Amendments to building consents - a practical approach

Changes to consented building work are commonly proposed during a building project.

Minor changes might include fitting a different style of tap, while more major changes could involve using a different cladding system to that which was approved when the initial building consent was granted.

Making changes to consented building work without getting the right approvals first 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.

Your local building consent authority (city or district council) needs to assess proposed changes to building work for which a building consent has previously been issued. It will then decide the best way to approve the change, depending on how significant the change is. Examples of how this can occur are outlined below.

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 changes (discussed below) and will support best practice in managing amendments to building consents.

We have written this article to help provide some initial guidance on our expectations around assessing proposed changes and making amendments to building consents. Once the Act has been updated to provide greater clarity on this issue, we will also develop more detailed guidance to assist building consent authorities, building practitioners and building consent applicants.

Key terms

A change (sometimes called a variation in the building and construction sector) 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.

An 'informal amendment' can be made in a number of ways, including a simple alteration like a handwritten note on the consented plans or an inspection record and consent file 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 versions of this prescribed form that they require building consent applicants to use.

Types of changes

All changes need to be assessed on their own merits by the building consent authority responsible for approving building work in that location. Building consent authorities have the sole responsibility to decide whether changes can be approved or not.

Minor and major changes

A key question your council should consider when assessing your proposed changes to consented building work is whether the change is a 'major' or 'minor' one. Minor changes do not usually affect compliance with the Building Code, but often 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 changes to building consents.

• Substituting one internal lining for a similar internal lining
• 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 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 changes are where the planned building work is quite different from that approved by the original building consent. It is common for such changes 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 change for the range of Building Code compliance issues that a new bathroom brings (eg, plumbing, drainage, ventilation, personal hygiene, internal moisture, etc).

Here are some examples of major changes.

• 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

Amending the building consent

Once a proposed change has been assessed by your building consent authority, and it has decided that it complies with the Building Code, it will then advise you about the process for actually amending the original building consent.

This can be done in a number of ways and will depend on a range of factors such as the complexity and significance of the change and its potential impact. As general rule of thumb, minor changes can be processed more informally than major ones. However, what finally gets built needs to be accurately represented in the paperwork that the building consent authority uses to issue the code compliance certificate, and which is stored on public record for the life of the building.

For more minor changes, building consent authorities will usually 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 carefully check and sign the documentation. People should also realise that it is not council building officials' role to undertake design tasks that are the responsibility of the consent applicant or their designers. Their primary role is to check compliance and not draft the amendments. Building officials should also make appropriate inspection notes on the consent file to document the variation that is approved.

For major changes, people may be asked to apply for a formal amendment and submit revised plans for the change. Your building consent authority will have a form for this process and has to process your application for an amendment within 20 working days. Such amendments should be given some priority over new building consent applications, because there can often be tradespeople awaiting their approval to continue some part of the building work on site.

Summary

The diagram overleaf summarises the process of assessing changes and making subsequent amendments to building consents.

Click to enlarge

Key messages

Some of the key messages for all parties (applicants, designers, builders, and building consent authorities) are noted below.

Prepare well for your part in the process

• Applicants/designers should try to finalise the details about what is proposed to be built before applying for a building consent. Clearly show on your plans how the work will comply with the Building Code, and separate out information that does not relate to Building Code compliance. Talk to the builder, designer/owner to agree as much detail as possible. Applicants may have to factor changes and amendments into their contingency planning - particularly if they are considering an alteration or renovation - as it is often difficult to predict all the factors about an existing building that will affect the new building work. Consider applying for a project information memorandum well before applying for a building consent, as you will get information about the site which might influence your planning and design.
• Building consent authorities need sound systems and processes for handling changes and making amendments that your staff know well. Clearly communicate your requirements and expectations to the public, designers and builders. Remind people to talk to you early about changes. Refer people to information about your role in approving changes and the process this will involve.
• Builders should build from the approved consent plans and specifications. Keep copies on site, look after them, and refer to them throughout the project. If you are thinking about varying the building work in any way that differs from the consented plans, advise the owner and/or project manager/designer first. Do not build proposed changes (especially if the changes are significant) until they have been discussed with, and approved by, the building consent authority.
• Applicants/designers should provide all relevant information about the changes to other parties involved as soon as possible - in the form the building consent authority requires. Work on the affected area often can't start, or continue, until the building consent authority has made its decision on the amendment application. Be very clear about what changes you want to make. Write them down or get your designer to do it. Use diagrams if necessary. Show how compliance with the Building Code is to be achieved by the changes (from what was originally approved in your original consent). Provide the information that your building consent authority reasonably asks for. Any changes you want to make must contain sufficient detail to give the building consent authority 'reasonable grounds' on which to make its decision.
• Building consent authorities that receive changes should assess each on its facts. Determine whether the change is minor or major (see above). A key question here is whether the changes potentially impact on whether the building work complies with the Building Code. Assess the applicant's arguments about how a change meets the requirements of the Building Code, using the same criteria you would normally use to establish 'reasonable grounds' under section 49 of the Building Act 2004. There may also be other requirements under the District Plan, local bylaws or other legislation that need to be considered. You should advise the applicant of their other obligations if a change could affect District Plan requirements.
• Builders should involve the designer in the process of considering a change to ensure it does not impact on other parts of the building work. Remind the applicant to contact the building consent authority to seek approval for the change. Explain why the change is necessary, and be prepared to offer your view on how it complies with the Building Code (the designer may have primary responsibility for this). It will help support any discussions with the building consent authority and any request for an amendment approval.

Approving changes and making amendments

• Building consent authorities should be prepared to approve minor changes in a more informal manner where appropriate. If a change requires a formal amendment to the building consent, tell people to apply for an amendment via Form 2 as soon as possible. Ensure applications for amendments are processed within 20 working days, giving priority to these applications for work now under construction. Think about whether amendments will affect later inspections and revise the inspections schedule where this is necessary.
• Applicants and builders should obtain a written record of any amendment agreed to by the building consent authority. This might be a formal amendment to the building consent, or just a notation on the approved building consent plans and a field memo or note by the building inspector. Build from this record.