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About determinations

When you can’t agree with your council or your neighbours about building work, a determination can help you solve the problem. This section explains who can apply for a determination and how the process works.

What a determination is

A determination is a binding decision made by the Department of Building and Housing. It provides a way of solving disputes or questions about the rules that apply to buildings, how buildings are used, building accessibility, health and safety.

Most determinations are needed because the person applying for the determination disagrees with the council about decisions the council has made about a building. However, a determination can be applied for by the council itself or a neighbour who is affected by building work.

A determination can be about building work that is planned, partly done or completed.

You may have already asked for an opinion or advice from the Department about the same question. A determination is different in that the Department takes a detailed look at the matter and makes a legally binding decision.

What a determination can be about

We can make a determination about:

  • whether a building or building work complies with the Building Code
  • a council’s decision on a building consent, a notice to fix from the council, a code compliance certificate or a compliance schedule (including time extensions to building consents and code compliance certificates)
  • a council’s decision to make a waiver to or modify the Building Code
  • a council’s decision on a certificate of acceptance, a compliance schedule, a notice to fix, or a certificate for public use
  • a council’s decision on building alterations, a change of building use, subdivision of buildings, and dangerous, earthquake-prone and insanitary buildings
  • a council’s decision on dams.

Examples of where a determination may be used:

  • a council refuses to issue a building consent for a proposed building
  • a building owner has been refused a code compliance certificate for a building that appears to be completed
  • a building owner disagrees with a council’s ruling about a neighbouring property
  • a building owner disagrees with the contents of a notice to fix.

Who can ask for or be party to a determination

Those involved in a determination, including the person who applies for it, are called ‘parties’ to the determination. For example, a building owner may ask for a determination because they disagree with the council’s decision that also involves a neighbour. In this case, the parties to the determination are the building owner, the council and the neighbour. All parties to a determination are treated equally.

You can ask for, or be involved as a party to a determination, if you are:

  • the building owner or the owner’s agent
  • the council that issued the building consent
  • the owner of other property when the determination is about the protection of that property (for example, the potential spread of fire from one property to another, surface water run-off or land stability)
  • a government department or Crown agency that has a statutory duty under the Building Act, such as the New Zealand Fire Service or Occupational Safety and Health
  • anyone with a direct interest in the problem or question if it has to do with access and facilities for people with disabilities.

The Department can initiate a determination where it believes it is necessary to achieve the aims of the Building Act. 

The council will always be a party to the determination. The Department may ask other people or organisations to become involved if necessary.

What a determination can decide

The determination will normally be about an earlier decision made by one of the parties (usually the council). The determination may:

  • confirm, reverse or modify the earlier decision (for example, a determination may say that the council was correct in not issuing a building consent)
  • make waivers or modifications to the Building Code (for example, a determination may modify the time period for which the building must be durable)
  • make conditions that the council may itself grant or impose (for example, a determination may require the council to issue a building consent with certain conditions).

Applying for a determination if you are not the property owner

You can apply for a determination if you have a ‘direct interest’ in the matter. This can occur, for example, when neighbouring building work affects your property in some way. If you want to check whether your property will be affected by neighbouring building work, you can ask at the council for the publicly available building consent documents for that property, including the plans and specifications.

Applying for a determination

To apply for a determination you need to:

  • fill in Form D1 [PDF  117 KB, 6 pages], and send it to the Department with your supporting documents and the fee (see below)
  • fill in Part 1 of Form D2 [PDF 5 KB, 2 pages] and send a copy to the other parties, with a copy of Form D1 and your supporting documents.

Form D1 explains what sort of supporting documents you should send. Send as much information as you can. Form D2 ensures the other parties to the determination have received a copy of the application.

The cost of a determination

The Department charges a fixed fee for determinations:

  • For single houses, attached houses, flats and apartments up to four units, and garages and sheds, the fee is $281.25 ($250 plus GST).
  • For all other buildings the fee is $562.50 ($500 plus GST).

Information that needs to be included in a determination application

A determination generally relies on the information you provide. Clear and complete documentation will help us assess and process your determination. The information should be:

  • clearly labelled (and indexed, if possible)
  • typed or neatly handwritten
  • accompanied by a summary of the key points with references to the supporting documents.

Information to support an application can include (not all of the following will be available or appropriate in every instance):

  • correspondence about the dispute
  • drawings
  • specifications
  • design calculations
  • reports
  • photographs
  • producer statements.

Reasons your application may be declined

We can decline your application if:

  • you are not a party to the matter
  • the problem or question is not a matter covered by the Building Act
  • we have already made a determination, or we are about to make one, on the exact same matter
  • it is deliberately trying to cause trouble or is not serious.

Withdrawing your application

You can withdraw your application at any time. We will refund the application fee if we haven’t already used an independent expert to help us. If an expert has been engaged and carried out an assessment, we will keep the fee.

If you withdraw the application, we will tell the other parties.

Being a party to someone else’s determination application

You will receive Form D2 and a copy of the application itself. Please complete Form D2 and send it to us as soon as possible.

You will receive copies of all correspondence to other parties, reports, draft determinations etc that may be produced as the determination is processed. You will be given the opportunity to comment on all information presented by other parties. You can also request a hearing if you wish.

The rules the Department follows when processing a determination

We are required to avoid unnecessary delay and formality and recognise tikanga Maori.

We must also follow the ‘rules of natural justice’ which is significant because these rules set the process we follow. The rules require us to:

  • ensure the party whose decision is being disputed (this is usually the council) knows the application has been made
  • ensure all relevant material is copied to all the parties (for example, draft determinations, correspondence, experts’ reports)
  • give enough time for the applicant and the parties to respond to reports, submissions by other parties etc
  • grant a hearing if one is requested
  • give reasons for the decision reached.

We understand that progress on a building project or a house sale, for example, may be being held up by the determination. We will aim to issue the determination as quickly as possible to minimise disruption.

The steps in the determination process

Receive and accept the application

When we receive the application, we will decide whether the dispute or question is one that the Building Act applies to. If it is, we will tell the person who applied and the other parties that a determination has been applied for. We must do this within 10 working days.

Look in detail at the application

We will look at all application information and will ask for clarification or any information that may still be required. We may also need to clarify the matter being disputed.

Appoint an independent expert

Determinations often concern technical matters, and we will usually engage an independent expert at our expense to investigate and report on the matter. The expert will provide a written report that is copied to all the parties for their comment. For complex determinations, more than one expert may be appointed.

Provide a draft determination

We will produce a draft determination after we have received the expert’s report and the parties have commented on it. We will then send the draft determination to the parties for comment.

Hold a hearing if one is requested

You may request a hearing which would normally be held following the release of the draft determination. Written material can be submitted at a hearing, but we ask that any significant amounts of information are supplied before the hearing so the other parties have time to consider it and can respond at the hearing. Legal representation is not necessary, although you can have a lawyer attend and speak on your behalf if you wish.

You can request a hearing at the time of application or at any time during the determination process.

Issue the final determination

We will issue the final determination after the parties have commented on the draft and after any hearing is held. The final determination will respond to matters you may have raised in response to the draft determination or at the hearing, if one was held.

How long it takes to get the determination

We understand that a dispute may be delaying progress on a building project or a house sale, so we try to issue the determination as quickly as possible.

We are required to issue the final determination within 60 working days of receiving the application, or longer if agreed to by the parties.

The 60-day period does not include time when we may be waiting for information or comment from the parties - the ‘clock is stopped’ during these times. If you can’t give us the information by the date given, you can ask for an extension. We have the power to make the determination if the information requested is not provided in reasonable time.

Building work that may need to be done before a determination is issued

The council generally can't make you do work while you're waiting for the determination to be issued unless there is work that is unsafe if left in its present state. If you have been sent a notice to fix about work that is unsafe, you must comply with the notice.

Otherwise, the council can’t require you to carry out building work related to the determination unless the Department agrees this is necessary.

What to do if you think there are errors in the determination

If there are things in the determination that you think are wrong, you can ask us to clarify or correct the error and reissue the determination. We can only do this within 20 working days of the determination being issued.

We can correct inconsequential mistakes, such as an incorrect date. However, we can’t make changes that affect the other parties, unless the parties also agree to the change. We can’t make any changes if the determination is being appealed (see below).

Other legal options if you are not satisfied with the determination

You can go to court if you're not satisfied with the determination. The courts can decide whether:

  • the decision reached in the determination is incorrect. This is called an appeal. If you want to appeal, you must do it within 15 working days of the date the determination is issued. The District Court’s decision will be final.
  • the process of making the determination was correct and fair. This is called a judicial review.

You need to wait until we have issued the determination before you can ask for an appeal or judicial review.

The availability of earlier determinations and how they are used

Determinations provide decisions that can be used by councils and others as a guide when faced with a similar problem.

We are not bound by previous determinations in the way that a court is bound by the decisions of a higher court. However, we will always take account of previous determinations if we think the circumstances are similar.

Once issued, copies of determinations are available free. You can search for a determination by Building Code clause, subject, keyword or reference number – or you can browse them all in chronological order.

We include a summary of interesting determinations in the Department's building controls newsletter, Codewords. 

Advice about leaking houses or apartments

Owners of leaking houses or apartments can either seek a determination or use Weathertight Services. Weathertight Services (formerly WHRS) is part of the Department of Building and Housing and was set up in 2002.

In general terms, a determination decides whether the building work complies with the Building Code. The determination process can’t decide who is responsible for water leaks, nor who should pay to have them fixed and repair any damage.

Weathertight Services provides a means of assessing the leak and any damage. It provides mediation and adjudication services to decide who is liable for leaks and who should pay to have them, and any damage, fixed.

If you believe your house does not comply with the Building Code it may be more useful for you to make a claim to Weathertight Services rather than seek a determination.

You can use the WS if your leaking house or apartment is less than 10 years old. You can also use the service if you think the leaks are caused by alterations that are less than 10 years old.

If you have already applied for a determination, you can’t also ask the WS to take your claim to adjudication at the same time. You need to wait until after the determination has been issued, then seek the help of the WS adjudication process.

The first stage in any WS claim is to assess the applicant’s property in detail. The assessment that was done for the determination may be very useful to the WS when it does its assessment.