Building Consent

It is section 40 of the Building Act 2004 that says you must not construct, alter, demolish or remove a building without a building consent. And it is sections 41 and 42A that list the exceptions to that rule. There are exceptions under section 41 for certain Government buildings, urgent work, energy work, work authorised by a territorial authority, and the various types of work listed in Schedule 1 to the Building Act. Section 42A then goes into greater detail about Schedule 1.

This article summarises Schedule 1 for you but is only intended to give you a heads-up, or point you in the right direction. The Government has changed Schedule 1 many times over the past 15 years, to make it easier to follow and to expand the exemptions. So you cannot simply rely on your memory of what the exemptions used to be. You can read Schedule 1 for yourself, by simply googling “Building Act 2004” and looking up Schedule 1.

The first point to remember is that the Schedule 1 exceptions only apply if the building work complies with the Building Code, and (if the work is to an existing building) it doesn’t make the building less compliant than it already was. Also, the exceptions only apply if the work doesn’t breach any other statute (eg. the Resource Management Act 1991, the Fencing of Swimming Pools Act 1987, or the Hazardous Substances and New Organisms Act 1996).

THE “LIKE FOR LIKE” EXCEPTION

Schedule 1 begins with the standard “like for like” exception. Since the leaky building crisis, this is no longer as simple as it seems. You can still repair, maintain or replace an existing component or assembly, using comparable materials, without a building consent. And you can still perform building work on a window or exterior doorway in an existing dwelling or outbuilding of two storeys or less, without a consent. But you do need a consent where the repair, replacement or the building work relates to a component, assembly, window or doorway that has failed to satisfy the building code requirements for durability.

The typical example is where the component, assembly, window or doorway has failed to comply with the external moisture requirements of the building code. Clause E2 of the building code, relating to external moisture, says that buildings must be constructed to provide adequate resistance to penetration by, and the accumulation of, moisture from the outside. The subclauses then give a number of specific instances. This is what catches out most carpenters who are defending leaky building claims. No matter how innocent they may have been, the fact that they did some work that allowed water to get in and not escape, thereby allowing damage to occur, means that they breached the code, and that usually means that they are liable.

This is the reason why you don’t do “like for like” repairs to leaky buildings without a building consent, just to appease the owner who has a limited budget, or wants to do a cover-up job at minimal expense so he can sell to an unsuspecting purchaser and make it his problem. Inevitably, when the new owner discovers that the repairs haven’t worked, it will be your problem, for up to 10 years after the work was done. Just remember that the “like for like” exception doesn’t apply where you want to reinstate exactly the same structure that caused the leaks in the first place. In those cases a building consent is inevitably required, and the Council is going to insist that the mistakes of the past are not repeated.

THE OTHER EXCEPTIONS

The other situations where no consent is required for general building work are single-storey detached buildings with a floor area of not more than 10 m², unoccupied detached buildings, tents, marquees and similar lightweight structures, pergolas, and the repair or replacement of an outbuilding. Of course there are limitations on virtually every one of those categories, so you have to look up Schedule 1 to see what they are.

When you are doing additions and alterations, there are exceptions for windows and exterior doorways in dwellings and outbuildings, altering entranceways or internal doorways to make it easier for disabled people, interior alterations to non-residential buildings, internal walls and doorways, internal linings and finishes in dwellings, thermal insulation, penetrations, closing in existing verandas or patios, awnings, porches and verandas, carports, and shade sails. Once again, terms and conditions apply.

The above categories all relate to buildings, but there are a number of other structures that don’t require a consent either, including certain retaining walls, fences and hoardings, small-medium dams, tanks and pools (excluding swimming pools), decks, platforms, bridges, boardwalks and similar structures, signs, height-restriction gantries, temporary storage stacks, and private household playground equipment. You cannot simply assume that any of those will be exempt. You have to look up the criteria in Schedule 1.

There are also exceptions for certain structures owned or controlled by a network utility operator or similar organisation, demolition, removal of part of a building, certain sanitary plumbing and drainlaying work carried out by authorised plumbers, gasfitters and drainlayers, certain work in connection with water heaters, and certain building work for which the design is carried out or reviewed by a chartered professional engineer.

Finally, it pays to remember that territorial and regional authorities have discretion to waive the requirement for a building consent in certain cases. They have to be persuaded that the consent is not necessary, either because the completed building work is likely to comply with the code, or if it doesn’t comply, it is unlikely to endanger people or any building, whether on the same land or some other property. Obviously that waiver is only going to be exercised in very deserving cases, generally where the cost and effort of obtaining a consent is out of all proportion to the cost of the project, or to the risk of the building work failing and causing harm to the public.

Geoff Hardy has 39 years’ experience as a commercial lawyer and is the senior lawyer in the Auckland firm “Madison Hardy”. He guarantees personal attention to new clients at competitive rates. His phone number is (09) 379 0700, fax (09) 379 0504, and e-mail geoff@madisonhardy.com. This article is not intended to be relied upon as legal advice.