Determinations frequently asked questions
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The council won't issue my building consent. Can I apply for a determination?
Yes. If you do not agree with the council’s decision to refuse your building consent application, you can apply for a determination.
What is a code compliance certificate?
A code compliance certificate (CCC) is a certificate issued by a building consent authority (usually the local council). It shows that the council is satisfied all the building work under a particular building consent has been properly completed.
Whose responsibility is it to apply for the code compliance certificate?
The owner of the building needs to apply for the CCC as soon as all the work covered by the consent is completed.
Sometimes the builder will apply on the owner’s behalf, but it is the owner’s responsibility to ensure the application is made and the CCC is issued.
Who is a ‘party’ to a determination?
A ‘party’ is someone (individual or organisation) who has a direct interest in the determination either as an affected party (such as a neighbour) or who has to fulfil a regulatory duty in respect of the work (such as the New Zealand Fire Service).
The council is nearly always a party to a determination and often the only party. Contact the Determinations Team at the Ministry of Business, Innovation and Employment, at the outset, if you are unsure whether there are other parties to the determination.
The notice to fix from the council says I have to take the cladding off my house because it doesn't have a ventilation cavity. What can I do?
If you disagree with the notice to fix issued by the council, you could apply for a determination to decide whether the notice to fix is correct.
Before you apply for a determination, fix any items listed on the notice that you agree do not comply with the Building Code, then apply for a determination about the remaining items in dispute.
The council says my building was built too long ago to get a code compliance certificate (CCC). What does the council mean?
When the council issues a CCC it is saying that the building will be durable for the times specified in the Building Code. The Building Code has different durability periods for different building elements, for example claddings have a 15-year durability period. The durability periods commence from the date the CCC is issued.
The problem arises when the council is asked to issue a CCC for a house that has been completed for a significant time. For example, a house was completed 10 years ago but the CCC has not been applied for until now. If the council agrees to issue the CCC it is saying the cladding will be durable for another 15 years when it has already been exposed to the elements for 10 years. If the council issues the CCC, it will, in effect, be guaranteeing a 25-year durability period for the cladding which the council is unlikely to be willing to do.
The matter can be referred to the Ministry for determination. A successful application may require the council to issue the CCC with a durability period that would start back when the building was completed so, in effect, the durability period is 15 years as required by the Building Code.
My house is leaking. I have been told I can either seek a determination or make a claim to the Weathertight Homes Resolution Service. Which approach should I use?
If you know that your house has suffered damage from water leaks, the WHRS can provide a means of assessing the damage and providing mediation and adjudication services to resolve who is liable for the damage and who should contribute to the cost of having the damage fixed.
If you know that your house is leaking and you would like to know how to fix it, you should enlist the services of an expert, for example, an architect or a building surveyor. A determination will not help, as you already know your house does not comply with the Building Code because it is leaking.
A determination will generally only provide a decision about whether the cladding complies with the Building Code. A determination cannot decide liability, nor is there a general provision for costs to be reimbursed to any party unless a party causes unreasonable costs or delays.
Is my house classed as a 'leaky building'?
Any building may leak as a result of construction faults, but buildings thought to be most at risk from water entering are those with so-called ‘monolithic’ claddings - these are typically claddings forming a continuous seamless surface fixed to timber-framed walls. The claddings typically include solid cement plaster with a paint finish, and flat cellulose or polystyrene sheet finished with a textured coating.
Features that may adversely affect the level of risk from leaks include the absence of roof overhangs (eaves), the presence of balconies with solid balustrades, a mix of different claddings and the use of complex building shapes.
If you believe your house to be at risk, engage the services of a building expert, such as a building surveyor, to carry out an assessment.
Can I apply for a determination by the Ministry if I have already applied to the WHRS?
Yes, you can apply to the Ministry of Business, Innovation and Employment for a determination at any time. However, an application for determination may impact on the processing of your WHRS claim. In particular, if your WHRS claim is either going to adjudication or is currently in the process of adjudication, the adjudication cannot commence or continue until after the determination has been issued.
Do I need to hire a lawyer or a technical expert to help me with my application?
No. You don't have to engage a technical expert or a lawyer, but you can choose to engage such experts to represent your interests if you wish. This would be at your own cost.
The Ministry's staff will provide you with general guidance on the determination process.
How formal is a hearing? Do I need to have legal representation?
A hearing is semi-formal and is chiefly an opportunity for each of the parties to be heard and to respond to statements made by another party. Written material can be submitted at a hearing but we ask that any significant amounts of information be supplied before the hearing so that the other parties will have time to consider it and be able to respond at the hearing.
Legal representation is not necessary, although you can bring legal counsel if you wish.
Can my application be processed urgently?
No. The Building Act 2004 states that a determination should be made within 60 working days after an application is received.
While we make every effort to make the determinations process as efficient as possible, the Ministry cannot cut corners. In all cases we must follow due process, because:
- determinations are a quasi-judicial process
- we must follow the requirements of the Building Act
- determinations decisions can be appealed to the courts.
Are costs able to be reimbursed to the successful party?
Not normally. However, costs might be awarded against a party if it was felt that the party had caused costs to increase or unreasonably caused delays.
Who do I need to send copies of my application to?
You should prepare a minimum of four copies of your application (Forms D1 and D2, plus the supporting documents). Note you should only complete part one of Form D2.
Send 3 copies to the Determinations team at the Ministry of Business, Innovation and Employment.
Send 1 copy to the council (it is almost always a party to a determination). The council will acknowledge the application by completing the remaining sections of Form D2 and sending it to the Determinations team.
Do exactly the same if there are any other parties - send them a copy of the forms plus the supporting documents.
The application may be returned if you do not meet these requirements. It is important that all parties are given a copy of any correspondence sent to the Ministry of Business, Innovation and Employment in relation to the application.
What is the purpose of form D2 in the application?
Form D2 is used to confirm that the other parties to the determination know that a determination has been sought and that they have a copy of the application itself.
It is important that the application and any subsequent information and correspondence is copied to all the parties so they are kept fully informed and are able to respond to any statement or actions made by the other parties.
If you write to the Ministry about the determination, please ensure that it is also copied to the other parties.
Do I need to get the copies signed and certified by my solicitor?
No.