Q&A about recent changes to Schedule 1 of the Building Act 2004

Schedule 1 of the Building Act 2004 lists the types of minor, low-risk building work that do not require a building consent. Most of these exemptions have been in place for many years - since 1992 when the former Building Act 1991 came into force.

In October 2008, Schedule 1 was expanded, with the introduction of 12 new exemptions. This article responds to some queries that the Department has recently received about the changes.

What are the main changes?

The main additions to Schedule 1 include:

• changing existing household plumbing, including minor drainage work, as long as the work complies with the Plumbers, Gasfitters, and Drainlayers Act 1976
• building or installing a small cabin near an existing home, as long as the cabin is smaller than 10 square metres and does not have cooking or sanitary facilities, or facilities for storing drinking water
• removing or changing an internal wall in an existing building, as long as the building's structural stability or the means of escape from fire are unaffected, and the wall is not a masonry wall
• building small awnings and pergolas, or small verandas over a deck
• installing, removing or replacing windows or exterior doors, provided there have not been weathertightness problems and there is no change to structural elements
• making a home more accessible
• fitting out shop or office interiors, as long as the work does not affect fire safety, sanitary facilities, structural stability or access for people with disabilities, and no specified system is modified
• erecting tents or marquees, as long as they are smaller than 100 square metres (for private use) and 50 square metres (for public use), and will be used for less than a month.

The above descriptions are high- level summaries only and some conditions may also apply. You should consult the Building Act 2004 for the full changes.

Is there clear guidance on the new changes?

Yes. The Department has recently published two guidance documents on the changes.

• Building work that does not require a building consent: a guide to Schedule 1 of the Building Act 2004 (November 2008) - sets out each exemption in Schedule 1 and provides some examples of where each does and does not apply.
• Building Act 2004: Guide to exemptions from building consent requirements (October 2008) - provides a high- level overview of the changes and contains information for councils to help them develop consumer information for the public about the changes.

Free copies of these documents can be ordered by calling (0800) 242 243. They are also available on the Department's website at: www.dbh.govt.nz/publications-about-the-building-act-2004

Why were the changes made?

The new exemptions were part of a suite of initiatives designed to help reduce costs and streamline the building consenting process, while ensuring buildings are built right first time. They are intended to help save building owners and builders time and money, and will allow councils to focus on building consent applications that are more complex and of higher risk.

In recent times, the Department has received clear feedback from the local government sector that the amount of low-risk, minor building control work was impacting on building officials' ability to concentrate their compliance-checking respon-sibilities on the more substantial or medium to higher risk building work (during both consent processing and on-site inspections). Given the workforce capacity challenges that many councils across the country are facing, increasing the types of low-risk, minor building work that do not have to be consented should reduce some of the day-to-day work building control units currently have to deal with.

Does expanding Schedule 1 increase potential liability for councils?

One query received by the Department asked whether the new changes could in some way increase the potential liability of BCAs - for example, if building owners are tempted to try and 'stretch' an exemption in Schedule 1 to cover building work beyond its intended scope, to try to avoid the building consent process.

The Department does not consider that the changes increase the potential liability on BCAs. Decisions about whether any proposed building work qualifies for one of the new Schedule 1 exemptions are the building owner's responsibility under the Building Act 2004. In most cases, building owners should make such decisions with appropriate advice from their agents (design and building experts) in the first instance.

While the number of exemptions in Schedule 1 has increased with the changes, none of the new exemptions have changed the fact that the building owner is responsible for ensuring a building consent is obtained for all building work on their building that needs a consent. This has historically been the case for all of the exemptions in Schedule 1 - except clause (k) of the Schedule, which contains discretionary powers for territorial authorities to permit building work to be undertaken without a consent if the work is likely to be performed in accordance with the Building Code or, failing that, if it is unlikely to endanger people or any building. Clause (k) is the only item in Schedule 1 that actually requires a council assessment and decision. Such decision-making will be based on a risk assessment of the building work proposed. None of the new exemptions introduced in October 2008 affect Clause (k).

Importantly, even if proposed building work does not require a building consent, all building work must comply with the Building Code (refer to section 17 of the Building Act).

What are the implications for councils fielding queries from the public?

The Department recognises that, in practice, many people will contact their local council for clarification about whether an exemption might apply to their proposed building project. However, this has been the case with most of the other exemptions since 1992 when the former Building Act 1991 came into force. All councils should have sound systems and processes for handling queries about exemptions, just as they do for queries about other Building Act requirements. These existing processes will have to be adjusted to factor in the handful of new exemptions. However, having to make such adjustments will be offset by potential efficiencies gained from not having to process building consent applications for such minor building work and doing the usual site inspections of the work. This will help free up building officials to focus their time and efforts on more significant building work.

Should councils accept information from building owners about building work undertaken under an exemption?

Yes. As noted above, the primary responsibility for decisions about whether any given building work qualifies for an exemption rests with the building owner in most cases (clause (k) is the only exception in Schedule 1). In many cases, the building work will be legitimately undertaken without anyone ever contacting the local council. However, some building owners may provide the council with copies of information relating to the building work covered by an exemption to go on the council's property files.

One of the questions raised with the Department was whether councils accepting such information could be regarded as having in some way given approval for the work to be undertaken without a building consent. The Department considers that it is good practice for councils to put all relevant information they receive from building owners on property files they hold, including information provided for the council's information by owners undertaking building work under an exemption. If councils are not being asked to make a compliance assessment, the Department does not consider there is a problem as long as councils have sound administrative processes to communicate and document that they are merely putting the information on file and not undertaking any type of assessment or decision-making as part of any consent application process. Many councils put information they receive outside the building consenting process on their files now as a matter of course (eg, adding property reports to files that are provided to them by owners). In such cases, there is usually never any question of the information being assessed by the council as part of its regulatory decision-making.

Could the changes result in more unlawful un-consented building work?

The Department does not consider that the 12 new exemptions will result in a surge in unlawful building work (ie, building work being carried out without a building consent when it should have one). As noted above, until the new changes are fully bedded in, councils may receive some queries from the public on the interpretation of the new exemptions. There may also be an initial temptation for people to want to 'stretch' the exemptions beyond their intended scope to avoid the building consent process. However, such implementation issues are not new to BCAs. The same tensions have existed since the early 1990s when Schedule 1 first came into law under the former Building Act 1991.

The guidance documents that the Department has published about Schedule 1 also provide valuable resources for councils to use and refer people to.

What process was undertaken to make the changes?

The Department reviewed the existing building consent exemptions with a view to taking a more risk-based approach to consenting certain building activities and reported back to the government with policy options for expanding Schedule 1. To inform the work, the Department undertook a targeted consultation with a sector reference group on the new exemptions. This group consisted of senior building control officials (from a mix of small, medium and large councils) and representatives from the Registered Master Builders Federation and the Certified Builders Association of New Zealand. Local Government New Zealand was also consulted and supported the proposals. Other government departments were also consulted as required.