MBIE reverses council notice to fix

The Ministry of Building, Innovation and Employment (MBIE) has overruled a Notice to Fix (NTF) issued by Auckland Council due to the lack of prescribed detail, despite agreeing with the authority’s decision that the building in question contravened several aspects of the Building Code 

The owners of a two-story “sleepout” with sanitary fixtures were found by MBIE to have contravened section 40 of the Building Code determination after they carried out several building works without consent. However, the Notice to Fix (NTF) that was issued to them by Auckland Council, following an inspection of the building, was reversed due to its “deficiencies”.

“The NTFs were issued because the authority considered that building work had been carried out without first obtaining a building consent, where one was required, and that building work had been carried out that does not comply with the Building Code,” wrote Peta Hird, MBIE Principal Advisor, in Determination 2024/016.

Between 2008 and 2018, the two-storey building was constructed in various stages:

1. A sleepout less than 10m2 was constructed on 125 x 125mm posts with a stair and landing deck to provide access. 
2. Fixtures relocated and substituted. Composting toilet provided for. 
3. Composting toilet and soakage system for sink, shower and basin provided for. 
4. Floor installed on ground level via means of a concrete pad. 
5. Ground floor space enclosed to provided office lounge area. 
6. Veranda formed under landing deck area. 
7. Timber window installed to provide protection to veranda. 
8. New electrical wiring and fittings installed.

By 2018, the building included an upper level, accessed externally via steps, and a ground level with an enclosed living/office area with a partially enclosed area with a kitchen sink, bench and cabinetry. It also features a small area adjacent to the living area, partially enclosed with timber framing and metal cladding, with a shower and flushing toilet, accessible only from the outside. 

The only aspect of the building that was built after obtaining a consent was the connection of the sanitary fixtures to the existing on-site wastewater treatment system, which happened following the second notice to fix was issued. However, a Code Compliance Certificate for the connection was not issued until after the sixth notice to fix.

Start of a long process

In March 2019, Auckland Council carried out its first inspection of the building, after a complaint made by a tenant concerning the building and facilities.  

Subsequently, Auckland Council issued six NTFs between 22 March 2019 and 24 May 2021. The MBIE ruling dealt with the last one, which included the same particulars as the previous notices and requirement for compliance by 24 July 2021.

The notices specified:  

• Contrary to section 40 of the Building Code, construction of a two-story building with kitchen and shower facilities (kitchen sink and an outdoor shower) and an outdoor composting toilet was carried out without first obtaining a building consent. 
• The installation of sanitary fixtures was not connected to wastewater treatment, contrary to clauses G1 and G13 of the Building Code. 
• A constructed stairway is too steep and was not constructed correctly as specified in clauses D1, F4 of the Building Code. 
• The cladding system used on the building has been installed contrary to clause E2 in the Building Code.

The building owners contested the NTFs and submitted a report prepared by a building consultant, which questions “the extent to which Schedule 1 applied to the work and whether the building was ‘safe and sanitary’,” wrote Hird. 

The owners argued that, as the building was progressively developed over time as exempt building work, and that the lower storey living area was dry even after heavy rain – a good indicator of the building’s performance – that none of the NTFs were valid, as none of the building work required a consent. 

Backing up Auckland Council 

However, that was not MBIE’s stance. 

“The authority (MBIE) submits that its documentation of the inspection clearly shows the scale of the building work undertaken and supports its decision to issue an NTF,” wrote Hird. 

“The building is two storeys with kitchen and shower facilities, and there are no provisions of Schedule 1 that apply to the construction of two-storey buildings. The authority disagrees with the owners’ view that each individual part of the building was exempt work and therefore the collective whole is also exempt.” 

Hird also wrote that the construction of the upper level and enclosed living area on the lower level was not exempt building work. 

“The installation of the sanitary fixtures was not exempt under clause 35. Accordingly, building work was undertaken without consent when consent was required, in contravention of section 40. Therefore, there were grounds to issue a notice to fix.” 

MBIE determined the only applicable exemptions were for the construction of the concrete pad (clause 24) and the partially enclosed veranda on the lower level, including the window (clauses 17 and 8). 

Despite mostly agreeing with Auckland Council’s view that the building work contravened the Building Code, MBIE reversed Auckland Council’s NTF due to lack of prescribed detail in the sixth notice. 

Paperwork problem  

“The particulars (NTFs) were deficient because they did not adequately specify the building work at issue (in relation to the cladding), which performance criteria were not being met, nor the reasons why the authority considered the work was non-compliant. There, the notice did not ‘fairly and fully’ inform the owners of the issues,” wrote Hird. 

“In terms of remedies, due to the deficiencies in describing the particulars of contravention, it was not clear what was required to bring the work into compliance. Also, the notice incorrectly referred to ‘obtain’ rather than ‘apply for’ a certificate of acceptance.” 

Demolition on the table   

Responding to a request for more information from Under Construction, MBIE Head of Building System Delivery and Assurance, Simon Thomas, said the responsibility to bring the building in line with Code belongs to Auckland Council. 

“Council is not able to enforce the notice that has been reversed by the Determination. They can decide whether to issue a new notice and have further enforcement powers to exercise if the latter notice is not complied with. 

“Ultimately, section 220 of the Building Act 220 can empower the Council to carry out building work (including demolition) required to remedy the contraventions outlined in the NTF. Council costs may be recovered as part of this process.”