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Determinations issued

Determination 2008/40

Refusal to issue a code compliance certificate for a farm shed because the building consent was more than two years old.

The matter for determination was the building consent authority's (the BCA's) refusal to issue a code compliance certificate (CCC) for a farm shed, because the building consent was more than two years old. The building owners applied for the determination.

Background

The building is a simple proprietary two-bay farm shed. A building consent for the shed was issued on 3 June 2005. A siting and post-hole inspection was undertaken on 24 June 2005. The BCA wrote to the owners on 4 May 2007 advising that the two- year period in which it was required to decide whether to issue the CCC was about to expire. The letter gave the owners three options.

  1. Confirm that a CCC would not be sought.
  2. Complete an application form requesting a CCC.
  3. Request an extension to the two-year period including why the extension should be granted.

The owners did not respond to the letter.

The final inspection for the shed was completed on 22 January 2008. The inspection was successful apart from an outstanding energy work certificate. The owners applied for a CCC on 23 January 2008, and supplied the energy work certificate five days later. The BCA refused to issue the CCC because the application was received more than two years after the building consent was issued.

The BCA submitted that the Building Act 2004 required an owner to apply for a CCC as soon as possible after the completion of the work. If this did not happen, the BCA was required to decide whether to issue a CCC within the two-year period. In the absence of any request for a CCC from an owner, the BCA submitted there was no requirement for it to inspect completed work in order to make a decision whether the CCC should be issued or not. If a completion date beyond the two-year period was not agreed with the owners, the BCA considered that the provisions of the Building Act prevented it from issuing a CCC after the two-year period had expired.

Discussion

Section 93 of the Building Act requires a BCA to decide whether to issue a CCC for building work either:

  • (a) within 20 working days of receiving the application for the CCC under section 92 (or further period agreed), or
  • (b) if there has been no application, within 20 working days after the second anniversary of the granting of the consent (or further period agreed).

Section 94(1) of the Building Act requires a BCA to issue a CCC if it is satisfied on reasonable grounds that the building work complies with the building consent. The decision to issue or refuse a CCC is triggered either by:

  • (a) an application by the owner, or
  • b) if there is no application, two years elapsing from the date of the granting of the consent.

In this instance, and as an extension of time beyond the expiry of the two-year period was not agreed with the owners, the BCA should have made an assessment of the building work, as required by section 94(1). As this did not occur, the BCA should have assessed the work within 20 days of receiving the application for a CCC. The determination took the view that there is no statutory timeframe within which a CCC must be issued, but there is a timeframe within which a BCA has to make a decision in relation to one. The determination did not consider that the Building Act prevents a BCA issuing a CCC if the two-year period has expired.

While the BCA did not make the decision under section 94(1), it did complete a final inspection. If the BCA was satisfied that the building work complied with the building consent, then it should have issued the CCC.

The decision

The determination reversed the BCA's decision to refuse to issue the CCC.


Determination 2008/111:

Access and facilities for people with disabilities to a building providing kitchen and ablution facilities at an orchard

The matter for determination was the building consent authority's (BCA's) refusal to issue an amendment to a building consent for a proposed building, as it believed the amendment would make the building non-compliant in terms of providing access and facilities for people with disabilities. The building owner applied for the determination. The Office for Disability Issues (ODI) was consulted on the matter.

Background

The BCA issued a building consent for the proposed single-storey building containing a kitchen, shower and toilet facilities for use by seasonal workers in a private orchard. The consent documents showed the building having an access ramp and sanitary facilities. The owner originally included these items because the building consent authority refused to issue the consent without them. Now that the consent had been issued, the owner wished to amend the building consent to remove these items.

 

The owner said that seasonal workers were required to be able-bodied and that the building was not to be used by members of the public. The BCA said that the accessible features should remain as able-bodied workers could include people with disabilities who did not rely on wheelchairs for movement.

 

Discussion

It was accepted that the proposed building would not be open to the public under any circumstances, and that the seasonal workers were required to be able-bodied.

Section 118(1) of the Building Act says:

If provision is being made for the construction or alteration of any building to which members of the public are to be admitted, whether for free or on payment of a charge, reasonable and adequate provision by way of access, parking provisions, and sanitary facilities must be made for persons with disabilities who may be expected to—

  • (a) visit or work in that building; and
  • (b) carry out normal activities and processes in that building

The determination noted that the provision of accessible features and facilities required by the Building Code did not apply to buildings:

  • to which the public did not have access
  • which would not be visited by people with disabilities
  • in which people cannot be expected to work because of their disability.

The determination accepted that the building was one to which section 118(1) applied but, in this instance, that the 'reasonable and adequate' provision of access required by section 118(1) did not include the provision of ramps or accessible facilities.

A change from the seasonal worker accommodation to an alternative type of accommodation was not a change of use, as described in the regulations, requiring access and facilities for people with disabilities. However, if such a change included the alteration of the building, then section 112 of the Building Act would require consideration of those requirements.

The decision

The determination reversed the BCA's decision to refuse to issue an amendment to the building consent.

These are summaries only.The full determinations (along with all other determinations issued) can be viewed on our website: www.dbh.govt.nz/determinations