Building consents

What happens when you want to do something different?

Building consents are a mixed blessing to most people. If you want to build something on your own property then you might regard them as an unnecessary intrusion of local government into your life; an expense and a delay that you can well do without. On the other hand if it is someone else’s building project, and particularly if it is a public building, then you might regard the building consent process as an essential quality control and health and safety precaution that ensures that our buildings operate the way they are supposed to and don’t kill and maim people like they do in less-regulated countries where corruption and dishonesty are rife.

The general rule is, unless an exception applies, you must have a building consent for everything.

In New Zealand the situation is very simple. You must not carry out any building work except in accordance with a building consent. If you do, you are liable to a fine of up to $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. However, it would obviously be overkill to require you to obtain a building consent if you were just going to build a letterbox, so there are some exceptions to the rule, most of which are set out in Schedule 1 to the Building Act.

Nevertheless the general rule is, unless an exception applies, you must have a building consent for everything. And regardless of whether a building consent is required, the second rule is that all building work must comply with the building code (to the extent required by the Building Act). The Building Code is contained in Schedule 1 of the Building Regulations 1992.

So there are two things you need to check when you are about to undertake building work – whether you are exempted from the requirement to obtain a building consent, and if so, whether anything in the building code applies to what you are planning to do. In addition to those two, you may also need to check whether your project requires a consent under other laws such as the Resource Management Act 1991, the District Plan, the Building Act provisions relating to the fencing of swimming pools, or the Hazardous Substances and New Organisms Act 1996. In practice, most people will need to ask a specialist such as an architect, engineer, builder, building surveyor, or Council employee.

The plans and specifications are binding

To get a building consent you have to tell the Council what you are planning to do, in writing, in considerable detail. It is the Council’s job to decide whether the proposed work complies with the building code, and it can’t do that without knowing a lot about the project. Most of the detail is in the plans and specifications submitted with the building consent application. Once approved, the building consent is a permission for you to do the building work exactly as per those plans and specifications. You have some flexibility, in the sense that you can choose how to go about certain tasks provided the finished product is consistent with the consent, but you can’t do something different from what the plans and specifications call for. Not even a little bit.

This is what catches out so many property owners and builders in practice. They assume that “near enough is good enough” or that if they know a better way of doing something, they can do it. The frustrating thing is, on many occasions they are right, and the Council will readily agree that the variation from the consented plans is perfectly acceptable. But the point is, the Council has to agree first. If they haven’t done so, then you have done (some) building work that has not been consented, and you have broken the law.

You can’t do something different from what the plans and specifications call for. Not even a little bit.

You can take the risk and hope that the Council will approve the variation once it is in place, and many times you will get away with it. That is typically referred to as getting approval on the basis of “asbuilt plans”. But if the Council doesn’t agree, or if you have covered up the work before they get to see it, then they can require you to apply for a certificate of acceptance that requires you to prove that it did comply with the building code, or they can issue a notice to fix requiring you to dismantle and rebuild it.

In addition, in blatant cases you can be prosecuted and fined. And if you are a licensed builder then you can be disciplined by the Building Practitioners Board, irrespective of whether your variation was a smart idea or not. You may have complied with the building code, but you didn’t prove that to the Council first.

It may be easier than you think

It sounds like a pain having to ask the Council every time for permission to depart from the consented plans and specifications, and in many cases it can be. If the variation is more than minor then you have to apply for an amendment to the building consent before you can do any part of that variation, which involves getting additional plans drawn up, putting up with more delays, and sometimes paying more fees.

The builder can’t escape liability by arguing that it wasn’t his responsibility.

However it is less of an imposition if the proposed variation is “minor”, because then the Council’s building inspector can approve it as soon as you can get him or her around to the site. You still have to produce some documentary evidence of the proposed variation for the building inspector to sign and put on the Council file, but that can be as little as a note on the inspection sheet, or a sketch on a plan. Occasionally some new designs will have to be produced but once again these can be approved on site or at the Council offices.

A minor variation is defined as one that does not deviate “significantly” from the consented plans and specifications. For example, substituting one internal lining for a similar internal lining, substituting one brand of insulation for another, reducing the level of timber treatment, changing copper piping to polyethylene, making minor wall bracing changes, changing the framing method used around a window, or changing the position of fixtures in a bathroom or kitchen.

The building owner is primarily responsible for obtaining a building consent and for obtaining approval of any variations. But no-one can “carry out” any building work except in accordance with a building consent. That means that the builder can’t escape liability by arguing that it wasn’t his responsibility or he assumed it was taken care of. He cannot start on the variation until it has been consented to. It’s as simple as that.

by Geoff Hardy
Commercial Lawyer