Act for each type of building consent, to ensure that—
(i)
an application for a building consent complies with the building code:
(ii)
building work has been carried out in accordance with the building consent for that work:
(b)
issuing building consents and certificates in accordance with the requirements of this Act.
Section 14F: inserted, on 13 March 2012, by section 10 of the Building Amendment Act 2012 (2012 No 23).
14G Responsibilities of product manufacturer or supplier
(1)
In subsection (2), product manufacturer or supplier means a person who manufactures or supplies a building product and who states that the product will, if installed in accordance with the technical data, plans, specifications, and advice prescribed by the manufacturer, comply with the relevant provisions of the building code.
(2)
A product manufacturer or supplier is responsible for ensuring that the product will, if installed in accordance with the technical data, plans, specifications, and advice prescribed by the manufacturer, comply with the relevant provisions of the building code.
Section 14G: inserted, on 28 November 2013, by section 7 of the Building Amendment Act 2013 (2013 No 100).
Part 2 Building
Subpart 1—Preliminary
15 Outline of this Part
(1)
In general terms, this Part provides—
(a)
that all building work must comply with the building code to the extent required by this Act:
(b)
how compliance with the building code is to be established:
(ba)
the effect of a national multiple-use approval and how to apply for one:
(c)
when a project information memorandum is required and how to apply for one:
(d)
when a building consent is required and how to apply for one:
(e)
that an applicant for a building consent is liable to pay a levy to the chief executive if the application is granted:
(f)
that restricted building work must be carried out or supervised by 1 or more licensed building practitioners:
(g)
for a building consent authority to issue a notice requiring building work to be fixed so as to comply with this Act and the building consent:
(h)
that a building consent authority may inspect building work for which it has granted a consent:
(i)
that all building work under a building consent must have a code compliance certificate issued by the building consent authority that issued the building consent or another building consent authority that agrees to assume responsibility for the building work:
(j)
that a compliance schedule and annual building warrant of fitness is required for buildings with specified systems:
(k)
that when a building undergoes alterations it may have to be upgraded to comply with the building code:
(l)
for requirements that must be met when the use or intended life of a building changes:
(m)
for access and facilities for persons with disabilities to and within buildings:
(n)
for territorial authorities to perform functions relating to dangerous, earthquake-prone, or insanitary buildings:
(o)
for regional authorities to perform functions relating to dams.
(2)
This section is intended only as a guide to the general scheme and effect of this Part.
Section 15(1)(ba): inserted, on 1 February 2010, by section 7(1) of the Building Amendment Act 2009 (2009 No 25).
Section 15(1)(c): replaced, on 1 February 2010, by section 7(2) of the Building Amendment Act 2009 (2009 No 25).
Subpart 2—Building code
Requirement to comply with building code
16 Building code: purpose
The building code prescribes functional requirements for buildings and the performance criteria with which buildings must comply in their intended use.
17 All building work must comply with building code
All building work must comply with the building code to the extent required by this Act, whether or not a building consent is required in respect of that building work.
Compare: 1991 No 150 s 7(1)
18 Building work not required to achieve performance criteria additional to or more restrictive than building code
(1)
A person who carries out any building work is not required by this Act to—
(a)
achieve performance criteria that are additional to, or more restrictive than, the performance criteria prescribed in the building code in relation to that building work; or
(b)
take any action in respect of that building work if it complies with the building code.
(2)
Subsection (1) is subject to any express provision to the contrary in any Act.
Compare: 1991 No 150 s 7(2)
Establishing compliance with building code
19 How compliance with building code is established
(1)
A building consent authority must accept any or all of the following as establishing compliance with the building code:
(a)
compliance with regulations referred to in section 20:
(b)
compliance with an acceptable solution:
(ba)
compliance with a verification method:
(c)
a determination to that effect made by the chief executive under subpart 1 of Part 3:
(ca)
a current national multiple-use approval issued under section 30F, if every relevant condition in that national multiple-use approval is met:
(d)
a current product certificate issued under section 269, if every relevant condition in that product certificate is met:
(e)
to the extent that compliance with a requirement imposed by regulations made under the Electricity Act 1992 or the Gas Act 1992 is compliance with any particular provisions of the building code, a certificate issued under any of those regulations to the effect that any energy work complies with those requirements.
(2)
In considering whether something complies with the building code, a building consent authority or, as the case may be, a regional authority—
(a)
must have regard to any relevant warning issued, and ban declared, under section 26(2); and
(b)
may have regard to any guidance information published by the chief executive under section 175.
Compare: 1991 No 150 s 50
Section 19(1): amended, on 14 April 2005, by section 16(2)(b) of the Building Amendment Act 2005 (2005 No 31).
Section 19(1)(b): replaced, on 28 November 2013, by section 8 of the Building Amendment Act 2013 (2013 No 100).
Section 19(1)(ba): inserted, on 28 November 2013, by section 8 of the Building Amendment Act 2013 (2013 No 100).
Section 19(1)(ca): inserted, on 1 February 2010, by section 8(1) of the Building Amendment Act 2009 (2009 No 25).
Section 19(1)(d): amended, on 1 February 2010, by section 8(2) of the Building Amendment Act 2009 (2009 No 25).
Regulations may specify only 1 means of complying with building code
20 Regulations may specify that there is only 1 means of complying with building code
(1)
Regulations may be made under section 401 that specify that there is only 1 means of complying with all or any of the provisions of the building code.
(2)
Without limiting subsection (1), the regulations may specify the means of compliance with the building code by requiring the use in the prescribed circumstances (if any) of all or any of the following:
(a)
prescribed acceptable solutions:
(b)
prescribed verification methods:
(c)
building methods, methods of construction, building design, or building materials (building methods or products) that have a current product certificate issued under section 269.
21 What happens if regulations specifying that there is only 1 means of complying with building code are made or not made
(1)
If regulations referred to in section 20 are made, a person who carries out any building work must, in order to comply with the building code, comply with those regulations to the extent that they are relevant to the building work.
(2)
If the regulations are not made, a person may comply with the building code by any means, including by complying with an acceptable solution or a verification method.
Section 21(2): amended, on 28 November 2013, by section 9 of the Building Amendment Act 2013 (2013 No 100).
Acceptable solution or verification method
Heading: replaced, on 28 November 2013, by section 10 of the Building Amendment Act 2013 (2013 No 100).
22 Acceptable solution or verification method for use in establishing compliance with building code
(1)
The chief executive may, by notice in the Gazette, issue an acceptable solution or a verification method for use in establishing compliance with the building code.
(2)
A person who complies with an acceptable solution or a verification method must, for the purposes of this Act, be treated as having complied with the provisions of the building code to which that acceptable solution or verification method relates.
(3)
Subsection (2) is subject to any regulations referred to in section 20.
Section 22: replaced, on 28 November 2013, by section 11 of the Building Amendment Act 2013 (2013 No 100).
23 Effect of acceptable solution or verification method
A person may comply with an acceptable solution or a verification method in order to comply with the provisions of the building code to which that acceptable solution or verification method relates, but doing so is not the only means of complying with those provisions.
Section 23: replaced, on 28 November 2013, by section 11 of the Building Amendment Act 2013 (2013 No 100).
24 Chief executive may amend or revoke acceptable solution or verification method
(1)
The chief executive may, by notice in the Gazette, amend or revoke an acceptable solution or a verification method at any time.
(2)
An amendment or a revocation under subsection (1) does not have retrospective effect.
Section 24: replaced, on 28 November 2013, by section 11 of the Building Amendment Act 2013 (2013 No 100).
25 Content of acceptable solution or verification method
(1)
An acceptable solution or a verification method must state—
(a)
the date on which it comes into force; and
(b)
whether the acceptable solution or verification method, or parts of it, applies to building work for which a building consent has been issued before the date on which the acceptable solution or verification method comes into force.
(2)
An acceptable solution or a verification method must not contain a provision that—
(a)
relates to contractual or commercial requirements; or
(b)
relates to regulatory approvals, dispensations, or waivers; or
(c)
is inconsistent with this Act or the regulations.
(3)
Material may be incorporated by reference in an acceptable solution or a verification method in accordance with sections 405 to 413.
Section 25: replaced, on 28 November 2013, by section 11 of the Building Amendment Act 2013 (2013 No 100).
25A Acceptable solutions and verification methods to be available on Ministry’s Internet site
The chief executive must ensure that—
(a)
promptly after a new acceptable solution or verification method is issued, a digital copy is publicly available on the Ministry’s Internet site:
(b)
even after an acceptable solution or a verification method has been amended or revoked, a digital copy of it in its original form continues to be publicly available on the Ministry’s Internet site:
(c)
promptly after an acceptable solution or a verification method is amended, there are publicly available on the Ministry’s Internet site—
(i)
a digital copy of the amendment; and
(ii)
a digital copy of the acceptable solution or verification method in its up-to-date form.
Section 25A: replaced, on 28 November 2013, by section 11 of the Building Amendment Act 2013 (2013 No 100).
Warnings and bans
26 Chief executive may issue warning about, or ban use of, building methods or products
(1)
This section applies if the chief executive considers on reasonable grounds that the use of a building method or product has resulted, or is likely to result, in a building or building work failing to comply with the building code.
(2)
The chief executive may—
(a)
issue a warning about the building method or product; or
(b)
declare a ban on the building method or product.
(3)
The chief executive must publicly notify—
(a)
the warning or ban; and
(b)
the date on which the warning or ban comes into force; and
(c)
in the case of a ban, whether the ban applies to building work for which a building consent has been issued before the date on which the ban comes into force; and
(d)
whether the procedure in section 29 has been followed in relation to the warning or ban.
(4)
The chief executive—
(a)
may, at any time, amend or revoke the warning or ban; and
(b)
must publicly notify—
(i)
the amendment or revocation; and
(ii)
the date on which the amendment or revocation comes into force.
27 Offence to use building method or product in breach of ban under section 26
(1)
A person must not use a building method or product if doing so breaches a ban under section 26.
(2)
A person commits an offence if the person fails to comply with subsection (1).
(3)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $200,000.
Section 27(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
28 Limits on certain powers of building consent authority in cases involving bans under section 26
(1)
A building consent authority must not exercise any of the powers specified in subsection (2) if doing so results, or could result, in a person breaching a ban under section 26.
(2)
The powers are—
(a)
to grant a building consent for building work; or
(b)
to issue a code compliance certificate for building work.
(3)
However, subsection (2)(b) does not apply if the building consent to which the code compliance certificate relates was granted before the ban under section 26 came into force.
Procedural requirements for acceptable solutions, verification methods, warnings, and bans
Heading: replaced, on 28 November 2013, by section 12 of the Building Amendment Act 2013 (2013 No 100).
29 Procedural requirements for acceptable solutions, verification methods, warnings, and bans
(1)
This section applies if the chief executive proposes to—
(a)
issue an acceptable solution or a verification method; or
(b)
amend or revoke an acceptable solution or a verification method; or
(c)
issue a warning or declare a ban; or
(d)
amend or revoke a warning or ban.
(2)
Before doing any of the things referred to in subsection (1), the chief executive must—
(a)
seek to identify all reasonably practicable options for achieving the objective of the acceptable solution, verification method, warning, or ban; and
(b)
assess those options by considering—
(i)
the benefits and costs of each option; and
(ii)
the extent to which the objective would be promoted or achieved by each option; and
(iii)
any other matters that, in the chief executive’s opinion, are relevant; and
(c)
publicly notify a statement of proposal; and
(d)
give persons an opportunity to make submissions on the statement of proposal; and
(e)
consider those submissions.
(3)
For the purposes of subsection (2)(c), the chief executive must notify—
(a)
where copies of the statement of proposal may be obtained; and
(b)
that submissions on the statement of proposal may be made to the chief executive by a specified date (which date must not be less than 10 working days after the date of the public notification).
(4)
The statement of proposal must contain—
(a)
a detailed statement of the proposal (which may be a copy of the proposed acceptable solution, verification method, warning, or ban); and
(b)
a statement of the reasons for the proposal; and
(c)
an analysis of the reasonably practicable options, including the proposal, identified under subsection (2); and
(d)
a detailed statement of the proposed transitional changes (if any) for the acceptable solution, verification method, warning, or ban; and
(e)
the date on which the acceptable solution, verification method, warning, or ban is proposed to come into force; and
(f)
a statement as to whether the acceptable solution, verification method, warning, or ban will apply to building work for which a building consent has been issued before the date on which the acceptable solution, verification method, warning, or ban comes into force; and
(g)
any other information that the chief executive considers relevant.
(5)
The chief executive is not required to comply with subsection (2) if the chief executive is satisfied that—
(a)
the acceptable solution, verification method, or warning needs to be issued, or the ban needs to be declared, urgently; or
(b)
the acceptable solution, verification method, warning, or ban needs to be amended urgently; or
(c)
the acceptable solution, verification method, warning, or ban needs to be revoked urgently; or
(d)
the effect of the acceptable solution, verification method, warning, or ban is minor and will not adversely affect the substantial interests of any person.
Compare: 1991 No 150 s 49(9)
Section 29 heading: amended, on 28 November 2013, by section 13(1) of the Building Amendment Act 2013 (2013 No 100).
Section 29(1)(a): amended, on 28 November 2013, by section 13(2) of the Building Amendment Act 2013 (2013 No 100).
Section 29(1)(b): amended, on 28 November 2013, by section 13(3) of the Building Amendment Act 2013 (2013 No 100).
Section 29(2)(a): amended, on 28 November 2013, by section 13(4) of the Building Amendment Act 2013 (2013 No 100).
Section 29(4)(a): amended, on 28 November 2013, by section 13(5) of the Building Amendment Act 2013 (2013 No 100).
Section 29(4)(d): amended, on 28 November 2013, by section 13(5) of the Building Amendment Act 2013 (2013 No 100).
Section 29(4)(e): amended, on 28 November 2013, by section 13(5) of the Building Amendment Act 2013 (2013 No 100).
Section 29(4)(f): amended, on 28 November 2013, by section 13(5) of the Building Amendment Act 2013 (2013 No 100).
Section 29(5)(a): amended, on 28 November 2013, by section 13(6) of the Building Amendment Act 2013 (2013 No 100).
Section 29(5)(b): amended, on 28 November 2013, by section 13(7) of the Building Amendment Act 2013 (2013 No 100).
Section 29(5)(c): amended, on 28 November 2013, by section 13(7) of the Building Amendment Act 2013 (2013 No 100).
Section 29(5)(d): amended, on 28 November 2013, by section 13(7) of the Building Amendment Act 2013 (2013 No 100).
30 Procedural requirements for urgent acceptable solutions, verification methods, warnings, and bans
(1)
If section 29(5) applies, the chief executive must—
(a)
consult on the acceptable solution, verification method, warning, or ban (as the case may be) in accordance with section 29(2) to (4); and
(b)
after that consultation, publicly notify whether he or she has decided to amend, replace, or revoke the acceptable solution, verification method, warning, or ban.
(2)
The chief executive must comply with subsection (1) within 6 months of issuing, amending, replacing, or revoking the acceptable solution, verification method, warning, or ban concerned.
(3)
In the public notification, the chief executive must—
(a)
explain the reasons for his or her decision; or
(b)
state where copies of that explanation may be obtained.
Section 30 heading: amended, on 28 November 2013, by section 14(1) of the Building Amendment Act 2013 (2013 No 100).
Section 30(1)(a): amended, on 28 November 2013, by section 14(2) of the Building Amendment Act 2013 (2013 No 100).
Section 30(1)(b): amended, on 28 November 2013, by section 14(2) of the Building Amendment Act 2013 (2013 No 100).
Section 30(2): amended, on 28 November 2013, by section 14(2) of the Building Amendment Act 2013 (2013 No 100).
National multiple-use approvals
Heading: inserted, on 1 February 2010, by section 9 of the Building Amendment Act 2009 (2009 No 25).
30A National multiple-use approval establishes compliance with building code
(1)
A national multiple-use approval establishes that the plans and specifications to which it relates comply with the building code.
(2)
To avoid doubt, a national multiple-use approval does not confer the right to carry out building work that requires a building consent.
Section 30A: inserted, on 1 February 2010, by section 9 of the Building Amendment Act 2009 (2009 No 25).
30B How to apply for national multiple-use approval
(1)
An application for a national multiple-use approval must—
(a)
be made in writing; and
(b)
be given, in the prescribed form and manner (if any), to the chief executive; and
(c)
contain the prescribed information (if any); and
(d)
be accompanied by plans and specifications that are—
(i)
required by regulations made under section 402; or
(ii)
if the regulations do not so require, required by the chief executive; and
(e)
if the application relates to building work for which a compliance schedule is required, be accompanied by a list of all specified systems for the building; and
(f)
contain or be accompanied by any other information that the chief executive reasonably requires.
(2)
An application for an amendment to a national multiple-use approval must be made as if it were an application for a national multiple-use approval, and sections 30A to 30H apply with any necessary modifications.
Section 30B: inserted, on 1 February 2010, by section 9 of the Building Amendment Act 2009 (2009 No 25).
30C Applications for national multiple-use approval relating to design work that is restricted building work
(1)
This section applies if an application for a national multiple-use approval is accompanied by plans and specifications that contain design work (relating to building work) that is restricted building work.
(2)
The design work referred to in subsection (1) must be carried out or supervised by 1 or more licensed building practitioners who are licensed to carry out or supervise that work.
(3)
The plans and specifications that contain the design work referred to in subsection (1) must be accompanied by a certificate of work—
(a)
provided by 1 or more licensed building practitioners who carried out or supervised that design work; and
(b)
that identifies that design work; and
(c)
that states—
(i)
that the design work complies with the building code; or
(ii)
whether waivers or modifications of the building code are required and, if so, what those waivers or modifications are.
Section 30C: inserted, on 1 February 2010, by section 9 of the Building Amendment Act 2009 (2009 No 25).
Section 30C(1): replaced, on 28 November 2013, by section 15 of the Building Amendment Act 2013 (2013 No 100).
Section 30C(3): amended, on 13 March 2012, by section 13 of the Building Amendment Act 2012 (2012 No 23).
30D Chief executive must decide whether to accept, for processing, application for national multiple-use approval
(1)
The chief executive must, as soon as practicable after receiving an application for a national multiple-use approval,—
(a)
decide whether to accept that application for processing; and
(b)
give written notice of his or her decision to the applicant; and
(c)
if the chief executive decides to refuse to accept the application for processing, state the reasons for the refusal in the notice given under paragraph (b).
(2)
The chief executive may require further reasonable information in respect of the application.
(3)
The chief executive may refuse to accept for processing an application for a national multiple-use approval only if the chief executive is satisfied, on reasonable grounds, that the application—
(a)
does not meet the requirements of this Act; or
(b)
includes a building method or product in relation to which the chief executive has publicly notified a ban under section 26; or
(c)
does not meet the prescribed eligibility criteria (if any) for a national multiple-use approval.
Section 30D: inserted, on 1 February 2010, by section 9 of the Building Amendment Act 2009 (2009 No 25).
30E Processing application for national multiple-use approval
(1)
The chief executive must, after accepting for processing an application for a national multiple-use approval, decide whether to—
(a)
issue the national multiple-use approval; or
(b)
refuse to issue the national multiple-use approval.
(2)
If regulations made under section 402(1)(kb) are in force, the chief executive must make the decision referred to in subsection (1) within the period of time prescribed in those regulations.
(3)
The chief executive may require further reasonable information in respect of an application for a national multiple-use approval before making the decision referred to in subsection (1), and any prescribed period of time within which that decision must be made is suspended until the chief executive receives that information.
Section 30E: inserted, on 1 February 2010, by section 9 of the Building Amendment Act 2009 (2009 No 25).
30F Issue of national multiple-use approval
(1)
The chief executive must issue a national multiple-use approval if he or she is satisfied, on reasonable grounds, that—
(a)
the application meets the requirements of section 30B; and
(b)
the applicant has paid the prescribed fee (if any); and
(c)
the application meets the prescribed eligibility criteria for a national multiple-use approval (if any); and
(d)
the application does not involve the use of a building method or product in relation to which the chief executive has publicly notified a ban under section 26; and
(e)
if building work were properly completed in accordance with the plans and specifications that accompanied the application, that building work would comply with the building code.
(2)
A national multiple-use approval may be issued subject to—
(a)
a waiver or modification of the building code; and
(b)
1 or more conditions, including, but not limited to, conditions that the approval applies only—
(i)
in specified regions; or
(ii)
in specified climates or conditions; or
(iii)
to specified aspects of the building work; or
(iv)
if the building work complies with specified requirements.
Section 30F: inserted, on 1 February 2010, by section 9 of the Building Amendment Act 2009 (2009 No 25).
30G Refusal to issue national multiple-use approval
If the chief executive is not satisfied of the matters in section 30F, the chief executive must refuse to issue a national multiple-use approval and must give the applicant written notice of—
(a)
the refusal; and
(b)
the reasons for the refusal.
Section 30G: inserted, on 1 February 2010, by section 9 of the Building Amendment Act 2009 (2009 No 25).
30H Suspension or revocation of national multiple-use approval
(1)
The chief executive may, at any time, suspend or revoke a national multiple-use approval, if the chief executive is satisfied that—
(a)
the approval was obtained by fraud, misrepresentation, or the concealment of facts; or
(b)
the approval no longer meets the prescribed eligibility criteria for a national multiple-use approval; or
(c)
building work properly completed in accordance with the approval will no longer comply with the building code because of an amendment to the code.
(2)
Before revoking or suspending a national multiple-use approval the chief executive must give the holder of the approval a reasonable opportunity to be heard.
(3)
When suspending a national multiple-use approval, the chief executive must—
(a)
give the holder of the approval a reasonable period to rectify the matter that led to the suspension of the national multiple-use approval; and
(b)
lift the suspension if the chief executive is satisfied that the holder of the approval has rectified the matter within that period.
(4)
Despite subsections (1) and (3), the chief executive must not suspend or revoke a national multiple-use approval if—
(a)
amendments are made to—
(i)
the prescribed eligibility criteria for a national multiple-use approval; or
(ii)
the building code; and
(b)
the national multiple-use approval no longer meets the eligibility criteria, or complies with the building code, solely as a result of those amendments.
(5)
The limit in subsection (4) applies only during the period of 3 months after the date on which the amendments referred to in that subsection come into force.
(6)
The chief executive must record the suspension or revocation of a national multiple-use approval in the register of national multiple-use approvals.
Section 30H: inserted, on 1 February 2010, by section 9 of the Building Amendment Act 2009 (2009 No 25).
Subpart 3—Building work—Project information memoranda and building consents
Project information memoranda
31 Building consent authority must apply for project information memorandum
(1)
A building consent authority must,—
(a)
on receiving an application for a building consent, apply for a project information memorandum to the territorial authority for the district in which the proposed building work is to be situated; and
(b)
on receiving the project information memorandum from the territorial authority, provide a copy of the memorandum to the owner.
(2)
Subsection (1) does not apply if—
(a)
the building consent authority is the territorial authority for the district in which the proposed building work is to be situated; or
(b)
a project information memorandum has been issued before the application for a building consent is made.
Section 31(2)(a): amended, on 1 February 2010, by section 10 of the Building Amendment Act 2009 (2009 No 25).
32 Owner may apply for project information memorandum
An owner may apply to a territorial authority for a project information memorandum for building work if—
(a)
the owner is considering carrying out building work; and
(b)
a building consent is required for that work.
Compare: 1991 No 150 s 30(1)
33 Content of application
(1)
An application for a project information memorandum must be in the prescribed form and be accompanied by—
(a)
any fees and charges imposed by the territorial authority under section 219; and
(b)
any information that the territorial authority reasonably requires in relation to authorisations or requirements (if any) that—
(i)
the territorial authority is authorised to refuse or impose under any Act (except this Act); and
(ii)
are likely to be relevant to the design and construction of the proposed building; and
(c)
any other information that the territorial authority (acting as agent for a network utility operator by prior agreement with that network utility operator) requires in respect of proposed connections to public utilities from the proposed building work.
(2)
The territorial authority may not make a requirement under subsection (1)(b) if more than 10 working days have elapsed since the date on which the territorial authority received the application.
(3)
For the purposes of subsection (1)(b), the authorisations and requirements referred to in that subsection include, without limitation, authorisations and requirements in respect of—
(a)
the intended use of the proposed building; and
(b)
the location and external dimensions of the proposed building; and
(c)
provisions to be made—
(i)
for access for vehicles; and
(ii)
in building over or adjacent to any road or public place; and
(iii)
for disposing of stormwater and wastewater; and
(d)
precautions to be taken if building work is carried out over any existing drains or sewers or in close proximity to wells or water mains.
Compare: 1991 No 150 s 30(3)
Section 33(1)(a): replaced, on 13 March 2012, by section 14 of the Building Amendment Act 2012 (2012 No 23).
34 Issue of project information memorandum
(1)
A territorial authority must issue a project information memorandum within 20 working days after receiving an application under section 31(1)(a) or section 32.
(2)
However, if the territorial authority requires any information under section 33(1)(b) or (c), the period specified in subsection (1) is suspended until it receives the information.
(3)
The territorial authority must issue the project information memorandum within 10 working days after receiving that information.
(4)
A territorial authority may, within the period specified in subsection (1) or, if applicable, in subsection (3), reissue a project information memorandum if the territorial authority—
(a)
considers, on reasonable grounds, that the project information memorandum contains an error or omission; or
(b)
receives information that affects the project information memorandum.
Compare: 1991 No 150 s 31(1)
35 Content of project information memorandum
(1AA)
A project information memorandum must be issued in the prescribed form (if any).
(1)
A project information memorandum must include—
(a)
information likely to be relevant to the proposed building work that identifies—
(i)
the heritage status of the building (if any); and
(ii)
each special feature of the land concerned (if any); and
(b)
information likely to be relevant to the proposed building work that, in terms of any other Act, has been notified to the territorial authority by a statutory authority; and
(c)
details of any existing stormwater or wastewater utility systems that—
(i)
relate to the proposed building work; or
(ii)
are on, or adjacent to, the site of the proposed building work; and
(d)
details of any authorisation in respect of the proposed building work that the territorial authority, on its own behalf and on behalf of any network utility operator (if the territorial authority is acting as agent for a network utility operator by prior agreement with the network utility operator), is authorised to refuse or require under any Act, except this Act, and, in respect of each authorisation,—
(i)
a statement of the requirements to be met in order for the authorisation to be granted or imposed; and
(ii)
the conditions to which an authorisation will be subject; and
(e)
if the territorial authority considers that the owner of the building or proposed building to which the project information memorandum relates is likely to be required, under section 76 of the Fire and Emergency New Zealand Act 2017, to make provision for a scheme that provides for evacuation from the scene of a fire, a statement to that effect; and
(f)
if the territorial authority considers that notification to Heritage New Zealand Pouhere Taonga is likely to be required under section 39, a statement to that effect; and
(g)
either—
(i)
confirmation, subject to this Act, that building work may be carried out subject to the requirements of a building consent and subject also to all other necessary authorisations being obtained; or
(ii)
notification that building work may not be carried out because any necessary authorisation has been refused, despite the issue of any building consent; and
(h)
if section 75 applies, the statement referred to in section 75(2); and
(i)
if the building is one that is intended to be used for, or associated with, 1 or more of the purposes specified in Schedule 2, a statement that the building must comply with—
(i)
section 118 (relating to access and facilities for persons with disabilities to and within buildings); and
(ii)
the provisions of the building code that relate to providing for persons with disabilities to have access to buildings and to facilities within buildings.
(2)
In this section,—
land concerned—
(a)
means the land on which the proposed building work is to be carried out; and
(b)
includes any other land likely to affect or be affected by the building work
special feature of the land concerned includes, without limitation, potential natural hazards, or the likely presence of hazardous contaminants, that—
(a)
is likely to be relevant to the design and construction or alteration of the building or proposed building; and
(b)
is known to the territorial authority; and
(c)
is not apparent from the district plan under the Resource Management Act 1991.
Compare: 1991 No 150 s 31(2)–(4)
Section 35(1AA): inserted, on 1 February 2010, by section 11 of the Building Amendment Act 2009 (2009 No 25).
Section 35(1)(e): amended, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).
Section 35(1)(f): amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
Section 35(1)(h): amended, on 15 March 2008, by section 10 of the Building Amendment Act 2008 (2008 No 4).
Section 35(1)(i): inserted, on 15 March 2008, by section 10 of the Building Amendment Act 2008 (2008 No 4).
36 Territorial authority may issue development contribution notice
(1)
This section applies if a territorial authority considers that a development contribution under the Local Government Act 2002 is payable by the owner.
(2)
The territorial authority must issue a notice, in the prescribed form, to the effect that a code compliance certificate for the building work will not be issued unless the development contribution is paid (development contribution notice).
(3)
The development contribution notice must be—
(a)
attached to the project information memorandum; or
(b)
if no project information memorandum has been applied for, provided to the building consent authority.
Section 36: replaced, on 1 February 2010, by section 12 of the Building Amendment Act 2009 (2009 No 25).
37 Territorial authority must issue certificate if resource consent required
(1)
This section applies if a territorial authority considers that—
(a)
a resource consent under the Resource Management Act 1991 has not yet been obtained; and
(b)
the resource consent will or may materially affect building work to which a project information memorandum or an application for a building consent relates.
(2)
The territorial authority must issue a certificate, in the prescribed form, to the effect that until the resource consent has been obtained—
(a)
no building work may proceed; or
(b)
building work may only proceed to the extent stated in the certificate.
(3)
The certificate must be—
(a)
attached to the project information memorandum; or
(b)
if no project information memorandum has been applied for, provided to the building consent authority.
Compare: 1991 No 150 s 35(1A)
Section 37 heading: replaced, on 1 February 2010, by section 13(1) of the Building Amendment Act 2009 (2009 No 25).
Section 37(1)(b): amended, on 1 February 2010, by section 13(2) of the Building Amendment Act 2009 (2009 No 25).
Section 37(2): amended, on 1 February 2010, by section 13(3) of the Building Amendment Act 2009 (2009 No 25).
Section 37(3): inserted, on 1 February 2010, by section 13(4) of the Building Amendment Act 2009 (2009 No 25).
38 Territorial authority must give copy of project information memorandum in certain circumstances
If a project information memorandum contains information previously supplied to a territorial authority by a network utility operator or a statutory authority, the territorial authority must give a copy of the project information memorandum to that operator or that authority.
Compare: 1991 No 150 s 31(5)
39 Territorial authority must advise Heritage New Zealand Pouhere Taonga in certain circumstances
(1)
This section applies if—
(a)
an application for a project information memorandum, or for a building consent, affects a historic place, historic area, wāhi tapu, or wāhi tapu area that has been entered on the New Zealand Heritage List/Rārangi Kōrero; and
(b)
the territorial authority has not previously advised Heritage New Zealand Pouhere Taonga about the building work to which that application relates.
(2)
The territorial authority must advise Heritage New Zealand Pouhere Taonga within 5 days after receiving the application.
Compare: 1991 No 150 s 30(4)
Section 39: replaced, on 1 February 2010, by section 14 of the Building Amendment Act 2009 (2009 No 25).
Section 39 heading: amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
Section 39(1)(a): amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
Section 39(1)(b): amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
Section 39(2): amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
Building consents
40 Buildings not to be constructed, altered, demolished, or removed without consent
(1)
A person must not carry out any building work except in accordance with a building consent.
(2)
A person commits an offence if the person fails to comply with this section.
(3)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $200,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence has continued.
Compare: 1991 No 150 s 32(1)
Section 40(3): amended, on 28 November 2013, by section 16 of the Building Amendment Act 2013 (2013 No 100).
Section 40(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
41 Building consent not required in certain cases
(1)
Despite section 40, a building consent is not required in relation to—
(a)
a Crown building or Crown building work to which, under section 6, this Act does not apply; or
(b)
any building work described in Schedule 1 for which a building consent is not required (see section 42A); or
(c)
any building work in respect of which a building consent cannot practicably be obtained in advance because the building work has to be carried out urgently—
(i)
for the purpose of saving or protecting life or health or preventing serious damage to property; or
(ii)
in order to ensure that a specified system in a building that is covered by a compliance schedule, or would be covered if a compliance schedule were issued in respect of the building, is maintained in a safe condition or is made safe; or
(d)
any energy work that, under section 43, does not require a building consent; or
(e)
any building work that a territorial authority is authorised to carry out under this Act.
(2)
The Governor-General may, by Order in Council, amend Schedule 1 by—
(a)
adding any building work or class of building work to Schedule 1 as being building work for which a building consent is not required:
(b)
extending or clarifying the scope of any building work or class of building work listed in Schedule 1 as building work for which a building consent is not required:
(c)
restating, for the purpose of clarity, any building work or class of building work listed in Schedule 1.
Compare: 1991 No 150 s 32(2), (3)
Section 41(1)(b): replaced, on 28 November 2013, by section 17(1) of the Building Amendment Act 2013 (2013 No 100).
Section 41(2): replaced, on 28 November 2013, by section 17(2) of the Building Amendment Act 2013 (2013 No 100).
42 Owner must apply for certificate of acceptance if building work carried out urgently
(1)
If, in reliance on section 41(1)(c), building work is carried out without a building consent having been obtained in respect of that work, the owner must, as soon as practicable after completion of the building work, apply for a certificate of acceptance under section 96.
(2)
A person commits an offence if the person fails to apply for a certificate of acceptance in accordance with subsection (1).
(3)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Section 42(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
42A Building work for which building consent is not required under Schedule 1
(1)
Despite section 40, subject to the conditions set out in subsection (2) and whether or not a building consent would otherwise have been required, a building consent is not required for building work in the following categories:
(a)
building work described in Part 1 of Schedule 1; or
(b)
building work described in Part 2 of Schedule 1 that is carried out by an authorised person (see subsection (3)); or
(c)
building work described in Part 3 of Schedule 1 if the design of the building work has been carried out or reviewed by a chartered professional engineer and the building work has been carried out in accordance with that design.
(2)
Subsection (1) is subject to the following conditions:
(a)
the building work complies with the building code to the extent required by this Act:
(b)
after the building work is completed, the building,—
(i)
if it complied with the building code immediately before the building work began, continues to comply with the building code; or
(ii)
if it did not comply with the building code immediately before the building work began, continues to comply at least to the same extent as it did then comply:
(c)
the building work does not breach any other enactment:
(d)
the building to which the building work relates is not a hazardous substance location that is required to be authorised under the Health and Safety at Work Act 2015 or any regulations made under that Act.
(3)
In subsection (1)(b), authorised person means a person who is authorised under the Plumbers, Gasfitters, and Drainlayers Act 2006 to do the work, except for a person who is authorised under section 15, 16, 19, or 25 of that Act.
Section 42A: inserted, on 28 November 2013, by section 18 of the Building Amendment Act 2013 (2013 No 100).
Section 42A(2)(d): replaced, on 1 December 2017, by section 55 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).
43 Building consent not required for energy work
(1)
Energy work does not require a building consent.
(2)
However, the following energy work requires a building consent:
(a)
energy work that relates to any specified system that is contained in, or proposed to be contained in, any building (whether existing or proposed) and that,—
(i)
in the case of an existing specified system, is covered by a compliance schedule, or would be covered if a compliance schedule were issued in respect of the building; or
(ii)
in the case of a proposed specified system, will be required to be covered by a compliance schedule; and
(b)
energy work in any case where, if that work required a building consent, a consent could not be granted unless it was granted subject to a waiver or modification of the building code.
(3)
An owner who wishes to obtain a building consent for energy work that does not require a building consent may apply for a building consent for that work (whether or not the application also relates to any other building work), and in that case this Act applies as if the energy work required a building consent.
Compare: 1991 No 150 s 32A
44 When to apply for building consent
(1)
An owner intending to carry out building work must, before the building work begins, apply for a building consent to a building consent authority that is authorised, within the scope of its accreditation, to grant a building consent for the proposed building work.
(2)
An owner may make a series of applications for building consents for stages of the proposed building work.
Compare: 1991 No 150 s 33(1), (3)
45 How to apply for building consent
(1)
An application for a building consent must—
(a)
be in the prescribed form; and
(b)
be accompanied by plans and specifications that are—
(i)
required by regulations made under section 402; or
(ii)
if the regulations do not so require, required by a building consent authority; and
(ba)
if a national multiple-use approval has been issued in relation to some or all of the plans and specifications required under paragraph (b), be accompanied by—
(i)
a copy of that national multiple-use approval; and
(ii)
details of any proposed minor customisations; and
(c)
contain or be accompanied by any other information that the building consent authority reasonably requires; and
(d)
be accompanied by any fees and charges imposed by the building consent authority under section 219 or 240 (as applicable); and
(e)
in the case of an application for a building consent that relates to restricted building work, state the name of each licensed building practitioner who, as far as the applicant is aware at the time the application is made, will be involved in carrying out or supervising the restricted building work that is the subject of the application; and
(f)
if the owner applies for a project information memorandum for the building work under section 32 and the project information memorandum is then issued, be accompanied by—
(i)
the project information memorandum; and
(ii)
a development contribution notice under section 36 (if any); and
(iii)
a certificate issued under section 37 (if any); and
(g)
be accompanied by either one of the following:
(i)
if a compliance schedule is required as a result of the building work, a list of all specified systems for the building; or
(ii)
if an amendment to an existing compliance schedule is required as a result of the building work, a list of all specified systems that are being—
(A)
altered in the course of the building work:
(B)
added to the building in the course of the building work:
(C)
removed from the building in the course of the building work.
(2)
If an application for a building consent is accompanied by plans and specifications that contain design work (relating to building work) that is restricted building work, that design work must be carried out or supervised by 1 or more licensed building practitioners who are licensed to carry out or supervise that work.
(3)
The plans and specifications that contain the design work referred to in subsection (2) must be accompanied by a certificate of work—
(a)
provided by 1 or more licensed building practitioners who carried out or supervised that design work; and
(b)
that identifies that design work; and
(c)
that states—
(i)
that the design work complies with the building code; or
(ii)
whether waivers or modifications of the building code are required and, if so, what those waivers or modifications are.
(3A)
A certificate of work provided under subsection (3) does not, of itself,—
(a)
create any liability in relation to any matter to which the certificate of work relates; or
(b)
give rise to any civil liability to the owner that would not otherwise exist if the licensed building practitioner were not required to provide the certificate of work.
(4)
An application for an amendment to a building consent must,—
(a)
in the case of a minor variation, be made in accordance with section 45A; and
(b)
in all other cases, be made as if it were an application for a building consent, and this section, and sections 48 to 51 apply with any necessary modifications.
(5)
The application must be accompanied by a statutory declaration, in the prescribed form, as to owner-builder status—
(a)
if the building work includes restricted building work to be carried out by the owner-builder; or
(b)
if any accompanying plans or specifications contain design work that is restricted building work and that has been carried out by the owner-builder.
Compare: 1991 No 150 s 33(2), (4)
Section 45(1)(ba): inserted, on 1 February 2010, by section 15(1) of the Building Amendment Act 2009 (2009 No 25).
Section 45(1)(d): replaced, on 13 March 2012, by section 18(2) of the Building Amendment Act 2012 (2012 No 23).
Section 45(1)(d): amended, on 1 July 2017, by section 8 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 45(2): replaced, on 1 February 2010, by section 15(2) of the Building Amendment Act 2009 (2009 No 25).
Section 45(2): amended, on 28 November 2013, by section 19(1) of the Building Amendment Act 2013 (2013 No 100).
Section 45(3): replaced, on 1 February 2010, by section 15(2) of the Building Amendment Act 2009 (2009 No 25).
Section 45(3): amended, on 28 November 2013, by section 19(2) of the Building Amendment Act 2013 (2013 No 100).
Section 45(3A): inserted, on 28 November 2013, by section 19(3) of the Building Amendment Act 2013 (2013 No 100).
Section 45(4): replaced, on 1 February 2010, by section 15(2) of the Building Amendment Act 2009 (2009 No 25).
Section 45(5): replaced, on 13 March 2012, by section 18(1) of the Building Amendment Act 2012 (2012 No 23).
45A Minor variations to building consents
(1)
An application for a minor variation to a building consent—
(a)
is not required to be made in the prescribed form; but
(b)
must comply with all other applicable requirements of section 45.
(2)
Sections 48 to 50 apply, with all necessary modifications, to an application for a minor variation.
(3)
A building consent authority that grants a minor variation—
(a)
must record the minor variation in writing; but
(b)
is not required to issue an amended building consent.
Section 45A: inserted, on 1 February 2010, by section 16 of the Building Amendment Act 2009 (2009 No 25).
45B Changes to plans and specifications that have national multiple-use approval
(1)
When applying for a building consent in reliance on plans and specifications for which a national multiple-use approval has been issued, or for an amendment to such a building consent under section 45(4), changes may be made to those plans and specifications if—
(a)
the changes are permitted under the terms of the national multiple-use approval; or
(b)
the changes are minor customisations permitted by regulations made under section 402(1)(kc).
(2)
If any other changes are made to the plans and specifications referred to in subsection (1), the national multiple-use approval does not apply.
Section 45B: inserted, on 1 February 2010, by section 16 of the Building Amendment Act 2009 (2009 No 25).
46 Copy of certain applications for building consent must be provided to Fire and Emergency New Zealand
(1)
This section applies to an application for a building consent that is of a kind specified by the chief executive by notice published in the Gazette.
(2)
A copy of the notice must be given by the chief executive to every building consent authority as soon as practicable after it is so published.
(3)
A building consent authority must, on receipt of an application to which this section applies, provide a copy of the application to Fire and Emergency New Zealand.
Section 46 heading: amended, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).
Section 46(3): amended, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).
47 Fire and Emergency New Zealand may give advice on applications under section 46
(1)
Fire and Emergency New Zealand may, within 10 working days after receiving a copy of an application for a building consent under section 46, provide the building consent authority concerned with a memorandum that sets out advice on the following matters in respect of the building to which the application relates:
(a)
provisions for means of escape from fire:
(b)
the needs of persons who are authorised by law to enter the building to undertake fire-fighting.
(2)
Fire and Emergency New Zealand must not, in the memorandum referred to in subsection (1), set out advice that provides for the building to meet performance criteria that exceed the requirements of the building code.
(3)
If Fire and Emergency New Zealand does not provide a memorandum within the period specified in subsection (1), the building consent authority may proceed to determine the application without the memorandum.
Section 47 heading: amended, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).
Section 47(1): amended, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).
Section 47(2): amended, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).
Section 47(3): amended, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).
48 Processing application for building consent
(1)
After receiving an application for a building consent that complies with section 45, a building consent authority must, within the time limit specified in subsection (1A),—
(a)
grant the application; or
(b)
refuse the application.
(1A)
The time limit is—
(a)
if the application includes plans and specifications in relation to which a national multiple-use approval has been issued, within 10 working days after receipt by the building consent authority of the application; and
(b)
in all other cases, within 20 working days after receipt by the building consent authority of the application.
(2)
A building consent authority may, within the period specified in subsection (1A), require further reasonable information in respect of the application, and, if it does so, the period is suspended until it receives that information.
(3)
In deciding whether to grant or refuse an application for a building consent, the building consent authority must have regard to—
(a)
a memorandum provided by Fire and Emergency New Zealand under section 47 (if any); and
(b)
whether a building method or product to which a current warning or ban under section 26(2) relates will, or may, be used or applied in the building work to which the building consent relates.
(4)
Subsection (3) does not limit section 49(1).
Compare: 1991 No 150 s 34(1), (2)
Section 48(1): replaced, on 1 February 2010, by section 17(1) of the Building Amendment Act 2009 (2009 No 25).
Section 48(1A): inserted, on 1 February 2010, by section 17(1) of the Building Amendment Act 2009 (2009 No 25).
Section 48(2): amended, on 1 February 2010, by section 17(2) of the Building Amendment Act 2009 (2009 No 25).
Section 48(3)(a): amended, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).
49 Grant of building consent
(1)
A building consent authority must grant a building consent if it is satisfied on reasonable grounds that the provisions of the building code would be met if the building work were properly completed in accordance with the plans and specifications that accompanied the application.
(2)
However, a building consent authority is not required to grant a building consent until it receives—
(a)
any charge or fee fixed by it in relation to the consent; and
(b)
any levy payable under section 53.
(c)
[Repealed]Compare: 1991 No 150 s 34(3)
Section 49(2)(a): amended, on 13 March 2012, by section 19 of the Building Amendment Act 2012 (2012 No 23).
Section 49(2)(b): amended, on 6 August 2010, by section 4(2)(a) of the Affordable Housing: Enabling Territorial Authorities Act Repeal Act 2010 (2010 No 101).
Section 49(2)(c): repealed, on 6 August 2010, by section 4(2)(b) of the Affordable Housing: Enabling Territorial Authorities Act Repeal Act 2010 (2010 No 101).
50 Refusal of application for building consent
If a building consent authority refuses to grant an application for a building consent, the building consent authority must give the applicant written notice of—
(a)
the refusal; and
(b)
the reasons for the refusal.
Compare: 1991 No 150 s 35(2)
51 Issue of building consent
(1)
A building consent must—
(a)
be issued in the prescribed form; and
(b)
have attached to it a copy of—
(i)
the project information memorandum (if any) for the building work to which the building consent relates; and
(ii)
a development contribution notice under section 36 (if any); and
(iii)
a certificate issued under section 37 (if any); and
(ba)
contain confirmation that Heritage New Zealand Pouhere Taonga has been notified under section 39 (if applicable); and
(c)
if a compliance schedule is required as a result of the building work, state—
(i)
the specified systems that must be covered by the compliance schedule; and
(ii)
the performance standards for the specified systems that are required by the building code; and
(d)
if an amendment to an existing compliance schedule is required as a result of the building work, state—
(i)
the specified systems that must be covered by the compliance schedule; and
(ii)
the performance standards for the specified systems that are required by the building code.
(2)
The issue of a building consent does not, of itself,—
(a)
relieve the owner of the building or proposed building to which the building consent relates of any duty or responsibility under any other Act relating to or affecting the building or proposed building; or
(b)
permit the construction, alteration, demolition, or removal of the building or proposed building if that construction, alteration, demolition, or removal would be in breach of any other Act.
(3)
If a building consent authority does not, within the time limit for granting the building consent, receive from the territorial authority any document or information required for compliance with subsection (1)(b) or (ba), the building consent authority may grant the building consent despite that subsection.
(4)
However, the building consent authority must, on receiving the document or information referred to in subsection (3), provide the owner with the document or information.
Compare: 1991 No 150 s 35(1), (3)
Section 51(1)(b)(i): amended, on 1 February 2010, by section 18(1) of the Building Amendment Act 2009 (2009 No 25).
Section 51(1)(ba): inserted, on 1 February 2010, by section 18(2) of the Building Amendment Act 2009 (2009 No 25).
Section 51(1)(ba): amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
Section 51(3): replaced, on 1 February 2010, by section 18(3) of the Building Amendment Act 2009 (2009 No 25).
Section 51(4): replaced, on 1 February 2010, by section 18(3) of the Building Amendment Act 2009 (2009 No 25).
52 Lapse of building consent
A building consent lapses and is of no effect if the building work to which it relates does not commence within—
(a)
12 months after the date of issue of the building consent; or
(b)
any further period that the building consent authority may allow.
Compare: 1991 No 150 s 41(1)
Building levy
53 Applicant for building consent liable to pay levy
(1)
An applicant for a building consent is liable to pay to the chief executive a levy for, or in connection with, the performance of the chief executive’s functions under this Act if the building consent is granted.
(2)
The levy—
(a)
must be calculated—
(i)
in relation to the estimated value of the building work to which the building consent relates; and
(ii)
at the prescribed rate; and
(b)
must be paid—
(i)
to the building consent authority as the agent of the chief executive; and
(ii)
at the time the building consent is granted.
(3)
Subsection (2)(a)(ii) is subject to section 431.
(4)
The chief executive may, in his or her discretion, refund all or part of the levy if the building consent lapses by paying the refund to the applicant or to the relevant building consent authority.
Compare: 1991 No 150 s 23B(1), (2)
Section 53(1): replaced, on 14 April 2005, by section 7(1) Building Amendment Act 2005 (2005 No 31).
Section 53(2)(b)(ii): amended, on 14 April 2005, by section 7(2)(a) of the Building Amendment Act 2005 (2005 No 31).
Section 53(4): inserted, on 13 March 2012, by section 20 of the Building Amendment Act 2012 (2012 No 23).
54 Building consent authority must advise applicant of amount of levy payable
A building consent authority must, before it grants a building consent, advise the applicant of the amount of levy for which the applicant may be liable under section 53.
55 Exemption from levy
Despite section 53, an applicant for a building consent is not liable to pay a levy if the building work for which the building consent is issued has an estimated value of less than the prescribed minimum estimated value (if any).
Compare: 1991 No 150 s 23B(1)
56 Payment of levy sufficient unless estimated value of building work changes
If a levy has already been paid for building work for which a building consent is granted, no further levy is payable for that building work unless its estimated value changes.
Section 56: amended, on 14 April 2005, by section 7(2)(a) of the Building Amendment Act 2005 (2005 No 31).
57 Payment of levy if building work completed in stages
(1)
If building work is, or is proposed to be, completed in stages, the estimated value of the building work must be taken, for the purpose of assessing the levy payable for the building work, to include the estimated value of the preceding stage (if that preceding stage had an estimated value of less than the prescribed minimum estimated value).
(2)
For the purposes of subsection (1), any new building work in connection with a building must be treated as a further stage of any previous building work in connection with that building if—
(a)
a building consent was, or ought to have been, obtained for that previous building work; and
(b)
the code compliance certificate for that building work has not been issued as at the date of the application for a building consent for the new building work.
Compare: 1991 No 150 s 23B(3), (4)
58 Liability to pay levy: building consent authority
(1)
A building consent authority, on the grant of a building consent, becomes liable to the territorial authority for the levy payable under section 53 in relation to the building work to which the building consent relates.
(2)
A building consent authority must pay the levy to the territorial authority at the same time that it provides, under section 238(2)(d), copies of information about the collection of that levy.
(3)
A person commits an offence if the person fails to pay the levy in accordance with this section.
(4)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Compare: 1991 No 150 s 23C(1)
Section 58(1): amended, on 14 April 2005, by section 7(2)(b) of the Building Amendment Act 2005 (2005 No 31).
Section 58(4): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
59 Liability to pay levy: territorial authority
(1)
A territorial authority, on granting a building consent or on receiving all or any of the information specified in section 238(1)(c), becomes liable to the chief executive for the levy payable under section 53 in relation to the building work to which the building consent relates.
(2)
The total amount of the levy for which a territorial authority becomes liable is due and payable to the chief executive by the 20th day of the month following the month in which the relevant building consent was granted.
(3)
Every payment of the levy must be accompanied by a certificate of the territorial authority, or of an officer or agent of the territorial authority, that states that the payment is correct—
(a)
according to the financial records of the territorial authority; and
(b)
to the best of that person’s knowledge and belief.
Compare: 1991 No 150 s 23C(1), (2), (3)
Section 59(1): amended, on 14 April 2005, by section 7(2)(c) of the Building Amendment Act 2005 (2005 No 31).
Section 59(2): amended, on 14 April 2005, by section 7(2)(a) of the Building Amendment Act 2005 (2005 No 31).
60 Territorial authority may retain part of levy
(1)
A territorial authority may retain 3% of the levies for which the territorial authority is liable, under section 59, in any month.
(2)
Subsection (1) is subject to section 61.
Compare: 1991 No 150 s 23C(4)
61 Chief executive may recover unpaid levies from territorial authority
(1)
The consequences specified in subsection (2) apply if a territorial authority that is liable to pay levies to the chief executive under section 59(1) fails to pay the levies by the date referred to in section 59(2).
(2)
The consequences are that—
(a)
section 60(1) does not apply; and
(b)
the chief executive may recover, as a debt due from the territorial authority, the amount of those levies and any interest on that amount calculated—
(i)
in monthly instalments at the monthly basic lending rate of the Ministry’s bank; and
(ii)
for the period of each month, or part of a month, starting on the date payment is due and ending on the date payment is made.
Compare: 1991 No 150 s 23C(5), (6)
62 Territorial authority may recover unpaid levies from applicant for building consent
(1)
The consequence specified in subsection (2) applies if an applicant for a building consent fails to pay a levy or part of a levy under section 53 by the time referred to in section 53(2)(b)(ii).
(2)
The consequence is that the territorial authority may recover, as a debt due from the applicant, the amount of those levies and any interest on that amount calculated—
(a)
in monthly instalments at the monthly basic lending rate of the territorial authority’s bank; and
(b)
for the period of each month, or part of a month, starting on the date payment is due and ending on the date payment is made.
Compare: 1991 No 150 s 23C(8)
63 Chief executive may obtain information in order to assess amount of levy payable
(1)
The chief executive may require any or all of the persons referred to in subsection (2) to provide any information about the estimated value of building work specified in a building consent that may be necessary to enable the chief executive to assess the amount of levy that is payable under section 53.
(2)
The persons are—
(a)
an applicant for a building consent:
(b)
the relevant building consent authority:
(c)
if applicable, the relevant territorial authority.
(3)
An applicant who provides information to the chief executive under subsection (1) may request the chief executive to treat the information as confidential, and, except if compliance with the request would be contrary to any other law, the chief executive must comply with the request to the fullest extent possible.
(4)
A person commits an offence if the person fails to comply with a requirement to provide information under subsection (1).
(5)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Compare: 1991 No 150 s 23F
Section 63(5): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
64 Audit of issue of building consents for purpose of ascertaining payment of levy
(1)
A territorial authority must, at all times, keep in safe custody all records of building consents granted within its district, including—
(a)
the estimated value of the building work to which each consent relates; and
(b)
the amount of any levy payable under section 53; and
(c)
the date of payment of the levy to the territorial authority.
(2)
The chief executive or the chief executive’s authorised officers or agents may, for the purpose of ascertaining whether the levy for which a territorial authority is liable has been paid, and whether this section has been complied with,—
(a)
require a territorial authority to make available for examination the following records of the territorial authority:
(i)
records of building consents; and
(ii)
financial records; and
(b)
examine those records; and
(c)
make copies of those records.
(3)
A territorial authority must, on being advised of a requirement under subsection (2)(a), comply immediately with that requirement.
(4)
The chief executive’s authorised officers or agents must report to the chief executive the result of any examination that they have conducted under subsection (2).
Compare: 1991 No 150 s 23E
Section 64(1): amended, on 14 April 2005, by section 7(2)(a) of the Building Amendment Act 2005 (2005 No 31).
65 Chief executive may enter into agreements for auditing certain information
(1)
The chief executive may enter into an agreement with any person for the purpose of enabling the person to act as agent for the chief executive in determining whether payment of the levy has been made in accordance with sections 53 to 62.
(2)
A person with whom the chief executive enters into an agreement referred to in subsection (1) may, while the agreement is in force, access any information that the chief executive may access under sections 63 and 64.
Compare: 1991 No 150 s 23G
66 Chief executive must review levy
As soon as practicable after the expiry of 3 years beginning on the commencement of this section, and then at intervals of not more than 3 years, the chief executive must—
(a)
review whether the levy is set at a rate that is appropriate for meeting the costs of the chief executive in performing his or her functions under this Act; and
(b)
report to the Minister on the findings of the review.
Compare: 1991 No 150 s 23I
Waivers and modifications
67 Territorial authority may grant building consent subject to waivers or modifications of building code
(1)
A building consent authority that is a territorial authority may grant an application for a building consent subject to a waiver or modification of the building code.
(2)
A waiver or modification of the building code under subsection (1) may be subject to any conditions that the territorial authority considers appropriate.
(3)
The territorial authority cannot grant an application for a building consent subject to a waiver or modification of the building code relating to access and facilities for people with disabilities.
Section 67(3): replaced, on 14 April 2005, by section 8 of the Building Amendment Act 2005 (2005 No 31).
67A Territorial authority may grant waivers or modifications in relation to means of restricting access to residential pools
(1)
A territorial authority may grant a waiver or modification of section 162C(1) or (2) (which requires residential pools to have means of restricting access by unsupervised children) if the territorial authority is satisfied that the waiver or modification would not significantly increase danger to children under 5 years of age.
(2)
In deciding whether to grant a waiver or modification under subsection (1), the territorial authority must have regard to all of the relevant circumstances (including the particular characteristics of the pool and the land on which it is situated).
Compare: 1987 No 178 s 6
Section 67A: inserted, on 1 January 2017, by section 9 of the Building (Pools) Amendment Act 2016 (2016 No 71).
68 Territorial authority must notify chief executive if waiver or modification granted
If a territorial authority grants a building consent subject to a waiver or modification of the building code, the territorial authority must notify the chief executive of the waiver or modification.
69 Waiver or modification may only be granted by chief executive in certain cases
(1)
This section applies to a waiver or modification of the building code that relates to—
(a)
an existing building to which section 118 applies; and
(b)
access and facilities for use by persons with disabilities.
(2)
If this section applies, the chief executive may grant a waiver or modification only in a determination issued under subpart 1 of Part 3.
(3)
This section does not apply to a waiver or modification of the building code that relates to a new building or that is contained in a national multiple-use approval.
Section 69(1)(b): amended, on 15 March 2008, by section 12 of the Building Amendment Act 2008 (2008 No 4).
Section 69(3): amended, on 1 February 2010, by section 19 of the Building Amendment Act 2009 (2009 No 25).
70 Applications relating to energy work
(1)
This section applies if any part of an application for a building consent—
(a)
relates to energy work; and
(b)
involves the grant or refusal of a waiver or modification of the building code in relation to that energy work.
(2)
If this section applies,—
(a)
the application must be made to a territorial authority; and
(b)
the territorial authority must refer the part of the application that relates to energy work to the chief executive.
(3)
If any part of the application is referred to the chief executive under subsection (2)(b), the chief executive must—
(a)
consult with the chief executive of the department of State responsible for the administration of the Gas Act 1992 and the Electricity Act 1992; and
(b)
decide—
(i)
whether to grant the waiver or modification in relation to the energy work; and
(ii)
if he or she decides to grant the waiver or modification, whether any conditions should be imposed in respect of the waiver or modification; and
(iii)
if so, what the conditions should be.
(4)
An application referred to in subsection (1) must be treated, for the purposes of section 177, as an application by the applicant for the building consent to which the referral relates, and, accordingly, subpart 1 of Part 3 applies to the application—
(a)
to the extent that it is applicable; and
(b)
with all necessary modifications.
Compare: 1991 No 150 s 34A(1), (2)
Limitations and restrictions on building consents: Construction of building on land subject to natural hazards
71 Building on land subject to natural hazards
(1)
A building consent authority must refuse to grant a building consent for construction of a building, or major alterations to a building, if—
(a)
the land on which the building work is to be carried out is subject or is likely to be subject to 1 or more natural hazards; or
(b)
the building work is likely to accelerate, worsen, or result in a natural hazard on that land or any other property.
(2)
Subsection (1) does not apply if the building consent authority is satisfied that adequate provision has been or will be made to—
(a)
protect the land, building work, or other property referred to in that subsection from the natural hazard or hazards; or
(b)
restore any damage to that land or other property as a result of the building work.
(3)
In this section and sections 72 to 74, natural hazard means any of the following:
(a)
erosion (including coastal erosion, bank erosion, and sheet erosion):
(b)
falling debris (including soil, rock, snow, and ice):
(c)
subsidence:
(d)
inundation (including flooding, overland flow, storm surge, tidal effects, and ponding):
(e)
slippage.
Compare: 1991 No 150 s 36(1)
72 Building consent for building on land subject to natural hazards must be granted in certain cases
Despite section 71, a building consent authority that is a territorial authority must grant a building consent if the building consent authority considers that—
(a)
the building work to which an application for a building consent relates will not accelerate, worsen, or result in a natural hazard on the land on which the building work is to be carried out or any other property; and
(b)
the land is subject or is likely to be subject to 1 or more natural hazards; and
(c)
it is reasonable to grant a waiver or modification of the building code in respect of the natural hazard concerned.
Compare: 1991 No 150 s 36(2)
Section 72: amended, on 15 March 2008, by section 13 of the Building Amendment Act 2008 (2008 No 4).
73 Conditions on building consents granted under section 72
(1)
A building consent authority that is a territorial authority that grants a building consent under section 72 must include, as a condition of the consent, that the building consent authority will, on issuing the consent, notify the consent to,—
(a)
in the case of an application made by, or on behalf of, the Crown, the appropriate Minister and the Surveyor-General; and
(b)
in the case of an application made by, or on behalf of, the owners of Māori land, the Registrar of the Maori Land Court; and
(c)
in any other case, the Registrar-General of Land.
(2)
The notification under subsection (1)(a) or (b) must be accompanied by a copy of any project information memorandum that has been issued and that relates to the building consent in question.
(3)
The notification under subsection (1)(c) must identify the natural hazard concerned.
Compare: 1991 No 150 s 36(2), (3)
Section 73(1): amended, on 15 March 2008, by section 14 of the Building Amendment Act 2008 (2008 No 4).
Section 73(2): amended, on 1 February 2010, by section 20 of the Building Amendment Act 2009 (2009 No 25).
74 Steps after notification
(1)
On receiving a notification under section 73,—
(a)
the Surveyor-General or the Registrar of the Maori Land Court, as the case may be, must enter in his or her records the particulars of the notification together with a copy of any project information memorandum that accompanied the notification:
(b)
the Registrar-General of Land must record, as an entry on the record of title to the land on which the building work is carried out,—
(i)
that a building consent has been granted under section 72; and
(ii)
particulars that identify the natural hazard concerned.
(2)
If an entry has been recorded on a duplicate of the record of title referred to in subsection (1)(b) under section 641A of the Local Government Act 1974 or section 36 of the former Act, the Registrar-General of Land does not need to record another entry on the duplicate.
(3)
Subsection (4) applies if a building consent authority determines that any of the following entries is no longer required:
(a)
an entry referred to in subsection (1)(b):
(b)
an entry under section 641A of the Local Government Act 1974:
(c)
an entry under section 36 of the former Act.
(4)
The building consent authority must notify the Surveyor-General, the Registrar of the Maori Land Court, or the Registrar-General of Land, as the case may be, who must amend his or her records or remove the entry from the record of title.
Compare: 1991 No 150 s 36(5), (6), (7)
Section 74(1)(a): amended, on 1 February 2010, by section 21 of the Building Amendment Act 2009 (2009 No 25).
Section 74(1)(b): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 74(2): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 74(4): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Limitations and restrictions on building consents: Construction of building on 2 or more allotments
75 Construction of building on 2 or more allotments
(1)
This section applies if—
(a)
an application for a project information memorandum or for a building consent relates to the construction of a building on land that is comprised, or partly comprised, of 2 or more allotments of 1 or more existing subdivisions (whether comprised in the same record of title or not); and
(b)
those allotments are held by the owner in fee simple.
(2)
The territorial authority must issue a certificate that states that, as a condition of the grant of a building consent for the building work to which the application relates, 1 or more of those allotments specified by the territorial authority (the specified allotments) must not be transferred or leased except in conjunction with any specified other or others of those allotments.
Compare: 1991 No 150 s 37(1), (2)
Section 75(1)(a): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 75(1)(a): amended, on 1 February 2010, by section 22(1) of the Building Amendment Act 2009 (2009 No 25).
Section 75(2): replaced, on 1 February 2010, by section 22(2) of the Building Amendment Act 2009 (2009 No 25).
76 Exemption from section 75
(1)
Section 75 does not apply if—
(a)
the owner proposes to construct a building with party walls that will be on the boundaries of the allotments referred to in that section; or
(b)
the owner has applied to the Registrar-General of Land under section 82 for the Registrar’s consent to the preparation of a plan (as defined by that section).
(2)
Section 82 applies if subsection (1)(b) applies.
Compare: 1991 No 150 s 37(11)
77 Building consent must not be granted until condition is imposed under section 75
(1)
A building consent authority must not grant a building consent for building work to which section 75 applies until the territorial authority has issued the certificate under section 75(2).
(2)
The territorial authority must impose that condition if the building consent authority requests it to do so.
(3)
The certificate must be—
(a)
authenticated by the territorial authority; and
(b)
signed by the owner.
(4)
The territorial authority must lodge a copy of the certificate with the Registrar-General of Land.
(5)
The building consent authority must note, on the building consent, the condition imposed in the certificate.
Section 77(1): amended, on 1 February 2010, by section 23(1) of the Building Amendment Act 2009 (2009 No 25).
Section 77(5): inserted, on 1 February 2010, by section 23(2) of the Building Amendment Act 2009 (2009 No 25).
78 Registrar-General of Land must record entry on record of title when certificate is lodged under section 77
(1)
If a certificate referred to in section 77(1) is lodged with the Registrar-General of Land, he or she must record, as an entry on each record of title for the specified allotments, that the record of title is subject to the condition referred to in that certificate.
(2)
[Repealed](3)
Subsection (1) is subject to section 82.
Compare: 1991 No 150 s 37(2)
Section 78 heading: amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 78(1): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 78(1): amended, on 1 February 2010, by section 24 of the Building Amendment Act 2009 (2009 No 25).
Section 78(2): repealed, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
79 Effect of entry recorded on record of title
If an entry referred to in section 78(1) is recorded on the records of title for the specified allotments, none of those allotments may be transferred or leased except in conjunction with the specified other or others of those allotments.
Compare: 1991 No 150 s 37(3)
Section 79 heading: amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 79: amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
80 Records of title for 2 or more allotments subject to registered instrument
(1)
This section applies if—
(a)
an entry referred to in section 78(1) is made on 2 or more records of title; and
(b)
any of the land less than the whole of the land comprised in all those records of title is, at the time the entry is recorded, independently subject to a registered instrument under which a power to sell, a right of renewal, or a right or obligation to purchase is lawfully conferred or imposed; and
(c)
that power, right, or obligation referred to in paragraph (b) becomes exercisable but is not able to be exercised or fully exercised because of section 79.
(2)
The whole of the land comprised in all those records of title is taken to be subject to the registered instrument and all the powers, rights, and obligations under the instrument, as if the instrument had been registered against the land at the time the entry is recorded.
Compare: 1991 No 150 s 37(4)
Section 80 heading: amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 80(1)(a): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 80(1)(b): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 80(2): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
81 Mortgage or charge has priority over registered instrument
(1)
This section applies if—
(a)
the registered instrument referred to in section 80(2) is a mortgage or charge; and
(b)
any of the land to which that mortgage or charge is extended is already subject to a registered mortgage or charge.
(2)
The registered mortgage or charge has priority over any mortgage or charge extended over land under section 80(2).
(3)
If a registered mortgage or charge is extended over the land comprised in a record of title by section 80, it has priority over any mortgage or charge against the land that is registered after the entry is recorded against the record of title to that land under that section.
Compare: 1991 No 150 s 37(5), (6)
Section 81 heading: amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 81(1)(a): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 81(1)(b): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 81(2): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 81(3): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
82 Registrar-General of Land may require preparation of plan
(1)
If a certificate referred to in section 77 is lodged with the Registrar-General of Land, but the Registrar-General is satisfied that it is not practicable or desirable to record the entry on the records of title specified in section 78, the Registrar-General may require that—
(a)
a plan be deposited under the Land Transfer Act 2017; and
(b)
1 or more records of title under that Act be issued for the land in terms of the plan.
(2)
In subsection (1), plan means a plan prepared in accordance with section 224 of the Land Transfer Act 2017 that amalgamates all the allotments—
(a)
into 1 allotment; or
(b)
if the circumstances render it expedient or desirable, into 2 or more allotments.
Compare: 1991 No 150 s 37(7)
Section 82(1): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 82(1)(a): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 82(1)(b): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 82(2): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
83 Owner may apply for entry to be removed
(1)
This section applies if—
(a)
the requirements of sections 75 to 81 or the requirements of section 643(1) to (6) of the Local Government Act 1974 or any previous enactments were met to enable a building to be built on 2 or more allotments; and
(b)
any of the following applies:
(i)
the building is removed, demolished, or destroyed; or
(ii)
the boundaries of the allotments are adjusted in a manner that results in the building being contained entirely within the boundaries of 1 allotment; or
(iii)
circumstances have otherwise changed.
(2)
The owner may apply to a territorial authority for approval for the entry under section 78 to be removed.
(3)
If the territorial authority decides to approve the removal of the entry,—
(a)
the decision of the territorial authority must be set out in a certificate that is—
(i)
authenticated by the territorial authority; and
(ii)
signed by the owner; and
(b)
the certificate must be lodged with the Registrar-General of Land.
(4)
If a certificate referred to in subsection (3)(b) is lodged with the Registrar-General of Land, he or she must record an appropriate entry on—
(a)
the record of title for each allotment or part of the allotment; and
(b)
any mortgage or charge whose application was extended to additional land under section 80.
(5)
If subsection (4)(b) applies, any mortgage or charge whose application was extended to additional land under section 80 ceases to apply to that additional land.
(6)
[Repealed](7)
Subsections (2) and (3) apply, with any necessary modifications, to any request by an owner of land if the requirements of section 643(1) to (6) of the Local Government Act 1974 or any previous enactment or sections 75 to 81 were applied in error.
Compare: 1991 No 150 s 37(8), (9), (10)
Section 83(4)(a): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 83(4)(b): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 83(5): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 83(6): repealed, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Subpart 4—Requirements for building work
Restricted building work must be carried out or supervised by licensed building practitioners
84 Licensed building practitioner must carry out or supervise restricted building work
All restricted building work must be carried out or supervised by a licensed building practitioner who is licensed to carry out or supervise the work.
Section 84: amended, on 15 March 2008, by section 15 of the Building Amendment Act 2008 (2008 No 4).
85 Offences relating to carrying out or supervising restricted building work
(1)
A person who is not a licensed building practitioner commits an offence if he or she carries out restricted building work while not supervised by a licensed building practitioner who is licensed to carry out or supervise the carrying out of restricted building work of that kind.
(2)
A person who is a licensed building practitioner commits an offence if he or she—
(a)
carries out restricted building work and is not licensed to carry out restricted building work of that kind; or
(b)
supervises restricted building work and is not licensed to carry out or supervise the carrying out of restricted building work of that kind.
(3)
Subsection (1) and (2)(a) do not apply to a person to whom the owner-builder exemption applies in respect of the restricted building work in question.
(4)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $20,000.
Section 85: replaced, on 13 March 2012, by section 23 of the Building Amendment Act 2012 (2012 No 23).
Section 85(4): amended, on 1 July 2017, by section 9 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
86 Offence to engage another person to carry out or supervise restricted building work if person is not licensed building practitioner
(1)
A person commits an offence if that person—
(a)
engages another person to carry out restricted building work; and
(b)
knows that the other person is not—
(i)
a licensed building practitioner; or
(ii)
a licensed building practitioner who is licensed to carry out the restricted building work.
(1A)
A person commits an offence if that person—
(a)
engages another person to supervise the carrying out of restricted building work; and
(b)
knows that the other person is not—
(i)
a licensed building practitioner; or
(ii)
a licensed building practitioner who is licensed to carry out or supervise the carrying out of the restricted building work.
(1B)
This section does not apply in the case of any unpaid friend or family member of an owner-builder who is engaged to assist the owner-builder in carrying out restricted building work.
(2)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $20,000.
Section 86(1): replaced, on 13 March 2012, by section 24 of the Building Amendment Act 2012 (2012 No 23).
Section 86(1A): inserted, on 13 March 2012, by section 24 of the Building Amendment Act 2012 (2012 No 23).
Section 86(1B): inserted, on 13 March 2012, by section 24 of the Building Amendment Act 2012 (2012 No 23).
Section 86(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
87 Owner must notify names of licensed building practitioners engaged in restricted building work
(1)
Before restricted building work commences under a building consent, the owner must give the building consent authority written notice of the name of every licensed building practitioner who—
(a)
is engaged to carry out, or supervise, the restricted building work under the building consent; and
(b)
was not stated in the application for the building consent under section 45(1)(e).
(2)
After any restricted building work commences under a building consent, the owner must give the building consent authority a written notice if—
(a)
a licensed building practitioner ceases to be engaged to carry out, or supervise, the restricted building work under the building consent; or
(b)
another licensed building practitioner is engaged to carry out, or supervise, the restricted building work.
(3)
The notice under subsection (2) must—
(a)
state that 1 or both of the circumstances specified in subsection (2)(a) and (b) apply; and
(b)
be given as soon as practicable; and
(c)
name the other licensed building practitioner concerned (if any).
(4)
This section does not apply in the case of a licensed building practitioner who, as an unpaid friend or family member of an owner-builder, is engaged to assist the owner-builder in carrying out restricted building work.
Section 87(4): inserted, on 13 March 2012, by section 25 of the Building Amendment Act 2012 (2012 No 23).
87A Notices to building consent authority when owner-builder carries out restricted building work
(1)
This section applies when, under the owner-builder exemption, an owner-builder carries out restricted building work under a building consent.
(2)
If the building consent application was not accompanied by a statutory declaration as to owner-builder status, the owner must give the building consent authority a notice that the owner-builder is to carry out restricted building work.
(3)
The owner must give the building consent authority a notice—
(a)
if there is a change in the owner-builder carrying out the restricted building work; or
(b)
when the owner-builder ceases to carry out the restricted building work.
(4)
A notice under this section must—
(a)
be in the prescribed form; and
(b)
if it is a notice required under subsection (2) or (3)(a), be accompanied by a statutory declaration as to owner-builder status; and
(c)
be given—
(i)
before the building work begins, if it is a notice required by subsection (2):
(ii)
as soon as practicable, if it is a notice required by subsection (3).
(5)
A person who contravenes this section commits an offence and is liable to a fine not exceeding $20,000.
Section 87A: inserted, on 13 March 2012, by section 26 of the Building Amendment Act 2012 (2012 No 23).
88 Licensed building practitioner to provide record of work in respect of restricted building work
(1)
Each licensed building practitioner who carries out (other than as an owner-builder) or supervises restricted building work under a building consent must, on completion of the restricted building work, provide the persons specified in subsection (2) with a record of work, in the prescribed form, stating what restricted building work the licensed building practitioner carried out or supervised.
(2)
The persons are—
(a)
the owner; and
(b)
the territorial authority for the district in which the restricted building work is situated.
(3)
[Repealed](4)
A record of work given under subsection (1) does not, of itself,—
(a)
create any liability in relation to any matter to which the record of work relates; or
(b)
give rise to any civil liability to the owner that would not otherwise exist if the licensed building practitioner were not required to provide the record of work.
(5)
Subsection (4) does not limit section 362I(1)(c).
Section 88 heading: amended, on 13 March 2012, by section 27(1) of the Building Amendment Act 2012 (2012 No 23).
Section 88(1): replaced, on 13 March 2012, by section 27(2) of the Building Amendment Act 2012 (2012 No 23).
Section 88(3): repealed, on 13 March 2012, by section 27(3) of the Building Amendment Act 2012 (2012 No 23).
Section 88(4): replaced, on 13 March 2012, by section 27(4) of the Building Amendment Act 2012 (2012 No 23).
Section 88(5): amended, on 1 January 2015, by section 20 of the Building Amendment Act 2013 (2013 No 100).
Other provisions relating to building work generally
89 Licensed building practitioner must notify building consent authority of breaches of building consent
(1)
A licensed building practitioner must, if he or she is of the view that any building work carried out under a building consent does not comply with that consent, notify—
(a)
the territorial authority in whose district the building is situated; and
(b)
the owner.
(2)
The notification must—
(a)
state that the licensed building practitioner is of the view that building work carried out under the building consent does not comply with that consent; and
(b)
state how the building work does not so comply; and
(c)
be given as soon as practicable after the licensed building practitioner forms that view.
90 Inspections by building consent authorities
(1)
Every building consent is subject to the condition that agents authorised by the building consent authority for the purposes of this section are entitled, at all times during normal working hours or while building work is being done, to inspect—
(a)
land on which building work is being or is proposed to be carried out; and
(b)
building work that has been or is being carried out on or off the building site; and
(c)
any building.
(2)
The provisions (if any) that are endorsed on a building consent in relation to inspection during the carrying out of building work must be taken to include the provisions of this section.
(3)
In this section, inspection means the taking of all reasonable steps to ensure that building work is being carried out in accordance with a building consent.
Compare: 1991 No 150 s 76(1), (2), (3)
Subpart 4A—Restricted building work carried out by owner-builders
Subpart 4A: inserted, on 13 March 2012, by section 29 of the Building Amendment Act 2012 (2012 No 23).
90A Purpose of this subpart
The purpose of this subpart is to enable homeowners to build and alter their own homes.
Section 90A: inserted, on 13 March 2012, by section 29 of the Building Amendment Act 2012 (2012 No 23).
90B Meaning of owner-builder
(1)
An owner-builder, in relation to restricted building work, means a natural person who—
(a)
has a relevant interest in the land or the building on which the restricted building work is carried out; and
(b)
resides, or intends to reside, in the household unit in relation to which the restricted building work is carried out; and
(c)
carries out the restricted building work himself or herself or with the assistance of his or her unpaid friends and family members; and
(d)
has not, under the owner-builder exemption, carried out restricted building work in relation to a different household unit within the previous 3 years.
(2)
For the purposes of subsection (1)(b), reside includes temporarily reside.
Section 90B: inserted, on 13 March 2012, by section 29 of the Building Amendment Act 2012 (2012 No 23).
90C Meaning of relevant interest
For the purposes of section 90B(1)(a), relevant interest, in relation to the land or the building on which restricted building work is carried out, means a legal or equitable interest in the land or building; and includes—
(a)
a right of occupancy of the land or building or part of the building; or
(b)
a right, power, or privilege over, or in connection with, the land or building.
Section 90C: inserted, on 13 March 2012, by section 29 of the Building Amendment Act 2012 (2012 No 23).
90D Owner-builder exemption
(1)
A person who is an owner-builder in relation to restricted building work may carry out that restricted building work without being supervised by a licensed building practitioner.
(2)
Subsection (1) does not apply if the restricted building work in question is low-risk building work under a low-risk building consent, simple residential building work under a simple residential building consent, or commercial building work under a commercial building consent.
Section 90D: inserted, on 13 March 2012, by section 29 of the Building Amendment Act 2012 (2012 No 23).
Subpart 5—Code compliance certificates, certificates of acceptance, and compliance schedules
Code compliance certificates
91 Building consent authority that grants building consent to issue code compliance certificate
(1)
A building consent authority that granted the building consent for building work to which a code compliance certificate relates is the only person who may issue that certificate.
(2)
However, another building consent authority may issue a code compliance certificate if the following persons agree:
(a)
the owner of the building to which the building work relates; and
(b)
the building consent authority that it is proposed will issue the code compliance certificate.
(3)
Subsection (4) applies if—
(a)
a building consent authority that is not a territorial authority or a regional authority is unable or refuses to issue a code compliance certificate in relation to building work for which it granted a building consent; and
(b)
no other building consent authority will agree to issue a code compliance certificate for the building work under subsection (2).
(4)
The owner of the building to which the building work relates must apply for a certificate of acceptance under section 96.
Section 91(3)(a): amended, on 14 April 2005, by section 3(5) of the Building Amendment Act 2005 (2005 No 31).
92 Application for code compliance certificate
(1)
An owner must apply to a building consent authority for a code compliance certificate after all building work to be carried out under a building consent granted to that owner is completed.
(2)
The application must be made—
(a)
as soon as practicable after the building work is completed; and
(b)
in the prescribed form; and
(c)
either—
(i)
to the building consent authority that granted the building consent for the building work; or
(ii)
if section 91(2) applies, to the building consent authority that it is proposed will issue the code compliance certificate.
(2A)
If applicable, the owner must include with the application any records of work provided by licensed building practitioners under section 88(1).
(3)
[Repealed](4)
If the building work comprises or includes energy work in respect of which a building consent has been granted, the owner must also include with the application any energy work certificate that relates to the energy work.
Compare: 1991 No 150 s 43(1), (2), (2A)
Section 92(2A): replaced, on 28 November 2013, by section 21(1) of the Building Amendment Act 2013 (2013 No 100).
Section 92(3): repealed, on 28 November 2013, by section 21(2) of the Building Amendment Act 2013 (2013 No 100).
93 Time in which building consent authority must decide whether to issue code compliance certificate
(1)
A building consent authority must decide whether to issue a code compliance certificate for building work to which a building consent relates within—
(a)
20 working days after the date specified in subsection (2); or
(b)
any further period after the date specified in subsection (2) that may be agreed between the owner and the building consent authority concerned.
(2)
The date referred to in subsection (1)(a) and (b) is—
(a)
the date on which an application for a code compliance certificate is made under section 92; or
(b)
if no application is made, the expiry of—
(i)
2 years after the date on which the building consent for the building work was granted; or
(ii)
any further period that may be agreed between the owner and the building consent authority concerned.
(3)
Subsection (1) applies whether or not an application for a code compliance certificate is made under section 92.
(4)
A building consent authority may, within the period specified in subsection (1), require further reasonable information in respect of the application for a code compliance certificate, and, if it does so, the period is suspended until it receives the information.
94 Matters for consideration by building consent authority in deciding issue of code compliance certificate
(1)
A building consent authority must issue a code compliance certificate if it is satisfied, on reasonable grounds,—
(a)
that the building work complies with the building consent; and
(b)
that,—
(i)
in a case where a compliance schedule is required as a result of the building work, the specified systems in the building are capable of performing to the performance standards set out in the building consent; or
(ii)
in a case where an amendment to an existing compliance schedule is required as a result of the building work, the specified systems that are being altered in, or added to, the building in the course of the building work are capable of performing to the performance standards set out in the building consent.
(2)
In deciding whether to issue a code compliance certificate, a building consent authority must have regard to whether a building method or product to which a current warning or ban under section 26(2) relates has, or may have, been used or applied in the building work to which the certificate would relate.
(3)
If the owner fails to provide to a building consent authority an energy work certificate in relation to energy work in respect of which a building consent has been granted, the failure is a sufficient reason for the building consent authority to refuse to issue a code compliance certificate in respect of the energy work.
(4)
If a development contribution has been required to be paid or made under section 198 of the Local Government Act 2002, a building consent authority that is other than the territorial authority that made the requirement must refuse to issue a code compliance certificate in respect of the relevant building work until the building consent authority has received—
(a)
evidence that the development contribution has been paid or made by the owner concerned to the territorial authority; or
(b)
a copy of a written agreement between the owner and the territorial authority that the code compliance certificate may be issued.
(5)
Subsection (1) is subject to subsection (4).
Compare: 1991 No 150 s 43(3), (3A)
95 Issue of code compliance certificate
A code compliance certificate must be issued—
(a)
by a building consent authority; and
(b)
in the prescribed form; and
(c)
on payment of any fees and charges imposed by the building consent authority under section 219 or 240 (as applicable).
Compare: 1991 No 150 s 43(3)
Section 95(c): replaced, on 13 March 2012, by section 36(3) of the Building Amendment Act 2012 (2012 No 23).
Section 95(c): amended, on 1 July 2017, by section 10 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
95A Refusal to issue code compliance certificate
If a building consent authority refuses to issue a code compliance certificate, the building consent authority must give the applicant written notice of—
(a)
the refusal; and
(b)
the reasons for the refusal.
Section 95A: inserted, on 15 March 2008, by section 20 of the Building Amendment Act 2008 (2008 No 4).
Certificates of acceptance
96 Territorial authority may issue certificate of acceptance in certain circumstances
(1)
A territorial authority may, on application, issue a certificate of acceptance for building work already done—
(a)
if—
(i)
the work was done by the owner or any predecessor in title of the owner; and
(ii)
a building consent was required for the work but not obtained; or
(b)
if section 42 (which relates to building work that had to be carried out urgently) applies; or
(c)
if subsections (3) and (4) of section 91 (which apply if a building consent authority that is not a territorial authority or a regional authority is unable or refuses to issue a code compliance certificate in relation to building work for which it granted a building consent) apply.
(d)
[Repealed](2)
A territorial authority may issue a certificate of acceptance only if it is satisfied, to the best of its knowledge and belief and on reasonable grounds, that, insofar as it could ascertain, the building work complies with the building code.
(3)
This section—
(a)
does not limit section 40 (which provides that a person must not carry out any building work except in accordance with a building consent); and
(b)
accordingly, does not relieve a person from the requirement to obtain a building consent for building work.
Section 96(1): replaced, on 14 April 2005, by section 10 of the Building Amendment Act 2005 (2005 No 31).
Section 96(1)(c): amended, on 30 May 2017, by section 5(1) of the Regulatory Systems (Building and Housing) Amendment Act 2017 (2017 No 11).
Section 96(1)(d): repealed, on 30 May 2017, by section 5(2) of the Regulatory Systems (Building and Housing) Amendment Act 2017 (2017 No 11).
97 How to apply for certificate of acceptance
An application for a certificate of acceptance must—
(a)
be in the prescribed form; and
(b)
if available, be accompanied by plans and specifications that are—
(i)
required by regulations made under section 402; or
(ii)
if the regulations do not so require, required by the territorial authority; and
(c)
contain or be accompanied by any other information that the territorial authority reasonably requires; and
(d)
be accompanied by any fees and charges imposed by the territorial authority under section 219; and
(e)
in the case of an application under section 96(1)(a), be accompanied by any fees, charges, or levies that would have been payable had the owner, or the owner’s predecessor in title, applied for a building consent before carrying out the building work; and
(f)
if a project information memorandum for the building work has been issued under section 34, be accompanied by the project information memorandum; and
(g)
if a compliance schedule is required as a result of the building work, have attached to it a list of all specified systems for the building; or
(h)
if an amendment to an existing compliance schedule is required as a result of the building work, have attached to it a list of all specified systems that are being—
(i)
altered in the course of the building work:
(ii)
added to the building in the course of the building work:
(iii)
removed from the building in the course of the building work.
Section 97(d): replaced, on 13 March 2012, by section 39 of the Building Amendment Act 2012 (2012 No 23).
98 Processing application for certificate of acceptance
(1)
A territorial authority must, within 20 working days after receiving an application for a certificate of acceptance,—
(a)
grant the application; or
(b)
refuse the application.
(2)
A territorial authority may, within the period specified in subsection (1), require further reasonable information in respect of the application, and, if it does so, the period is suspended until it receives the information.
99 Issue of certificate of acceptance
(1)
A certificate of acceptance must—
(a)
be issued in the prescribed form; and
(b)
have attached to it,—
(i)
if a compliance schedule is required as a result of the building work, the compliance schedule for the building; or
(ii)
if an amendment to an existing compliance schedule is required as a result of the building work, the amended compliance schedule for the building.
(2)
A certificate of acceptance may, if a territorial authority inspected the building work, be qualified to the effect that only parts of the building work were able to be inspected.
(3)
A territorial authority’s liability for the issue of a certificate of acceptance is limited to the same extent that the territorial authority was able to inspect the building work in question.
99AA Withholding certificate of acceptance
If a territorial authority grants an application for a certificate of acceptance but withholds the certificate under section 208 of the Local Government Act 2002, the territorial authority must give the applicant written notice of—
(a)
the grant of the application; and
(b)
the withholding of the certificate; and
(c)
the development contribution required to be paid or made before the certificate will be issued.
Section 99AA: inserted, on 8 August 2014, by section 78 of the Local Government Act 2002 Amendment Act 2014 (2014 No 55).
99A Refusal of application for certificate of acceptance
If a territorial authority refuses to grant an application for a certificate of acceptance, the territorial authority must give the applicant written notice of—
(a)
the refusal; and
(b)
the reasons for the refusal.
Section 99A: inserted, on 15 March 2008, by section 21 of the Building Amendment Act 2008 (2008 No 4).
Compliance schedules
100 Requirement for compliance schedule
(1)
A building not used wholly as a single household unit—
(a)
requires a compliance schedule if—
(i)
it has a specified system; or
(ii)
it has a cable car attached to it or servicing it; and
(b)
requires the schedule for all specified systems it has and any cable car it has attached to it or servicing it.
(2)
A building used wholly as a single household unit—
(a)
requires a compliance schedule only if it has a cable car attached to it or servicing it; and
(b)
requires the schedule only for the cable car.
(3)
Before 31 March 2008,—
(a)
a building not used wholly as a single household unit—
(i)
requires a compliance schedule only if it has a specified system other than a cable car; and
(ii)
does not require a compliance schedule for any cable car attached to it or servicing it; and
(b)
a building used wholly as a single household unit does not require a compliance schedule.
(4)
The requirement in subsections (1) and (2) that a building have a compliance schedule if it has a cable car attached to it or servicing it is satisfied, in the case of a cable car that is attached to or services more than 1 building, if any of the buildings in question have a compliance schedule for the cable car.
(5)
Except to the extent that it provides, subsection (4) does not relieve an owner of any of the obligations under sections 105 to 110.
Section 100: replaced, on 14 April 2005, by section 11 of the Building Amendment Act 2005 (2005 No 31).
Section 100(4): inserted, on 13 March 2012, by section 40 of the Building Amendment Act 2012 (2012 No 23).
Section 100(5): inserted, on 13 March 2012, by section 40 of the Building Amendment Act 2012 (2012 No 23).
101 Owner must comply with requirement for compliance schedule
(1)
An owner of a building for which a compliance schedule is required under section 100 must obtain the compliance schedule.
(2)
A person commits an offence if the person fails to comply with subsection (1).
(3)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $20,000 and, in the case of a continuing offence, to a further fine not exceeding $2,000 for every day or part of a day during which the offence has continued.
Section 101(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
102 When compliance schedule must be issued
(1)
A building consent authority must issue a compliance schedule if—
(a)
the compliance schedule, or an amended compliance schedule, is required as a result of building work; and
(b)
the building consent authority is satisfied, on reasonable grounds, that the specified systems for the building are capable of performing to the performance standards for those systems.
(2)
A compliance schedule that is issued under subsection (1) must be issued with the relevant code compliance certificate or consent completion certificate.
(3)
A territorial authority must issue a compliance schedule on an application under section 102A if the territorial authority is satisfied, on reasonable grounds, that the specified systems for the building are capable of performing to the performance standards for those systems.
Section 102: replaced, on 13 March 2012, by section 41 of the Building Amendment Act 2012 (2012 No 23).
102A Procedure for obtaining compliance schedule where building consent not required
(1)
This section applies when an owner of a building for which a compliance schedule is required under section 100 must obtain a compliance schedule but is not required to apply for a building consent in relation to the building because, for example, no building work is being carried out.
(2)
The owner must apply in the prescribed form (if any) to the appropriate territorial authority for the issue of a compliance schedule by providing the authority with—
(a)
a description of all specified systems for the building and the performance standards for each of them; and
(b)
the proposed inspection, maintenance, and reporting procedures for the specified systems.
Section 102A: inserted, on 13 March 2012, by section 42 of the Building Amendment Act 2012 (2012 No 23).
103 Content of compliance schedule
(1)
A compliance schedule must—
(a)
state and describe each of the specified systems covered by the compliance schedule, including a statement of the type and (if known) make of each specified system; and
(b)
state the performance standards for the specified systems; and
(c)
describe the inspection, maintenance, and reporting procedures to be followed by independently qualified persons or other persons in respect of the specified systems to ensure that those systems are capable of, and are, performing to the performance standards.
(2)
For the purposes of subsection (1)(c), the inspection, maintenance, and reporting procedures of the compliance schedule may be identified—
(a)
by description in the compliance schedule; or
(b)
by reference to—
(i)
a prescribed acceptable solution or prescribed verification method in a regulation referred to in section 20; or
(ii)
an acceptable solution or a verification method issued under section 22; or
(iii)
a building method or product.
Compare: 1991 No 150 s 44(2), (3), (5)
Section 103(1): replaced, on 13 March 2012, by section 43 of the Building Amendment Act 2012 (2012 No 23).
Section 103(2)(b)(ii): amended, on 28 November 2013, by section 22 of the Building Amendment Act 2013 (2013 No 100).
104 Building consent authority must notify territorial authority of issue of compliance schedule
If a building consent authority issues a compliance schedule under section 102, the building consent authority must, within 5 working days after issuing the compliance schedule, provide a copy of it to the territorial authority in whose district the building is situated.
104A Territorial authority must issue statement in relation to compliance schedule
A territorial authority that receives a copy under section 104 of a compliance schedule must, within 5 working days after receiving the compliance schedule, provide the owner of the building for which the compliance schedule was issued with the statement in relation to the compliance schedule described in section 105(e).
Section 104A: inserted, on 15 March 2008, by section 23 of the Building Amendment Act 2008 (2008 No 4).
105 Obligations of owner if compliance schedule is issued
An owner of a building for which a compliance schedule has been issued must ensure—
(a)
that each of the specified systems stated in the compliance schedule is performing, and will continue to perform, to the performance standards for that system; and
(b)
that the owner provides to the territorial authority an annual building warrant of fitness in accordance with section 108; and
(c)
that the compliance schedule is kept—
(i)
in the building; or
(ii)
in another building in the district of the territorial authority; or
(iii)
in some other place agreed on by the owner and the territorial authority; and
(d)
that the compliance schedule is available for inspection by any person or organisation who or that has a right to inspect the building under any Act; and
(e)
that, for the first 12 months of the period of the compliance schedule, there is displayed publicly in the building so that users of the building can have access to it a statement by the territorial authority in the prescribed form that contains the following information:
(i)
the specified systems covered by the compliance schedule; and
(ii)
the place where the compliance schedule is held; and
(iii)
any other prescribed information.
Compare: 1991 No 150 s 44(4)
Section 105(e): replaced, on 13 March 2012, by section 44 of the Building Amendment Act 2012 (2012 No 23).
106 Application by owner for amendment to compliance schedule
(1)
An owner of a building that has 1 or more specified systems may, at any time and entirely at the owner’s discretion, apply to the territorial authority of the district in which the building is situated for an amendment to a compliance schedule for the building.
(2)
However, the owner must apply to the territorial authority for an amendment to a compliance schedule for the building if—
(a)
the owner considers that the amendment is required to ensure that the specified systems are performing, and will continue to perform, to the performance standards for those systems; or
(b)
as a result of an amendment to this Act or any regulation made under it, the compliance schedule—
(i)
no longer complies with the requirements of this Act or any regulations made under it; or
(ii)
contains information that is no longer required under this Act or any regulations made under it.
(2A)
An application under subsection (2)(b) must be made before the next anniversary of the issue of the compliance schedule following the amendment of the Act or regulation that results in the compliance schedule becoming non-compliant or containing information that is no longer required.
(3)
The owner must—
(a)
apply for the amendment in the prescribed form; and
(b)
provide any information that the territorial authority reasonably requires in relation to the application; and
(c)
pay any fees and charges imposed by the territorial authority under section 219.
(4)
The territorial authority must, as soon as practicable after receiving the application, decide whether to amend the compliance schedule.
(5)
If the territorial authority decides to amend the compliance schedule, the territorial authority must—
(a)
give written notice of the amendment to the owner; and
(b)
attach a copy of the amended compliance schedule to the notice.
(6)
If the territorial authority refuses to amend the compliance schedule, the territorial authority must give written notice of, and the reasons for, the refusal to the owner.
Section 106(2): replaced, on 13 March 2012, by section 45(1) of the Building Amendment Act 2012 (2012 No 23).
Section 106(2A): inserted, on 13 March 2012, by section 45(1) of the Building Amendment Act 2012 (2012 No 23).
Section 106(3)(c): replaced, on 13 March 2012, by section 45(2) of the Building Amendment Act 2012 (2012 No 23).
107 Territorial authority may amend compliance schedule on own initiative
(1)
This section applies if a territorial authority considers that an amendment to a compliance schedule is required to ensure that a specified system stated in the compliance schedule is performing, and will continue to perform, to the performance standards for that system.
(2)
If this section applies, the territorial authority may amend the compliance schedule—
(a)
on its own initiative; and
(b)
without an application for an amendment to the compliance schedule being made under section 106.
(3)
However, before making an amendment to a compliance schedule under this section, the territorial authority must—
(a)
advise the owner of its intention to do so; and
(b)
give the owner a reasonable opportunity to make submissions on the matter; and
(c)
consider those submissions.
(4)
If the territorial authority amends a compliance schedule under this section, the territorial authority must—
(a)
give written notice of the amendment to the owner; and
(b)
attach a copy of the amended compliance schedule to the notice.
(5)
[Repealed]Section 107(5): repealed, on 13 March 2012, by section 46 of the Building Amendment Act 2012 (2012 No 23).
Annual building warrant of fitness
108 Annual building warrant of fitness
(1)
An owner of a building for which a compliance schedule has been issued must supply to the territorial authority a building warrant of fitness in accordance with subsection (3).
(2)
The purpose of a building warrant of fitness is to ensure that the specified systems stated in the compliance schedule are performing, and will continue to perform, to the performance standards for those systems that are set out in the relevant building consent.
(3)
The building warrant of fitness must—
(a)
be supplied on each anniversary of the issue of the compliance schedule; and
(b)
state that the inspection, maintenance, and reporting procedures of the compliance schedule have been fully complied with during the previous 12 months; and
(c)
have attached to it all certificates, in the prescribed form, issued by an independently qualified person that, when those certificates are considered together, certify that the inspection, maintenance, and reporting procedures stated in the compliance schedule have been fully complied with during the previous 12 months; and
(d)
have attached to it any recommendation made by an independently qualified person that the compliance schedule should be amended to ensure that the specified systems stated in the compliance schedule are performing, and will continue to perform, to the performance standards for those systems; and
(e)
be in the prescribed form; and
(f)
contain the prescribed information.
(4)
The owner must publicly display a copy of the building warrant of fitness in a place in the building to which users of the building have ready access or, if the compliance schedule relates only to a cable car, publicly display the copy of the building warrant of fitness in or near the cable car.
(5)
A person commits an offence if the person—
(aa)
fails to supply to the territorial authority the building warrant of fitness in accordance with subsection (1); or
(a)
fails to display a building warrant of fitness that is required to be displayed under this section; or
(b)
displays a false or misleading building warrant of fitness; or
(c)
displays a building warrant of fitness otherwise than in accordance with this section.
(6)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $20,000.
(7)
In subsection (3)(d), a reference to an independently qualified person is a reference to the independently qualified person or independently qualified persons who carried out or supervised the inspection, maintenance, and reporting procedures stated in the compliance schedule during the previous 12 months.
Compare: 1991 No 150 s 45(1), (2)
Section 108(3)(c): amended, on 13 March 2012, by section 47(1) of the Building Amendment Act 2012 (2012 No 23).
Section 108(3)(d): amended, on 13 March 2012, by section 47(1) of the Building Amendment Act 2012 (2012 No 23).
Section 108(4): amended, on 13 March 2012, by section 47(2) of the Building Amendment Act 2012 (2012 No 23).
Section 108(5)(aa): inserted, on 15 March 2008, by section 24 of the Building Amendment Act 2008 (2008 No 4).
Section 108(6): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 108(7): replaced, on 13 March 2012, by section 47(3) of the Building Amendment Act 2012 (2012 No 23).
109 Territorial authority must consider recommendation to amend compliance schedule
A territorial authority must, in relation to a recommendation made by an independently qualified person under section 108(3)(d) for a compliance schedule to be amended,—
(a)
give the owner of the building concerned a reasonable opportunity to make written submissions on the recommendation; and
(b)
consider those submissions (if any); and
(c)
decide whether to—
(i)
accept the recommendation; or
(ii)
refuse to accept the recommendation; and
(d)
if it decides to accept the recommendation, amend the compliance schedule and give written notice to the owner accordingly.
Section 109: amended, on 13 March 2012, by section 48 of the Building Amendment Act 2012 (2012 No 23).
110 Owner must obtain reports on compliance schedule
An owner of a building for which a compliance schedule has been issued must—
(a)
obtain annual written reports relating to the inspection, maintenance, and reporting procedures of the compliance schedule signed by each independently qualified person or other person who carried out 1 or more of those procedures; and
(b)
keep those reports, together with the compliance schedule, for a period of 2 years; and
(c)
produce those reports for inspection, when required, by—
(i)
the territorial authority; and
(ii)
any person or organisation who or that has the right to inspect the building under any Act; and
(d)
show the location of those reports and the compliance schedule on the building warrant of fitness displayed in accordance with section 108(4).
Compare: 1991 No 150 s 45(3)
Section 110(a): amended, on 13 March 2012, by section 49 of the Building Amendment Act 2012 (2012 No 23).
Section 110(a): amended, on 15 March 2008, by section 25 of the Building Amendment Act 2008 (2008 No 4).
111 Inspections by territorial authority
(1)
An agent of a territorial authority authorised for the purposes of this section is entitled, at all times during normal working hours, to inspect—
(a)
a building for which a compliance schedule has been issued; and
(b)
the specified systems in the building.
(2)
[Repealed](3)
In this section, inspection means the taking of all reasonable steps to ensure that—
(a)
an annual building warrant of fitness supplied under section 108 is correct; and
(b)
every report under section 110 is correct.
Section 111(2): repealed, on 13 March 2012, by section 50 of the Building Amendment Act 2012 (2012 No 23).
Alterations to existing buildings
112 Alterations to existing buildings
(1)
A building consent authority must not grant a building consent for the alteration of an existing building, or part of an existing building, unless the building consent authority is satisfied that, after the alteration,—
(a)
the building will comply, as nearly as is reasonably practicable, with the provisions of the building code that relate to—
(i)
means of escape from fire; and
(ii)
access and facilities for persons with disabilities (if this is a requirement in terms of section 118); and
(b)
the building will,—
(i)
if it complied with the other provisions of the building code immediately before the building work began, continue to comply with those provisions; or
(ii)
if it did not comply with the other provisions of the building code immediately before the building work began, continue to comply at least to the same extent as it did then comply.
(2)
Despite subsection (1), a territorial authority may, by written notice to the owner of a building, allow the alteration of an existing building, or part of an existing building, without the building complying with provisions of the building code specified by the territorial authority if the territorial authority is satisfied that,—
(a)
if the building were required to comply with the relevant provisions of the building code, the alteration would not take place; and
(b)
the alteration will result in improvements to attributes of the building that relate to—
(i)
means of escape from fire; or
(ii)
access and facilities for persons with disabilities; and
(c)
the improvements referred to in paragraph (b) outweigh any detriment that is likely to arise as a result of the building not complying with the relevant provisions of the building code.
(3)
This section is subject to section 133AT.
Compare: 1991 No 150 s 38
Section 112(1): replaced, on 28 November 2013, by section 23 of the Building Amendment Act 2013 (2013 No 100).
Section 112(3): inserted, on 1 July 2017, by section 11 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
113 Buildings with specified intended lives
(1)
This section applies if a proposed building, or an existing building proposed to be altered, is intended to have a life of less than 50 years.
(2)
A territorial authority may grant a building consent only if the consent is subject to—
(a)
the condition that the building must be altered, removed, or demolished on or before the end of the specified intended life; and
(b)
any other conditions that the territorial authority considers necessary.
(3)
In subsection (2), specified intended life, in relation to a building, means the period of time, as stated in an application for a building consent or in the consent itself, for which the building is proposed to be used for its intended use.
Compare: 1991 No 150 s 39
Section 113(1): amended, on 15 March 2008, by section 26 of the Building Amendment Act 2008 (2008 No 4).
Change of use, extension of life, and subdivision of buildings
114 Owner must give notice of change of use, extension of life, or subdivision of buildings
(1)
In this section and section 115, change the use, in relation to a building, means to change the use of the building in a manner described in the regulations.
(2)
An owner of a building must give written notice to the territorial authority if the owner proposes—
(a)
to change the use of a building; or
(b)
to extend the life of a building that has a specified intended life; or
(c)
to subdivide land in a manner that affects a building.
(3)
A person commits an offence if the person fails to comply with subsection (2).
(4)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Compare: 1991 No 150 s 46(1)
Section 114(4): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
115 Code compliance requirements: change of use
An owner of a building must not change the use of the building,—
(a)
in a case where the change involves the incorporation in the building of 1 or more household units where household units did not exist before, unless the territorial authority gives the owner written notice that the territorial authority is satisfied, on reasonable grounds, that the building, in its new use, will comply, as nearly as is reasonably practicable, with the building code in all respects; and
(b)
in any other case, unless the territorial authority gives the owner written notice that the territorial authority is satisfied, on reasonable grounds, that the building, in its new use,—
(i)
will comply, as nearly as is reasonably practicable, with every provision of the building code that relates to the following:
(A)
means of escape from fire, protection of other property, sanitary facilities, structural performance, and fire-rating performance:
(B)
access and facilities for people with disabilities (if this is a requirement under section 118); and
(ii)
will,—
(A)
if it complied with the other provisions of the building code immediately before the change of use, continue to comply with those provisions; or
(B)
if it did not comply with the other provisions of the building code immediately before the change of use, continue to comply at least to the same extent as it did then comply.
Compare: 1991 No 150 s 46(2)
Section 115(b): replaced, on 28 November 2013, by section 24 of the Building Amendment Act 2013 (2013 No 100).
116 Code compliance requirements: extension of life
(1)
The owner of a building with a specified intended life must not extend its life without the written consent of the territorial authority.
(2)
This subsection applies to a building with a specified intended life if—
(a)
under section 113(2), a building consent for its building or alteration was issued subject to the condition that it must be altered on or before the end of the specified intended life; or
(b)
under section 39(1) of the Building Act 1991, a building consent for its building or alteration was issued subject to the condition that it shall be altered on or before the end of the specified intended life.
(3)
The territorial authority must not give its consent to the extension of the life of a building to which subsection (2) applies unless satisfied, on reasonable grounds, that the building—
(a)
has been altered in accordance with the condition; and
(b)
complies with section 112.
Section 116: replaced, on 14 April 2005, by section 14(1) of the Building Amendment Act 2005 (2005 No 31).
116A Code compliance requirements: subdivision
A territorial authority must not issue a certificate under section 224(f) of the Resource Management Act 1991 for the purpose of giving effect to a subdivision affecting a building or part of a building unless satisfied, on reasonable grounds, that the building—
(a)
will comply, as nearly as is reasonably practicable, with every provision of the building code that relates to the following matters:
(i)
means of escape from fire:
(ii)
access and facilities for persons with disabilities (if this is a requirement under section 118):
(iii)
protection of other property; and
(b)
will,—
(i)
if it complied with the other provisions of the building code immediately before the application for a subdivision was made, continue to comply with those provisions; or
(ii)
if it did not comply with the other provisions of the building code immediately before the application for a subdivision was made, continue to comply at least to the same extent as it did then comply.
Section 116A: inserted, on 14 April 2005, by section 14(1) of the Building Amendment Act 2005 (2005 No 31).
Section 116A(a): amended, on 28 November 2013, by section 25(1) of the Building Amendment Act 2013 (2013 No 100).
Section 116A(b): replaced, on 28 November 2013, by section 25(2) of the Building Amendment Act 2013 (2013 No 100).
116B Offence to use building for use for which it is not safe or not sanitary, or if it has inadequate means of escape from fire
(1)
No person may—
(a)
use a building, or knowingly permit another person to use a building, for a use for which the building is not safe or not sanitary; or
(b)
use a building, or knowingly permit another person to use a building, that has inadequate means of escape from fire.
(2)
A person who fails to comply with subsection (1) commits an offence.
(3)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence has continued.
Section 116B: inserted, on 14 April 2005, by section 14(1) of the Building Amendment Act 2005 (2005 No 31).
Section 116B(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Access to buildings by persons with disabilities
117 Definition for sections 118 to 120
In sections 118 to 120, unless the context otherwise requires, building includes—
(a)
parts of a building (including driveways, access ways, passages within and between complexes and developments, and associated landscaping (if any)); and
(b)
any premises or facilities.
118 Access and facilities for persons with disabilities to and within buildings
(1)
If provision is being made for the construction or alteration of any building to which members of the public are to be admitted, whether for free or on payment of a charge, reasonable and adequate provision by way of access, parking provisions, and sanitary facilities must be made for persons with disabilities who may be expected to—
(a)
visit or work in that building; and
(b)
carry out normal activities and processes in that building.
(2)
This section applies, but is not limited, to buildings that are intended to be used for, or associated with, 1 or more of the purposes specified in Schedule 2.
Compare: 1991 No 150 s 47A(1)
119 Acceptable solution for requirements of persons with disabilities
(1)
This section applies to—
(a)
the New Zealand Standard Specification No 4121 (the code of practice for design for access and use of buildings by persons with disabilities), together with any modifications to that standard specification in force immediately before the commencement of this section; or
(b)
if an Order in Council is made under subsection (3),—
(i)
the standard specification referred to in paragraph (a) incorporating an amendment that is adopted by the order; or
(ii)
a standard specification that is in substitution for the standard specification referred to in paragraph (a) that is adopted by the order.
(2)
A standard specification to which this section applies is to be taken as an acceptable solution.
(3)
The Governor-General may, by Order in Council made on the recommendation of the Minister, adopt—
(a)
an amendment to the standard specification referred to in subsection (1)(a); or
(b)
a standard specification that is in substitution for the standard specification referred to in that subsection.
(4)
The Minister must, no later than 6 months after the date on which an amendment or a standard specification is promulgated by the NZ Standards Organisation,—
(a)
make a recommendation under subsection (3) in relation to the amendment or standard specification; or
(b)
decide not to make a recommendation.
(5)
In this section, NZ Standards Organisation has the meaning given to it in section 4(1) of the Standards and Accreditation Act 2015.
Compare: 1991 No 150 s 47A(3)
Section 119 heading: amended, on 28 November 2013, by section 26(1) of the Building Amendment Act 2013 (2013 No 100).
Section 119(2): amended, on 28 November 2013, by section 26(2) of the Building Amendment Act 2013 (2013 No 100).
Section 119(4): amended, on 1 March 2016, by section 45(1) of the Standards and Accreditation Act 2015 (2015 No 91).
Section 119(5): replaced, on 1 March 2016, by section 45(1) of the Standards and Accreditation Act 2015 (2015 No 91).
120 Symbols of access must be displayed
If any provision required by section 118 is made at a building in compliance with that section, a notice or sign that indicates in accordance with the international symbols of access that provision is made for the needs of persons with disabilities must be displayed outside the building or so as to be visible from outside it.
Compare: 1991 No 150 s 47A(5)
Section 120 heading: amended, on 15 March 2008, by section 27(1) of the Building Amendment Act 2008 (2008 No 4).
Section 120: amended, on 15 March 2008, by section 27(2) of the Building Amendment Act 2008 (2008 No 4).
Subpart 6—Special provisions for dangerous, affected, and insanitary buildings
Subpart 6 heading: amended, on 1 July 2017, by section 12 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Interpretation and application
Heading: replaced, on 1 July 2017, by section 13 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
121 Meaning of dangerous building
(1)
A building is dangerous for the purposes of this Act if,—
(a)
in the ordinary course of events (excluding the occurrence of an earthquake), the building is likely to cause—
(i)
injury or death (whether by collapse or otherwise) to any persons in it or to persons on other property; or
(ii)
damage to other property; or
(b)
in the event of fire, injury or death to any persons in the building or to persons on other property is likely.
(2)
For the purpose of determining whether a building is dangerous in terms of subsection (1)(b), a territorial authority—
(a)
may seek advice from employees, volunteers, and contractors of Fire and Emergency New Zealand who have been notified to the territorial authority by the board of Fire and Emergency New Zealand as being competent to give advice; and
(b)
if the advice is sought, must have due regard to the advice.
Compare: 1991 No 150 s 64(1), (2), (3)
Section 121(1)(b): amended, on 13 March 2012, by section 51 of the Building Amendment Act 2012 (2012 No 23).
Section 121(2)(a): amended, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).
121A Meaning of affected building
A building is an affected building for the purposes of this Act if it is adjacent to, adjoining, or nearby—
(a)
a dangerous building as defined in section 121; or
(b)
a dangerous dam within the meaning of section 153.
Section 121A: inserted, on 28 November 2013, by section 28 of the Building Amendment Act 2013 (2013 No 100).
122 Meaning of earthquake-prone building
[Repealed]Section 122: repealed, on 1 July 2017, by section 14 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
123 Meaning of insanitary building
A building is insanitary for the purposes of this Act if the building—
(a)
is offensive or likely to be injurious to health because—
(i)
of how it is situated or constructed; or
(ii)
it is in a state of disrepair; or
(b)
has insufficient or defective provisions against moisture penetration so as to cause dampness in the building or in any adjoining building; or
(c)
does not have a supply of potable water that is adequate for its intended use; or
(d)
does not have sanitary facilities that are adequate for its intended use.
Compare: 1991 No 150 s 64(4)
123A Application of this subpart to parts of buildings
(1)
If a territorial authority is satisfied that only part of a building is dangerous (within the meaning of section 121) or insanitary (within the meaning of section 123),—
(a)
the territorial authority may exercise any of its powers or perform any of its functions under this subpart in respect of that part of the building rather than the whole building; and
(b)
for the purpose of paragraph (a), this subpart applies with any necessary modifications.
(2)
To the extent that a power or function of a territorial authority under this subpart relates to affected buildings,—
(a)
the territorial authority may exercise the power or perform the function in respect of all or part of an affected building; and
(b)
for the purpose of paragraph (a), this subpart applies with any necessary modifications.
Section 123A: inserted, on 1 July 2017, by section 15 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Powers of territorial authorities in respect of dangerous, affected, or insanitary buildings
Heading: amended, on 1 July 2017, by section 16 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Heading: amended, on 28 November 2013, by section 29 of the Building Amendment Act 2013 (2013 No 100).
124 Dangerous, affected, or insanitary buildings: powers of territorial authority
(1)
This section applies if a territorial authority is satisfied that a building in its district is a dangerous, affected, or insanitary building.
(2)
In a case to which this section applies, the territorial authority may do any or all of the following:
(a)
put up a hoarding or fence to prevent people from approaching the building nearer than is safe:
(b)
attach in a prominent place on, or adjacent to, the building a notice that warns people not to approach the building:
(c)
except in the case of an affected building, issue a notice that complies with section 125(1) requiring work to be carried out on the building to—
(i)
reduce or remove the danger; or
(ii)
prevent the building from remaining insanitary:
(d)
issue a notice that complies with section 125(1A) restricting entry to the building for particular purposes or restricting entry to particular persons or groups of persons.
(3)
[Repealed]Section 124: replaced, on 28 November 2013, by section 30 of the Building Amendment Act 2013 (2013 No 100).
Section 124 heading: amended, on 1 July 2017, by section 17(1) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 124(1): amended, on 1 July 2017, by section 17(2) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 124(3): repealed, on 1 July 2017, by section 17(3) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
125 Requirements for notice requiring building work or restricting entry
(1)
A notice issued under section 124(2)(c) must—
(a)
be in writing; and
(b)
be fixed to the building in question; and
(c)
be given in the form of a copy to the persons listed in subsection (2); and
(d)
state the time within which the building work must be carried out, which must not be less than a period of 10 days after the notice is given or a period reasonably sufficient to obtain a building consent if one is required, whichever period is longer; and
(e)
state whether the owner of the building must obtain a building consent in order to carry out the work required by the notice.
(1A)
A notice issued under section 124(2)(d)—
(a)
must be in writing; and
(b)
must be fixed to the building in question; and
(c)
must be given in the form of a copy to the persons listed in subsection (2); and
(d)
may be issued for a maximum period of 30 days; and
(e)
may be reissued once only for a further maximum period of 30 days.
(2)
A copy of the notice must be given to—
(a)
the owner of the building; and
(b)
an occupier of the building; and
(c)
every person who has an interest in the land on which the building is situated under a mortgage or other encumbrance registered under the Land Transfer Act 2017; and
(d)
every person claiming an interest in the land that is protected by a caveat lodged and in force under section 138 of the Land Transfer Act 2017; and
(e)
every statutory authority that has exercised a statutory power to classify or register, for any purpose, the building or the land on which the building is situated; and
(f)
Heritage New Zealand Pouhere Taonga, if the building is a heritage building.
(3)
However, the notice, if fixed on the building, is not invalid because a copy of it has not been given to any or all of the persons referred to in subsection (2).
Compare: 1991 No 150 s 71
Section 125 heading: replaced, on 28 November 2013, by section 31 of the Building Amendment Act 2013 (2013 No 100).
Section 125(1): replaced, on 28 November 2013, by section 31 of the Building Amendment Act 2013 (2013 No 100).
Section 125(1A): inserted, on 28 November 2013, by section 31 of the Building Amendment Act 2013 (2013 No 100).
Section 125(2)(c): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 125(2)(d): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 125(2)(e): replaced, on 1 July 2017, by section 18 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 125(2)(f): amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
126 Territorial authority may carry out work
(1)
A territorial authority may apply to the District Court for an order authorising the territorial authority to carry out building work if any work required under a notice issued by the territorial authority under section 124(2)(c) is not completed, or not proceeding with reasonable speed, within—
(a)
the time stated in the notice; or
(b)
any further time that the territorial authority may allow.
(2)
Before the territorial authority applies to the District Court under subsection (1), the territorial authority must give the owner of the building not less than 10 days’ written notice of its intention to do so.
(3)
If a territorial authority carries out building work under the authority of an order made under subsection (1),—
(a)
the owner of the building is liable for the costs of the work; and
(b)
the territorial authority may recover those costs from the owner; and
(c)
the amount recoverable by the territorial authority becomes a charge on the land on which the work was carried out.
Compare: 1991 No 150 s 65(4), (5)
Section 126(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 126(1): amended, on 28 November 2013, by section 32 of the Building Amendment Act 2013 (2013 No 100).
Section 126(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
127 Building work includes demolition of building
Any work required or authorised to be done under section 124(2)(c) or section 126 may include the demolition of all or part of a building.
Compare: 1991 No 150 s 65(6)
Section 127: amended, on 28 November 2013, by section 33 of the Building Amendment Act 2013 (2013 No 100).
128 Prohibition on using dangerous, affected, or insanitary building
(1)
This section applies if a territorial authority has done any of the following:
(a)
put up a hoarding or fence in relation to a building under section 124(2)(a):
(b)
attached a notice warning people not to approach a building under section 124(2)(b):
(c)
issued a notice restricting entry to a building under section 124(2)(d).
(2)
In any case to which this section applies, and except as permitted by section 124(2)(d), no person may—
(a)
use or occupy the building; or
(b)
permit another person to use or occupy the building.
Section 128: replaced, on 28 November 2013, by section 34 of the Building Amendment Act 2013 (2013 No 100).
Section 128 heading: amended, on 1 July 2017, by section 19 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
128A Offences in relation to dangerous, affected, or insanitary buildings
(1)
A person who fails to comply with a notice issued under section 124(2)(c) that is given to that person under section 125(2)—
(a)
commits an offence; and
(b)
is liable to a fine not exceeding $200,000.
(2)
A person who fails to comply with section 128(2)—
(a)
commits an offence; and
(b)
is liable on conviction to a fine not exceeding $200,000 and, in the case of a continuing offence, to a further fine not exceeding $20,000 for every day or part of a day during which the offence has continued.
Section 128A: inserted, on 28 November 2013, by section 35 of the Building Amendment Act 2013 (2013 No 100).
Section 128A heading: amended, on 1 July 2017, by section 20 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
129 Measures to avoid immediate danger or to fix insanitary conditions
(1)
This section applies if, because of the state of a building,—
(a)
immediate danger to the safety of people is likely in terms of section 121 or 123; or
(b)
immediate action is necessary to fix insanitary conditions.
(2)
The chief executive of a territorial authority may, by warrant issued under his or her signature, cause any action to be taken that is necessary in his or her judgment to—
(a)
remove that danger; or
(b)
fix those insanitary conditions.
(3)
If the territorial authority takes action under subsection (2),—
(a)
the owner of the building is liable for the costs of the action; and
(b)
the territorial authority may recover those costs from the owner; and
(c)
the amount recoverable by the territorial authority becomes a charge on the land on which the building is situated.
(4)
The chief executive of the territorial authority and the territorial authority are not under any liability arising from the issue, in good faith, of a warrant under subsection (2).
Compare: 1991 No 150 s 70(1), (4)
Section 129(1)(a): amended, on 1 July 2017, by section 21 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
130 Territorial authority must apply to District Court for confirmation of warrant
(1)
If the chief executive of a territorial authority issues a warrant under section 129(2), the territorial authority, on completion of the action stated in the warrant, must apply to the District Court for confirmation of the warrant.
(2)
On hearing the application, the District Court may—
(a)
confirm the warrant without modification; or
(b)
confirm the warrant subject to modification; or
(c)
set the warrant aside.
(3)
Subsection (1) does not apply if—
(a)
the owner of the building concerned notifies the territorial authority that—
(i)
the owner does not dispute the entry into the owner’s land; and
(ii)
confirmation of the warrant by the District Court is not required; and
(b)
the owner pays the costs referred to in section 129(3)(a).
Compare: 1991 No 150 s 70(2), (3)
Section 130(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 130(3)(a)(ii): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Policy on dangerous and insanitary buildings
Heading: amended, on 1 July 2017, by section 22 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
131 Territorial authority must adopt policy on dangerous and insanitary buildings
(1)
A territorial authority must, within 18 months after the commencement of this section, adopt a policy on dangerous and insanitary buildings within its district.
(2)
The policy must state—
(a)
the approach that the territorial authority will take in performing its functions under this Part; and
(b)
the territorial authority’s priorities in performing those functions; and
(c)
how the policy will apply to heritage buildings.
Section 131 heading: amended, on 1 July 2017, by section 23(1) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 131(1): amended, on 1 July 2017, by section 23(2) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
132 Adoption and review of policy
(1)
A policy under section 131 must be adopted in accordance with the special consultative procedure in section 83 of the Local Government Act 2002.
(2)
A policy may be amended or replaced only in accordance with the special consultative procedure, and this section applies to that amendment or replacement.
(3)
A territorial authority must, as soon as practicable after adopting or amending a policy, provide a copy of the policy to the chief executive.
(4)
A territorial authority must complete a review of a policy within 5 years after the policy is adopted and then at intervals of not more than 5 years.
(5)
A policy does not cease to have effect because it is due for review or being reviewed.
132A Policy must take into account affected buildings
(1)
A policy under section 131 must take into account affected buildings.
(2)
A territorial authority must amend an existing policy to take into account affected buildings at the latest within a reasonable period following the next review of its policy required under section 132(4).
(3)
In subsection (2), existing policy means a policy existing at the date of this section coming into force.
Section 132A: inserted, on 28 November 2013, by section 36 of the Building Amendment Act 2013 (2013 No 100).
Application of subpart to dams
133 Application of this subpart to dams
This subpart does not apply to—
(a)
a building that is a dam; or
(b)
a part of a building that is a dam.
Subpart 6A—Special provisions for earthquake-prone buildings
Subpart 6A: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Application and interpretation
Heading: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AA Buildings to which this subpart applies
(1)
This subpart applies to all buildings except the following:
(a)
a building that is used wholly or mainly for residential purposes (but see subsection (2)):
(b)
a farm building (being a shed or other building that is located on a farm and used primarily for farming activities or an ancillary purpose):
(c)
a stand-alone retaining wall (being a retaining wall that is not integral to the structure of a building):
(d)
a fence:
(e)
a monument (including a statue), unless the monument is capable of being entered by a person:
(f)
a wharf:
(g)
a bridge:
(h)
a tunnel:
(i)
a storage tank:
(j)
a building that is a dam:
(k)
a part of a building that is a dam.
(2)
Despite subsection (1)(a), this subpart applies to a building described in that subsection if the building—
(a)
comprises 2 or more storeys; and
(b)
either—
(i)
is a hostel, boardinghouse, or other specialised accommodation; or
(ii)
contains 3 or more household units.
Section 133AA: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AB Meaning of earthquake-prone building
(1)
A building or a part of a building is earthquake prone if, having regard to the condition of the building or part and to the ground on which the building is built, and because of the construction of the building or part,—
(a)
the building or part will have its ultimate capacity exceeded in a moderate earthquake; and
(b)
if the building or part were to collapse, the collapse would be likely to cause—
(i)
injury or death to persons in or near the building or on any other property; or
(ii)
damage to any other property.
(2)
Whether a building or a part of a building is earthquake prone is determined by the territorial authority in whose district the building is situated: see section 133AK.
(3)
For the purpose of subsection (1)(a), ultimate capacity and moderate earthquake have the meanings given to them by regulations.
Compare: 1991 No 150 s 66
Section 133AB: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AC Meaning of earthquake rating
(1)
In this Act, earthquake rating, in relation to a building or a part of a building that a territorial authority has determined is earthquake prone, means the degree to which the building or part meets the requirements of the building code—
(a)
that relate to how a building is likely to perform in an earthquake; and
(b)
that would be used to design a new building on the same site; and
(c)
as they apply on the day on which this section comes into force.
(2)
The earthquake rating of a building or a part of a building—
(a)
is determined by a territorial authority in accordance with the EPB methodology (see section 133AK); and
(b)
is specified on the EPB notice issued for the building or part and recorded in the EPB register; and
(c)
determines the form of the EPB notice issued for the building or part (see section 401C(a)).
(3)
An earthquake rating may be expressed as a percentage or a percentage range.
Examples
If a territorial authority determines that a building meets 25% of the requirements of the building code referred to in subsection (1), the earthquake rating of the building is 25%.
If a territorial authority determines that a building meets between 0% and 10% of the requirements of the building code referred to in subsection (1), the earthquake rating of the building is the range of 0% to 10%.
Section 133AC: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AD Meaning of low, medium, and high seismic risk
(1)
For the purposes of this Act, the area in which a building is located has—
(a)
a low seismic risk if the area has a Z factor that is less than 0.15; and
(b)
a medium seismic risk if the area has a Z factor that is greater than or equal to 0.15 and less than 0.3; and
(c)
a high seismic risk if the area has a Z factor that is greater than or equal to 0.3.
(2)
For the purpose of subsection (1), the Z factor of an area is the seismic hazard factor that would be used to design a new building on a site in that area in accordance with the following, as they relate to calculating Z factors and as they apply on the day on which this section comes into force:
(a)
the building code; and
(b)
verification methods; and
(c)
standards incorporated by reference into the building code or a verification method.
(3)
The seismic risk of an area affects—
(a)
the time frame within which a territorial authority must—
(i)
apply the EPB methodology to identify buildings or parts of buildings in the area that are potentially earthquake prone (see section 133AG); and
(ii)
report to the chief executive on its progress towards that objective; and
(b)
the deadline for completing seismic work on a building or a part of a building in the area, if it is subject to an EPB notice (see section 133AM).
Section 133AD: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AE Meaning of priority building
(1)
In this subpart, priority building means any of the following that are located in an area of medium or high seismic risk:
(a)
a hospital building that is likely to be needed in an emergency (within the meaning of the Civil Defence Emergency Management Act 2002) to provide—
(i)
emergency medical services; or
(ii)
ancillary services that are essential for the provision of emergency medical services:
(b)
a building that is likely to be needed in an emergency for use as an emergency shelter or emergency centre:
(c)
a building that is used to provide emergency response services (for example, policing, fire, ambulance, or rescue services):
(d)
a building that is regularly occupied by at least 20 people and that is used as any of the following:
(i)
an early childhood education and care centre licensed under Part 26 of the Education Act 1989:
(ii)
a registered school or an integrated school (within the meaning of the Education Act 1989):
(iii)
a private training establishment registered under Part 18 of the Education Act 1989:
(iv)
a tertiary institution established under section 162 of the Education Act 1989:
(e)
any part of an unreinforced masonry building that could—
(i)
fall from the building in an earthquake (for example, a parapet, an external wall, or a veranda); and
(ii)
fall onto any part of a public road, footpath, or other thoroughfare that a territorial authority has identified under section 133AF(2)(a):
(f)
a building that a territorial authority has identified under section 133AF(2)(b) as having the potential to impede a transport route of strategic importance (in terms of an emergency response) if the building were to collapse in an earthquake.
(2)
For the purposes of subsection (1)(a) and (b), the likelihood of a building being needed in an emergency for a particular purpose must be assessed having regard to—
(a)
any national civil defence emergency management plan made under section 39 of the Civil Defence Emergency Management Act 2002; and
(b)
the civil defence emergency management group plan approved under section 48 of the Civil Defence Emergency Management Act 2002 that covers the district in which the building is situated.
(3)
If only part of a building meets the criteria set out in subsection (1), only that part of the building is a priority building.
(4)
Whether a building is a priority building affects—
(a)
the deadline by which a territorial authority must identify whether the building or a part of the building is potentially earthquake prone (see section 133AG); and
(b)
the deadline for completing seismic work on the building or a part of the building, if it is subject to an EPB notice (see section 133AM).
Section 133AE: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AF Role of territorial authority in identifying certain priority buildings
(1)
This section applies to a territorial authority whose district includes any area of medium or high seismic risk.
(2)
The territorial authority,—
(a)
for the purpose of section 133AE(1)(e) (prioritising parts of unreinforced masonry buildings), must use the special consultative procedure in section 83 of the Local Government Act 2002 to identify any part of a public road, footpath, or other thoroughfare in an area of medium or high seismic risk—
(i)
onto which parts of an unreinforced masonry building could fall in an earthquake; and
(ii)
that has sufficient vehicle or pedestrian traffic to warrant prioritising the identification and remediation of those parts of unreinforced masonry buildings; and
(b)
for the purpose of section 133AE(1)(f) (prioritising buildings that could impede a strategic transport route),—
(i)
may, in its discretion, initiate the special consultative procedure in section 83 of the Local Government Act 2002 to identify buildings for that purpose; but
(ii)
must not identify buildings for that purpose other than in accordance with the special consultative procedure.
(3)
However, a territorial authority is not required to act under subsection (2)(a) if there is no reasonable prospect of any thoroughfare in its district satisfying the criteria set out in subsection (2)(a)(i) and (ii).
(4)
If a territorial authority is required by subsection (2)(a) or decides under subsection (2)(b) to use the special consultative procedure in section 83 of the Local Government Act 2002, it must use the procedure within a time frame that enables the territorial authority to meet the applicable time frame under section 133AG(4) for identifying potentially earthquake-prone priority buildings in its district.
Section 133AF: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Identifying earthquake-prone buildings
Heading: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AG Territorial authority must identify potentially earthquake-prone buildings
(1)
Within the applicable time frame under subsection (4), a territorial authority—
(a)
must apply the EPB methodology to buildings in its district to identify buildings or parts of buildings that are potentially earthquake prone; and
(b)
may, if it has reason to suspect that a building or a part of a building in its district may be earthquake prone, identify the building or part as potentially earthquake prone, whether or not by reference to any aspect of the EPB methodology.
(2)
Until the end of the applicable time frame, a territorial authority must report to the chief executive on its progress towards identifying buildings or parts of buildings within its district that are potentially earthquake prone as follows:
(a)
if the whole district is of low seismic risk, every 3 years; or
(b)
if the district includes an area of medium seismic risk, but no areas of high seismic risk, every 2 years; or
(c)
if the district includes an area of high seismic risk, every year.
(3)
After the end of the applicable time frame, a territorial authority may, if it has reason to suspect that a building or a part of a building in its district may be earthquake prone, identify the building or part as potentially earthquake prone, whether or not by reference to the EPB methodology.
(4)
The applicable time frame is the period commencing on the day on which this section comes into force (the commencement date) and ending on,—
(a)
for each area of low seismic risk, the expiry of 15 years after the commencement date; and
(b)
for each area of medium seismic risk, the expiry of the following period after the commencement date:
(i)
5 years for priority buildings; and
(ii)
10 years for other buildings; and
(c)
for each area of high seismic risk, the expiry of the following period after the commencement date:
(i)
2 years and 6 months for priority buildings; and
(ii)
5 years for other buildings.
Section 133AG: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AH Territorial authority must request engineering assessment of potentially earthquake-prone buildings
(1)
If a territorial authority identifies a building or a part of a building as potentially earthquake prone, the territorial authority must ask the owner of the building or part to provide an engineering assessment of the building or part.
(2)
The request must—
(a)
be in writing; and
(b)
be dated; and
(c)
identify the building or the part of a building that the territorial authority has identified as potentially earthquake prone; and
(d)
explain the basis on which the territorial authority has identified the building or the part of the building as potentially earthquake prone; and
(e)
explain the owner’s obligations under section 133AI; and
(f)
state whether the building is a priority building; and
(g)
state the due date for the engineering assessment, which must be 12 months after the date of the request; and
(h)
explain that if the owner is not reasonably able to provide an engineering assessment by the due date (for example, because of a shortage of people qualified to conduct engineering assessments), the owner may apply under section 133AJ for an extension of up to 12 months; and
(i)
explain the consequences of the owner failing to provide the engineering assessment by the due date; and
(j)
explain what will happen if the territorial authority determines that the building or the part of the building is earthquake prone.
Section 133AH: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AI Obligations of owners on receiving request for engineering assessment
(1)
If a territorial authority asks the owner of a building or a part of a building to provide an engineering assessment of the building or part under section 133AH, the owner must, by the due date (which may be extended under section 133AJ),—
(a)
provide to the territorial authority an engineering assessment of the building or part that complies with the requirements of the EPB methodology; or
(b)
provide to the territorial authority evidence of a factual error in the basis on which the territorial authority has identified the building or part as potentially earthquake prone; or
(c)
notify the territorial authority that the owner does not intend to provide an engineering assessment.
(2)
If a territorial authority is satisfied that it has incorrectly identified a building or a part of a building as potentially earthquake prone, the territorial authority must cancel the request for an engineering assessment and give the owner of the building or part written notice of that fact.
(3)
If an owner fails to comply with subsection (1), or notifies the territorial authority under subsection (1)(c) that the owner does not intend to provide an engineering assessment of a building or a part of a building,—
(a)
the territorial authority must, under section 133AK(4), proceed as if it had determined the building or part to be earthquake prone; and
(b)
the EPB notice issued for the building or part must, under section 133AL(4), be in the form that is prescribed for the category of earthquake ratings that includes the lowest earthquake ratings; and
(c)
the territorial authority may obtain an engineering assessment of the building or part and recover, as a debt due from the owner of the building or part, the costs of doing so.
Section 133AI: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AJ Owners may apply for extension of time to provide engineering assessment
(1)
This section applies if—
(a)
a territorial authority asks the owner of a building or a part of a building to provide an engineering assessment of the building or part under section 133AH; and
(b)
the owner is unable to provide an engineering assessment by the due date (for example, because of a shortage of people qualified to conduct engineering assessments).
(2)
The owner may, no later than 2 months before the due date, apply to the territorial authority for an extension of up to 12 months from the due date.
(3)
The territorial authority must deal with the application promptly, by—
(a)
granting the extension and notifying the owner in writing of the revised due date for the engineering assessment; or
(b)
notifying the owner in writing that the extension has not been granted.
(4)
A territorial authority must not extend the due date for an engineering assessment more than once.
Section 133AJ: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AK Territorial authority must determine whether building is earthquake prone
(1)
If a territorial authority receives an engineering assessment of a building or a part of a building in response to a request made under section 133AH, the territorial authority must determine, in accordance with the EPB methodology,—
(a)
whether the building or part is earthquake prone; and
(b)
if the building or part is earthquake prone, its earthquake rating.
(2)
If the territorial authority determines that the building or part is not earthquake prone, the territorial authority must promptly notify the owner in writing of its decision.
(3)
If the territorial authority determines that the building or part is earthquake prone, the territorial authority must promptly—
(a)
issue an EPB notice for the building or part under section 133AL; and
(b)
record the details of the decision in the EPB register and update other information in the EPB register as necessary.
(4)
If a territorial authority asks the owner of a building or a part of a building to provide an engineering assessment of the building or part under section 133AH, and either does not receive it by the due date or is notified that the owner does not intend to provide it by the due date,—
(a)
the territorial authority—
(i)
must proceed as if it had determined the building or part to be earthquake prone; and
(ii)
need not determine the earthquake rating of the building or part; and
(b)
this Act applies as if the territorial authority had determined the building or part to be earthquake prone.
Section 133AK: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Remediation of earthquake-prone buildings
Heading: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AL Territorial authority must issue EPB notice for earthquake-prone buildings
(1)
This section applies if a territorial authority makes any of the following decisions:
(a)
determining under section 133AK or 133AY or clause 2 of Schedule 1AA that a building or a part of a building is earthquake prone; or
(b)
revoking an exemption under section 133AN; or
(c)
revoking an extension under section 133AO; or
(d)
determining under section 133AQ or 133AY that the earthquake rating of a building or a part of a building that is subject to an EPB notice is different from the earthquake rating (if any) of the building or part that is stated in the notice or the EPB register.
(2)
The territorial authority must promptly issue an EPB notice for the building or the part of the building, which must—
(a)
be dated; and
(b)
be in the prescribed form; and
(c)
identify the building or the part of a building determined to be earthquake prone; and
(d)
specify whether the building or part is a priority building; and
(e)
specify the earthquake rating of the building or part (unless this has not been determined: see section 133AK(4) and clause 2 of Schedule 1AA); and
(f)
state that the owner of the building or part is required to carry out building work to ensure that the building or part is no longer earthquake prone (seismic work); and
(g)
state the deadline for completing seismic work (see section 133AM); and
(h)
state that the owner of the building or part may apply under section 133AN for an exemption from the requirement to carry out seismic work; and
(i)
if the building is a heritage building to which section 133AO applies, state that the owner of the building or part may apply under that section for an extension of time to complete seismic work; and
(j)
state that the owner is not required to complete seismic work if the territorial authority determines or is satisfied, in accordance with section 133AQ, that the building or part is not earthquake prone.
(3)
If the earthquake rating of a building or a part of a building is a percentage range that spans more than 1 prescribed category of earthquake ratings, the notice issued for the building or part must be in the form prescribed for the category that includes the lowest point in the percentage range.
(4)
If the territorial authority is proceeding under section 133AK(4) as if it had determined a building or a part of a building to be earthquake prone (because the owner has not provided an engineering assessment),—
(a)
the notice must be in the form prescribed for the category of earthquake ratings that includes the lowest earthquake ratings (see section 401C(a)); and
(b)
the notice must state—
(i)
that the territorial authority has not determined whether the building or part is earthquake prone, but is proceeding as if it had; and
(ii)
that the earthquake rating of the building or part has not been determined.
(5)
The territorial authority must give a copy of the notice to—
(a)
the owner of the building or the part of the building; and
(b)
every person who has an interest in the land on which the building is situated under a mortgage or other encumbrance registered under the Land Transfer Act 2017; and
(c)
every person claiming an interest in the land that is protected by a caveat lodged and in force under section 138 of the Land Transfer Act 2017; and
(d)
every statutory authority that has exercised a statutory power to classify or register, for any purpose, the building or the land on which the building is situated; and
(e)
Heritage New Zealand Pouhere Taonga, if the building is a heritage building.
(6)
However, the notice is not invalid because a copy of it has not been given to any or all of the persons referred to in subsection (5).
Section 133AL: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 133AL(5)(b): amended, on 12 November 2018, by section 247(3)(a) of the Land Transfer Act 2017 (2017 No 30).
Section 133AL(5)(c): amended, on 12 November 2018, by section 247(3)(b) of the Land Transfer Act 2017 (2017 No 30).
133AM Deadline for completing seismic work
(1)
The owner of a building or a part of a building that is subject to an EPB notice must complete seismic work on the building or part on or before the deadline specified in this section.
(2)
The deadline is the expiry of whichever of the following periods, as measured from the date of the first EPB notice issued for the building or the part of the building (rather than any replacement EPB notice), is applicable:
(a)
in an area of low seismic risk, 35 years for any building; and
(b)
in an area of medium seismic risk, 12 years and 6 months for a priority building and 25 years for any other building; and
(c)
in an area of high seismic risk, 7 years and 6 months for a priority building and 15 years for any other building.
(3)
However,—
(a)
if clause 2 of Schedule 1AA applies to the building or the part of the building, the deadline is the deadline determined in accordance with that clause; and
(b)
if the building or the part of the building is a heritage building for which an extension is granted under section 133AO, the deadline is the expiry of the period of the extension, as measured from the deadline that would apply under paragraph (a) or subsection (2) if no extension were granted.
(4)
To avoid doubt, seismic work may include the demolition of a building or part of a building.
Section 133AM: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AN Owner may apply for exemption from requirement to carry out seismic work
(1)
The owner of a building or a part of a building that is subject to an EPB notice may apply to a territorial authority for an exemption from the requirement to carry out seismic work on the building or part.
(2)
An application must be in writing and must be accompanied by any fee imposed by the territorial authority under section 219.
(3)
The territorial authority must deal with the application promptly, by doing one of the following:
(a)
if the territorial authority is satisfied that the building or the part of the building has the prescribed characteristics (see section 401C(b)),—
(i)
granting the exemption and issuing an EPB exemption notice; and
(ii)
recording the details of the exemption in the EPB register and updating other information in the EPB register as necessary; or
(b)
notifying the owner in writing that the exemption has not been granted.
(4)
An EPB exemption notice must—
(a)
identify the building or the part of the building that is subject to an EPB notice; and
(b)
state that the owner of the building or the part of the building is exempt from the requirement to carry out seismic work on the building or part; and
(c)
give the territorial authority’s reasons for granting the exemption.
(5)
A territorial authority may review an exemption at any time, and may revoke it if satisfied that the building no longer has the prescribed characteristics.
(6)
An exemption stays in force until the territorial authority revokes it.
(7)
As soon as practicable after revoking an exemption, a territorial authority must—
(a)
reissue an EPB notice under section 133AL for the building or the part of the building that is earthquake prone; and
(b)
record the details of the revocation in the EPB register and update other information in the EPB register as necessary.
Section 133AN: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AO Owners of certain heritage buildings may apply for extension of time to complete seismic work
(1)
This section applies to a building if—
(a)
the building or a part of the building is subject to an EPB notice; and
(b)
the building is—
(i)
included as a Category 1 historic place on the New Zealand Heritage List/Rārangi Kōrero maintained under section 65 of the Heritage New Zealand Pouhere Taonga Act 2014; or
(ii)
included on the National Historic Landmarks/Ngā Manawhenua o Aotearoa me ōna Kōrero Tūturu list maintained under section 81 of the Heritage New Zealand Pouhere Taonga Act 2014.
(2)
The owner of the building or the part of the building (the owner) may apply to the territorial authority for an extension of time to complete seismic work on the building or part.
(3)
An application must be in writing and must be accompanied by any fee imposed by the territorial authority under section 219.
(4)
The territorial authority may, by notice in writing to the owner, extend by up to 10 years the deadline for completing seismic work that applies under section 133AM(2) or (3)(a).
(5)
If the territorial authority grants an extension, the owner must—
(a)
take all reasonably practicable steps to manage or reduce the risks associated with the building or the part of the building being earthquake prone; and
(b)
comply with any conditions imposed by the territorial authority for the purpose of managing or reducing the risks referred to in paragraph (a).
(6)
If the owner fails to comply with subsection (5), the territorial authority may revoke the extension.
(7)
As soon as practicable after granting or revoking an extension, a territorial authority must—
(a)
reissue an EPB notice under section 133AL for the building or the part of the building; and
(b)
record the details of the extension or revocation in the EPB register and update other information in the EPB register as necessary.
Section 133AO: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AP EPB notices and EPB exemption notices to be attached to earthquake-prone buildings
(1)
As soon as practicable after issuing an EPB notice or an EPB exemption notice for a building or a part of a building, the territorial authority must—
(a)
attach, or require the owner of the building or part to attach, the notice in a prominent place on or adjacent to the building; and
(b)
remove, or authorise the owner of the building or part to remove, any superseded EPB notice or EPB exemption notice that is attached on or adjacent to the building.
(2)
If an EPB notice or an EPB exemption notice ceases to be attached in a prominent place on or adjacent to a building, or becomes illegible,—
(a)
the owner of the building or the part of the building to which the notice relates must notify the territorial authority of that fact; and
(b)
the territorial authority must issue a replacement notice; and
(c)
subsection (1) applies to the replacement notice.
(3)
Subsection (2) does not apply if the removal of the notice is authorised by or under this subpart.
Section 133AP: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AQ Territorial authority may assess information relating to earthquake-prone building status at any time
(1)
This section applies if, at any time,—
(a)
the owner of a building or a part of a building sends to the territorial authority an engineering assessment of the building or part (whether or not the building or part is already subject to an EPB notice); or
(b)
a territorial authority is satisfied, on the basis of evidence other than an engineering assessment, that a building or a part of a building that is subject to an EPB notice is not earthquake prone.
(2)
As soon as practicable after receiving an engineering assessment under this section for a building or a part of a building, the territorial authority must determine, in accordance with the EPB methodology,—
(a)
whether the building or part is earthquake prone; and
(b)
if the building or part is earthquake prone, its earthquake rating.
(3)
If the territorial authority determines or is satisfied that the building or part is not earthquake prone, the territorial authority must promptly—
(a)
notify the owner in writing of its decision; and
(b)
if the building or part is already subject to an EPB notice,—
(i)
remove the building from the EPB register; and
(ii)
remove, or authorise the owner of the building or part to remove, any EPB notice or EPB exemption notice attached on or adjacent to the building.
(4)
If the territorial authority determines that the building or part is earthquake prone, the territorial authority must promptly—
(a)
notify the owner in writing of its decision; and
(b)
if the building or part is not already subject to an EPB notice, issue an EPB notice for the building or part under section 133AL; and
(c)
if the building or part is already subject to an EPB notice,—
(i)
if the earthquake rating has changed, reissue an EPB notice under section 133AL for the building or part; and
(ii)
if the earthquake rating has not changed, notify the owner in writing of that fact; and
(d)
record the details of the decision in the EPB register and update other information in the EPB register as necessary.
Section 133AQ: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Powers of territorial authorities in respect of earthquake-prone buildings
Heading: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AR Territorial authority may impose safety requirements
(1)
If a territorial authority determines that a building or a part of a building in its district is earthquake prone, the territorial authority may do any or all of the following:
(a)
put up a hoarding or fence to prevent people from approaching the building or part nearer than is safe:
(b)
attach in a prominent place, on or adjacent to the building or part, a notice that warns people not to approach the building or part:
(c)
issue a notice that complies with subsection (2) restricting entry to the building or part for particular purposes or restricting entry to particular persons or groups of persons.
(2)
A notice issued under subsection (1)(c)—
(a)
must be in writing; and
(b)
must be fixed to the building in question; and
(c)
must be given in the form of a copy to the persons listed in section 133AL(5); and
(d)
may be issued for a period of up to 30 days; and
(e)
may be reissued, but not more than once, for a further period of up to 30 days.
(3)
However, a notice issued under subsection (1)(c), if fixed on the building, is not invalid because a copy of it has not been given to any or all of the persons listed in section 133AL(5).
(4)
If, in relation to a building or a part of a building, a territorial authority has put up a hoarding or fence or attached a notice under subsection (1)(b) or (c), no person may, other than in accordance with the terms of a notice issued under subsection (1)(c),—
(a)
use or occupy the building or part; or
(b)
permit another person to use or occupy the building or part.
Section 133AR: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AS Territorial authority may carry out seismic work
(1)
This section applies if seismic work on a building or a part of a building that is subject to an EPB notice is not completed by the deadline that applies under section 133AM, or is not proceeding with reasonable speed in the light of that deadline.
(2)
The territorial authority may apply to the District Court for an order authorising the territorial authority to carry out seismic work on the building or the part of the building.
(3)
Before the territorial authority applies to the District Court under subsection (2), the territorial authority must give the owner of the building or the part of the building not less than 10 days’ written notice of its intention to do so.
(4)
If a territorial authority carries out seismic work on a building or a part of a building under the authority of an order made under subsection (2),—
(a)
the owner of the building or part is liable for the costs of the work; and
(b)
the territorial authority may recover those costs from the owner; and
(c)
the amount recoverable by the territorial authority becomes a charge on the land on which the work was carried out.
(5)
Seismic work authorised to be done under this section may include the demolition of a building or part of a building.
Compare: 1991 No 150 s 65(4), (5)
Section 133AS: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AT Alterations to buildings subject to EPB notice
(1)
This section applies instead of section 112 in relation to an application for a building consent for the alteration of a building or a part of a building that is subject to an EPB notice.
(2)
A building consent authority must not grant a building consent for the alteration of the building or part unless the building consent authority is satisfied that,—
(a)
after the alteration, the building will comply, as nearly as is reasonably practicable, with the provisions of the building code that relate to—
(i)
means of escape from fire; and
(ii)
access and facilities for persons with disabilities (if this is a requirement in terms of section 118); and
(b)
after the alteration, the building will,—
(i)
if it complied with the other provisions of the building code immediately before the building work began, continue to comply with those provisions; or
(ii)
if it did not comply with the other provisions of the building code immediately before the building work began, continue to comply at least to the same extent as it did then comply; and
(c)
in the case of a substantial alteration, the alteration includes the necessary seismic work. An alteration of a building is a substantial alteration if the territorial authority is satisfied that the alteration meets criteria prescribed under section 401C(c).
(3)
Despite subsection (2)(a), a territorial authority may, by written notice to the owner of the building or part, specify 1 or more of the provisions of the building code referred to in subsection (2)(a) and allow the alteration of the building or part without the building complying with the specified provisions if the territorial authority is satisfied that—
(a)
the alteration includes the necessary seismic work; and
(b)
if the building were required to comply with the specified provisions, it would be unduly onerous for the owner in the circumstances; and
(c)
the permitted non-compliance with the specified provisions is no more than is reasonably necessary in the light of the objective of ensuring that the building or part is no longer earthquake prone; and
(d)
after the alteration, the building will continue to comply with the specified provisions, and other provisions of the building code, to at least the same extent as it complied with those provisions immediately before the building work began.
(4)
When making the assessments required by subsection (3)(b) and (c), the territorial authority must take into account the matters (if any) prescribed under section 401C(d).
Section 133AT: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Offences
Heading: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AU Offences in relation to earthquake-prone buildings
Failure to complete seismic work
(1)
The owner of a building or a part of a building that is subject to an EPB notice who fails to complete seismic work on the building or part by the deadline that applies under section 133AM—
(a)
commits an offence; and
(b)
is liable on conviction to a fine not exceeding $200,000.
Failures relating to EPB notices and EPB exemption notices
(2)
A person commits an offence if—
(a)
a territorial authority requires the person to attach an EPB notice or an EPB exemption notice on or adjacent to a building under section 133AP; and
(b)
the person—
(i)
fails to attach the notice in accordance with that section; or
(ii)
attaches the notice otherwise than in accordance with that section.
(3)
A person commits an offence if—
(a)
the person is required under section 133AP(2)(a) to notify the territorial authority when an EPB notice or an EPB exemption notice ceases to be attached on or adjacent to a building or becomes illegible; and
(b)
the person fails to notify the territorial authority in accordance with that section.
(4)
A person who commits an offence under subsection (2) or (3) is liable on conviction to a fine not exceeding $20,000.
Failure to comply with safety requirements
(5)
A person who fails to comply with section 133AR(4) commits an offence and is liable on conviction—
(a)
to a fine not exceeding $200,000; and
(b)
in the case of a continuing offence, to a further fine not exceeding $20,000 for every day or part of a day during which the offence continues.
Section 133AU: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Methodology for identifying earthquake-prone buildings (EPB methodology)
Heading: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AV Chief executive must set methodology for identifying earthquake-prone buildings (EPB methodology)
(1)
The chief executive must set a methodology for identifying earthquake-prone buildings (the EPB methodology) that specifies how territorial authorities are to—
(a)
identify the buildings or parts of buildings in their district that are potentially earthquake prone; and
(b)
determine whether a potentially earthquake-prone building or part of a building is earthquake prone and, if it is, its earthquake rating.
(2)
The methodology—
(a)
may specify buildings, parts of buildings, or classes of buildings or parts of buildings that are potentially earthquake prone; and
(b)
may specify a method for identifying buildings, parts of buildings, or classes of buildings or parts of buildings that are potentially earthquake prone; and
(c)
must specify the requirements for an engineering assessment of a building or a part of a building; and
(d)
must specify how a territorial authority may use engineering or other tests completed before the commencement of this section to determine whether a building or a part of a building is earthquake prone or potentially earthquake prone.
(3)
The chief executive must set the methodology no later than 1 month after the commencement of this section.
(4)
The methodology may incorporate material by reference in accordance with sections 405 to 413.
(5)
The chief executive may amend or replace the methodology at any time.
(6)
If the chief executive amends or replaces the methodology, sections 133AW and 133AX apply in respect of the amendment or replacement with any necessary modifications.
Section 133AV: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AW Consultation requirements for setting EPB methodology
(1)
Before setting the EPB methodology, the chief executive must do everything reasonably practicable on his or her part to consult territorial authorities and any other persons or organisations that appear to the chief executive to be representative of the interests of persons likely to be substantially affected by the setting of the methodology.
(2)
The process for consultation should, to the extent practicable in the circumstances, include—
(a)
giving adequate and appropriate notice of the intention to set the methodology; and
(b)
giving a reasonable opportunity for territorial authorities and other interested persons to make submissions; and
(c)
giving adequate and appropriate consideration to submissions.
(3)
A failure to comply with this section does not affect the validity of the methodology.
Section 133AW: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AX Notification and availability of EPB methodology
(1)
As soon as practicable after the chief executive has set the EPB methodology, the chief executive must—
(a)
notify territorial authorities that the methodology has been set; and
(b)
publicly notify that the methodology has been set; and
(c)
make the methodology available on the Internet in a form that is publicly accessible at all reasonable times; and
(d)
make the methodology available in printed form for purchase on request by members of the public.
(2)
The methodology is a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.
Section 133AX: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Miscellaneous
Heading: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
133AY What territorial authority must do if definition of ultimate capacity or moderate earthquake amended
(1)
This section applies if the definition of ultimate capacity or moderate earthquake, as set out in regulations made for the purpose of section 133AB (meaning of earthquake-prone building), is amended or replaced.
(2)
As soon as is reasonably practicable after the definition is amended or replaced, a territorial authority—
(a)
must consider whether any decision that it has made under this subpart should be reassessed in the light of the changes to the definition; and
(b)
may remake the decision.
(3)
Section 133AQ(3) and (4) applies if a decision is remade under this section.
Section 133AY: inserted, on 1 July 2017, by section 24 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Subpart 7—Safety of dams
Dams to which provisions of this subpart apply
Heading: inserted, on 15 March 2008, by section 28 of the Building Amendment Act 2008 (2008 No 4).
133A Dams to which subpart 7 provisions apply
(1)
Sections 133B and 157 to 159 apply to all dams.
(2)
The other provisions in this subpart apply only to classifiable and referable dams.
Section 133A: inserted, on 15 March 2008, by section 28 of the Building Amendment Act 2008 (2008 No 4).
Section 133A(1): replaced, on 28 November 2013, by section 37(1) of the Building Amendment Act 2013 (2013 No 100).
Section 133A(2): replaced, on 28 November 2013, by section 37(2) of the Building Amendment Act 2013 (2013 No 100).
133B Measurement of dams
For the purposes of this Act and any regulations made under it, the height of a dam is the vertical distance from the crest of the dam and must be measured,—
(a)
in the case of a dam across a stream, from the natural bed of the stream at the lowest downstream outside limit of the dam; and
(b)
in the case of a dam not across a stream, from the lowest elevation at the outside limit of the dam; and
(c)
in the case of a canal, from the invert of the canal.
Section 133B: inserted, on 28 November 2013, by section 38 of the Building Amendment Act 2013 (2013 No 100).
Notification of classifiable or referable dam
Heading: inserted, on 28 November 2013, by section 38 of the Building Amendment Act 2013 (2013 No 100).
133C Obligation to notify regional authority of classifiable or referable dam and change of ownership
(1)
The owner of a classifiable or referable dam must notify the regional authority in whose region the dam is situated of the size and location of the dam.
(2)
The owner must notify the regional authority,—
(a)
in the case of a dam commissioned before the commencement of the regulations referred to in section 135(2)(a), within 3 months after the commencement of those regulations; or
(b)
in the case of a dam commissioned after the commencement of the regulations referred to in section 135(2)(a), within 3 months after the dam is commissioned.
(3)
If the ownership of a classifiable or referable dam that must be notified under subsection (1) changes, the transferring owner must notify the regional authority of the change of ownership within 3 months of the change.
Section 133C: inserted, on 28 November 2013, by section 38 of the Building Amendment Act 2013 (2013 No 100).
Classification of dams
134 When owner must classify dam
The owner of a dam must classify the dam in accordance with section 134B if—
(a)
the dam is a classifiable dam; or
(b)
the dam is a referable dam and the regional authority in whose region the dam is situated has required the owner to classify it.
Section 134: replaced, on 28 November 2013, by section 39 of the Building Amendment Act 2013 (2013 No 100).
134A Regional authority may require owner to classify referable dam
(1)
A regional authority may by written notice require the owner of a referable dam to classify it in accordance with section 134B if the dam is located within a designated area.
(2)
In subsection (1), designated area means an area, or a proximity to an area or feature, designated or described by regulations made under this Act.
Section 134A: inserted, on 28 November 2013, by section 39 of the Building Amendment Act 2013 (2013 No 100).
134B Method of classification
(1)
The owner of a dam to whom section 134 applies must classify the dam according to the potential impact of a failure of the dam on persons, property, and the environment.
(2)
In classifying a dam, the owner must—
(a)
apply the prescribed criteria and standards for dam safety; and
(b)
give the dam one of the following classifications:
(i)
low potential impact; or
(ii)
medium potential impact; or
(iii)
high potential impact; and
(c)
submit the classification of the dam to a recognised engineer for audit.
(3)
For the purposes of this section, the prescribed criteria and standards for dam safety may incorporate, in accordance with sections 405 to 413, the standards, requirements, or recommended practices of national or international organisations that are concerned with the operation and safety of dams.
Section 134B: inserted, on 28 November 2013, by section 39 of the Building Amendment Act 2013 (2013 No 100).
134BA Classification of dams that are canals
A dam that is a canal that must be classified under section 134B may have different classifications for different sections of the canal and in that case each of those sections must be treated as a separate dam for the purposes of sections 134 to 139.
Section 134BA: inserted, on 28 November 2013, by section 39 of the Building Amendment Act 2013 (2013 No 100).
134C Offence of failing to classify dam
A person to whom section 134 applies who fails to classify the dam in accordance with section 134B commits an offence and is liable on conviction to a fine not exceeding $20,000.
Section 134C: inserted, on 28 November 2013, by section 39 of the Building Amendment Act 2013 (2013 No 100).
135 Owner must provide classification of, and certificate for, dam to regional authority
(1)
An owner of a dam must provide the regional authority in whose region the dam is situated with—
(a)
the classification given by the owner to the dam; and
(b)
a certificate from an engineer that—
(i)
states that the classification of the dam accords with the prescribed criteria and standards for dam safety; and
(ii)
states that the engineer is a recognised engineer; and
(iii)
has attached to it evidence that the engineer is a recognised engineer.
(2)
The owner must comply with subsection (1) no later than,—
(a)
if the dam was commissioned before the commencement of this Part, 3 months after the regulations prescribing the criteria and standards for dam safety come into force; or
(b)
if the dam is commissioned after the commencement of this Part, 3 months after the date on which the dam was commissioned.
135A Certifying engineer must notify regional authority and owner if dam dangerous
(1)
An engineer engaged to provide a certificate for the purposes of section 135(1)(b), 142(1)(b), or 150(2)(f) must notify the regional authority and the owner of the dam if he or she believes that the dam is dangerous.
(2)
The notice must be—
(a)
in writing; and
(b)
given within 5 working days after the engineer forms the belief in question.
(3)
Nothing in subsection (1) requires an engineer to act outside the terms of his or her engagement by investigating whether the dam is dangerous or not and a breach of the duty in subsection (1) does not give rise to any civil liability in damages.
Section 135A: inserted, on 28 November 2013, by section 40 of the Building Amendment Act 2013 (2013 No 100).
136 Regional authority must decide whether to approve or refuse dam classification
(1)
A regional authority must, as soon as practicable after receiving a classification given by an owner to a dam under section 135, give written notice to the owner as to whether the regional authority—
(a)
approves the classification; or
(b)
refuses to approve the classification.
(2)
A regional authority may refuse to approve a classification only if the regional authority is satisfied, on reasonable grounds, that the engineer who provided the certificate referred to in section 135(1)(b) is not a recognised engineer.
137 Dam classification provided to regional authority by accredited dam owner deemed to have been approved
Despite sections 134 to 136,—
(a)
an accredited dam owner is not required to—
(i)
submit a classification given to a dam by the accredited dam owner for audit; and
(ii)
provide the regional authority with the certificate referred to in section 135(1)(b); and
(b)
the classification given to a dam by the accredited dam owner is deemed, on receipt of the classification by the regional authority, to have been approved by that regional authority under section 136.
138 Regional authority must require re-audit of dam classification that it refuses to approve
(1)
If a regional authority refuses to approve the classification given by an owner to a dam,—
(a)
the regional authority must direct the owner to have the classification audited by a recognised engineer; and
(b)
the owner must, within the time required by subsection (2), submit to the regional authority—
(i)
a re-audited classification; and
(ii)
a certificate from the recognised engineer that meets the requirements in section 135(1)(b).
(2)
The time required is—
(a)
15 working days after the date on which the regional authority refused to approve the classification; or
(b)
any later date that the regional authority in any particular case may allow.
(3)
Subsection (1) and section 136 apply, with all necessary modifications, to a re-audited classification.
(4)
A person commits an offence if the person fails to comply with a regional authority’s direction under subsection (1)(a).
(5)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Section 138(5): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
139 Owner must review dam classification
(1)
An owner of a dam must review the dam’s classification—
(a)
within 5 years after the regional authority approves, or is deemed to approve, the classification; and
(b)
after the first review, at intervals of not more than 5 years.
(2)
The owner must also review the dam’s classification if, at any time,—
(a)
any building work that requires a building consent is carried out on the dam; and
(b)
the building work results, or could result, in a change to the potential impact of a failure of the dam on persons, property, or the environment.
(3)
Sections 135 to 138 apply, with all necessary modifications, to a classification that is given to a dam following a review under this section.
Dam safety assurance programmes
140 Requirement for dam safety assurance programme
(1)
This section applies to an owner of a dam that has been classified under section 134B, or reclassified under section 139, as—
(a)
a medium potential impact dam; or
(b)
a high potential impact dam.
(2)
An owner to whom this section applies must—
(a)
prepare, or arrange for the preparation of, a dam safety assurance programme for the dam; and
(b)
submit the dam safety assurance programme to a recognised engineer for audit.
(3)
A person commits an offence if the person fails to comply with subsection (2).
(4)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $20,000.
(5)
To avoid doubt, a person may do both of the following in respect of the same dam if the person is a recognised engineer:
(a)
prepare the dam safety assurance programme for that dam; and
(b)
audit the dam safety assurance programme for that dam.
Section 140(1): amended, on 28 November 2013, by section 41 of the Building Amendment Act 2013 (2013 No 100).
Section 140(4): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
141 Content of dam safety assurance programme
A dam safety assurance programme must—
(a)
be in the prescribed form; and
(b)
meet the prescribed criteria and standards for dam safety.
142 Owner must provide dam safety assurance programme to regional authority
(1)
An owner of a dam to whom section 140 applies must provide the regional authority in whose region the dam is situated with—
(a)
the owner’s dam safety assurance programme; and
(b)
a certificate from an engineer that—
(i)
states that the dam safety assurance programme meets the prescribed criteria and standards for dam safety; and
(ia)
states that the dam safety assurance programme contains a full list of the dam’s appurtenant structures as determined by the engineer; and
(ii)
states that the engineer is a recognised engineer; and
(iii)
has attached to it evidence that the engineer is a recognised engineer.
(2)
The owner must comply with subsection (1) no later than,—
(a)
if the dam has been classified as a high potential impact dam, 1 year after the date on which the regional authority approves, or is deemed to approve, that classification; or
(b)
if the dam has been classified as a medium potential impact dam, 2 years after the date on which the regional authority approves, or is deemed to approve, that classification.
Section 142(1)(b)(ia): inserted, on 28 November 2013, by section 42 of the Building Amendment Act 2013 (2013 No 100).
143 Regional authority must decide whether to approve or refuse dam safety assurance programme
(1)
A regional authority must, as soon as practicable after receiving a dam safety assurance programme, give written notice to the relevant owner as to whether the regional authority—
(a)
approves the dam safety assurance programme; or
(b)
refuses to approve the dam safety assurance programme.
(2)
A regional authority may refuse to approve a dam safety assurance programme only if the regional authority is satisfied, on reasonable grounds, that the engineer who provided the certificate referred to in section 142(1)(b) is not a recognised engineer.
144 Dam safety assurance programme provided to regional authority by accredited dam owner deemed to have been approved
Despite sections 140 to 143,—
(a)
an accredited dam owner is not required to—
(i)
submit the owner’s dam safety assurance programme for audit; and
(ii)
provide the regional authority with the certificate referred to in section 142(1)(b); and
(b)
the dam safety assurance programme provided to the regional authority by the accredited dam owner is deemed, on its receipt by the regional authority, to have been approved by that regional authority under section 143.
145 Regional authority must require re-audit of dam safety assurance programme that it refuses to approve
(1)
If a regional authority refuses to approve a dam safety assurance programme,—
(a)
the regional authority must direct the owner of the dam concerned to have the dam safety assurance programme audited by a recognised engineer; and
(b)
the owner must, within the time required by subsection (2), submit to the regional authority—
(i)
a re-audited dam safety assurance programme; and
(ii)
a certificate from the recognised engineer that meets the requirements of section 142(1)(b).
(2)
The time required is—
(a)
15 working days after the date on which the regional authority refused to approve the dam safety assurance programme; or
(b)
any later date that the regional authority in any particular case may allow.
(3)
Subsection (1) and section 143 apply, with all necessary modifications, to a re-audited dam safety assurance programme.
(4)
A person commits an offence if the person fails to comply with a direction under subsection (1)(a).
(5)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $10,000.
Section 145(5): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
146 Review of dam safety assurance programme
(1)
An owner of a dam to whom section 140 applies must review the dam safety assurance programme of a dam,—
(a)
in the case of a dam that has been classified as a high potential impact dam,—
(i)
within 5 years after the date on which the regional authority approves, or is deemed to approve, the dam safety assurance programme; and
(ii)
after the first review, at intervals of not more than 5 years; and
(b)
in the case of a dam that has been classified as a medium potential impact dam,—
(i)
within 10 years after the date on which the regional authority approves, or is deemed to approve, the dam safety assurance programme; and
(ii)
after the first review, at intervals of not more than 7 years.
(2)
The owner must also review the dam safety assurance programme—
(a)
if, at any time,—
(i)
building work that requires a building consent is carried out on the dam; and
(ii)
the building work results, or could result, in a change to the potential impact of the dam on persons, property, or the environment; or
(b)
when requested by the regional authority to do so, if the dam is an earthquake-prone dam or a flood-prone dam.
(3)
Sections 142 and 143 apply, with all necessary modifications, to a reviewed dam safety assurance programme.
Section 146(1)(b)(ii): amended, on 28 November 2013, by section 43 of the Building Amendment Act 2013 (2013 No 100).
Section 146(2): replaced, on 15 March 2008, by section 29 of the Building Amendment Act 2008 (2008 No 4).
147 Requirements of sections 140 to 142 relate to amendments to dam safety assurance programme
The requirements of sections 140 to 142 that apply to preparing a dam safety assurance programme apply also to an amendment to that programme.
148 Obligations of owner in relation to dam safety assurance programme
An owner of a dam for which a dam safety assurance programme has been approved, or is deemed to have been approved, must ensure—
(a)
that the dam safety assurance programme is kept—
(i)
on the dam; or
(ii)
in another building in the region of the regional authority; or
(iii)
in some other place agreed on by the owner and the regional authority; and
(b)
that the dam safety assurance programme is available for inspection by—
(i)
the regional authority; or
(ii)
any person or organisation who or that has a right to inspect the dam under any Act.
Compare: 1991 No 150 s 44(2), (3), (4)
148A Dam safety assurance programme for dams that are canals
(1)
This section applies to a dam that is a canal and has different classifications for different sections of the canal in accordance with section 134B.
(2)
If the whole canal is owned by a single owner, then for the purposes of sections 140 to 145, 147, 148, 150, and 150A a single dam safety assurance programme suffices for the whole canal.
(3)
If the whole canal is not owned by a single owner, then for the purposes of sections 140 to 145, 147, 148, 150, and 150A a single dam safety assurance programme suffices for the sections of the canal in the separate ownership of each owner.
(4)
For the purposes of section 146, the potential impact classification that applies to the owner’s canal or section of the canal is the highest potential impact classification that applies to any section of the canal.
Section 148A: inserted, on 28 November 2013, by section 44 of the Building Amendment Act 2013 (2013 No 100).
148B Dam safety assurance programme for 2 or more dams forming single reservoir
(1)
This section applies if 2 or more dams owned by the same owner form a single reservoir.
(2)
For the purposes of sections 140 to 145, 147, 148, 150, and 150A a single dam safety assurance programme suffices for all the dams.
(3)
For the purposes of section 146, the potential impact classification that applies is the highest potential impact classification that applies to any of the dams.
Section 148B: inserted, on 28 November 2013, by section 44 of the Building Amendment Act 2013 (2013 No 100).
Who is recognised engineer
149 Who is recognised engineer
(1)
A recognised engineer is an engineer who—
(a)
has no financial interest in the dam concerned; and
(b)
is registered under the Chartered Professional Engineers of New Zealand Act 2002; and
(c)
has—
(i)
the prescribed qualifications; and
(ii)
the prescribed competencies.
(2)
In subsection (1)(a), financial interest does not include—
(a)
involvement in the construction of the dam as a fully paid engineer; or
(b)
entitlement to a fee for undertaking an audit; or
(c)
employment or engagement as an engineer by the owner of the dam concerned.
Section 149(2)(b): replaced, on 28 November 2013, by section 45 of the Building Amendment Act 2013 (2013 No 100).
Section 149(2)(c): inserted, on 28 November 2013, by section 45 of the Building Amendment Act 2013 (2013 No 100).
Dam compliance certificate
150 Owner of dam must supply annual dam compliance certificate
(1)
An owner of a dam for which a dam safety assurance programme has been approved, or is deemed to have been approved, must supply to the regional authority a dam compliance certificate in accordance with subsection (2).
(2)
The dam compliance certificate must—
(a)
be supplied on each anniversary of the approval, or deemed approval, of the dam safety assurance programme; and
(b)
state that, except for the identified, minor items of non-compliance, all procedures in the dam safety assurance programme have been fully complied with during the previous 12 months; and
(c)
be signed by,—
(i)
if the owner is an individual, that individual; or
(ii)
if the owner is a body corporate, the chief executive of that body corporate or, if there is no chief executive, a person with an equivalent position in the body corporate; and
(d)
be in the prescribed form; and
(e)
contain the prescribed information; and
(f)
have attached to it a certificate from an engineer that—
(i)
confirms that—
(A)
the engineer has reviewed the owner’s reports and other documents relating to the procedures in the dam safety assurance programme that the owner has followed in the previous 12 months; and
(B)
except for the identified, minor items of non-compliance, all procedures in the dam safety assurance programme have been complied with during the previous 12 months; and
(ii)
states that the engineer is a recognised engineer; and
(iii)
has attached to it evidence that the engineer is a recognised engineer.
(3)
The owner must publicly display a copy of the dam compliance certificate in a prominent place on the dam.
(4)
A person commits an offence if the person knowingly—
(a)
fails to display a dam compliance certificate that is required to be displayed under this section; or
(b)
displays a false or misleading dam compliance certificate; or
(c)
displays a dam compliance certificate otherwise than in accordance with this section.
(5)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Compare: 1991 No 150 s 45(1), (2)
Section 150(2)(b): replaced, on 28 November 2013, by section 46(1) of the Building Amendment Act 2013 (2013 No 100).
Section 150(2)(f)(i)(B): replaced, on 28 November 2013, by section 46(2) of the Building Amendment Act 2013 (2013 No 100).
Section 150(5): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
150A Annual dam compliance certificate requirements not to apply to accredited dam owner
Section 150 does not apply to an accredited dam owner.
Section 150A: inserted, on 15 March 2008, by section 30 of the Building Amendment Act 2008 (2008 No 4).
151 Register of dams
Each regional authority must establish and maintain a register of dams in its district.
152 Information to be provided to chief executive
Each regional authority and each owner of a dam must provide information to the chief executive in accordance with the regulations.
Dangerous dams
153 Meaning of dangerous dam
A dam is dangerous for the purposes of this Act if the dam—
(a)
is a high potential impact dam or a medium potential impact dam; and
(b)
is likely to fail—
(i)
in the ordinary course of events; or
(ii)
in a moderate earthquake (as defined in the regulations); or
(iii)
in a moderate flood (as defined in the regulations).
(c)
[Repealed]Section 153(b): replaced, on 15 March 2008, by section 31(1) of the Building Amendment Act 2008 (2008 No 4).
Section 153(c): repealed, on 15 March 2008, by section 31(2) of the Building Amendment Act 2008 (2008 No 4).
153A Meaning of earthquake-prone dam and flood-prone dam
(1)
A dam is an earthquake-prone dam for the purposes of this Act if the dam—
(a)
is a high potential impact dam or a medium potential impact dam; and
(b)
is likely to fail in an earthquake threshold event (as defined in the regulations).
(2)
A dam is a flood-prone dam for the purposes of this Act if the dam—
(a)
is a high potential impact dam or a medium potential impact dam; and
(b)
is likely to fail in a flood threshold event (as defined in the regulations).
Section 153A: inserted, on 15 March 2008, by section 32 of the Building Amendment Act 2008 (2008 No 4).
153B Owner must notify regional authority of dangerous dam
The owner of a dam who has reasonable grounds for believing that the dam is, or has become, dangerous must immediately notify the regional authority in whose region the dam is situated.
Section 153B: inserted, on 28 November 2013, by section 47 of the Building Amendment Act 2013 (2013 No 100).
154 Powers of regional authorities in respect of dangerous dams
(1)
If a regional authority is satisfied that a dam is dangerous, the regional authority may—
(a)
put up a hoarding or fence to prevent people from approaching the dam nearer than is safe:
(b)
attach in a prominent place on, or adjacent to, the dam a notice that warns people not to approach the dam:
(c)
give written notice requiring work to be carried out on the dam, within a time stated in the notice (which must not be less than 10 days after the notice is given under section 155), to reduce or remove the danger.
(2)
[Repealed](3)
A person commits an offence if the person fails to comply with a notice given under subsection (1)(c).
(4)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $200,000.
Section 154(2): repealed, on 1 July 2017, by section 25 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 154(4): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
155 Requirements for notice given under section 154
(1)
A notice given under section 154(1)(c) must—
(a)
be fixed to the dam concerned; and
(b)
state whether the owner of the dam must obtain a building consent in order to carry out the work required by the notice.
(2)
A copy of the notice must be given to—
(a)
the owner of the dam; and
(b)
an occupier of the dam; and
(c)
every person who has an interest in the land on which the dam is situated under a mortgage or other encumbrance registered under the Land Transfer Act 2017; and
(d)
every person claiming an interest in the land that is protected by a caveat lodged and in force under section 138 of the Land Transfer Act 2017; and
(e)
every statutory authority that has exercised a statutory power to classify or register, for any purpose, the dam or the land on which the dam is situated; and
(f)
Heritage New Zealand Pouhere Taonga, if the dam is a heritage dam.
(3)
However, the notice, if fixed on the dam, is not invalid because a copy of it has not been given to any or all of the persons referred to in subsection (2).
Section 155(2)(c): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 155(2)(d): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 155(2)(e): replaced, on 1 July 2017, by section 26 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 155(2)(f): amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
156 Regional authority may carry out work
(1)
A regional authority may apply to the District Court for an order authorising the regional authority to carry out building work if any work required under a notice given by the regional authority under section 154(1)(c) is not completed, or not proceeding with reasonable speed, within—
(a)
the time stated in the notice; or
(b)
any further time that the regional authority may allow.
(2)
Before the regional authority applies to the District Court under subsection (1), the regional authority must give the owner of the dam not less than 10 days’ written notice of its intention to do so.
(3)
If a regional authority carries out building work under the authority of an order made under subsection (1),—
(a)
the owner of the dam is liable for the costs of the work; and
(b)
the regional authority may recover those costs from the owner; and
(c)
the amount recoverable by the regional authority becomes a charge on the land on which the dam is situated.
Section 156(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 156(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
157 Measures to avoid immediate danger
(1)
This section applies if, because of the state of a dam, immediate danger to the safety of persons, property, or the environment is likely.
(2)
The chief executive of a regional authority may, by warrant issued under his or her signature, cause any action to be taken that is necessary in his or her judgment to remove that danger.
(3)
If the regional authority takes action under subsection (2),—
(a)
the owner of the dam is liable for the costs of the action; and
(b)
the regional authority may recover those costs from the owner; and
(c)
the amount recoverable by the regional authority becomes a charge on the land on which the dam is situated.
(4)
The chief executive of the regional authority and the regional authority are not under any liability arising from the issue, in good faith, of a warrant under subsection (2).
Compare: 1991 No 150 s 70(1), (2), (4)
158 Regional authority must apply to District Court for confirmation of warrant
(1)
If the chief executive of a regional authority issues a warrant under section 157(2), the regional authority, on completion of the action stated in the warrant, must apply to the District Court for confirmation of the warrant.
(2)
On hearing the application, the District Court may—
(a)
confirm the warrant without modification; or
(b)
confirm the warrant subject to modification; or
(c)
set the warrant aside.
(3)
Subsection (1) does not apply if—
(a)
the owner of the dam concerned notifies the regional authority that—
(i)
the owner does not dispute the entry into the owner’s land; and
(ii)
confirmation of the warrant by the District Court is not required; and
(b)
the owner pays the costs referred to in section 157(3)(a).
Compare: 1991 No 150 s 70(3)
Section 158(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 158(3)(a)(ii): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
159 Building work includes decommissioning and demolition of dam
Any work required or authorised to be carried out under section 154(1)(c), or action taken under section 157, may include the decommissioning and demolition of a dam.
160 Power of regional authority not limited
The provisions of sections 154 to 159 are in addition to, and do not limit, the powers of a regional authority under section 157.
Policy on dangerous dams
161 Regional authority must adopt policy on dangerous dams, earthquake-prone dams, and flood-prone dams
(1)
A regional authority must, within 18 months after the commencement of this Part, adopt a policy on dangerous dams, earthquake-prone dams, and flood-prone dams within its region.
(2)
The policy must state—
(a)
the approach that the regional authority will take in performing its functions under this Part; and
(b)
the regional authority’s priorities in performing those functions; and
(c)
how the policy will apply to heritage dams.
Section 161 heading: amended, on 15 March 2008, by section 33(1) of the Building Amendment Act 2008 (2008 No 4).
Section 161(1): amended, on 15 March 2008, by section 33(2) of the Building Amendment Act 2008 (2008 No 4).
162 Adoption and review of policy
(1)
A policy under section 161 must be adopted in accordance with the special consultative procedure in section 83 of the Local Government Act 2002.
(2)
A policy may be amended or replaced only in accordance with the special consultative procedure, and this section applies to that amendment or replacement.
(3)
A regional authority must, as soon as practicable after adopting or amending a policy, provide a copy of the policy to the chief executive.
(4)
A regional authority must complete a review of a policy within 5 years after the policy is adopted and then at intervals of not more than 5 years.
(5)
A policy does not cease to have effect because it is due for review or being reviewed.
Subpart 7A—Special provisions for residential pools
Subpart 7A: inserted, on 1 January 2017, by section 10 of the Building (Pools) Amendment Act 2016 (2016 No 71).
162A Purpose
The purpose of this subpart is to prevent drowning of, and injury to, young children by restricting unsupervised access to residential pools by children under 5 years of age.
Section 162A: inserted, on 1 January 2017, by section 10 of the Building (Pools) Amendment Act 2016 (2016 No 71).
162B Application of subpart
This subpart applies to pools with a maximum depth of water of 400 mm or more.
Section 162B: inserted, on 1 January 2017, by section 10 of the Building (Pools) Amendment Act 2016 (2016 No 71).
162C Residential pools must have means of restricting access
(1)
Every residential pool that is filled or partly filled with water must have physical barriers that restrict access to the pool by unsupervised children under 5 years of age.
(2)
The means of restricting access referred to in subsection (1) must comply with the requirements of the building code—
(a)
that are in force; or
(b)
that were in force when the pool was constructed, erected, or installed (after 1 September 1987) and in respect of which a building consent, code compliance certificate, or certificate of acceptance was issued (in relation to the means of restricting access to the pool).
(3)
In the case of a small heated pool, the means of restricting access referred to in subsection (1) need only restrict access to the pool when the pool is not in use.
(4)
The following persons must ensure compliance with this section:
(a)
the owner of the pool:
(b)
the pool operator:
(c)
the owner of the land on which the pool is situated:
(d)
the occupier of the property in or on which the pool is situated:
(e)
if the pool is subject to a hire purchase agreement (as that term is defined in the Income Tax Act 2007), the purchaser of the pool:
(f)
if the pool is on premises that are not subject to a tenancy under the Residential Tenancies Act 1986 but the pool is subject to a lease or is part of premises subject to a lease, the lessee of the pool or the premises.
Compare: 1987 No 178 s 8
Section 162C: inserted, on 1 January 2017, by section 10 of the Building (Pools) Amendment Act 2016 (2016 No 71).
162D Periodic inspections of residential pools
(1)
Every territorial authority must ensure that the following residential pools within its jurisdiction are inspected at least once every 3 years, within 6 months before or after the pool’s anniversary date, to determine whether the pool has barriers that comply with the requirements of section 162C:
(a)
residential pools other than small heated pools:
(b)
small heated pools that have barriers that are not exempt, in terms of Schedule 1, from the requirement to have a building consent.
(2)
A territorial authority may accept a certificate of periodic inspection from an independently qualified pool inspector for the purpose of subsection (1) in lieu of carrying out an inspection under section 222.
(3)
If a territorial authority decides not to accept a certificate of periodic inspection from an independently qualified pool inspector under subsection (2), the territorial authority must, within 7 working days of making that decision, give notice to the chief executive of the decision and the reasons for the decision.
(4)
If an independently qualified pool inspector inspects a pool for the purpose of this section and decides that the pool does not have barriers that comply with the requirements of section 162C (subject to any waiver or modification granted under section 67A or 188), the inspector must, within 3 working days of the date of inspection, give written notice to the relevant territorial authority of the decision, attaching any information that the chief executive requires to accompany the notice.
(5)
In this section,—
anniversary date, in relation to a pool, means—
(a)
the date of issue of the code compliance certificate or the certificate of acceptance in respect of the pool; or
(b)
in the case of a pool that did not require a building consent,—
(i)
the date on which notice was given under section 7 of the Fencing of Swimming Pools Act 1987; or
(ii)
if subparagraph (i) does not apply, the date on which the existence of the pool came to the knowledge of the territorial authority
certificate of periodic inspection means a certificate that—
(a)
is issued by an independently qualified pool inspector; and
(b)
is in the prescribed form (if any); and
(c)
certifies that a pool has barriers that comply with the requirements of section 162C (subject to any waiver or modification granted under section 67A or 188).
Section 162D: inserted, on 1 January 2017, by section 10 of the Building (Pools) Amendment Act 2016 (2016 No 71).
162E Manufacturers and retailers must supply notice
(1)
Every person who manufactures, sells, or offers for sale in New Zealand any new product that is designed to be used for swimming, wading, paddling, or bathing, other than an ordinary home bath, must ensure that there is supplied with the pool a notice approved by the chief executive setting out or summarising the responsibilities of owners, pool operators, and occupiers under section 162C(4).
(2)
The chief executive may, by notice in the Gazette, approve the form of notices for the purpose of subsection (1).
(3)
Every person who fails to comply with subsection (1) commits an offence.
(4)
An offence against subsection (3) is an infringement offence.
Section 162E: inserted, on 1 January 2017, by section 10 of the Building (Pools) Amendment Act 2016 (2016 No 71).
Subpart 8—Notices to fix
163 Definitions for this subpart
In this subpart, unless the context otherwise requires,—
responsible authority means, as the context requires,—
(a)
a building consent authority; or
(b)
a territorial authority; or
(c)
a regional authority
specified person means—
(a)
the owner of a building:
(b)
if a notice to fix relates to building work being carried out,—
(i)
the person carrying out the building work; or
(ii)
if applicable, any other person supervising the building work:
(c)
if a notice to fix relates to a residential pool, a person referred to in section 162C(4).
Section 163 specified person: replaced, on 1 January 2017, by section 11 of the Building (Pools) Amendment Act 2016 (2016 No 71).
164 Issue of notice to fix
(1)
This section applies if a responsible authority considers on reasonable grounds that—
(a)
a specified person is contravening or failing to comply with this Act or the regulations (for example, the requirement to obtain a building consent); or
(b)
a building warrant of fitness or dam warrant of fitness is not correct; or
(c)
the inspection, maintenance, or reporting procedures stated in a compliance schedule are not being, or have not been, properly complied with.
(2)
A responsible authority must issue to the specified person concerned a notice (a notice to fix) requiring the person—
(a)
to remedy the contravention of, or to comply with, this Act or the regulations; or
(b)
to correct the warrant of fitness; or
(c)
to properly comply with the inspection, maintenance, or reporting procedures stated in the compliance schedule.
(3)
However, if a responsible authority considers that it is more appropriate for another responsible authority to issue the notice to fix, it must—
(a)
notify the other authority that it holds that view; and
(b)
give the other authority the reasons for that view.
(4)
The other responsible authority referred to in subsection (3) must issue the notice to fix if it considers that this section applies.
Compare: 1991 No 150 s 42(1)
165 Form and content of notice to fix
(1)
The following provisions apply to a notice to fix:
(a)
it must be in the prescribed form:
(b)
it must state a reasonable timeframe within which it must be complied with:
(c)
if it relates to building work that is being or has been carried out without a building consent, it may require the making of an application for a certificate of acceptance for the work:
(d)
if it requires building work to be carried out, it may require the making of an application for a building consent, or for an amendment to an existing building consent, for the work:
(e)
if it requires building work to be carried out, it must require the territorial authority, the regional authority, or both to be contacted when the work is completed:
(f)
if it relates to building work, it may direct that the site be made safe immediately and that all or any building work cease immediately (except any building work necessary to make the site safe) until the responsible authority is satisfied that the person carrying out the work is able and willing to resume operations in compliance with this Act and the regulations:
(g)
if it relates to a residential pool, it may direct that the pool be drained of water and be kept empty (until the requirements of section 162C are complied with).
(2)
Nothing in subsection (1) limits or affects the generality of section 164.
Section 165: replaced, on 14 April 2005, by section 15(1) of the Building Amendment Act 2005 (2005 No 31).
Section 165(1)(f): replaced, on 15 March 2008, by section 34 of the Building Amendment Act 2008 (2008 No 4).
Section 165(1)(g): inserted, on 1 January 2017, by section 12 of the Building (Pools) Amendment Act 2016 (2016 No 71).
166 Special provisions for notices to fix from building consent authority
(1)
If section 164 applies because a building consent authority that granted a building consent for building work considers that the building work has not been, or is not being, carried out in accordance with this Act or the building consent, a notice to fix applies only—
(a)
to building work required during the period in which a building consent is operative; or
(b)
in respect of building work for which a building consent should have been obtained; or
(c)
in respect of building work for which a building consent was not required but where there was a requirement that the work meet the building code.
(2)
A building consent authority that is not a territorial authority or a regional authority that issues a notice to fix must, within 5 working days after issuing it, give a copy of it to—
(a)
the territorial authority; or
(b)
if the territorial authority has transferred, under section 233, any of its functions, duties, or powers under this Act to another territorial authority, the territorial authority to whom the functions, duties, or powers have been transferred.
Compare: 1991 No 150 s 42(3)
Section 166(1): amended, on 15 March 2008, by section 35(1) of the Building Amendment Act 2008 (2008 No 4).
Section 166(2): amended, on 15 March 2008, by section 35(2) of the Building Amendment Act 2008 (2008 No 4).
Section 166(2): amended, on 14 April 2005, by section 3(6)(b) of the Building Amendment Act 2005 (2005 No 31).
Section 166(2)(a): amended, on 14 April 2005, by section 3(6)(c) of the Building Amendment Act 2005 (2005 No 31).
167 Inspection of building work under notice to fix
(1)
If a specified person to whom a notice to fix was issued is required to notify a territorial authority or, as the case may be, a regional authority that the relevant building work has been completed, the territorial authority or regional authority must, on receipt of the notice from the specified person concerned, inspect, or arrange for its authorised agent to inspect, the building work to which the notice to fix relates.
(2)
After the building work has been inspected under subsection (1), the territorial authority or regional authority must, by written notice to the specified person concerned, either—
(a)
confirm that the notice to fix has been complied with; or
(b)
refuse to confirm that the notice to fix has been complied with.
(3)
The territorial authority or regional authority must, on giving the confirmation under subsection (2)(a), forward a copy of the confirmation to the responsible authority that issued the notice to fix (if that responsible authority is different from the territorial authority or regional authority).
(4)
If the territorial authority or regional authority refuses, under subsection (2)(b), to confirm that a notice to fix has been complied with, the territorial authority or regional authority must—
(a)
give the specified person concerned written notice of—
(i)
the refusal; and
(ii)
the reasons for the refusal; and
(b)
issue a further notice to fix in respect of the building work.
(5)
Section 164 applies to a notice to fix issued under subsection (4)(b).
168 Offence not to comply with notice to fix
(1AA)
A person commits an offence who fails to comply with a notice to fix a means of restricting access to a residential pool.
(1AB)
A person who commits an offence against subsection (1AA) is liable on conviction to a fine not exceeding $5,000.
(1)
A person commits an offence if the person fails to comply with any other notice to fix under this Act.
(2)
A person who commits an offence under subsection (1) is liable on conviction to a fine not exceeding $200,000 and, in the case of a continuing offence, to a further fine not exceeding $20,000 for every day or part of a day during which the offence has continued.
Section 168(1AA): inserted, on 1 January 2017, by section 13(1) of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 168(1AB): inserted, on 1 January 2017, by section 13(1) of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 168(1): amended, on 1 January 2017, by section 13(2) of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 168(2): amended, on 1 January 2017, by section 13(3) of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 168(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Part 3 Regulatory responsibilities and accreditation
Subpart 1—Responsibilities of chief executive
Functions, duties, and powers of chief executive generally
168A Chief executive’s functions in relation to this Act
The chief executive must—
(a)
take all necessary steps for the implementation and administration of this Act; and
(b)
review the Act as necessary.
Section 168A: inserted, on 13 March 2012, by section 53 of the Building Amendment Act 2012 (2012 No 23).
169 Chief executive must monitor current and emerging trends in building design, etc, and must report annually to Minister
(1)
The chief executive must monitor current and emerging trends in building design, building technologies, and other factors that may affect—
(a)
the building code and acceptable solutions and verification methods:
(b)
any warnings issued, and bans declared, under section 26 in relation to any building method or product:
(c)
any guidance information published by the chief executive under section 175:
(d)
any other functions and duties of the chief executive under this Act.
(2)
The chief executive must, in each year, make a report to the Minister on the performance of his or her functions under subsection (1).
Section 169(1)(a): amended, on 28 November 2013, by section 75(2) of the Building Amendment Act 2013 (2013 No 100).
169A Chief executive must monitor application and effectiveness of subpart 6A of Part 2 (earthquake-prone buildings)
The chief executive must monitor the application of subpart 6A of Part 2 and its effectiveness in regulating earthquake-prone buildings.
Section 169A: inserted, on 1 July 2017, by section 27 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
170 Chief executive must consult in performing certain functions
The chief executive must, in performing his or her functions, consult with,—
(a)
in the case of functions that involve advice, approval, and determinations about fire safety and fire-engineering practice, Fire and Emergency New Zealand:
(b)
in the case of disability issues, the chief executive of the department of State responsible for disability issues.
Compare: 1991 No 150 s 12(2)
Section 170(a): amended, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).
171 Chief executive may seek advice from building advisory panel
(1)
The chief executive may, at any time, seek advice from a building advisory panel appointed under section 172 on—
(a)
current and emerging trends in building design, building technologies, and other factors that may affect—
(i)
the building code and acceptable solutions and verification methods:
(ii)
any warnings issued, or bans declared, under section 26 in relation to any building method or product:
(iii)
any guidance information published by the chief executive under section 175:
(b)
whether this Act or the regulations are achieving their purpose:
(c)
building issues that are not covered by this Act, but which the panel considers should be dealt with by legislation:
(d)
any other matter that the chief executive considers appropriate for the panel to advise on.
(2)
The chief executive must consider, but is not bound by, any advice given by the panel.
Section 171(1)(a)(i): amended, on 28 November 2013, by section 75(3) of the Building Amendment Act 2013 (2013 No 100).
172 Appointment of building advisory panel
(1)
The chief executive must appoint a building advisory panel that—
(a)
consists of experts in the building sector; and
(b)
has the following members:
(i)
1 person to convene and chair the panel:
(ii)
no less than 5 other members.
(2)
The chief executive must,—
(a)
before appointing a member, publicly notify a vacancy in a manner that enables suitably qualified individuals to apply for appointment; and
(b)
in appointing a member,—
(i)
take into account the need for members of the panel to have among them a breadth of experience and expertise, and knowledge of, or experience in, matters that come within the panel’s function (including, without limitation, matters that relate to consumer, cultural, disability, energy efficiency, health and safety, heritage, or sustainable development issues); and
(ii)
ensure that there is an appropriate balance in the membership of the panel so that the members represent a broad range of interests, rather than the interests of a particular group; and
(iii)
consult, as the chief executive considers appropriate, persons who have an expertise or interest in matters that come within the panel’s function.
(3)
The chief executive may, at any time, co-opt suitable persons onto the panel if doing so is necessary for the purposes of subsection (2)(b)(i) and (ii).
(4)
The terms on which a member of the panel is appointed are the terms set by the chief executive when appointing the member.
(5)
A member must not be appointed for a term that exceeds 3 years, but may be reappointed for 1 more term.
(6)
A member of the panel may resign by written notice to the chief executive.
(7)
The panel is a statutory board for the purposes of the Fees and Travelling Allowances Act 1951.
(8)
There may be paid, out of public money to the members of the panel, remuneration by way of fees, salaries, or allowances, and travelling allowances and travelling expenses in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act apply accordingly.
173 Function of panel
(1)
The function of the panel is to provide independent and specialist advice to the chief executive on any of the matters referred to in section 171(1).
(2)
It is not the panel’s function to advise the chief executive on the performance of the chief executive’s functions or duties, or the exercise of the chief executive’s powers, under this Act.
(3)
Subsection (2) does not apply if the chief executive seeks the panel’s advice on the matters referred to in that subsection.
174 Chief executive must report on panel’s operation
(1)
The chief executive must ensure that information about the operation of the panel is, in each year, included in the annual report of the Ministry.
(2)
For the purposes of subsection (1), the chief executive must, without limitation, include information about—
(a)
who the members of the panel are; and
(b)
the number of times that the panel met; and
(c)
the fees and other expenses paid to members of the panel; and
(d)
a summary of the matters considered by the panel and whether the chief executive followed the advice of the panel on those matters.
175 Chief executive may publish guidance information
(1)
The chief executive may publish information for the guidance of—
(a)
any of the following persons to assist them in complying with this Act:
(i)
territorial authorities:
(ii)
building consent authorities:
(iii)
owners:
(iv)
persons who carry out building work; and
(b)
any of the following persons to assist them in the performance of their functions and duties, and in the exercise of their powers (if any), in relation to dams:
(i)
regional authorities:
(ii)
owners of dams:
(iii)
licensed building practitioners; and
(c)
owners of buildings and members of the public in relation to the application of subpart 6A of Part 2.
(2)
Any information published by the chief executive under this section—
(a)
is only a guide; and
(b)
if used, does not relieve any person of the obligation to consider any matter to which that information relates according to the circumstances of the particular case.
Section 175(1)(b)(iii): amended, on 1 July 2017, by section 28(1) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 175(1)(c): inserted, on 1 July 2017, by section 28(2) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
175A Chief executive may provide dispute resolution services
The chief executive may, at his or her discretion, provide services to assist in the resolution of any dispute arising under a residential building contract (as defined in section 362B(1)).
Section 175A: inserted, on 1 January 2015, by section 48 of the Building Amendment Act 2013 (2013 No 100).
Power of chief executive to make determinations
176 Meaning of party
In sections 177 to 190, party, in relation to a determination, means any or all of the following persons affected by the determination:
(a)
the territorial authority:
(b)
the building consent authority:
(c)
the owner or, if there is more than 1 owner, any of the owners:
(d)
the licensed building practitioner concerned with the relevant building work:
(da)
any person to whom a notice to fix relating to the relevant building work has been issued under section 164:
(e)
if the matter for determination relates to—
(i)
a provision in the building code that has the purpose of protecting other property, the owner of the other property:
(ii)
a dam, the regional authority:
(f)
if the matter for determination relates to the provision of access and facilities for persons with disabilities to, and within, a building, any person who—
(i)
has a direct interest in the matter; and
(ii)
applies to the chief executive for a determination under section 177:
(g)
any 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.
Compare: 1991 No 150 s 16
Section 176(c): replaced, on 13 March 2012, by section 54(1) of the Building Amendment Act 2012 (2012 No 23).
Section 176(da): inserted, on 13 March 2012, by section 54(2) of the Building Amendment Act 2012 (2012 No 23).
177 Application for determination
(1)
A party may apply to the chief executive for a determination in relation to either or both of the following:
(a)
whether particular matters comply with the building code:
(b)
the exercise, failure or refusal to exercise, or proposed or purported exercise by an authority in subsection (2), (3), or (4) of a power of decision to which this paragraph applies by virtue of that subsection.
(2)
Subsection (1)(b) applies to any power of decision of a building consent authority in respect of all or any of the following:
(a)
a building consent:
(b)
an extension under section 52(b) of the period during which building work must be commenced before a building consent lapses:
(c)
an extension under section 93(2)(b)(ii) of the period during which the authority must decide whether to issue a code compliance certificate:
(d)
a code compliance certificate:
(e)
a compliance schedule:
(f)
a notice to fix.
(3)
Subsection (1)(b) applies to any power of decision of a territorial authority in respect of, or under, all or any of the following:
(a)
any waiver or modification of the building code under section 67:
(b)
a certificate of acceptance under section 96:
(c)
an exemption from building consent requirements under clause 2 of Schedule 1:
(d)
an amendment to a compliance schedule under section 106, 107, or 109:
(e)
a notice to fix:
(f)
(fa)
any power of decision of a territorial authority under subpart 6A of Part 2, other than a power of decision under section 133AS (territorial authority may carry out seismic work):
(g)
a certificate for public use under section 363A:
(h)
a certificate under section 224(f) of the Resource Management Act 1991.
(4)
Subsection (1)(b) applies to any power of decision under this Act of a regional authority in respect of a dam.
(5)
Nothing in this section limits or affects section 70(4) or 446(1)(c).
Section 177: replaced, on 7 July 2010, by section 4 of the Building Amendment Act 2010 (2010 No 50).
Section 177(3)(c): amended, on 30 May 2017, by section 6 of the Regulatory Systems (Building and Housing) Amendment Act 2017 (2017 No 11).
Section 177(3)(f): amended, on 1 July 2017, by section 29(1) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 177(3)(fa): inserted, on 1 July 2017, by section 29(2) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
178 Requirements for application for determination
(1)
An application for a determination must—
(a)
be made in writing; and
(b)
be given, in the prescribed form and manner (if any), to the chief executive; and
(c)
contain the prescribed information (if any); and
(d)
be accompanied by the prescribed fee (if any).
(2)
The applicant must give a copy of the application for a determination to every other party named in, or affected by, the application, either before or immediately after the application is given to the chief executive.
179 Chief executive may refuse application for determination
(1)
The chief executive may—
(a)
refuse an application for a determination; and
(b)
return the application to the applicant (and do no more in relation to the application).
(2)
Subsection (1) applies only if, in the chief executive’s opinion,—
(a)
the application is not genuine or is vexatious or frivolous; or
(b)
the applicant is not a party; or
(c)
the chief executive has made a determination, or is currently considering an application for a determination, on the same matter.
180 Application for determination may be withdrawn
(1)
An applicant for a determination may, at any time, withdraw the application by written notice to the chief executive.
(2)
If the chief executive receives the notice, the chief executive—
(a)
must notify the parties in relation to the application about the withdrawal of the application; and
(b)
may apportion costs under section 190; and
(c)
must do no more in relation to the application.
181 Chief executive may make determination on own initiative
(1)
The chief executive may, if he or she considers it necessary for achieving the purposes of this Act, direct that he or she will make a determination on a matter referred to in section 177—
(a)
on his or her own initiative; and
(b)
without an application for a determination being made under that section.
(2)
The chief executive—
(a)
may give a direction under subsection (1) either before or after a decision or a power that relates to the matter is made or exercised (as the case may be); and
(b)
must,—
(i)
in a case where a direction is given after the decision is made, or the power is exercised, confirm, reverse, or modify the decision or the exercise of the power in his or her determination; or
(ii)
in a case where a direction is given before the decision is made, or the power is exercised, determine the matter in his or her determination.
(3)
The chief executive must, as soon as practicable after giving a direction under subsection (1),—
(a)
send a copy of the direction to every party in relation to the matter to which it relates; and
(b)
publicly notify the direction.
Section 181(2)(a): replaced, on 1 July 2017, by section 30 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
182 No proceedings until determination made
(1)
A person may not commence proceedings in the District Court or the High Court if the matter that gives rise to those proceedings can be the subject of a determination.
(2)
However, a person may commence those proceedings if that person, or any other person, has already applied for a determination of the matter and the chief executive has—
(a)
made a determination on the application; or
(b)
refused to make a determination.
(3)
Compare: 1991 No 150 s 17(3)
Section 182(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
183 Decision or exercise of power suspended until determination made
(1)
Until the chief executive makes a determination on a matter, any decision or exercise of a power by any person referred to in section 177 that relates to that matter is suspended unless and to the extent that the chief executive directs otherwise.
(2)
However, a requirement in a notice to fix issued under section 164 to cease building work for safety reasons remains in force until the determination is made.
Compare: 1991 No 150 s 17(4)
184 Chief executive must decide whether to make determination
The chief executive must, within 10 working days after the date on which he or she receives an application for a determination,—
(a)
decide whether or not to make the determination; and
(b)
give written notice of his or her decision to the parties concerned.
185 When determination must be completed
(1)
If the chief executive decides to make a determination, he or she must, within the time required under subsection (2),—
(a)
make the determination; and
(b)
give a copy of the determination to the parties concerned.
(2)
The time required is—
(a)
60 working days after the date on which the chief executive receives the application; or
(b)
any further time that the chief executive and the parties may agree.
(3)
If the chief executive requires a party to provide documents under section 186(3)(a), the period specified in subsection (2)(a) does not include the period that—
(a)
starts on the day on which the chief executive makes that requirement; and
(b)
ends on the earlier of—
(i)
the day on which the party complies with that requirement; or
(ii)
the date specified by the chief executive as the date by which the party must provide those documents.
186 Procedure for determination
(1)
In making a determination, the chief executive must—
(a)
avoid unnecessary delay and formality; and
(b)
recognise tikanga Māori, and receive evidence, written or spoken, in Māori; and
(c)
receive any relevant evidence, whether or not it would be admissible in a court of law; and
(d)
comply with the principles of natural justice.
(2)
The chief executive may consider related applications together.
(3)
The chief executive—
(a)
may require the applicant or another party to provide documents relating to the application within any reasonable period that the chief executive may, from time to time, specify; and
(b)
must require—
(i)
the applicant to provide each of the other parties (if any) with copies of the application and any documents accompanying the application; and
(ii)
the applicant or another party to provide each of the other parties with copies of any documents provided under paragraph (a).
(4)
If the applicant or another party fails to comply with a requirement to provide documents under subsection (3)(a) within the period specified by the chief executive, the chief executive may, at the expiry of that period, make the determination without receiving the documents.
(5)
A submission in respect of an application for a determination received by the chief executive before the chief executive has determined the matter must be considered by the chief executive.
Compare: 1991 No 150 ss 17(2), 19(1)
187 Chief executive may engage persons to assist with determination
(1)
The chief executive may engage a suitable person to assist the chief executive in relation to—
(a)
any application for a determination; and
(b)
matters to which a direction under section 181 relates.
(2)
The person may do anything the chief executive may do under sections 177, 179, 180, 183 to 186, and 188 to 190, but the chief executive alone makes a determination.
(3)
The chief executive may, in making a determination, rely on a report from the person.
(4)
The failure of the person to perform his or her functions does not prevent the chief executive from making a determination.
Compare: 1991 No 150 s 21
188 Determination by chief executive
(1)
A determination by the chief executive must—
(a)
confirm, reverse, or modify the decision or exercise of a power to which it relates; or
(b)
determine the matter to which it relates.
(2)
A determination is binding on the parties concerned.
(3)
A determination may incorporate—
(a)
waivers or modifications of the building code; and
(aa)
waivers or modifications of section 162C(1) or (2); and
(b)
conditions that a territorial authority or regional authority, as the case may be, is able to grant or impose.
(3A)
The chief executive must only grant a waiver or modification of section 162C(1) or (2) if the chief executive is satisfied that the waiver or modification would not significantly increase danger to children under 5 years of age.
(4)
Subsection (1) is subject to section 181(2)(b).
Compare: 1991 No 150 s 20
Section 188(3)(aa): inserted, on 1 January 2017, by section 14(1) of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 188(3A): inserted, on 1 January 2017, by section 14(2) of the Building (Pools) Amendment Act 2016 (2016 No 71).
189 Clarification of determination
The chief executive may, within 20 working days after making a determination, amend the determination to clarify it if—
(a)
the chief executive, on his or her own initiative or on the application of a party to the determination, considers that the determination requires clarification; and
(b)
the clarification is either—
(i)
not material to any person affected by the determination; or
(ii)
agreed to by the parties to the determination; and
(c)
no appeal against the determination is pending.
190 Parties’ costs
(1)
The parties in relation to an application for a determination bear their own costs.
(2)
However, the chief executive may, by written direction to the applicant or another party, require that person to meet some or all of the other party’s costs in respect of the determination or application if, in the chief executive’s opinion, the party has contributed unreasonably to costs or delays.
(3)
A party in whose favour a direction under subsection (2) is given may enforce that direction by filing it in the prescribed form (if any) in the District Court.
(4)
A direction that is filed in the District Court under subsection (3) is enforceable as a judgment of the District Court in its civil jurisdiction.
Section 190(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Power of chief executive to register persons as building consent authorities for purposes of this Act
Heading: amended, on 15 March 2008, by section 37 of the Building Amendment Act 2008 (2008 No 4).
191 Chief executive may enter person’s name in register of building consent authorities
The chief executive may, on the application of a person made in accordance with section 194, enter the person’s name in the register of building consent authorities kept under section 273(1)(a).
Section 191: replaced, on 14 April 2005, by section 16(1) of the Building Amendment Act 2005 (2005 No 31).
192 Criteria for registration
(1)
Before entering a person’s name in the register of building consent authorities, the chief executive must be satisfied that—
(a)
the person holds a current accreditation from a building consent accreditation body appointed under section 248; and
(b)
the person meets the prescribed criteria and standards for registration; and
(c)
in the case of a person who wishes to be registered as a building consent authority but who is not a territorial authority or a regional authority, the person has adequate means to cover any civil liabilities that may arise in the performance of the functions of a building consent authority.
(2)
In considering whether a person has adequate means to cover any civil liabilities under subsection (1)(c), the chief executive may have regard to whether the person—
(a)
holds an insurance policy that meets the minimum terms and conditions prescribed by regulations made under section 402; or
(b)
holds an insurance policy under a scheme of insurance approved by regulations made under section 402; or
(c)
has put in place any arrangements that provide for effective consumer protection (for example, by giving a bond or having a guarantor).
Section 192(1): amended, on 14 April 2005, by section 16(2)(c) of the Building Amendment Act 2005 (2005 No 31).
Section 192(1)(c): amended, on 14 April 2005, by section 3(5) of the Building Amendment Act 2005 (2005 No 31).
193 Effect of registration
(1)
A person whose name is entered in the register of building consent authorities may perform the functions of a building consent authority under this Part and Part 2.
(2)
However, a person whose name is entered in the register of building consent authorities but who is not a territorial authority or a regional authority may perform only those functions that correspond with, or are within, the person’s scope of accreditation.
Section 193(1): amended, on 14 April 2005, by section 16(2)(d) of the Building Amendment Act 2005 (2005 No 31).
Section 193(2): amended, on 14 April 2005, by section 3(5) of the Building Amendment Act 2005 (2005 No 31).
194 Application for registration
An application for registration under section 191 must—
(a)
be made in writing to the chief executive; and
(b)
be given in the prescribed manner (if any); and
(c)
contain the prescribed information (if any); and
(d)
be accompanied by the prescribed fee (if any).
195 Chief executive must decide application for registration
The chief executive must, as soon as practicable after receiving an application for registration that complies with section 194,—
(a)
decide whether to register the applicant; and
(b)
give the applicant written notice of his or her decision; and
(c)
if the chief executive decides to refuse the application, state the reasons for the refusal in the notice given under paragraph (b).
196 Registration continuous so long as person meets criteria for registration
(1)
The chief executive must assess at least once every 3 years, and may assess at any other time, whether a building consent authority whose name is entered in the register of building consent authorities continues to meet the criteria for registration specified in section 192.
(2)
A building consent authority that continues to meet those criteria is entitled to the continuation of its registration, subject to section 203.
Section 196(1): amended, on 14 April 2005, by section 16(2)(e) of the Building Amendment Act 2005 (2005 No 31).
Section 196(2): amended, on 14 April 2005, by section 16(2)(f) of the Building Amendment Act 2005 (2005 No 31).
197 Consequences of failure to meet criteria for registration
(1)
Subsection (2) or subsection (3) applies if, after making an assessment under section 196, the chief executive determines that a building consent authority no longer meets the criteria for registration.
(2)
In the case of a building consent authority that is not a territorial authority or a regional authority,—
(a)
the chief executive must—
(i)
suspend the authority’s registration until the authority satisfies the chief executive that the authority meets those criteria; and
(ii)
record the suspension in the register of building consent authorities; and
(b)
if the authority does not so satisfy the chief executive within 12 months after the suspension, or any further period that the chief executive may determine, the chief executive must—
(i)
revoke the authority’s registration; and
(ii)
remove the authority’s name from the register of building consent authorities.
(3)
In the case of a territorial authority or a regional authority, the chief executive must recommend to the Minister that the Minister appoint 1 or more persons to act in the place of the territorial authority or, as the case may be, the regional authority in relation to all or any of its functions.
(4)
If subsection (3) applies, sections 277 to 281 apply with all necessary modifications.
Section 197(1): amended, on 14 April 2005, by section 16(2)(g) of the Building Amendment Act 2005 (2005 No 31).
Section 197(2): amended, on 14 April 2005, by section 3(5) of the Building Amendment Act 2005 (2005 No 31).
Section 197(2)(a)(i): amended, on 14 April 2005, by section 16(2)(j) of the Building Amendment Act 2005 (2005 No 31).
Section 197(2)(a)(i): amended, on 14 April 2005, by section 16(2)(k) of the Building Amendment Act 2005 (2005 No 31).
Section 197(2)(a)(ii): amended, on 14 April 2005, by section 16(2)(c) of the Building Amendment Act 2005 (2005 No 31).
Section 197(2)(b): amended, on 14 April 2005, by section 16(2)(k) of the Building Amendment Act 2005 (2005 No 31).
Section 197(2)(b)(i): amended, on 14 April 2005, by section 16(2)(j) of the Building Amendment Act 2005 (2005 No 31).
Section 197(2)(b)(ii): amended, on 14 April 2005, by section 16(2)(c) of the Building Amendment Act 2005 (2005 No 31).
Section 197(2)(b)(ii): amended, on 14 April 2005, by section 16(2)(j) of the Building Amendment Act 2005 (2005 No 31).
198 Effect of suspension
(1)
A building consent authority is not registered, for the purposes of this Part and Part 2, for the period for which the authority’s registration is suspended under section 197(2).
(2)
At the end of the period of suspension, the authority’s registration is immediately revived (unless there is some other ground to suspend or revoke that authority’s registration).
(3)
Despite subsection (1), the chief executive may authorise a building consent authority to perform limited functions as a building consent authority during the period of suspension if the chief executive is satisfied that doing so is necessary in the public interest (for example, to enable code compliance certificates to be issued by the authority in respect of building consents that were granted before the date of suspension).
(4)
An authority given under subsection (3) may—
(a)
be subject to any conditions that the chief executive thinks fit; and
(b)
be revoked by the chief executive at any time.
Section 198(1): amended, on 15 March 2008, by section 38(1) of the Building Amendment Act 2008 (2008 No 4).
Section 198(1): amended, on 14 April 2005, by section 16(2)(j) of the Building Amendment Act 2005 (2005 No 31).
Section 198(2): amended, on 14 April 2005, by section 16(2)(j) of the Building Amendment Act 2005 (2005 No 31).
Section 198(3): amended, on 15 March 2008, by section 38(2)(a) of the Building Amendment Act 2008 (2008 No 4).
Section 198(3): amended, on 15 March 2008, by section 38(2)(b) of the Building Amendment Act 2008 (2008 No 4).
199 Offence for person to perform functions of building consent authority or regional authority if person not registered, etc
(1)
A person commits an offence if the person performs any of the functions of a building consent authority without being registered under section 191.
(2)
A person commits an offence if the person—
(a)
is a building consent authority that is not a territorial authority or a regional authority; and
(b)
performs any of the functions of a building consent authority that do not correspond with, or are not within, the person’s scope of accreditation.
(3)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $200,000.
Section 199(1): amended, on 14 April 2005, by section 16(2)(h) of the Building Amendment Act 2005 (2005 No 31).
Section 199(2)(a): amended, on 14 April 2005, by section 3(5) of the Building Amendment Act 2005 (2005 No 31).
Section 199(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
200 Complaints about building consent authorities
(1)
The chief executive may receive complaints alleging that a building consent authority—
(a)
has failed, or is failing, without good reason to properly perform any of the authority’s functions under this Part or Part 2:
(b)
has been, or is, negligent in performing those functions.
(2)
As soon as practicable after receiving a complaint, the chief executive must—
(a)
inform the building consent authority concerned of the complaint; and
(b)
decide whether to accept or decline the complaint.
(2A)
The chief executive, in considering whether to accept or decline a complaint under subsection (2)(b), is not required to seek any information or submission from the building consent authority, and the building consent authority is not entitled to proffer any information or submission at that stage.
(3)
The chief executive must, immediately after making a decision under subsection (2),—
(a)
give written notice of the decision to the person who made the complaint and the building consent authority concerned; and
(b)
if the chief executive decides to accept the complaint, proceed to investigate the complaint.
(4)
The chief executive may decline to accept, and is not required to investigate, a complaint that he or she considers vexatious or frivolous.
Section 200 heading: amended, on 14 April 2005, by section 16(2)(i) of the Building Amendment Act 2005 (2005 No 31).
Section 200(1): amended, on 14 April 2005, by section 16(2)(g) of the Building Amendment Act 2005 (2005 No 31).
Section 200(1)(a): amended, on 14 April 2005, by section 16(2)(j) of the Building Amendment Act 2005 (2005 No 31).
Section 200(2)(a): amended, on 14 April 2005, by section 16(2)(g) of the Building Amendment Act 2005 (2005 No 31).
Section 200(2A): inserted, on 28 November 2013, by section 49 of the Building Amendment Act 2013 (2013 No 100).
Section 200(3)(a): amended, on 14 April 2005, by section 16(2)(g) of the Building Amendment Act 2005 (2005 No 31).
201 Chief executive may conduct investigation on own initiative
(1)
If the chief executive considers that there are reasonable grounds for believing that any of the matters specified in section 200(1) applies, the chief executive may decide to investigate the matter—
(a)
on his or her own initiative; and
(b)
without a complaint under section 200 being made.
(2)
The chief executive must, immediately after making a decision under subsection (1),—
(a)
give written notice of the decision to the building consent authority concerned; and
(b)
proceed to investigate the matter.
(3)
To avoid doubt, this section does not affect the chief executive’s power to conduct a review of a territorial authority or regional authority under section 276.
Section 201(2)(a): amended, on 14 April 2005, by section 16(2)(g) of the Building Amendment Act 2005 (2005 No 31).
202 Procedure if chief executive proceeds to investigate complaint or matter
(1)
This section applies if the chief executive proceeds to investigate—
(a)
a complaint under section 200; or
(b)
a matter on his or her own initiative under section 201.
(2)
The chief executive must, in the notice to the building consent authority concerned given under section 200(3) or, as the case may be, section 201(2),—
(a)
state that the chief executive has reason to believe that 1 or more grounds exist entitling him or her to exercise the disciplinary powers under section 203; and
(b)
provide particulars that will clearly inform the building consent authority of the ground or grounds; and
(c)
give the building consent authority a reasonable opportunity to make written submissions on the matter; and
(d)
consider those submissions (if any).
(3)
For the avoidance of doubt, a building consent authority’s failure to make written submissions after being given a reasonable opportunity to do so does not limit the chief executive in investigating the complaint or determining it.
Section 202(2): amended, on 14 April 2005, by section 16(2)(g) of the Building Amendment Act 2005 (2005 No 31).
Section 202(2)(b): amended, on 14 April 2005, by section 16(2)(g) of the Building Amendment Act 2005 (2005 No 31).
Section 202(2)(c): amended, on 14 April 2005, by section 16(2)(g) of the Building Amendment Act 2005 (2005 No 31).
Section 202(3): inserted, on 28 November 2013, by section 50 of the Building Amendment Act 2013 (2013 No 100).
203 Disciplinary powers of chief executive
(1)
This section applies if the chief executive, after conducting an investigation and considering the submissions made by a building consent authority (if any), is satisfied that the building consent authority—
(a)
has failed without good reason to properly perform any of the authority’s functions under this Part or Part 2:
(b)
has been negligent in performing those functions.
(2)
The chief executive may do 1 or more of the following:
(a)
issue a warning to the building consent authority:
(b)
require the building consent authority to take remedial action—
(i)
within a specified time; and
(ii)
that is subject to any conditions that the chief executive thinks fit (if any):
(ba)
if paragraph (b) applies, require the building consent authority to monitor and report to the chief executive on the progress of the remedial action:
(c)
limit the functions that the building consent authority may perform under this Part or Part 2 and record the limitation in the appropriate register accordingly:
(d)
in the case of a building consent authority that is not a territorial authority or a regional authority,—
(i)
suspend the authority’s registration and record the suspension in the appropriate register accordingly; or
(ii)
if the chief executive considers that the circumstances warrant it, revoke the authority’s registration and remove the authority’s name from the register of building consent authorities:
(e)
in the case of a territorial authority or regional authority, recommend to the Minister that the Minister appoint 1 or more persons to act in the place of the territorial authority or, as the case may be, the regional authority in relation to all or any of its functions.
(3)
If subsection (2)(e) applies, sections 277 to 281 apply with all necessary modifications.
(4)
If the chief executive takes any action referred to in subsection (2), he or she must give written notice of the action to the building consent authority and the reasons for the action.
Section 203(1): amended, on 14 April 2005, by section 16(2)(g) of the Building Amendment Act 2005 (2005 No 31).
Section 203(1)(a): amended, on 14 April 2005, by section 16(2)(j) of the Building Amendment Act 2005 (2005 No 31).
Section 203(2)(a): amended, on 14 April 2005, by section 16(2)(g) of the Building Amendment Act 2005 (2005 No 31).
Section 203(2)(b): amended, on 14 April 2005, by section 16(2)(g) of the Building Amendment Act 2005 (2005 No 31).
Section 203(2)(ba): inserted, on 28 November 2013, by section 51 of the Building Amendment Act 2013 (2013 No 100).
Section 203(2)(c): amended, on 14 April 2005, by section 16(2)(g) of the Building Amendment Act 2005 (2005 No 31).
Section 203(2)(d): amended, on 14 April 2005, by section 3(5) of the Building Amendment Act 2005 (2005 No 31).
Section 203(2)(d)(i): amended, on 14 April 2005, by section 16(2)(j) of the Building Amendment Act 2005 (2005 No 31).
Section 203(2)(d)(ii): amended, on 14 April 2005, by section 16(2)(c) of the Building Amendment Act 2005 (2005 No 31).
Section 203(2)(d)(ii): amended, on 14 April 2005, by section 16(2)(j) of the Building Amendment Act 2005 (2005 No 31).
Section 203(4): amended, on 14 April 2005, by section 16(2)(g) of the Building Amendment Act 2005 (2005 No 31).
Further powers of chief executive
204 Special powers of chief executive for monitoring performance of functions under this Act
(1)
The purpose of this section is to enable the chief executive to—
(a)
monitor the performance by territorial authorities, building consent authorities, or regional authorities of their functions under this Act; and
(aa)
decide whether to accept or decline a complaint received under section 200(1); and
(ab)
investigate a complaint under section 200 or investigate a matter on his or her own initiative under section 201; and
(b)
carry out the review of territorial authorities under section 276; and
(c)
assist the Minister in determining whether to exercise the Minister’s power under section 277 (which relates to the non-performance of functions by a territorial authority).
(2)
For the purpose of this section, the chief executive—
(a)
must have full access at all reasonable times to—
(i)
all relevant information that is in the possession or control of any territorial authority, building consent authority, or regional authority; and
(ii)
any place where that information is kept:
(b)
may require any territorial authority, building consent authority, or regional authority to do any of the following within a reasonable time specified by the chief executive in writing:
(i)
supply any relevant information:
(ii)
answer any question that relates to the performance of functions under this Act:
(iii)
answer any question that relates to a complaint received under section 200(1) or to a complaint investigated under section 200 or to a matter investigated under section 201:
(c)
may, by written notice, require any person having possession or control of any relevant information to supply to the chief executive, in a manner and within a reasonable time specified in the notice, all or any of the information:
(d)
may enter and re-enter any land or building, with any appliances, machinery, and equipment that are reasonably necessary, to—
(i)
carry out any surveys, inspections, investigations, reviews, tests, and measurements that are reasonably necessary for the purposes of this section; and
(ii)
generally do any other things that are reasonably necessary to enable the surveys, inspections, investigations, reviews, tests, and measurements to be carried out.
(3)
Subsection (2) does not—
(a)
limit any Act that imposes a prohibition or restriction on the availability of any information; or
(b)
authorise the chief executive, or any person acting on behalf of the chief executive, to enter any household unit being used as such without the permission of the occupier of the household unit.
(4)
In this section, relevant information—
(a)
means any information of any description that relates to—
(i)
the performance by a territorial authority, building consent authority, or regional authority of its functions under this Act; or
(ii)
a complaint received under section 200(1); or
(iii)
a complaint investigated under section 200 or a matter investigated under section 201; and
(b)
includes information that is kept in any form, including electronic form.
Compare: 1991 No 150 s 79(1), (2)
Section 204(1)(aa): inserted, on 28 November 2013, by section 52(1) of the Building Amendment Act 2013 (2013 No 100).
Section 204(1)(ab): inserted, on 28 November 2013, by section 52(1) of the Building Amendment Act 2013 (2013 No 100).
Section 204(2)(b): replaced, on 28 November 2013, by section 52(2) of the Building Amendment Act 2013 (2013 No 100).
Section 204(2)(c): replaced, on 28 November 2013, by section 52(2) of the Building Amendment Act 2013 (2013 No 100).
Section 204(2)(d): replaced, on 28 November 2013, by section 52(2) of the Building Amendment Act 2013 (2013 No 100).
Section 204(4): replaced, on 28 November 2013, by section 52(3) of the Building Amendment Act 2013 (2013 No 100).
205 Limits on power to enter land or building
The power to enter land or buildings under section 204(2) is subject to the following conditions:
(a)
the person entering must, if requested on entry or at any subsequent time, produce to the owner or occupier of that land or building the written warrant referred to in section 206:
(b)
entry may be made only at reasonable times.
Compare: 1991 No 150 s 79(3)
206 Chief executive must supply warrant
(1)
The chief executive must supply to a person authorised to enter land or buildings on behalf of the chief executive a written warrant that contains—
(a)
a reference to this section; and
(b)
the full name of the person; and
(c)
a statement of the powers conferred by this section.
(2)
A person who does not have a warrant supplied under this section must not represent himself or herself to be the holder of a warrant.
(3)
A person commits an offence if the person—
(a)
fails to comply with subsection (2); or
(b)
impersonates or falsely pretends to be a person named in a warrant supplied under this section.
(4)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Compare: 1991 No 150 s 79(4), (6)
Section 206(4): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
207 Duties of person supplied with warrant
An authorised person supplied with a warrant under section 206—
(a)
must, on the termination of his or her authority, surrender the warrant to the chief executive; and
(b)
must not purport to act under a warrant after the termination of his or her authority to act on behalf of the chief executive.
Compare: 1991 No 150 s 79(5)
207A Chief executive may require person to provide information or produce documents
(1)
If the chief executive considers it necessary or desirable for the purposes of taking enforcement action under this Act, the chief executive may, by written notice served on any person, require that person—
(a)
to provide to the chief executive, within the time and in the manner specified in the notice, any information or class of information specified in the notice; or
(b)
to produce to the chief executive, or to a person specified in the notice who is acting on behalf of the chief executive in accordance with the notice, any document or class of documents specified in the notice (within the time and in the manner specified in the notice); or
(c)
if necessary, to reproduce, or assist in reproducing, in usable form, information recorded or stored in any documents or classes of documents specified in the notice (within the time and in the manner specified in the notice).
(2)
Information provided in response to a notice under subsection (1)(a) must be provided in the manner specified in the notice.
(3)
If a document is produced in response to a notice under subsection (1), the chief executive, or the person to whom the document is produced, may—
(a)
inspect and make records of that document; and
(b)
take copies of the document or of extracts from the document.
Section 207A: inserted, on 28 November 2013, by section 53 of the Building Amendment Act 2013 (2013 No 100).
207B Offence of failing to comply with chief executive’s notice for provision of information
A person who fails to comply with a notice served on that person under section 207A commits an offence and is liable on conviction to a fine not exceeding $5,000.
Section 207B: inserted, on 28 November 2013, by section 53 of the Building Amendment Act 2013 (2013 No 100).
Appeal from chief executive’s decisions
208 Appeals to District Court
(1)
The persons referred to in subsection (2) may appeal to the District Court against—
(a)
a determination by the chief executive under section 188; or
(aa)
a direction as to costs given under section 190(2); or
(b)
the chief executive’s decision to—
(i)
decline to register the person as a building consent authority; or
(ii)
take any action referred to in section 203; or
(iii)
refuse to issue a national multiple-use approval.
(2)
The persons are,—
(a)
in the case of an appeal under subsection (1)(a) or (aa),—
(i)
the applicant for the determination; or
(ii)
any other party; or
(b)
in the case of an appeal under subsection (1)(b)(i), the applicant for registration; or
(c)
in the case of an appeal under subsection (1)(b)(ii), the building consent authority concerned; or
(d)
in the case of an appeal under subsection (1)(b)(iii), the applicant for the national multiple-use approval.
Section 208(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 208(1)(aa): replaced, on 13 March 2012, by section 56 of the Building Amendment Act 2012 (2012 No 23).
Section 208(1)(b)(i): amended, on 15 March 2008, by section 39(1) of the Building Amendment Act 2008 (2008 No 4).
Section 208(1)(b)(ii): amended, on 1 February 2010, by section 25(1) of the Building Amendment Act 2009 (2009 No 25).
Section 208(1)(b)(iii): inserted, on 1 February 2010, by section 25(1) of the Building Amendment Act 2009 (2009 No 25).
Section 208(2)(a): amended, on 7 July 2010, by section 5(2) of the Building Amendment Act 2010 (2010 No 50).
Section 208(2)(c): amended, on 1 February 2010, by section 25(2) of the Building Amendment Act 2009 (2009 No 25).
Section 208(2)(c): amended, on 15 March 2008, by section 39(2) of the Building Amendment Act 2008 (2008 No 4).
Section 208(2)(d): inserted, on 1 February 2010, by section 25(2) of the Building Amendment Act 2009 (2009 No 25).
209 Procedure for commencing appeal
(1)
An appeal under section 208 must be made—
(a)
by the appellant filing a notice of appeal with the Registrar of the District Court within 15 working days after,—
(i)
in the case of an appeal under section 208(1)(a), the date of the determination or the date on which the chief executive amends the determination by way of clarification under section 189; or
(ia)
in the case of an appeal under section 208(1)(aa), the date of the written direction given by the chief executive under section 190; or
(ii)
in the case of an appeal under section 208(1)(b), the date of the relevant decision of the chief executive; and
(b)
otherwise in accordance with the District Court Rules (except to any extent that those rules are inconsistent with this section).
(2)
The Registrar of the District Court may extend the time for making an appeal under section 208(1)(a) if the chief executive amends the determination by way of clarification under section 189.
Section 209(1)(a)(ia): inserted, on 7 July 2010, by section 6 of the Building Amendment Act 2010 (2010 No 50).
Section 209(1)(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
210 Steps after appeal is commenced
(1)
Either before or immediately after an appeal under section 208 is made, the appellant must serve a copy of the notice of appeal on—
(a)
the chief executive; and
(b)
in the case of an appeal under section 208(1)(a) or (aa), any other party.
(2)
A person served with the notice under subsection (1) who wishes to appear on the appeal must give notice of the person’s intention to appear to—
(a)
the appellant; and
(b)
the Registrar of the District Court; and
(c)
any other person to whom the appellant is required to serve notice under subsection (1).
(3)
The notice to appear under subsection (2) must be served within 10 working days after the party was served with the notice of appeal.
Section 210(1)(b): amended, on 7 July 2010, by section 7 of the Building Amendment Act 2010 (2010 No 50).
211 Powers of District Court on appeal
(1)
On the hearing of an appeal under section 208, the District Court may—
(a)
confirm, reverse, or modify the determination, direction, or decision of the chief executive; or
(b)
refer the matter back to the chief executive in accordance with the rules of court; or
(c)
make or give any determination, direction, or decision that the chief executive could have made or given in respect of the matter.
(2)
This section does not give the District Court power to review any part of the chief executive’s determination, direction, or decision other than the part against which the appellant has appealed.
(3)
Subject to any order of the District Court, every determination, direction, and decision of the chief executive against which an appeal is made continues in force and has effect according to its tenor pending the determination of the appeal.
(4)
The decision of the District Court on an appeal is final.
Section 211(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 211(1)(a): amended, on 7 July 2010, by section 8(1) of the Building Amendment Act 2010 (2010 No 50).
Section 211(1)(c): amended, on 7 July 2010, by section 8(2) of the Building Amendment Act 2010 (2010 No 50).
Section 211(2): amended, on 7 July 2010, by section 8(3) of the Building Amendment Act 2010 (2010 No 50).
Section 211(3): amended, on 7 July 2010, by section 8(4) of the Building Amendment Act 2010 (2010 No 50).
Subpart 2—Responsibilities of territorial authorities
Functions, duties, and powers of territorial authorities generally
212 Territorial authority must act as building consent authority for its district
(1)
A territorial authority must perform the functions of a building consent authority within its district, and for any coastal marine area (within the meaning of the Resource Management Act 1991) adjacent to its district that is not within the district of another territorial authority, in relation to—
(a)
any application for a building consent made to the territorial authority; and
(b)
any building consent granted under that application.
(2)
Subsection (1) does not apply in the case of dams.
(3)
A territorial authority must, in performing its functions as a building consent authority, provide to Fire and Emergency New Zealand a copy of every application for a building consent of a kind specified by notice under section 46.
(4)
Subsection (1)—
(a)
is subject to the territorial authority’s power to transfer, under section 233, any or all of its functions, duties, or powers under this Act to another territorial authority; and
(b)
does not apply to any function so transferred by the territorial authority.
Section 212 heading: amended, on 14 April 2005, by section 17(1) of the Building Amendment Act 2005 (2005 No 31).
Section 212(1): amended, on 14 April 2005, by section 17(2) of the Building Amendment Act 2005 (2005 No 31).
Section 212(3): replaced, on 1 February 2010, by section 26 of the Building Amendment Act 2009 (2009 No 25).
Section 212(3): amended, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).
213 Territorial authority may make arrangements relating to functions of building consent authority
(1)
A territorial authority may comply with section 212(1) by—
(a)
performing the functions of a building consent authority itself; or
(b)
making arrangements for 1 or more other building consent authorities to perform those functions on its behalf; or
(c)
a combination of the methods described in paragraphs (a) and (b).
(2)
An arrangement under subsection (1) may be made—
(a)
by contract; or
(b)
by any other means.
214 How liability apportioned if territorial authority makes arrangements relating to functions of building consent authority
If a territorial authority makes an arrangement under section 213(1) for another building consent authority to perform all or any of the territorial authority’s functions on its behalf,—
(a)
the territorial authority is liable for the acts and omissions of the other building consent authority when the other building consent authority is acting in that capacity; but
(b)
the territorial authority and building consent authority may apportion the liability—
(i)
as between themselves; and
(ii)
as they see fit.
215 Territorial authority must gain accreditation and be registered
A territorial authority must, for the purpose of ensuring that it complies with section 212(1),—
(a)
apply for, and gain, accreditation under this Part; and
(b)
apply to be, and be registered as, a building consent authority under this Part; and
(c)
maintain that accreditation and registration at all times.
216 Territorial authority must keep information about buildings
(1)
A territorial authority must keep reasonably available any information that is relevant to the administration of this Act to enable members of the public to—
(a)
be informed of their obligations under this Act; and
(b)
participate effectively under this Act.
(2)
The information that must be kept by a territorial authority under subsection (1) includes—
(a)
all plans and specifications submitted to the territorial authority in relation to an application for a building consent; and
(b)
any of the following information issued or received by the territorial authority in respect of a building:
(i)
project information memoranda:
(ii)
building consents:
(iii)
if applicable, the specified intended life of the building:
(iv)
code compliance certificates:
(iva)
records of work and certificates of work provided by licensed building practitioners under section 45(2) or 88(1)(a):
(ivb)
statutory declarations provided by owner-builders:
(ivc)
[Repealed](v)
compliance schedules:
(vi)
building warrants of fitness:
(vii)
energy work certificates relating to building work:
(viii)
any other records that relate to the information referred to in subparagraphs (i) to (vii); and
(c)
any orders issued by the District Court under section 126 in respect of a building; and
(d)
any records of any information on any land or building received by the territorial authority from a statutory authority; and
(e)
a summary of written complaints received by the territorial authority concerning alleged breaches of this Act or the former Act; and
(f)
information on how the territorial authority dealt with each of the complaints referred to in paragraph (e); and
(g)
all information provided to the territorial authority by a building consent authority under section 238.
(3)
A territorial authority must keep the information referred to in—
(a)
subsections (1) and (2)(a) to (d) and (g), at least for the life of the building to which the information relates; and
(b)
subsection (2)(e) and (f), at least for 10 years from when each complaint was received by the territorial authority.
Compare: 1991 No 150 s 27(1), (2)
Section 216(2)(b)(iva): inserted, on 15 March 2008, by section 40 of the Building Amendment Act 2008 (2008 No 4).
Section 216(2)(b)(iva): amended, on 13 March 2012, by section 57(1) of the Building Amendment Act 2012 (2012 No 23).
Section 216(2)(b)(ivb): inserted, on 13 March 2012, by section 57(2) of the Building Amendment Act 2012 (2012 No 23).
Section 216(2)(b)(ivc): repealed, on 1 July 2017, by section 31 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
217 Access to certain information kept by territorial authority
(1)
A person—
(a)
has a right to access the information referred to in section 216(1) and (2); and
(b)
must, on request, be given access to that information by the territorial authority during ordinary office hours.
(2)
The right conferred by subsection (1)—
(a)
is subject to the power of a territorial authority to withhold information under the provisions of the Local Government Official Information and Meetings Act 1987; and
(b)
does not extend to a plan or specification that is marked confidential by any or all of the following persons for the reason set out in subsection (3):
(i)
the person who submitted the plan or specification:
(ii)
the owner of the building to which the plan or specification relates:
(iii)
any subsequent owner of that building; and
(c)
is subject to any prescribed limits.
(3)
The reason referred to in subsection (2)(b) is any requirement of the owner of the building relating to the security of the building.
(4)
A territorial authority—
(a)
must make photocopying facilities available to persons who wish to access information under subsection (1); and
(b)
may charge a reasonable fee for the use of those facilities.
(5)
Subsection (4) is subject to section 44A of the Local Government Official Information and Meetings Act 1987.
Compare: 1991 No 150 s 27(3), (4)
Section 217(2)(a): replaced, on 28 November 2013, by section 54 of the Building Amendment Act 2013 (2013 No 100).
218 Territorial authority must provide information to chief executive for purpose of facilitating performance of chief executive’s function under sections 169 and 169A
(1)
For the purpose of facilitating the performance of the chief executive’s function under section 169 (which relates to monitoring current and emerging trends in building design, etc) and section 169A (which relates to monitoring the application and effectiveness of subpart 6A of Part 2 (earthquake-prone buildings)), a territorial authority must provide information to the chief executive in accordance with the regulations.
(2)
However, a territorial authority is only required to provide information under subsection (1) about its functions, duties, and powers under this Act.
Section 218 heading: amended, on 1 July 2017, by section 32(1) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 218(1): amended, on 1 July 2017, by section 32(2) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
219 Territorial authority may impose fee or charge and must collect levy
(1)
A territorial authority—
(a)
may impose a fee or charge (or both)—
(i)
in relation to a building consent; and
(ii)
for the performance of any other function or service under this Act; and
(b)
must collect the levy which an applicant is liable to pay to the chief executive under section 53.
(2)
If a fee, charge, or levy is payable to a territorial authority for the performance of a function or service under this Act, the territorial authority may refuse to perform the function or service, unless the fee, charge, or levy is paid.
Section 219(1)(a): amended, on 13 March 2012, by section 59 of the Building Amendment Act 2012 (2012 No 23).
Power of territorial authority to carry out building work on default
220 Territorial authority may carry out building work on default
(1)
This section applies if—
(a)
a person is required, under this Act, by a building consent authority, territorial authority, or regional authority to carry out any building work on, or in connection with, any building; and
(b)
either—
(i)
that person, after being given notice of the requirement, fails to commence to comply with the notice within the time stated in the notice or, if the time is not so stated, within a reasonable time; or
(ii)
that person, after a certificate from any officer of the territorial authority that the work is of an urgent nature is communicated to him or her, defaults for 24 hours from the time of that communication; and
(c)
that person does not immediately proceed with the work with all reasonable speed.
(2)
The territorial authority may apply to the District Court for an order authorising the territorial authority to carry out building work.
(3)
Before the territorial authority applies to the District Court under subsection (2), the territorial authority must give the owner of the building not less than 10 days’ notice of its intention to do so.
(4)
If a territorial authority carries out building work under the authority of an order made under subsection (2),—
(a)
the owner of the building is liable for the costs of the work; and
(b)
the territorial authority may recover those costs from the owner; and
(c)
the amount recoverable by the territorial authority becomes a charge on the land on which the work was carried out.
(5)
Any building work required to be carried out under subsection (2) may include the demolition of all or part of a building.
Compare: 1991 No 150 s 74
Section 220(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 220(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
221 Recovery of costs when territorial authority carries out work on default
(1)
If a territorial authority is entitled under this Act to recover the costs of carrying out any building work from the owner of any building or land,—
(a)
the money payable becomes a charge on the land; and
(b)
the provisions of the Local Government (Rating) Act 2002 and the Local Government Act 2002 apply accordingly.
(2)
The territorial authority—
(a)
may destroy, sell, or otherwise dispose of any materials that result from the carrying out of any work by the territorial authority; and
(b)
in the case of the sale of any materials,—
(i)
must apply the proceeds of the sale towards payment of the amount payable to the territorial authority under subsection (1); and
(ii)
must pay the surplus (if any) to the owner.
(3)
If the territorial authority exercises the powers conferred by this section, the exercise of those powers does not relieve a person from any penalty for failure to comply with the requirements of a notice under this Act.
(4)
Any building work that is carried out, or is to be carried out, by a territorial authority under this section is declared to be a public work for the purposes of the Public Works Act 1981.
Compare: 1991 No 150 s 75
Powers of territorial authority to carry out inspections and enter land
222 Inspections by territorial authority
(1)
An authorised officer is entitled, at all times during normal working hours or while building work is being carried out,—
(a)
to inspect—
(i)
land on which building work is or is proposed to be carried out; and
(ii)
building work that has been or is being carried out on or off the building site; and
(iii)
any building; and
(iv)
any residential pool (or the immediate pool area); and
(b)
to enter premises for—
(i)
the purpose of inspecting the building; or
(ii)
the purpose of determining whether the building is dangerous or insanitary within the meaning of subpart 6 of Part 2; or
(iii)
the purpose of determining whether the building or a part of the building is earthquake prone or potentially earthquake prone within the meaning of subpart 6A of Part 2; and
(c)
to enter premises for the purpose of determining whether section 162C is being complied with.
(2)
An authorised officer must, on entering private land under subsection (1), and when requested at any subsequent time, produce to the occupier of the land written evidence of the authorised officer’s identity.
(3)
The powers conferred by this section are in addition to, and do not limit, the powers conferred by section 173 of the Local Government Act 2002.
(4)
In this section and sections 223 to 228,—
authorised officer means an officer of a territorial authority to whom either or both of the following applies:
(a)
he or she is authorised to carry out inspections; or
(b)
he or she is authorised to enter land—
(i)
by this Act; or
(ii)
by an order of the District Court made under section 227
inspection means the taking of all reasonable steps—
(a)
to determine whether—
(i)
building work is being carried out without a building consent; or
(ii)
building work is being carried out in accordance with a building consent; or
(iia)
section 162C is being complied with; or
(iii)
a notice to fix has been complied with:
(b)
to ensure that,—
(i)
in relation to buildings for which a compliance schedule is issued, the inspection, maintenance, and reporting procedures stated in the compliance schedule are being complied with; or
(ii)
in relation to buildings that have specified systems, the requirement for a compliance schedule is being complied with:
(c)
to enable a territorial authority to—
(i)
identify dangerous, earthquake-prone, or insanitary buildings within its district; and
(ii)
carry out its functions or duties in relation to those buildings:
(d)
to satisfy a territorial authority as to whether a certificate of acceptance for building work should be issued under section 96.
Compare: 1991 No 150 s 76(1), (2), (3), (11)
Section 222(1)(a)(iv): inserted, on 1 January 2017, by section 15(1) of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 222(1)(b)(ii): replaced, on 1 July 2017, by section 33 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 222(1)(b)(iii): inserted, on 1 July 2017, by section 33 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 222(1)(c): inserted, on 1 January 2017, by section 15(3) of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 222(4) inspection paragraph (a)(iia): inserted, on 1 January 2017, by section 15(4) of the Building (Pools) Amendment Act 2016 (2016 No 71).
223 Duty to assist inspections
(1)
The persons specified in subsection (2) must give all reasonable assistance to enable an authorised officer to inspect all or part of a building or building work.
(2)
The persons are—
(a)
the owner of the building; and
(b)
an occupier of the building; and
(c)
any person engaged in the building work, including an owner-builder and any unpaid friend or family member of the owner-builder engaged to assist him or her in the building work.
Compare: 1991 No 150 s 76(4)
Section 223(2)(c): replaced, on 13 March 2012, by section 61 of the Building Amendment Act 2012 (2012 No 23).
224 Warrant must be produced
An authorised officer must, on entering private land and when requested at any subsequent time, produce to the occupier of the building a written warrant issued under section 174 of the Local Government Act 2002.
Compare: 1991 No 150 s 76(5)
225 Offence to impersonate authorised officer
(1)
A person commits an offence if the person impersonates or falsely pretends to be an authorised officer named in a warrant referred to in section 224.
(2)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Compare: 1991 No 150 s 80(h)
Section 225(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
226 Restriction on entry to household unit
(1)
Despite section 222, an authorised officer may not enter a household unit that is being used as a household unit without—
(a)
the consent of the occupier of the household unit; or
(b)
an order of the District Court made under section 227.
(2)
Subsection (1) does not limit the power conferred by section 173 of the Local Government Act 2002 (which allows a local authority entry into occupied land or buildings without prior notice in cases of emergency).
Compare: 1991 No 150 s 76(7)
Section 226(1)(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
227 District Court may authorise entry to household unit
(1)
The District Court, on the application of an authorised officer, may make an order authorising the officer to enter a household unit.
(2)
The court may make the order under subsection (1)—
(a)
only if it is satisfied that—
(i)
the proposed entry is necessary for the purposes of section 222; and
(ii)
the authorised officer has taken all reasonable steps to obtain the consent of the occupier to the proposed entry; and
(b)
subject to any conditions that it thinks fit.
Compare: 1991 No 150 s 76(8), (9)
Section 227(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
228 Authorised officer must give notice to occupier of household unit
An authorised officer must,—
(a)
if he or she intends to apply for an order under section 227, give the occupier of the household unit to which that application relates not less than 10 days’ written notice of his or her intention to do so; and
(b)
before he or she enters a household unit under the authority of an order under section 227, serve the order on the occupier of the household unit to which that order relates.
Compare: 1991 No 150 s 76(10)
Enforcement powers of territorial authority[Repealed]
Heading: repealed, on 28 November 2013, by section 55 of the Building Amendment Act 2013 (2013 No 100).
229 Authorisation of enforcement officers
[Repealed]Section 229: repealed, on 28 November 2013, by section 55 of the Building Amendment Act 2013 (2013 No 100).
230 Conditions of authorisation
[Repealed]Section 230: repealed, on 28 November 2013, by section 55 of the Building Amendment Act 2013 (2013 No 100).
231 Offence to impersonate enforcement officer
[Repealed]Section 231: repealed, on 28 November 2013, by section 55 of the Building Amendment Act 2013 (2013 No 100).
Delegation of power
232 Delegation of powers by territorial authority and its officers
Clause 32 of Schedule 7 of the Local Government Act 2002 applies, with all necessary modifications, in respect of powers conferred by this Act on a territorial authority and its officers.
Compare: 1991 No 150 s 78
Transfer of functions, duties, or powers of territorial authority
233 Transfer of functions, duties, or powers of territorial authority
A territorial authority may transfer 1 or more of its functions, duties, or powers under this Act to another territorial authority, except the power of transfer conferred by this section.
Compare: 1991 No 150 s 25(1), (2)
234 Procedure for transfer
If a territorial authority proposes to transfer any of its functions, duties, or powers under section 233, the territorial authority must—
(a)
use the special consultative procedure in section 83 of the Local Government Act 2002; and
(b)
serve notice on the Minister of its proposal to transfer the function, duty, or power; and
(c)
agree with the other territorial authority to whom the function, duty, or power is to be transferred that the transfer is desirable on either or both of the following grounds:
(i)
efficiency:
(ii)
technical or special capability, or expertise.
Compare: 1991 No 150 s 25(3)
235 Territorial authorities may agree on terms of transfer
A territorial authority from whom functions, duties, or powers are to be transferred under section 233 and a territorial authority to whom those functions, duties, or powers are to be transferred—
(a)
must enter into an agreement in respect of the transfer; and
(b)
may agree on the terms and conditions of the transfer.
Compare: 1991 No 150 s 25(4)
236 Effect of transfer
(1)
A territorial authority to whom a function, duty, or power is transferred under section 233—
(a)
may perform the function or duty, or exercise the power, as if the function or duty were imposed, or the power were conferred, on that territorial authority under this Act; and
(b)
may, unless the agreement in respect of the transfer provides otherwise, cancel, at any time, the transfer in accordance with that agreement.
(2)
A territorial authority from whom a function, duty, or power is transferred may, at any time, change or revoke the transfer by written notice to the other territorial authority concerned.
Compare: 1991 No 150 s 25(5), (6), (7)
Subpart 3—Responsibilities of building consent authority that is not territorial authority or regional authority
Subpart 3 heading: amended, on 15 March 2008, by section 41 of the Building Amendment Act 2008 (2008 No 4).
237 Application of subpart
This subpart applies to a building consent authority that—
(a)
is registered under section 273; and
(b)
provides services as a building consent authority in a district; but
(c)
is not—
(i)
the territorial authority for the district, or another territorial authority to which a function, duty, or power is transferred under section 233; or
(ii)
the regional authority for the region, or another regional authority to which a function, duty, or power is transferred under section 244.
Section 237(c): replaced, on 14 April 2005, by section 3(7) of the Building Amendment Act 2005 (2005 No 31).
238 Duties of building consent authority
(1)
A building consent authority must, in performing its functions under Part 2,—
(a)
obtain a project information memorandum before granting a building consent; and
(b)
provide to Fire and Emergency New Zealand a copy of every application for a building consent of a kind specified by notice under section 46; and
(c)
provide to the territorial authority for the relevant district copies of the information referred to in subsection (2).
(2)
The information is—
(a)
plans and specifications submitted to the building consent authority in relation to an application for a building consent; and
(b)
the following information issued or received by the building consent authority in respect of a building:
(i)
project information memoranda:
(ii)
building consents:
(iii)
code compliance certificates:
(iv)
compliance schedules:
(iva)
if applicable, the intended life of the building:
(ivb)
statutory declarations provided by an owner-builder:
(ivc)
records of work and certificates of work provided by licensed building practitioners under section 45(2) or 88(1)(a):
(v)
building warrants of fitness:
(vi)
energy work certificates:
(vii)
notices to fix:
(viii)
any other records that relate to the information referred to in subparagraphs (i) to (vii); and
(c)
records of any information on any land or building received by the building consent authority from a statutory authority; and
(d)
details about any levy collected under section 53; and
(e)
the following information about the building consent authority:
(i)
the name and contact address of the building consent authority:
(ii)
the scope of accreditation of the building consent authority:
(iii)
whether the building consent authority has adequate means to cover any civil liabilities that may arise in the performance of its functions, and, if so, what those means are.
(3)
A building consent authority must provide the copies of the information to the territorial authority for the relevant district within 5 working days after the building consent authority issues or receives the information.
(4)
A building consent authority commits an offence if it fails to comply with subsection (3).
(5)
A building consent authority that commits an offence under this section is liable on conviction to a fine not exceeding $5,000 and, in the case of a continuing offence, to a further fine not exceeding $500 for every day or part of a day during which the offence has continued.
Section 238(1)(b): amended, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17).
Section 238(2)(b)(iva): inserted, on 13 March 2012, by section 62(2) of the Building Amendment Act 2012 (2012 No 23).
Section 238(2)(b)(ivb): inserted, on 13 March 2012, by section 62(2) of the Building Amendment Act 2012 (2012 No 23).
Section 238(2)(b)(ivc): inserted, on 13 March 2012, by section 62(2) of the Building Amendment Act 2012 (2012 No 23).
Section 238(5): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
239 Building consent authority must provide information to chief executive
A building consent authority must provide information to the chief executive in accordance with the regulations.
240 Building consent authority may impose fee or charge and must collect levy
(1)
A building consent authority—
(a)
may impose a fee or charge (or both) payable by a member of the public—
(i)
in relation to a building consent; and
(ii)
for the performance of any other function or service under this Act; and
(b)
must collect the levy for which an applicant is liable to pay to the chief executive under section 53.
(2)
If a fee, charge, or levy is payable to a building consent authority for the performance of a function or service under this Act, the building consent authority may refuse to perform the function or service, unless the fee, charge, or levy is paid.
(3)
A failure by a person to pay a fee, charge, or levy does not affect the duty of a building consent authority under section 238 to provide copies of certain information to the territorial authority.
Section 240(1)(a): amended, on 13 March 2012, by section 63 of the Building Amendment Act 2012 (2012 No 23).
Subpart 4—Responsibilities of regional authorities
Functions, duties, and powers of regional authorities generally
241 Regional authority must gain accreditation and be registered
(1)
A regional authority must, for the purpose of ensuring that it performs the function of a building consent authority in relation to dams,—
(a)
apply for, and gain, accreditation under this Part; and
(b)
apply to be, and be registered as, a building consent authority under this Part; and
(c)
maintain that accreditation and registration at all times.
(2)
Subsection (1)—
(a)
is subject to the regional authority’s power under section 244 to transfer any of its functions under this Act to another regional authority; and
(b)
does not apply to any function it transfers to another regional authority.
Section 241(2): inserted, on 14 April 2005, by section 18 of the Building Amendment Act 2005 (2005 No 31).
242 Regional authority must provide information to chief executive
A regional authority must provide information to the chief executive in accordance with the regulations.
243 Regional authorities may impose fee or charge and recover costs, and must collect levy
(1)
A regional authority—
(a)
may impose a fee or charge (or both)—
(i)
for issuing a project information memorandum under section 34; or
(ii)
for performing any other function or service under this Act; and
(b)
may recover its costs from the owner if it carries out building work under section 156; and
(c)
must collect the levy an applicant is liable to pay to the chief executive under section 53.
(2)
If a fee or charge is payable to a regional authority for the performance of a function or service under this Act, the regional authority may decline to perform the function or service, unless the fee or charge is paid.
Section 243 heading: amended, on 14 April 2005, by section 19(1) of the Building Amendment Act 2005 (2005 No 31).
Section 243(1): replaced, on 14 April 2005, by section 19(2) of the Building Amendment Act 2005 (2005 No 31).
Section 243(1)(a): amended, on 13 March 2012, by section 64 of the Building Amendment Act 2012 (2012 No 23).
Transfer of functions, duties, and powers of regional authority
244 Transfer of functions, duties, and powers of regional authority
A regional authority may transfer 1 or more of its functions, duties, or powers under this Act to another regional authority, except the power of transfer conferred by this section.
245 Procedure for transfer
If a regional authority proposes to transfer any of its functions, duties, or powers under section 244, the regional authority must—
(a)
use the special consultative procedure in section 83 of the Local Government Act 2002; and
(b)
serve notice on the Minister of its proposal to transfer the function, duty, or power; and
(c)
agree with the other regional authority to whom the function, duty, or power is to be transferred that the transfer is desirable on either or both of the following grounds:
(i)
efficiency:
(ii)
technical or special capability, or expertise.
246 Regional authorities may agree on terms of transfer
A regional authority from whom functions, duties, or powers are to be transferred under section 244 and a regional authority to whom those functions, duties, or powers are to be transferred—
(a)
must enter into an agreement in respect of the transfer; and
(b)
may agree on the terms and conditions of the transfer.
247 Effect of transfer
(1)
A regional authority to whom a function, duty, or power is transferred under section 244—
(a)
may perform the function or duty, or exercise the power, as if the function or duty were imposed, or the power were conferred, on that regional authority under this Act; and
(b)
may, unless the agreement in respect of the transfer provides otherwise, cancel, at any time, the transfer in accordance with that agreement.
(2)
A regional authority from whom a function, duty, or power is transferred may, at any time, change or revoke the transfer by written notice to the other regional authority concerned.
Subpart 5—Responsibilities of building consent accreditation body
Appointment of building consent accreditation body
248 Chief executive may appoint building consent accreditation body
(1)
The chief executive may—
(a)
appoint a person as a building consent accreditation body; and
(b)
revoke the appointment at any time.
(2)
A reference in this subpart to a building consent accreditation body is a reference to—
(a)
the person appointed under subsection (1); or
(b)
if no person is appointed, the chief executive.
Requirements for building consent accreditation body
249 Requirements for building consent accreditation body
The chief executive must, by notice in the Gazette, specify—
(a)
the minimum frequency of audits that the building consent accreditation body must conduct on accredited building consent authorities (which must be at least once every 3 years); and
(b)
any other matters the chief executive considers necessary or appropriate.
Section 249(a): amended, on 14 April 2005, by section 16(2)(n) of the Building Amendment Act 2005 (2005 No 31).
Audit fees
Heading: inserted, on 15 March 2008, by section 42 of the Building Amendment Act 2008 (2008 No 4).
249A Fees for audits
A building consent accreditation body may charge an accredited building consent authority the prescribed fee (if any) for an audit conducted under section 249(a) by the building consent accreditation body on the building consent authority.
Section 249A: inserted, on 15 March 2008, by section 42 of the Building Amendment Act 2008 (2008 No 4).
Accreditation of building consent authorities or regional authorities
250 Accreditation
The building consent accreditation body may, on the application of a person made in accordance with section 253, and on payment by the person of the prescribed fee (if any), accredit that person to perform the functions of a building consent authority under this Part and Part 2.
Compare: 1991 No 150 s 51
Section 250: amended, on 15 March 2008, by section 43 of the Building Amendment Act 2008 (2008 No 4).
Section 250: amended, on 14 April 2005, by section 16(2)(o) of the Building Amendment Act 2005 (2005 No 31).
251 Criteria for accreditation
Before granting accreditation, the building consent accreditation body must be satisfied that the applicant meets the prescribed criteria and standards for accreditation.
252 Scope of accreditation of building consent authority that is not territorial authority
(1)
This section applies to a building consent authority that is not a territorial authority or a regional authority.
(2)
The building consent accreditation body must, before granting accreditation to a building consent authority to whom this section applies, determine the scope of accreditation having regard to the prescribed criteria and standards for accreditation.
(3)
The scope of accreditation relates to 1 or more types of building in relation to which the building consent authority concerned is authorised to perform functions under this Part and Part 2.
(4)
An accredited building consent authority may, at any time, request the building consent accreditation body to change the scope of its accreditation.
Section 252(1): amended, on 14 April 2005, by section 3(5) of the Building Amendment Act 2005 (2005 No 31).
253 Application for accreditation
An application for accreditation under section 250 must—
(a)
be made in writing; and
(b)
be given in the prescribed manner (if any); and
(c)
contain the prescribed information (if any).
(d)
[Repealed]Section 253(c): amended, on 15 March 2008, by section 44(1) of the Building Amendment Act 2008 (2008 No 4).
Section 253(d): repealed, on 15 March 2008, by section 44(2) of the Building Amendment Act 2008 (2008 No 4).
254 Revocation of accreditation
(1)
An accreditation under section 250 may be revoked, or the scope of accreditation may be amended, by—
(a)
the building consent accreditation body; or
(b)
the chief executive.
(2)
An accreditation may be revoked only if the building consent accreditation body or the chief executive—
(a)
is satisfied that the building consent authority no longer meets the prescribed criteria and standards for accreditation; and
(b)
has first given the building consent authority concerned a reasonable opportunity to be heard.
(3)
Despite subsection (2)(a), the building consent accreditation body or the chief executive must not revoke the accreditation of a building consent authority if—
(a)
the prescribed criteria and standards for accreditation are amended; and
(b)
the building consent authority no longer meets those criteria and standards solely as a result of the amendments.
(4)
The limit in subsection (3) applies only during the period of 3 months after the date on which the amendments come into force.
Section 254(2)(a): amended, on 14 April 2005, by section 16(2)(p) of the Building Amendment Act 2005 (2005 No 31).
Section 254(2)(b): amended, on 14 April 2005, by section 16(2)(p) of the Building Amendment Act 2005 (2005 No 31).
Section 254(2)(b): amended, on 14 April 2005, by section 16(2)(q) of the Building Amendment Act 2005 (2005 No 31).
Section 254(3): amended, on 14 April 2005, by section 16(2)(o) of the Building Amendment Act 2005 (2005 No 31).
Section 254(3)(b): amended, on 14 April 2005, by section 16(2)(q) of the Building Amendment Act 2005 (2005 No 31).
255 Building consent accreditation body must notify chief executive of grant and revocation of accreditation
(1)
The building consent accreditation body must notify the chief executive when it grants or revokes an accreditation of a building consent authority.
(2)
The notification must be given—
(a)
in the manner notified by the chief executive to the building consent accreditation body from time to time; and
(b)
within 7 days after the grant or revocation to which it relates.
Section 255(1): amended, on 14 April 2005, by section 16(2)(o) of the Building Amendment Act 2005 (2005 No 31).
Subpart 6—Responsibilities of dam owner accreditation body
Appointment of dam owner accreditation body
256 Chief executive may appoint dam owner accreditation body
(1)
The chief executive may—
(a)
appoint a person as a dam owner accreditation body; and
(b)
revoke the appointment at any time.
(2)
A reference in this subpart to a dam owner accreditation body is a reference to—
(a)
a person appointed under subsection (1); or
(b)
if no person is appointed, the chief executive.
Requirements for dam owner accreditation body
257 Requirements for dam owner accreditation body
The chief executive must, by notice in the Gazette, specify—
(a)
the minimum frequency of audits that the dam owner accreditation body must conduct on accredited dam owners; and
(b)
any other matters that the chief executive considers necessary or appropriate.
Audit fees
Heading: inserted, on 15 March 2008, by section 45 of the Building Amendment Act 2008 (2008 No 4).
257A Fees for audits
A dam owner accreditation body may charge an accredited dam owner the prescribed fee (if any) for an audit conducted under section 257(a) by the dam owner accreditation body on the accredited dam owner.
Section 257A: inserted, on 15 March 2008, by section 45 of the Building Amendment Act 2008 (2008 No 4).
Accreditation of dam owners
258 Accreditation
(1)
The dam owner accreditation body may, on the application of an owner of a dam made in accordance with subsection (3), and on payment by the person of the prescribed fee (if any), accredit that person under this subpart.
(2)
Before granting accreditation, the dam owner accreditation body must be satisfied that the applicant meets the prescribed criteria and standards.
(3)
An application for accreditation under subsection (1) must—
(a)
be made in writing; and
(b)
be given in the prescribed manner (if any); and
(c)
contain the prescribed information (if any).
(d)
[Repealed]Section 258(1): amended, on 15 March 2008, by section 46(1) of the Building Amendment Act 2008 (2008 No 4).
Section 258(3)(c): amended, on 15 March 2008, by section 46(2) of the Building Amendment Act 2008 (2008 No 4).
Section 258(3)(d): repealed, on 15 March 2008, by section 46(3) of the Building Amendment Act 2008 (2008 No 4).
259 Revocation of accreditation
(1)
An accreditation under section 258(1) may be revoked by—
(a)
the dam owner accreditation body; or
(b)
the chief executive.
(2)
An accreditation may be revoked only if the dam owner accreditation body or the chief executive—
(a)
is satisfied that the accredited dam owner no longer meets the prescribed criteria and standards; and
(b)
has first given the accredited dam owner concerned a reasonable opportunity to be heard.
(3)
Despite subsection (2)(a), the dam owner accreditation body or the chief executive must not revoke the accreditation of a dam owner if—
(a)
the prescribed criteria and standards for accreditation are amended; and
(b)
the accredited dam owner no longer meets those criteria and standards solely as a result of the amendments.
(4)
The limit in subsection (3) applies only during the period of 3 months after the date on which the amendments come into force.
260 Dam owner accreditation body must notify chief executive of grant and revocation of accreditation
(1)
The dam owner accreditation body must notify the chief executive when it grants or revokes an accreditation of a dam owner.
(2)
The notification must be given—
(a)
in the manner notified by the chief executive to the dam owner accreditation body from time to time; and
(b)
within 7 days after the grant or revocation to which it relates.
(3)
The chief executive must, on receiving notification under subsection (1),—
(a)
in the case of a notice that accreditation has been granted, enter the name of the dam owner on the register kept under section 273(1)(c); or
(b)
in the case of a notice that accreditation has been revoked, remove the name of the dam owner from that register.
Subpart 7—Responsibilities of product certification accreditation body
Appointment of product certification accreditation body
261 Chief executive may appoint product certification accreditation body
(1)
The chief executive may—
(a)
appoint a person as a product certification accreditation body; and
(b)
revoke the appointment at any time.
(2)
A reference in this subpart to a product certification accreditation body is a reference to—
(a)
the person appointed under subsection (1); or
(b)
if no person is appointed, the chief executive.
Requirements for product certification accreditation body
262 Requirements for product certification accreditation body
(1)
The chief executive must, by notice in the Gazette, specify—
(a)
the minimum frequency of audits that the product certification accreditation body must conduct on accredited product certification bodies; and
(b)
any other matters that the chief executive considers necessary or appropriate.
(2)
The chief executive may, by notice in the Gazette, specify certifications of building methods or products provided by persons outside New Zealand that are to be treated as product certifications for the purposes of this subpart.
(3)
Subsection (2) applies only if the chief executive is satisfied that the building methods and products concerned meet the prescribed criteria and standards for certification.
Audit fees
Heading: inserted, on 15 March 2008, by section 47 of the Building Amendment Act 2008 (2008 No 4).
262A Fees for audits
A product certification accreditation body may charge an accredited product certification body the prescribed fee (if any) for an audit conducted under section 262(1)(a) by the product certification accreditation body on the accredited product certification body.
Section 262A: inserted, on 15 March 2008, by section 47 of the Building Amendment Act 2008 (2008 No 4).
Accreditation of product certification bodies
263 Accreditation
The product certification accreditation body may, on the application of a person or body made in accordance with section 265, and on payment by the person or body of the prescribed fee (if any), accredit that person or body to perform the functions of a product certification body under this subpart.
Section 263: amended, on 15 March 2008, by section 48 of the Building Amendment Act 2008 (2008 No 4).
264 Criteria for accreditation
Before granting accreditation, the product certification accreditation body must be satisfied that the applicant—
(a)
has the necessary ability to perform all or any of the functions specified in this subpart competently, impartially, consistently, transparently, and in an accountable manner, having regard to—
(i)
the technical competence of the applicant to perform the functions for which the applicant wishes to be accredited; and
(ii)
the applicant’s systems, and in particular whether those systems will allow the applicant to perform the functions for which the applicant wishes to be accredited; and
(b)
complies with the prescribed criteria and standards for accreditation.
265 Application for accreditation
An application for accreditation under section 263 must—
(a)
be made in writing; and
(b)
be given in the prescribed manner (if any); and
(c)
contain the prescribed information (if any).
(d)
[Repealed]Section 265(c): amended, on 15 March 2008, by section 49(1) of the Building Amendment Act 2008 (2008 No 4).
Section 265(d): repealed, on 15 March 2008, by section 49(2) of the Building Amendment Act 2008 (2008 No 4).
266 Suspension or revocation of accreditation
(1)
A product certification accreditation body or the chief executive may, at any time, suspend or revoke the accreditation under section 263 of a product certification body, if the product certification accreditation body or chief executive—
(a)
is satisfied that the product certification body no longer meets the prescribed criteria and standards for accreditation; and
(b)
has first given the product certification body concerned a reasonable opportunity to be heard.
(2)
A product certification accreditation body that, or chief executive who, suspends the accreditation of a product certification body must—
(a)
give the product certification body a reasonable period to meet the criteria and standards prescribed for accreditation; and
(b)
lift the suspension if it or he or she is satisfied that the product certification body meets those standards and criteria within that period.
(3)
A product certification accreditation body or the chief executive may revoke the accreditation of a product certification body at the expiry of the period given in subsection (2), if the product certification body has not met the criteria and standards prescribed for accreditation within that period.
(4)
Despite subsections (1) and (3), the product certification accreditation body or the chief executive must not suspend or revoke the accreditation of a product certification body if—
(a)
the prescribed criteria and standards for accreditation are amended; and
(b)
the product certification body no longer meets those criteria and standards solely as a result of the amendments.
(5)
The limit in subsection (4) applies only during the period of 3 months after the date on which the amendments come into force.
Section 266: replaced, on 15 March 2008, by section 50 of the Building Amendment Act 2008 (2008 No 4).
267 Product certification accreditation body must notify chief executive of grant, suspension, lifting of suspension, or revocation of accreditation
(1)
A product certification accreditation body must notify the chief executive when it grants, suspends, lifts the suspension of, or revokes an accreditation of a product certification body.
(2)
The notification must be given—
(a)
in the manner notified by the chief executive to the product certification accreditation body from time to time; and
(b)
within 7 days after the grant, suspension, lifting of suspension, or revocation to which it relates.
Section 267 heading: amended, on 15 March 2008, by section 51(1) of the Building Amendment Act 2008 (2008 No 4).
Section 267(1): amended, on 15 March 2008, by section 51(2) of the Building Amendment Act 2008 (2008 No 4).
Section 267(2)(b): amended, on 15 March 2008, by section 51(3) of the Building Amendment Act 2008 (2008 No 4).
Certification of building methods or products
268 Application for product certificate
(1)
A proprietor of a building method or product may apply to a product certification body for certification of that building method or product.
(2)
The application must contain the information that is specified from time to time by the product certification body.
Compare: 1991 No 150 s 58(1)
269 Issue of product certificate
(1)
A product certification body must issue a product certificate if it is satisfied that a building method or product that is the subject of an application under section 268 meets the prescribed criteria and standards for certification.
(2)
A product certificate must state whether there are any matters that should be taken into account in the use or application of the building method or product, and if so, what those matters are.
270 Annual review of product certificate
(1)
A product certification body must, on an annual basis, review a product certificate by conducting an audit of the building method or product to which the certificate relates.
(2)
The audit must assess whether the building method or product continues to meet the prescribed criteria and standards for certification.
(3)
The proprietor of the building method or product must provide the product certification body with any information or matter that the product certification body requires for the purposes of the audit.
(4)
A person commits an offence if the person fails to provide any information or matter that the product certification body requires under subsection (3).
(5)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Section 270(5): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
271 Suspension or revocation of product certificate
(1)
A product certification body that performed the certification of a building method or product, or the chief executive, may, at any time, suspend or revoke that product certificate if the product certification body or chief executive has first given the proprietor of the building method or product a reasonable opportunity to be heard, and the product certification body or chief executive is satisfied that—
(a)
the certificate has been obtained by fraud, misrepresentation, or concealment of facts; or
(b)
the building method or product no longer meets the prescribed criteria and standards for certification (whether this becomes apparent as a result of an annual review of a product certificate under section 270 or otherwise); or
(c)
any certification, or similar authorisation issued or granted in respect of that building method or product, has been revoked or cancelled for any reason; or
(d)
the building code no longer applies to the building method or product because of an amendment to the code.
(2)
A product certification body that, or chief executive who, suspends a product certificate must—
(a)
give the proprietor of the building method or product a reasonable period to rectify the matter that led to the suspension of the product certificate; and
(b)
lift the suspension if it or he or she is satisfied that the proprietor of the building method or product has rectified the matter within that period.
(3)
A product certification body or the chief executive may revoke the product certificate at the expiry of the period given in subsection (2) if, within that period, the proprietor of the building method or product has not rectified the matter that led to the suspension of the product certificate.
(4)
Despite subsections (1) and (3), the product certification body or the chief executive must not suspend or revoke a product certificate if—
(a)
the prescribed criteria and standards for certification are amended; and
(b)
the building method or product to which the certificate relates no longer meets those criteria and standards solely as a result of the amendments.
(5)
The limit in subsection (4) applies only during the period of 3 months after the date on which the amendments come into force.
Section 271: replaced, on 15 March 2008, by section 52 of the Building Amendment Act 2008 (2008 No 4).
Section 271(2)(b): amended, on 7 July 2010, by section 9 of the Building Amendment Act 2010 (2010 No 50).
272 Product certification body must notify chief executive of issue, suspension, lifting of suspension, and revocation of certificate
(1)
A product certification body must notify the chief executive when it issues, suspends, lifts the suspension of, or revokes a certificate under this subpart.
(2)
The notification must be given—
(a)
in the manner notified from time to time by the chief executive to the product certification body; and
(b)
within 7 days after the issue, suspension, lifting of suspension, or revocation to which it relates.
Section 272 heading: amended, on 15 March 2008, by section 53(1) of the Building Amendment Act 2008 (2008 No 4).
Section 272(1): amended, on 15 March 2008, by section 53(2) of the Building Amendment Act 2008 (2008 No 4).
Section 272(2)(b): amended, on 15 March 2008, by section 53(3) of the Building Amendment Act 2008 (2008 No 4).
Subpart 8—Miscellaneous responsibilities
Chief executive must keep registers
273 Chief executive must keep registers
(1)
The chief executive must establish and maintain the following registers:
(aaa)
a register of national multiple-use approvals:
(aab)
a register of earthquake-prone buildings for the purposes of subpart 6A of Part 2 (the EPB register):
(a)
a register of building consent authorities for the purposes of section 191:
(b)
[Repealed](c)
a register of accredited dam owners notified to the chief executive under section 260:
(d)
a register of accredited product certification bodies notified to the chief executive under section 267:
(e)
a register of certified building methods or products notified to the chief executive under section 272.
(2)
The chief executive must—
(a)
make each register available for public inspection, without fee, at reasonable hours at the head office of the Ministry; and
(b)
supply to any person, on request and on payment of a reasonable charge, a copy of each register or part of each register.
(3)
Each register may be kept—
(a)
as an electronic register (for example, on the Ministry’s website); or
(b)
in any other manner that the chief executive thinks fit.
(3A)
The EPB register must be kept in a manner that enables territorial authorities, as well as the chief executive, to record and update information in the register.
(4)
Each register must be operated at all reasonable times unless—
(a)
the chief executive suspends the operation of the register, in whole or in part, in accordance with subsection (5); or
(b)
otherwise provided in regulations made under section 402.
(5)
The chief executive may refuse access to a register or otherwise suspend the operation of the register, in whole or in part, if the chief executive considers that it is not practical to provide access to the register.
Compare: 1991 No 150 s 53(1)
Section 273(1)(aaa): inserted, on 1 February 2010, by section 27 of the Building Amendment Act 2009 (2009 No 25).
Section 273(1)(aab): inserted, on 1 July 2017, by section 34(1) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 273(1)(b): repealed, on 14 April 2005, by section 20(1) of the Building Amendment Act 2005 (2005 No 31).
Section 273(3A): inserted, on 1 July 2017, by section 34(2) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
274 Purpose of registers
The purpose of each register is—
(a)
to enable members of the public to know,—
(iaa)
in the case of the register of national multiple-use approvals, the names and contact details of the persons who have been issued with national multiple-use approvals, together with a description of each approval and any conditions that have been imposed; and
(iab)
in the case of the EPB register, information relating to buildings or parts of buildings that territorial authorities have determined to be earthquake prone; and
(i)
in the case of the register of building consent authorities, the names and contact details of those building consent authorities and, if applicable, the scope of their accreditation; and
(ii)
[Repealed](iii)
in the case of the register of accredited dam owners, the names and contact details of those dam owners; and
(iv)
in the case of the register of accredited product certification bodies, the names and contact details of those product certification bodies; and
(v)
in the case of the register of certified building methods or products, which building methods or products are certified; and
(b)
to facilitate the compliance, audit, and other supporting and administrative functions of the chief executive under this Act.
Section 274(a)(iaa): inserted, on 1 February 2010, by section 28 of the Building Amendment Act 2009 (2009 No 25).
Section 274(a)(iab): inserted, on 1 July 2017, by section 35 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 274(a)(ii): repealed, on 14 April 2005, by section 20(2) of the Building Amendment Act 2005 (2005 No 31).
275 Content of register of building consent authorities
The register of building consent authorities referred to in section 273(1)(a) must, in addition to the names of the building consent authorities, contain the following information:
(a)
details of any limits imposed by the chief executive, under section 203(2)(c), on the functions that those authorities may perform:
(b)
any prescribed information:
(c)
in the case of building consent authorities that are not territorial authorities, the scope of accreditation of each of those authorities.
Compare: 1991 No 150 s 53(2)
275A Content of EPB register
(1)
The EPB register must contain the following information for each building or part of a building that a territorial authority determines is earthquake prone:
(a)
the name of the territorial authority that made the decision:
(b)
the address of, and any other details necessary to identify, the building or the part of the building determined to be earthquake prone:
(c)
whether the building is a priority building:
(d)
the date of the EPB notice issued for the building or part:
(e)
the earthquake rating of the building or part, as determined by the territorial authority:
(f)
the deadline for completing seismic work that applies under section 133AM (unless an exemption from the requirement to carry out seismic work is in force under section 133AN):
(g)
the details of any exemption from the requirement to carry out seismic work that is in force under section 133AN:
(h)
the details of any extension of time for completing seismic work that is in force under section 133AO, including a summary of any conditions imposed by the territorial authority for the purpose of section 133AO(5)(b):
(i)
any information prescribed under section 401C(e).
(2)
If the territorial authority is proceeding under section 133AK(4) as if it had determined the building or the part of the building to be earthquake prone (because the owner has not provided an engineering assessment),—
(a)
subsection (1)(e) does not apply; and
(b)
the register must contain statements to the following effect:
(i)
that the territorial authority has not determined whether the building or part is earthquake prone, but is proceeding as if it had because the owner has not provided an engineering assessment; and
(ii)
that the EPB notice issued for the building or part is in the form prescribed for the category of earthquake ratings that includes the lowest earthquake ratings (see section 401C(a)); and
(iii)
that the earthquake rating of the building or part has not been determined.
Section 275A: inserted, on 1 July 2017, by section 36 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
275B Modification of chief executive’s obligation to make EPB register available for public inspection
(1)
This section applies to information that is required to be kept in the EPB register by regulations made under section 401C(e) (the prescribed information).
(2)
Despite section 273(2), the chief executive need not make the prescribed information available for public inspection, or include the prescribed information in a copy of all or part of the register supplied to a person under that section, unless the regulations require the information to be made available for public inspection.
(3)
However, the chief executive may supply any prescribed information contained in the EPB register to an entity in the State services (within the meaning of the State Sector Act 1988) if the chief executive is satisfied that it is necessary or desirable for the entity to have the information to assist in the exercise of its powers or the performance of its functions under any enactment.
(4)
This section does not limit the Official Information Act 1982.
Section 275B: inserted, on 1 July 2017, by section 36 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Chief executive may review territorial authorities
276 Review of territorial authorities
(1)
The chief executive may, on his or her own initiative or at the request of the Minister, conduct a review of either or both of the following matters:
(a)
whether a territorial authority is properly performing its functions and duties under this Act:
(b)
whether a territorial authority is properly exercising its powers under this Act.
(2)
The chief executive must—
(a)
give the territorial authority a reasonable opportunity to make written submissions on the review; and
(b)
consider those submissions (if any).
(3)
The chief executive must, after completing the review,—
(a)
report to the Minister if he or she believes that either or both of the following applies:
(i)
the territorial authority is not properly performing its functions or duties under this Act:
(ii)
the territorial authority is not properly exercising its powers under this Act; and
(b)
if paragraph (a) applies, state in the report the facts on which that belief is based.
Compare: 1991 No 150 s 15
Power of Minister to appoint person to perform functions and duties, or exercise powers, of territorial authority
277 Non-performance by territorial authority
(1)
This section applies if the Minister considers, in accordance with section 278, that a territorial authority is not properly performing its functions or duties, or exercising its powers, under this Act.
(2)
The Minister may, in consultation with the Minister of Local Government, appoint 1 or more persons to act in place of the territorial authority by—
(a)
performing all or any of the territorial authority’s functions or duties under this Act:
(b)
exercising all or any of the territorial authority’s powers under this Act.
Compare: 1991 No 150 s 29(1)
278 Criteria for appointment or renewal of appointment
(1)
In determining whether an appointment under section 277 should be made, the Minister must consider whether the territorial authority is capable of performing its functions or duties, or exercising its powers, under this Act to the extent that the Minister considers necessary to achieve the purposes of this Act.
(2)
If the Minister makes an appointment under that section, he or she must, in determining whether the appointment should be renewed,—
(a)
consider the matter specified in subsection (1); and
(b)
revoke the appointment and direct the territorial authority to resume the performance of its functions or duties, or the exercise of its powers, under this Act if he or she considers that the territorial authority is capable of doing so.
(3)
If subsection (2)(b) applies, the Minister must give the person appointed under section 277 notice of the revocation of that person’s appointment.
Compare: 1991 No 150 s 29(7)
279 Effect of appointment
If a person is appointed under section 277,—
(a)
that person has all the functions, duties, and powers of a territorial authority as if they had been imposed or conferred on that person directly by this Act and not by the appointment; and
(b)
this Act applies accordingly.
Compare: 1991 No 150 s 29(3)
280 Costs may be recovered from territorial authority
(1)
This section applies to all costs, charges, and expenses incurred by—
(a)
the Minister for the purposes of section 277; or
(b)
a person appointed under that section in performing any functions or duties, or exercising any powers, of a territorial authority.
(2)
The costs, charges, and expenses to which this section applies—
(a)
may be recovered from the territorial authority concerned as a debt due to the Minister; or
(b)
may be deducted from any money payable to that territorial authority by the Minister.
Compare: 1991 No 150 s 29(4)
281 Requirements for appointment
(1)
The Minister—
(a)
may make an appointment under section 277 only if he or she has given the territorial authority not less than 15 working days’ written notice of his or her intention to do so; and
(b)
must specify the period for which the appointment is made.
(2)
The appointment may—
(a)
be on any terms and conditions that the Minister thinks fit; and
(b)
be renewed in accordance with section 278.
(3)
A person appointed under section 277 may resign from his or her appointment by giving not less than 20 working days’ written notice of his or her intention to resign to the Minister.
Compare: 1991 No 150 s 29(2), (5), (6)
Subpart 9—Fees, charges, and additional costs
Subpart 9: inserted, on 13 March 2012, by section 65 of the Building Amendment Act 2012 (2012 No 23).
281A What fees and charges may be imposed
(1)
This section applies when a territorial authority, building consent authority, or a regional authority (in this section and in sections 281B to 281D called the authority) imposes a fee or charge (or both) under section 219, 240, or 243 for a function or service performed by the authority under this Act.
(2)
Each authority has a discretion as to how the fee or charge is charged or set and how it may be paid or collected, and may (by way of example and without limiting an authority’s discretion)—
(a)
charge a fixed or variable fee:
(b)
require a deposit and then further payment:
(c)
require full payment at the outset:
(d)
charge on the basis of an hourly rate or any other rate or method of charging.
(3)
An authority may impose a fee or charge whether or not the function or service in question is performed on the application of another person or on the initiative of the authority itself.
Section 281A: inserted, on 13 March 2012, by section 65 of the Building Amendment Act 2012 (2012 No 23).
281B Authority may increase fee or charge to meet additional cost
(1)
If a fee or a charge imposed by an authority for a function or service performed by the authority under this Act is, in any particular case, inadequate to meet the authority’s actual and reasonable costs in performing that function or service, the authority may increase the amount of the fee or charge to meet the additional cost.
(2)
The authority must, on request by the person liable to pay the increased fee or charge, provide an estimate of the increase in the fee or charge.
Section 281B: inserted, on 13 March 2012, by section 65 of the Building Amendment Act 2012 (2012 No 23).
281C Authority may waive or refund fee or charge
An authority may, in its discretion, waive or refund, in whole or in part, any fee or charge imposed by it for a function or service performed by it under this Act.
Section 281C: inserted, on 13 March 2012, by section 65 of the Building Amendment Act 2012 (2012 No 23).
281D Validity of previous fees, charges, and additional costs
(1)
This section applies to a fee, charge, or additional cost that was imposed by, paid to, or collected by an authority before the commencement of this section.
(2)
Any question relating to the validity of the fee, charge, or additional cost must be determined as if sections 281A and 281B were in force at the time of the imposition, payment, or collection of the fee, charge, or additional cost.
(3)
Nothing in this section affects the validity of a fee, charge, or additional cost that is the subject of a proceeding that was commenced before the commencement of this section.
Section 281D: inserted, on 13 March 2012, by section 65 of the Building Amendment Act 2012 (2012 No 23).
Part 4 Regulation of building practitioners
Subpart 1—Preliminary
Definitions
282 Definitions for this Part
In this Part, unless the context otherwise requires,—
appeal authority—
(a)
in relation to an appeal against a decision of the Registrar under section 330(1), means the Board; and
(b)
in relation to an appeal against a decision of the Board under section 330(2), means the District Court
applicable minimum standards for licensing means the minimum standards for licensing that—
(a)
apply to the licensing class in question; and
(b)
are contained in the rules
Board means the Building Practitioners Board established by section 341
building inspection work means any of the following:
(a)
the assessment and approval of building design documents:
(b)
the undertaking of inspections of building work:
(c)
the issuing of building consents:
(d)
determining compliance with a building consent:
(e)
inspection, maintenance, or reporting procedures stated in a compliance schedule
decision-maker, in relation to an appeal, means the person or body that made the decision or took the action appealed against
disciplinary matter means an inquiry into, or complaint about, the conduct of a licensed building practitioner or a decision on that inquiry or complaint
LBP standards has the meaning set out in section 353
register means the register of building practitioners established and maintained under section 298
Registrar means the officer appointed under section 310.
Section 282 applicable minimum standards for licensing paragraph (a): amended, on 15 March 2008, by section 54(1) of the Building Amendment Act 2008 (2008 No 4).
Section 282 building inspection work paragraph (e): replaced, on 15 March 2008, by section 54(2) of the Building Amendment Act 2008 (2008 No 4).
Purposes of licensing
Heading: inserted, on 15 March 2008, by section 55 of the Building Amendment Act 2008 (2008 No 4).
282A Purposes of licensing building practitioners
The purposes of licensing building practitioners under this Act are—
(a)
to assess and record building practitioners as having certain skills and knowledge relevant to building work; and
(b)
to license building practitioners so that, in regard to restricted building work, licensed building practitioners can carry it out or supervise it.
Section 282A: inserted, on 15 March 2008, by section 55 of the Building Amendment Act 2008 (2008 No 4).
General procedure of Board and Registrar under this Part
283 Specified procedure for making decisions
In the performance and exercise of their decision-making functions and powers under this Part, the Board and the Registrar must—
(a)
give written notice of, and reasons for, their decision to any person to whom the decision relates; and
(b)
comply with the principles of natural justice; and
(c)
comply with any applicable procedures under the rules; and
(d)
comply with the regulations.
Compare: 2002 No 17 s 25
284 Other procedure for making decisions
Except as otherwise provided in this Act, the Board and the Registrar may regulate their own procedure for making decisions under this Part.
Compare: 2002 No 17 s 26
Subpart 2—Licensing and disciplining of building practitioners
Licensing classes
Heading: replaced, on 15 March 2008, by section 56 of the Building Amendment Act 2008 (2008 No 4).
285 Licensing classes may be designated by regulations
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, designate a licensing class or classes for carrying out or supervising particular types of—
(a)
building work:
(b)
building inspection work.
(2)
An order made under subsection (1) may designate a licensing class or classes for carrying out the work, or for supervising the work, or for carrying out or supervising the work.
Section 285: replaced, on 15 March 2008, by section 56 of the Building Amendment Act 2008 (2008 No 4).
Section 285(2): inserted, on 13 March 2012, by section 67 of the Building Amendment Act 2012 (2012 No 23).
How to become licensed
286 Entitlement to be licensed
An individual is entitled to be licensed as a building practitioner if the individual satisfies the Registrar—
(a)
that he or she meets the applicable minimum standards for licensing; and
(b)
that he or she is not precluded from being licensed because of any action taken by the Board under section 318; and
(c)
that his or her registration, licence, or other recognition under another enactment in respect of any substantially equivalent occupation has not been suspended or cancelled in respect of a disciplinary matter at any time within the last 5 years; and
(d)
that he or she has paid the prescribed fee.
Section 286 heading: amended, on 15 March 2008, by section 57(1) of the Building Amendment Act 2008 (2008 No 4).
Section 286(b): amended, on 15 March 2008, by section 57(2) of the Building Amendment Act 2008 (2008 No 4).
287 Applications to become licensed
An application to become licensed under this subpart must be made to the Registrar in accordance with the rules.
Section 287 heading: amended, on 15 March 2008, by section 58(1) of the Building Amendment Act 2008 (2008 No 4).
Section 287: amended, on 15 March 2008, by section 58(2) of the Building Amendment Act 2008 (2008 No 4).
288 Registrar to license applicant or decline application
(1)
If the Registrar is satisfied that the applicant is entitled, under section 286, to be licensed as a building practitioner, the Registrar must—
(a)
license the applicant; and
(b)
send to the applicant evidence that he or she has been licensed, in a form specified in the rules; and
(c)
enter that person’s name in the register; and
(d)
issue a unique identifier (for example, a registration number) to the applicant, and notify the applicant what that identifier is.
(2)
If the Registrar is not satisfied that the applicant is entitled to be licensed as a building practitioner, the Registrar must notify the applicant of—
(a)
the Registrar’s decision; and
(b)
the applicant’s right of appeal against the decision.
(3)
Subsection (2) does not limit section 283.
Section 288(1)(a): replaced, on 15 March 2008, by section 59(1) of the Building Amendment Act 2008 (2008 No 4).
Section 288(1)(b): amended, on 15 March 2008, by section 59(2) of the Building Amendment Act 2008 (2008 No 4).
Provisions relating to licences
289 Duty to produce evidence of being licensed
A licensed building practitioner must, if asked by any person, produce for inspection by the person either—
(a)
the evidence of being licensed sent to the licensed building practitioner under section 288(1)(b); or
(b)
a copy of that evidence.
Section 289 heading: amended, on 15 March 2008, by section 60(1) of the Building Amendment Act 2008 (2008 No 4).
Section 289(a): amended, on 15 March 2008, by section 60(2) of the Building Amendment Act 2008 (2008 No 4).
290 Term of being licensed
Licensing continues in force until it is cancelled or suspended under this subpart.
Section 290: replaced, on 15 March 2008, by section 61 of the Building Amendment Act 2008 (2008 No 4).
Automatic licensing of certain professions
291 Automatic licensing of people registered under other enactments
(1)
This section applies to a person who is registered, licensed, or otherwise recognised under any other enactment (for example, a registered architect), but does not apply at any time when that registration, licence, or other recognition is suspended or cancelled.
(2)
An order made under section 285 may treat the person as if they were licensed in a class or classes specified in the order.
(3)
A person who is treated as being licensed in a particular class or classes under subsection (2) may not apply under this Act to be licensed in another class that is substantially equivalent to the class of licensing in which he or she is treated as being licensed.
(4)
The licensing provisions of this subpart do not apply to a person who is treated under this section and the rules as if he or she were licensed (for example, he or she need not apply to become licensed or pay any fees under this subpart).
Section 291(2): amended, on 15 March 2008, by section 62(1) of the Building Amendment Act 2008 (2008 No 4).
Section 291(3): replaced, on 15 March 2008, by section 62(2) of the Building Amendment Act 2008 (2008 No 4).
Section 291(4): replaced, on 15 March 2008, by section 62(2) of the Building Amendment Act 2008 (2008 No 4).
Continuation of licensing
292 Licensed building practitioner must meet applicable minimum standards for licensing to continue
(1)
The Registrar must assess at the frequency required by the rules, and may assess at any other time, whether a licensed building practitioner continues to meet the applicable minimum standards for licensing.
(2)
That assessment must be made in the manner required by the rules.
(3)
A licensed building practitioner who continues to meet those standards is entitled to the continuation of his or her licensing, subject to section 303.
Section 292 heading: amended, on 15 March 2008, by section 63(1) of the Building Amendment Act 2008 (2008 No 4).
Section 292(3): amended, on 15 March 2008, by section 63(2) of the Building Amendment Act 2008 (2008 No 4).
293 Consequences of failure to meet applicable minimum standards for licensing
(1)
If, after making an assessment under section 292, the Registrar determines that the licensed building practitioner no longer meets the applicable minimum standards for licensing, the Registrar must—
(a)
suspend the person’s licensing until the person satisfies the Registrar that he or she meets those standards; and
(b)
record the suspension in the register.
(2)
If the person does not so satisfy the Registrar within 12 months after the suspension, or any further period that the Registrar may determine, the Registrar must—
(a)
cancel the person’s licensing; and
(b)
remove the person’s name from the register.
Section 293(1)(a): amended, on 15 March 2008, by section 64 of the Building Amendment Act 2008 (2008 No 4).
Section 293(2)(a): amended, on 15 March 2008, by section 64 of the Building Amendment Act 2008 (2008 No 4).
Licensing cancellation and suspension
Heading: replaced, on 15 March 2008, by section 65 of the Building Amendment Act 2008 (2008 No 4).
294 Cancellation of licensing
The Registrar must cancel a person’s licensing and remove the person’s name from the register—
(a)
if the person, by written notice, requests the Registrar to cancel his or her licensing; or
(b)
in accordance with section 293(2) (consequences of failure to meet applicable minimum standards for licensing); or
(c)
in accordance with section 318 (disciplinary penalties); or
(d)
in accordance with section 319 (non-payment of fines or costs).
Section 294 heading: amended, on 15 March 2008, by section 66(1) of the Building Amendment Act 2008 (2008 No 4).
Section 294: amended, on 15 March 2008, by section 66(2) of the Building Amendment Act 2008 (2008 No 4).
Section 294(a): amended, on 15 March 2008, by section 66(2) of the Building Amendment Act 2008 (2008 No 4).
295 Mandatory licensing suspension
(1)
The Registrar must suspend a person’s licensing and record the suspension in the register in accordance with section 293(1) (consequences of failure to meet applicable minimum standards for licensing).
(2)
The Registrar must, in the case of a person who is the subject of disciplinary proceedings under this subpart,—
(a)
suspend the person’s licensing until an order is made under section 318 or until those disciplinary proceedings are otherwise finished if, in the opinion of the Registrar, suspension of the person’s licensing is necessary for the purpose of protecting the public; and
(b)
record that suspension in the register.
(3)
The Board must suspend a person’s licensing and direct the Registrar to record the suspension in the register in accordance with—
(a)
section 318 (disciplinary penalties); or
(b)
section 319 (non-payment of fines or costs).
Section 295 heading: replaced, on 15 March 2008, by section 67(1) of the Building Amendment Act 2008 (2008 No 4).
Section 295(1): amended, on 15 March 2008, by section 67(2) of the Building Amendment Act 2008 (2008 No 4).
Section 295(2)(a): amended, on 15 March 2008, by section 67(2) of the Building Amendment Act 2008 (2008 No 4).
Section 295(3): amended, on 15 March 2008, by section 67(2) of the Building Amendment Act 2008 (2008 No 4).
296 Voluntary licensing suspension
(1)
A licensed building practitioner may, by written notice, request the Registrar to suspend his or her licensing for a period specified in the notice.
(2)
The Registrar must then suspend that person’s licensing, and record the suspension in the register, for that specified period (subject to the rules).
(3)
A person whose licensing is suspended under this section may, by written notice to the Registrar, request the Registrar to revive the person’s licensing.
(4)
The Registrar must then revive that person’s licensing (unless there is some other ground to suspend or cancel that person’s licensing under this subpart).
Section 296 heading: replaced, on 15 March 2008, by section 68(1) of the Building Amendment Act 2008 (2008 No 4).
Section 296(1): amended, on 15 March 2008, by section 68(2) of the Building Amendment Act 2008 (2008 No 4).
Section 296(2): amended, on 15 March 2008, by section 68(2) of the Building Amendment Act 2008 (2008 No 4).
Section 296(3): amended, on 15 March 2008, by section 68(2) of the Building Amendment Act 2008 (2008 No 4).
Section 296(4): amended, on 15 March 2008, by section 68(2) of the Building Amendment Act 2008 (2008 No 4).
297 Effect of licensing suspension
(1)
A person is not a licensed building practitioner, for the purposes of this Act, for the period for which his or her licensing is suspended.
(2)
At the end of the period of suspension, the person’s licensing is immediately revived (unless there is some other ground to suspend or cancel that person’s licensing under this subpart).
Section 297 heading: replaced, on 15 March 2008, by section 69(1) of the Building Amendment Act 2008 (2008 No 4).
Section 297(1): amended, on 15 March 2008, by section 69(2) of the Building Amendment Act 2008 (2008 No 4).
Section 297(2): amended, on 15 March 2008, by section 69(2) of the Building Amendment Act 2008 (2008 No 4).
Register of licensed building practitioners
298 Register of licensed building practitioners
(1)
The Registrar must establish and maintain, in accordance with this Act and the regulations, a register of licensed building practitioners.
(2)
The Registrar must enter in the register—
(a)
the name of every licensed building practitioner; and
(b)
the information about that person that is specified in section 301 to the extent that the information is relevant to that person.
(3)
The Registrar must make any other entries in the register that may be required, permitted, or directed to be entered by or under this subpart or the regulations.
Section 298(1): amended, on 15 March 2008, by section 70 of the Building Amendment Act 2008 (2008 No 4).
299 Purpose of register
The purpose of the register is—
(a)
to enable members of the public to—
(i)
determine whether a person is a licensed building practitioner and, if so, the status and relevant history of the person’s licensing; and
(ii)
choose a suitable building practitioner from a list of licensed building practitioners; and
(iii)
know how to contact the building practitioner; and
(iv)
know which licensed building practitioners have been disciplined within the last 3 years; and
(b)
to facilitate the administrative, disciplinary, and other functions of the Board and the Registrar under this Act.
Section 299(a)(i): amended, on 15 March 2008, by section 71 of the Building Amendment Act 2008 (2008 No 4).
300 Form of register
(1)
The register may be kept—
(a)
as an electronic register; or
(b)
in any other manner that the Registrar thinks fit.
(2)
The register must be operated at all times unless—
(a)
the Registrar suspends the operation of the register, in whole or in part, in accordance with subsection (3); or
(b)
otherwise provided in the regulations.
(3)
The Registrar may refuse access to the register or otherwise suspend the operation of the register, in whole or in part, if the Registrar considers that it is not necessary or practical or appropriate to provide access to the register.
Section 300(3): amended, on 15 March 2008, by section 72 of the Building Amendment Act 2008 (2008 No 4).
301 Matters to be contained in register
(1)
The register must contain all of the following information, to the extent that the information is relevant, for each licensed building practitioner whose name is entered in the register:
(a)
full name:
(b)
any aliases:
(c)
date of birth:
(d)
address for communications under this Act:
(e)
residential address:
(f)
name of any company or body corporate that is associated with the licensed building practitioner (for example, that person’s employer or the company of which that person is a director):
(g)
email and website address:
(h)
phone number:
(i)
fax number:
(j)
any unique identifier issued by the Registrar (for example, a registration number):
(k)
any other prescribed information:
(l)
information about the status and history of the person’s licensing, particularly—
(i)
the class in which the person is licensed; and
(ii)
the date on which the person’s name was entered in the register; and
(iii)
any action taken under section 318 on a disciplinary matter in respect of the person in the last 3 years:
(m)
any other information that the Registrar considers necessary or desirable for the purpose of the register.
(2)
The register must also show—
(a)
whether a person’s licensing was suspended in the last 3 years; and
(b)
if paragraph (a) applies,—
(i)
the ground under this Act for the suspension (for example, whether for non-payment of a levy that was required from the licensed building practitioner, or on another ground); and
(ii)
the period of suspension; and
(iii)
any conditions for termination of the suspension.
Section 301(1)(l): amended, on 15 March 2008, by section 73(1) of the Building Amendment Act 2008 (2008 No 4).
Section 301(1)(l)(i): amended, on 15 March 2008, by section 73(2) of the Building Amendment Act 2008 (2008 No 4).
Section 301(2)(a): amended, on 15 March 2008, by section 73(3) of the Building Amendment Act 2008 (2008 No 4).
Updates of register
302 Obligation to notify Registrar of change in circumstances
(1)
Each person applying to become licensed, and each licensed building practitioner, must give written notice to the Registrar of any change in circumstances within 10 working days after the change.
(2)
Change of circumstances—
(a)
means any change in the information that the person has provided to the Registrar under this subpart; and
(b)
includes any change that may be prescribed (if any).
Section 302(1): amended, on 15 March 2008, by section 74 of the Building Amendment Act 2008 (2008 No 4).
303 Registrar must contact licensed building practitioners on annual basis
(1)
The Registrar must, on an annual basis, contact each licensed building practitioner, in a manner provided for in the rules, and—
(a)
ask whether the licensed building practitioner wishes to continue to be licensed; and
(b)
ask whether the information shown on the register in respect of that person is correct; and
(c)
notify the requirement to pay a prescribed levy.
(2)
The licensed building practitioner must, within 20 working days of being contacted,—
(a)
reply to both questions, and supply any information necessary to ensure that the information shown on the register is correct; and
(b)
pay to the Registrar the prescribed levy.
(3)
If a licensed building practitioner does not comply with subsection (2), the Registrar must contact the licensed building practitioner, in a manner provided for in the rules, and advise the licensed building practitioner that his or her licensing will be suspended unless the person complies with subsection (2), and pays a late fee, within the period, provided for in the rules.
(4)
If the licensed building practitioner does not do so, the Registrar must—
(a)
suspend the person’s licensing until the person does so; and
(b)
record the suspension in the register.
(5)
If the licensed building practitioner does not comply with subsection (2), and pay the late fee, within 12 months after the date on which the person is contacted under subsection (3), the Registrar must—
(a)
cancel the person’s licensing; and
(b)
remove the person’s name from the register.
(6)
The levy may be applied to costs and other expenses incurred in the licensing and disciplining of building practitioners under this Act, including the costs of the operation and administration of the Board.
Section 303(3): amended, on 15 March 2008, by section 75(1) of the Building Amendment Act 2008 (2008 No 4).
Section 303(4)(a): amended, on 15 March 2008, by section 75(2) of the Building Amendment Act 2008 (2008 No 4).
Section 303(5)(a): amended, on 15 March 2008, by section 75(3) of the Building Amendment Act 2008 (2008 No 4).
Section 303(6): inserted, on 13 March 2012, by section 68 of the Building Amendment Act 2012 (2012 No 23).
304 Alterations to register
The Registrar may, at any time, make any amendments to the register that are necessary to—
(a)
reflect any changes in the name of a licensed building practitioner or the information specified in section 301; or
(b)
correct a mistake caused by any error or omission on the part of the Registrar or any person to whom the Registrar has delegated his or her functions, duties, or powers.
Searches of register
305 Search of register
A person may search the register in accordance with this Act or the regulations.
306 Search criteria
The register may be searched only by reference to criteria to be specified in the regulations.
307 Search purposes
A search of the register may be carried out only for a purpose referred to in section 299.
308 When search constitutes interference with privacy of individual
A search of the register for personal information that has not been carried out in accordance with sections 305 to 307 constitutes an action that is an interference with the privacy of an individual under section 66 of the Privacy Act 1993.
309 Search fees
(1)
The Registrar may charge a fee for searches of the register.
(2)
The fee may be prescribed by the regulations, or may be determined by the Registrar, and must be no greater than the cost of providing for the search of the register.
Registrar of Licensed Building Practitioners
310 Appointment of Registrar of Licensed Building Practitioners
The chief executive must appoint, under the State Sector Act 1988, a Registrar of Licensed Building Practitioners.
311 Functions of Registrar
The functions of the Registrar are—
(a)
to establish and maintain the register; and
(b)
to make decisions about whether persons meet the requirements for licensing or continued licensing, to issue, cancel, and suspend persons’ licensing as part of the licensing system, and to perform the other functions relating to licensing under this subpart; and
(c)
to help the Board to receive and investigate complaints under sections 315 and 316; and
(d)
to provide other administrative support for the Board sufficient to enable the Board to perform its functions efficiently and effectively; and
(e)
to perform any other function conferred on the Registrar by this Act or any other enactment.
Section 311(b): amended, on 15 March 2008, by section 76 of the Building Amendment Act 2008 (2008 No 4).
Section 311(c): replaced, on 14 April 2005, by section 21 of the Building Amendment Act 2005 (2005 No 31).
Section 311(d): replaced, on 14 April 2005, by section 21 of the Building Amendment Act 2005 (2005 No 31).
Section 311(e): inserted, on 14 April 2005, by section 21 of the Building Amendment Act 2005 (2005 No 31).
312 Power of Registrar to delegate
(1)
The Registrar may delegate to any person (whether an employee of the State services or not), either generally or particularly, any of the Registrar’s functions, duties, and powers except the power of delegation.
(2)
A delegation—
(a)
must be in writing; and
(b)
may be made subject to any restrictions and conditions that the Registrar thinks fit; and
(c)
is revocable at any time, in writing; and
(d)
does not prevent the performance or exercise of a function, duty, or power by the Registrar.
(3)
A person to whom any functions, duties, or powers are delegated may perform and exercise them in the same manner and with the same effect as if they had been conferred directly by this Act and not by delegation.
(4)
A person who appears to act under a delegation is presumed to be acting in accordance with its terms in the absence of evidence to the contrary.
313 Certificate of Registrar to be conclusive evidence
(1)
A certificate signed by the Registrar, or any person authorised by the Registrar, in relation to the matters referred to in subsection (2) is for all purposes conclusive evidence, in the absence of proof to the contrary, of those matters specified in the certificate.
(2)
The matters are—
(a)
that any person was or was not a licensed building practitioner at any particular time or during any period specified in the certificate; or
(b)
that any entry in the register is as stated in the certificate; or
(c)
that the description of building work and building inspection work that a person is licensed to carry out or supervise is as stated in the certificate.
(3)
The certificate must be dated.
Section 313(2)(c): amended, on 15 March 2008, by section 77 of the Building Amendment Act 2008 (2008 No 4).
Offences relating to licensing
314 Offences relating to licensing
(1)
A person commits an offence if the person holds himself or herself out as a person who is licensed to carry out or supervise building work or building inspection work, or building work or building inspection work of a certain type, while not being so licensed.
(2)
A person who commits an offence under subsection (1) is liable on conviction to a fine not exceeding $20,000.
(3)
A person commits an offence if the person—
(a)
fails to produce evidence of being licensed as required by section 289; or
(b)
fails to give written notice of a change in circumstances in accordance with section 302.
(4)
A person who commits an offence under subsection (3) is liable on conviction to a fine not exceeding $5,000.
Section 314(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 314(3)(a): amended, on 15 March 2008, by section 78 of the Building Amendment Act 2008 (2008 No 4).
Section 314(4): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Code of ethics and competence
Heading: inserted, on 13 March 2012, by section 69 of the Building Amendment Act 2012 (2012 No 23).
314A Code of ethics for licensed building practitioners
The Governor-General may, by Order in Council made on the recommendation of the Minister, prescribe a code or codes of minimum standards of ethical conduct for licensed building practitioners or classes of licensed building practitioners.
Section 314A: inserted, on 13 March 2012, by section 69 of the Building Amendment Act 2012 (2012 No 23).
314B Licensed building practitioner must work within competence
A licensed building practitioner must—
(a)
not misrepresent his or her competence:
(b)
carry out or supervise building work only within his or her competence.
Section 314B: inserted, on 13 March 2012, by section 69 of the Building Amendment Act 2012 (2012 No 23).
Discipline
315 Complaints about licensed building practitioners
(1)
Any person may complain to the Board about the conduct of a licensed building practitioner in accordance with the regulations.
(2)
A complaint or inquiry, and any decision on the complaint or inquiry, may relate to a person who is no longer a licensed building practitioner but who was a licensed building practitioner at the time of the relevant conduct.
Compare: 2002 No 17 s 20
316 Board must investigate complaints
(1)
The Board must, as soon as practicable after receiving a complaint, investigate the complaint and determine whether or not to proceed with it.
(2)
However, subsection (3) applies if the Board receives a complaint about a licensed building practitioner—
(a)
who is a licensed building practitioner only because he or she is treated under section 291 and the rules as if he or she is licensed because he or she is registered, licensed, or otherwise recognised under any other enactment (for example, a registered architect); and
(b)
who is, in the opinion of the Board, subject to a substantially similar or more stringent disciplinary regime by or under that other enactment.
(3)
The Board may not investigate or proceed with the complaint, but must refer it to the body that is responsible for dealing with complaints under that other enactment.
Section 316(2)(a): amended, on 15 March 2008, by section 79 of the Building Amendment Act 2008 (2008 No 4).
317 Grounds for discipline of licensed building practitioners
(1)
The Board may (in relation to a matter raised by a complaint or by its own inquiries) take any of the actions referred to in section 318 if it is satisfied that—
(a)
both of the following matters apply:
(i)
a licensed building practitioner has been convicted, whether before or after he or she is licensed, by any court in New Zealand or elsewhere of any offence punishable by imprisonment for a term of 6 months or more; and
(ii)
the commission of the offence reflects adversely on the person’s fitness to carry out or supervise building work or building inspection work; or
(b)
a licensed building practitioner has carried out or supervised building work or building inspection work in a negligent or incompetent manner; or
(c)
a licensed building practitioner has carried out (other than as an owner-builder) or supervised restricted building work or building inspection work of a type that he or she is not licensed to carry out or supervise; or
(d)
a licensed building practitioner has carried out or supervised building work or building inspection work that does not comply with a building consent; or
(da)
a licensed building practitioner has failed, without good reason, in respect of a building consent that relates to restricted building work that he or she is to carry out (other than as an owner-builder) or supervise, or has carried out (other than as an owner-builder) or supervised, (as the case may be),—
(i)
to provide a certificate of work about any plans and specifications required to accompany the building consent application; or
(ii)
to provide the persons specified in section 88(2) with a record of work, on completion of the restricted building work, in accordance with section 88(1); or
(db)
a licensed building practitioner has held himself or herself out as being licensed to carry out or supervise building work or building inspection work of a type that, at that time, he or she was not licensed to carry out or supervise; or
(e)
a licensed building practitioner has, for the purpose of becoming licensed himself or herself, or for the purpose of any other person becoming licensed,—
(i)
either orally or in writing, made any declaration or representation, knowing it to be false or misleading in a material particular; or
(ii)
produced to the Registrar or made use of any document, knowing it to contain a declaration or representation referred to in subparagraph (i); or
(iii)
produced to the Registrar or made use of any document, knowing that it was not genuine; or
(f)
a licensed building practitioner has failed, without good reason, to provide to the owner the record of work referred to in clause 1(b) of Schedule 1E or clause 1(b) of Schedule 1F; or
(g)
a licensed building practitioner has breached the code of ethics prescribed under section 314A; or
(h)
a licensed building practitioner has breached section 314B; or
(i)
a licensed building practitioner has conducted himself or herself in a manner that brings, or is likely to bring, the regime under this Act for licensed building practitioners into disrepute.
(2)
The Board may take the action whether or not the person is still a licensed building practitioner.
Compare: 2002 No 17 s 21
Section 317(1)(c): replaced, on 15 March 2008, by section 80(1) of the Building Amendment Act 2008 (2008 No 4).
Section 317(1)(c): amended, on 13 March 2012, by section 70(1) of the Building Amendment Act 2012 (2012 No 23).
Section 317(1)(da): inserted, on 15 March 2008, by section 80(2) of the Building Amendment Act 2008 (2008 No 4).
Section 317(1)(da): amended, on 13 March 2012, by section 70(2)(a) of the Building Amendment Act 2012 (2012 No 23).
Section 317(1)(da): amended, on 13 March 2012, by section 70(2)(b) of the Building Amendment Act 2012 (2012 No 23).
Section 317(1)(da)(i): amended, on 13 March 2012, by section 70(3) of the Building Amendment Act 2012 (2012 No 23).
Section 317(1)(da)(ii): amended, on 13 March 2012, by section 70(4) of the Building Amendment Act 2012 (2012 No 23).
Section 317(1)(db): inserted, on 15 March 2008, by section 80(2) of the Building Amendment Act 2008 (2008 No 4).
Section 317(1)(e): amended, on 15 March 2008, by section 80(3) of the Building Amendment Act 2008 (2008 No 4).
Section 317(1)(e)(iii): amended, on 13 March 2012, by section 70(5) of the Building Amendment Act 2012 (2012 No 23).
Section 317(1)(f): inserted, on 13 March 2012, by section 70(6) of the Building Amendment Act 2012 (2012 No 23).
Section 317(1)(g): inserted, on 13 March 2012, by section 70(6) of the Building Amendment Act 2012 (2012 No 23).
Section 317(1)(h): inserted, on 13 March 2012, by section 70(6) of the Building Amendment Act 2012 (2012 No 23).
Section 317(1)(i): inserted, on 13 March 2012, by section 70(6) of the Building Amendment Act 2012 (2012 No 23).
318 Disciplinary penalties
(1)
In any case to which section 317 applies, the Board may—
(a)
do both of the following things:
(i)
cancel the person’s licensing and direct the Registrar to remove the person’s name from the register; and
(ii)
order that the person may not apply to be relicensed before the expiry of a specified period:
(b)
suspend the person’s licensing for a period of no more than 12 months or until the person meets specified conditions relating to the licensing (but, in any case, not for a period of more than 12 months) and direct the Registrar to record the suspension in the register:
(c)
restrict the type of building work or building inspection work that the person may carry out or supervise under the person’s licensing class or classes and direct the Registrar to record the restriction in the register:
(d)
order that the person be censured:
(e)
order that the person undertake training specified in the order:
(f)
order that the person pay a fine not exceeding $10,000.
(2)
The Board may take only 1 type of action in subsection (1)(a) to (d) in relation to a case, except that it may impose a fine under subsection (1)(f) in addition to taking the action under subsection (1)(b) or (d).
(3)
No fine may be imposed under subsection (1)(f) in relation to an act or omission that constitutes an offence for which the person has been convicted by a court.
(4)
In any case to which section 317 applies, the Board may order that the person must pay the costs and expenses of, and incidental to, the inquiry by the Board.
(5)
In addition to requiring the Registrar to notify in the register an action taken by the Board under this section, the Board may publicly notify the action in any other way it thinks fit.
Compare: 2002 No 17 s 23
Section 318(1)(a)(i): amended, on 15 March 2008, by section 81(1) of the Building Amendment Act 2008 (2008 No 4).
Section 318(1)(b): amended, on 15 March 2008, by section 81(2) of the Building Amendment Act 2008 (2008 No 4).
Section 318(1)(c): amended, on 15 March 2008, by section 81(3) of the Building Amendment Act 2008 (2008 No 4).
319 Non-payment of fines or costs
If money payable by a person under section 318(1)(f) or (4) remains unpaid for 60 days or more after the date of the order, the Board may—
(a)
cancel the person’s licensing and direct the Registrar to remove the person’s name from the register; or
(b)
suspend the person’s licensing until the person pays the money and, if he or she does not do so within 12 months, cancel his or her licensing and direct the Registrar to remove his or her name from the register.
Section 319(a): amended, on 15 March 2008, by section 82 of the Building Amendment Act 2008 (2008 No 4).
Section 319(b): amended, on 15 March 2008, by section 82 of the Building Amendment Act 2008 (2008 No 4).
320 Payment and application of charges, fines, and other money
(1)
All charges, fines, and other money payable by a person under this subpart—
(a)
are payable to the Registrar:
(b)
are recoverable as a debt due to the Registrar from that person, whether or not he or she remains a licensed building practitioner.
(2)
For the purposes of this section, fine does not include a fine imposed in respect of the commission of an offence against a provision of this Act.
Powers and procedure of Board on disciplinary matters
321 Board must act independently
(1)
The Board must act independently in performing its functions under this subpart.
(2)
The Registrar must ensure that any staff that the Registrar provides by way of administrative support for the Board have not been involved in assisting the Registrar to perform the functions of the Registrar under this subpart.
322 Board may hear evidence for disciplinary matters
(1)
In relation to a disciplinary matter, the Board may—
(a)
receive as evidence any statement, document, information, or matter that in its opinion may assist it to deal effectively with the subject of the disciplinary matter, whether or not it would be admissible in a court of law:
(b)
receive evidence on oath (and for that purpose a member of the Board may administer an oath):
(c)
permit a person appearing as a witness before it to give evidence by tendering a written statement and verifying that statement by oath, statutory declaration, or otherwise:
(d)
appoint any persons as special advisers to assist the Board (for example, to advise on technical evidence).
(2)
A hearing before the Board on a disciplinary matter is a judicial proceeding for the purposes of sections 108 and 109 of the Crimes Act 1961.
Compare: 2002 No 17 s 27
323 Issuing of summons by Board
(1)
The Board may issue a summons to a person requiring that person to attend a hearing before the Board and to do all or any of the following matters:
(a)
give evidence:
(b)
give evidence under oath:
(c)
produce documents, things, or information, or any specified documents, things, or information, in the possession or control of that person that are relevant to the hearing.
(2)
The summons must be in writing, be signed by a member of the Board, and state—
(a)
the date and time when, and the place where, the person must attend; and
(b)
the documents, things, or information that the person is required to bring and produce to the Board; and
(c)
if a sum in respect of witnesses’ fees, allowances, and expenses is not paid at the time of the summons, the entitlement to be paid or tendered a sum at some reasonable time before the hearing; and
(d)
the penalty for failing to attend.
(3)
The Board may require that any documents, things, or information produced under this section be verified by oath, statutory declaration, or otherwise.
Compare: 2002 No 17 s 29
324 Service of summons
(1)
A summons may be served—
(a)
by delivering it personally to the person summoned; or
(b)
by posting it to the person summoned at that person’s usual place of residence.
(2)
A summons must,—
(a)
if it is to be served under subsection (1)(a), be served at least 48 hours before the attendance of the witness is required:
(b)
if it is to be served under subsection (1)(b), be served at least 10 days before the attendance of the witness is required.
(3)
A summons that is posted is treated as having been served when it would have been delivered in the ordinary course of post.
Compare: 2002 No 17 s 30
325 Witnesses’ fees, allowances, and expenses
(1)
A witness appearing before the Board under a summons is entitled to be paid witnesses’ fees, allowances, and expenses in accordance with the scales prescribed by regulations under the Criminal Procedure Act 2011.
(2)
The person requiring attendance of the witness must pay or tender to the witness the fees, allowances, and expenses at the time the summons is served or at some other reasonable time before the hearing.
Compare: 2002 No 17 s 31
Section 325(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
326 Failure to comply with summons
(1)
A person summoned under section 323 commits an offence if he or she, without sufficient cause,—
(a)
fails to attend in accordance with the summons; or
(b)
does not give evidence when required to do so; or
(c)
does not give evidence under oath when required to do so; or
(d)
does not answer any question that is lawfully asked by the Board; or
(e)
does not provide any documents, things, or information that the summons requires the person to provide.
(2)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $2,000.
(3)
A person must not be convicted of an offence under this section if witnesses’ fees, allowances, and expenses to which the person is entitled under section 325 have not been paid or tendered to him or her.
Compare: 2002 No 17 s 32
Section 326(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
327 Witness and counsel privileges
(1)
Every person who does the following things has the same privileges as witnesses have in a court:
(a)
provides documents, things, or information to the Board in relation to a disciplinary matter; or
(b)
gives evidence or answers questions at a hearing of the Board in relation to a disciplinary matter.
(2)
Every counsel appearing before the Board in relation to a disciplinary matter has the same privileges and immunities as counsel in a court.
Compare: 2002 No 17 s 33
328 Enforcement of actions
If the Board, acting in accordance with this Act and the rules in relation to a disciplinary matter, takes an action or otherwise exercises any power in respect of a person who is or was a licensed building practitioner, that action or other exercise of any power has effect whether or not that person remains a licensed building practitioner.
Compare: 2002 No 17 s 34
329 Certificate of Board to be conclusive evidence
A written certificate signed by any person authorised by the Board is for all purposes conclusive evidence, in the absence of proof to the contrary, of any act or proceeding of the Board.
Appeal from decisions
330 Right of appeal
(1)
A person may appeal to the Board against any decision of the Registrar to—
(a)
decline to license the person as a building practitioner; or
(b)
suspend or cancel his or her licensing.
(2)
A person may appeal to the District Court against any decision of the Board—
(a)
made by it on an appeal brought under subsection (1); or
(b)
to take any action referred to in section 318.
Section 330(1)(b): amended, on 15 March 2008, by section 83(1) of the Building Amendment Act 2008 (2008 No 4).
Section 330(2): replaced, on 15 March 2008, by section 83(2) of the Building Amendment Act 2008 (2008 No 4).
Section 330(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
331 Time in which appeal must be brought
An appeal must be lodged—
(a)
within 20 working days after notice of the decision or action is communicated to the appellant; or
(b)
within any further time that the appeal authority allows on application made before or after the period expires.
332 Method of bringing appeal
An appeal—
(a)
must be brought to the Board by notice in writing to the Board; or
(b)
must be brought to the District Court by way of notice of appeal in accordance with the rules of court.
333 Notice of right of appeal
When notifying a person under this Part of any decision or action against which section 330 gives him or her a right of appeal, the decision-maker must also notify the person in writing of the right of appeal and the time within which an appeal must be lodged.
334 Actions to have effect pending determination of appeal
A decision or action against which an appeal is lodged under this subpart continues in force unless the appeal authority to which the appeal is brought orders otherwise.
Compare: 2002 No 17 s 36
335 Procedure on appeal
(1)
An appeal under this subpart must be heard as soon as is reasonably practicable after it is lodged.
(2)
An appeal under this subpart is by way of rehearing.
(3)
On hearing the appeal, the appeal authority—
(a)
may confirm, reverse, or modify the decision or action appealed against; and
(b)
may make any other decision or take any other action that the decision-maker could have made.
(4)
The appeal authority must not review—
(a)
any part of a decision or action not appealed against; or
(b)
any decision or action not appealed against at all.
Compare: 2002 No 17 s 37
336 Appeal authority’s decision final
Except as provided in section 340, the decision of the appeal authority on an appeal under this subpart is final.
337 Appeal authority may refer matter back for reconsideration
(1)
Instead of determining an appeal under this subpart, the appeal authority may direct the decision-maker to reconsider, either generally or in respect of any specified aspect, the whole or any part of the decision or action.
(2)
In giving a direction under subsection (1), the appeal authority—
(a)
must state its reasons for the direction; and
(b)
may give any other directions it thinks just as to the matter referred back for reconsideration.
(3)
The decision-maker—
(a)
must reconsider the matter; and
(b)
in doing so, must—
(i)
take the appeal authority’s reasons into account; and
(ii)
give effect to the appeal authority’s directions.
338 Orders as to costs
On an appeal under this subpart, the appeal authority may order any party to the appeal to pay to any other party to the appeal any or all of the costs incurred by the other party in respect of the appeal.
339 Orders as to publication of names
(1)
On an appeal under this subpart, the appeal authority may, if in its opinion it is proper to do so, prohibit the publication of the name or particulars of the affairs of a licensed building practitioner or any other person.
(2)
In deciding whether to make an order under subsection (1), the appeal authority must have regard to—
(a)
the interests of any person (including, without limitation, the privacy of any complainant); and
(b)
the public interest.
(3)
If the appeal authority prohibits the publication of the name or particulars of the affairs of a licensed building practitioner, the Registrar must remove the name or particulars of the affairs of that licensed building practitioner from the register in relation to the matter under appeal to the extent necessary to reflect the appeal authority’s prohibition on publication.
340 Appeal on question of law
(1)
A party to an appeal to the District Court under this subpart may appeal to the High Court against any determination of law arising in the appeal.
(2)
The appeal must be heard and determined in accordance with the appropriate rules of court.
(3)
Subpart 8 of Part 6 of the Criminal Procedure Act 2011 applies as far as applicable with the necessary modifications to every appeal under this section.
(4)
Subsection (3) overrides subsection (2).
Section 340(3): replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Subpart 3—Building Practitioners Board
Establishment of Board
341 Establishment of Board
The Building Practitioners Board is established.
342 Capacity and powers
(1)
The Board has only the statutory powers conferred by this Act and any other Act.
(2)
The Board may exercise its powers only for the purpose of performing its functions.
343 Board’s functions
(1)
The Board’s functions are—
(a)
to approve rules relating to licensed building practitioners that are prepared in accordance with this subpart; and
(b)
to receive, investigate, and hear complaints about, and to inquire into the conduct of, and discipline, licensed building practitioners in accordance with subpart 2; and
(c)
to hear appeals against certain decisions of the Registrar in accordance with subpart 2; and
(d)
to review and report to the Minister on the performance of the functions and duties, and the exercise of the powers, of the Board under this Act in accordance with this subpart.
(2)
The Board may, in accordance with clause 34 of Schedule 3, delegate any or all of its functions under subsection (1)(b) or (c) to a subcommittee of the Board appointed under that clause.
Section 343(2): inserted, on 13 March 2012, by section 71 of the Building Amendment Act 2012 (2012 No 23).
344 Composition of Board
(1)
The Board must have at least 6 members, but not more than 8 members.
(2)
A member must be appointed by the Governor-General on the recommendation of the Minister.
345 Criteria for appointment
(1)
The Minister may recommend a person for appointment as a member of the Board only if, in the Minister’s opinion, the person is qualified for appointment—
(a)
having regard to the functions, duties, and powers of the Board; and
(b)
because of that person’s knowledge, experience, or expertise.
(2)
The Minister may accept nominations for membership of the Board, but each member is appointed to undertake the functions and duties of a member rather than to represent the interests of any person.
(3)
One member of the Board must be a barrister or solicitor of at least 5 years’ standing.
346 Further provisions relating to Board and its members
Schedule 3 applies to the Board and its members.
Reporting by Board
347 Obligation to prepare annual report
The Board must prepare an annual report on its operations for each period ending with 30 June in each year.
348 Form and content of annual report
(1)
An annual report must contain the following information and reports in respect of the period to which it relates:
(a)
a report on operations, including the information that is necessary to enable an informed assessment to be made of the Board’s performance during the period; and
(b)
the number of persons in each licensing class against whom the Board took disciplinary action during the period.
(2)
An annual report must be in writing, dated, and signed on behalf of the Board by 2 members.
Section 348(1)(b): amended, on 15 March 2008, by section 84 of the Building Amendment Act 2008 (2008 No 4).
349 Obligation for Board to provide annual report to Minister
The Board must provide the annual report to the Minister as soon as practicable after 30 June in each year.
350 Board to publish reports
As soon as practicable after giving the annual report to the Minister under section 349, the Board must—
(a)
publicly notify that the report has been given to the Minister and where copies of the report may be inspected and purchased; and
(b)
make copies of the report available to the public at the place set out in the public notification, on request, for inspection free of charge and for purchase at a reasonable cost.
351 Annual reports to be presented to House of Representatives
The Minister must present a copy of the annual report given to him or her under section 349 to the House of Representatives no later than 10 parliamentary working days after the date on which the Minister receives that report.
352 Power of Minister to require information relating to affairs of Board
(1)
The Board must supply to the Minister any information relating to the affairs of the Board that the Minister requests.
(2)
However, a request may be refused if—
(a)
withholding the information is necessary to protect the privacy of any person (including a deceased person); and
(b)
there would, under the Official Information Act 1982, be good reason for withholding the information if—
(i)
the request had been made under section 12 of that Act and section 9(2)(a) of that Act applied; and
(ii)
the need to protect the privacy of any person were not outweighed by the Minister’s need to have the information in order to discharge the Minister’s ministerial duties; and
(c)
the information relates to a particular matter in respect of which the Board or any person appointed or employed by the Board is required to act judicially.
Rules
353 Rules relating to licensed building practitioners
(1)
There must be made, and there must always be, rules containing the following minimum standards (LBP standards):
(a)
minimum standards of competence (including standards relating to knowledge and skills) that must be met for each licensing class; and
(b)
minimum standards for demonstrating current competence for each licensing class that must be met for continued licensing, and for the frequency at which assessments of current competence must be carried out.
(2)
There must be made, and there must always be, rules that govern all of the following matters:
(a)
the information that must be provided by an applicant for licensing, and the way in which this information must be evaluated and decisions on the information must be made and implemented; and
(b)
the information that must be provided by a licensed building practitioner to demonstrate his or her current competence, and the way in which this information must be evaluated and decisions on the information must be made and implemented; and
(c)
the way in which a proposed cancellation or suspension of licensing (that does not relate to a disciplinary matter) is to be considered, decided on, and implemented, and any minimum and maximum periods for suspension.
(3)
The rules must be consistent with this Act.
Compare: 2002 No 17 s 40
Section 353(1)(a): amended, on 15 March 2008, by section 85(1) of the Building Amendment Act 2008 (2008 No 4).
Section 353(1)(b): amended, on 15 March 2008, by section 85(1) of the Building Amendment Act 2008 (2008 No 4).
Section 353(2)(a): amended, on 15 March 2008, by section 85(2) of the Building Amendment Act 2008 (2008 No 4).
Section 353(2)(c): amended, on 15 March 2008, by section 85(2) of the Building Amendment Act 2008 (2008 No 4).
354 Chief executive to prepare proposed rules
The chief executive must prepare proposed rules under section 353.
355 Particular requirements for preparation of rules containing LBP standards
In preparing a rule containing LBP standards, the chief executive must—
(a)
ensure that the proposed rule is consistent with the purposes of this Act; and
(b)
consult with licensed building practitioners or any persons whom the chief executive reasonably considers to be representative of licensed building practitioners or of other persons or classes of persons affected by the proposed rule; and
(c)
take into account international best practice and New Zealand’s international obligations.
Compare: 2002 No 17 s 41
356 Rules to be approved by Board
(1)
The chief executive must submit proposed rules for the approval of the Board.
(2)
The Board must, as soon as practicable after receiving a proposed rule for approval, by written notice to the chief executive,—
(a)
approve it; or
(b)
decline to approve it.
357 Revision of rules
If the Board declines to approve a proposed rule,—
(a)
the Board must indicate the grounds on which it declines to approve it; and
(b)
the Board must direct the chief executive to prepare and submit a revised proposed rule; and
(c)
the chief executive must submit a revised proposed rule to the Board not later than 15 working days after the date on which approval was declined or any later date that the Board in any particular case may allow.
358 Approval of revised rule
(1)
As soon as practicable after receiving a revised proposed rule, the Board must—
(a)
approve the rule by written notice to the chief executive; or
(b)
if the Board considers that the revised proposed rule requires further amendment,—
(i)
make any amendments to the rule that the Board considers necessary; and
(ii)
approve the rule (as amended) by written notice to the chief executive, which notice must be accompanied by a copy of the rule as approved.
(2)
Before making an amendment to a rule under this section, the Board must—
(a)
advise the chief executive of the Board’s intention to do so; and
(b)
give the chief executive a reasonable opportunity to make submissions on the matter; and
(c)
consider those submissions.
359 Requirements of sections 355 to 358 relate to amendments and revocations by Board
The requirements of sections 355 to 358 that apply to making a rule apply also to an amendment or revocation of that rule.
360 Rules to be approved by Minister
(1)
The Board must submit the proposed rules for the approval of the Minister.
(2)
The Minister must, as soon as practicable after receiving a proposed rule for approval, by written notice to the Board,—
(a)
approve it; or
(b)
decline to approve it.
361 Rules made when approved by Minister
The rules are made once they are approved by the Minister.
362 Status of rules
The rules are a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.
Section 362: replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).
Part 4A Consumer rights and remedies in relation to residential building work
Part 4A: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
Preliminary provisions
Heading: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362A Outline of this Part
This Part protects consumers (referred to in this Part as clients) in relation to residential building work by—
(a)
requiring certain information to be provided before a residential building contract is entered into; and
(b)
prescribing minimum requirements for residential building contracts over a certain value; and
(c)
implying warranties into residential building contracts; and
(d)
providing remedies for breach of the implied warranties; and
(e)
requiring defective building work under a residential building contract to be remedied if notified within 1 year of completion; and
(f)
requiring certain information and documentation to be provided on completion of building work under a residential building contract.
Section 362A: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362B Meaning of building work and residential building contract
(1)
In this Part, unless the context otherwise requires,—
building work does not include design work, and paragraph (c) of the definition of building work in section 7 does not apply to this Part
residential building contract—
(a)
means a contract under which one person (the building contractor) agrees with another person (the client) to do building work for the client in relation to a household unit; but
(b)
does not include a subcontracting agreement between a building contractor and a building subcontractor.
(2)
On section 6(8) of the Building Amendment Act 2012 coming into force, and in the following order,—
(a)
first, the definition of building work in subsection (1) is repealed and the following definition substituted:
building work does not include design work, and paragraphs (c) and (e) of the definition of building work in section 7 do not apply to this Part
(b)
second, this subsection is repealed.
Section 362B: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362C Consumer rights under Fair Trading Act 1986 or Consumer Guarantees Act 1993 not affected by this Part
Nothing in this Part limits or derogates from the provisions of the Fair Trading Act 1986 or the Consumer Guarantees Act 1993.
Section 362C: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
Pre-contract information
Heading: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362D Building contractor must provide information before residential building contract entered into
(1)
This section applies to a residential building contract if—
(a)
the price for the building work is not less than the prescribed minimum price (if any); or
(b)
the client has requested the prescribed disclosure information (if any) and prescribed checklist (if any).
(2)
A building contractor must not enter into a residential building contract to which this section applies unless the building contractor has first provided to the client (or each client if there is more than 1)—
(a)
the prescribed disclosure information (if any); and
(b)
a prescribed checklist (if any).
(3)
The disclosure information and the checklist must each be in the form prescribed by regulations (if any).
(4)
A person who contravenes subsection (2)(a) or (b) commits an infringement offence and is liable to a fine not exceeding $2,000.
(5)
A person commits an offence who, in any communication or document required to be made or given under subsection (2)(a), knowingly makes a statement that is false or misleading in a material particular or knowingly makes a material omission.
(6)
A person who commits an offence under subsection (5) is liable on conviction to a fine not exceeding $20,000.
Section 362D: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362E Purpose of regulations under section 362D
(1)
The purpose of regulations prescribing disclosure information under section 362D(2)(a) is to give a client information about a building contractor, and the prescribed disclosure information may include (but is not limited to) information relating to the following:
(a)
the legal status of the building contractor, for example, whether the building contractor is an individual, a partnership, or a limited liability company:
(b)
the dispute history of the building contractor:
(c)
the skills, qualifications, and licensing status of the building practitioners who will be doing the building work:
(d)
if the building contractor is a limited liability company, the role of each director and the business history of each director.
(2)
The purpose of regulations prescribing a checklist under section 362D(2)(b) is to provide guidance to a client on the matters that a client should take into consideration when entering into a residential building contract, and the prescribed checklist may include (but is not limited to) the following:
(a)
an explanation of the legal obligations of both the client and the building contractor in relation to the building work:
(b)
an outline of the risks associated with payment in advance of completion of the building work:
(c)
a summary of dispute resolution options:
(d)
a list of sources for further advice and information.
Section 362E: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
Minimum requirements for residential building contract
Heading: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362F Minimum requirements for residential building contract over certain value
(1)
This section applies to a residential building contract if the price for the building work is not less than the prescribed minimum price (if any).
(2)
A residential building contract to which this section applies must—
(a)
be in writing; and
(b)
be dated; and
(c)
comply with regulations (if any) made under section 362G.
(3)
A building contractor must not enter into a residential building contract to which this section applies unless the requirements of subsection (2) have been complied with.
(4)
A person who contravenes subsection (3) by entering into an unwritten contract commits an infringement offence and is liable to a fine not exceeding $2,000.
Section 362F: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362G Regulations may prescribe content, etc of residential building contract
(1)
Regulations may be made requiring, as a minimum that must be contained in a residential building contract, all or any of the following matters:
(a)
the content of the contract:
(b)
categories or types of information:
(c)
specified information:
(d)
categories or types of clauses or terms:
(e)
specified clauses or terms.
(2)
For the purposes of subsection (1) and without limitation to the matters set out in the following paragraphs, the regulations may require, as matters that must be contained in a residential building contract, matters relating to—
(a)
the parties:
(b)
dispute resolution:
(c)
the process for varying the contract:
(d)
the timeframe for performing the contract:
(e)
the payment process.
(3)
The regulations may,—
(a)
if there is no written contract as required by section 362F(2)(a), stipulate that 1 or more prescribed specified clauses (if any) are taken to be included in the contract; and
(b)
if there is a written contract but it does not include a matter specified by the regulations, stipulate that 1 or more prescribed specified clauses (if any) are taken to be included in the contract.
(4)
Subsection (3) applies despite any provision to the contrary in any agreement or contract.
Section 362G: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
Implied warranties
Heading: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362H When provisions relating to implied warranties apply
(1)
Sections 362I to 362K apply—
(a)
to any of the following contracts entered into on or after the date on which this section comes into force:
(i)
a residential building contract, whether written or oral; or
(ii)
a contract for the sale of 1 or more household units by, or on behalf of, an on-seller; and
(b)
despite any provision to the contrary in any agreement or contract.
(2)
For the purposes of sections 362I to 362K, a contract by or on behalf of an on-seller for the sale of 1 or more household units—
(a)
is taken to be a contract for the building work already carried out or still to be carried out in building the household unit or units; and
(b)
is taken to incorporate as the obligations of the on-seller the obligations of the building contractor under a residential building contract.
(3)
In subsection (1)(a)(ii), on-seller means a person who does any of the following things in relation to a household unit for the purpose of on-selling the household unit:
(a)
builds the household unit by himself or herself or with the assistance of others:
(b)
in trade arranges for the household unit to be built or acquires the household unit from a person who built it or arranged for it to be built:
(c)
acquires the household unit in a transaction that is intended to defeat the purpose and effect of subsection (2).
Section 362H: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362I Implied warranties for building work in relation to household units
(1)
In every contract to which this section applies, the following warranties about building work to be carried out under the contract are implied and are taken to form part of the contract:
(a)
that the building work will be carried out—
(i)
in a proper and competent manner; and
(ii)
in accordance with the plans and specifications set out in the contract; and
(iii)
in accordance with the relevant building consent:
(b)
that all materials to be supplied for use in the building work—
(i)
will be suitable for the purpose for which they will be used; and
(ii)
unless otherwise stated in the contract, will be new:
(c)
that the building work will be carried out in accordance with, and will comply with, all laws and legal requirements, including, without limitation, this Act and the regulations:
(d)
that the building work will—
(i)
be carried out with reasonable care and skill; and
(ii)
be completed by the date (or within the period) specified in the contract or, if no date or period is specified, within a reasonable time:
(e)
that the household unit, if it is to be occupied on completion of building work, will be suitable for occupation on completion of that building work:
(f)
if the contract states the particular purpose for which the building work is required, or the result that the owner wishes the building work to achieve, so as to show that the owner relies on the skill and judgement of the other party to the contract, that the building work and any materials used in carrying out the building work will—
(i)
be reasonably fit for that purpose; or
(ii)
be of such a nature and quality that they might reasonably be expected to achieve that result.
(2)
Subsection (1) has effect despite any provision to the contrary in any contract or agreement, and despite any provision of any other enactment or rule of law.
Section 362I: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362J Proceedings for breach of warranties may be taken by non-party to contract
(1)
An owner of the building or land in respect of which building work was carried out under a contract to which this section applies may take proceedings for a breach of any of the warranties set out in section 362I whether or not that person was a party to the contract.
(2)
In this section, proceedings includes—
(a)
adjudication under the Construction Contracts Act 2002; and
(b)
a claim under the Weathertight Homes Resolution Services Act 2006; and
(c)
arbitration under the Arbitration Act 1996.
Section 362J: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362K Person may not give away benefit of warranties
A provision of an agreement or instrument that purports to restrict or remove the right of a person to take proceedings for a breach of any of the warranties set out in section 362I is of no effect in so far as the provision relates to a breach other than a breach that was known, or ought reasonably to have been known, by the person to exist at the time the agreement or instrument was executed.
Section 362K: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
Remedies for breach of implied warranty
Heading: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362L Remedies for breach of implied warranty
(1)
A person who has the benefit of an implied warranty set out in section 362I has the remedies set out in sections 362M to 362P for breach of that warranty.
(2)
In sections 362M to 362P, the person who has the benefit of an implied warranty—
(a)
is called the client; and
(b)
except for the purposes of section 362M(3)(b) or 362N(2)(b), includes the owner of the building or land in respect of which building work was carried out under a contract to which the implied warranty applies, whether or not that person was a party to the contract.
(3)
In sections 362M to 362P, the person who is liable to remedy the breach is called the building contractor.
(4)
Nothing in this section limits or derogates from any remedy for defective building work expressly provided for in a residential building contract, and nothing in any residential building contract limits or derogates from any of the remedies set out in sections 362M to 362P.
Section 362L: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362M Remedies if breach of warranty can be remedied
(1)
This section applies in any case where the breach of warranty can be remedied.
(2)
If this section applies, the client may require the building contractor to remedy the breach (including repairing or replacing defective materials supplied by the building contractor or the building contractor’s subcontractor).
(3)
If the building contractor, after being required to remedy the breach, refuses or neglects to do so, or does not succeed in doing so within a reasonable time, the client may—
(a)
have the breach remedied by someone else and recover from the building contractor all reasonable costs incurred in having the breach remedied; or
(b)
cancel the contract in accordance with section 362P.
(4)
In addition to the remedies in subsections (2) and (3), the client may obtain from the building contractor damages for any loss or damage to the client resulting from the breach (other than loss or damage through reduction in the value of the product of the building work) that was reasonably foreseeable as liable to result from the breach.
Section 362M: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362N Remedies if breach of warranty cannot be remedied or breach is substantial
(1)
This section applies in any case where the breach of warranty cannot be remedied or the breach is substantial.
(2)
If this section applies, the client may—
(a)
obtain from the building contractor damages in compensation for any reduction in value of the product of the building work below the price paid or payable by the client for that work; or
(b)
cancel the contract in accordance with section 362P.
(3)
In addition to the remedy in subsection (2), the client may obtain from the building contractor damages for any loss or damage to the client resulting from the breach (other than loss or damage through reduction in the value of the product of the building work) that was reasonably foreseeable as liable to result from the breach.
Section 362N: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362O Meaning of substantial breach
For the purposes of section 362N, a breach of warranty is substantial if—
(a)
a reasonable client fully acquainted with the nature and extent of the breach would not have entered into the residential building contract; or
(b)
in any case to which section 362I(1)(f) applies, the building work—
(i)
is unfit for the particular purpose stated in the residential building contract; or
(ii)
is of such a nature and quality that it cannot be expected to produce the desired result stated in the residential building contract; or
(c)
the building work is unsafe.
Section 362O: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362P Rules applying to cancellation
(1)
The cancellation of a contract under section 362M(3)(b) or 362N(2)(b) does not take effect—
(a)
before the time at which the cancellation is made known to the building contractor; or
(b)
where it is not reasonably practicable to communicate with the building contractor, before the time at which the client indicates, by means that are reasonable in the circumstances, the client’s intention to cancel the contract.
(2)
Subject to subsection (3), the cancellation may be made known by words, or by conduct indicating an intention to cancel, or both, and it is not necessary to use any particular form of words, so long as the intention to cancel is made known.
(3)
Where it is reasonably practicable to communicate with the building contractor, subsection (2) takes effect subject to any provision in the contract requiring notice of cancellation in writing.
(4)
Sections 42 to 48 of the Contract and Commercial Law Act 2017 apply, with all necessary modifications, to the cancellation of a contract under section 362M(3)(b) or 362N(2)(b).
Section 362P: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
Section 362P(4): amended, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).
Remedy of defect notified within 1 year of completion
Heading: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362Q Building contractor or on-seller must remedy defect notified within 1 year of completion
(1)
This section applies if—
(a)
building work is carried out in relation to a household unit; and
(b)
the building work is defective; and
(c)
the defect is able to be remedied; and
(d)
the building work is carried out by or on behalf of a building contractor or the household unit is purchased from an on-seller (as defined in section 362H(3)).
(2)
In any case to which this section applies, the client may give notice, within 12 months from completion of the building work, to either the building contractor or the on-seller (if there is one) requiring that person to remedy the defect.
(3)
In any case to which this section applies, the building contractor or the on-seller, as the case may be, to whom notice has been given in accordance with subsection (2) must remedy the defect (including repairing or replacing defective materials used in the building work) within a reasonable time of notification in writing of the defect.
(4)
In any case in which it is asserted against a building contractor or an on-seller that this section applies, the matters referred to in subsection (1) are presumed unless the contrary is proven.
(5)
In addition to the remedy in subsection (3), the client may obtain from the building contractor or the on-seller damages for any loss or damage to the client resulting from the defect (other than loss or damage through reduction in value of the product of the building work) that was reasonably foreseeable as liable to result from the defect.
(6)
Nothing in this section affects the warranties set out in section 362I or limits the time for enforcing any of those warranties.
(7)
This section does not apply to building work carried out—
(a)
before this section comes into force; or
(b)
under a contract entered into before this section comes into force.
Section 362Q: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362R Definitions for purposes of section 362Q
(1)
In section 362Q, client—
(a)
means any of the following:
(i)
the person or persons with whom the building contractor contracted to do the building work in question:
(ii)
the person or persons who purchased the household unit from the on-seller:
(iii)
the owner of the building or land in respect of which the building work was carried out, whether or not that person was a party to the building contract or contract of sale; but
(b)
does not include a building contractor in that capacity contracting with another building contractor (for example, a contractor and subcontractor).
(2)
In section 362Q, on-seller has the same meaning as in section 362H(3).
(3)
In section 362Q(1)(d), building work carried out on behalf of a building contractor includes building work carried out on behalf of the building contractor by any of the following persons:
(a)
an employee of the building contractor:
(b)
another contractor:
(c)
a subcontractor:
(d)
any other person for whom the building contractor is responsible in law.
Section 362R: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
Exclusion of liability for event not attributable to fault of building contractor or on-seller
Heading: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362S Exclusion of liability for event not attributable to fault of building contractor or on-seller
(1)
A building contractor is not liable under sections 362H to 362R for any defect in a building or breach of warranty to the extent that the defect or breach is caused by any of the following that occurs during or after completion of the building work in question:
(a)
a cause independent of human control:
(b)
any act or omission, including accidental damage, by a person who is none of the following:
(i)
the building contractor:
(ii)
a subcontractor to the building contractor:
(iii)
a person for whom the building contractor is responsible in law:
(c)
failure to carry out normal maintenance:
(d)
failure to carry out, or cause to be carried out, repairs as soon as practicable after the defect becomes apparent.
(2)
In any proceeding against a building contractor to enforce a warranty or remedy contained in sections 362H to 362Q, the onus is on the building contractor to prove that the cause of the defect or breach was 1 or more of the causes set out in subsection (1).
(3)
In this section, building contractor includes, with all necessary modifications, an on-seller as defined in section 362H(3).
Section 362S: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
Information and documentation to be provided on completion of residential building contract
Heading: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362T Building contractor must provide prescribed information and documentation on completion of residential building work
(1)
This section applies where a building contractor has carried out building work under a residential building contract.
(2)
As soon as practicable after completion of the building work, the building contractor must provide in writing the information and documentation prescribed by regulations made under this Act to the following persons:
(a)
the client; and
(b)
the relevant territorial authority.
(3)
The regulations referred to in subsection (2) may prescribe different information and documentation to be provided to the client and the relevant territorial authority.
(4)
A person who contravenes subsection (2) commits an infringement offence and is liable to a fine not exceeding $2,000.
Section 362T: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362U Purpose of regulations under section 362T(2)
The purpose of regulations prescribing information and documentation under section 362T(2) is to ensure that the owner and future owners of the building have knowledge of who carried out the building work and access to information or knowledge about the ongoing maintenance requirements of the building, and the prescribed information and documentation may include (but is not limited to) information and documentation relating to the following:
(a)
the identity of the building contractor:
(b)
any guarantee or insurance obtained by the building contractor in relation to the building work:
(c)
maintenance requirements for any products incorporated in the building.
Section 362U: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
Offence by commercial on-seller
Heading: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
362V Offence for commercial on-seller to transfer household unit without code compliance certificate
(1)
A commercial on-seller commits an offence if the commercial on-seller does either or both of the following things before a code compliance certificate is issued in relation to a household unit:
(a)
completes a sale of the household unit:
(b)
allows a purchaser of the household unit to enter into possession of the household unit.
(2)
Subsection (1) does not apply if the commercial on-seller and the purchaser of the household unit enter into a written agreement, in the form (if any) prescribed by regulations made under this Act, that the commercial on-seller may do either or both of the things referred to in that subsection before a code compliance certificate is issued in relation to the household unit concerned.
(3)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $200,000.
(4)
Subsection (1) does not apply if the contract for the sale and purchase of the household unit was entered into before 30 November 2004.
(5)
In this section, commercial on-seller means a person who, in trade, does any of the following things in relation to a household unit for the purpose of selling the household unit:
(a)
builds the household unit; or
(b)
arranges for the household unit to be built; or
(c)
acquires the household unit from a person who built it or arranged for it to be built; or
(d)
acquires the household unit in a transaction that is intended to defeat the purpose and effect of subsection (1).
(6)
On section 6(3) of the Building Amendment Act 2012 coming into force, and in the following order,—
(a)
first,—
(i)
the heading to this section is amended by omitting “code compliance certificate”
and substituting “consent completion certificate”
; and
(ii)
subsections (1) and (2) are amended by omitting “code compliance certificate”
and substituting “consent completion certificate”
; and
(b)
second, this subsection is repealed.
Section 362V: inserted, on 1 January 2015, by section 56 of the Building Amendment Act 2013 (2013 No 100).
Part 5 Miscellaneous provisions
Subpart 1—Other offences and criminal proceedings
Offence relating to building control
362W Premises in respect of which duty arises under section 363
(1)
This section applies to premises that—
(a)
are intended to be open to members of the public or are being used by members of the public; and
(b)
comprise all or part of a building.
(2)
For the purposes of subsection (1), premises may be intended to be open to members of the public—
(a)
whether or not members of the public are charged for their use (or, as the case may be, whether or not it is intended that members of the public are to be charged for their use); and
(b)
whether or not members of the public will, regularly or from time to time, be excluded from them.
Section 362W: inserted, as section 362A, on 14 April 2005, by section 22(1) of the Building Amendment Act 2005 (2005 No 31).
Section 362W section number: replaced, on 1 January 2015, by section 57 of the Building Amendment Act 2013 (2013 No 100).
363 Protecting safety of members of public using premises open to public or intended for public use
(1)
A person who owns, occupies, or controls premises to which section 362W applies must not use, or permit the use of, any part of the premises that is affected by building work—
(a)
if—
(i)
a building consent is required for the work; but
(ii)
no building consent has been granted for it; or
(b)
if a building consent has been granted for the work, but—
(i)
no code compliance certificate has been issued for the work; and
(ii)
no certificate for public use has been issued under section 363A for the part; or
(c)
if a building consent has been granted for the work, and a certificate for public use has been issued under section 363A for the part, but—
(i)
no code compliance certificate has been issued for the work; and
(ii)
the certificate for public use has been issued for the part subject to conditions that have not been complied with.
(2)
For the purposes of subsection (1), a part of premises may be affected by building work—
(a)
whether or not the work has been completed; and
(b)
whether the work is being or has been done to or in, or involves or involved the building of,—
(i)
the part itself; or
(ii)
some other part of the building that the premises comprise or form part of.
(3)
A person who fails to comply with subsection (1) commits an offence.
(4)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $200,000 and, in the case of a continuing offence, to a further fine not exceeding $20,000 for every day or part of a day during which the offence has continued.
Section 363: replaced, on 14 April 2005, by section 22(1) of the Building Amendment Act 2005 (2005 No 31).
Section 363(1): amended, on 1 January 2015, by section 58 of the Building Amendment Act 2013 (2013 No 100).
Section 363(4): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
363A Public use of premises may be allowed before issue of code compliance certificate in some circumstances
(1)
A person who owns, occupies, or controls premises to which section 362W applies may apply in the prescribed form to the territorial authority for a certificate for public use for the premises or a part of the premises if—
(a)
a building consent has been granted for building work affecting the premises or part; and
(b)
no code compliance certificate has been issued for the work.
(2)
The territorial authority may issue a certificate for public use for the premises or part if, and only if, satisfied on reasonable grounds that members of the public can use the premises or part (as the case may be) safely.
(3)
A certificate for public use—
(a)
must be in the prescribed form; and
(b)
may be issued subject to conditions.
(4)
The territorial authority must decide whether to issue the certificate—
(a)
within 20 working days after the authority receives an application for it; or
(b)
within any further period agreed between the applicant and the authority.
(5)
Within the period stated in subsection (4), the territorial authority may require the applicant to give it further reasonable information in respect of the application; and if it does so, the period is suspended until it receives the information.
(6)
Nothing in this section relieves the owner of a building from the obligation imposed by section 92(1) to apply to a building consent authority for a code compliance certificate after all building work to be carried out under a building consent granted to the owner is completed.
Section 363A: inserted, on 14 April 2005, by section 22(1) of the Building Amendment Act 2005 (2005 No 31).
Section 363A(1): amended, on 1 January 2015, by section 59 of the Building Amendment Act 2013 (2013 No 100).
363B Application of section 363 to building work where consent granted, or work begun, before 31 March 2005
[Repealed]Section 363B: repealed, on 13 March 2012, by section 74 of the Building Amendment Act 2012 (2012 No 23).
363C Section 363 does not apply to building work commenced before 31 March 2005
(1)
Section 363(1) does not apply to building work commenced before 31 March 2005.
(2)
Subsection (1) applies whether or not the work was completed before, on, or after 31 March 2005.
Section 363C: replaced, on 13 March 2012, by section 75 of the Building Amendment Act 2012 (2012 No 23).
364 Offence for residential property developer to transfer household unit without code compliance certificate
[Repealed]Section 364: repealed, on 1 January 2015, by section 60 of the Building Amendment Act 2013 (2013 No 100).
Offences relating to administration of Act
365 Offence to fail to comply with direction of authorised person
(1)
A person commits an offence if the person intentionally fails to comply with a direction given by a person who is authorised to give the direction by this Act or by the regulations.
(2)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Compare: 1991 No 150 s 80(g)
Section 365(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
366 Offence to impersonate building consent authority or regional authority, etc
(1)
A person commits an offence if the person impersonates—
(a)
a building consent authority or regional authority; or
(b)
an officer or employee of a building consent authority or regional authority.
(2)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Compare: 1991 No 150 s 80(h)
Section 366(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
367 Offence to obstruct execution of powers under this Act
(1)
A person commits an offence if the person wilfully obstructs, hinders, or resists a person in the execution of powers conferred on that person by this Act or by the regulations.
(2)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Compare: 1991 No 150 s 80(j)
Section 367(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Miscellaneous offences
368 Offence to remove or deface notices
(1)
A person commits an offence if the person—
(a)
wilfully removes or defaces any notice published under this Act; or
(b)
incites another person to do so.
(2)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Compare: 1991 No 150 s 80(k)
Section 368(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
369 Offence to make false or misleading statement
(1)
A person commits an offence if the person, in any communication, application, or document that is required to be made or given under this Act or by the regulations,—
(a)
knowingly makes a written or oral statement that is false or misleading in a material particular; or
(b)
knowingly makes a material omission.
(2)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Section 369(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Proceedings for infringement offences
370 Interpretation
In this section and sections 371 to 374,—
enforcement officer means a person who, under section 371A, may issue an infringement notice
infringement fee, in relation to an infringement offence, means the amount prescribed by regulations made under section 402 as the infringement fee for the offence
infringement offence means—
(a)
an offence that is declared, by regulations made under section 402, to be an infringement offence for the purposes of this Act; or
(b)
an offence that is stated by a provision of this Act to be an infringement offence.
Section 370 enforcement officer: inserted, on 28 November 2013, by section 61(1) of the Building Amendment Act 2013 (2013 No 100).
Section 370 infringement offence: replaced, on 28 November 2013, by section 61(2) of the Building Amendment Act 2013 (2013 No 100).
371 Proceedings for infringement offences
(1)
A person who is alleged to have committed an infringement offence may either—
(a)
be proceeded against by filing a charging document under section 14 of the Criminal Procedure Act 2011; or
(b)
be served with an infringement notice under section 372.
(2)
If an infringement notice has been issued under section 372, proceedings for the offence to which the notice relates may be commenced in accordance with section 21 of the Summary Proceedings Act 1957, and in that case the provisions of that section apply with all necessary modifications.
Section 371(1)(a): replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
371A Who may issue infringement notices
(1)
The following persons may issue infringement notices:
(a)
any person who has been authorised by the chief executive under section 371B(1):
(b)
any officer of a territorial authority who has been authorised by the territorial authority under section 371B(2).
(2)
In this section and in sections 371B and 371D, person means a natural person.
Section 371A: inserted, on 28 November 2013, by section 62 of the Building Amendment Act 2013 (2013 No 100).
371B Authorisation to issue infringement notice
(1)
The chief executive may authorise any person to issue infringement notices under section 372.
(2)
A territorial authority may authorise any of its officers to issue infringement notices under section 372.
(3)
The chief executive or territorial authority, as the case may be, must issue the person authorised (the enforcement officer) with a warrant that clearly states the functions and powers that the enforcement officer has been authorised to perform or exercise under this Act.
Section 371B: inserted, on 28 November 2013, by section 62 of the Building Amendment Act 2013 (2013 No 100).
371C Conditions of authorisation
(1)
An enforcement officer authorised under section 371B who exercises or purports to exercise the power to issue an infringement notice under section 372 must—
(a)
carry on him or her—
(i)
the warrant issued under section 371B(3); and
(ii)
evidence of his or her identity; and
(b)
if required to do so, produce the warrant and evidence referred to in paragraph (a).
(2)
An enforcement officer who holds a warrant issued under section 371B(3) must, on the termination of his or her appointment as an enforcement officer, surrender the warrant to the chief executive or the territorial authority, as the case may be.
Section 371C: inserted, on 28 November 2013, by section 62 of the Building Amendment Act 2013 (2013 No 100).
371D Offence to impersonate enforcement officer
(1)
A person commits an offence if the person impersonates or falsely pretends to be an enforcement officer named in a warrant issued under section 371B(3).
(2)
A person who commits an offence under this section is liable on conviction to a fine not exceeding $5,000.
Section 371D: inserted, on 28 November 2013, by section 62 of the Building Amendment Act 2013 (2013 No 100).
372 Issue of infringement notices
(1)
An infringement notice may be served on a person if an enforcement officer—
(a)
observes the person committing an infringement offence; or
(b)
has reasonable cause to believe that an infringement offence is being or has been committed by that person.
(2)
An infringement notice may be served—
(a)
by an enforcement officer (not necessarily the person who issued the notice) personally delivering it (or a copy of it) to the person alleged to have committed the infringement offence; or
(b)
by post addressed to the person’s last known place of residence or business.
(3)
An infringement notice sent to a person under subsection (2)(b) must be treated as having been served on that person when it was posted.
Section 372(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
373 Form of infringement notices
An infringement notice must be in the prescribed form and must contain the following particulars:
(a)
sufficient particulars to inform the person served with the notice of the time, place, and nature of the alleged offence; and
(b)
the amount of the infringement fee prescribed for the offence; and
(c)
the time within which the infringement fee must be paid; and
(d)
the address of the place at which the infringement fee must be paid; and
(e)
a summary of the provisions of section 21(10) of the Summary Proceedings Act 1957; and
(f)
a statement of the person’s right to request a hearing; and
(g)
a statement of what will happen if the person neither pays the infringement fee nor requests a hearing; and
(h)
any other particulars that may be prescribed.
374 Payment of infringement fees
The infringement fee paid in respect of an infringement offence must be paid,—
(a)
in the case of an infringement notice issued by a person authorised by a territorial authority, to that territorial authority:
(b)
in the case of an infringement notice issued by the chief executive or by a person authorised by the chief executive, to the chief executive.
Section 374: replaced, on 28 November 2013, by section 63 of the Building Amendment Act 2013 (2013 No 100).
Proceedings for offences generally
375 Prosecution of offences
(1)
Except as otherwise provided in this Act, all offences against this Act may be prosecuted, and all fines or sums of money imposed or declared to be due or owing by or under this Act may be sued for and recovered before a court of competent jurisdiction.
(2)
In this section, court of competent jurisdiction means a court having jurisdiction for punishment of offences of the same nature or for the recovery of fines or sums of money of the relevant amount.
Compare: 1991 No 150 s 85
376 Offences punishable on summary conviction
[Repealed]Section 376: repealed, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
377 Filing charging document
Any of the following persons may file a charging document for an offence against this Act:
(a)
the chief executive; or
(b)
a territorial authority; or
(c)
a regional authority; or
(d)
any person referred to in section 176(g).
Section 377 heading: replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 377: amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
378 Time limit for filing charging document
Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011, the limitation period in respect of an offence against this Act ends on the date that is 6 months after the date when the matter giving rise to the charge first became known, or should have become known, to any of the following persons:
(a)
the chief executive; or
(b)
a territorial authority; or
(c)
a regional authority; or
(d)
any person referred to in section 176(g).
Section 378: replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
379 Offence under more than 1 enactment
(1)
A person who does any act or makes any default that constitutes an offence against this Act and any other Act may be proceeded against and punished either under this Act or under that other Act.
(2)
No one is liable to be punished under both this Act and under another Act in respect of the same act or default.
380 What constitutes continuing offence
The continued existence of anything, or the intermittent repetition of any action, contrary to any provision of this Act is taken to be a continuing offence.
381 District Court may grant injunctions for certain continuing breaches
(1)
On the application of any person referred to in subsection (2), the District Court may grant an injunction or make some other appropriate order if it appears to the District Court that—
(a)
a person is committing or is about to commit a breach of section 40 or section 168; or
(b)
a building is dangerous or insanitary in terms of subpart 6 of Part 2 and the territorial authority has failed to take appropriate action; or
(ba)
a building or a part of a building is earthquake prone in terms of subpart 6A of Part 2 and the territorial authority has failed to take appropriate action; or
(c)
a dam is dangerous in terms of subpart 7 of Part 2 and the regional authority has failed to take appropriate action.
(2)
The persons are—
(a)
the chief executive; or
(b)
a territorial authority; or
(c)
a regional authority; or
(d)
any person referred to in section 176(g).
(3)
An injunction may be granted, or an order may be made, under subsection (1)—
(a)
even if proceedings for the offence constituted by the breach have not been taken; or
(b)
if the person is convicted of that offence, either—
(i)
in the proceedings for the offence, in substitution for, or in addition to, any penalty imposed for the offence; or
(ii)
in subsequent proceedings.
Compare: 1991 No 150 s 81(1), (5)
Section 381(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 381(1)(a): amended, on 15 March 2008, by section 86 of the Building Amendment Act 2008 (2008 No 4).
Section 381(1)(b): amended, on 1 July 2017, by section 37(1) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 381(1)(ba): inserted, on 1 July 2017, by section 37(2) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
382 Terms of injunction or order
(1)
An injunction may be granted, or an order may be made, under section 381—
(a)
restraining the person concerned from engaging in the conduct described in section 381(1)(a) or (b) or (c); or
(b)
for the purpose of ensuring that the person does not engage in that conduct.
(2)
The injunction may be granted and the order made on any other terms that the District Court considers appropriate.
(3)
In the case of a building that does not comply with the provisions of the building code, the injunction or order may be issued in respect of the owner of the building, whether or not the owner has committed an offence against section 40 or section 168, and without prejudice to the liability of any other person.
(4)
The District Court may, at any time, rescind or vary an injunction granted or order made under section 381.
Compare: 1991 No 150 s 81(3)
383 District Court may direct chief executive to make determination
On an application under section 381(1), the District Court may direct the chief executive to make a determination under subpart 1 of Part 3 in respect of any matters that the court specifies.
Compare: 1991 No 150 s 81(2)
384 District Court may grant interim injunctions
(1)
If an application is made to the District Court under section 381(1) for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the District Court may,—
(a)
if it is satisfied that the person has engaged in conduct of that kind, grant an injunction restraining the person from engaging in conduct of that kind; or
(b)
if in the District Court’s opinion it is desirable to do so, grant an interim injunction restraining the person from engaging in conduct of that kind.
(2)
Subsection (1) applies whether or not it appears to the District Court that the person intends to engage again, or to continue to engage, in conduct of the kind referred to in that subsection.
Compare: 1991 No 150 s 81(4)
385 Application of section 381 to Crown organisation
(1)
Despite section 17(1)(a) of the Crown Proceedings Act 1950,—
(a)
the District Court may, under section 381, grant an injunction against a Crown organisation, but only in its own name; and
(b)
for the purposes of imposing or enforcing an injunction referred to in paragraph (a), the Crown organisation, if not a body corporate, is to be treated as if it were a separate legal personality.
(2)
If the District Court grants an injunction against a Crown organisation, the provisions of sections 381 to 384 apply with all necessary modifications.
Compare: 1991 No 150 s 81
386 Liability of principal for acts of agents
(1)
The consequence specified in subsection (2) applies if a person (person A) commits an offence against this Act while acting as an agent (including a contractor) or employee of another person (person B).
(2)
Person B is liable under this Act in the same manner and to the same extent as if person B had personally committed the offence.
(3)
The liability of person B under subsection (2) is without prejudice to the liability of person A.
(4)
Despite subsection (2), if proceedings are brought under that subsection, it is a defence if the defendant proves,—
(a)
in the case of a natural person (including a partner in a firm), that—
(i)
he or she did not know nor could reasonably be expected to have known that the offence was to be or was being committed; or
(ii)
he or she took all reasonable steps to prevent the commission of the offence; or
(b)
in the case of a body corporate, that—
(i)
neither the directors nor any person involved in the management of the body corporate knew or could reasonably be expected to have known that the offence was to be or was being committed; or
(ii)
the body corporate took all reasonable steps to prevent the commission of the offence; and
(c)
in all cases, that the defendant took all reasonable steps to remedy any effects of the act or omission giving rise to the offence.
(5)
If a body corporate is convicted of an offence against this Act, every director and every person concerned in the management of the body corporate is guilty of the same offence if it is proved—
(a)
that the act that constituted the offence took place with that person’s authority, permission, or consent; and
(b)
that he or she knew or could reasonably be expected to have known that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.
Compare: 1991 No 150 s 82A
387 Liability for acts of employees or agents of Crown organisations
(1)
Section 386 does not apply if a person acting as agent or employee of a Crown organisation commits an offence under this Act.
(2)
If an offence referred to in section 6(1)(a) of the Crown Organisations (Criminal Liability) Act 2002 is committed by a person acting as the agent or employee of a Crown organisation, the Crown organisation must (without affecting the personal liability of the agent or employee) be treated for all legal purposes as having committed that offence.
(3)
Despite subsection (2), if proceedings for an offence referred to in section 6(1)(a) of the Crown Organisations (Criminal Liability) Act 2002 are brought against a Crown organisation in reliance on subsection (2), it is a good defence if the Crown organisation proves that—
(a)
the organisation took all reasonable steps to remedy any effects of the act or omission constituting the offence; and
(b)
either—
(i)
no person involved in the management of the organisation knew or could reasonably be expected to have known that the offence was to be or was being committed; or
(ii)
the organisation took all reasonable steps to prevent the commission of the offence.
(4)
If a Crown organisation is convicted of an offence against this Act, the chief executive or principal officer (however described) of the organisation and every person concerned in the management of the organisation is guilty of the same offence if it is proved—
(a)
that the act that constituted the offence took place with that person’s authority, permission, or consent; and
(b)
that he or she knew or could reasonably be expected to have known that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.
Compare: 1991 No 150 s 82
388 Strict liability and defences
(1)
Except as otherwise provided in this Act, in a prosecution for an offence of contravening or permitting a contravention of this Act, it is not necessary to prove that the defendant intended to commit the offence.
(2)
It is a defence in any prosecution that is referred to in subsection (1) if the defendant proves—
(a)
that all of the following circumstances apply:
(i)
the action or event to which the prosecution relates was necessary for the purposes of saving or protecting life or health, or preventing serious damage to property; and
(ii)
the conduct of the defendant was reasonable in the circumstances; and
(iii)
the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred; or
(b)
that the action or event to which the prosecution relates was due to an event beyond the control of the defendant, including natural disaster, mechanical failure, or sabotage, and in each case—
(i)
the action or event could not reasonably have been foreseen or been provided against by the defendant; and
(ii)
the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred.
Compare: 1991 No 150 s 83
389 Fines to be paid to territorial authority or regional authority instituting prosecution
(1)
A court must order that a fine imposed on any person in relation to the person’s conviction for an offence under this Act be paid to the territorial authority or, as the case may be, the regional authority that commenced the proceedings for that offence.
(2)
However, an amount equal to 10% of every amount payable to the territorial authority or the regional authority under subsection (1) must be credited to a Crown Bank Account nominated by the Minister of Finance for the purposes of this subsection.
(3)
If any money awarded by a court in respect of loss or damage is recovered as a fine, and that fine is ordered to be paid to a territorial authority or a regional authority under subsection (1), no deduction is to be made under subsection (2) in respect of that money.
(4)
An order of the court made under subsection (1) is sufficient authority for the Registrar receiving payment of the fine to—
(a)
pay 10% of the fine to the Crown in accordance with subsection (2); and
(b)
pay the balance of the fine to the territorial authority or the regional authority entitled to it under the order.
(5)
Nothing in section 73 of the Public Finance Act 1989 applies to a fine ordered to be paid to a territorial authority or a regional authority under subsection (1).
(6)
To avoid doubt, this section does not apply if the proceedings for the offence were commenced by a person other than a territorial authority or a regional authority.
Compare: 1991 No 150 s 84
Section 389(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 389(6): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Subpart 2—Civil proceedings and defences
390 Civil proceedings may not be brought against chief executive, employees, etc
(1)
This section applies to—
(a)
the chief executive; and
(b)
any employee or agent of the chief executive; and
(c)
any person engaged by the chief executive under section 187 to assist the chief executive in relation to an application for a determination: and
(d)
any member, employee, or agent of a territorial authority or regional authority; and
(e)
any member of a committee appointed by the chief executive, a territorial authority, or a regional authority.
(2)
No civil proceedings may be brought against a person to whom this section applies for any act done or omitted to be done by that person in good faith under this Act.
Compare: 1991 No 150 s 89
391 Civil proceedings against building consent authorities
Any civil proceedings against a building consent authority in respect of the performance of its statutory function in issuing a building consent or a code compliance certificate must be brought in tort and not in contract.
Compare: 1991 No 150 s 90
Section 391 heading: amended, on 14 April 2005, by section 16(2)(r) of the Building Amendment Act 2005 (2005 No 31).
Section 391: amended, on 14 April 2005, by section 16(2)(o) of the Building Amendment Act 2005 (2005 No 31).
392 Building consent authority not liable
(1)
No civil proceedings may be brought against a building consent authority for anything done or omitted to be done in good faith in reliance on any of the following documents:
(a)
an acceptable solution or a verification method:
(b)
a determination made by the chief executive under subpart 1 of Part 3:
(c)
a current product certificate issued under subpart 7 of Part 3:
(ca)
a current national multiple-use approval issued under section 30F (including, in any particular case, any minor customisations permitted by regulations made under section 402(1)(kc)):
(d)
a code compliance certificate issued under section 95:
(e)
a certificate issued under any regulations made under the Electricity Act 1992 or the Gas Act 1992.
(2)
Subsection (3) applies if—
(a)
a building consent has been issued under section 72; and
(b)
the building consent authority has given a notification under section 73; and
(c)
the building consent authority has not given a notification under section 74(4) that it has determined that the entry made on the record of title of the land is no longer required; and
(d)
the building to which the building consent relates suffers damage arising directly or indirectly from a natural hazard.
(3)
The persons specified in subsection (4) are not liable in any civil proceedings brought by any person who has an interest in the building referred to in subsection (2) on the grounds that the building consent authority issued a building consent for the building in the knowledge that the building for which the consent was issued, or the land on which the building was situated, was, or was likely to be, subject to damage arising, directly or indirectly, from a natural hazard.
(4)
The persons are—
(a)
the building consent authority concerned; and
(b)
every member, employee, or agent of that building consent authority.
Compare: 1991 No 150 s 36(4)
Section 392 heading: amended, on 14 April 2005, by section 16(2)(s) of the Building Amendment Act 2005 (2005 No 31).
Section 392(1): amended, on 14 April 2005, by section 16(2)(o) of the Building Amendment Act 2005 (2005 No 31).
Section 392(1)(a): replaced, on 28 November 2013, by section 65 of the Building Amendment Act 2013 (2013 No 100).
Section 392(1)(ca): inserted, on 1 February 2010, by section 29 of the Building Amendment Act 2009 (2009 No 25).
Section 392(2)(b): amended, on 14 April 2005, by section 16(2)(q) of the Building Amendment Act 2005 (2005 No 31).
Section 392(2)(c): amended, on 12 November 2018, by section 250 of the Land Transfer Act 2017 (2017 No 30).
Section 392(2)(c): amended, on 14 April 2005, by section 16(2)(q) of the Building Amendment Act 2005 (2005 No 31).
Section 392(3): amended, on 14 April 2005, by section 16(2)(p) of the Building Amendment Act 2005 (2005 No 31).
Section 392(4)(a): amended, on 14 April 2005, by section 16(2)(p) of the Building Amendment Act 2005 (2005 No 31).
Section 392(4)(b): amended, on 14 April 2005, by section 16(2)(p) of the Building Amendment Act 2005 (2005 No 31).
393 Limitation defences
(1)
The Limitation Act 2010 applies to civil proceedings against any person if those proceedings arise from—
(a)
building work associated with the design, construction, alteration, demolition, or removal of any building; or
(b)
the performance of a function under this Act or a previous enactment relating to the construction, alteration, demolition, or removal of the building.
(2)
However, no relief may be granted in respect of civil proceedings relating to building work if those proceedings are brought against a person after 10 years or more from the date of the act or omission on which the proceedings are based.
(3)
For the purposes of subsection (2), the date of the act or omission is,—
(a)
in the case of civil proceedings that are brought against a territorial authority, a building consent authority, a regional authority, or the chief executive in relation to the issue of a building consent or a code compliance certificate under Part 2 or a determination under Part 3, the date of issue of the consent, certificate, or determination, as the case may be; and
(b)
in the case of civil proceedings that are brought against a person in relation to the issue of an energy work certificate, the date of the issue of the certificate.
Compare: 1991 No 150 s 91
Section 393(1): amended, on 1 January 2011, by section 58 of the Limitation Act 2010 (2010 No 110)
Section 393(2): amended, on 1 January 2011, by section 58 of the Limitation Act 2010 (2010 No 110)
Subpart 3—Miscellaneous
Service of notices
394 Service of notices
(1)
Any notice or other document required to be served on, or given to, any person under this Act is sufficiently served if it is—
(a)
delivered personally to the person; or
(b)
delivered to the person at the person’s usual or last known place of residence or business; or
(c)
sent by fax or email to the person’s fax number or email address; or
(d)
posted in a letter addressed to the person at the person’s usual or last known place of residence or business.
(2)
If a notice or other document is to be served on a body (whether incorporated or not), service on an officer of the body in accordance with subsection (1) is taken to be service on the body.
(3)
If a notice or other document is to be served on a partnership, service on any one of the partners in accordance with subsection (1) or subsection (2) is taken to be service on the partnership.
(4)
Despite subsection (1), if a notice or other document is to be served on a Crown organisation for the purposes of this Act, it may be served—
(a)
by delivering it personally to an employee of the organisation at its head office or principal place of business; or
(b)
by delivering it at the organisation’s head office or principal place of business, including by fax; or
(c)
in accordance with a method agreed with the organisation.
(5)
A notice or other document sent by post to a person in accordance with subsection (1)(d) must be treated as having been received by that person at the time at which the letter would have been delivered in the ordinary course of post.
Compare: 1991 No 150 s 87
Section 394(4)(c): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
395 Notices in relation to Māori land
Part 10 of Te Ture Whenua Maori Act 1993 applies to the service of notices under this Act on owners of Māori land, except that the period fixed for anything to be done by the owners must not be extended by more than 14 working days under section 181(4) of that Act, unless otherwise provided by the territorial authority or the regional authority concerned.
Compare: 1991 No 150 s 88
Implied terms of contracts
Heading: repealed, on 1 January 2015, by section 66 of the Building Amendment Act 2013 (2013 No 100).
396 Application of sections 397 to 399
[Repealed]Section 396: repealed (but continuing to apply, as if it had not been repealed, to contracts entered into on or after 30 November 2004 but before 1 January 2015), on 1 January 2015, by section 66(1) of the Building Amendment Act 2013 (2013 No 100).
397 Implied warranties for building work in relation to household units
[Repealed]Section 397: repealed (but continuing to apply, as if it had not been repealed, to contracts entered into on or after 30 November 2004 but before 1 January 2015), on 1 January 2015, by section 66(1) of the Building Amendment Act 2013 (2013 No 100).
398 Proceedings for breach of warranties may be taken by person who was not party to contract for building work
[Repealed]Section 398: repealed (but continuing to apply, as if it had not been repealed, to contracts entered into on or after 30 November 2004 but before 1 January 2015), on 1 January 2015, by section 66(1) of the Building Amendment Act 2013 (2013 No 100).
399 Person may not give away benefit of warranties
[Repealed]Section 399: repealed (but continuing to apply, as if it had not been repealed, to contracts entered into on or after 30 November 2004 but before 1 January 2015), on 1 January 2015, by section 66(1) of the Building Amendment Act 2013 (2013 No 100).
Regulations
400 Regulations: building code
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations, to be called the building code, that prescribe—
(a)
functional requirements for buildings; and
(b)
the performance criteria that buildings must comply with in their intended use.
(2)
Any regulations made under subsection (1) may prescribe that the functional requirements for buildings and the performance criteria with which buildings must comply in their intended use apply—
(a)
generally throughout New Zealand or in particular regions of New Zealand only; and
(b)
generally over a range of circumstances or in particular circumstances only.
Compare: 1991 No 150 s 48(1)
401 Regulations: acceptable solutions, verifications, etc, that must be complied with in order to comply with building code
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations that prescribe—
(a)
acceptable solutions or verification methods, or both, that must be used to comply with the building code; and
(b)
the particular circumstances in which those acceptable solutions or verification methods, or both, must be used; and
(c)
the circumstances in which building methods or products that have a current product certificate issued under section 269 must be used.
(2)
Any regulations made under subsection (1) must state whether those regulations apply to building work for which a building consent has been issued, but for which a code compliance certificate has not been issued.
401A Regulations: building consents and consent completion certificates
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations that—
(a)
define low-risk building work including by specifying any or all of the following: the nature of the building work, the circumstances in which it may be carried out, or the conditions for carrying it out:
(b)
define simple residential building work:
(c)
define commercial building work:
(d)
prescribe types or categories of commercial building work for which a commercial building consent is required:
(e)
prescribe types or categories of commercial building work for which an application for either a commercial building consent or a standard building consent may be made:
(f)
prescribe those aspects of plans and specifications accompanying an application for a simple residential building consent that must be considered by a building consent authority when deciding whether to grant the consent:
(g)
for the purpose of a determination by a building consent authority whether to issue a consent completion certificate in respect of simple residential building work, prescribe—
(i)
the maximum inspections that are required; and
(ii)
the nature of those inspections:
(h)
prescribe the criteria for determining the risk profile of a commercial building:
(i)
prescribe the matters that must be included in a quality assurance system, including prescribing different matters for different types or categories of commercial building work:
(j)
define safety system.
Section 401A: inserted, on 13 March 2012, by section 81 of the Building Amendment Act 2012 (2012 No 23).
401B Order in Council declaring work to be restricted building work
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, declare any kind of building work (other than building work for which a building consent is not required) or any kind of design work to be restricted building work.
(2)
An order under subsection (1) may apply to any kind of building work or design work generally, or may apply to building work or design work in relation to particular types or categories of buildings or to particular parts of buildings.
(3)
The Minister may recommend the making of an order under this section only if the Minister is satisfied that the kind of building work or design work in question is (or is likely to be) critical to the integrity of a building or part of a building.
(4)
Building work or design work is not restricted building work if it relates to an application for a building consent made before the commencement of an order under subsection (1) declaring building work or design work of the same kind to be restricted building work.
Section 401B: inserted, on 13 March 2012, by section 82 of the Building Amendment Act 2012 (2012 No 23).
401C Regulations: earthquake-prone buildings
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations that,—
(a)
for the purpose of section 133AL,—
(i)
prescribe categories of earthquake ratings:
(ii)
prescribe the form of EPB notice to be issued for buildings or parts of buildings in each earthquake ratings category:
(iii)
prescribe the form of EPB notice to be issued for a building or a part of a building to which clause 2 of Schedule 1AA (which is a transitional provision) applies:
(b)
prescribe the age, construction type, use, level of occupancy, location in relation to other buildings or building types, and any other characteristics that a building or a part of a building must have for a territorial authority to grant an exemption under section 133AN from the requirement to carry out seismic work on the building or part:
(c)
prescribe the criteria for determining whether a building alteration is a substantial alteration for the purpose of section 133AT(2)(c):
(d)
prescribe the matters that a territorial authority must take into account when making the assessments required by section 133AT(3)(b) and (c) (for the purpose of deciding whether to allow the alteration of a building or a part of a building that is subject to an EPB notice without the building complying with specified provisions of the building code):
(e)
prescribe information that must be kept in the EPB register, and specify whether the chief executive is required to make that information available for public inspection (see section 275B).
Section 401C: inserted, on 1 July 2017, by section 38 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
402 Regulations: general
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
Building levy:
(a)
prescribing the rate of the levy to be paid under section 53:
(b)
providing for the method by which the levy will be calculated:
(c)
providing for the payment and collection of the levy:
Licensing:
(d)
prescribing the fees or charges payable in respect of the licensing, disciplining, and registration of building practitioners under Part 4, including the fees and charges for—
(i)
an application to be licensed as a building practitioner; and
(ii)
the issue of that evidence of being licensed; and
(iii)
the renewal of that evidence of being licensed:
(da)
providing for waivers and refunds of the whole or any part of a fee or charge referred to in paragraph (d):
(e)
providing for the following matters relating to the levy payable by licensed building practitioners under section 303:
(i)
different levies for different classes of licensed building practitioners; and
(ii)
the amount of the levy; and
(iii)
the method by which the levy will be calculated; and
(iv)
the criteria and other requirements by and against which the levy will be set or reset; and
(v)
the payment and collection of the levy; and
(vi)
exempting any licensed building practitioners or any class of licensed building practitioners from paying the levy; and
(vii)
waivers and refunds of the whole or any part of the levy; and
(viii)
any other matters necessary or desirable to set, calculate, administer, collect, and enforce the levy:
(f)
specifying—
(i)
the information that must be provided by persons who make complaints against a licensed building practitioner or a former licensed building practitioner; and
(ii)
the way in which that information must be evaluated; and
(iii)
the way in which decisions on whether or not to proceed with the complaint must be made and implemented:
(g)
prescribing procedures, requirements, and other matters, not inconsistent with this Act, for the register of licensed building practitioners established and maintained under section 298, including matters that relate to—
(i)
the operation of the register:
(ii)
access to the register:
(iii)
the location of, and hours of access to, the register:
(iv)
search criteria for the register:
(h)
prescribing the way in which a disciplinary matter must be considered and decided on by the Board, and the way in which decisions on that matter must be implemented:
(i)
prescribing the manner in which rules are to be made, amended, or revoked, including the requirements for consultation with persons affected by the proposed rules:
Acceptance of independently qualified pool inspectors:
(ia)
prescribing matters in respect of the acceptance and renewal of acceptance of independently qualified pool inspectors, including the fees or charges payable:
General matters:
(j)
prescribing procedures for regulating and controlling the construction, maintenance, and demolition of buildings:
(k)
prescribing the form or content of applications, or any other documentation or information required under this Act:
(ka)
prescribing eligibility criteria for national multiple-use approvals:
(kb)
prescribing the period of time within which the chief executive must decide, under section 30E(1), whether to issue a national multiple-use approval:
(kc)
defining the minor customisations that may be made to plans and specifications in relation to which a national multiple-use approval has been issued when incorporating those plans and specifications into a building consent:
(kd)
defining the minor variations that may be made to a building consent for the purposes of section 45A:
(l)
prescribing information to be provided to the chief executive by—
(i)
territorial authorities and building consent authorities in relation to buildings and building work; and
(ii)
regional authorities and owners of dams in relation to dams:
(m)
prescribing time limits for the purposes of this Act:
(n)
[Repealed](na)
designating a licensing class or classes for carrying out or supervising particular types of—
(i)
building work; or
(ii)
building inspection work:
(o)
prescribing systems or parts of systems that amount to specified systems for the purposes of this Act:
(p)
defining moderate earthquake for the purposes of sections 133AB and 153:
(pa)
defining ultimate capacity for the purposes of section 133AB (meaning of earthquake-prone building):
(q)
defining moderate flood for the purposes of section 153:
(qa)
defining earthquake threshold event for the purposes of section 153A:
(qb)
defining flood threshold event for the purposes of section 153A:
(r)
prescribing the minimum terms and conditions of an insurance policy for the purposes of section 192(2)(a):
(s)
providing for the approval of schemes of insurance for the purposes of section 192(2)(b):
(t)
prescribing the criteria and standards that an applicant must meet to be accredited as—
(i)
a building consent authority; or
(ii)
[Repealed](iii)
a dam owner; or
(iv)
a product certification body:
(ta)
prescribing the fees payable for an audit under section 249(a), 257(a), or 262(1)(a), or the rate at which, or method by which, those fees are to be calculated:
(u)
prescribing the criteria and standards that a product certification body must apply in determining applications for a product certificate under section 269 (which must include, without limitation, criteria and standards about the effects on human health of particular building methods or products):
(v)
determining or fixing scales of charges or other criteria for the purpose of fixing charges by the chief executive under Part 3:
(w)
prescribing—
(i)
the matters in respect of which fees are payable under this Act, and the amount of those fees; or
(ii)
the rate at which, or method by which, fees are to be calculated for the purposes of this Act:
(wa)
defining the meaning of classifiable dam:
(wb)
defining the meaning of referable dam:
(wc)
designating or describing an area or proximity to an area or feature for the purposes of section 134A:
(x)
specifying criteria and standards that a dam owner must apply in—
(i)
classifying dams; or
(ii)
preparing a dam safety assurance programme:
(xa)
prescribing disclosure information for the purposes of section 362D(2)(a) and the form of that disclosure information:
(xb)
prescribing a checklist for the purposes of section 362D(2)(b) and the form of that checklist:
(xc)
prescribing the minimum price for building work for the purposes of section 362D(1)(a) or prescribing the methodology for calculating that minimum price, or both:
(xd)
prescribing the minimum price for building work for the purposes of section 362F(1) or prescribing the methodology for calculating that minimum price, or both:
(xe)
prescribing the content of, or information or clauses or terms that must be contained in, a residential building contract for the purposes of section 362F(2)(c):
(xf)
prescribing any or all of the information and documentation for the purposes of section 362T(2):
(y)
specifying infringement offences for the purposes of this Act:
(z)
setting the infringement fee for each infringement offence (which may not exceed $20,000):
(za)
prescribing the forms that must be used for issuing an infringement notice:
(zb)
prescribing, for the purposes of section 362V(2), the form and content of the written agreement referred to in that subsection:
(zc)
providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
(2)
The fees and charges prescribed under subsection (1)(d) must be reasonable, having regard to the need to recover the costs incurred by the Registrar in performing his or her functions under this Act.
Compare: 1991 No 150 s 48(2)
Section 402(1)(d): amended, on 13 March 2012, by section 83(1) of the Building Amendment Act 2012 (2012 No 23).
Section 402(1)(d)(ii): amended, on 15 March 2008, by section 87(1) of the Building Amendment Act 2008 (2008 No 4).
Section 402(1)(d)(iii): amended, on 15 March 2008, by section 87(1) of the Building Amendment Act 2008 (2008 No 4).
Section 402(1)(da): inserted, on 13 March 2012, by section 83(2) of the Building Amendment Act 2012 (2012 No 23).
Section 402(1)(e): amended, on 13 March 2012, by section 83(3) of the Building Amendment Act 2012 (2012 No 23).
Section 402(1)(ia) heading: inserted, on 1 January 2017, by section 16 of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 402(1)(ia): inserted, on 1 January 2017, by section 16 of the Building (Pools) Amendment Act 2016 (2016 No 71).
Section 402(1)(ka): inserted, on 1 August 2009, by section 30 of the Building Amendment Act 2009 (2009 No 25).
Section 402(1)(kb): inserted, on 1 August 2009, by section 30 of the Building Amendment Act 2009 (2009 No 25).
Section 402(1)(kc): inserted, on 1 August 2009, by section 30 of the Building Amendment Act 2009 (2009 No 25).
Section 402(1)(kd): inserted, on 1 August 2009, by section 30 of the Building Amendment Act 2009 (2009 No 25).
Section 402(1)(n): repealed, on 13 March 2012, by section 83(4) of the Building Amendment Act 2012 (2012 No 23).
Section 402(1)(na): inserted, on 15 March 2008, by section 87(2) of the Building Amendment Act 2008 (2008 No 4).
Section 402(1)(o): replaced, on 13 March 2012, by section 83(5) of the Building Amendment Act 2012 (2012 No 23).
Section 402(1)(p): amended, on 1 July 2017, by section 39(1) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 402(1)(pa): inserted, on 1 July 2017, by section 39(2) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 402(1)(qa): inserted, on 15 March 2008, by section 87(3) of the Building Amendment Act 2008 (2008 No 4).
Section 402(1)(qb): inserted, on 15 March 2008, by section 87(3) of the Building Amendment Act 2008 (2008 No 4).
Section 402(1)(t)(ii): repealed, on 14 April 2005, by section 20(2) of the Building Amendment Act 2005 (2005 No 31).
Section 402(1)(ta): inserted, on 15 March 2008, by section 87(4) of the Building Amendment Act 2008 (2008 No 4).
Section 402(1)(w): replaced, on 15 March 2008, by section 87(5) of the Building Amendment Act 2008 (2008 No 4).
Section 402(1)(wa): inserted, on 28 November 2013, by section 67(1) of the Building Amendment Act 2013 (2013 No 100).
Section 402(1)(wb): inserted, on 28 November 2013, by section 67(1) of the Building Amendment Act 2013 (2013 No 100).
Section 402(1)(wc): inserted, on 28 November 2013, by section 67(1) of the Building Amendment Act 2013 (2013 No 100).
Section 402(1)(xa): inserted, on 28 November 2013, by section 67(2) of the Building Amendment Act 2013 (2013 No 100).
Section 402(1)(xb): inserted, on 28 November 2013, by section 67(2) of the Building Amendment Act 2013 (2013 No 100).
Section 402(1)(xc): inserted, on 28 November 2013, by section 67(2) of the Building Amendment Act 2013 (2013 No 100).
Section 402(1)(xd): inserted, on 28 November 2013, by section 67(2) of the Building Amendment Act 2013 (2013 No 100).
Section 402(1)(xe): inserted, on 28 November 2013, by section 67(2) of the Building Amendment Act 2013 (2013 No 100).
Section 402(1)(xf): inserted, on 28 November 2013, by section 67(2) of the Building Amendment Act 2013 (2013 No 100).
Section 402(1)(zb): amended, on 1 January 2015, by section 67(3) of the Building Amendment Act 2013 (2013 No 100).
402A Chief executive must review regulations made under section 402(1)(kb)
The chief executive must, within 2 years after the commencement of regulations made under section 402(1)(kb),—
(a)
review the prescribed period of time within which the chief executive must decide whether to issue a national multiple-use approval; and
(b)
prepare for the Minister a report on the findings of that review.
Section 402A: inserted, on 1 August 2009, by section 31 of the Building Amendment Act 2009 (2009 No 25).
403 Consultation requirements for making regulations
(1)
This section applies to—
(a)
an Order in Council proposed to be made under section 285; or
(b)
regulations proposed to be made under section 400 or section 401.
(2)
Before making a recommendation for the making of an Order in Council or regulations under those sections, the Minister must be satisfied that the chief executive has consulted in accordance with subsections (3) and (4).
(3)
The chief executive must—
(a)
do everything reasonably practicable on his or her part to consult with the persons or organisations that appear to the chief executive to be representative of the interests of persons likely to be substantially affected by the making of the relevant Order in Council or regulations; and
(b)
advise the Minister of the results of that consultation.
(4)
The process for consultation should, to the extent practicable in the circumstances, include—
(a)
giving adequate and appropriate notice of the intention to make the Order in Council or regulations; and
(b)
giving a reasonable opportunity for interested persons to make submissions; and
(c)
adequate and appropriate consideration of submissions.
(5)
A failure to comply with this section does not affect the validity of any Order in Council or regulations made.
Compare: 1991 No 150 s 48(4)
404 Certain regulations must not come into force earlier than specified date
Any regulations made under section 402(1)(n) must not come into force earlier than the date on which sections 45(1)(e) and 45(2) to 45(4) and 84 to 89 come into force.
Incorporation of material by reference
405 Incorporation of material by reference into certain instruments, solutions, and methods
(1)
The following material may be incorporated by reference into any instrument:
(a)
standards, requirements, or recommended practices of national or international organisations:
(b)
any other written material that, in the opinion of the Minister or, as appropriate, the chief executive, is too large or is impractical to include in, or print as part of, the instrument concerned.
(2)
Material may be incorporated by reference in an instrument—
(a)
in whole or in part; and
(b)
with modifications, additions, or variations specified in the instrument.
(3)
The incorporated material—
(a)
is the material as it exists at the time that the instrument is made or issued; and
(b)
forms part of the instrument for all purposes and has legal effect accordingly.
(4)
In this section and in sections 406 to 413, instrument means—
(a)
any regulations; and
(b)
any acceptable solution or verification method; and
(c)
any Order in Council made under section 41 or 285; and
(d)
the EPB methodology set under section 133AV.
Section 405 heading: amended, on 1 July 2017, by section 40(1) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 405(1): amended, on 15 March 2008, by section 88(2) of the Building Amendment Act 2008 (2008 No 4).
Section 405(4): inserted, on 15 March 2008, by section 88(3) of the Building Amendment Act 2008 (2008 No 4).
Section 405(4)(b): replaced, on 28 November 2013, by section 68(2) of the Building Amendment Act 2013 (2013 No 100).
Section 405(4)(c): amended, on 1 July 2017, by section 40(2) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Section 405(4)(d): inserted, on 1 July 2017, by section 40(3) of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
406 Effect of amendments to, or replacement of, material incorporated by reference
An amendment to, or replacement of, material incorporated by reference in an instrument has legal effect as part of the instrument only if—
(a)
the amendment or replacement material is made by the person or organisation originating the incorporated material; and
(b)
the amendment or replacement material is of the same general character as the material amended or replaced; and
(c)
either,—
(i)
in the case of material incorporated in regulations, regulations are made that state that the particular amendment or replacement has that effect; or
(ii)
in the case of material incorporated in an acceptable solution or a verification method, the chief executive, by notice in the Gazette, adopts the amendment or replacement.
Section 406(c)(ii): amended, on 28 November 2013, by section 69 of the Building Amendment Act 2013 (2013 No 100).
407 Proof of material incorporated by reference
(1)
A copy of material incorporated by reference in an instrument, including any amendment to, or replacement of, the material (material), must be—
(a)
certified as a correct copy of the material by the Minister or, as appropriate, the chief executive; and
(b)
retained by the Minister or, as appropriate, the chief executive.
(2)
The production in proceedings of a certified copy of the material is, in the absence of evidence to the contrary, sufficient evidence of the incorporation in the instrument of the material.
408 Effect of expiry of material incorporated by reference
Material incorporated by reference in an instrument that expires or that is revoked or that ceases to have effect ceases to have legal effect as part of the instrument only if the Minister or, as appropriate, the chief executive, by notice in the Gazette, states that the material ceases to have legal effect.
409 Requirement to consult
(1)
This section applies if—
(a)
the Minister proposes to make a recommendation for—
(i)
regulations to be made under this Act that incorporate material by reference; or
(ii)
regulations under section 406(c)(i) that state that an amendment to, or replacement of, material incorporated by reference in regulations has legal effect as part of the regulations; or
(b)
the chief executive proposes to—
(i)
issue an acceptable solution or a verification method that incorporates material by reference; or
(ii)
publish, under section 406(c)(ii), a notice in the Gazette that adopts an amendment to, or replacement of, material incorporated by reference in an acceptable solution or a verification method.
(2)
Before doing any of the things referred to in subsection (1), the Minister or, as the case may be, the chief executive must—
(a)
make copies of the material proposed to be incorporated by reference or the proposed amendment to, or replacement of, material incorporated by reference (proposed material) available for inspection during working hours for a reasonable period, free of charge, at the Ministry’s office in Wellington; and
(b)
make copies of the proposed material available for purchase at a reasonable price at the Ministry’s office in Wellington; and
(c)
[Repealed](d)
give notice in the Gazette stating that—
(i)
the proposed material is available for inspection during working hours, free of charge, the place at which it can be inspected, and the period during which it can be inspected; and
(ii)
copies of the proposed material can be purchased and the place at which they can be purchased; and
(iii)
[Repealed](e)
allow a reasonable opportunity for persons to comment on the proposal to incorporate the proposed material by reference; and
(f)
consider any comments they make.
(2A)
Before doing any of the things referred to in subsection (1), the Minister or, as the case may be, the chief executive—
(a)
may make copies of the proposed material available in any other way that he or she considers appropriate in the circumstances (for example, on an Internet website); and
(b)
must, if paragraph (a) applies, give notice in the Gazette stating that the proposed material is available in other ways and details of where or how it can be accessed or obtained.
(3)
The reference in subsections (2) and (2A) to the proposed material includes, if the material is not in an official New Zealand language, an accurate translation in an official New Zealand language of the material.
(4)
A failure to comply with this section does not invalidate an instrument that incorporates material by reference.
Section 409(1)(b)(i): amended, on 28 November 2013, by section 70 of the Building Amendment Act 2013 (2013 No 100).
Section 409(1)(b)(ii): amended, on 28 November 2013, by section 70 of the Building Amendment Act 2013 (2013 No 100).
Section 409(2)(c): repealed, on 14 April 2005, by section 24(1)(a) of the Building Amendment Act 2005 (2005 No 31).
Section 409(2)(d)(iii): repealed, on 14 April 2005, by section 24(1)(b) of the Building Amendment Act 2005 (2005 No 31).
Section 409(2A): inserted, on 14 April 2005, by section 24(2) of the Building Amendment Act 2005 (2005 No 31).
Section 409(3): amended, on 14 April 2005, by section 24(3) of the Building Amendment Act 2005 (2005 No 31).
410 Access to material incorporated by reference
(1)
The chief executive—
(a)
must make the material referred to in subsection (2) (material) available for inspection during working hours free of charge at the Ministry’s office in Wellington; and
(b)
must make copies of the material available for purchase at a reasonable price at all of the Ministry’s offices; and
(c)
must make so much of the material as relates to the following matters available for inspection during working hours, free of charge, at all of the Ministry’s offices:
(i)
the use of timber, concrete, concrete masonry, glass, and plaster coating in the construction of buildings; and
(ii)
the design of buildings using timber, concrete, concrete masonry, and steel; and
(iii)
plumbing installation; and
(iv)
access for persons with disabilities; and
(v)
energy efficiency in buildings; and
(d)
may make copies of the material available in any other way that the chief executive considers appropriate in the circumstances (for example, on an Internet website); and
(e)
must give notice in the Gazette stating that—
(i)
the material is incorporated in an instrument and the date on which the instrument was made; and
(ii)
the material is available for inspection during working hours, free of charge, at the Ministry’s office in Wellington and the location of that office; and
(iii)
copies of the material can be purchased at all of the Ministry’s offices and the location of those offices; and
(iv)
the material referred to in paragraph (c) is available for inspection during working hours, free of charge, at all of the Ministry’s offices and the location of those offices; and
(v)
if copies of the material are made available under paragraph (d), the material is available in other ways and details of where or how it can be accessed or obtained.
(1A)
Subsection (1)(c) does not apply to any material that relates only to product standards or product testing standards.
(2)
The material is—
(a)
material incorporated by reference in an instrument:
(b)
any amendment to, or replacement of, that material that is incorporated in the instrument or the material referred to in paragraph (a) with the amendments or replacement material incorporated:
(c)
if the material referred to in paragraph (a) or paragraph (b) is not in an official New Zealand language, as well as the material itself, an accurate translation in an official New Zealand language of the material.
(3)
A failure to comply with this section does not invalidate an instrument that incorporates material by reference.
Section 410(1): replaced, on 14 April 2005, by section 25 of the Building Amendment Act 2005 (2005 No 31).
Section 410(1A): inserted, on 14 April 2005, by section 25 of the Building Amendment Act 2005 (2005 No 31).
411 Application of Legislation Act 2012 to provisions incorporated by reference
(1)
Nothing in section 41 of the Legislation Act 2012 requires material that is incorporated by reference in an instrument made or issued under this Act to be presented to the House of Representatives.
(2)
Subpart 1 of Part 3 of the Legislation Act 2012, apart from the modification to the application of section 41 of that Act made by subsection (1), applies to an instrument made or issued under this Act (other than a compliance document) that incorporates material by reference.
(3)
Part 2 of the Legislation Act 2012 does not apply to material incorporated by reference in an instrument or to an amendment to, or replacement of, that material.
Section 411: replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).
412 Application of Regulations (Disallowance) Act 1989 to material incorporated by reference
[Repealed]Section 412: repealed, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).
413 Application of Standards and Accreditation Act 2015 not affected
Sections 405 to 412 do not affect the application of sections 29 to 32 of the Standards and Accreditation Act 2015.
Section 413: amended, on 1 March 2016, by section 45(1) of the Standards and Accreditation Act 2015 (2015 No 91).
Amendments and repeal
414 Amendments to other enactments
The enactments specified in Schedule 4 are amended in the manner indicated in that schedule.
415 Repeal
(1)
The Building Act 1991 is repealed.
(2)
Despite the repeal of the Building Act 1991 by subsection (1),—
(a)
the Building Regulations 1992 (SR 1992/150) continue in force as if they had been made under this Act and may be amended or revoked accordingly; and
(b)
the Building Industry Authority Levy Order 1995 (SR 1995/241) continues in force—
(i)
as if it had been made under this Act and may be amended or revoked accordingly; and
(ii)
until the commencement of the first Order in Council that prescribes the rate of the building levy under section 53.
Subpart 4—Transitional provisions
Outline of transitional provisions
416 Outline of transitional provisions
(1)
The general scheme and effect of the transitional provisions is as follows:
(a)
on 30 November 2004,—
(i)
the Authority is dissolved; and
(ii)
the regulation-making powers in the Act, and its transitional provisions relating to the dissolution of the Authority, come into force; and
(iii)
the provisions setting out the functions of the chief executive under the Act come into force; and
(iv)
the obligation of territorial authorities to adopt a policy on dangerous, earthquake-prone, and insanitary buildings comes into force; and
(v)
the licensing regime for building practitioners comes into force; and
(vi)
the obligation of the chief executive to review the building code comes into force; and
(b)
between 30 November 2004 and 31 March 2005, the chief executive must perform the functions and duties, and exercise the powers, of the Authority under the Building Act 1991; and
(c)
on 31 March 2005,—
(i)
the rest of this Act (except some provisions) comes into force; and
(ii)
the Building Act 1991 is repealed; and
(iii)
the building control provisions of the Act (for example, the provisions relating to building consents, code compliance certificates, and compliance schedules) come into force; and
(d)
between 30 November 2004 and 31 May 2006, persons who held an approval as a building certifier under the former Act may apply to be registered as a building consent authority under section 191; and
(e)
between 30 November 2004 and 31 May 2006, territorial authorities and regional authorities must apply to be registered under section 191; and
(f)
on and after the date specified in section 450(3)(b)(ii), only building consent authorities that are registered under section 191 may perform functions relating to building control; and
(g)
on 30 November 2010,—
(i)
the requirement that restricted building work must be carried out or supervised by a licensed building practitioner comes into force; and
(ii)
the transitional period ends.
(2)
This section is a guide only to the general scheme and effect of these provisions.
Section 416(1)(f): amended, on 29 August 2007, by section 5(3) of the Building (Consent Authorities) Amendment Act 2007 (2007 No 34).
Section 416(1)(f): amended, on 14 April 2005, by section 3(8) of the Building Amendment Act 2005 (2005 No 31).
Section 416(1)(g): amended, on 15 March 2008, by section 89 of the Building Amendment Act 2008 (2008 No 4).
No compensation for loss of office
417 No compensation for loss of office
The Crown is not liable to make a payment to, or otherwise compensate, any person in respect of the person ceasing to hold any office established by or under the former Act.
Dissolution of Authority
418 Authority dissolved
The Authority is dissolved.
419 Assets and liabilities vest in Crown
All rights, assets, liabilities, and debts that the Authority had immediately before the commencement of this section must be treated as the rights, assets, liabilities, and debts of the Crown on that commencement.
420 Protection from civil liability for members, building referees, and employees of Authority continued
(1)
Despite the repeal of the former Act and the dissolution of the Authority, no civil proceedings may be brought against any of its members, building referees, or employees for any act done or omitted to be done by that person in good faith under the former Act.
(2)
Subsection (1)—
(a)
is for the avoidance of doubt; and
(b)
does not limit the provisions of the Interpretation Act 1999.
421 Restriction of compensation for technical redundancy
(1)
An employee of the Authority is not entitled to receive any payment or other benefit on the ground that his or her position in the Authority has ceased to exist if—
(a)
the position ceases to exist as a result of the dissolution of the Authority; and
(b)
in connection with that dissolution,—
(i)
the employee is offered equivalent employment in the Ministry (whether or not the employee accepts the offer); or
(ii)
the employee is offered, and accepts, other employment in the Ministry.
(2)
In this section, equivalent employment is employment in the Ministry—
(a)
in substantially the same position; and
(b)
in the same general locality; and
(c)
on terms and conditions of employment that are no less favourable than those that apply to the employee immediately before the offer of equivalent employment (including any service-related, redundancy, and superannuation conditions); and
(d)
on terms that treat the period of service with the Authority (and any other period of service recognised by the Authority as continuous service) as if it were continuous service with the Ministry.
Compare: 1988 No 20 s 30E
422 Reappointment of employee of Authority to Ministry
Sections 60 to 61B and 65 of the State Sector Act 1988 do not apply to the appointment of an employee of the Authority to a position in the Ministry if the employee’s position in the Authority ceases to exist as a result of the dissolution of the Authority.
Compare: 1988 No 20 s 30F
423 Final reports and accounts
(1)
As soon as is practicable after the commencement of this Part, the Authority must arrange for the final report of the Authority to be delivered to the Minister.
(2)
The report must—
(a)
describe the Authority’s operations for the financial year commencing immediately before the commencement of this section; and
(b)
include—
(i)
financial statements of the Authority prepared, in accordance with Part 5 of the Public Finance Act 1989, for that financial year; and
(ii)
an audit report prepared by the Auditor-General and a management statement relating to those financial statements.
(3)
The Minister must present a copy of the report delivered to the Minister under this section to the House of Representatives under section 44A of the Public Finance Act 1989.
424 References to Authority
(1)
Unless the context otherwise requires, every reference to the Authority in any enactment, agreement, deed, instrument, application, notice, or other document in force immediately before the commencement of this section must, on and after that commencement, be read with all necessary modifications as a reference to the chief executive.
(2)
To avoid doubt, on and after the commencement of this section,—
(a)
a reference to the Authority in the Building Act 1991 must be read as a reference to the chief executive; and
(b)
the Building Act 1991 must be read with all necessary modifications to enable the chief executive to perform the functions and duties, and exercise the powers, of the Authority until the repeal of that Act under section 415.
425 Proceedings of Authority
Any proceedings to which the Authority is, or becomes, a party (whether before or after the commencement of this section) may be commenced, continued, completed, and enforced by or against the Crown.
Validations
426 Validation of levy
All money received by the Authority from levies imposed under Part 3A of the former Act must be taken to be and always to have been lawfully imposed and collected.
427 Validation of past expenditure of levy
Despite section 23K(3) of the former Act, all applications made before the commencement of this section of levies imposed under Part 3A of the former Act and of any proceeds from those levies received by the Authority for any purpose are validated and must be taken to be and to always have been lawfully applied.
428 Validation of accumulation of levy
(1)
Despite the provisions of Part 3A of the former Act, the matters referred to in subsection (2) are validated and must be taken to be and always to have been lawful.
(2)
The matters are—
(a)
the accumulation of levies imposed under that Part and of any proceeds from those levies received by the Authority; and
(b)
the application of those levies and proceeds by the chief executive for the purposes of this Act.
Other transitional provisions
429 Transitional provision for matters of doubt or dispute relating to building control under former Act
(1)
This section applies to an application for a determination under section 17 of the former Act that has been made, but not determined or withdrawn, before the commencement of this section.
(2)
Despite the repeal of the former Act, an application to which this section applies must be determined by the chief executive in all respects under the former Act as if this Act had not been passed.
430 Transitional provision for building levy under former Act
If, before the commencement of this section, a person is liable to pay a levy under Part 3A of the former Act and the levy remains unpaid after payment is due, then, on and after the commencement of this section,—
(a)
the person must pay the levy to the chief executive as if the levy were payable under this Act; and
(b)
this Act applies to the levy in all respects.
431 Transitional provision for rate of building levy under this Act
(1)
Despite section 53(2)(a)(ii), the building levy must, during the period specified in subsection (2), be calculated at the rate set out in clause 2 of the Building Industry Authority Levy Order 1995.
(2)
The period is the period that—
(a)
begins on the commencement of Part 2; and
(b)
ends on the commencement of the first Order in Council that sets the prescribed rate of the building levy.
432 Transitional provision for certain applications
(1)
This section applies if, before the commencement of this section,—
(a)
an application for a project information memorandum is made under section 30(1) of the former Act and the project information memorandum has not been issued; or
(b)
an application for a building consent is made under section 33 of the former Act and the building consent has not been granted or refused; or
(c)
an application for the accreditation of any proprietary item (being a material, method of construction, design, or component relating to building work) is made under section 58 of the former Act but is not determined or withdrawn.
(2)
On and from the commencement of this section,—
(a)
the application referred to in subsection (1)(a) must be treated as if it were an application, as the case may be, under section 31 or section 32; and
(b)
the application referred to in subsection (1)(b) must be treated as if it were an application under section 45; and
(c)
the application referred to in subsection (1)(c) must be determined as if this Act had not been passed.
(3)
For the purposes of subsection (2)(c),—
(a)
section 59 of the former Act remains in force as if this Act had not been passed; and
(b)
a certificate of accreditation issued under that section must be treated as if it were a product certificate issued under section 269.
433 Transitional provision for building consents granted under former Act
(1)
A building consent that was granted under section 34 of the former Act before the commencement of this section must, on that commencement, be treated as if it were a building consent granted under section 49.
(2)
However,—
(a)
section 93 does not apply; and
(b)
accordingly, a building consent authority is not required to issue a code compliance certificate for the building work concerned within the period specified in that section.
Section 433(2)(b): amended, on 14 April 2005, by section 16(2)(b) of the Building Amendment Act 2005 (2005 No 31).
434 Transitional provision for certain entries on certificates of title made under former Act
(1)
This section applies to any of the following entries that is made before the commencement of this section:
(a)
an entry on a certificate of title under section 36(2) of the former Act; and
(b)
an entry in the records of the Surveyor-General or the Maori Land Court under section 36(7) of the former Act; and
(c)
an entry under section 641A of the Local Government Act 1974.
(2)
On and from the commencement of this section, an entry to which this section applies must be treated as if it had been made under this Act and the provisions of this Act apply accordingly with all necessary modifications.
435 Transitional provision for notices issued under former Act
(1)
This section applies to any of the following notices issued before the commencement of this section:
(a)
a notice to rectify under section 42 of the former Act (including a notice that is deemed to be a notice to rectify under section 45(4) or section 46(5) of that Act):
(b)
a notice under section 65(1)(b) of the former Act requiring work to be done on a dangerous building:
(c)
a notice under section 65(2) of the former Act requiring work to be done on an insanitary building:
(d)
a notice under section 66(3)(b) of the former Act requiring work to be done on an earthquake-prone building.
(2)
On and from the commencement of this section, a notice to which this section applies must,—
(a)
in the case of the notice referred to in subsection (1)(a), be treated as if it were a notice given under section 164 of this Act; and
(b)
in the case of the notice referred to in subsection (1)(b) or (c) or (d), be treated as if it were a notice given under section 124(1)(c) of this Act.
436 Transitional provision for code compliance certificates in respect of building work carried out under building consent granted under former Act
(1)
This section applies to building work carried out under a building consent granted under section 34 of the former Act.
(2)
An application for a code compliance certificate in respect of building work to which this section applies must be considered and determined as if this Act had not been passed.
(3)
For the purposes of subsection (2), section 43 of the former Act—
(a)
remains in force as if this Act had not been passed; but
(b)
must be read as if—
(i)
a code compliance certificate may be issued only if the territorial authority is satisfied that the building work concerned complies with the building code that applied at the time the building consent was granted; and
(ii)
section 43(4) were omitted.
437 Transitional provision for issue of certificate of acceptance
(1)
This section applies if—
(a)
an owner, or the owner’s predecessor in title (whether an immediate predecessor in title or otherwise), carried out building work before the commencement of this section for which—
(i)
a building consent was required under the former Act; and
(ii)
the building consent was not obtained; or
(b)
a building certifier is unable or refuses to issue either of the following in respect of building work for which a building consent was issued before the commencement of this section:
(i)
a building certificate under section 56 of the former Act; or
(ii)
a code compliance certificate under section 95.
(2)
A territorial authority may, on application, issue a certificate of acceptance.
(3)
For the purposes of subsection (2), sections 96(2) and (3) and 97 to 99 apply with all necessary modifications.
(4)
A reference to a building certifier in this section includes a reference to a building certifier that applied for registration, and is registered, under section 191 as a building consent authority.
438 Transitional provision for code compliance certificates and compliance schedules issued under former Act
(1)
On the commencement of this section,—
(a)
a code compliance certificate issued under section 43 of the former Act has effect as if it had been issued under section 95 of this Act; and
(b)
a compliance schedule issued under section 44 of the former Act has effect as if it had been issued under section 102 of this Act.
(2)
[Repealed](3)
A person who immediately before the commencement of this section was accepted by a territorial authority as being qualified to carry out the inspection, maintenance, and reporting procedures required for a specified system stated in a compliance schedule continues to be accepted until the authority withdraws its acceptance.
(4)
[Repealed](5)
[Repealed]Section 438(2): repealed, on 13 March 2012, by section 87 of the Building Amendment Act 2012 (2012 No 23).
Section 438(3): replaced, on 14 April 2005, by section 26 of the Building Amendment Act 2005 (2005 No 31).
Section 438(4): repealed, on 13 March 2012, by section 87 of the Building Amendment Act 2012 (2012 No 23).
Section 438(5): repealed, on 13 March 2012, by section 87 of the Building Amendment Act 2012 (2012 No 23).
439 Transitional provision for document used in establishing compliance with building code
(1)
This section applies if, before the commencement of this section,—
(a)
a document for use in establishing compliance with the building code has been prepared or approved under section 49(1) of the former Act; and
(b)
in a case where that document has been approved, the approval has not been withdrawn under section 49(6) of that Act.
(2)
On and from the commencement of this section, the document referred to in subsection (1) must be treated as if it were an acceptable solution or a verification method.
Section 439(2): amended, on 28 November 2013, by section 72 of the Building Amendment Act 2013 (2013 No 100).
440 Transitional provision for applications for approval as building certifier under former Act
(1)
An application for approval as a building certifier that has been made under section 51 of the former Act, but not determined or withdrawn, before the commencement of this section must, on that commencement, be considered and determined by the chief executive in all respects as if this Act had not been passed.
(2)
An appeal against a decision to refuse to grant approval as a building certifier that has been commenced under section 52(9) of the former Act, but not completed, before the commencement of this section must be continued and completed in all respects under the former Act as if this Act had not been passed.
(3)
For the purposes of this section and section 441, sections 51 to 53 of the former Act remain in force as if this Act had not been passed.
441 Transitional provision for applications for continuation or renewal of approval as building certifier under former Act
(1)
An application for the continuation or renewal of an approval as a building certifier under section 51(5) of the former Act may be made to the chief executive until the close of 31 May 2006.
(2)
The chief executive may, until the close of 31 May 2006, grant the application.
(3)
An approval as a building certifier that is continued or renewed under subsection (2) expires at the close of 31 May 2006.
442 Meaning of approved building certifier
In sections 443 to 446, approved building certifier means a person—
(a)
who, immediately before the commencement of this section, held a current approval as a building certifier under section 51 of the former Act; and
(b)
whose approval is continued or renewed, and has not expired, under the former Act or section 441.
443 Approved building certifiers have until 31 May 2006 to apply to be registered as building consent authority
Every approved building certifier has until 31 May 2006 to apply to be registered as a building consent authority under section 191.
444 What happens if approved building certifier applies to be registered as building consent authority by 31 May 2006
(1)
An approved building certifier who applies to be registered as a building consent authority by 31 May 2006 may, during the transitional period, issue either of the following in respect of building work for which a building consent was issued before the commencement of this section:
(a)
a building certificate under section 56 of the former Act; or
(b)
a code compliance certificate under section 95.
(2)
In this section, transitional period means the period commencing on the date of commencement of this section and ending on 30 November 2007.
445 What happens if approved building certifier does not apply to be registered as building consent authority by 31 May 2006
(1)
If an approved building certifier does not apply to be registered as a building consent authority by 31 May 2006, the approved building certifier must not, after the close of that date, accept any further applications for—
(a)
a building certificate under section 56 of the former Act; or
(b)
a code compliance certificate under section 95.
(2)
An approved building certifier may, in respect of an application for a certificate referred to in subsection (1) that was made before the close of 31 May 2006, issue the certificate until the close of 30 November 2007.
(3)
However, an approved building certifier must arrange for any other application for a certificate referred to in subsection (1) to be transferred to a building consent authority or territorial authority if the certificate has not been issued or refused by 30 November 2007.
(4)
A building consent authority or a territorial authority to whom an application is transferred under subsection (3) may issue a code compliance certificate under section 95.
446 Certain provisions of former Act apply for purposes of sections 444 and 445
(1)
For the purposes of sections 444 and 445,—
(a)
sections 54 to 57 of the former Act remain in force as if this Act had not been passed; and
(b)
a building consent authority must accept, under section 19(1), a building certificate issued under section 56 of the former Act as establishing compliance with the building code; and
(c)
a party may apply, under section 177, for a determination in relation to a decision by an approved building certifier to issue, or refuse to issue, a building certificate or a code compliance certificate.
(2)
For the purposes of subsection (1)(c), sections 176 to 190 apply with all necessary modifications.
(3)
In this section, party—
(a)
has the meaning given by section 176; and
(b)
includes an approved building certifier.
447 Transitional provision for certificate of accreditation issued under former Act
A certificate of accreditation issued under section 59 of the former Act in respect of any proprietary item (being a material, method of construction, design, or component relating to building work) before the commencement of this section must, on and from that commencement, be treated as if it were a product certificate issued under section 269 and the provisions of this Act apply accordingly with all necessary modifications.
448 Transitional provision for proceedings under former Act
(1)
This section applies to the following proceedings:
(a)
proceedings under section 54 or section 55 of the former Act in relation to a building certifier; and
(b)
proceedings under Part 9 of the former Act (including court proceedings related to an application for a determination under section 17 of that Act).
(2)
Any proceedings to which this section applies that were commenced, but not completed, before the date of commencement of this section must be continued and completed in all respects under the former Act as if this Act had not been passed.
449 Territorial authorities and regional authorities must apply to be registered by 31 May 2006
A territorial authority or a regional authority must, by 31 May 2006, apply to be registered under section 191.
450 When territorial authority may and must act as building consent authority during transition to this Act
(1)
A territorial authority may, during the period specified in subsection (3), act as a building consent authority (including in relation to a dam) even though the territorial authority has yet to be registered under section 191.
(2)
[Repealed](3)
The period is the period that—
(a)
begins on the date of commencement of Part 2; and
(b)
ends on the earlier of—
(i)
the date on which an application for registration by the territorial authority under section 191 is granted or refused; or
(ii)
31 March 2009.
(3A)
A territorial authority that is registered under section 191 must, until the time specified in subsection (3B), act as a building consent authority in relation to a dam within the territorial authority’s district.
(3B)
The time is the earlier of the following:
(a)
the close of the day before the date specified in subsection (3)(b)(ii); and
(b)
the time at which the regional authority whose region includes the territorial authority’s district—
(i)
is registered under section 191; or
(3C)
If a territorial authority acts as a building consent authority under subsection (1) or (3A),—
(a)
the territorial authority must be taken to have all the functions, duties, and powers of a building consent authority under this Act; and
(b)
this Act applies with all necessary modifications.
(3D)
The Governor-General may, by Order in Council, before the date specified in subsection (3)(b)(ii), specify a later date in substitution for that date.
(3E)
An order made under subsection (3D) is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.
(4)
This section overrides sections 14 and 193.
Section 450 heading: amended, on 29 August 2007, by section 5(4) of the Building (Consent Authorities) Amendment Act 2007 (2007 No 34).
Section 450(2): repealed, on 29 August 2007, by section 5(5) of the Building (Consent Authorities) Amendment Act 2007 (2007 No 34).
Section 450(3)(b)(ii): amended, on 26 June 2008, by clause 3 of the Building (Building Consent Authority Transition) Order 2008 (SR 2008/147).
Section 450(3A): inserted, on 29 August 2007, by section 5(2) of the Building (Consent Authorities) Amendment Act 2007 (2007 No 34).
Section 450(3B): inserted, on 29 August 2007, by section 5(2) of the Building (Consent Authorities) Amendment Act 2007 (2007 No 34).
Section 450(3C): inserted, on 29 August 2007, by section 5(2) of the Building (Consent Authorities) Amendment Act 2007 (2007 No 34).
Section 450(3D): inserted, on 29 August 2007, by section 5(2) of the Building (Consent Authorities) Amendment Act 2007 (2007 No 34).
Section 450(3E): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).
450A Transitional and savings provision for residential pools
(1)
Fencing of a residential pool in accordance with clauses 1 to 10 of the Schedule of the Fencing of Swimming Pools Act 1987 (as that schedule was in force immediately before 1 January 2017) is an acceptable solution for establishing compliance with the building code for the purpose of section 162C.
(2)
Sections 22(2) and (3), 23, 24, and 25A apply to the acceptable solution in subsection (1) as if it had been issued by the chief executive under section 22(1) of this Act.
(3)
In this section and the Schedule of the Fencing of Swimming Pools Act 1987,—
fence includes any part of a building, and any gate or door, that forms part of a fence
fencing means any barrier or barriers used to enclose a pool (or an immediate pool area) so as to restrict or prevent access to the pool.
Section 450A: inserted, on 1 January 2017, by section 17 of the Building (Pools) Amendment Act 2016 (2016 No 71).
450B Savings provision for existing residential pools
(1)
This section applies to a residential pool that was constructed, erected, or installed before 1 January 2017 (an existing pool).
(2)
An existing pool is deemed to have barriers that comply with section 162C if the barriers—
(a)
complied with the Schedule of the Fencing of Swimming Pools Act 1987 (as that schedule was in force) immediately before 1 January 2017; and
(3)
Alternatively, an existing pool is deemed to comply with section 162C if all of the following apply:
(a)
the outside surface of the side walls of the pool is constructed so as to inhibit climbing; and
(b)
no part of the top of any side wall of the pool is less than 1.2 m above—
(i)
the adjacent ground level; and
(ii)
any permanent projection from the ground outside of the pool and within 1.2 m of the walls of the pool; and
(iii)
any object standing on the ground outside of the pool and within 1.2 m of the walls of the pool; and
(c)
any ladder or other means of access to the interior of the swimming pool—
(i)
can be readily removed or made inoperable; and
(ii)
is removed or made inoperable whenever the pool is not intended to be in use.
Compare: 1987 No 178 s 5(a)
Section 450B: inserted, on 1 January 2017, by section 17 of the Building (Pools) Amendment Act 2016 (2016 No 71).
Review of building code
451 Chief executive must review building code
(1)
The chief executive must, within 3 years after the commencement of this section,—
(a)
review the building code; and
(b)
prepare for the Minister a report on the review that includes recommendations setting out any amendments to the building code that are necessary or desirable.
(2)
In conducting the review, the chief executive must consider—
(a)
the extent to which the building code complies with and meets the requirements of this Act; and
(b)
the extent to which the building code is stated in sufficient detail to provide clear guidance on performance standards that buildings must meet to ensure compliance with the building code.
Schedule 1AA Transitional, savings, and related provisions
Schedule 1AA: inserted, on 1 July 2017, by section 41 of the Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22).
Transitional provisions relating to Building (Earthquake-prone Buildings) Amendment Act 2016
1 Interpretation
In this schedule,—
amendment Act means the Building (Earthquake-prone Buildings) Amendment Act 2016
commencement date means the day on which section 24 of the amendment Act (which inserts subpart 6A of Part 2) comes into force.
2 Notices given under section 124 before commencement date
(1)
This clause applies to a building or a part of a building if, before the commencement date, a territorial authority issued a written notice under section 124(2)(c)(i) (the old notice) requiring work to be carried out on the building or part, by a deadline stated in the old notice (the old deadline), to reduce or remove the danger associated with the building or part being earthquake prone (the seismic work).
(2)
If subpart 6A of Part 2 does not apply to the building (see section 133AA),—
(a)
the old notice is revoked on the commencement date; and
(b)
the territorial authority must notify the owner of the building of that fact.
(3)
If subpart 6A of Part 2 does apply to the building,—
(a)
the territorial authority is deemed to have determined that the building or the part of the building is earthquake prone; and
(b)
the territorial authority need not determine the earthquake rating of the building or part; and
(c)
the territorial authority must, as soon as practicable after the commencement date,—
(i)
issue an EPB notice for the building or the part of the building under section 133AL; and
(ii)
record the details of the building or the part of the building in the EPB register and update other information in the EPB register as necessary (but the territorial authority need not record the earthquake rating of the building or part); and
(d)
the deadline for completing the seismic work is determined as follows:
(i)
if the old deadline is earlier than the deadline calculated under section 133AM(2), the deadline for completing the seismic work is the old deadline (subject to subclause (5)); and
(ii)
if the old deadline is on or after the deadline calculated under section 133AM(2), the deadline for completing the seismic work is the deadline calculated under section 133AM(2); and
(e)
until the territorial authority issues an EPB notice, the old notice must be treated as if it were an EPB notice issued under this Act.
(4)
To avoid doubt, for the purpose of subclause (3)(d) the deadline calculated under section 133AM(2) is the expiry of the relevant period as measured from the date of the EPB notice and not from the date of the old notice.
(5)
If an old deadline is preserved by subclause (3)(d)(i) but the period given for completing the seismic work under the old notice is shorter than the relevant period specified in section 133AM(2) (for example, an old notice issued for a building in an area of medium seismic risk required the owner to complete seismic work within 20 years after the date of that notice, but the period specified in section 133AM(2) that is relevant to the building is 25 years),—
(a)
the owner of the building or the part of the building may apply to the territorial authority to have the relevant period specified in section 133AM(2) applied retrospectively to the date of the old notice (which would have the effect of extending the deadline for completing the seismic work); and
(b)
in deciding whether to grant the application, the territorial authority must have regard to the particular circumstances and any guidance issued by the chief executive under section 175 for that purpose; and
(c)
if the territorial authority grants the application, the deadline is the expiry of the relevant period specified in section 133AM(2), as measured from the date of the old notice and not from the date of the EPB notice.
(6)
If a territorial authority grants an application under subclause (5), the territorial authority must—
(a)
issue or reissue (as applicable) an EPB notice for the building or part under section 133AL; and
(b)
record the details of the decision in the EPB register and update other information in the EPB register as necessary.
3 Policy adopted under section 131 before commencement date
(1)
This clause applies to a policy under section 131 (policy on dangerous, earthquake-prone, and insanitary buildings) that is adopted by a territorial authority before the commencement date.
(2)
To the extent that the policy applies to earthquake-prone buildings, the policy ceases to apply on the commencement date.
(3)
As soon as is reasonably practicable after the commencement date, the territorial authority must amend or replace the policy to remove references to earthquake-prone buildings.
(4)
Section 132 applies to an amendment or a replacement made under subclause (3), except that the special consultative procedure in section 83 of the Local Government Act 2002 (see section 132(2)) does not apply unless the amendment or replacement materially affects the policy as it applies to dangerous and insanitary buildings.
4 Effect of certain references to parts of buildings
The fact that provisions added to this Act by the amendment Act refer separately to buildings and parts of buildings does not limit or affect any other provision of this Act in terms of how that provision applies in respect of parts of buildings.
Schedule 1 Building work for which building consent not required
Schedule 1: replaced, on 28 November 2013 (but building work for which a building consent was not required under old Schedule 1 but for which a building consent is required under new Schedule 1 does not require a building consent if the building work commenced before this date), by section 73(1) of the Building Amendment Act 2013 (2013 No 100).
Schedule 1 heading: amended, on 1 January 2017, by section 18(1) of the Building (Pools) Amendment Act 2016 (2016 No 71).
Part 1 Exempted building work
General
1 General repair, maintenance, and replacement
(1)
The repair and maintenance of any component or assembly incorporated in or associated with a building, provided that comparable materials are used.
(2)
Replacement of any component or assembly incorporated in or associated with a building, provided that—
(a)
a comparable component or assembly is used; and
(b)
the replacement is in the same position.
(3)
However, subclauses (1) and (2) do not include the following building work:
(a)
complete or substantial replacement of a specified system; or
(b)
complete or substantial replacement of any component or assembly contributing to the building’s structural behaviour or fire-safety properties; or
(c)
repair or replacement (other than maintenance) of any component or assembly that has failed to satisfy the provisions of the building code for durability, for example, through a failure to comply with the external moisture requirements of the building code; or
(d)
sanitary plumbing or drainlaying under the Plumbers, Gasfitters, and Drainlayers Act 2006.
2 Territorial and regional authority discretionary exemptions
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.
3 Single-storey detached buildings not exceeding 10 square metres in floor area
(1)
Building work in connection with any detached building that—
(a)
is not more than 1 storey (being a floor level of up to 1 metre above the supporting ground and a height of up to 3.5 metres above the floor level); and
(b)
does not exceed 10 square metres in floor area; and
(c)
does not contain sanitary facilities or facilities for the storage of potable water; and
(d)
does not include sleeping accommodation, unless the building is used in connection with a dwelling and does not contain any cooking facilities.
(2)
However, subclause (1) does not include building work in connection with a building that is closer than the measure of its own height to any residential building or to any legal boundary.
4 Unoccupied detached buildings
(1)
Building work in connection with any detached building that—
(a)
houses fixed plant or machinery and under normal circumstances is entered only on intermittent occasions for the routine inspection and maintenance of that plant or machinery; or
(b)
is a building, or is in a vicinity, that people cannot enter or do not normally enter; or
(c)
is used only by people engaged in building work—
(i)
in relation to another building; and
(ii)
for which a building consent is required.
(2)
However, subclause (1) does not include building work in connection with a building that is closer than the measure of its own height to any residential building or to any legal boundary.
5 Tents, marquees, and similar lightweight structures
Building work in connection with any tent or marquee, or any similar lightweight structure (for example, a stall, booth, or compartment used at fairs, exhibitions, or markets) that—
(a)
does not exceed 100 square metres in floor area; and
(b)
is to be, or has been, used for a period of not more than 1 month.
6 Pergolas
Building work in connection with a pergola.
7 Repair or replacement of outbuilding
The repair or replacement of all or part of an outbuilding if—
(a)
the repair or replacement is made within the same footprint area that the outbuilding or the original outbuilding (as the case may be) occupied; and
(b)
in the case of any replacement, the replacement is made with a comparable outbuilding or part of an outbuilding; and
(c)
the outbuilding is a detached building that is not more than 1 storey; and
(d)
the outbuilding is not intended to be open to, or used by, members of the public.
Existing buildings: additions and alterations
8 Windows and exterior doorways in existing dwellings and outbuildings
Building work in connection with a window (including a roof window) or an exterior doorway in an existing dwelling that is not more than 2 storeys or in an existing outbuilding that is not more than 2 storeys, except,—
(a)
in the case of replacement, if the window or doorway being replaced has failed to satisfy the provisions of the building code for durability, for example, through a failure to comply with the external moisture requirements of the building code; or
(b)
if the building work modifies or affects any specified system.
9 Alteration to existing entrance or internal doorway to facilitate access for persons with disabilities
Building work in connection with an existing entrance or internal doorway of a detached or semi-detached dwelling to improve access for persons with disabilities.
10 Interior alterations to existing non-residential building
Building work in connection with the interior of any existing non-residential building (for example, a shop, office, library, factory, warehouse, church, or school) if the building work—
(a)
does not modify or affect the primary structure of the building; and
(b)
does not modify or affect any specified system; and
(c)
does not relate to a wall that is—
(i)
a fire separation wall (also known as a firewall); or
(ii)
made of units of material (such as brick, burnt clay, concrete, or stone) laid to a bond in and joined together with mortar; and
(d)
does not include sanitary plumbing or drainlaying under the Plumbers, Gasfitters, and Drainlayers Act 2006.
11 Internal walls and doorways in existing building
Building work in connection with an internal wall (including an internal doorway) in any existing building unless the wall is—
(a)
load-bearing; or
(b)
a bracing element; or
(c)
a fire separation wall (also known as a firewall); or
(d)
part of a specified system; or
(e)
made of units of material (such as brick, burnt clay, concrete, or stone) laid to a bond in and joined together with mortar.
12 Internal linings and finishes in existing dwelling
Building work in connection with any internal linings or finishes of any wall, ceiling, or floor of an existing dwelling.
13 Thermal insulation
Building work in connection with the installation of thermal insulation in an existing building other than in—
(a)
an external wall of the building; or
(b)
an internal wall of the building that is a fire separation wall (also known as a firewall).
14 Penetrations
(1)
Building work in connection with the making of a penetration not exceeding 300 millimetres in diameter to enable the passage of pipes, cables, ducts, wires, hoses, and the like through any existing dwelling or outbuilding and any associated building work, such as weatherproofing, fireproofing, or sealing, provided that—
(a)
in the case of a dwelling, the dwelling is detached or in a building that is not more than 3 storeys; and
(b)
in the case of an outbuilding, the outbuilding is detached and is not more than 3 storeys.
(2)
In the case of an existing building to which subclause (1) does not apply, building work in connection with the making of a penetration not exceeding 300 millimetres in diameter to enable the passage of pipes, cables, ducts, wires, hoses, and the like through the building and any associated building work, such as weatherproofing, fireproofing, or sealing, provided that the penetration—
(a)
does not modify or affect the primary structure of the building; and
(b)
does not modify or affect any specified system.
15 Closing in existing veranda or patio
Building work in connection with the closing in of an existing veranda, patio, or the like so as to provide an enclosed porch, conservatory, or the like with a floor area not exceeding 5 square metres.
16 Awnings
Building work in connection with an awning that—
(a)
is on or attached to an existing building; and
(b)
is on the ground or first-storey level of the building; and
(c)
does not exceed 20 square metres in size; and
(d)
does not overhang any area accessible by the public, including private areas with limited public access, for example, restaurants and bars.
17 Porches and verandas
Building work in connection with a porch or a veranda that—
(a)
is on or attached to an existing building; and
(b)
is on the ground or first-storey level of the building; and
(c)
does not exceed 20 square metres in floor area; and
(d)
does not overhang any area accessible by the public, including private areas with limited public access, for example, restaurants and bars.
18 Carports
Building work in connection with a carport that—
(a)
is on the ground level; and
(b)
does not exceed 20 square metres in floor area.
Schedule 1 clause 18: replaced, on 30 June 2016, by clause 3 of the Building (Exempt Building Work) Order 2016 (LI 2016/108).
19 Shade sails
Building work in connection with a shade sail made of fabric or other similar lightweight material, and associated structural support, that—
(a)
does not exceed 50 square metres in size; and
(b)
is no closer than 1 metre to any legal boundary; and
(c)
is on the ground level, or, if on a building, on the ground or first-storey level of the building.
Other structures
20 Retaining walls
Building work in connection with a retaining wall that—
(a)
retains not more than 1.5 metres depth of ground; and
(b)
does not support any surcharge or any load additional to the load of that ground (for example, the load of vehicles).
21 Fences and hoardings
(1)
Building work in connection with a fence or hoarding in each case not exceeding 2.5 metres in height above the supporting ground.
(2)
Subclause (1) does not include a fence or hoarding to restrict access to a residential pool.
Schedule 1 clause 21(2): replaced, on 1 January 2017, by section 18(2) of the Building (Pools) Amendment Act 2016 (2016 No 71).
21A Means of restricting access to small heated pools
Installation of a safety cover as a means of restricting access to a small heated pool that is a residential pool.
Schedule 1 clause 21A: inserted, on 1 January 2017, by section 18(3) of the Building (Pools) Amendment Act 2016 (2016 No 71).
22 Dams (excluding large dams)
Building work in connection with a dam that is not a large dam.
23 Tanks and pools
Building work in connection with a tank or pool and any structure in support of the tank or pool, including any tank or pool that is part of any other building for which a building consent is required, that—
(a)
does not exceed 500 litres capacity and is supported not more than 4 metres above the supporting ground; or
(b)
does not exceed 1 000 litres capacity and is supported not more than 3 metres above the supporting ground; or
(c)
does not exceed 2 000 litres capacity and is supported not more than 2 metres above the supporting ground; or
(d)
does not exceed 4 000 litres capacity and is supported not more than 1 metre above the supporting ground; or
(e)
does not exceed 8 000 litres capacity and is supported not more than 0.5 metres above the supporting ground; or
(f)
does not exceed 16 000 litres capacity and is supported not more than 0.25 metres above the supporting ground; or
(g)
does not exceed 35 000 litres capacity and is supported directly by ground.
Schedule 1 clause 23 heading: amended, on 1 January 2017, by section 18(4) of the Building (Pools) Amendment Act 2016 (2016 No 71).
Schedule 1 clause 23: amended, on 1 January 2017, by section 18(5) of the Building (Pools) Amendment Act 2016 (2016 No 71).
24 Decks, platforms, bridges, boardwalks, etc
Building work in connection with a deck, platform, bridge, boardwalk, or the like from which it is not possible to fall more than 1.5 metres even if it collapses.
25 Signs
Building work in connection with a sign (whether free-standing or attached to a structure) and any structural support of the sign if—
(a)
no face of the sign exceeds 6 square metres in surface area; and
(b)
the top of the sign does not exceed 3 metres in height above the supporting ground level.
26 Height-restriction gantries
Building work in connection with a height-restriction gantry.
27 Temporary storage stacks
Building work in connection with a temporary storage stack of goods or materials.
28 Private household playground equipment
Building work in connection with playground equipment if—
(a)
the equipment is for use by a single private household; and
(b)
no part of the equipment exceeds 3 metres in height above the supporting ground level.
Network utility operators or other similar organisations
29 Certain structures owned or controlled by network utility operators or other similar organisations
Building work in connection with a motorway sign, stopbank, culvert for carrying water under or in association with a road, or other similar structure that is—
(a)
a simple structure; and
(b)
owned or controlled by a network utility operator or other similar organisation.
Demolition
30 Demolition of detached building
The complete demolition of a building that is detached and is not more than 3 storeys.
31 Removal of building element
The removal of a building element from a building that is not more than 3 storeys, provided that the removal does not affect—
(a)
the primary structure of the building; or
(b)
any specified system; or
(c)
any fire separation.
Part 2 Sanitary plumbing and drainlaying carried out by person authorised under Plumbers, Gasfitters, and Drainlayers Act 2006
Plumbing and drainage
32 Repair, maintenance, and replacement
(1)
The repair and maintenance of any sanitary plumbing and drainage in or associated with a building, provided that comparable materials are used.
(2)
Replacement of sanitary plumbing and drainage in or associated with a building, provided that—
(a)
a comparable component or assembly is used; and
(b)
the replacement is in the same position.
(3)
However, subclauses (1) and (2) do not include the following building work:
(a)
complete or substantial replacement of a specified system; or
(b)
repair or replacement (other than maintenance) of any component or assembly that has failed to satisfy the provisions of the building code for durability, for example, through a failure to comply with the external moisture requirements of the building code; or
(c)
repair or replacement of any water heater (unless permitted under clauses 36 to 38).
33 Drainage access points
The opening and reinstatement of any purpose-made access point within a drainage system that is not a NUO system or part of a NUO system.
34 Minor alteration to drains
(1)
Alteration to drains for a dwelling if the alteration is of a minor nature, for example, shifting a gully trap.
(2)
Subclause (1) does not include making any new connection to a service provided by a network utility operator.
35 Alteration to existing sanitary plumbing (excluding water heaters)
(1)
Alteration to existing sanitary plumbing in a building, provided that—
(a)
the total number of sanitary fixtures in the building is not increased by the alteration; and
(b)
the alteration does not modify or affect any specified system.
(2)
Subclause (1) does not include an alteration to a water heater.
Water heaters
36 Repair and maintenance of existing water heater
The repair or maintenance of any existing water heater using comparable materials, comparable components, or a comparable assembly.
37 Replacement of open-vented water storage heater connected to supplementary heat exchanger
The replacement of any water-storage heater connected to a solid-fuel heater or other supplementary heat exchanger if the replacement—
(a)
is a comparable open-vented water storage heater; and
(b)
is fixed in the same position, and uses the same pipework, as the replaced water storage heater.
38 Replacement or repositioning of water heater that is connected to, or incorporates, controlled heat source
The replacement of any water heater (including the repositioning of an existing water heater) if the replacement water heater is connected to, or incorporates, a controlled heat source or, if connected to or incorporating more than 1 heat source, 2 or more heat sources all of which are controlled.
Part 3 Building work for which design is carried out or reviewed by chartered professional engineer
39 Signs
Building work in connection with any sign (whether freestanding or attached to a structure) and any structural support of the sign.
40 Plinths
Building work in connection with any plinth or similar foundation if the plinth or foundation supports plant, a tank, equipment, machinery, or any similar item.
41 Retaining walls
(1)
Building work in connection with a retaining wall in a rural zone, if—
(a)
the wall retains not more than 3 metres depth of ground; and
(b)
the distance between the wall and any legal boundary or existing building is at least the height of the wall.
(2)
In subclause (1), rural zone means any zone or area (other than a rural residential area) that, in the district plan of the territorial authority in whose district the building work is to be undertaken, is described as a rural zone, rural resource area, or rural environment, or by words of similar meaning.
42 Certain public playground equipment
Building work in connection with playground equipment if the work is for a government department, Crown entity, licensed early childhood centre, territorial or regional authority, or other similar public organisation.
43 Removal of sign, plinth, retaining wall, or public playground equipment
The removal of any of the structures referred to in clauses 39 to 42, whether or not the design of the structure has been carried out or reviewed by a chartered professional engineer.
Schedule 2 Buildings in respect of which requirement for provision of access and facilities for persons with disabilities applies
The buildings in respect of which the requirement for the provision of access and facilities for persons with disabilities apply are, without limitation, as follows:
(a)
land, sea, and air passenger transport terminals and facilities and interchanges, whether wholly on land or otherwise:
(b)
public toilets wherever situated:
(c)
banks:
(d)
childcare centres and kindergartens:
(e)
day-care centres and facilities:
(f)
commercial buildings and premises for business and professional purposes, including computer centres:
(g)
central, regional, and local government offices and facilities:
(h)
courthouses:
(i)
Police stations:
(j)
hotels, motels, hostels, halls of residence, holiday cabins, groups of pensioner flats, boarding houses, guest houses, and other premises providing accommodation for the public:
(k)
hospitals, whether public or private, and rest homes:
(l)
medical and dental surgeries, and medical and paramedical and other primary health care centres:
(m)
educational institutions, including public and private primary, intermediate, and secondary schools, universities, polytechnics, and other tertiary institutions:
(n)
libraries, museums, art galleries, and other cultural institutions:
(o)
churches, chapels, and other places of public worship:
(p)
places of assembly, including auditoriums, theatres, cinemas, halls, sports stadiums, conference facilities, clubrooms, recreation centres, and swimming baths:
(q)
shops, shopping centres, and shopping malls:
(r)
restaurants, bars, cafeterias, and catering facilities:
(s)
showrooms and auction rooms:
(t)
public laundries:
(u)
petrol and service stations:
(v)
funeral parlours:
(w)
television and radio stations:
(x)
car parks, parking buildings, and parking facilities:
(y)
factories and industrial buildings where more than 10 persons are employed:
(z)
other buildings, premises, or facilities to which the public are to be admitted, whether for free or on payment of a charge.
| Compare: 1991 No 150 s 47A(4) |
Schedule 3 Further provisions applying to Board
Contents
Members’ appointment
1 Method of appointment
(1)
The Governor-General appoints a member by sending written notice to the member (with a copy to the Board).
(2)
The notice of appointment must—
(a)
state the date on which the appointment takes effect; and
(b)
be given only after the person to be appointed has—
(i)
consented in writing to being a member; and
(ii)
certified in writing that he or she is not disqualified from being a member; and
(iii)
disclosed to the Minister all interests that the person would, if he or she were a member, have to disclose under clauses 15 to 18 at the time of the certificate.
2 Qualifications of members
(1)
A natural person who is not disqualified by this clause may be a member.
(2)
The following persons are disqualified from being a member:
(a)
a person who is an undischarged bankrupt:
(b)
a person who is prohibited from being a director or promoter of, or being concerned or taking part in the management of, an incorporated or unincorporated body under the Companies Act 1993, or the Financial Markets Conduct Act 2013, or the Takeovers Act 1993:
(c)
a person who is subject to a property order made under section 10, section 11, section 12, section 30, or section 31 of the Protection of Personal and Property Rights Act 1988, or whose property is managed by a trustee corporation under section 32 of that Act:
(d)
a person who has been convicted of an offence punishable by imprisonment for a term of 2 years or more or who has been sentenced to imprisonment for any other offence, unless that person has obtained a pardon or served the sentence or otherwise suffered the penalty imposed on the person:
(e)
a person who has failed to disclose all interests under clause 1.
Schedule 3 clause 2(2)(b): replaced, on 25 October 2006, by section 25 of the Securities Amendment Act 2006 (2006 No 46).
Schedule 3 clause 2(2)(b): amended, on 1 December 2014, by section 150 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).
3 Term of appointment
(1)
A member holds office for 5 years or any shorter period stated in the notice of appointment.
(2)
A member may be reappointed.
(3)
A member continues in office despite the expiry of his or her term of office until—
(a)
the member is reappointed; or
(b)
the member’s successor is appointed; or
(c)
the Governor-General informs the member by written notice (with a copy to the Board) that the member is not to be reappointed and no successor is to be appointed at that time.
(4)
This clause is subject to clause 9.
4 Validity of members’ acts
The acts of a person as a member are valid even if—
(a)
the person’s appointment was defective; or
(b)
the person is not qualified to be a member.
5 Position where concurrent office
A member may hold that office concurrently with any other office.
Resignation and removal of members
6 Resignation
(1)
A member may resign from office by written notice to the Minister (with a copy to the Board) that is signed by the member.
(2)
The resignation is effective on receipt of the notice by the Minister or at any later time stated in the notice.
7 Removal from office
(1)
The Governor-General may, on the advice of the Minister given after consultation with the Attorney-General, remove a member from office by written notice to the member (with a copy to the Board) at any time for any of the following reasons proved to the satisfaction of the Governor-General:
(a)
breach of the member’s duties or the Board’s collective duties under this schedule; or
(b)
failure or inability to perform, or inadequate performance of, the member’s duties and responsibilities as a member; or
(c)
misconduct by the member; or
(d)
any other just cause.
(2)
Before giving advice to the Governor-General, the Minister must give the member a reasonable opportunity to make written submissions or be heard on the proposal to remove him or her.
(3)
The notice of removal must state the reason for the removal.
8 No compensation for ceasing to hold office
A member is not entitled to any compensation or other payment or benefit relating to his or her ceasing for any reason to hold office as a member.
9 Members ceasing to hold office
A member ceases to hold office if he or she—
(a)
resigns in accordance with clause 6; or
(b)
is removed from office in accordance with clause 7 or any other enactment; or
(c)
becomes disqualified from being a member under clause 2; or
(d)
otherwise ceases to hold office in accordance with any enactment.
Vacancies in membership of Board
10 Position where vacancy in membership
(1)
If a member, for any reason, ceases to hold office as a member, the Governor-General may appoint another person to act as a member.
(2)
A member who is appointed under subclause (1) is appointed for the residue of the term for which the vacating member was appointed.
11 Effect of vacancy in membership
The powers and functions of the Board are not affected by any vacancy in its membership.
Duties of members
12 Accountability for duties
(1)
The duties of members of the Board under this schedule are duties owed to the Minister, and do not provide any ground of action for any other person.
(2)
If the Board breaches any of its duties under clause 14,—
(a)
each member of the Board is accountable to the Minister for the breach; and
(b)
that breach justifies all or any of the members being removed from office.
13 Duties of members
A member, when acting as a member, must act—
(a)
in good faith; and
(b)
with reasonable care, diligence, and skill; and
(c)
with honesty and integrity; and
(d)
in accordance with any statement of expectations as to standards of good conduct for members of statutory bodies issued by 1 or more Ministers of the Crown that applies to statutory bodies (or classes of them) generally.
14 Collective duties of Board
The Board must—
(a)
not contravene this Act; and
(b)
act in a manner consistent with the objectives and functions of the Board; and
(c)
perform its functions efficiently and effectively and in a manner consistent with the spirit of service to the public.
Disclosure of interests of members in matters of Board
15 Meaning of interested
(1)
A member is interested in a matter relating to the Board if, and only if, the member—
(a)
is a party to, or will or may derive a material financial benefit from, the matter; or
(b)
has a material financial interest in a person to whom the matter relates; or
(c)
is a director, officer, member, or trustee of a person who will or may derive a material financial benefit from the matter; or
(d)
is the parent, child, spouse, civil union partner, or de facto partner of a person who will or may derive a material financial benefit from the matter; or
(e)
is otherwise directly or indirectly materially interested in the matter.
(2)
However, a member is not interested in a matter merely because he or she is a member of a professional building industry body.
Schedule 3 clause 15(1)(d): amended, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).
16 Obligation to disclose interest
A member who is interested in a matter relating to the Board must disclose the nature of the interest in accordance with clause 17 as soon as practicable after the member becomes aware that he or she is interested.
17 Method of disclosure of interest
(1)
If clause 16 applies, the member must disclose the details listed in subclause (2) in an interests register and to—
(a)
the chairperson or, if there is no chairperson, the deputy chairperson; or
(b)
if the member concerned is the chairperson or the positions of the chairperson and deputy chairperson are vacant, the Minister.
(2)
The details are—
(a)
the nature of the interest and the monetary value of the interest (if the monetary value can be quantified); or
(b)
the nature and extent of the interest (if the monetary value cannot be quantified).
18 Consequences of interest
A member who is interested in a matter relating to the Board—
(a)
must not vote or take part in any deliberation or decision of the Board relating to the matter; and
(b)
must be disregarded for the purpose of forming a quorum for that part of a meeting of the Board during which a deliberation or decision relating to the matter occurs or is made.
Confidentiality of information
19 Confidentiality of information
(1)
A member who has information in his or her capacity as a member that would not otherwise be available to him or her must not disclose that information to any person, or make use of, or act on, that information, except—
(a)
for the purposes of the Board; or
(b)
as required or permitted by law; or
(c)
in accordance with subclause (2); or
(d)
in complying with clauses 16 and 17.
(2)
A member may disclose, make use of, or act on the information if—
(a)
the member is first authorised to do so by the Board; and
(b)
the disclosure, use, or act in question will not, or will not be likely to, prejudice the Board.
Liability of Board and others
20 Liability of Board and others
No member of the Board is liable for any act or omission done, in good faith, in the performance or intended performance and exercise of the functions and powers of the Board.
Members’ remuneration and allowances
21 Members’ remuneration and allowances
(1)
The Board is a statutory board for the purposes of the Fees and Travelling Allowances Act 1951.
(2)
There may be paid, out of public money to the members of the Board, remuneration by way of fees, salary, or allowances and travelling allowances and travelling expenses in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act apply accordingly.
Chairperson and deputy chairperson
22 Appointment
(1)
The Minister may appoint one of the members as the chairperson, and another member as the deputy chairperson, of the Board by written notice to the member (with a copy to the Board).
(2)
The notice of appointment must state the date on which the appointment takes effect.
23 Term of appointment
The chairperson and the deputy chairperson each holds that office from the date stated in the notice of appointment until he or she—
(a)
resigns from that office; or
(b)
is removed from it by the Minister; or
(c)
ceases to hold office as a member.
24 Resignation
(1)
A chairperson or deputy chairperson may, without resigning as a member, resign from that office by written notice to the Minister (with a copy to the Board).
(2)
The notice of resignation must state the date on which the resignation takes effect.
25 Removal
(1)
The Minister may remove a chairperson or deputy chairperson from that office by written notice to the person (with a copy to the Board).
(2)
The notice of removal must state the date on which the removal takes effect.
26 Performance and exercise of chairperson’s functions, duties, and powers during vacancy
If there is no chairperson or, for any reason, the chairperson is unable to perform and exercise his or her functions, duties, and powers as chairperson, the deputy chairperson has all the functions, duties, and powers of the chairperson.
Procedures of Board
27 Procedure generally
Except as otherwise provided in this Act, the members may regulate their own procedure.
28 Notice of meetings
(1)
The Board or the chairperson must appoint the dates, times, and places for meetings of the Board, and give notice of those meetings to each member not present when the appointment is made.
(2)
The chairperson or any 2 members may call a special meeting of the Board by giving at least 7 days’ notice of the special meeting, and the business to be transacted at the meeting, to each member for the time being in New Zealand.
(3)
Only the business stated in the notice of the special meeting may be transacted at the special meeting.
(4)
Notice of a meeting—
(a)
must be written, and state the date, time, and place of the meeting; and
(b)
may be given by post, delivery, or electronic communication; and
(c)
must be sent to the member’s last known address in New Zealand.
(5)
An irregularity in a notice of a meeting is waived if all members entitled to receive the notice either—
(a)
attend the meeting without protesting about the irregularity; or
(b)
do not attend the meeting, but agree before the meeting is held to the waiver of the irregularity.
29 Methods of holding meetings
A meeting of the Board may be held—
(a)
by a quorum of the members being assembled together at the date, time, and place appointed for the meeting; or
(b)
by means of audio, audio and visual, or electronic communication by which a quorum of members can simultaneously communicate with each other throughout the meeting.
30 Quorum
(1)
A quorum for a meeting of the Board is—
(a)
half the number of members (if the board has an even number of members) or a majority of the members (if the Board has an odd number of members); but
(b)
in any case, no less than 3 members.
(2)
No business may be transacted at a meeting of the Board if a quorum is not present.
31 Presiding at meetings
(1)
At a meeting of the Board, the following person presides:
(a)
if there is a chairperson and he or she is present, the chairperson; or
(b)
if there is no chairperson or he or she is not present, the deputy chairperson; or
(c)
in any other case, a member chosen by the members present to be the chairperson of the meeting.
(2)
The person chosen under subclause (1) may perform and exercise all the powers, duties, and functions of the chairperson for the purposes of the meeting.
32 Voting at meetings
(1)
Each member has 1 vote.
(2)
A resolution of the Board is passed if it is agreed to by all members present without dissent or if a majority of the votes cast on it are in favour of it.
(3)
A member present at a meeting of the Board is presumed to have agreed to, and to have voted in favour of, a resolution of the Board unless he or she expressly dissents from, or votes against, the resolution at the meeting.
33 Unanimous written resolutions
(1)
A resolution signed or assented to in writing (whether sent by post, delivery, or electronic communication) by all members is as valid and effectual as if it had been passed at a meeting of the Board duly called and constituted.
(2)
The resolution may consist of several documents containing the same resolution, each signed or assented to in writing by 1 or more members.
34 Appointment of subcommittee to deal with complaints and licensing appeals
(1)
The Board may appoint 1 or more subcommittees of the Board and by written notice may delegate to a subcommittee any or all of its functions under section 343(b) and (c).
(2)
A subcommittee must have no fewer than 3 members.
(3)
The members of a subcommittee must be members of the Board, and the Board must nominate 1 of the members as the chairperson of the subcommittee.
(4)
The Board must regulate the procedure of its subcommittees as it thinks fit, and may at any time discharge, alter, or reconstitute a subcommittee.
(5)
A delegation under this clause may be revoked at any time, and the delegation of a function of the Board does not prevent the Board from exercising that function itself.
Schedule 3 clause 34: inserted, on 13 March 2012, by section 90 of the Building Amendment Act 2012 (2012 No 23).
Schedule 4 Enactments amended
Part 1Amendments to other Acts (other than local Acts)
Boilers, Lifts, and Cranes Act 1950 (1950 No 53)
Amendment(s) incorporated in the Act(s).
Building Research Levy Act 1969 (1969 No 23)
Amendment(s) incorporated in the Act(s).
Chartered Professional Engineers of New Zealand Act 2002 (2002 No 17)
Amendment(s) incorporated in the Act(s).
Children, Young Persons, and Their Families Act 1989 (1989 No 24)
Amendment(s) incorporated in the Act(s).
Civil Defence Emergency Management Act 2002 (2002 No 33)
Amendment(s) incorporated in the Act(s).
Costs in Criminal Cases Act 1967 (1967 No 129)
Amendment(s) incorporated in the Act(s).
Crown Organisations (Criminal Liability) Act 2002 (2002 No 37)
Amendment(s) incorporated in the Act(s).
Dairy Industry Act 1952 (1952 No 55)
Amendment(s) incorporated in the Act(s).
Disabled Persons Community Welfare Act 1975 (1975 No 122)
Amendment(s) incorporated in the Act(s).
Earthquake Commission Act 1993 (1993 No 84)
Amendment(s) incorporated in the Act(s).
Education Act 1989 (1989 No 80)
Amendment(s) incorporated in the Act(s).
Electricity Act 1992 (1992 No 122)
Amendment(s) incorporated in the Act(s).
Fencing of Swimming Pools Act 1987 (1987 No 178)
Amendment(s) incorporated in the Act(s).
Fire Service Act 1975 (1975 No 42)
Amendment(s) incorporated in the Act(s).
Gas Act 1992 (1992 No 124)
Amendment(s) incorporated in the Act(s).
Hazardous Substances and New Organisms Act 1996 (1996 No 30)
Amendment(s) incorporated in the Act(s).
Health Act 1956 (1956 No 65)
Amendment(s) incorporated in the Act(s).
Health and Safety in Employment Act 1992 (1992 No 96)
Amendment(s) incorporated in the Act(s).
Historic Places Act 1993 (1993 No 38)
Amendment(s) incorporated in the Act(s).
Hospitals Act 1957 (1957 No 40)
Amendment(s) incorporated in the Act(s).
Human Rights Act 1993 (1993 No 82)
Amendment(s) incorporated in the Act(s).
Local Government Act 1974 (1974 No 66)
Amendment(s) incorporated in the Act(s).
Local Government Act 2002 (2002 No 84)
Amendment(s) incorporated in the Act(s).
Local Government Official Information and Meetings Act 1987 (1987 No 174)
Amendment(s) incorporated in the Act(s).
Meat Act 1981 (1981 No 56)
Amendment(s) incorporated in the Act(s).
Ombudsmen Act 1975 (1975 No 9)
Amendment(s) incorporated in the Act(s).
Privacy Act 1993 (1993 No 28)
Amendment(s) incorporated in the Act(s).
Public Audit Act 2001 (2001 No 10)
Amendment(s) incorporated in the Act(s).
Public Finance Act 1989 (1989 No 44)
Amendment(s) incorporated in the Act(s).
Public Works Act 1981 (1981 No 35)
Amendment(s) incorporated in the Act(s).
Radiation Protection Act 1965 (1965 No 23)
Amendment(s) incorporated in the Act(s).
Resource Management Act 1991 (1991 No 69)
Amendment(s) incorporated in the Act(s).
Sale of Liquor Act 1989 (1989 No 63)
Amendment(s) incorporated in the Act(s).
Sentencing Act 2002 (2002 No 9)
Amendment(s) incorporated in the Act(s).
Schedule 4 Part 1 Weathertight Homes Resolution Services Act 2002: repealed, on 1 April 2007, by section 127(1)(b) of the Weathertight Homes Resolution Services Act 2006 (2006 No 84).
Part 2Local Acts amended
Auckland Improvement Trust Act 1971 (1971 No 9)
Amendment(s) incorporated in the Act(s).
Summit Road (Canterbury) Protection Act 2001 (2001 No 3)
Amendment(s) incorporated in the Act(s).
Part 3Regulations amended
Dangerous Goods (Class 3—Flammable Liquids) Regulations 1985 (SR 1985/188)
Amendment(s) incorporated in the regulations.
District Courts Rules 1992 (SR 1992/109)
Amendment(s) incorporated in the rules.
Domestic Violence Act Commencement Order 1998 (SR 1998/343)
Amendment(s) incorporated in the order(s).
Domestic Violence (Public Registers) Regulations 1998 (SR 1998/342)
Amendment(s) incorporated in the regulations.
Education (Early Childhood Centres) Regulations 1998 (SR 1998/85)
Amendment(s) incorporated in the regulations.
Electricity Regulations 1997 (SR 1997/60)
Amendment(s) incorporated in the regulations.
Fire Safety and Evacuation of Buildings Regulations 1992 (SR 1992/361)
Amendment(s) incorporated in the regulations.
Gas Regulations 1993 (SR 1993/76)
Amendment(s) incorporated in the regulations.
Hospitals Regulations 1993 (SR 1993/156)
Amendment(s) incorporated in the regulations.
Old People’s Homes Regulations 1987 (SR 1987/336)
Amendment(s) incorporated in the regulations.
Rating Valuations (Local Authority Charges) Regulations 1999 (SR 1999/146)
Amendment(s) incorporated in the regulations.
Reprints notes
1 General
This is a reprint of the Building Act 2004 that incorporates all the amendments to that Act as at the date of the last amendment to it.
2 Legal status
Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.
3 Editorial and format changes
Editorial and format changes to reprints are made using the powers under sections 24 to 26 of the Legislation Act 2012. See also http://www.pco.parliament.govt.nz/editorial-conventions/.
4 Amendments incorporated in this reprint
Land Transfer Act 2017 (2017 No 30): sections 247, 250
Fire and Emergency New Zealand Act 2017 (2017 No 17): section 197
Regulatory Systems (Building and Housing) Amendment Act 2017 (2017 No 11): Part 1
Contract and Commercial Law Act 2017 (2017 No 5): section 347
Building (Pools) Amendment Act 2016 (2016 No 71): Part 1
District Court Act 2016 (2016 No 49): section 261
Building (Exempt Building Work) Order 2016 (LI 2016/108)
Building (Earthquake-prone Buildings) Amendment Act 2016 (2016 No 22) (as amended by section 261 of the District Court Act 2016)
Standards and Accreditation Act 2015 (2015 No 91): section 45(1)
Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72): section 55
Health and Safety at Work Act 2015 (2015 No 70): section 232
Local Government Act 2002 Amendment Act 2014 (2014 No 55): section 78
Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26): section 107
Building Amendment Act 2013 (2013 No 100)
Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70): section 150
Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19): section 8
Legislation Act 2012 (2012 No 119): section 77(3)
Building Amendment Act 2012 (2012 No 23)
Criminal Procedure Act 2011 (2011 No 81): section 413
Limitation Act 2010 (2010 No 110): section 58
Affordable Housing: Enabling Territorial Authorities Act Repeal Act 2010 (2010 No 101): section 4
Building Amendment Act 2010 (2010 No 50)
Building Amendment Act 2009 (2009 No 25)
Energy (Fuels, Levies, and References) Amendment Act 2008 (2008 No 60): section 17
Building (Building Consent Authority Transition) Order 2008 (SR 2008/147)
Building Amendment Act 2008 (2008 No 4)
Building (Consent Authorities) Amendment Act 2007 (2007 No 34)
Weathertight Homes Resolution Services Act 2006 (2006 No 84): section 127(1)
Plumbers, Gasfitters, and Drainlayers Act 2006 (2006 No 74): section 185
Securities Amendment Act 2006 (2006 No 46): section 25
Building Amendment Act 2005 (2005 No 31)
Relationships (Statutory References) Act 2005 (2005 No 3): section 7
State Sector Amendment Act (No 2) 2004 (2004 No 114): section 19(1)
Versions
Building Act 2004
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