Variations and amendments to building consents

Variations to consented building work are commonly proposed during a building project. Some variations are as minor as fitting a different style of tap, while others might involve using a different cladding system to that which was approved when the initial building consent was granted. A commonly proposed variation is a brand substitution - for example, when a specific brand product named in the building consent turns out to be unavailable or a better, or less expensive, alternative is found.

Making variations to consented building work without obtaining the right approvals from the responsible building consent authority can have potentially serious consequences. An obvious risk is that building work may not comply with the Building Code. This could mean that a building is constructed in a way that is unsafe or insanitary.

Reform to bring greater certainty

In June 2008 the Minister for Building and Construction, Hon. Shane Jones, announced plans to amend the Building Act 2004 to provide greater clarity on the requirements for considering and approving amendments to building consents. This work will cover the distinction between minor and major variations (discussed below) and will support best practice in managing amendments to building consents.

While this reform is happening, the Department of Building and Housing has developed this article to help provide initial guidance on its expectations around assessing proposed variations and making amendments to building consents. Once the Act is amended to include greater clarity around amendments to building consents, the Department will also develop more detailed guidance to assist building consent authorities, building practitioners and consent applicants.

Key terms

For the purposes of this article, 'variation' refers to any proposed change to the building work that was approved in the original building consent.

An 'amendment' means any change that is subsequently made to a building consent after being assessed and approved by the building consent authority. Amendments can be made in a number of ways, which might include a simple alteration like a handwritten note on the consented plans and an inspection record note.

A 'formal amendment' is when a party seeks to amend the original building consent plans and specifications by using Form 2 of the Building (Forms) Regulations 2004. Many councils have also developed their own version of this prescribed form that they require building consent applicants to use.

Identifying and dealing with variations

Building consent authorities need to have sound systems and processes for dealing with variations. All variations should be considered on their own merits and handled in the most appropriate way, depending on the significance of the proposed change and its possible impact. A building consent authority's system for doing this work may well allow for different ways of considering and making decisions on variations and then actioning the necessary amendments to the approved building consent documentation.

Minor and major variations
All building consent authorities should decide what they consider to be 'major' or 'minor' variations and then consistently implement such a policy for how they handle each.

Minor variations
do not usually affect compliance with the Building Code, but usually achieve the same outcome in a different way. For example, the type of taps used or the positioning of kitchen joinery, non-structural walls or window locations. However, each case still needs to be considered on its own facts. The location of the kitchen joinery may well have compliance implications - for example, if it was positioned in a way that created a fire hazard or raised accessibility issues.

Here are some examples of minor variations to building consents that could be dealt with through more informal processes:

substituting one internal lining for a similar internal lining
minor wall bracing changes
internal non-load bearing wall partition being moved from one place to another (where the bracing still complies with the original design)
a change to a component (eg, fixing bracket)
a construction change (eg, the framing method around a window when the window is changed to a door)
changing a room's layout (eg, the position of sanitary fixtures in a bathroom or kitchen)
changing one brand of insulation or plaster board for another
installing a skylight while making other renovations
a proprietary floating foundation is proposed to be substituted for a conventional strip foundation and concrete floor, all within the original building footprint. A supervising engineer has provided the builder with a revised design, calculations and producer statement.
a builder wishes to install an extra window in one of the walls. The lintel size has been assessed and complies with NZS 3604. Window flashings are consistent with those to be used elsewhere in the building to suit the cladding systems.
Major variations
usually have fairly clear compliance implications, where the planned building work is usually outside the scope of the original consent. It is common for such variations to impact upon a number of Building Code clauses. For example, if the applicant wanted to change a walk-in wardrobe on their plans to an ensuite bathroom, the building consent authority would need to review documentation describing the variation for the range of Code compliance issues that a new bathroom brings (eg, plumbing, drainage, ventilation, personal hygiene, internal moisture).

Here are some examples of major variations that need to be handled in a more formal way:

a change to the building envelope, footprint, or floor area
a change to the assembly (eg, acrylic shower unit to a tiled shower unit)
any structural change (other than minor bracing changes)
changes to cladding systems (products, systems, construction methods)
a change that affects a producer statement that the building consent authority has relied on as part of its decision-making.
Importantly, all variations need to be communicated to the building consent authority, as it has sole responsibility to decide whether a variation can be approved and whether it represents a minor or major change. Building consent authorities will also need to properly document any changes that happen, whether minor or major.

Amending the building consent
Once a building consent authority has assessed the variation and decided whether or not it complies with the performance requirements of the Building Code, its system should outline how amendments to building consents can then be made. This will inevitably depend on a range of factors such as the complexity and significance of the change and its potential impact.

The building consent authority accreditation scheme does not require that building consent authorities have to request new plans and specifications for all variations to be lodged as formal amendments. BCAs can require this when it is considered appropriate and reasonable in the circumstances, but the critical decision-point has been left for each building consent authority to decide for each case. The minor/major distinction outlined above can help with such decisions.

Ultimately, what finally gets built really does need to be accurately represented in the documentation that the building consent authority uses to issue the code compliance certificate and the territorial authority stores on public record for the life of the building.

For some of the more minor variations, building consent authorities can manage amendments by requesting that sufficient detail is written/drawn on the building consent plans and specifications, and/or sent in to them as as-built drawings, so an accurate record of what is built is maintained. The designer/builder or consent applicant should do this and the building official should then verify or countersign the documentation. It is important that building officials do not overstep their primary role as compliance verifiers and undertake design tasks that are the responsibility of the consent applicant or their designers. Building officials should also make appropriate inspection notes on the consent file to document the variation that is approved.

For more complex and major variations, applicants may be asked to apply for a formal amendment and submit revised plans and specifications for the variation. The Building (Forms) Regulations 2004 set out a form for this process (Form 2). Building consent authorities should advise the applicant which method to use and all formal amendments must be processed within 20 working days. The Department's expectations are that these amendments would ideally be given some priority over other consent applications by the building consent authority as there can often be tradespeople awaiting their approval to continue some part of the building work on site.

Summary
The diagram below summarises the process of assessing variations and making subsequent amendments to building consents.