BC Update: No.83 - Transitional matters relating to the registration of regional councils as building consent authorities

14 May 2008

1. This update provides Department guidance on transitional arrangements for building consent authority (BCA) functions relating to dams.

2. This transition will occur when regional councils become registered as BCA’s with the Department, which may happen during early June 2008 in some areas.

3. This guidance is not a substitute for independent legal advice.  Councils concerned about how the transition might affect them should seek their own legal advice in respect of any specific issues faced in relation to their own liabilities or responsibilities under the Building Act or other legislation.

4. In general, the Department considers that regional councils and territorial authorities should keep in close contact with one another when receiving any customer inquiries relating to building consents for dams during the forthcoming transitional period.

Transitional provisions

5. Section 450 of the Building Act 2004 (the Act) contains specific transitional provisions that apply to BCA functions relating to dams. A copy of section 450 is attached for your information.

6. Section 450(1) of the Act provides that a territorial authority may act as a BCA in relation to a dam until the earlier of the date it is registered as a BCA or 30 June 2008.

7. Section 450(3A) of the Act provides that a territorial authority that is registered as a BCA must act as a BCA in relation to a dam from the time the BCA becomes registered until the earlier of 30 June 2008, or the date on which the regional authority, whose region includes the territorial authority’s district, is registered as a BCA or transfers its BCA functions to another regional authority.

8. The effect of these requirements in section 450 is that, from the time a territorial authority is registered as a BCA until the time a regional council becomes registered as a BCA, the territorial authority must act as a BCA in relation to a dam within the territorial authority’s district.

9. From the time that a regional council becomes registered as a BCA, the territorial authority can no longer act as a BCA in relation to a dam within the territorial authority’s district.  Accordingly, after that date the territorial authority cannot issue a building consent or code compliance certificate for a dam.

10. There are no express transitional provisions in the Act for managing the hand-over of building consent documentation in relation to a dam from the territorial authority BCA to a newly registered regional council BCA. The transitional arrangements in relation to a dam fall to be considered in light of the relevant provisions in the Act such as sections 13 - 14, 241 and 450.

11. The Act clearly requires territorial authorities to be the BCAs responsible for dams until the regional council in their region is registered as a BCA or transfers its dam related functions to another regional council. 

12. Similarly, regional councils must be registered as BCAs in relation to dams or transfer their functions to another regional council (sections 241 and 244 of the Act). For those regional councils that choose to become registered as BCAs in relation to dams, sections 13 and 14 of the Act impose broad powers, duties and functions on those regional councils. Section 450 of the Act sets out when those powers, duties and functions transfer from territorial authority BCAs to regional council BCAs.

13. Once a regional council has applied for and been registered as a BCA in relation to a dam it cannot choose not to act as a BCA in relation to a dam. For example, if a person has obtained a building consent for a dam from a territorial authority BCA and, before obtaining a code compliance certificate, the regional council becomes registered as a BCA, the regional council must, in accordance with the transitional regime contained in section 450 of the Act, consider any application by that person for a code compliance certificate in relation to the dam. The territorial authority that issued the building consent has no statutory powers or functions in relation to a dam once the regional council is registered as a BCA.

Building consent applications

14. In the lead up to the registration of regional councils as BCAs, situations will exist where consent applicants should consider whether it is better to make an application for a building consent to the relevant territorial authority BCA or whether it might be better to wait and make an application to the regional council once it becomes registered as a BCA.  Any advice given to prospective applicants on this issue should take into account the regional council’s anticipated registration date compared to the likely period of time that the territorial authority BCA will take to process the consent application. Accordingly:

• Regional councils should advise territorial authorities of their anticipated registration date as a BCA.
• If a building consent is unlikely to be issued by a territorial authority BCA prior to the regional council becoming registered, the territorial authority BCA should advise the consent applicant that it may not be able to grant or issue a building consent. A territorial authority BCA cannot issue a building consent for a dam after the date when the local regional council becomes registered as a BCA.
• There is no express transitional provision in the Act that specifies how a consent application made to a territorial authority BCA is to be handed-over to the local regional council.  The territorial authority BCA and newly registered regional council BCA should discuss how the relevant building consent documentation, including any external advice such as engineering assessments, will be transferred from the territorial authority BCA to the regional council BCA.  

Building consents issued by a territorial authority BCA

15. A building consent for a dam that has already been issued by a territorial authority BCA remains valid, regardless of the subsequent registration of the local regional council as a BCA.

Application for a code compliance certificate

16. Where a person has obtained a building consent for a dam from a territorial authority BCA and, before obtaining a code compliance certificate, the regional council becomes registered as a BCA, the regional council must, in accordance with the transitional regime contained in section 450 of the Act, consider any application by that person for a code compliance certificate in relation to the dam. The territorial authority that issued the building consent has no statutory powers or functions in relation to a dam once the regional council is registered as a BCA.

17. The newly registered regional council BCA and the territorial authority BCA that issued the building consent should ensure that all relevant documentation held by the territorial authority BCA is made available to the regional council BCA to ensure that it can properly carry out its functions and duties under the Act in relation to the inspection of a dam and consideration of any application for a code compliance certificate.

Certificate of Acceptance

18. If a building consent for a dam was issued by a territorial authority BCA then the owner is unlikely to be able to apply to the regional council for a certificate of acceptance. This is because the situation is not likely to fall into one of the circumstances covered by section 96 of the Act (unless the dam is intended to be open to members of the public). Thus, a certificate of acceptance is not an alternative to the regional council considering an application for a code compliance certificate.

Fees

19. The Act does not expressly provide for how fees are to be dealt with where a territorial authority BCA is unable to complete its decision-making in respect of a building consent application.  If a building consent applicant has paid the building consent fees to the territorial authority BCA but has not received a decision from the territorial authority BCA the regional council BCA and the territorial authority BCA will need to discuss how they will handle the fair apportionment of the building consent fees between them.  Liability for the payment of the building levy falls on the BCA that granted the building consent (section 58(1)).

20. A regional council is, of course, entitled to impose a fee or charge for performing any function or service under the Act (see section 243(1) of the Act).

Section 450 of the Building Act 2004:

450    When territorial authority may and must act as building consent authority during transition to this Act
(1)     A territorial authority may, during the period specified in subsection (3), act as a building consent authority (including in relation to a dam) even though the territorial authority has yet to be registered under section 191.
(2)     [Repealed.]
(3)     The period is the period that—
(a)     begins on the date of commencement of Part 2; and
(b)     ends on the earlier of—
          (i)      the date on which an application for registration by the territorial authority under section 191 is granted or refused; or
          (ii)      30 June 2008.
(3A)   A territorial authority that is registered under section 191 must, until the time specified in subsection (3B), act as a building consent authority in relation to a dam within the territorial authority's district.
(3B)   The time is the earlier of the following:(a)     the close of the day before the date specified in subsection (3)(b)(ii); and
(b)     the time at which the regional authority whose region includes the territorial authority's district—        
         (i)      is registered under section 191; or
         (ii)      transfers its functions as a building consent authority in relation to dams in that district to another regional authority, under subpart 4 of Part 3 of this Act or subpart 2 of Part 3 of the Local Government Act 2002.]
(3C)   If a territorial authority acts as a building consent authority under subsection (1) or (3A),—
(a)     the territorial authority must be taken to have all the functions, duties, and powers of a building consent authority under this Act; and
(b)     this Act applies with all necessary modifications.
(3D)   The Governor-General may, by Order in Council, before the date specified in subsection (3)(b)(ii), specify a later date in substitution for that date.
(3E)   An order under subsection (3D) is a regulation for the purposes of the Regulations (Disallowance) Act 1989.
(4)     This section overrides sections 14 and 193.