Waivers and modifications of the Building Code

Notification of Building Code waiver or modification

Section 67 of the Building Act 2004 allows territorial authorities (TA) to grant a building consent subject to waiver or modification of the Building Code. If a building consent is granted subject to a waiver or modification, the territorial authority must notify the Chief Executive of MBIE under section 68 of the Building Act 2004.

Waivers and modifications allow TAs to exercise judgement when dealing with unusual building compliance situations. TA staff need to understand the structure of the Building Code to be able to effectively consider applications that include waivers or modifications.

Notifications to the Chief Executive of a waiver of modification of the Building Code must contain specific detail so that it is clear what was being waived or modified by the TA.

• a TA that grants a building consent subject to waiver or modification of the Building Code must notify us
• a waiver or modification of the Building Code may be subject to any conditions the TA considers appropriate
• a TA cannot grant an application for building consent subject to a waiver or modification of the Building Code relating to access and facilities for people with disabilities
• a request for a waiver or modification of energy work must be forwarded to the Chief Executive for a decision
• an alternative solution is not a waiver or modification of the Building Code.

Online form

A notification of waiver or modification of the Building Code will need to be completed to process a waiver or modification. The notification can be completed using the online form.

The online form has been developed to capture information that will assist us with our monitoring role under section 169 of the Building Act 2004.

From 17 July 2023, completed hard copy or pdf copies of the formerly used notification of waiver or modification to the Building Code [PDF 626KB] will no longer be accepted.

Guidance for territorial authorities

What is a Waiver?

A TA can waive the requirement for a particular application for a building consent, or part of an application, to comply with an aspect of the Building Code. In most cases waivers will relate to a particular performance requirement of a specific clause of the Building Code (eg C3.3.2 (d)). However, sometimes it may be appropriate to waive an entire Building Code clause.

What is a Modification?

In relation to an application for a building consent a TA can modify a performance requirement of the Building Code. This is usually done by modifying a performance requirement of the Building Code so that the functional requirement and objectives of the clause are still met. A common example is the modification of B2.3.1, which relates to the durability of a particular element and when the durability period applies from.

How is the Building Code structured?

Objectives: This states the objective of the relevant clause of the Building Code. The objectives are usually statements about ensuring people are safeguarded, or that people with disabilities can use the building or that other property is protected.

Functional requirements: These are a more in-depth description of what is required to meet the objectives and are more specific to the actual Building Code clause.

Performance (requirements): This is the measurable component and describes what the building needs to meet.

Limits on application: Some objectives, functional requirements and performance requirements do not apply to particular buildings, and these are identified in the Building Code as Limits on application. Limits on application often relate to types of buildings (from Clause A1 of the Building Code) or where such requirements would be incompatible with the use of the building or the part of the building.

Territorial authority staff should refer to the Building Act 2004, in particular:

• Section 67- A Territorial authority may grant a building consent subject to waivers and modifications of the Building Code
• Section 68- A Territorial authority must notify the Chief Executive
• Section 70- Applications relating to energy work
• Section 72- Building consent for building on land subject to natural hazards must be granted in certain cases.