Building warrants of fitness — frequently asked questions

Who is responsible for considering recommendations to change compliance schedules?

The territorial authority.

When can building consent authorities that are not territorial authorities amend compliance schedules?

A building consent authority that is not a territorial authority may consider changing a compliance schedule when a building consent application is made in respect of an existing building, and should issue the new compliance schedule with the code compliance certificate.

If the building owner changes the lawfully established use when filling in Form 12, does this constitute notice to the territorial authority under section 114 that a change of use has occurred?

The Department’s view is that simply slipping a change of use into a building warrant of fitness does not constitute written notice to the territorial authority of a proposed change of use in terms of section 114. However, it would be good practice for territorial authorities to check the information provided in a building warrant of fitness, as well as checking any certificates attached to the building warrant of fitness. In some cases, this will involve some research to verify that the stated ‘lawfully established use’ is correct.

How does the territorial authority know what the ‘lawfully established use’ is?

‘Lawfully established use’ is not defined by the Building Act. In the absence of a definition, a territorial authority should adopt a sensible approach when considering what lawfully established use is. In most cases the existing compliance schedule will state the use of the building. If doubt exists after checking the compliance schedule, the next step could be to establish whether a building consent has been issued that includes a change of use. Further information can be gained by comparing the ‘intended use’ description of work in past building consents and code compliance certificates.

Can a territorial authority charge a fee for checking the building warrant of fitness and IQP/LBP certificates?

Yes. Section 219 of the Building Act 2004 provides for a territorial authority to charge for any function or service performed under the Act.

Can a territorial authority insist that the owner notes the relevant IQP registration number(s) on a building warrant of fitness?

Some territorial authorities have followed this practice in the past, and may wish to continue doing so. However, this practice is not a requirement of the Building Act 2004. This means that while a territorial authority may encourage this approach, it cannot lawfully insist upon it.

Form 12 only refers to the ‘signature of the owner’, where the old Form 14 stated ‘Signed by or for and on behalf of the Owner’. Can a building warrant of fitness now be signed by an agent?

Form 12 has been amended by the Building (Forms) Amendment Regulations (No.2) 2005 and can now be signed by the owner or their agent.

Where a compliance schedule has been amended so that new specified systems have been added, what date is the building warrant of fitness issued on?

Amending a compliance schedule will not affect the timing of the subsequent issue of the building warrant of fitness. Section 108(3)(a) provides that the building warrant of fitness is issued on the anniversary of the issue of the compliance schedule (meaning the original compliance schedule, not any amended compliance schedules).

However, in such a situation, a building warrant of fitness will not be able to cover all specified systems for the full 12-month period. For example, if a compliance schedule is issued at the completion of the first stage of a project, and a new specified system is completed 9 months later in the second stage of the project and an amended compliance schedule is issued, then the building warrant of fitness should be provided on the anniversary of the issue of the original compliance schedule. It will relate to the original specified systems for the full 12-month period, but will relate to the new specified system for the first 3 months of its life only.

Sometimes a building belongs to a building complex (for example, a tertiary institution) where there are a number of buildings that share specified systems and therefore share a compliance schedule. Form 12 seems to address single buildings. How should Form 12 be filled in where the building warrant of fitness relates to multiple buildings?

Although Form 12 only refers to a single building, this does not mean that a building complex cannot be listed, provided that the complex is a ‘building’ that shares specified systems. A clear description of the building complex should be entered in the appropriate place on the Form. It may also be helpful if the owner keeps a copy of the compliance schedule in multiple locations throughout the complex.

When a new specified system has been added to a building with an existing compliance schedule, it is possible for the anniversary of the building warrant of fitness to fall due in less than 12 months. For example, an automatic or manual emergency warning system for fire or other dangers could have been installed in a building 3 months prior to the due date of the building warrant of fitness. How is Form 12A managed in this situation?

If a specified system has been installed part-way through a building warrant of fitness period, an IQP/LBP could add further information to Form 12A to reflect that the particular specified system has been operating for less than 12 months. For example, the usual statement for the specified systems that have been in the building for the full 12 months could be followed by a statement like:

The inspection, maintenance, and reporting procedures of the compliance schedule have been fully complied with during the 3 months prior to the date stated below in relation to the following specified system(s):

• Automatic or manual emergency warning system for fire or other dangers

In the Department’s view, an addition to Form 12A of the kind shown above would not change the effect of the prescribed form and would not be misleading. The purpose of the prescribed form is to certify that all procedures have been carried out for the specified systems in the building during the time those specified systems have been in the building.

Can an IQP/LBP add notes or make other changes to Form 12A if a specified system has been in the building for 12 months, but not all procedures have been complied with? For example, can Form 12A be changed to note that a particular inspection was not undertaken, but later inspections indicate that the specified system is safe and functioning?

No. An IQP/LBP cannot amend Form 12A to provide for exceptions where the inspection, maintenance and reporting procedures have not been fully complied with. Regulation 6 in the Building (Forms) Regulations 2004 states that using a form that has minor differences from a prescribed form will not make the form invalid, as long as the form:

• has the same effect as the prescribed form
• is not misleading
• contains all the information required by the prescribed form
• presents the information in the same order as it appears on the prescribed form.

In the Department’s view, an IQP/LBP cannot comply with regulation 6 if he or she amends Form 12A to provide for exceptions where the inspection, maintenance and reporting procedures have not been fully complied with. This is because adding an exception of this kind will give the form a different effect from the prescribed form. The effect of the prescribed form is to certify that all procedures have been carried out during the previous 12 months. To amend the certification statement to state that some inspection procedures have been complied with, but others have not, changes the substantive effect of the form. It becomes a lesser standard of certification.

While it is desirable that Form 12A be signed for all specified systems, the Department is aware that there may be situations where an IQP will not be able to issue Form 12A for a specified system. This could occur, for example, where a particular inspection was not undertaken, or where maintenance work has not been undertaken. The IQP will need to explain to the building owner why he or she cannot issue Form 12A certificate for the specified system.

In such a case, an IQP could choose to provide a written report to the building owner, setting out the procedures that have been complied with, the procedures that have not been complied with and the reasons for and effect of the non-compliance. The building owner can provide the report to the territorial authority with the building warrant of fitness (even though the report will not constitute a Form 12A certificate). The territorial authority should then consider the degree of non-compliance with the procedures and decide what action, if any, it will take.

Is an IQP an LBP?

Yes. An IQP can do the work of an LBP until 30 November 2009, or until a territorial authority considers that the IQP is no longer a suitable person to be on its IQP register.

Can IQPs be approved after 31 March 2005?

Yes. Territorial authorities can approve IQPs until the licensing regime for licensed building practitioners comes into force. This will apply until 30 November 2009. Until that date, IQPs should issue Form 12A.