Regulation 7(2)(d)(v) – Granting, refusing to grant, and issuing building consent

MBIE's guidance on meeting the accreditation requirement

Checklist for regulation 7(2)(d)(v) outlines the minimum criteria for compliance.

Regulation 7(2)(d)(v) requires a BCA to have policies, procedures and systems for deciding a consent application that include processes for:

1. granting a building consent
2. issuing a building consent
3. agreeing a timeframe (other than 12 months) after which a building consent may lapse
4. refusing a building consent, including the detail at which reasons will be provided

Granting a consent

Granting a consent under section 49 of the Act

A BCA's process for granting a building consent must enable it to comply with the legal test in section 49 of the Building Act 2004 (the Act). It is important to note that a BCA is not required to grant a building consent if it has not received any required fees and levies. However, the clock cannot be suspended while awaiting payment of fees.

Granting a consent subject to section 72 of the Act

Where a building consent is granted subject to section 72 of the Act, the BCA must comply with the notification requirements in section 73 of the Act. 

Granting a consent subject to section 77 of the Act

Where a building consent is granted subject to section 77 of the Act, the BCA must:

• ensure that the territorial authority has issued any certificate required under section 75(2)
• note on the consent any conditions imposed in the certificate issued by the territorial authority.

Issuing a consent

A BCA’s process for issuing a building consent must comply with the requirements of section 51 of the Act and ensure that:

• it is issued consistently with the requirements of the prescribed form
• it advises the applicant of its entitlement to undertake inspections under section 90 of the Act
• it includes, as required, a copy of:
  • any project information memorandum
  • the applicant’s development contribution notice under section 36 of the Act (if any)
  • a certificate issued under section 37 of the Act (if any)
• it includes, as required, the following notifications:
  • those under section 73 of the Act
  • that Heritage New Zealand Pouhere Taonga has been notified under section 39 of the Act
• if a compliance schedule is required as a result of the building work, state:
  • the specified systems that must be covered by the compliance schedule
  • the performance standards for the specified systems that are required
• if an amendment to an existing compliance schedule is required as a result of the building work, state:
  • the specified systems that must be covered by the compliance schedule
  • the performance standards for the specified systems that are required
• it provides for any territorial authority documents or information to be sent to an applicant if and when they are received (s 51(1)(3)(4))
• it provides that the applicant is advised of any requirement under any other Act which will prevent the commencement of building work (s 51(2)), eg the Resource Management Act.

If a BCA does not receive any document or information from the territorial authority in the timeframe within which it must process and decide a building consent, it is not a breach of the Act or the Regulations to not provide any of the territorial authority information detailed in section 51 of the Act. Section 51(4) requires the BCA to send this information on when it is received.

Agreeing a timeframe (other than 12 months) after which a consent may lapse

A building consent automatically lapses 12 months after the date of issue if no building work has commenced. However, section 52 of the Act provides that a BCA can allow it to remain valid for a further period.

A BCA must have a policy, procedure and system for making a decision on whether to extend the timeframe in which a consent remains valid. It is sufficient that the policy is only applicable on receipt of an application. A BCA is not required to take any active steps to lapse or consider extending every consent to which section 52(b) may apply.

A BCA’s policy should also address how long an extension can be made for, and whether further extensions can be granted. It is sufficient that the policy provides that these decisions be made on a case-by-case basis. The Ministry of Business, Innovation and Employment notes that there are no legal limitations on a BCA’s decisions in these circumstances.

Refusing a consent and providing reasons

A BCA's policy, procedure and system must provide for the refusal to grant a building consent application:

• where the information received, at any time prior to granting a consent, is materially insufficient
• in writing, stating the refusal and reasons for the refusal.

Returning or rejecting a consent application at initial receipt and checking

A BCA does not have to accept for processing any application that is not a complete application and does not comply with the Act and associated regulations (and does not contain all the relevant information).

A BCA’s policy, procedure and system may provide that it returns or rejects a non-complete application. It is adequate for the BCA to:

• advise the applicant that the application is non-compliant with the Act and associated regulations
• reference the relevant information that is absent or where the application is deficient.

Refusing a consent application on assessment prior to processing

A BCA’s policy, procedure and system may provide that it refuses a materially insufficient application. It is adequate for the BCA to:

• advise the applicant that the application is materially insufficient
• reference the relevant information that is absent or deficient.

Refusing a consent application after an RFI and as a result of processing

The RFI process is not intended to act as a safety net for a poorly written application. A BCA can refuse a building consent if the information received in response to an RFI is materially insufficient. There is little value in trying to use multiple RFI processes to try to rectify a consent application that has material or multiple flaws.

A building consent must also be refused where the employee or contractor processing the consent is not satisfied on reasonable grounds that the building work would comply with the Building Code.

Section 50 of the Act provides that where a building consent is refused an applicant has to be given:

• written notice of the refusal to grant an application
• reasons for the refusal.

A BCA may provide written notice by way of letter, fax or email.

When refusing a building consent as a result of processing, it is adequate for a BCA to state:

• it is not satisfied on reasonable grounds that the building work would comply with the Building Code
• the relevant Building Code clause where the application is deficient.

A BCA is not required to provide detailed reasons for each Building Code clause as to why an application may be deficient, or to detail all the deficiencies. It is also not required to provide any advice on how to rectify any deficiencies. This may blur the lines between the role and responsibilities of the applicant, and the role of the BCA (as the regulator).

You can read the following on the Legislation website:

• The Building Act 2004
• The Building Code (Schedule 1 of the Building Regulations 1992) 

Administrative authority definition can be found in the glossary.