Building consent for a house on land subject to coastal hazards at 35 Clifton Road, Haumoana, Hawke's Bay
The matter for determination
The matter for determination was a territorial authority's refusal to grant a building consent for the construction of a house on the seafront, because the proposed house did not comply with Building Act 2004 provisions for building on land subject to natural hazards.
The proposed house
The coast is retreating and the building site will eventually be inundated. However, the house, as specified in the building consent application, would comply with the Building Code for some time before the sea came too close to it. There was uncertainty as to how long that would take, but the owner proposed to demolish or remove the house before the risks from natural coastal hazards became unacceptable.
The determination discussed numerous issues, including legal issues about the Department's jurisdiction and technical issues about compliance with the Building Code.
However, the major issue was whether the Building Act 2004:
- prevented the owner from building the house at all, as the territorial authority contended, or
- allowed the owner to build the house and use it until it no longer complied with the Building Code (allowing a reasonable time for demolition or removal), as the owner contended.
Purposes and principles of the Act
The territorial authority contended that granting a building consent would be contrary to the purposes and principles of the Act set out in sections 3 and 4, irrespective of sections 71 to 74 dealing with building on land subject to natural hazards.
The Department did not accept that contention but decided that the matter was governed by sections 71 and 72 (while recognising that, in making a determination, the Department was bound by section 4).
Sections 71 and 72
The Department discussed the relationship between sections 71 and 72 and the view it took as to their interpretation.
The owner and the territorial authority agreed that the building consent had to be refused under section 71 because no provision had been made to protect the land (as distinct from the house) from coastal hazards.
The territorial authority contended that the building consent also had to be refused under section 72 because, if the house complied with the Building Code, it would not be 'reasonable to grant a waiver or modificationâ€¦in respect of the natural hazard concerned' as required by section 72(c).
In the absence of decided cases, the Department took the view that section 72(c) was not to be read as preventing a building consent authority from granting a building consent for building work that complies with the Building Code.
The Department concluded that:
a) The territorial authority's decision to refuse to issue the building consent had to be confirmed because the owner had not adequately specified the intended life of the house in terms of when it was to be demolished or removed.
That was a matter for the owner to propose by way of an amended application for a building consent. As with Determination 2004/08, a suitable approach would be to specify the intended life as being until the coast had retreated to within a certain distance from the house (but no longer than 50 years).
b) If a building consent were issued, it would have to be subject to a section 73 condition requiring an entry on the certificate of title and a section 113(a) condition relating to demolition or replacement.
A dispute on the procedures needed to change the use of units within a multistorey apartment building at 9-13 Tamariki Avenue, Orewa ('the Nautilus Building')
The Nautilus Building contains 152 apartments each with a registered owner under the Unit Titles Act 1972. The building consent for the building's construction was issued on the basis that it would comply with the Building Code as private apartments coming within purpose group SR ('Sleeping Residential') in terms of Acceptable Solution C/AS1.
After the building was completed, the owners for two of the apartments (the applicants for the determination) gave notice to the territorial authority, under section 114 of the Building Act 2004, that they proposed to change the use of the apartments so they could be let out as 'serviced apartments'. This proposal would change the use of the apartments to come within purpose group SA ('Sleeping Accommodation') in terms of Acceptable Solution C/AS1. The applicants proposed that there would be no change to the use of the remaining parts of the building and, in particular, the access routes to the apartments would remain unaltered.
The applicants applied for, and the territorial authority issued, a building consent for alterations to the two apartments intended to make them accessible for people with disabilities and to bring them into compliance, as far as reasonably practicable, with the requirements of purpose group SA (and therefore compliant with the relevant provisions of the Building Code).
The owners of other apartments in the building objected to the proposed change of use.
The territorial authority refused to give the applicants notice to the effect that their use could be changed under section 115. The territorial authority was concerned whether the applicants were entitled to give notice under section 114, given that the change of use affected the building as a whole and not just the two apartments concerned. In turn, the territorial authority was also concerned whether it was entitled under section 115 to give notice only to the applicants rather than to the owners of the building as a whole.
As the right of the applicants to give notice under section 114, and receive notice under section 115, had been disputed, it followed that there was also a dispute as to the applicants' status as a 'party' under section 176, and therefore their rights to apply for a determination under section 177.
The matter for determination
The matter for determination was the territorial authority's decision to refuse to give notice under section 115.
It was emphasised in the determination that it would only deal with the exercise of the territorial authority's relevant powers under the Act. Nothingin the determination affected the duties of the applicants or the other parties under the Unit Titles Act and the rules of the body corporate.
Who is the owner of a unit-titled building for the purposes of the Building Act?
In respect of a unit-titled building, the view was taken that:
- the owner of an individual unit in the building was the person entitled to its rack rent, but
- in regard to the common property of the building, the person entitled to its rack rent was all of the unit owners of the complex as tenants in common in proportion to their respective shares of unit entitlement.
Accordingly, the owner of an individual unit was entitled to make an application for a determination as a 'party' in terms of section 176(c) as it was an 'owner' and would be 'affected by the determination'. The body corporate was not entitled to be a party in terms of section 176 because the Unit Titles Act provided that the body corporate of a building had no rights of ownership.
Of course the applicants were not the only "owner" of the building, so that each of the other owners was entitled to be involved in the determination as provided by sections 177 to 190. It should be noted that this would not prevent individual owners engaging the body corporate as their agent.
Similarly, under section 114 each of the other owners had the status to notify the territorial authority of a proposed change of use, whereas the body corporate did not. It followed that the territorial authority was required to give a notice under section 115 to each individual owner.
Notices under sections 114 and 115
The determination also found that:
- notice to a territorial authority under section 114 was not a condition precedent to the territorial authority issuing a notice under section 115. Accordingly, even if it had not received notice under section 114, a territorial authority was entitled to give notice under section 115 if:
- the territorial authority knew that there was a proposal to change the use of the building, and
- the territorial authority was satisfied on reasonable grounds that, in its new use, the building would comply with the Building Code to the extent required by section 115.
That does not diminish the importance of an owner giving notice under section 114, especially in cases where there is no other factor (such as an application for building consent) to alert the territorial authority to the proposed change of use. Territorial authorities need to keep accurate records of a building's use.
The determination reversed the territorial authority's decision to refuse to issue a notice under section 115, subject to the territorial authority confirming that it was in fact satisfied that the building, in its new use, would comply with the Building Code to the extent required by section 115. If it was to be issued, a section 115 notice was to be given to each of the owners of the individual apartments in the building.
To read all the determinations in summary or in full, go to www.dbh.govt.nz/determinations