What impact will the recent building consent exemptions have on you?

You may recall that late in May 2020 the Government announced some sweeping changes to the building consent regime that were intended to increase the volume of low-risk building work and lessen Councils’ workloads.

This was promoted as one of the ways to kick-start the economy in response to the COVID-19 pandemic. The idea was that if you remove the expense and delay associated with applying for a building consent for low-risk projects, then a lot more people will undertake that work, tradesmen will be busier than they would have been, and more money will start flowing through the economy. Savings of up to $18 million in consenting costs, and a reduction in Council workloads of up to 9,000 consents per year were projected.

You could be forgiven for thinking this was some kind of hallelujah moment, as though building activity was being freed up for the first time in history. In fact that’s not the case, and it is simply the latest relaxation of the building consent rules in a series of reforms that have been happening over the past 20 years, the previous ones having occurred in 2004, 2008, 2010, 2013 and 2019. With the steady improvements in building product quality, the proliferation of prefabrication and modular construction, and the increases in the qualifications and expertise required of builders, it is inevitable that the building consent restrictions can be gradually eased over time. These exemptions were due to come into force in two stages – some of them at the end of August 2020, and the rest (those that rely on the involvement of licensed building practitioners) later in the year when other changes are made to the Building Act. True to their word, the changes outlined in the Building (Exempt Building Work) Order 2020 did come into force on 31 August. However, as it turns out, most of them do rely on the involvement of licensed building practitioners or chartered professional engineers. Presumably the changes that are due to come into force later are those that relate to the manufacture of modular homes.

Most of the exemption categories aren’t new, but are simply old exemptions that have been expanded. For example, you could always build small-scale single-storey detached buildings, carports, awnings, porches and verandas, and bridges without a consent, it’s just that you can now build bigger ones. However, most of those larger structures will only avoid the consent regime if they are kitset or prefabricated, and a chartered professional engineer has carried out or reviewed the design (at considerable cost),

or they are constructed onsite, and both the design and the construction has been carried out or supervised by a licensed building practitioner (at considerable cost). So, will these latest relaxations suddenly result in a flood of building activity because property owners can now build something a lot bigger and still avoid the need to get Council approval? I doubt it.

There are some brand new exemptions that haven’t been expressly mentioned before, but they are hardly going to lift our economy out of the doldrums. I’m talking about ground-mounted solar array panels, outdoor fireplaces or ovens, flexible water storage bladders, small pipe supporting structures, and single-storey pole sheds and hay barns in rural zones. The one genuinely significant item in this latest batch of exemptions is the changes to the exemption for single-storey detached buildings, and to understand it you need to compare the old rules with the new ones.

Most of the exemption categories aren’t new, but are simply old exemptions that have been expanded.

The old exemption for single-storey detached buildings (which still exists) applies to any detached building that is not more than one storey (being a floor level of up to 1 metre above the supporting ground and a height of up to 3.5 metres above the floor level). It must not exceed 10m² in floor area, and must not contain sanitary facilities or facilities for the storage of potable water, nor any sleeping accommodation unless the building is used in connection with a dwelling and does not contain any cooking facilities. The building must not be closer than the measure of its own height to any residential building or to any legal boundary. In addition, there was (and still is) another exemption for unoccupied detached buildings that house fixed plant or machinery and under normal circumstances are entered only on intermittent occasions for the routine inspection and maintenance of that plant or machinery.

What the Government has done is introduce three new categories of exemption for larger single-storey detached buildings. The first category is kitset or prefabricated buildings. If these have a maximum floor area of between 10m² and 30m² and the manufacturer or supplier has had the design carried out or reviewed by a chartered professional engineer, they are now exempted. So are buildings with a maximum floor area of between 10m² and 30m² that are fabricated or erected onsite where both the design and the construction has been carried out or supervised by a licensed building practitioner. The third new exemption is for buildings with a maximum floor area of between 10m² and 30m² that are fabricated or erected onsite using lightweight wall and roof materials, and in accordance with Acceptable Solution B1/AS1 for timber or steel buildings. Since these are not houses or small to medium apartment buildings they do not have to be designed and built by a licensed building practitioner, so unlicensed builders (or for that matter any member of the public) are free to build them. Of course, not only do they have to comply with B1/AS1 but also (because of section 17 of the Building Act) any other provision of the building code that might apply. It is just that there will be no Council checking them during construction.

The same restrictions concerning sanitary facilities, potable water, sleeping accommodation, cooking facilities and height-to-boundary still apply. And any plumbing work still requires a building consent, and any electrical work will still have to be carried out by a registered electrician. Interestingly there doesn’t appear to be any definition of “kitset or prefabricated building” nor of “lightweight wall and roof materials” so there could be some innovative interpretations of those expressions by people seeking to avoid the consent requirements.

The industry that is going to benefit the most from these initiatives is the portable, kitset, or prefabricated building industry. This is in line with the recently-announced and much more ambitious Government proposals to streamline the prefabrication industry by simplifying the building consent requirements they are currently subjected to. The idea is to introduce something like the product certification system for prefabricated products so that those suppliers just need one approval for their process, and not a separate consent each time their product rolls off the production line. Consequently they will get a double whammy of relief – no manufacturing consent required at all for smaller buildings, and for larger prefabricated buildings, no manufacturing consent required provided they get their design and production process registered and certified.

But leaving aside the manufacturers of portable, kitset, or prefabricated buildings, the other major beneficiaries of these reforms are the unlicensed builders and the DIYers. Buildings with a maximum floor area of between 10m² and 30m² are now cheaper and quicker to build, even if you aren’t licensed, if you rely on the kitset or lightweight exemptions. Whether that results in a deterioration in building standards remains to be seen.

Geoff Hardy is a partner in the Auckland law firm Martelli McKegg and is a construction law specialist. Geoff also operates the Business Related Legal helpline for NZCB members, contact Geoff on (09) 379 0700 or geoff@martellimckegg.co.nz. This article is not intended to be relied upon as legal advice.