Is consent required for a large window replacement?

In the High Court appeal of Plastertech Systems Limited (“Plastertech”) & Simply Construction Limited v Auckland Council (“the Council”), the Court was asked to determine whether Plastertech and Simply Construction were exempt from obtaining building consent for the works completed by Simply Construction.

Facts.

The building work
In 2014 a property owner contacted Plastertech to replace a window flashing including two double studs which had been leaking. Plastertech subcontracted Simply Construction to do the job. Mr Whitlow is the principal of Plastertech, and Mr Lee is the principal of Simply Construction.

The prosecution
The Council prosecuted Simply Construction for carrying out the building work without a consent, as well as Mr Lee for assisting with that. Additionally, the Council prosecuted Plastertech and Mr Whitlow for procuring the offence and assisting Simply Construction to commit it.

The defendants argued that no consent was required because it involved repair and maintenance which is exempt from requiring consent, and additionally that the work was urgent because it was needed to save or protect life or health.

The District Court judge considered expert evidence from the parties and concluded that the work was not exempt from requiring consent under the Building Code or Building Act 2004. Plastertech was ordered to pay a fine of $25,000.00 and Simply Construction a fine of $10,000.00.

The appeal
Plastertech and Simply Constriction appealed their convictions.

Relevant building law
Section 40 of the Building Act 2004 provides a person must not carry out any building works except in accordance with the building consent, and commits an offence if it does. Section 42A(1)(a) provides a series of circumstances in which a building consent is not required for repair, maintenance or replacement work, including where the work uses comparable materials or the replacement is in the same position.

However, the Building Act also provides that the above exemptions do not apply if the work failed to satisfy the provisions of the building code for durability, for example, through a failure to comply with external moisture requirements.

The Building Code also states that building elements must continue to satisfy the performance requirements of the code for 50 years if those building elements provide structural stability to the building, including floors, walls and fixings.

Was a building consent required here?

Judge Collins’ decision
Two aspects of the decision were appealed and argued on the premise that there was no requirement to have a building consent, namely:

a) The work “involved ‘replacement of a component that contributes to the building’s structural behaviour’”.

b) That the double studs used in the window replacement contributed to the structural behaviour of the building and are an integral part of the wall, meaning that the durability requirement fell under the above requirement of the Building Code.

Was consent required?
The success of the appeal depended on whether a consent was required because of breach of the durability requirements of the Building Code. The High Court Judge did not decide on point a) because it was no longer in dispute between the parties, and therefore focussed on point b).

The High Court Judge agreed with the District Court decision in that the double stud was an integral part of the wall that was incorporated into the building so was considered a “building element” under the definition. Therefore the works were required to have a building consent.

The High Court Judge examined expert evidence in coming to this decision, which included evidence that the replacement of the window involved substantial replacement of a component (being the studs), which contributed to the buildings structural behaviour, and in replacing the component without consent, failed to satisfy the Building Code requirements.

Conclusion
The appeal by Plastertech and Simply Construction was declined, and it was found that a building consent was required for the replacement of the window. The High Court Judge agreed with the findings of the District Court, and disagreed with the applicants contention that replacement of the window was merely ‘maintenance’.

This decision is significant in that it shows the Council’s willingness to prosecute under the Building Act 2004, for parties building without a consent.

NOTE: This article is not intended to be legal advice (nor a substitute for legal advice). No responsibility or liability is accepted by TM Bates & Co. Barristers / Solicitors to anyone who relies on the information contained in this article. All copyright in this article is retained by TM Bates & Co.