Certificate of Acceptance (CoA)
As part of the reforms to the Building Act 2004, a regime of Certificates of Acceptance (CoA) was introduced under under s96. This was designed to allow homeowners and builders to get formal acceptance of building work done by them or previous owners without a building consent (and one was required and the work was not exempt under s41 and schedule 1).
The council can limit their liability for the issuing of the CoA to the extent they are able to inspect the building work in question. The Territorial Authority (TA) may issue the CoA only if it is satisfied, to the best of its knowledge and belief and on reasonable grounds, that in so far as it could ascertain, the building work complies with the Building Code.
If this s96 statement is read liberally and permissively (as it should be) then council can issue as long as they don't have knowledge (to the contrary) and only requiring grounds that are reasonable (but not based on certainty) that as far as it can tell the building work 'complies'
As if this wasn't easy enough s99 2 and 3 allow the council to limit their certificate and their liability to the extent that they were able to inspect the work (which should be on a simple visual inspection only and stated as such). This should mean a CoA properly issued has no liability at all (i.e unless negligently issued).
Prior to the Building Act 2004 there was no mechanism to rectify unauthorized building work and it was deemed that building consent could not be issued retrospectively. There developed an informal process among territorial authorities to allow unauthorized building work to remain as long as it was considered "safe and sanitary". This reflected the reality that councils could not act against an existing building unless the poor condition associated and defined as dangerous or insanitary.
In our view the CoA regime was intended to replace this informal 'safe and sanitary report' process. Careful reading of the Act wording supports the view that a CoA can be considered an approval process with little responsibility for the council only limited to the extent that they are able to inspect the work. A careful issuing of a CoA could thus incur very little liability to the TA and also should attribute little reliance on the part of future owners but sufficient to comfortable that the building work has been approved. The council only need to inspect the work and no third party need be involved.
Prior to 2004 a Safe and Sanitary Report with work detailed in the report with a statement from a suitably independent qualified person (IQP) that the building work was safe and sanitary was accepted as evidence that the council didn't need to act on the building and therefore the building work in question. Council issued declaimers for these reports that in effect 'mimicked' s99 2) and 3) that is there in the 2004 act now.
In simple terms a CoA could be considered a retrospective building consent issued for work already done but for which council had no opportunity to inspect during work. The approval is then given on the basis that a CoA is issued unless there is self evident breach of a code clause which the council can see as a result of a visual inspection only. There is no CCC issued as for a building consent and the level of reliance that can be placed on a CoA should be understood as the same as a building consent with no final inspection or a CCC..
Unfortunately councils in general struggle to apply this CoA regime in the liberal and permissive way that the Building Act allows for. This has been stated to us as because council do not want to provide an easy path for those that avoid the Building Consent regime". Councils are using the CoA process to 'dis-incentivise' owners from doing work without consent. This is unfortunate for owners who may only make an honest mistake or inherit other peoples decisions.
S40 remains as the risk for builders (who may be the owner at the time) doing work without consent. This section makes it an offense for a person to be carrying out work except in accordance with a building consent (unless it is exempt under s41 and schedule 1). The offense remains with the person carrying out the work. The requirement for the work to have a consent is enshrined in s44 (which has no offense attached to it as s40 does.
S40 is usually the provision enforced in a NTF even for historical work and in our view this is wrong application of the law yet to be clarified by a court.. "Andrews housing HC decision 1995" went some way in clarifying that when work stops then the offense stops and unapproved work is not an ongoing offense. This evolving law is presented in such determinations as MBIE determination 2014-035 (https://www.building.govt.nz/resolving-problems/resolution-options/determinations/determinations-issued/?keyword=2014&topic=&action_doSearch=Search#results). This determination dealt with building work done by a previous owner but the same principles apply to even the present owner if the Building Act is read properly in our view.
The old safe and sanitary process was a useful and relatively cost effective process that dealt with the issue of unapproved work in a prudent manner. The process reflected the Building Act provisions that as long as the building was not dangerous or insanitary then the council was not required to take action (and indeed couldn't!)..A safe and sanitary report was a statement of t affirmative condition in respect to s121 and 123 (previously there was similar wording in the Building Act 1991 s64). The statement contained in the report (assuming it was there) allowed council to be relaxed about the work as s121 (in respect to dangerous) and s123 (in respect to insanitary) were not triggered. If it was triggered that demanded a council response to the work under s124 and other sections. Meanwhile the transparency of the public council file reflected the existence and status of the work for future owners to see (and satisfy themselves of)
Council could relax knowing that the 'unauthorized work' could not be required to be removed anyway. The RMA does have some provision for removing adverse affects which could trigger removal of unapproved work but a resource consent can be retrospective to account for this and perhaps the unconsented work already complied with the district plan but this is a matter outside the Building Act. The important part of the safe and sanitary process was that it allowed an owner to get a formal recognition onto the council property file for transparency and peace of mind. It also importantly satisfied vendor and purchasers' lawyers (and lenders) concerns when buying and selling and discharged the warranty provisions in most sales and purchase agreements (or could do so by mutual agreement and disclosure)..
It could well be that this previous informal Safe and Sanitary process will be resurrected for recent work if the attitude to CoA's does not mature and allow a more liberal acceptance of these provisions as we are sure parliament intended
update;
Auckland Council have as of 1 July 2015 changed their policy in regard to obtaining a CoA that appears to be making them harder to obtain than previously. We are currently in discussions with council and MBIE over these changes which appear to be contrary to the wording and spirit of the Building Act.
We have concerns that the Third party report that council require from persons registered on their approved producer statement registrar is simply raising the bar too high for a CoA and shifting liability to the third party person. This person has to declare insurance etc to get on the registrar..Council are only required to issue CoA on reasonable grounds and the statement "to the best of its knowledge and belief and on reasonable grounds, that in so far as it could ascertain, the building work complies with the Building Code" has wriggle room for the council inspector. A third party report provider may be judged to a higher standard that his knowledge and experience calls him to.
This issue has yet to be clarified in court proceedings but must be a concern to any provider involved in this work. The few that have offered themselves to the council registrar to date speaks volumes for the concerns providers have around this centralized and overly bureaucratic approach council is insisting on.
Alan Light is not currently on this registrar and as a registered building surveyor but doubts the council can refuse any third party report that he may choose to provide. This would need to be challenged if that was the case.and could be by way of a determination application by the owner or council.
Removal of unapproved building work
Recent press releases from Auckland Council have created an impression that unapproved building work that fails to get a CoA may have to be removed. There is in fact no provision in the building act for removal of unapproved building work Unless it is dangerous or insanitary (and this provision applies equally to approved building work). The work simply remains as unapproved building work
We assist owners through the 'minefield' that a CoA presents them and recommend careful analysis of what is being considered and what building work needed building consent.
The council can limit their liability for the issuing of the CoA to the extent they are able to inspect the building work in question. The Territorial Authority (TA) may issue the CoA only if it is satisfied, to the best of its knowledge and belief and on reasonable grounds, that in so far as it could ascertain, the building work complies with the Building Code.
If this s96 statement is read liberally and permissively (as it should be) then council can issue as long as they don't have knowledge (to the contrary) and only requiring grounds that are reasonable (but not based on certainty) that as far as it can tell the building work 'complies'
As if this wasn't easy enough s99 2 and 3 allow the council to limit their certificate and their liability to the extent that they were able to inspect the work (which should be on a simple visual inspection only and stated as such). This should mean a CoA properly issued has no liability at all (i.e unless negligently issued).
Prior to the Building Act 2004 there was no mechanism to rectify unauthorized building work and it was deemed that building consent could not be issued retrospectively. There developed an informal process among territorial authorities to allow unauthorized building work to remain as long as it was considered "safe and sanitary". This reflected the reality that councils could not act against an existing building unless the poor condition associated and defined as dangerous or insanitary.
In our view the CoA regime was intended to replace this informal 'safe and sanitary report' process. Careful reading of the Act wording supports the view that a CoA can be considered an approval process with little responsibility for the council only limited to the extent that they are able to inspect the work. A careful issuing of a CoA could thus incur very little liability to the TA and also should attribute little reliance on the part of future owners but sufficient to comfortable that the building work has been approved. The council only need to inspect the work and no third party need be involved.
Prior to 2004 a Safe and Sanitary Report with work detailed in the report with a statement from a suitably independent qualified person (IQP) that the building work was safe and sanitary was accepted as evidence that the council didn't need to act on the building and therefore the building work in question. Council issued declaimers for these reports that in effect 'mimicked' s99 2) and 3) that is there in the 2004 act now.
In simple terms a CoA could be considered a retrospective building consent issued for work already done but for which council had no opportunity to inspect during work. The approval is then given on the basis that a CoA is issued unless there is self evident breach of a code clause which the council can see as a result of a visual inspection only. There is no CCC issued as for a building consent and the level of reliance that can be placed on a CoA should be understood as the same as a building consent with no final inspection or a CCC..
Unfortunately councils in general struggle to apply this CoA regime in the liberal and permissive way that the Building Act allows for. This has been stated to us as because council do not want to provide an easy path for those that avoid the Building Consent regime". Councils are using the CoA process to 'dis-incentivise' owners from doing work without consent. This is unfortunate for owners who may only make an honest mistake or inherit other peoples decisions.
S40 remains as the risk for builders (who may be the owner at the time) doing work without consent. This section makes it an offense for a person to be carrying out work except in accordance with a building consent (unless it is exempt under s41 and schedule 1). The offense remains with the person carrying out the work. The requirement for the work to have a consent is enshrined in s44 (which has no offense attached to it as s40 does.
S40 is usually the provision enforced in a NTF even for historical work and in our view this is wrong application of the law yet to be clarified by a court.. "Andrews housing HC decision 1995" went some way in clarifying that when work stops then the offense stops and unapproved work is not an ongoing offense. This evolving law is presented in such determinations as MBIE determination 2014-035 (https://www.building.govt.nz/resolving-problems/resolution-options/determinations/determinations-issued/?keyword=2014&topic=&action_doSearch=Search#results). This determination dealt with building work done by a previous owner but the same principles apply to even the present owner if the Building Act is read properly in our view.
The old safe and sanitary process was a useful and relatively cost effective process that dealt with the issue of unapproved work in a prudent manner. The process reflected the Building Act provisions that as long as the building was not dangerous or insanitary then the council was not required to take action (and indeed couldn't!)..A safe and sanitary report was a statement of t affirmative condition in respect to s121 and 123 (previously there was similar wording in the Building Act 1991 s64). The statement contained in the report (assuming it was there) allowed council to be relaxed about the work as s121 (in respect to dangerous) and s123 (in respect to insanitary) were not triggered. If it was triggered that demanded a council response to the work under s124 and other sections. Meanwhile the transparency of the public council file reflected the existence and status of the work for future owners to see (and satisfy themselves of)
Council could relax knowing that the 'unauthorized work' could not be required to be removed anyway. The RMA does have some provision for removing adverse affects which could trigger removal of unapproved work but a resource consent can be retrospective to account for this and perhaps the unconsented work already complied with the district plan but this is a matter outside the Building Act. The important part of the safe and sanitary process was that it allowed an owner to get a formal recognition onto the council property file for transparency and peace of mind. It also importantly satisfied vendor and purchasers' lawyers (and lenders) concerns when buying and selling and discharged the warranty provisions in most sales and purchase agreements (or could do so by mutual agreement and disclosure)..
It could well be that this previous informal Safe and Sanitary process will be resurrected for recent work if the attitude to CoA's does not mature and allow a more liberal acceptance of these provisions as we are sure parliament intended
update;
Auckland Council have as of 1 July 2015 changed their policy in regard to obtaining a CoA that appears to be making them harder to obtain than previously. We are currently in discussions with council and MBIE over these changes which appear to be contrary to the wording and spirit of the Building Act.
We have concerns that the Third party report that council require from persons registered on their approved producer statement registrar is simply raising the bar too high for a CoA and shifting liability to the third party person. This person has to declare insurance etc to get on the registrar..Council are only required to issue CoA on reasonable grounds and the statement "to the best of its knowledge and belief and on reasonable grounds, that in so far as it could ascertain, the building work complies with the Building Code" has wriggle room for the council inspector. A third party report provider may be judged to a higher standard that his knowledge and experience calls him to.
This issue has yet to be clarified in court proceedings but must be a concern to any provider involved in this work. The few that have offered themselves to the council registrar to date speaks volumes for the concerns providers have around this centralized and overly bureaucratic approach council is insisting on.
Alan Light is not currently on this registrar and as a registered building surveyor but doubts the council can refuse any third party report that he may choose to provide. This would need to be challenged if that was the case.and could be by way of a determination application by the owner or council.
Removal of unapproved building work
Recent press releases from Auckland Council have created an impression that unapproved building work that fails to get a CoA may have to be removed. There is in fact no provision in the building act for removal of unapproved building work Unless it is dangerous or insanitary (and this provision applies equally to approved building work). The work simply remains as unapproved building work
We assist owners through the 'minefield' that a CoA presents them and recommend careful analysis of what is being considered and what building work needed building consent.
Have concerns about Certificates of Acceptance or a CoA? Get in touch and we'll talk you through it.
