The proposed risk-based (or “stepped” or “streamlined”) building consenting process is housed in the Building Amendment Act 2012 and despite other parts of the Act coming into force, is still inactive.
There is a timeframe for the accompanying regulations to be drafted by the end of this year. However the legislature has made it clear that the changes will not come into effect until the building industry is ready.
Now that the Licensed Building Practitioner scheme is in its eighth year, the industry may be approaching readiness and the introduction of risk-based consenting is looming.
Contemplated consent scheme
The contemplated legislative regime will create four types of building consents. In many situations applicants will be able to choose which consent they apply for, as long as it meets the criteria of that particular category. The four types of building consents are:
Low-risk residential
As long as the building work is considered “low-risk residential”(not yet defined), all that is needed for this consent is for any named licensed building practitioner (LBP) to be licensed in the appropriate class. The Building Consent Authority (BCA) does not need to consider whether the building work will be building code compliant. The first time the building work will be inspected is just before the issue of a “consent completion certificate”, and as well, no liability will be incurred for failing to check the plans and specifications would not result in a code-compliant building.
Simple residential
If an LBP is needed, they must be appropriately licensed to carry out the work. The BCA is responsible for checking “prescribed aspects” of the building work and for checking that if the building is carried out according to the plans and specifications, that those “prescribed aspects” will comply with the building code. The BCA will inspect the prescribed aspects only and incurs no liability for not inspecting more than this.
Standard
(Can be for low risk residential, simple residential, and some commercial). Requires an LBP to carry out restricted work. The BCA will consider all aspects of the building and assess whether, if it is built to the plans and specifications, it will comply with the building code. A person with a low risk or simple residential project also has the option of applying for a standard building consent if they choose. There are no limits on the BCA in terms of inspections or liability.
Commercial
Before applying for building consent an applicant would need written approval from the BCA of the risk profile and quality assurance system that will be used. The risk profile is an assessment of yet to be specified criteria and the quality assurance system has yet to be specified. The combination of these items will have the effect of minimising the risk of code non-compliance and provides for review and inspection by third parties.
The to-be-drafted regulations will provide guidance on when a commercial consent must be applied for, as well as what qualifies as low-risk or simple residential.
Although there are no details about how much each consent type will cost, it is assumed that the ones with low BCA involvement will cost the applicant less (at the outset, anyway).
It appears from these different types of consent that the scope of the BCA’s duty of care will become “user-pays”. For lower risk building jobs, a person could make use of the cheaper low risk application process but would not be able to hold the BCA liable if the building project goes awry due to an unperceived fault in the plans.
Christchurch pilot scheme
Despite the provisions being inactive, a pilot programme has been implemented by the Christchurch City Council.
In 2013 the Council lost its accreditation as a BCA due to delays in processing applications. A Crown Manager was appointed who implemented an action plan, a component of which was to streamline the consent process.
According to the report by the Crown Manager, territorial authorities have the ability to exempt applications from the regular building consent requirements under the Building Act and it is through this authority that the new process was implemented. The intent was to implement as far as practicable the risk-based consenting process outlined in the 2012 amendments.
The Council defined what buildings would qualify and set prescriptive requirements for applications. Those applications that did not comply were rejected. Where further information was required and could be provided quickly, a phone call was made instead of a formal request for further information. The building consents were either granted or refused and a set fee was charged for each application.
Organisations were pre-approved by the Council and were able to participate in the scheme. The final report in March indicates that the turnaround time for processing applications for low-risk building consents was on average four hours and that all were processed within 24 hours of receipt.
The main problem identified by the Council pilot was the poor quality of building consent applications. The report recommended consent application education for those who routinely submit applications in order to increase efficiency.
Outlook
The findings of the pilot programme are likely to be considered before a risk-based consenting scheme is enacted nationwide.
While there is a timeframe for the regulations to be completed by the end of 2015, the regulations will come off the back of public consultation.
The public consultation, regulation and implementation process is still likely to take more than a year, particularly if, as was recommended in the Crown Manager’s report, the scheme is developed alongside legislative amendments to enable consent applications to come in electronically.
Sarah Anderson is a solicitor at Auckland law firm Madison Hardy which specialises in commercial and construction law. Sarah can be contacted by email at sarah@madisonhardy.com.