Publicly Speaking

25 Mar 2008

Building Amendment Act 2008 – What are the changes?

Almost immediately after the Building Act 2004 came into force the first Amendment Act followed in April 2005, largely playing catch up in relation to a number of technical errors that had found their way into the Act, possibly as a result of the rapid drafting and passing of the Act. Since then, although several matters in the Act still needed to be "fixed", various regulations under the Act have come into force the only other amendment to the Act has been to extend the timeframes for BCA accreditation. However, on 15 March 2008 the Building Amendment Bill, (which was introduced back in July 2007 as a bill that "contains some minor adjustments to improve the workability" of the Act), finally came into force.

While the Select Committee did not alter much in the Bill, one of the key changes they recommended relates to the new definition of "restricted building work". The original proposal in the Bill was for quite a different definition, referring to a new defined term; "significant building project". However, this was rejected and the final definition is much closer to the existing definition. It retains a reference to the building work being "critical to the integrity of a building" (and gives an example of critical to integrity as relating to the building's envelope and structure). It also keeps the reference to design work declared to be restricted building work, and that restricted building work must be work that requires a building consent. What is new is that regulations which declare what building work must be carried out or supervised by a licensed building practitioner (which will be restricted building work) may also specify that the work only relates to certain types or categories of buildings.

The Select Committee report states, in relation to this changed definition:

"We understand that regulations to be introduced under the Building Act 2004 may exempt buildings below a certain size or design threshold from the requirement that a licensed building practitioner oversee the work. While a licensed building practitioner might not be essential for building these structures, a building consent and building inspection should continue to be required. We emphasise the need to maintain the permit regime whereby local authorities can check plans and conduct inspections in the usual way. The 2004 Act was designed to improve building standards, including work done by unqualified and DIY builders, and this bill adds clarity."

It is debatable as to whether this new definition adds clarity, however, it is interesting in that it appears to assist in the possible backtracking from the original intention of the Act that only very limited building work would be work that DIYers could do without licensed building practitioner supervision. For example, work such as painting and decorating, maintenance and repairs, building fences and decks, and erecting buildings, such as farm sheds was the type of work contemplated as remaining for DIYers to carry out. Building work below a certain size or design threshold (that may not require licensed building practitioner involvement) could be, for example, the construction of a single level family house - if so, then we might find ourselves back to the pre 2004 Act regime. In this respect the "devil" will certainly be in the detail of the regulations.

There have also been amendments to the exemptions in Schedule 1 which to a large extent reintroduce matters that were omitted from the comparable schedule in the 1991 Act; it is important for territorial authorities to be aware of these changes. The "lawful repair and maintenance" exemption in clause (a) has been tightened up to exclude the complete or substantial replacement of specified systems, or structural or fire-safety components of a building. It also prevents components that have not passed the durability requirements in the building code from being repaired or replaced without a consent. Certain water storage heaters will also still require consent. However, other building work that will now be exempted is the opening and reinstatement of purpose-made drainage system access points (where these are not part of a NUO system), stopbanks, culverts under roads, and "small" dams.

The other main changes which the 2008 Amendment Act introduces, that affect territorial authorities, are:

• Adding pylons, free standing communication towers, power poles and telephone poles, that are part of a NUO system, to section 9 (so that these things are not defined as "buildings", and therefore will not require a consent);
• Requiring territorial authorities to also include in a PIM a general statement about the Building Act’s accessibility requirements, where the building is a "public access" building (Councils are required to comply with this in 6 months time);
• A clarification that consents for building work subject to a natural hazard can only be issued by a building consent authority that is a territorial authority;
• The Act now clearly states that written notice and reasons must be given for the refusal of a code compliance certificate or a certificate of acceptance (Councils are required to comply with this in 3 months time);
• There is a new offence in relation to building warrants of fitness - the failure to supply a warrant to a territorial authority under section 108(1) is now an offence subject to a possible $20,000 fine;
• A definition of “large dam” has been inserted (a dam that retains 3 or more metres depth, and holds 20, 000 or more cubic metres volume, of water or other fluid), removing this wording from the meaning of "dam", and, as noted above, "small" dams are exempted from the need to obtain a building consent. Other amendments have also been made to clarify the "dam" regime under the Act; and
• Licensed building practitioners will provide memoranda for their work rather than certificates (except in relation to specified systems) and the timeframes around practitioner licensing have been extended to November 2010 (instead of November 2009);

There were several amendments in the Bill that did not get enacted, two of which are of greater interest to local authorities than others. Section 40 will not include an offence for engaging or permitting another person to carry out building work without a consent. This was an offence under the 1991 Act and it is not clear why this change was not accepted by the Select Committee, unless it is that the current wording may incorporate this offence. However, the additional wording would have served to clarify the issue.

Another amendment which was not adopted, was the proposed addition of the word "minor" in relation to work which territorial authorities can exempt from the need for a consent under clause (k), Schedule 1. This addition would only have caused problems for territorial authorities as to how they should assess minor - minor in scale, value, or because of materials used? It was also not needed, because an exemption can only be given if the Council considers the work is of a type that will not be done other than in accordance with the building code, or if it is, is unlikely to endanger people or any building. This is likely to be unimportant work, or work that in one sense could be described as "minor".

If you have any questions about the Amendment Act or the Building Act 2004, then please contact us for further information.

Authors

Bill Loutit

Partner - Public Sector

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Judith Cheyne

Senior Associate - Public Sector

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Mobile: +64 21 925 958

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Ann Maddox

Senior Associate - Public Sector

DDI: +64 9 977 5032

Mobile: +64 21 899 772

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