Determinations decide the outcome

Has the Building Consent Authority (BCA) refused to grant a Code Compliance Certificate (CCC) for a job you’ve completed and issued a notice to fix? Has the council refused to give you a building consent for your plan to extend a 2m-high deck? If so, you’re not alone. The Ministry of Building, Innovation & Employment (MBIE) has issued more than 1,000 determinations in the past 20 years.

As a licensed building practitioner (LBP), you may find yourself a party to a determination and your involvement is often crucial to providing information. Determinations are here to stay and in an increasingly litigious environment, it’s important that you familiarise yourself with the determination process and the roles and responsibilities of each party.

What is a determination?

A determination is a binding decision made by the MBIE. It provides a way of solving disputes or questions about the rules that apply to buildings, how buildings are used, building accessibility, or health and safety.

Most determinations are needed because the person applying for the determination disagrees with the council about decisions the council has made about a building. However, a determination can be applied they have itself or a neighbour who is affected by building work.

A determination can be about building work that is planned, partly done or completed.

You may have already asked for an opinion or advice from MBIE about the same question. A determination is different from a telephone call to the MBIE helpline in that MBIE takes a detailed look at the matter and makes a legally binding decision.

What can a determination be about?

MBIE can make a determination about:

• Whether a building or building work complies with the Building Code.

• A council’s decision on a building consent, a notice to fix from the council, a code compliance certificate or a compliance schedule (including time extensions to building consents and code compliance certificates).

• A council’s decision to grant or not grant a waiver to or modification of the building code requirements for this building.

• A council’s decision on a certificate of acceptance, a compliance schedule, a notice to fix, or a certificate for public use.

• A council’s decision on upgrade provisions related to building alterations, a change of building use, subdivision of buildings, and dangerous, earthquake-prone and insanitary buildings.

• A council’s decision on dams.

Examples of where a determination may be used:

• A council refuses to issue a building consent for a proposed building.

• A building owner has been refused a code compliance certificate for a building that appears to be completed.

• A building owner disagrees with a council’s ruling about a neighbouring property.

• A building owner disagrees with the contents of a notice to fix.

Who can ask for or be a party to a determination?

Those involved in a determination, including the person who applies for it, are called ‘parties’ to the determination. For example, a building owner may ask for a determination because they disagree with the council’s decision to refuse to issue a CCC and instead issue a Notice to Fix even though all inspections have “passed”. In this case, the parties to the determination are the building owner, the council and any LBPs who designed or did the work listed in the notice to fix – if that work is central to the determination. All parties to a determination are treated equally.

You can ask for, or be involved as a party to a determination, if you are:

• The building owner or the owner’s agent.

• The LBP who undertook or supervised the building work under consideration, whether you were working within your licence class at the time or not.

• The council that issued the building consent.

• The owner of other property when the determination is about the protection of that property (for example, the potential spread of fire from one property to another, surface water run-off or land stability).

• A government department or crown agency that has a statutory duty under the Building Act, such as the New Zealand Fire Service or Occupational Safety and Health.

• Anyone with a direct interest in the problem or question, if it has to do with access and facilities for people with disabilities.

MBIE can initiate a determination where it believes it is necessary to achieve the aims of the Building Act.

The council will always be a party to the determination. MBIE may ask other people or organisations to become involved if necessary.

What a determination can decide

The determination will normally be about an earlier decision made by one of the parties (usually the council).

The determination may:

• Confirm, reverse or modify the earlier decision (for example, a determination may say that the council was correct in not issuing a building consent).

• Grant waivers or modifications to the building code (for example, a determination may modify the time period for which the building must be durable).

• Make conditions that the council may itself grant or impose (for example, a determination may require the council to issue a building consent with certain conditions).

Each party will be asked to provide all the necessary information in a submission and can request a hearing if they feel that discussing the submissions will add clarity to the process

What to expect from applying for a determination

A determination costs time and money. The applicant incurs the application fee (currently $287.50 including GST for single houses, attached houses, flats and apartments up to four units, and garages and sheds or $575.00 including GST for all other buildings).

Whether you are an applicant or a party (such as an LBP), it’s important to be aware of the process, what it entails and what to expect of the TA and BCA before applying for a determination. In most cases, legal or other advice is not required in order to participate.

A determination application always deals with a specific matter. Each party will be asked to provide all the necessary information in a submission and can request a hearing if they feel that discussing the submissions will add clarity to the process. The DBH then issues a draft determination and all those involved have the opportunity to comment before the draft is finalised. Once final,a determination can only be appealed through the District Court.

When an LBP is a party to a determination, they have the same rights as any other party – they can expect to be notified when an application is made, be provided with an opportunity to comment on submissions and be able to request and appear at a hearing.

Advice for an LBP and other parties

If an LBP finds that they are a party or applicant to a determination, they should consider these things:

• Is the matter to be determined clear? Ambiguity can result in the determination ‘morphing’ into another issue.

• Make sure any information you provide is correct and complete.

• Read other parties’ submissions and provide comment as necessary.

• Attend any hearings to ensure that facts are correctly reflected.

• Seek support or advice from a technical or legal expert.

For more information, see www.dbh.govt.nz/determinations