by Geoff Hardy, an Auckland commercial lawyer
You may recall that late in May 2020 the Government announced some sweeping changes to the building consent regime that were intended to increase the volume of low-risk building work and lessen Councils’ workloads. This was promoted as one of a the ways to kick-start the economy in response to the Covid-19 pandemic. The idea was that if you remove the expense and delay associated with applying for a building consent for low-risk projects, then a lot more people will undertake that work, builders will be busier than they would have been, and more money will start flowing through the economy. Savings of up to $18 million in consenting costs, and a reduction in Council workload of up to 9,000 consents per year were projected.
You could be forgiven for thinking this was some kind of hallelujah moment, as though building activity was being freed up for the first time in history. In fact that’s not the case, and it is simply the latest relaxation of the building consent rules in a series of reforms that have been happening over the past 20 years, the previous ones having occurred in 2004, 2008, 2010, 2013 and 2019. With the steady improvements in building product quality, the proliferation of prefabrication and modular construction, and the increases in the qualifications and expertise required of builders, it is inevitable that the building consent restrictions can be gradually eased from time to time.
Are these changes a big deal?
Whether these exemptions do result in an increase in building activity remains to be seen. At the time I wrote this, they were due to come into force in two stages – some of them at the end of August 2020, and the rest – those that rely on the involvement of licensed building practitioners – later in the year when other changes are made to the Building Act. I suspect those launch dates will prove to be a little optimistic, particularly the latter one.
Furthermore, most of the exemptions aren’t new, but are simply old exemptions that have been relaxed a little more. For example, you could always build small-scale single-storey detached buildings, carports, awnings, porches and verandas, and bridges without a consent, it’s just that the permitted dimensions have been increased. And most of those structures will only avoid the consent regime if a Chartered Professional Engineer has carried out or reviewed the design (at considerable cost) or both the design and the construction has been carried out or supervised by a licensed building practitioner (at considerable cost). So will these latest relaxations suddenly result in a flood of building activity because property owners can now build something a lot bigger and still avoid the need to get Council approval? I doubt it.
There are some brand new exemptions that haven’t been expressly mentioned before, but they are hardly going to lift our economy out of the doldrums. I’m talking about ground-mounted solar array panels, outdoor fireplaces or ovens, flexible water storage bladders, small pipe supporting structures, and single-storey pole sheds and hay barns in rural zones. The one genuinely significant item in this latest batch of exemptions is the changes to the exemption for single-storey detached buildings, and to understand it you need to compare the current rules with the proposed ones.
The detached building exemption
The current exemption for single-storey detached buildings applies to any detached building that is not more than one storey (being a floor level of up to 1 metre above the supporting ground and a height of up to 3.5 metres above the floor level). It must not exceed 10 m² in floor area, and must not contain sanitary facilities or facilities for the storage of potable water, nor any sleeping accommodation unless the building is used in connection with a dwelling and does not contain any cooking facilities. The building cannot be closer than the measure of its own height to any residential building or to any legal boundary. In addition, there is another exemption for unoccupied detached buildings that house fixed plant or machinery and under normal circumstances are entered only on intermittent occasions for the routine inspection and maintenance of that plant or machinery.
What the Government has in mind is three different categories of exemption for single-storey detached buildings. First, kitset or prefabricated buildings with a maximum floor area of 30 m² where the manufacturer or supplier has had the design carried out or reviewed by a Chartered Professional Engineer will be exempted. So will buildings with a maximum floor area of 30 m² where both the design and the construction has been carried out or supervised by a licensed building practitioner. Thirdly, buildings with a maximum floor area of 30 m² will not have to be “built” by a licensed building practitioner where only lightweight materials with structural components built in accordance with B1/AS1 of the Building Code are used.
The main differences are the increase in permitted floor area from 10 m² to 30 m², and the insistence that a Chartered Professional Engineer or a licensed building practitioner be involved unless lightweight materials with structural components complying with B1/AS1 are used. The Government has said that kitchen and bathroom facilities are not included in the exemption, any plumbing work still requires a building consent, and any electrical work will still have to be carried out by a registered electrician.
A boost for the prefabrication industry
The one industry that is going to benefit the most from these initiatives is the portable, kitset, or prefabricated building industry. This is in line with the recently-announced and much more ambitious Government proposals to streamline the prefabrication industry by simplifying the building consent requirements they are currently subjected to. The idea is to introduce something like the product certification system for prefabricated products so that those suppliers just need one approval for their process, and not a separate consent each time their product rolls off the production line. Consequently they will get a double whammy of relief – no manufacturing consent required at all for smaller buildings, and for larger prefabricated buildings, no manufacturing consent required provided they get their design and production process registered and certified.
There have been some concerns expressed about the fact that all these consent exemptions transfer responsibility and potential liability for these exempt categories, away from Councils and towards engineers, architects and licensed builders. I agree, and in my opinion it is an ill-advised knee jerk reaction to the burden the Councils were forced to bear for the leaky building crisis. It is better that that burden be spread across a legion of ratepayers rather than visited upon one hapless engineer, architect or builder (who is likely to go into liquidation anyway), and I would prefer to see Councils retain their function of being the one expert overseer of all reasonably complex building activity in New Zealand.
Geoff Hardy has 45 years’ experience as a commercial lawyer and is a partner in the Auckland firm Martelli McKegg. He guarantees personal attention to new clients at competitive rates. His phone number is (09) 379 0700, fax (09) 309 4112, and e-mail geoff@martellimckegg.co.nz. This article is not intended to be relied upon as legal advice.
