*ARCHIVE* - BIA Update 41 - Building certifiers - the way forward 15 Oct 2004
The Building Act 2004 introduces new building consent provisions directly affecting private building certifiers.
Key dates
The Building Act 2004 has been passed by Parliament. The new Act repeals the Building Act 1991 on 31 March 2005 and after this date new building consent provisions apply.
An aspect of the Act is that it makes no provision for private building certifiers to undertake certification work on consents issued after 31 March 2005. It does, however, allow building certifiers to complete work on those consents issued under the 1991 Act for a period of up to either 18 or 36 months from 30 November 2004 (the period is extended to 36 months if building certifiers apply for registration as a private Building Consent Authority by 31 May 2006).
For those building certifiers, the same approval, disciplinary, insurance and other regimes will continue to apply as under the 1991 Act. The most significant difference is that the powers will be exercised through the Chief Executive of the Department of Building and Housing, rather than through the Building Industry Authority (BIA).
Insurance review
In July the BIA issued a consultation document supporting its review of the scheme of insurance for building certifiers. This document highlighted the difficulties certifiers face in the current environment in obtaining insurance that meets the requirements set by the Authority.
Due to an extended consultation process the BIA is unlikely to complete its review of the scheme of insurance for building certifiers before it is dissolved and its functions moved to the new Department of Building and Housing on 30 November 2004. Given this, it is expected that the new Department will continue the review and should complete it by early 2005.
Certifier renewals
The BIA's recent policy has been to renew building certifier approvals only until late 2004 or early 2005. This was done to coincide with the expected completion of the insurance review, so that building certifiers could put in place new insurance arrangements at the time of their renewal to meet any revised specification arising from the review.
As it is expected the review will now not be completed and any revised specification implemented until 2005, any further renewals will be timed to coincide with the expected implementation date of any revised specification. This will give building certifiers reasonable time to seek insurance consistent with the outcome of the insurance review should this change the specification.
Scope of approval
The scope of approval for many building certifiers is limited by the BIA to work for which they can obtain acceptable insurance cover. Over recent times this has meant certifiers have been excluded from providing inspection or certification services for E2 or weathertightness related work that fell outside the current E2 Acceptable Solution which is limited to a small number of cladding systems.
The new E2 Acceptable Solution, published in June and due to come into effect in 2005, is a more prescriptive document that incorporates a number of new cladding systems. The BIA is working with building certifiers to develop a process for including the new E2/AS1 in their scope of approval. This will be based around having acceptable insurance in place and demonstrated systems and competency in applying the new Acceptable Solution.
Consumer protection under the 2004 Act
The Building Act 2004 requires private building consent authorities (BCAs) to have 'adequate means to cover their civil liabilities that may arise in the performance of the functions of a building consent authority' (BA 2004 s.192(1)(c)).
'Adequate means' could include insurance or other forms of protection such as a bond or guarantor - however, the standard of consumer protection envisioned by the 2004 Act is at least as high as that required by the 1991 Act. As part of the implementation of the 2004 Act, work will shortly be commencing to fully define 'adequate means'. This is a critical element to allow private building consent authorities to obtain registration under the 2004 Act.
Closer relationships with territorial authorities
Both the 1991 and 2004 Acts provide a number of opportunities for building certifiers to work cooperatively with territorial authorities (TAs) to perform building control work under contract to TAs.
Given the real issues building certifiers face with transitioning to the BCA regime and in obtaining adequate insurance, we encourage them to discuss options for working more closely with territorial authorities - indeed, we are aware that a number are already doing this.
We acknowledge that there are cultural, liability and other issues associated with a closer working relationship with TAs. We also recognise that TAs should welcome the professionalism and skills of the certifier industry in addressing their own issues in becoming BCAs.
The BIA has given an undertaking to building certifiers and TAs to facilitate closer working relationships where appropriate.