AT THE CROSSROADS: THE INTERSECTION BETWEEN THE BUILDING ACT
AND THE RESOURCE MANAGEMENT ACT
Ashley Cornor, Senior Associate, DLA Phillips Fox
Introduction
It has been a busy first term for the National-led government. The regulatory reform agenda
has extended into a number of complex areas, including both building control and resource
management. In the latter arena, National's commitment to have a bill amending the
Resource Management Act 1991 (RMA) before Parliament in its first 100 days in office was
answered by the 'Phase 1' RMA reforms that subsequently took effect as the Resource
Management (Streamlining and Simplifying) Amendment Act 2009.
'Phase 2' of the reforms is now in full swing, with the express intention of achieving least cost
delivery of good environmental outcomes. Ten focused workstreams have been developed to
facilitate this. In amongst them is a dedicated workstream - RMII B - which involves an express
evaluation of the interface between the RMA and the Building Act 2004 (BA04).
The purpose of this paper is to examine the supposed justifications for RMII B and to provide an
update as to progress of the reform package. It is structured in the following way:
Part 1
describes the current statutory environment and the essential characteristics of the
RMA and BA04 consenting regimes, as they apply to building work.
Part 2
identifies the perceived problems with the current statutory environment and
describes the reforms that propose to address it.
Part 3
examines the progress of the reforms to date.
Part 4
considers how the reforms might evolve from here, and what is on the horizon as far
as co-management of the RMA and BA04 regimes is concerned.
1
Status quo
Building projects in New Zealand are currently subject to both the RMA and the BA04: the two
regimes run in parallel. This applies regardless of whether a consent is required under either or
both pieces of legislation, although in practice the application of either is fairly muted where
consents are not required.
The overlap of the two statutes is usually justified on the basis that they serve quite different
functions. As Tipping J observed in Christchurch International Airport Limited v Christchurch
City Council [1997] NZRMA 145, 148 (HC):
Reduced to the simplest level relevant to the present case, the Building Act allows a
Council to control building work in the interests of ensuring the safety and integrity
of the structure, whereas the Resource Management Act allows the Council to
impose controls from the point of view of the activity to be carried out within the
structure and the effect of that activity on the environment and of the environment
on that activity.
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Put crudely, the distinction is one of concern with building performance (the BA04's domain) as
opposed to the impact of a building on the wider environment (the RMA's concern).
Before turning to look at the key features of both regimes, it is illustrative to quickly chart their
respective beginnings to see how this parallel regulatory approach has evolved.
Building controls in New Zealand
Building on hard lessons learned in various European fire or earthquake-related catastrophes,
New Zealand was a relatively early adopter of building controls following the execution of the
Treaty of Waitangi.
The Raupo Houses Ordinance of 1842 imposed a financial penalty on buildings constructed
wholly or in part of various flammable materials. Originally applicable in Auckland, the
Ordinance was subsequently brought into effect throughout New Zealand. It was soon to be
complemented by various region/area specific refinements, which imposed additional local
controls. Of these, the Dunedin Building Ordinance 1862 remained in force until 15 September
1993.1
These early ordinances shared a general concern with protecting built-up areas from mass
destruction in the event of fire or other types of disaster. It was not until the inception of the
Municipal Corporation Act 1876 that local government was given more general powers in
relation to building control matters. Under this statute and subsequent replacements, the
system of building bylaws that guided building control in New Zealand for most of the Twentieth
Century was developed. For example, under the Municipal Corporations Act 1954, local
authorities were empowered to make bylaws:2
Regulating and controlling the construction, alteration, and repair of buildings as
defined in the bylaws, including the design, construction, alteration, and repair of
buildings in relation to their resistance to earthquake shocks.
Council bylaw making powers found ultimate expression in the New Zealand Standard Model
Building Bylaw - NZS1900. They were supported in this period by the functions of numerous
other Government departments and statutory bodies (e.g. electrical supply authorities). The
resulting system involved the prescription of specific details for different construction techniques
and generally entailed the issue of a building permit, with separate plumbing and drainage
permits.
Concern expressed during the 1980s about complexity, inefficiency, stymying of innovation,
lack of consistency, and process-cost in the building control regime (sound familiar?) lead to a
move away from the prescriptive regional model to one based on a nationwide, standard,
performance-based building code. This concept was enshrined at the heart of the Building Act
1991 and still powers the BA04 today.
The key point arising is that throughout these sequential developments in building control, the
focus has largely been on the qualities and characteristics of the building (or building work)
1
Building Amendment Act 1993, section 24(1).
2
Municipal Corporations Act 1954, section 386(14).
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concerned. The approach is founded on a concern to ensure that buildings do not endanger
their occupants or pose a risk to buildings and people on other property.
Environmental controls in New Zealand
As in the building control sphere, New Zealand has a long history of regulating the
environmental consequences of the use of land and water resources. The pattern of local
control of these issues is evident again, with locally appointed boards and area-specific statutes
empowering controls on matters such as soil and water conservation and land drainage.
'Town planning' in any semblance of its modern form entered the scene with the Town Planning
Act 1926. That statute required borough councils representing a population of more than 1,000
people to develop town planning schemes, which were intended to allow the city or borough to
develop 'in such a way as will most effectively tend to promote its healthfulness, amenity,
convenience, and advancement'.3 Powers were provided to restrict the construction of
buildings that would be inconsistent with an approved town planning scheme. Property
occupiers were able to object to the provisions of a proposed town planning scheme to a
centralized Town-planning Board,4 establishing the expected right of public participation in
planning matters that remains characteristic of the RMA today.
Under this system, there was clearly some overlap between the broad purposes of town
planning schemes and the built environment. However, town planning schemes did not
descend into the detail of building construction or performance. Instead, they were concerned
with what modern planners would probably refer to as 'bulk and location' and 'urban design'
controls. The list of permissible considerations set out in the Schedule to the Town Planning
Act 1926 is illustrative:
Matters to be dealt with in Town and Extra-urban planning schemes
…
2.
Buildings, with particular reference to their position on allotment [sic] and
in relation to any road or street or to other buildings, their density,
character, height, harmony in design of facades.
The division of environmental controls in this way continued through to the late 1980s, with
successive iterations of each of the relevant statutes. However, as was the case in relation to
building control, concerns had been brewing about the efficiency and effectiveness of this
disparate approach to environmental matters. Spurred by a decade or so of new international
thinking about integrated management of environmental issues, the Labour Government of the
late 1980s introduced a bill to Parliament that would eventually become the RMA (passed into
law under the next National Government), with some matters divided off to be dealt with under
other legislation such as the Crown Minerals Act 1991 and, later, the Hazardous Substances
and New Organisms Act 1996 and the Fisheries Act 1996. The RMA is frequently heralded as
legislation that repealed 78 statutes and regulations, and amended numerous others, to provide
a single piece of legislation for the management of land, water, soil and air throughout New
Zealand.
3
Town Planning Act 1926, section 3(1).
4
Town Planning Act 1926, section 17(3).
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While the environmental controls referred to above varied in accordance with their particular
subject matter or geographic extent of application, they had a common characteristic: namely, a
general lack of concern about building performance, save to the extent that buildings had some
impact ('externalities' in planning jargon) on their surroundings.
The situation today: key features of the RMA and the BA04
The RMA came into force on 1 October 1991, closely followed by the Building Act 1991 on
1 July 1992. The BA04 repealed and substituted the Building Act 1991 for all effective
purposes from 31 March 2005.
The key features of each piece of legislation are compared (in very broad terms) in the table
that follows.
Key features
RMA
BA04
Fundamental concern
Promoting the sustainable
management of natural and
physical resources (i.e. land,
water, air, soil, minerals,
energy, plants and animals,
AND structures)
Regulating building work,
establishing a licensing regime
for building practitioners, and
setting performance standards
for buildings, for health and
safety reasons and to promote
sustainable development
National or local
Some national direction, with
most direct regulation through
regional and district/city plans
National building code, locally
administered
Consent requirements
'Permitted' may be carried out
as of right, other types of
activity require resource
consent
All building work must comply
with building code, but some
building work is exempt from
the need for a building consent
Who applies for consent
Anyone can apply for consent
for an activity on any land
'Owners' apply for consent
Public participation
In plan development and
selected resource consent
processes
No public participation
Right of appeal
Generally to Environment
Court, although an 'objection'
process also exists
To Chief Executive of the
Department of Building and
Housing, through the
determination process
The current system maintains the fundamental historical distinction between controlling the
impacts of structures on the wider environment (RMA) and performance of structures in and of
themselves (BA04). That said, overlaps can and do occur, as a further quote from Tipping J in
the Christchurch International Airport case illustrates:
For the purposes of granting building consents [the Building Act] prevails and
different territorial authorities cannot impose their own requirements on top of or in
substitution for the [building code]. If, however, the territorial authority is facing a
particular planning or resource management issue, whose appropriate solution lies
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in the imposition of a requirement going beyond the [building code], [the Building
Act] does not prevent that course. This will not give territorial authorities carte
blanche to supplement or depart from the building code, which is clearly intended,
within its proper compass, to have national application. The construction which I
prefer simply allows the building code to be exceeded when resource management
considerations justify such a departure.
Tipping J was referring to the situation where a local authority finds it necessary to impose
indirect controls on the performance of a building through a district plan or the resource consent
process. That requires an evaluative judgment on the part of the consent authority in each
case. However, there are other situations where links between the RMA and the BA04 are
express. These are identified below.
Express cross-references
The table that follows summarises the relatively limited number of express cross-references
between the RMA and the BA04.
References to the BA04 in the RMA
References to the RMA in the BA04
Section 10B
Section 10
Provides some protection for building work that
was the subject of a building consent issued at a
time when no resource consent was required for
the building work, but where the district plan is
subsequently changed to impose such a
requirement. An extension of the usual 'existing
use rights' concept.
Definition of 'allotment' refers back to subdivision
concepts arising from the RMA. Note that the
definition of allotment in this provision differs in
some important respects from that in section 218
of the RMA, which is a cause of some
administrative difficulty in the context of some
provisions of the BA04.
Section 68
Section 37
Allows rules in regional plans to provide for the
protection of 'other property' from the effects of
surface water, which require people undertaking
building work to achieve performance criteria
additional to, or more restrictive than, those
specified in the building code.
Provides for a territorial authority to tag a project
information memorandum with a certificate to the
effect that building work also needs to be the
subject of a resource consent, and that building
work cannot proceed until such a consent is
obtained.
Section 76
Section 116A
As above, but in relation to district rather than
regional plans.
Prevents a territorial authority from issuing a
certificate under section 224(f) of the RMA
unless it is satisfied that the building concerned
will comply to a stated degree with various
clauses of the building code (escape from fire,
disabled facilities/access, and protection of 'other
property') and that its performance in relation to
the other clauses of the building code will not be
any worse.
Section 224
Cross-reference to the need for compliance with
selected clauses of the building code where a
subdivision of an existing building (e.g. by way of
unit titling or a cross-lease) is proposed.
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What are the implications of all this?
For most people looking at carrying out building work, the main implication of the current
system is that more than one piece of paper may be required from the local council before work
can commence. Experience suggests that this is often a surprise for landowners, especially in
the context of domestic works where the proponent may have little or no experience of building
projects and consent processes. In addition, the range of ancillary requirements that are also
imposed under the likes of local authority bylaws can further create the impression of
bureaucratic overkill that sits behind the National Government's drive to reform the
environmental and building regulatory regimes.
For most projects that trigger both resource and building consent requirements, the usual
process resembles the following:
Conceptual
design
Resource
consent
application
Developed
design and
working
drawings
Building
consent
application
In part, this reflects the significant alterations to a project that can be made through the
resource consent process in response to the qualitative views expressed by councils and other
decision-makers and also in light of concessions made on account of public submissions.
There are logical and historical justifications for the stratified approach to these issues that is
characteristic of the current system. Many applicants are not required to come to grips with
those distinctions for the purposes of their proposed works, meaning that the spectre of multilimbed bureaucracy is often heightened and the lack of a sensible-seeming 'one stop shop'
loudly lamented. Whether this situation should be, or even can be, addressed is one of the
most significant questions for this aspect of the RMA and BA04 reforms.
2
Genesis and aim of the reforms
Consultation initiated by the Government as part of the development of the Phase 2 RMA
reforms resulted in some commentary on the integration (or lack thereof) between the RMA and
the BA04.
Key concerns that were identified include:5
•
consistency of standards and definitions applying to the RMA and the BA04;
•
consistency of conditions applied to building and resource consents;
•
risk-averse culture and practice of local authorities relating to potential liability for
claims under the BA04 and costs under the RMA;
5
Hon Dr Nick Smith, Minister for the Environment, report to the Cabinet Economic Growth and
Infrastructure Committee, 'Progress on Phase Two of the Resource Management Reforms' (2009),
available at http://www.mfe.govt.nz/cabinet-papers/progress-phase-two-resource-managementreforms.html (last accessed 12 July 2011).
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•
inconsistency of district plan controls on residential activities;
•
inability for minor RMA technical compliance issues to be addressed as part of the
building consent process;
•
lack of links between permitted activities under the RMA and building consent
exemptions under the BA04;
•
lack of public understanding of the difference between resource consents and
building consents.
Discussions with Ministry for the Environment (MFE) staff indicate that work is currently being
carried out to evaluate these issues and to determine where the problems actually lie. While
the official view is pending, anecdotal experience suggests that the significant themes emerging
are:
1
inconsistency (i.e. between statutes and also with regard to the way each statute is
interpreted and applied in different parts of the country);
2
a perception of unnecessary duplication;
3
unresponsiveness of one statutory regime to the other;
4
lack of public understanding of the parallel building and resource consent processes.
The RMII B workstream has been set up to respond to these concerns in three particular ways.
•
First, it will identify ways to align and streamline processes for approving resource
and building consents where both are required for a building. It is specifically
envisaged that this could extend to joint (or at least aligned) processes for a defined
range of building work.
•
Second, the workstream will look for opportunities to improve consistency between
the RMA and the BA04.
•
Third, it will seek ways of improving public understanding of both statutory regimes
and how they interoperate.
This aligns with some of the objectives of the DBH's BA04 reform workstreams. In particular,
one of the papers prepared by Hon Maurice Williamson, the Minister of Building and
Construction, has identified the following characteristic as one of the necessary facets of an
efficient, productive and accountable building sector:6
Seamless integration with resource management and local planning, and other
related activities.
There is no direct discussion in the Minister's paper as to how this might be achieved.
6
Hon Maurice Williamson, Minister of Building and Construction, Cabinet paper, 'Building Act
Review 5: Delivering building regulation' (2010), available at
http://www.dbh.govt.nz/UserFiles/File/Building/Building%20law%20and%20compliance/Paper-5Delivering-bilding-regulation.pdf (last accessed 13 July 2011), at paragraph 4.
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It is now time to examine how far the reforms have come since the RMII B programme was
announced in 2009.
3
Progress of the reforms
Discussions with MFE and DBH staff indicate that the RMII B reforms are being divided
between the two entities. For the MFE's part, efforts are currently directed towards clearly
identifying the problems with the current system and formulating different options to address
them. At this stage, the level of the work is described as 'developmental'. It is understood that
MFE staff hope to report back to the Minister with options in early 2012, with decisions to follow
about the nature and scope of any industry/community consultation on the proposals.
In May of this year, the Minister for the Environment reported back to the Cabinet Business
Committee as to general progress with the Phase 2 RMA reforms. This included an indication
as to progress with RMII B. In that regard, the Minister's report states:7
Work stream
RMII B
Description
Alignment of consenting
processes under the RMA and
the Building Act 2004
Progress to date
Initial proposals have been
taken forward under the
Building Act reforms
With respect, it is difficult to see how any reconciliation of RMA and BA04 processes has been
manifested through the BA04 reforms revealed to the public to date. Certainly, the Building
Amendment Bill (No 3) (253-2) that was reported back from the Local Government and
Environment Select Committee on 28 June 2011 does little to expressly or implicitly align RMA
and BA04 processes, considerations, or spheres of control.
As at the time of drafting this paper, further inquiries are being made with the DBH to determine
whether there are RMA-related reforms proposed as part of the further BA04 amendments that
are likely to be publicised before the end of 2011. To date, nothing has been publicly revealed
about progress toward the three targets of the RMAII B workstream that are discussed above.
4
Where to from here?
The ultimate aspirational outcome of a RMA/BA04 alignment process is arguably a single, onestop shop consent that covers both pieces of legislation. However, the variances in focus and
feature that currently characterise the two regimes impose a significant practical divide that
makes such a prospect untenable at the moment. In particular, reconciling the flexibility of
outcome inherent in the RMA process with the demands for detailed, certain design called for
under the BA04 looms as a challenge. It is also important not to lose sight of the fact/problem
that both statutes provide a range of tools other than resource/building consents to authorise
activities or buildings. Examples include the designation process under the RMA and the
certificate of acceptance under the BA04. The implications of a unified consenting approach for
these mechanisms would also require careful examination.
7
Above n 5, at paragraph 18.
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To bridge that divide, fundamental changes will be required in the operation of both regimes.
Alternatively, if the proposition were to simply bolt both pieces of legislation together resulting in
a single drawn out process with a single piece of paper at the end, significant changes in
industry and project management practices would arguably be required. Most likely, it would
take elements of both.
The aspirational target of a unified consent should also not be taken as a given. Serious
questions must be asked about whether the concerns identified as part of the Phase 2 RMA
reforms are real and systemic, or merely perceived and anecdotal. Do they stem from interface
difficulties between the RMA and BA04 regimes, or are they in fact symptoms of one or the
other not performing efficiently? Will the apparent push for increased regionalisation of both
environmental and building control administration mitigate the problems in any event? These
are some of the challenging issues that it appears the MFE and the DBH are currently grappling
with.
That said, there are some areas where less wholesale change is perhaps both feasible and
desirable. Candidates include:
•
Closer alignment of permitted activities under the RMA (through the use of national
environmental standards, to provide centralised direction to local authorities) and
building work that is exempt from consent requirements under Schedule 1 of the
BA04.
•
The potential for close alignment between some of new building consent categories
proposed as part of the current reforms (e.g. the low-risk building consent) and
existing types of RMA consent (e.g. controlled or restricted discretionary consents).
•
The possibility that the two regimes might be more responsive to one another: for
example, a minor variation approved as part of a building consent process could also
include consideration and (if appropriate) approval of an amendment to the related
resource consent, removing the difficulty of changes desirable under one regime
being blocked by the difficulties associated with amending consents under the other.
•
Reconciliation of minor discrepancies between the two statutes, such as their slightly
different definitions of 'allotment', that simply cause administrative difficulties for
consent authorities.
There will also always be scope for local authorities to improve the customer service experience
they offer. The biggest challenge in this regard is to generate a feeling that people are dealing
with a single entity, rather than disparate departments administering separate regimes with little
effective communication between them. No legislative reforms are required for improvements
in this regard.
It will be interesting to observe as elements of the RMII B workstream find expression in the
BA04 reform process. For the time being, it is simply a case of 'watch this space'.
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