Code Compliance Certificates
The following is important information relating to the issuance of a Code Compliance Certificate (CCC)
How a CCC is issued
- A CCC must be issued as the ‘successful conclusion’ of an ‘open’ Building Consent. No open Building Consent, No CCC.
- A building consent authority (council) must issue a CCC if it is satisfied, on reasonable grounds that the building work complies with the Building Consent (s94a NZBC 2004) – and therefore complies with the Building Act and the relevant Building Code (NZBC).
- The Council is typically the only organisation that can issue a CCC for a property inside its territory. Therefore approach council to request a CCC. If it is not them they can direct you to the proper organisation.
- The onus of proof is on the owner. It is the owner’s responsibility to satisfy the Building Certifier that the building complies on Reasonable Grounds. Therefore the driving force behind the path to establishing compliance must come from the owner or their agent working on behalf of them.
- There are limitations to what the Council can ask for. The council cannot stipulate a required process. For example it is illegal for Council to require a building is reclad before a CCC is issued. Put another way there are limitations which the owner is required to comply.
- It is the responsibility of the owner to ensure all building work complies with the building code to the extent required by the Building Act (s17 BA 2004).
- However, a person who carries out any building work is not required by this Act to—
(a) achieve performance criteria that are additional to, or more restrictive than, the performance criteria prescribed in the building code in relation to that building work (note: for example install a 20mm cavity behind the cladding); or
(b) take any action in respect of that building work if it complies with the building code (s18 BA 2004). Therefore for items where the minimum functional requirements of the building code have been met, the owner has no obligation to carry out works – such as the installation of a 20mm battened cavity system behind a face-fixed cladding system.
- If in the owner’s mind, the council is acting inappropriately or is demanding more than is legally required of the owner in the process of gaining the CCC, this disagreement can be brought to the DBH to rule over the dispute in a binding Determination.
How to show a building is compliant
There are two ways to show compliance with the Building Act (and therefore the Building Code) on reasonable grounds:
- Alternative Solution Method – Meeting the Performance Requirements of the NZ Building Code (under the relevant clauses). When you show that you meet these then the building proves that it complies.There are 35 clauses of the building code in which all the building must comply. The most relevant ones in weathertightness disputes are typically E2 (external moisture), B1 (structure) and B2 (durability).
- Acceptable Solution Method – Meeting construction requirements of relative Acceptable Solution drawings. Compliance is via strict adherence to Acceptable Solutions E2/AS1, B1/AS1 and B2/AS1 (eg the acceptable solution for E2 is called E2/AS1). These are a mixture of standards and drawings. If a section of a building is built or managed in accordance with the Acceptable Solution it is ‘deemed to comply’. This is the most common method of proving compliance for new buildings. For existing buildings, it is very difficult to show that you comply under method (b) exclusively – especially if the E2/AS1 documents you used for construction are no longer current.
What is a Notice to Fix?
A Notice to Fix is a legal document issued by a BCA (Council) to the owner of the building they are contravening or failing to comply with the Building Act or the regulations (s164(1)a) for example the building does not meet the building code. Since it is the responsibility of the owner to ensure all building work must comply with the building code to the extent required by the Building Act (s17 BA 2004) as a result of the Notice to Fix the owner must either:
- Show the building meets the requirements of the Buidling Act; OR
- Maintain or alter the building so it meets the requirements of the Building Act.
A Determination is designed to resolve a dispute between two parties, usually the owner and council, usually formed as a question. The typical question to be resolved is ‘Does the Building Comply with E2, B1 and/or B2 of the Building Code?’ and covers either the whole or part of the house (depending on the dispute). The correct formation of this question is paramount. The Determinations Manager (currently John Gardiner) will give judgment on the dispute presented on behalf of the Chief Executive of the DBH.
In making their judgement, among other things the Determinations Manager generally considers the following evidence:
- Evidence produced and presented by owner
- Evidence produced and presented by council/li>
- Evidence collected by an independent expert on behalf of the DBH at no cost to the owner/li>
- Relevant correspondence between the two parties forwarded.
The Determination’s judgment is based on two main concepts weighed against each other
- Contributory Factors These are factors that are contributing to the position typically adopted by the Council (to not issue the CCC).
- Compensatory Factors These are factors that are compensating for the typical position adopted by the Council (to not issue the CCC) and are weighing in favour of the owners’ position (that the CCC must be issued).
Common contributory and compensatory factors are listed in the table below.
|E2 (External Moisture)
||E2 (External Moisture)
|B2 (Durability) for E2
||B2 (Durability) for E2
A discussion regarding the weighting given to each of the evidence bases listed above can be found in the MDC Policy Document available on the MDC website Resources page.
Strategy of an owner
The general strategy of an owner in attempting to gain CCC is to:
- Eliminate, minimise and/or mitigate any contributory factors present.
- Introduce, strengthen and/or emphasise all compensatory factors present.
Common strategic methods employed by the owner are shown in the table below
Eliminate, minimise, mitigate Contributory Factors
Introduce, strengthen, emphasise Compensatory Factors
|E2 (External Moisture)
||E2 (External Moisture)
|B2 (Durability) for E2
||B2 (Durability) for E2|
Owners sometimes employ a Building Expert to aide them in any or all of the following:
- Identifying, eliminating, reducing and mitigating contributory factors
- Identifying, introducing, strengthening and emphasising compensatory factors
- Manage relationship with council paperwork including consents and correspondence
- Manage relationship with DBH including Determination
- Project Manager/Director of building work
What must be shown in a Determination
The owner must show that ALL areas of the building meet performance requirements on reasonable grounds. How this is achieved is discussed in the MDC Policy Document available on the MDC website Resources page. The council must conversely detail and show that only SOME or ALL areas of the building do not comply on reasonable grounds – either by:
- Proving on reasonable grounds a system does not meet the performance requirements, OR /li>
- Showing there is lack of reasonable grounds in which to award a CCC.
The Determination will either rule in favour of the Council’s position (to deny CCC), in favour of the Owners’ position (to issue CCC) or require more investigation/consultation. If the Determination finds in favour of the owner, the DBH demands the council issue CCC and council is bound by the Determination to issue CCC to the owner. Determinations are Compliance Documents in accordance with s191(c) (NZ Building Act 2004). If the Determination finds in favour of the council, the CCC is not requested to be issued and the Determination recommends a general path forward for the owner – but does not include specific building works recommendations. If an owner is unsuccessful in Determination they are advised to prepare a robust technical proposal and submit that to council for either amendment to consent or as a new consent followed by remedial works and evidential collection. After works are completed, the owner can reapply for a second Determination. There is no limit to the number of Determinations they can apply for.
This section is not intended to replace legal counsel or the advice of a Building Surveyor.