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Determinations issued

Determination 2009/14

Whether buildings in close proximity to a dam are appurtenant structures, and which regulatory body has jurisdiction in respect of a building consent to re-roof the buildings

The matter for determination was the division of responsibilities between the regional authority and the territorial authority, in respect of appurtenant structures to a dam, and which entity had jurisdiction in relation to buildings associated with a dam. The parties were the two building consent authorities (the regional authority and the territorial authority) and the dam owner. The regional authority applied for the determination.

Background and submissions

The building work consisted of re-roofing a powerhouse/office building and a workshop building ('the buildings') that are both located on the foundations of the dam. The powerhouse/office building contained generators, a control room, and associated offices. The workshop was used to service plant and equipment associated with the dam's function. The dam was considered a 'large dam' under the Building Act 2004 (the Act).

The regional authority was accredited and registered as a building consent authority and had assumed responsibility for all dams, including their appurtenant structures, within its area of jurisdiction. The owner informed the regional authority that it intended to re-roof the buildings.

The territorial authority submitted that, as the buildings in question were constructed on the dam foundation and were part of the dam complex, they were appurtenant structures. The territorial authority also considered that the powerhouse/ office building was an appurtenant structure because it contained, and provided protection to, equipment that was 'integral' to the proper functioning of the dam.

The regional authority submitted that its role should be restricted to those aspects 'which might influence structural stability of the dam and/or appurtenant structures'.

The owner was of the opinion that the powerhouse/office building was not an appurtenant structure, as it could be completely removed without affecting the ability of the dam to contain water.

Discussion

An appurtenant structure is defined in section 7 of the Act as one that is 'integral to the proper functioning of a dam', but the determination found that definition open to interpretation.

A guidance document has been issued by the Department1 on dam safety which also defines appurtenant structures. The definition begins with the definition used in the Act, and goes on to list a series of facilities that 'might' be included in the definition.

The determination found that the meaning of appurtenant structures, which has been expanded in the guidance document in relation to dam safety, was not relevant in this instance.

The workshop was not the type of building included as an appurtenant structure in the guidance document, nor was it associated with the proper functioning of the dam. The determination considered the work-shop was not an appurtenant structure.

The powerhouse/office building was of the type listed in the guidance document as being appurtenant and containing equipment to ensure the proper functioning of the dam. However, while it contained this equipment, the building itself was not essential to the dam's functioning. If the external envelope of the building was removed, the dam itself would still continue to function. The determination considered the powerhouse/office building was not an appurtenant structure.

The determination also considered the buildings with respect to the Dam Safety Scheme and the annual dam safety compliance certificate. The determination noted that section 14(5) of the Act emphasised the need for liaison between regional and territorial authorities, and suggested a practical approach to the question of ongoing responsibility for the systems and equipment in the buildings.

The decision

It was determined that, as the buildings in question were not appurtenant structures to the dam, they fell within the jurisdiction of the territorial authority.


Determination 2009/21:

Whether a proposal to convert a garage to a sleep-out complied with the Building Code to the extent required by the Building Act 2004.

This determination arose from a dispute between the building consent authority (BCA) and the owners of a house about whether proposed alterations to an existing garage to create a sleep-out would comply with the Building Code to the extent required by the Building Act 2004 (the Act). A designer applied for the determination on the owner's behalf.

Background

The architect applied to the BCA for a building consent for the proposed alterations. The BCA considered that the proposed work was a change of use and was therefore required to comply 'as nearly as reasonably practicable with the Building Code in all respects'. The BCA also said the 'existing building complied fully as a garage before the alteration and it should comply fully as a habitable building after the alteration'. The BCA said the proposed work did not achieve this.

Discussion

The determination found that, based on the provisions of the Building (Specified Systems, Change the Use and Earthquake-prone Buildings) Regulations 2005, a change from a garage to a sleep-out was not a change of use. The existing building use was classified as SH, and would remain SH after the proposed work had been completed.

As there was no change of use, section 112 of the Act applied in respect of the proposed work. Previous determinations found that upgrading is required only in respect of the provisions specified in 112(1)(a), namely means of escape from fire, and provision for access and facilities for people with disabilities. Therefore, smoke detectors were required in order to satisfy the requirements for means of escape from fire. In this instance the provision of access and facilities for people with disabilities did not apply.

The determination found that apart from the requirements of section 112, new elements forming part of the alteration work were required to comply with the provisions of the Building Code to the extent required by the Act, and therefore the building needed to comply with the provisions of the Building Code to at least the same extent as before the alteration.

The determination compared the requirements of section 112 with the work detailed in the building consent application, and found that the owners intended to not only meet all the requirements of section 112, but to exceed the requirements in some respects. The BCA submitted that there was a conflict between the regulations and the Act. The determination said that enforcement is an option open to a BCA where a building is considered unsafe or insanitary. The determination found that in this instance the building would not fall into this category. However, if at a later date, the BCA considered that the building was dangerous or insanitary it could take appropriate action at that time.

The determination concluded that the information that was submitted to the BCA in the application for building consent showed compliance with the Building Code to the extent required by the Act under section 112(1), because the building will comply, as nearly as is reasonably practicable, with the provisions of the Building Code that relate to means of escape from fire, and will continue to comply with the remaining provisions of the Building Code to the same extent as before the alteration.

Decision

In accordance with section 188 of the Act, it was determined that the proposed building work complied with the Building Code to the extent required by the Act.

These are summaries only. The full determinations (along with all other determinations issued) can be viewed on our website.


1 Dam Safety Scheme: Guidance for regional authorities and owners of large dams, Department of Building and Housing, September 2008.