Determination – notice to fix

By - , Build 177

This is the second article in Build’s new section on MBIE determinations. It looks at lessons from Determination 2019/057: Regarding the issue of a notice to fix for building work carried out without a building consent and over a property boundary.

IN DETERMINATION 2019/057, the building concerned comprises five relocated 40 ft shipping containers each sitting on concrete-filled tyres. These are spaced approximately shipping container-width apart and covered with a roof made from a light timber frame and corrugated metal cladding. The building is located on rural land with part of it on an adjacent property.

The determination looked at whether the council was correct to issue the notice to fix for the construction of the storage building on two grounds:

  • It did not have a building consent (contravening Section 40 of the Building Act).
  • It crossed the boundary (contravening Section 75 of the Building Act). The notice to fix states that the owner has to remove the storage building from the property.

Notice to fix

Councils (building consent authorities, territorial authorities and regional authorities) issue a notice to fix if they consider on reasonable grounds that the owner, or builder and supervisor when building work is being done, is contravening or failing to comply with the Building Act or regulations.

A notice to fix requires the person to remedy the contravention or to comply with the Building Act and regulations.

Building consents and building work

The Building Act is the legislation regulating building work. The correct and complying installation of building work is monitored through the building consent process.

Building consents are required for building work unless it is specifically exempt. To help owners understand what building work does not require a building consent, MBIE has published guidance on the Building Performance website.

Building consent needed for roof

Moving or relocating shipping containers does not require a building consent.

The building work covered by this determination is the construction of the roof. If a building consent had been applied for, the evaluation of the application would have considered structural loads such as gravity, wind and earthquake and the effects on other property, such as surface water and fire.

The completed construction would have been checked against the building consent and the Code Compliance Certificate issued when the building work complied with the consent.

Building over boundary

Section 75 of the Building Act is about building over a boundary. However, a necessary condition is that the property on both sides of the boundary is owned by the same person, which was not the case in the determination.

Determination 2019/057 also considered:

  • removing the roof and relocating the containers
  • whether containers are buildings
  • change of use.

The decision

The determination concluded that the council:

  • was correct to issue the notice to fix for doing building work – the construction of the roof – without a building consent
  • was wrong in including contravention of section 75 for building over a boundary, as the land was not in the same ownership.

What can we learn?

Building owners are responsible for obtaining building consents for building work. Some work is exempt from needing a building consent, and this is described in the Building Act Schedule 1 and supported by MBIE guidance Building work that does not require a building consent.

Buildings must not be constructed on land that belongs to other people. Section 75 does allow construction over a boundary but only if the land on both sides of the boundary is in the same ownership.

Placement of a shipping container does not require a building consent. However, a building consent is required for associated building work such as foundations or roofs.

A notice to fix is the mechanism for councils to get things to comply with the Building Act and regulations.

A dispute over the issue of a notice to fix can be the subject of a determination.

Recent determinations

Since the previous Build, MBIE has published 20 determinations covering:

  • access
  • building over the boundary
  • relocated buildings
  • notices to fix
  • garages
  • use of a dangerous building notice
  • plumbing and drainage
  • weathertightness
  • change of use
  • pool fencing
  • Code Compliance Certificates
  • section 37 notice for Resource Management Act conditions
  • geotech information for foundation design
  • durability of subfloor bearers
  • building consent and natural hazards
  • the structure of a multi-storey steel building.

 

For more

For more information on this determination and the MBIE guidance on building work, see www.building.govt.nz.

To see recent determinations, visit www.building.govt.nz/determinations.

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Articles are correct at the time of publication but may have since become outdated.

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