By SHYRELLE MITCHELL, HEANEY & CO

The Building Act 2004 brought with it the possibility that certain types of structures could be built without the need for the property owner to first obtain a building consent.

The provision is Schedule 1, sub-section (k). It says a building consent is not required for building work in circumstances where the council considers the building is unlikely to be built otherwise than in accordance with the building code, or if carried out otherwise than in accordance with the building code, is unlikely to endanger any people or any building whether on the same land or on other property.

A question that arises is whether councils can identify a particular category or class of building which might fall within the confines of sub-section (k) and therefore whether a “blanket” exemption can be applied. Although this may seem an attractive proposition in terms of streamlining certain regulatory practices, caution is recommended as issues might arise as to the council’s legal liabilities and responsibilities.

In considering what types of buildings could come within a blanket exemption consideration needs be given to the objectives of the Act. Councils will be aware that the overall intention of the Act is that all buildings will comply with the Building Code. The underlying objective is to protect the health and safety of people who use buildings or come into contact with them.

For a council to be on good ground in applying a blanket exemption to certain types of structures, say for example to storage sheds, it will need to ensure it has some means of satisfying itself that the building work will be code-compliant, or if not, that it is unlikely to endanger any people or buildings.

The problem is that removing the need for a building consent effectively removes safeguards that can be imposed by the council to obtain such an assurance – consent conditions and inspections. In the absence of these two requirements it is very difficult for a council to ensure that structures built within its territory are absent of inadequate or defective construction practices.

The difficulty may be overcome if the council imposed a condition that builders and applicants meeting the “blanket exemption” criteria would be encouraged to check the proposal against planning and council engineering requirements that might be relevant and site specific. However this option does not provide any protection to ensure against defective workmanship. There is no oversight or controls to guard against the inadequate construction of the particular building in question.

An alternative might be to require a building consent but agree that, in respect of the particular class of buildings, producer statements could be received by the council in lieu of inspections. Producer statements when provided by experts such as engineers, architects or well known and reliable construction companies/product systems manufacturers can be a valuable tool in establishing compliance with the building code.

However, the producer statement regime only adds to the evaluation undertaken by the council by way of its inspection processes, it cannot replace it. Additionally, there is also the practical problem of identifying what types of structures/buildings might fall within sub-section (k).

At first glance buildings such as small storage sheds or other similar structures that are not intended to house people might seem to fit. However most, if not all buildings, will at some point have people entering them for a specific purpose or have people undertaking work around them. In other words it will be very difficult to classify a type of building as being one which is “unlikely to endanger people or any building whether on the same land or on other property”.

In conclusion it seems that a cautious approach should be adopted. Councils ought to carefully consider maintaining the need for a code-compliance certificate in respect of all significant structures on land – and avoid the temptation to offer blanket exemptions for any particular types of structure.