There are always two sides to a story. When it comes to issuing building consents, councils often cop the blame for being tardy or obstructive. Council building control manager Ian McCauley explains the other side of the consents story.
A former builder and experienced council building control manager is calling for consistent and early enforcement of building regulations. Ian McCauley makes it clear these are his private opinions and not those of any council. He bases his views on 25 years of experience as a builder and eight years at building consent authorities (BCAs).
Ian was recently part of a four-person panel of speakers at SOLGM’s annual Summit discussing ways to deal with “challenging” ratepayers in the Building Act and Resource Management space. “Soaking up huge council resource, these types of cases are on the rise and you will no doubt recognise the warning signs,” SOLGM told delegates before the summit. (The other panellists were Rice Speir Lawyers partner Nathan Speir [see When the going gets tough], Auckland Council’s director regulatory services Craig Hobbs and Hutt City Council acting GM Helen Oram.)
Building consent authorities are widely and frequently criticised in the media for being difficult to deal with: slow, nitpicking, even verging on obstructive. Making matters worse, there is considerable, and understandable, pressure on all concerned to speed up processes to help alleviate the housing crisis.
Speaking with Local Government Magazine before the summit, Ian says, “You hear the government all the time banging councils and building consent authorities that they’re not issuing consents quickly enough. ‘There’s too much legislation, too much red tape, too many requests for further information. Why don’t you do your job and hurry up and get it done?’”
Yet Ian says BCAs can only approve buildings that meet legislative requirements including those of the Building Act, Building Code and the Resource Management Act. He says a large number of applications simply do not meet those requirements. Either way, BCAs often end up taking the blame. It needs to be remembered that central government writes the legislation, not councils, he says.
Ian adds that, for a complex piece of legislation, the purposes and principles of the Building Act are very simple. “It’s that you have a home that contributes to your safety, welfare, warmth and health and that you can get out of the building if it’s on fire.”
Ian’s call for more consistent enforcement may, to some people, appear counter-intuitive given the regular criticism that councils are at fault for being slow in granting building consents.
But Ian says that when councils don’t enforce the regulations in fairness and with consistency, communities suffer from a growing number of shoddy, dangerous, insanitary and non-compliant buildings.
“Enforcement is a complex matter in territorial authorities. If it’s not done consistently, the situation gets out of control.”
He says that when he first arrived to work at one territorial authority, he took five prosecutions to the Licensed Building Practitioners board within the first couple of years.
“We were despised when we first did it,” he says. “But in the compliance arena, culture is everything. If a territorial authority does little or nothing, doesn’t fulfil its enforcement responsibilities, a culture of noncompliance spreads and spirals downward very fast.”
He also notes a growing number of incidents across the country of developers and builders lobbying elected members and CEs to push through consents: introducing risk and crossing the line into work that only warranted and accredited staff can do.
To be fair
Confused? You are not alone
For most councils the process of applying for a building consent has also morphed into an application for a PIM (Project Information Memorandum) at the same time. This was not meant to be.
“This means consent applications are bottlenecked for checking under two massive pieces of legislation at the same time,” says experienced council building control manager Ian McCauley. “So, the planners – under the Resource Management Act – may be throwing a consultant all sorts of questions around a building required to meet the district plan being near a wetland or native trees, for example.
“At the same time, you’ve got the building processing officer who is issuing requests for further information (RFIs) about the building’s structure and how it complies with E2 ‘External Moisture’ of the New Zealand Building Code, for example.”
If the building processor is satisfied that the application complies with the Building Code, the BCA must – not may but must – grant that building consent even though the planning issues may not yet be resolved”.
This scenario is common and a section 37 (or form four) is attached to the building consent
“So, you as the owner wanting to build your new home now have your building consent handed to you but are not allowed to start work. Or you can only start work to the extent that the section 37 states.”
While first-time home builders may not be expected to know all of this, a professional such as a developer, planner, building consultant, architect or licensed building practitioner should be well aware of such clauses. Sadly, says Ian, that is not always the case and breaches occur. “That happens a lot.”
Across the country, many applicants including professionals do not understand how much easier it would be to apply for a Project Information Memorandum (PIM) as soon as possible before they apply for the building consent. This was the original intent of the PIM. Then any issues that the planning check identifies may be clearly resolved or understood well before the building consent is applied for.
Ian says the key is ‘one piece of legislation at a time’ rather than bottlenecking the application to be checked within 20 days under the two major pieces of legislation, the RMA and the Building Act all at the time of the building consent application.
“I have seen this situation contribute many times to unauthorised building work due to people starting work prior to resource consent being granted and the section 37 lifted. This situation would be greatly eased if people got their designer to apply for the PIM before the building consent. The information a planner requires is far less than the 200 pages of plans and specifications a building processor needs to demonstrate compliance with the Building Code.”
Ian acknowledges that decisions can sometime vary from one BCA, inspector or processor to another.
“There are often subjective assessments of plans. So, what satisfies one processor may not satisfy another. That’s a problem in the industry. That’s a common complaint and a fair one.
“But one thing is certain: anybody joining a BCA goes through a rigorous process of becoming competent. Every processor, every building officer has to be trained. A BCA is required to have evidence of training, qualifications and competence of its technical staff.
Every two years, International Accreditation New Zealand (IANZ) comes knocking on the door of building consent authorities. They are there for about three days with a Ministry of Business, Innovation and Employment (MBIE) representative shadowing the audit process.
“Everything is pulled apart,” says Ian. “Decisions. Reasons for decisions. They will look carefully at the basis on which a consent was issued. The basis of any consent issued is that the processor or BCA must be satisfied on reasonable grounds that that design proposal – if it were built in accordance with the plans and specifications – would meet the requirements of the Building Code.
“There are no such rigorous legislated training requirements to prove ongoing competence in understanding building legislation for any other stakeholders. Is it any wonder, then, that applications almost always get suspended for inadequate information?”
Nip it in the bud
Ian favours education as a first port of call in containing the spread of illegal, insanitary or dangerous buildings. He urges councils to build strong relationships with key stakeholders and influencers in their communities. He suggests councils let community members know what can and can’t be done – and why. “And try to drive positive behaviours.”
A step up from that is issuing a $1000 minimum infringement fee. Ian says he has done this frequently for lower level infringements such as starting work before a building consent is issued.
He says every council should have an enforcement policy for different degrees of severity. “You take into account intentions. Maybe it’s just ignorance. Should they have known better? Did they do it deliberately?” He says the idea is to send a deterrent message. “The smaller the community, the faster that message gets around.”
Then there’s the determination process. This is the proper process when there is a disagreement with a decision that a BCA or territorial authority has made. Ian sees it as a good, albeit under-utilised, alternative to litigation.
In this process, MBIE will take a detailed look at the decisions a BCA or territorial authority has made, including whether building work complies with the Building Code. Determinations can apply to work that is planned, partly done or complete and MBIE’s decision is legally binding although there is one appeal available to the district court.
The cost for an application to go through this process is much lower than for legal action and decisions are made much faster.
Serial offenders
When dealing with people who repeatedly flout the requirements, council shouldn’t dilly dally about prosecution, says Ian. “Quickly is best. Delay becomes extremely costly because some people add offence onto offence and under the building legislation, every time council becomes aware of illegal building work, that time becomes a legislative requirement date. Council has six months from that date to decide whether to prosecute. After that time council cannot prosecute for that particular infringement.”
He details a series of unconsented changes to one particular building: the consent was issued for ‘a storage shed with no services’. Then a wastewater tank was attached, a container attached to the side, then another container, a car port and so on.
“Over a period of time it became highly complex and the documentation and recording of data became a huge problem for us. Plus, this particular perpetrator would continually shift the ownership of the property into different names and trusts.
“You can’t issue a notice to fix to a new owner. So, if somebody shifts their name that becomes complex as well. Good quality, efficient legal assistance for complex cases such as this can be critical.”
The case finally began to head very strongly in council’s favour, “but it has been very expensive”, says Ian.
In such situations, he says, the support of senior management and elected members around any decision to prosecute is vital. Delay and indecisiveness add complexity and cost dearly: not only in money but in reputation and example.
Ian says the problem is that council is required to put in an enormous amount of work and resources before any kind of prosecution can take place. But unless council takes such appropriate action for serious offences, it can indirectly contribute to an escalation of similar offences and poor compliance culture in the community. Council may then, by default, be abrogating its responsibility to ensure buildings are safe, sanitary and compliant with the New Zealand Building Code.
When the going gets tough
Nathan Speir and Laura Bielby from Rice Speir Lawyers share some thoughts on how best to handle difficult people in overlapping compliance situations. 
As affordable housing becomes increasingly scarce throughout New Zealand, local authorities are faced with a growing number of difficult and overlapping compliance issues under the Building Act 2004 and the Resource Management Act 1991.
Unfortunately, in compliance and enforcement, dealing with difficult people comes with the territory. We are currently working with a number of councils around the country who have “tiny house” questions and problems. From determinations, appeals and enforcement action, we really have seen it all.
At the same time, what we like to refer to as “subdivisions by stealth”, have become more common. This is where landowners erect multiple units on single lots, often poorly constructed, unsafe or insanitary, in contravention of both the RMA and the Building Act. These buildings potentially pose serious risks to the health and safety of their residents, as well as the surrounding environment and communities. They are also very difficult situations for councils to intervene in and resolve.
The common threads in all these issues are: A council; An attempt by an owner/agent to save money by avoiding council processes; and; A reaction along the lines of “but the council has never had a problem with this before”.
For councils, the number one objective is always to achieve compliance quickly and painlessly for all involved. Typically, however, difficult compliance issues are caused by difficult people. This can make council efforts unnecessarily resource intensive and can lead to last resort enforcement proceedings that could easily have been avoided.
In our experience, the best way to deal with a difficult person, while at the same time ensuring a successful compliance outcome, is to play with a straight bat and get the foundations right. This means documenting the investigation and ensuring that any inspections and/or search warrants are carried out in accordance with the correct piece of legislation (Building Act and/or RMA).
It is so easy today to pull out a cellphone and record a conversation. Where possible, try and avoid telephone calls with disgruntled people and revert to corresponding in writing.
Unfortunately Building Act enforcement tools are comparatively under-utilised, and our experience is that council building teams don’t have the same investigative background and training as their RMA counterparts. This is an area where more resources could be applied to assist councils achieve better compliance outcomes.
Building Act and RMA officers work in very similar fields but often work in silos. With complex sites, it is important to ensure that the right people have all the knowledge and expertise to identify issues so that they can be nipped in the bud early.
It is also important to ensure that the right enforcement action is taken. For example, many of the tiny house or subdivision by stealth situations have warranted investigations and enforcement action under both RMA and the Building Act. Put simply, you need to have the right tool(s) for the job.
Rice Speir’s tips for dealing with difficult people and overlaps in compliance and enforcement:
•Treat the difficult person with respect, play with a straight bat and avoid oral communication where possible;
•Identify whether there is an overlap between the RMA and the Building Act;
•Consider whether all relevant disciplines within the council know about the problem;
•Consider what the right compliance tool for the job is;
•Document your investigation;
•Turn your mind to whether you need a search warrant to go to the site; and
•Consider whether the limitation period has expired. Notices issued under the RMA and/or the Building Act could form the basis of future prosecutions so make sure they meet all legal requirements.
Nathan Speir is a partner and leads Rice Speir’s regulatory team. nathan@ricespeir.co.nz.
Laura Bielby is an associate in Rice Speir’s regulatory team. laura@ricespeir.co.nz
This article was first published in the October 2019 issue of NZ Local Government Magazine.