Building Warrants of Fitness: The Importance of Being Compliant

Tuesday January 21, 2014

Despite the title, a warrant is not an independent build inspection or assessment of quality per se from a general or structural perspective (although those factors may still always be considered by Council under general powers, as well as be relevant to a tenancy relations). The particular scope of the building warrant is the performance of a building against its relevant 'Compliance Schedule'.

A Compliance Schedule in broad terms is a list and record of all "operative" systems within a building.  A "system" is defined by the Building Act as something that is:

  • Contained in a building;
  • Contributes to the proper functioning of the building; and
  • Declared by order in Council (regulations) to be such a specified system for the purposes of the Act.

The relevant regulations are those contained in the Building (Specified Systems, Change of Use, and Earthquake prone buildings) Regulations 2005.  In summary, they relate to matters of fire safety, automated doors and lifts, escape routes, airconditioning and other warning systems. In broad terms, anything of a functional nature (and particularly should it have safety implications).

The critical thing for any building is the "Compliance Schedule" which is first created at the time of the issue of Code Compliance Certificate for the building. During the life of the building this schedule may be amended upon the basis of recommendations from a licensed building practitioner (who in every year needs to attach comments and recommendations around the systems in that building), at the request of a building owner, or if a further building consent is issued in relation to the building (whereby the schedule will be reviewed in full).

In terms of the determination of a "system" under the regulations, certainly to any extent an owner feels that the Council has either devised an inappropriate schedule or extended it to matters which are not relevant 'systems', the owner may address it with the Council Building Services Department and seek some better assurance of the basis of what they have determined. 

A local authority does have the legal right to charge a fee for issuing Compliance Schedule, but as normal and with any public decision-making this has to be part of a reasonable and principled scheme that treats parties fairly and transparently. Any territorial authority should be happy to provide the detail of the structure. It is a cost to bear in mind when completing and undertaking any building work. 

Once a building has a Compliance Schedule, the owner must on each anniversary of its issue provide information allow the warrant to remain current. The yearly filing needs to attach specific certificates by an "Independently Qualified Person" or "Licensed Building Practitioner" for each specified system in the Compliance Schedule, (along with any recommendations of those appropriate persons for any suggested amendments to the Compliance Schedule). The statement of compliance by any relevant IQP or LBP needs to be provided on a standard form as provided by the regulations. 

It is also available to a territorial authority to independently audit a building that has provided a building warrant of fitness to ensure integrity of the system.  Particularly where a Compliance Schedule has not been updated for an extended period of time.

The overarching premise of the regime is an on going level of safety. The Building Warrant programme is just one part of that wider function of Council in Building matters.

Council as expected does have enforcement powers in relation to non-compliant premises.  Accordingly it is very important that when either commercially building or leasing, either as a landlord or as a tenant, that as part of the general diligence process due consideration is given to the warrant of fitness. 

It is effectively an external party in local Council imposing itself on the lease relationship around maintenance and outgoings and potentially extending to fundamental principles of use / public access and impinging on the relationship by either restrictions on access or compulsory building work. 

To have any such issues eventuate post a binding lease is less than ideal. The key as always is a robust and thorough process prior to get the often long term relationship of a lease off on the right foot.

Overall Building Warrants are simply another point to consider when entering into a lease or taking on an assignment. Council Building Services Departments are always useful on these matters and information on the Department of Building and Housing website gives an overview of the scheme generally. Of course however it is also remains something to discuss with your professional advisors as part of that wider diligence review any time a lease is being entered into or taken over.

By Tim Neill, Senior Solicitor, Holland Beckett

This article was published in Associated News January 2014 Issue 38 

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