Substitution of materials – It is a minor variation or an amendment to the building consent?

This month we explore how disruptions to building material supply chains could impact your ability to adhere to your building consent.

The Covid-19 pandemic continues to affect the construction industry, and the pressure on supply chains creates potential for those involved in construction projects to be forced into considering changes to materials, even after the building consent has issued. This article seeks to set out the requisite statutory framework governing the decision-making process that Council must undertake when assessing whether an amended consent is required, or whether it would be considered a minor variation as well as looking at a specific MBIE Determination involving this issue.    

The Building Act 2004

As a starting point section 40 of the Building Act 2004 sets out that no building work should be carried out except in accordance with a building consent; section 45 sets out the process by which one is to obtain a building consent; and section 45A is a specific section addressing minor variations to building consents. A minor variation is defined as a minor modification, addition, or variation to a building consent that is permitted by regulations made under section 402(1)(kd). Some examples of minor variations are:-

  • Minor wall bracing changes;

  • Minor construction changes, e.g changing the framing method around a window;

  • Changing a room layout;

  • Changing one brand of insulation for another;

  • Changing one brand of wall lining for another;

  • Changing membranes to wet areas (internal only). 

Amendments occur when the changes materially affect compliance. Examples of amendments include but are not limited to

  • An alteration that changes the footprint of the building;

  • The location or removal of internal load bearing supports;

  • Substantive change in ground levels resulting in changes to foundations/retaining structures;

  • Any change to fire of acoustic rated elements;

  • Any change to the exterior cladding or external waterproof membranes;

  • Any change to pool fencing;

  • Any change to a specified system;

  • Any change to accessibility.

Most times a significant change to materials is made it is likely to require an amended consent. August’s article contained a cladding change from cedar to teak as an example in the context of considering prime costs sums. In that scenario, an amended consent would be required as it is a change to the exterior cladding. 

The decision on which of the two possibilities applies is crucial and building work involving a substituted material should stop whilst clarity is provided from Council. The reason being that if construction progresses too far beyond the material substitution, the builder may find he can no longer secure an amended consent, which in turn would rule out the issue of a Code Compliance Certificate. In particular section 94 of the Building Act 2004 requires an assessment of whether the building work complies with the building consent before issuing a Code Compliance Certificate. 

Determination 2018/011

It is exactly this situation that unfolded in Determination 2018/011. This determination concerned the substitution of aluminum windows with timber windows, in which the owner (who originally thought this was a matter for a minor variation after a Council inspection) progressed works to the point where the windows were installed. Following installation, the owner sought a consent amendment for the substitution. 

The Council declined to issue an amended consent and ultimately the owner sought a determination on that refusal. MBIE in its determination ultimately agreed with the Council decision. It agreed with the Council that pursuant to section 40 of the Building Act 2004, buildings must not be constructed, altered, demolished, or removed without a building consent. There was no capacity for the Council under the Act to grant a building consent for work that required a consent, but which had been carried out on site before the amendment was granted. 

Whilst in this situation the owner was able to establish that the building work had been demonstrated to none-the-less comply with the Building Code, the only route available to the owner was to apply for a certificate of acceptance under section 96 of the Act, which was deemed to be the correct route for the owners to pursue. 

However, for many Owners to be left only with a Certificate of Acceptance rather than a full Code Compliance Certificate for building works is a significant consequence and could certainly negatively impact sale price. 

It follows that where there has been substitution of materials on an issued building consent, an owner ought to get a clear direction from Council as to whether a minor variation or amended consent is required, before advancing building works. 

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.