Old Building Consents

Old Building Consents

Code Compliance Certificate Un-issued 5 Years Or More Ago

Purpose

The purpose of this guide is to provide the building owner with a clear process and pathway when applying for a Code Compliance Certificate (CCC) on a building consent that is classified as an old Building Consent.

This guide does not cover building work or buildings that were constructed as part of a building permit (i.e. building permit that was issued prior to the implementation of the Building Act 1991). Building permits were issued by Council under the Bylaw regime when there was no requirement to carry out final inspection or issuing of Code Compliance Certificate.

Background

A Code Compliance Certificate (CCC) is a formal statement issued by Council certifying that:

• For Building Consents under the Building Act 2004 - building work carried out complies with the approved building consent.
• For Building Consents under the Building Act 1991 - building work carried out complies with the applicable building code that applied at the time the building consent was granted.

In any case, before Council can issue the CCC, we must be "satisfied on reasonable grounds" that the building work complies with the building code and/or the Building Consent. If Council cannot be satisfied, we will refuse the CCC and set out the reason as required under Section 95 of the Act. In some instances if the non-compliance is major, Council is also required to issue a Notice to Fix.

Regardless of the reason why the owner could not obtain the CCC earlier, the critical consideration in the current circumstance is that the work must comply with the requirements of the applicable Building Code (Building Act 1991) or the approved consent (Building Act 2004) at the time when the CCC is issued; not at the time when Council last inspected the building.

Definition Of "Old" Building Consent

A Building Consent issued under the Building Act 1991 or Building Act 2004 that has no CCC issued for the work and is more than 5 years old from the issuing date.

Specific Issue Of Old Building Consent

When assessing older Building Consents for CCC, the Building Code requirements of Clause B2 and Clause E2 are particularly relevant and critical.

Clause B2 Durability

Clause B2.3.1 of the Building Code requires that the building element (as installed) complies not only on the day of issuing the CCC but also will continue to comply for at least 5, 15 or 50 years after. In most cases, the expected durability of the building element starts from the day they are installed. If the work is already more than 5 years old, Council is no longer able to be satisfied the building element will comply with Clause B2.3.1. The building element may have already exceeded or partially exceeded its expected durability and the manufacturer's warranty for the product.

This issue has been considered in many Determinations (refer section177 BA2004) by the Ministry of Business Innovation & Employment (MBIE). The accepted procedure is for the owner to seek amendment of the building consent to modify the durability requirement of Clause B2.3.1; so that the durability periods commence at the time when the work was substantially completed (not at the time of issuing the CCC).

This means that for an owner who wishes to apply for a CCC for an old building consent, they are required to apply for an amendment to the building consent with:

- A request to modify the building code Clause B2.3.1, and

- Agreement of a date as to when the durability commenced.
- The amendment application form "Application to Amend Building Consent – Durability" is available on our website.

Clause E2 External Moisture

Clause E2 requires the building and its overall weathertightness performance to comply with the Building Code. Where the work has been completed for some time, Council will have to carry out a full review and re-inspection to enable Council to be satisfied on reasonable grounds that the work still complies at the time of re-inspection. An extensive investigation and weathertightness report is always required. Simply relying on prior inspections, possibly years earlier is not sufficient to establish reasonable grounds.

Council does not have the expertise and necessary equipment to carry out the weathertightness investigation, testing and analysis of closed in and completed building work. These investigations are normally carried out independently by a Registered Building Surveyor (specialised in weathertightness). Significant moisture testing (invasive and non-invasive) may or may not be carried out as part of the investigation.

If such extensive investigation is not undertaken, or if the building is of a risky style under the risk matrix, Council may not be able to be satisfied, on reasonable grounds that weathertightness requirements of the code can be met. This would be a sufficient reason to refuse a CCC.

The cost of the review and re-inspection by Council is chargeable to the owner/owner's agent. The owner is also responsible for the engagement of the Building Surveyor, the cost of investigation and authorising any invasive testing or other necessary activity by the Building Surveyor.

The decisive factor is that Council must be satisfied on reasonable grounds the building code or the Building Consent is complied with at the time of issuing the CCC. If Council, after carrying out the inspection or after the investigation/report by the Building Surveyor is not satisfied on reasonable grounds, then a CCC will not be issued. The reason for not issuing the CCC will then be given in writing to the owner.

The owner/owner's agent at any stage of the process can apply for a Determination with the Ministry of Business Innovation & Employment (MBIE) about Council's decision not to issue a CCC. Where the Determination process is followed MBIE will engage at its cost, independent experts to assess the building work and these reports are shared with the property owner.

Process

The process is outlined and detailed in the following steps:

Initial Request From Owner

The request could be initiated by the owner either by requesting a final inspection or submitting an Application for Code Compliance Certificate. The request/application will then be reviewed and assessed by Council to determine how it will proceed.

Depending on the age of the consent, the time of the last inspection by Council and the inspection type that was last carried out, a fee is required to initiate the process.

The initial fee is required to cover the work necessary for the initial review and re-assessment of the building consent file. Additional fees will be charged for the actual inspection and related administration carried out as part of the on-going process. All outstanding fees must be paid before any CCC can be issued.

Initial Assessment

On application and payment of the fee, Council's Building Control Official will review the file of the approved consent and relevant documentation. The following factors will be considered:

• The age of the building/building work
• The complexity of the design
• The type of cladding material used and method of installation (cavity or no cavity)
• The status of inspections already carried out and if any inspection types were not called for
• Any outstanding issues, outstanding documentation
• Any outstanding fees
• The E2 risk matrix score assessment.

 The E2 risk matrix score assessment will consider the following factors:

• Number of storey/s
• Wind zone
• Roof/wall junction (number of junctions, interfaces and level of complexity)
• Eave width
• Decks and balconies
• Cladding type/material; junctions, complexity, junction of multiple claddings.

The initial assessment/review is necessary for Council to:

• Review all information of the building consent in council's records
• Identify any potential issue that could affect the issuing of the CCC
• Establish the risk profile regarding the building/building project
• Review of outstanding fees
• Confirm whether an inspection can proceed; and the time and date of the inspection with the owner/owner's agent.

Proceed With Inspection

The owner will be notified of the inspection and any outstanding fees.

Following inspection, the Building Control Official (Inspections) will assess whether the work complies. Depending on the scope, nature and complexity of the project, requirements for amendment durability and weathertightness an additional investigation/report by a suitably qualified person (i.e. Registered Building Surveyor, Registered Architect, and Chartered Professional Engineer) may also be required.

In some cases, remedial works will be required to meet the code. Remedial works could be identified as part of Council's inspection or identified in the weathertightness investigation/report. Depending on the circumstances, the following could be required:

• Remedial   work   is   instructed   to be   completed   and   inspected   by   the   Inspector   with updated/as-built plan to record the remedial works.
• An amendment to the existing building consent is to be applied for the remedial works; approval is needed before work being completed.
• A separate building consent is required for the remedial works and approval is required before work being completed.

In any case, all remedial works must be inspected and certified by Council before approval of CCC. The owner/owner's agent is responsible to arrange for an inspection of any remedial works.

For inspection booking, please phone 06 85 77 731 with 3 days’ notice.

Unable To Issue CCC

In some cases, after the review of the file and carrying out the inspection, the outcome is such that Council is unable to confirm or certify level of compliance; and will refuse the CCC and provide the reason for the refusal to the owner.

The following options are available to the owner:

• Take no further action. If so, Council may not take further action but reserve the right to inspect if it becomes aware that the building/building work is potentially dangerous or insanitary.
• Discuss with Council providing additional evidence or supporting documentation to verify how the building work complies. If remedial works are required or necessary, a new building consent application may be required for approval before being completed on site.
• Apply for a Determination with the Ministry – MBIE.

For commercial or non-residential building where the building is open for public use (whether for free or payment of charge), it is an offence under Section 362-363 of the Building Act to allow public use of the building without a CCC. A Certificate of Public Use (CPU) that allows a building to be used before the issuing of CCC can be applied for with Council. This CPU is not however a substitution for CCC and does not have an indefinite time frame.

Weathertightness Investigation/Report

Council may request and accept a report from a suitably qualified person (i.e. Registered Building Surveyor, Registered Architect, and Chartered Professional Engineer) with specialised area or practice area in weathertightness.

It is important to confirm or reach an agreement with Council on the person who will provide the report. Information and sufficient evidence will be required to demonstrate the suitability and competence of the person/author of the report. The information should include but is not limited to the following:

• Demonstrated competence in the type and scale of the project subject to the investigation
• Formal qualification
• Relevant work experience
• Membership of appropriate professional affiliation
• Appropriate level of professional indemnity insurance based on the value of the work
• Declaration of any potential conflict of interest

Acceptance of the report will also be subject to the following, in particular but not limited to:

• The report must be a full assessment of all building envelope that was completed as part of the building work concerned (i.e. wall cladding, roof cladding, external joineries, penetrations, junctions/interfaces, flashing etc.)
• The report and investigation must be thorough and extensive to the extent that is deemed appropriate by the author to provide a conclusive statement on the level of compliance of the building work. (The report is expected to be the same type and quality of report required to be provided to the Ministry - MBIE for Determination purposes)
• Evidence of invasive testing (or any other necessary testing) and analysis carried out by the author of the report to confirm weathertightness performance of the building work
• Conclusion as to whether or not the building work complies with the building code Clauses B2 and E2
• Supporting document, photographs, testing result and analysis carried out as part of the investigation
• Detail of any failure or concern regarding weathertightness performance
• Detail of any remedial works or recommendation on how to fix any of the non-compliance or failure
• Detail of any proposal by the author as to how the work can be remediated with a plan of monitoring and supervising of the remedial work
• Any other recommendation/comment by the author.

Any remedial works (recommended by the report) will need to be approved and inspected by Council prior to being completed on site.