Determinatin 2018/015 Regarding a ntice t fix and the refusal t issue a certificate f acceptance fr alteratins t a huse at 34 White Swan Rad, Munt Rskill, Auckland Summary This determinatin cnsiders whether the authrity was crrect t issue a ntice t fix in regard t uncnsented building wrk and a change f use frm a sleeping single hme t sleeping accmmdatin. The determinatin als cnsiders the authrity s decisin regarding the certificate f acceptance fr the uncnsented building wrk. Cntents 1. The matter t be determined... 2 2. The building wrk and backgrund... 3 2.2 The existing huse prir t 2012... 3 2.3 The 2012 building cnsent applicatin... 3 Figure 1: Existing huse prir t the 2012 cnsent... 4 Figure 2: The cnsent drawings at August 2013... 5 2.4 Cnsent Amendments B and D... 6 2.5 Cnstructin... 7 2.6 The 2017 prpsed resurce cnsent... 7 Figure 3: The fur prpsed separate units at 15 June 2017... 8 2.7 The abatement ntice... 9 2.8 The ntice t fix... 9 2.9 Certificate f acceptance... 10 3. The submissins... 10 3.1 The applicant s submissin... 10 3.2 The authrity s submissin... 11 4. The hearing and site visit... 13 4.1 The hearing... 13 4.2 The site visit... 14 5. Discussin... 14 5.2 Change f use... 15 Table 1: Use categries defined in Schedule 2 f the Regulatins... 16 5.3 Classified use... 20 Table 2: Classified uses defined in Clause A1 f the Building Cde... 21 5.5 Ntice t fix... 25 5.6 Certificate f acceptance... 25 6. The decisin... 27 Appendix A... 28 A.1 Relevant sectins f the Act... 28 A.2 Relevant clauses f the Building Cde... 29 A.3 Relevant clauses f the Building Regulatins... 30 15 Stut Street, Wellingtn 6011 w: www.building.gvt.nz Tel: +64 4 901-1499 PO Bx 1473, Wellingtn 6140, New Zealand
Appendix B... 31 B.1 As-built and 2016 cnsented flr plans... 31 1. The matter t be determined 1.1 This is a determinatin under Part 3 Subpart 1 f the Building Act 2004 1 ( the Act ) made under due authrisatin by me, Katie Grdn, Manager Determinatins, Ministry f Business, ( the Ministry ), fr and n behalf f the Chief Executive f the Ministry. 1.2 The parties t the determinatin are: the wner f the huse, Jayashree Limited ( the applicant ) Auckland Cuncil ( the authrity ), carrying ut its duties as a territrial authrity r building cnsent authrity. 1.3 The applicatin fr this determinatin arises frm the fllwing: Alteratins t an existing building, cmmencing in 2015. Befre cnstructin cmmenced, an amendment t the cnsent ( Amendment B ) was issued. The amendment was subject t a cnditin the altered huse wuld be a single husehld unit fr the purpse f the Act, and an encumbrance t that effect was registered n the prperty title in August 2015. During cnstructin a series f cnsent amendments were applied fr and apprved; tw f these included significant changes t the size and internal layut f the huse. Alteratins t the existing huse were carried ut intermittently frm late 2015. When the alteratins were substantially cmplete in June 2017, the applicant applied fr resurce cnsent t divide the altered huse int a 4-unit develpment, thrugh the cnstructin f additinal internal walls. Resurce cnsent was refused. The authrity subsequently issued an abatement ntice under the Resurce Management Act ( the RMA ) in August 2017 fr the peratin f a barding huse which was in breach f the District Plan. On 26 September 2017 the authrity issued a ntice t fix fr: building wrk carried ut withut building cnsent; building wrk nt in cmpliance with the Building Cde (First Schedule, Building Regulatins 1992); and a change f use withut written apprval frm the authrity. The applicant applied fr a certificate f acceptance fr the building wrk carried ut withut building cnsent, but the authrity refused t issue the certificate. 1.4 This determinatin arises frm the decisins f the authrity t issue the ntice t fix and t refuse t issue the certificate f acceptance. The authrity cnsidered the building had undergne a change f use under the Building (Specified Systems, Change the Use, and Earthquake-prne Buildings) Regulatins 2005 ( the Regulatins ) frm a Sleeping Single Hme (SH) t Sleeping Residential (SR), which resulted in the building having inadequate fire separatins and fire resistance rated materials between varius areas fr its new use. 1 The Building Act, Building Cde, cmpliance dcuments, past determinatins and guidance dcuments issued by the Ministry are all available at www.building.gvt.nz r by cntacting the Ministry n 0800 242 243. Ministry f Business, 2 20 April 2018
1.5 The matters t be determined 2 are therefre the authrity s exercise f its pwers f decisin in issuing ntice t fix N. NOT21367031 and in refusing t issue the certificate f acceptance. In making my decisin, I have cnsidered the submissins f the parties and the ther evidence in this matter. 1.6 In this determinatin, unless therwise stated, references t sectins are t sectins f the Act and references t clauses are t clauses f the Building Cde. Relevant sectins f the Act and clauses f the Building Cde are set ut in Appendix A. 1.7 There are references in this determinatin t matters that relate t the Resurce Management Act 1991 ( the RMA ) and the Residential Tenancies Act 1986 ( the RTA ). While issues relating t thse legislatins are utside the ambit f this determinatin the references have been included t prvide cntext t the cntraventins described in the ntice t fix. 2. The building wrk and backgrund 2.1 The building is situated n a slping site with access frm the street via a shared driveway n the suthwest bundary as shwn in Figure 1 (ver page). The site slpes gently frm the frnt bundary dwn tward the sutheast, with a steep bank alng the rear bundary. 2.2 The existing huse prir t 2012 2.2.1 The riginal three bedrm huse was built n a large site during the 1960 s, with a partial basement level garage and strage areas. Cnstructin appears t have been traditinal light timber frame with in-situ cncrete fundatins and basement walls, brick veneer cladding, a timber framed flr and a gable rf. 2.2.2 A small lean-t garage was added t the sutheast wall in 1968. Other unrecrded minr alteratins were apparently carried ut ver the next 15 years that included varius interir alteratins. In 1983, a partial upper level was added t prvide a rumpus rm; that wrk was carried ut under a building permit. 2.2.3 After the site was subdivided in 2002, the frmer wners purchased the prperty in Octber 2002 and a building cnsent (N. 46501) was issued n 14 January 2004 fr a minr additin t existing building. Varius changes were made either during r fllwing these alteratins withut apprval (see paragraph 2.3.3). 2.3 The 2012 building cnsent applicatin 2.3.1 The applicant purchased the prperty in July 2012 and applied fr a building cnsent in December 2012 fr Alteratins and additins t cnvert existing dwelling int tw units, ne new strmwater t stream. 2 Under sectins 177(1)(b), 177(2)(f) and 177(3)(b) f the Act. Ministry f Business, 3 20 April 2018
Figure 1: Existing huse prir t the 2012 cnsent R.O.W t White Swan Rad driveway bundary Lt 1 DP212178 Level 1 basement 2004 cnsent (46501) t divide int garage, study and strerm. As-built: living rm, kitchen, bedrm and bathrm, with stre in sub-flr space Level 2 deck Level 3 deck Level 2: Original huse living rm, kitchen, 3 bedrms, bathrm Basement shaded (steep slpe dwn) bundary Pre-2012 site plan sketch (nt t scale) Lt 2 Level 3 rumpus rm added in 1983 2004 cnsent (46501) t divide int 2 bedrms. As-built: 1 bedrm and bathrm (steep slpe dwn) Level 1 single-strey lean-t garage added in 1968 Rf extended as veranda prir t 2012 2.3.2 As shwn in Figure 1, at the time building cnsent B/2012/7929 ( the 2012 building cnsent ) was applied fr in 2012, the existing huse prvided: Level 1 (the basement): a living rm and kitchen ne bedrm, bathrm and laundry a strage area in the east subflr area the single-strey lean-t garage stairs up t the grund flr. Level 2 (the grund flr): the riginal living rm and kitchen t the suthwest the three riginal bedrms t the nrtheast the riginal bathrm and tilet t the suthwest stairs frm the basement and up t the upper level a deck t the nrthwest Level 3 (the upper flr): ne bedrm ensuite bathrm and strerm a deck t the nrthwest. 2.3.3 In a request fr further infrmatin n 3 January 2013, the authrity referred t the plans f the existing huse differing frm the existing apprved plans under 1983 & 2004 cnsents. Ministry f Business, 4 20 April 2018
2.3.4 On 24 January 2013, the authrity s planner nted that the prpsed develpment as designed, appears t be capable f perating as fur self-cntained dwelling units [my emphasis] and the plans therefre required amendment r an applicatin fr resurce cnsent. The planner advised that wrk may nt prceed because a sectin 37 ntice had been placed n the building cnsent (refer Appendix A.1). 2.3.5 The authrity wrte t the applicant n 12 June 2013, advising that under the RMA it cnsidered the building wrk cnstituted multiple residential units. S, the sectin 37 certificate that had been placed upn the building cnsent applicatin wuld nt be remved until substantial changes are made t the layut and design f the building, r a resurce cnsent was issued t cnvert the huse fr use as a multiunit dwelling. 2.3.6 The applicant engaged a planning cnsultant ( the first planner ), wh respnded t the abve n 3 July 2013. The planner nted the applicant accepted the building and site are perated as tw units. 2.3.7 A revised site plan was apprved by the authrity n 11 July 2013 the sectin 37 ntice was remved and the authrity issued building cnsent n. 2012/7929 t the applicant n 15 August 2013 fr Alteratins and additins t cnvert existing dwelling int tw units, ne new strmwater t stream. Figure 2: The cnsent drawings at August 2013 2-strey additin Rf extensin 2-streys 1-strey 3-streys Unit 1: Level 1 Basement subflr strage area cnverted int new bedrm Unit 1: Level 1 Basement riginal garage cnverted int bedrm and bathrm Unit 2: Level 3 Bedrm added Unit 2: Level 2 Rumpus rm added belw Unit 1/Unit 2: Level 1/Level 2 stairs remved Original cnsent (BC 7929) Apprved building wrk (nt t scale) Unit 2: Level 2 Laundry added Unit 1: Level 1 Basement veranda infilled with bedrm and rumpus rm, lean-t rf replaced 1-strey Level 1 basement (shaded) Husehld Unit 1: Level 1 Kitchen/dining, 4 bedrms, 2 bathrms, rumpus rm, laundry Husehld Unit 2: Levels 2/3 Kitchen/dining, 5 bedrms, 2 bathrms, rumpus rm, laundry 2.3.8 As shwn in the sketch in Figure 2, the 2012 building cnsent included demlitin f the Level 1/Level 2 staircase, with: Level 1: Husehld Unit 1: cnversin f a sub-flr stre int a new bedrm cnversin f the lean-t garage int a new bedrm and bathrm the veranda enclsed t prvide a new bedrm and rumpus rm. Level 2/Level 3: Husehld Unit 2: a single-strey extensin t prvide a new laundry t the nrth crner Ministry f Business, 5 20 April 2018
replacement f the nrthwest decks with a new 2-strey high additin t prvide a new Level 1 rumpus rm and new Level 2 bedrm an extensin t the Level 2 bathrm. 2.3.9 N wrk was carried ut during the next 12 mnths. On 29 July 2014 the authrity granted an extensin f time t cmmence building wrk ; hwever, the authrity warned any further extensins are unlikely t be cnsidered and nted that wrk must cmmence by 15 August 2015 r the cnsent will be lapsed. 2.4 Cnsent Amendments B and D 3 2.4.1 The authrity received an applicatin fr an amendment t the cnsent n 22 May 2015 (n. 2012/7929/B) fr Amendment Add new decks, revise internal layuts. 2.4.2 In a letter t the applicant dated 9 July 2015, the authrity attached a sectin 37 certificate, which required a resurce cnsent due t the internal layut and the number f bedrms prpsed. The authrity advised the prpsal did nt cmply with the District Plan requirements in that it appeared t create a barding huse/hstel. 2.4.3 Fllwing a meeting and email crrespndence, it was agreed by the applicant and the authrity the building cnsent applicatin culd prceed subject t an encumbrance n the prperty s title, and the building cnsent wuld include a cnditin that the altered huse wuld be a single husehld unit. The prperty s title subsequently registered the fllwing interest Encumbrance t Auckland Cuncil 18.8.2015 at 1:13pm. 2.4.4 On 21 July 2015 the authrity issued building cnsent amendment 2012/7929/B. The amended building cnsent included the fllwing cnditin: as a cnditin f granting this cnsent, the specified alltments (Lt DP 212178) must nly be used as a single residential dwelling and by a single husehld. 2.4.5 A subsequent amendment was apprved and anther cnsent amendment (n. 2012/7929/D) was issued n 16 May 2016 fr Amendment Internal revisins, extensin t basement, re-rf. 2.4.6 The drawings fr Amendment B and Amendment D were stamped with Apprved as a Single Residential Unit Only and tgether cvered the wrk indicated in Appendix B. The apprved plans included tw living areas, ne kitchen, eleven bedrms and seven bathrms. 2.4.7 The apprved building wrk included reinstatement f the Level 1/Level 2 stairs tgether with the fllwing significant changes: Level 1 (the basement): an extensin t the nrth crner bedrm the east rumpus rm named as a bedrm the laundry changed t an ensuite bathrm a new expanded kitchen installed with an adjining separate tilet. 3 Amendments t the cnsent A, C, F and G were rejected by the authrity. Amendments E and H were sught and granted in relatin t small alteratins that did nt substantially affect the layut. Ministry f Business, 6 20 April 2018
Level 2 (the grund flr): the stairs landing in the riginal hallway, with: the riginal kitchen changed t a living area the nrthwest rumpus rm changed t a bedrm a new rf deck alng the sutheast elevatin. Level 3 (the upper flr): the stairwell landing in the riginal hallway, with: 2.5 Cnstructin a new large rf deck t the nrth crner. 2.5.1 Cnstructin cmmenced in late 2015, and the authrity recrded the fllwing inspectins: slab, fundatins and cncrete blckwrk in Nvember and December 2015 cavity wrap inspectins in March and June 2016 preline and plumbing inspectins frm July t August 2016 pstline inspectins in August and September 2016 preline and plumbing inspectins in December 2016 and March 2017 fire-rated lining inspectins in March 2017. 2.5.2 The 16 March 2017 inspectin recrd fr fire-rated linings nted: 1. SCOPE - Scpe: Partial Inspectin 2. FIRE - PS3 frm system installer: T be prvided at the next inspectin 3. FIRE - Site bservatin frm Engineer: T be prvided at the next inspectin 2.5.3 The inspectin 4 n 31 March 2017 failed, with the recrd nting that installatin f basement fire-rated linings was nt in accrdance with the cnsented plans. Accrding t the authrity, the cnsented plans called fr 1x16mm fire-rated plasterbard t the basement ceiling with a specific fixing pattern that had nt been fllwed. Instead tw layers f 13mm fire-rated plasterbard had been installed, with sme areas missing the secnd layer. 2.5.4 A site meeting recrd n 6 April 2017 nted: Fire reprt required, Penetratin schedule required. As discussed with wner wrks can prceed when he is in receipt f the Fire Engineers reprt and site bservatins. The Fire Engineer must be apprved by the [authrity s] Register. 2.6 The 2017 prpsed resurce cnsent 2.6.1 In the meantime, the applicant s designer prepared plans fr subdividing the huse int fur separate units as shwn in Figure 3 (ver page). On 20 June 2017 the applicant s design and planning cnsultants ( the cnsultants ) submitted an applicatin fr resurce cnsent fr the fur dwelling units. The applicatin included drawings dated 15 June 2017 and an Infrastructure Assessment Reprt dated 12 June 2017. 4 The Pstline r fire rated linings inspectin. Ministry f Business, 7 20 April 2018
Figure 3: The fur prpsed separate units at 15 June 2017 Fire rated walls B1 G1 Level 3 F1 Fire rated walls B2 Level 1 Husehld Unit B1: Level 1 Kitchen/dining, 2 bedrms, 1 bathrm, deck Husehld Unit B2: Level 1 Kitchen, Lunge, 2 bedrms, 2 bathrms, tilet, deck Fence between new timber decks Husehld Unit G1: Level 2 Kitchen, lunge, 3 bedrms, 2 bathrms, tilet, rf deck Husehld Unit F1: Levels 2/3 Kitchen/dining, 2 bedrms, 1 bathrm, rf deck Subdivisin prpsal (nt t scale) Level 2 2.6.2 The applicant s prpsal was t accmmdate the fllwing: Unit B1 in Level 1 (basement): new Unit B1/B2 fire-rated partitin, with living/kitchen area and separate entry t suthwest fire-rated staircase up t Level 2 tw bedrms and ne bathrm utdr area new exterir timber deck t suthwest. Unit B2 in Level 1 (basement): new Unit B1/B2 fire-rated partitin, with lunge and separate entry t sutheast kitchen with adjining separate tilet tw bedrms and tw bathrms new exterir timber deck arund east crner. Unit G1 in Level 2 (grund flr): new Unit G1/F1 fire-rated partitin, with living rm and separate entry t nrthwest hallway fire-rated staircase frm Level 1 separate kitchen three bedrms, ne bathrm and separate tilet rf deck alng sutheast wall. Unit F1 in Levels 2 and 3: new Unit G1/F1 fire-rated partitin, with living/kitchen area in Level 2 with separate entry t nrthwest ne bathrm in Level 2 stairs up t Level 3 Ministry f Business, 8 20 April 2018
tw bedrms and ne bathrm in Level 3 rf deck at Level 3 nrth crner. 2.6.3 I have seen n recrds f further inspectins until the authrity carried ut a final inspectin n 29 June 2017, which was failed due t unrelated matters. 2.7 The abatement ntice 2.7.1 In the meantime, the authrity wrte t the cnsultants n 14 July 2017, rejecting the prpsed fur dwelling units (see paragraph 2.6.1). 2.7.2 In rder t assess cmpliance f the altered huse with the authrity s unitary plan rules, n 15 August 2017 a planning fficial frm the authrity visited the site and als spke t several tenants present at the time. The fficial s bservatins included (in summary): the huse includes ten bedrms, each fitted with a dr lck abut 18 peple live in the huse nine bedrms are currently tenanted Level 1 has tw cmmunal fridges with fur in Level 2; all used by tenants Level 1 and Level 2 each have ne cmmunal bathrm shared by tenants, with sme rms having their wn ensuite bathrms kitchen facilities in Level 1 and Level 2 are cmmunal tenancy agreements were apparently entered int at different times. 2.7.3 In a letter t the applicant dated 31 August 2017, the authrity attached an abatement ntice, and nted that the site visit had identified the dwelling was perating as a barding huse. The abatement ntice dated 31 August 2017 was issued under sectin 322(1)(a)(i) f the RMA fr the peratin f a barding huse in breach f the District Plan. 2.7.4 The reasns fr ntice described the abve site visit and stated the ntice was issued because:...such an activity is a cntraventin f sectin 9(3) f the RMA and rule H4.4.1 (A12) in the Unitary Plan. Such a cntraventin is an ffence. 5 2.8 The ntice t fix 2.8.1 The authrity re-inspected the alteratins n 29 August 2017 and the recrd nted the cnsent is made up f the riginal and amendment B, D, E and H and stated: The plans state this building is a single husehld unit (SH). Having lckable bedrm drs wuld indicate a use f sleeping Accmmdatin (SA). If this is deemed t be a change f use then an amendment is required. [my emphasis] The plans shw ne kitchen nly s the extra kitchen needs t be remved r apprved thrugh an amendment. 2.8.2 In a letter t the applicant dated 26 September 2017, the authrity nted the site visit had identified uncnsented building wrks have been undertaken and a ntice t fix was attached t the letter. 5 It is nt clear whether this ntice has been fllwed up by the authrity regarding the alleged ffence. Ministry f Business, 9 20 April 2018
2.8.3 The particulars f cntraventin r nn-cmpliance in the ntice t fix cited breaches f sectins 40, 17, 114 and 115 f the Act; stating there has been a change f use f the building frm Sleeping Single Hme (SH) t Sleeping Residential (SR) withut prir written ntice and specifically identifying: Installatin f fire separatin walls and a fire dr at the base f the internal stairs in the basement level The fire separatin between the separately used areas f the building has nt been frmed t cmply with the minimum requirement f clause C3 (fire affecting areas beynd the fire surce)... Yu have changed the use f 34 White Swan Rad, Munt Rskill, Auckland withut receiving written authrity frm [the authrity] that the building cmplies (as [near as is] reasnably practicable) with the prvisins f the Building Cde. In particular, airbrne and impact sund, and fire rating perfrmance. 2.8.4 The Ministry received an applicatin fr a determinatin n 29 September 2017, which was accepted n 5 Octber 2017. The Ministry sught further infrmatin frm the parties, which was received n 19 Octber 2017. 2.8.5 In a letter t the parties dated 24 Octber 2017, the Ministry sught clarificatin that the applicant disputed the cntraventins f Sectins 17, 114 and 115 f the Act as identified in the ntice t fix dated 26 September 2017. 2.9 Certificate f acceptance 2.9.1 The applicant applied fr a certificate f acceptance fr the cnstructin f the firerated walls and fire dr at the base f the stairs n the basement level. This wrk had been carried ut in July 2017. 2.9.2 On 14 December 2017 the authrity inspected the building and held a meeting with the parties n 15 December 2017. The authrity stated its inspectin had identified 28 tenants living at the prperty. 2.9.3 The applicant was infrmed at the cnclusin f the meeting the certificate f acceptance applicatin was refused because it was difficult t determine cmpliance. 3. The submissins 3.1 The applicant s submissin 3.1.1 In a statement dated 29 September 2017, the applicant explained the recent backgrund t the abatement ntice and the ntice t fix, including the fllwing cmments (in summary): The recently renvated huse has 13mm [fire-rated plasterbard] with duble 13mm [fire-rated plasterbard] n all ceilings and utside perimeter walls, and a fire dr between tw prpsed dwellings. The building is being cnverted int tw dwellings as a permitted activity as per H4.4.1 (A5) f the Unitary plan, with an amendment t the building cnsent sn t be ldged detailing that cnversin. Resurce cnsent is being ldged t further cnvert the dwelling int 4 dwellings. The allegatin the huse is used as a barding huse is denied. The entire dwelling is rented as a single fixed term tenancy, with the tenancy agreement signed and accepted by all ccupants, many f whm are lng term. Ministry f Business, 10 20 April 2018
The rms are nt numbered r rented as separate tenancy agreements. There are n huse rules gverning the tenants nr are cleaning services prvided fr cmmn areas, and nly ne bnd is ldged fr all tenants. 3.1.2 In a subsequent email t the Ministry dated 2 Octber 2017, the applicant stated that he disputed the cntraventins f sectins 17, 114 and 115 f the Act that were identified in the ntice t fix. 3.1.3 In an email dated 4 January 2018 the applicant asked fr the scpe f the determinatin t be increased t include the authrity s refusal f the certificate f acceptance. 3.1.4 The applicant prvided cpies f: sme f the drawings relating t varius cnsent amendments sme inspectin recrds sme f the crrespndence with the authrity phtgraphs f the building wrk varius ther letters, statements, and ther infrmatin. 3.2 The authrity s submissin 3.2.1 The authrity made n submissin in respnse t the applicatin, but prvided access t the prperty file that cntained additinal infrmatin pertinent t this determinatin, including: infrmatin abut the huse prir t the riginal cnsent crrespndence regarding resurce cnsent planning issues crrespndence with the applicant regarding varius building issues the riginal cnsent drawings and subsequent amended drawings the 2012 building cnsent and cnsent amendments B, D, E and H the inspectin and site meeting recrds crrespndence regarding the encumbrance against the prperty title the varius resurce cnsent reprts drawings f the prpsed cnversin int fur separate units the abatement ntice dated 31 August 2017 the ntice t fix dated 26 September 2017 varius ther statements and infrmatin. 3.3 A draft determinatin was issued t the parties fr cmment n 23 February 2018. The draft cncluded the building had undergne a change f use frm SH t SA, and there was insufficient infrmatin t establish that the framing will cmply with Clause B1 (Structure) and the fire-rated lining and dr will cmply with Clause C3 (Fire affecting areas beynd the fire surce). Ministry f Business, 11 20 April 2018
3.4 Submissins in respnse t the draft determinatin 3.4.1 On 26 February 2018 the applicant respnded that he did nt accept the decisin in the draft determinatin and requested a hearing, submitting: The cmments regarding the transience f the ccupants are speculative. The number f tenants is nearly cnstant. The ccupants are respnsible adults and have been living tgether fr mre than a year. They live tgether as a chesive grup and allcate cleaning jbs themselves. There is a single fixed term tenancy agreement and the building is ccupied as a single husehld. In a recent Tenancy Tribunal hearing, the ccupants stated they knew each ther well and lived tgether as a grup. The authrity shuld accept the certificate f acceptance because the fire-rated systems thrughut the building were installed crrectly by the certified builder. The authrity shuld dismiss the ntice t fix and accept the certificate f acceptance applicatin. Als, it shuld carry ut the final inspectin and issue the cde cmpliance certificate. 3.4.2 On 6 March 2018 the applicant prvided an excerpt frm the transcript f an Order f the Tenancy Tribunal 6 ( the Tenancy Tribunal Order ). The excerpt shwed the adjudicatr asked a series f questins abut the ccupatin f the building. It was established the ccupants did nt knw each ther and each had made separate rental applicatins befre mving int the building. One ccupant stated she cnsidered the ther ccupants as a family because they nw knew each ther. The applicant prvided the full transcript in respnse t my request. 3.4.3 I nte the same ccupant wh stated she cnsidered the ther ccupants as family als stated: believe that there are a lt f families staying there s even (inaudible ) cleaning it is difficult that mre members are there (inaudible ) arrange an agreement t keep the huse clean because mre than 10 members staying in the huse, s we basically feel it s mre like a barding huse. The full transcript als recrds that each ccupant pays rent separately t the applicant as the landlrd. 3.4.4 On 26 March 2018 the authrity accepted the draft determinatin s decisin. 6 Order f the Tenancy Tribunal, Applicatin Number: 4088218, 3 July 2017. The Tribunal s findings are cnsidered relevant t this determinatin because they cncern the way the building is being tenanted by the applicant in its current cnfiguratin. Ministry f Business, 12 20 April 2018
4. The hearing and site visit 4.1 The hearing 4.1.1 On 26 March 2018, a hearing was held in Auckland at the applicant s request. This was attended by the fllwing peple: the applicant ne fficer f the authrity and the authrity s slicitr myself accmpanied by ne fficer f the Ministry. 4.1.2 All attendees spke at the hearing and were f assistance t me in preparing this determinatin. I have summarised the submissins made by the parties in the fllwing paragraphs. 4.1.3 Regarding the certificate f acceptance: The applicant The authrity must give specific reasns fr refusing the certificate f acceptance. The authrity can emply nn-destructive methds, such as radiscpy r x- ray, t inspect the cmpleted wall instead f refusing t grant a certificate f acceptance. (The applicant prvided infrmatin regarding the nn-destructive methds f inspectin he discussed in the hearing.) The rest f the building is cnstructed with fire-rated linings that cmplied with the manufacturer s specificatin. S, there is n reasn why this ne sectin f wall wuld nt have been installed crrectly. A licensed building practitiner installed the fire dr and wall. The wall is nt a lad bearing wall. The authrity Inspecting the wall befre the linings are installed is necessary t check the apprpriate fixings and blts have been used. The fire-rated system requires specific fixings and blts t meet the manufacturer s specificatin. The alternative inspectins methds prpsed by the applicant t inspect the fixings wuld nt indicate whether the crrect fixings and blts had been used. 4.1.4 In regard t the change f use: The applicant The ntice t fix relied n the building being cnsidered a barding huse. The Ministry has stated it is nt a barding huse. The draft determinatin was speculative in regard t the transience f ccupants; many have lived there tgether fr mre than a year. When a new ccupant jins they have t be accepted by the existing ccupants. Generally, new ccupants were fund by the existing ccupants. The transcript frm the Tenancy Tribunal is evidence the ccupants live as a chesive grup. The building has a SH use and perates as ne building with tw kitchens. Ministry f Business, 13 20 April 2018
There are 17 peple currently living in the building. As a precautin the entire building is fire-rated and each flr has its wn means f escape. The authrity The authrity inspected the building in February 2017 and nted the ccupants didn t appear t knw each ther. Als, there were families, including a family with a child, living in ne rm; this cncerned the authrity as the building cnsent was nt granted fr this type f use. There were decks that were nt cnstructed as per the cnsented plans, and in sme areas lacked adequate barriers. There were numerus incnsistencies between the building cnsent and what was cnstructed. Every bedrm had its wn key. The authrity cnsidered the transcript prvided by the applicant shwed the ccupants were nt living in a family-like arrangement. 4.1.5 There was a discussin regarding the barding huse definitin under the RTA and the nging High Curt case regarding the Tenancy Tribunal Order. The applicant queried whether the determinatin wuld be invalid as the fixed term tenancy agreements were ending in April 2018. 4.2 The site visit 4.2.1 A site visit t the building was undertaken at the cnclusin f the hearing. The invitatin t visit the site was extended t all attendees at the hearing, and all except the authrity s slicitr chse t attend. 4.2.2 The site visit included a walk thrugh the building t view the cmmunal areas, the decks, and utside areas. The fficer f the authrity identified additinal areas f pssible nn-cmpliance regarding the exterir stairs and decks. 4.2.3 During the site visit, the applicant advised he intended t change the tenancy arrangements after the fixed term tenancy agreement ended. He nted he was cnsidering appinting himself the head tenant, and signing the ccupants n as his flatmates (thugh he did nt intend t reside in the building). 4.2.4 I have taken the submissins frm the parties int accunt and amended the final determinatin as apprpriate. 5. Discussin 5.1 The matter in dispute is whether the authrity crrectly exercised its pwer in its decisins t issue the ntice t fix and t refuse t issue the certificate f acceptance. In deciding this matter I must therefre cnsider: whether there has been a change f use under the Regulatins. This requires that I cnsider: whether there has been a change f use categry as defined in Schedule 2 f the Regulatins, and Ministry f Business, 14 20 April 2018
if there has been a change f use, whether the requirements fr cmpliance with the Building Cde in relatin t the new use are additinal t, r mre nerus than, the requirements fr cmpliance in relatin t the ld use; whether the uncnsented building wrk cmplies with the Building Cde; whether the cnsented building wrk cmplies with Clause C3 f the Building Cde. 5.2 Change f use 5.2.1 There are a number f different categrisatins f a building s use in r fr the purpses f the Act, the Regulatins, and the Building Cde. In this instance, the categries that are relevant in this discussin include: the uses f buildings, SH (Sleeping single hme), SR (Sleeping Residential) and SA (Sleeping Accmmdatin) defined in Schedule 2 f the Regulatins, which are fr the purpse f making decisins regarding buildings underging a change f use the Classified Uses, such as Husing, and Cmmunal residential are defined in Clause A1 f the Building Cde fr the purpses f applying the perfrmance requirements f the Building Cde. 5.2.2 In the fllwing paragraphs, I cnsider which f the use categries defined in Schedule 2 f the Regulatins applies t this building, and in paragraph 5.3 I cnsider the apprpriate classified use. 5.2.3 Under sectin 114, if an wner is planning t change the use f a building as defined in Schedule 2 f the Regulatins, the wner must prvide written ntice t the authrity. An wner must nt change the use f the building unless the authrity has given written ntice that the building in its new use will cmply t the extent required by sectin 115. 5.2.4 Sectin 5 f the Regulatins prvides: Fr the purpses f sectins 114 and 115 f the Act, change the use, in relatin t a building, means t change the use (determined in accrdance with regulatin 6) f all r a part f the building frm ne use (the ld use) t anther (the new use) and with the result that the requirements fr cmpliance with the building cde in relatin t the new use are additinal t, r mre nerus than, the requirements fr cmpliance with the building cde in relatin t the ld use. 5.2.5 Accrdingly, I must cnsider whether the building s use as defined in Schedule 2 f the Regulatins has changed, and whether the Building Cde requirements in its new use are additinal t r mre nerus than the requirements in its ld use. Fr the purpse f establishing the perfrmance requirements f the Building Cde that apply in the building s new use I must cnsider what is the crrect classified use under Clause A1 (refer Appendix A.2). Ministry f Business, 15 20 April 2018
5.2.6 The fllwing table sets ut the use categries discussed in this determinatin as defined in Schedule 2 f the Regulatins: Table 1: Use categries defined in Schedule 2 f the Regulatins Use Spaces r dwellings Examples Uses related t sleeping activities SH (Sleeping Single Hme) SR (Sleeping) SA (Sleeping Accmmdatin) detached dwellings where peple live as a single husehld r family, including attached self-cntained spaces such as granny flats when ccupied by a member f the same family, and garages (whether detached r part f the same building) if primarily fr strage f the ccupants vehicles, tls, and garden implements attached and multi-unit residential dwellings, including husehld units attached t spaces r dwellings with the same r ther uses, such as caretakers flats, and residential accmmdatin abve a shp spaces prviding transient accmmdatin, r where limited assistance r care is prvided fr peple dwellings r huses separated frm each ther by distance multi-unit dwellings, flats, r apartments mtels, htels, hstels, barding huses, clubs (residential), barding schls, drmitries, halls, wharenui 5.2.7 It is nt disputed the huse when cnstructed had a use SH. I nte the authrity apprved a change f use t SR (see paragraph 2.3.7), but later reversed its decisin in amendment B. 5.2.8 Based n the cntraventin identified in the ntice t fix, the authrity is f the view the use f the building has changed frm SH t SR, hwever I nte the final inspectin recrded the use had changed t SA. 5.2.9 In the applicant s submissin he stated the building is being cnverted int tw dwellings, which wuld change the use t SR, but rejects that it is a barding huse which wuld have a use f SA. In the fllwing paragraphs I discuss the layut f the building in relatin t the ccupants use f the building, and I cnsider in turn each f the use categries under the Regulatins. The layut f the building 5.2.10 The layut f the building is a significant factr, but nt the nly factr, in establishing whether the building is ccupied as a single husehld and in determining whether a change f use has ccurred. The layut f a building influences the level f scial chesin and the ccupants awareness f each ther s mvements. 5.2.11 In this case, there are kitchen, laundry and bathrm facilities n basement and grund flr levels, and separate access frm the utside is available t bth. On the first flr there is a sink and bench, as well as a laundry machine 7. I nte als the 7 An advertisement psted n Trade Me dated 21 April 2017 has a phtgraph f a sink, benchtp and laundry machine n the first flr. (See als paragraph 5.2.18) Ministry f Business, 16 20 April 2018
lcking f the fire-rated dr between the basement and grund flr wuld enable these levels t perate separately frm each ther. 5.2.12 Given the layut f this building it is unlikely that the ccupants f each level wuld scialise n different levels t their bedrms. The site visit revealed the cmmunal areas n the basement and grund flr have less space than shwn n the plans. Each area cntains numerus fridges and strage units, which limits the seating in the cmmunal areas. Therefre, I am f the view the shared areas, kitchen, living and dining area, will be unlikely t act as cmmunal areas fr the ccupants. 5.2.13 As an aside, I nte als the resurce cnsent dcumentatin shws a future change f use is prpsed t cnvert the building int fur separate units. SH (Sleeping single hme) 5.2.14 The applicant is f the view the use f the building is unchanged frm the riginal SH use. Fr the use t fall within this categry the ccupants must live as a single husehld r family. 5.2.15 The building at this time is nt slely ccupied by ne family, s the questin is whether the ccupants can be cnsidered a single husehld. What cnstitutes a single husehld was cnsidered within Queenstwn-Lakes District Cuncil v The Wanaka Gym Limited 8. The Judge bserved that determining whether a single husehld existed relied n a cmbinatin f cnsideratins including a degree f permanence in the residents, a cnnectin with the ther residents ther than simple prximity, and an element f living tgether jintly. 5.2.16 A flat can lend itself t being cnsidered a single husehld where there is a level f interactin and cmmunity between flatmates. In previus determinatins 9 I have cnsidered a flat means a residence f a grup f peple wh have chsen t live tgether in a family-like arrangement with a similar atmsphere f trust, harmny and affectin. 5.2.17 In New Zealand, flats are ften frmed by grups f friends, r students attending universities r ther educatinal institutins. It is typically the flatmates that select wh they will share the flat with, and there is usually sme level f scial chesin. 5.2.18 I must nw cnsider the evidence regarding the relatinship between the ccupants f this building, and whether they perate as a single husehld. I cnsider the fllwing is relevant: The ccupants are expected t btain accmmdatin individually frm the applicant. An advertisement 10 psted n Trade Me (dated 21 April 2017) stated the building can accmmdate 26 flatmates. The authrity s site visit in August 2017 identified there were abut 18 ccupants living in the building at that time. The authrity s site visit in December 2017 identified 28 ccupants living in the building at that time. (This is disputed by the applicant.) 8 Queenstwn-Lakes District Cuncil v Wanaka Gym Ltd. CIV-2003-002-265 (18 Nvember 2008) 9 Determinatin 2007/111 Fire safety prvisins fr tw relcated buildings t be used as staff accmmdatin at Lakefrnt Drive, Te Anau (Department f Building and Husing) 17 September 2007. 10 https://www.trademe.c.nz/flatmates-wanted/auctin-1308077064.htm?rsqid=730d295273574c1b9f0d5abc59fbc029 Ministry f Business, 17 20 April 2018
The applicant cnfirmed 17 peple were living in the building at 26 March 2018. A Tenancy Tribunal rder (dated 3 July 2017) nted the ccupants stated they had cmpletely separate lives and did nt knw each ther befre they mved in 11. 5.2.19 The applicant has presented the fact the dwelling is rented n a single fixed term tenancy agreement as evidence it is a single husehld. Hwever, the applicant acknwledged during the Tenancy Tribunal hearing that 10 ccupants were named n ne tenancy, but ther agreements fr the same tenancy named different ccupants 12. Als, the ccupants stated they replied t an advertisement and signed a blank dcument that ver the weeks ther ccupants als signed as they mved in 13 they did nt jintly agree t live tgether. Cnsequently, I cnsider the single fixed term tenancy agreement signed by the ccupants is nt sufficient evidence the ccupants share a familial relatinship. 5.2.20 I d nt cnsider the ccupants will have any reasn t establish the familial relatinships that wuld be expected f a single husehld. Based upn the number f ccupants and hw they acquire accmmdatin, and in cnjunctin with the building layut, I am f the view there is a lesser likelihd f ccupants knwing r getting t knw each ther than wuld be the case in a flatting situatin. 5.2.21 In cnclusin, I cnsider the ccupants d nt live as a single husehld, and the building n lnger falls within use categry SH. 5.2.22 I cnsider it salient t cmment n the applicant s prpsal t alter the tenancy arrangements t cnfirm a SH use. The applicant stated he wuld appint himself the head tenant (nt live in the building), and have the ther ccupants as flatmates. 5.2.23 A similar scenari was discussed in Determinatin 2017/036 14, where a head tenant lived in a building that hused 14 peple. The determinatin stated the agreements prvide an indicatin f the building s current use but the agreements are nt the primary factr in cnsidering whether the building has undergne a change f use. The applicant s prpsed alteratin f the tenancy arrangements alne is unlikely t be sufficient t establish a SH use when the layut and ccupatin f building will remain unchanged. SR (Sleeping residential) 5.2.24 I nw turn t the questin f whether the building s use falls within the SR categry. 5.2.25 Whereas SH cvers detached dwellings that are separated by distance, SR cncerns multi-unit dwellings and ther residential dwellings that are attached. Residential dwellings, e.g. smene s hme, fall within use categry SR when they are adjacent t anther space with a similar r different use, reflecting the increased risks t life safety and ther prperty. 5.2.26 Fr example, a grup f flats, where there are a number f husehld units within ne building, falls under the use SR. Each individual flat will typically cntain fd preparatin and sanitary facilities, and each flat r grup f flatmates live 11 Order f the Tenancy Tribunal, Applicatin Number: 4088218, 3 July 2017. The Tribunal s findings are cnsidered relevant here because they cncern the way the building is being tenanted by the applicant in its current cnfiguratin. 12 Ibid. 13 Ibid. 14 Determinatin 2017/036 Regarding whether there is a change f use in respect f building wrk carried ut t create a 12-bedrm building with an assciated sleeput at 784 High Street, Lwer Hutt (Ministry f Business, ) 30 May 2017 Ministry f Business, 18 20 April 2018
independently f the ther grups hused within the building. If the building in this case cntained tw r mre husehld units, it wuld fall under the use SR. 5.2.27 In this case, the building layut after the alteratins and the amenities available prvides fr a minimum f tw individual husehld units. The basement and grund flrs bth have kitchens and laundries, and separate access (I nte the first flr als appears t have kitchen and laundry facilities). Als, there is a dr at the base f the stairs n the basement level separating the basement level frm the ther levels, and it is reasnably freseeable the dr wuld be lcked, thus dividing the huse int tw separate units. 5.2.28 Taking int accunt the number f bedrms, the amenities available n each flr, the fire-rated dr and the layut f the building generally, I cnsider the building culd be described as a multi-unit dwelling and fall within the use categry SR. 5.2.29 Hwever, I d nt believe there are tw adjacent husehld units within this building. I cnsider the Judge s cmments in Queenstwn-Lakes District Cuncil v The Wanaka Gym Limited cntinue t be relevant: As ur lives becme mre cmplicated and the circumstances under which peple chse t live tgether becme mre and mre diverse, it is less and less easy t determine what amunts t a husehld. 5.2.30 A husehld unit is defined in the Act: means a building r grup f buildings, r part f a building r grup f buildings, that is (i) used, r intended t be used, nly r mainly fr residential purpses; and (ii) ccupied, r intended t be ccupied, exclusively as the hme r residence f nt mre than 1 husehld; but (b) des nt include a hstel, bardinghuse, r ther specialised accmmdatin 5.2.31 In this case I d nt cnsider each level is the exclusive residence f nly ne husehld. With the high and varying numbers f ccupants, and likely multiple ccupants per bedrm, I cnsider it unlikely the ccupants live as a single husehld in either the basement level r the grund/first flr level. I cannt clearly establish a single husehld unit n any level in this building. 5.2.32 The SR categry wuld apply if there were adjacent husehld units, but is nt apprpriate when husehld units cannt be established. In this case, I d nt believe SR is the apprpriate use classificatin under the Regulatins. SA (Sleeping Accmmdatin) 5.2.33 In my view the use in this particular set f circumstances fits mre apprpriately within the SA categry. 5.2.34 This categry is separated frm SH and SR because it is n lnger limited t nly husehld units. The examples prvided in the use categry SA are either where ccupants require limited assistance r care, r the accmmdatin is available t the public, such as mtels, htels, and barding huses etc 15. 5.2.35 Regardless f whether the ccupants are transient, the ther criterin is if limited assistance r care is prvided fr peple. The phrase limited assistance r care is nt defined in the Act r Building Cde and must be interpreted in its cntext. 15 The Tenancy Tribunal rder fund the ccupants were living in a barding huse arrangement under the RTA and culd give 48 hur ntice t vacate the building, which wuld indicate transient ccupants. Hwever, this rder is currently being appealed in the High Curt. Ministry f Business, 19 20 April 2018
Taking int accunt the use grups SC Sleeping Care, which is fr thse spaces such as hspitals r care institutins where peple are prvided with special care r treatment, and SD Sleeping Detentin, in which peple are detained r physically restrained, I cnsider limited care r assistance t mean sme frm f help is extended t the ccupants less than that prvided in the SC r SD use categries. 5.2.36 Barding schls, drmitries and halls f residence are examples f Sleeping Accmmdatin where limited assistance r care is prvided t children r yung adults wh reside in these places. 5.2.37 Buildings under uses SC and SD have ccupants that are likely t require physical assistance in an emergency, whereas ccupants f buildings with an SA use may need nly limited assistance, such as guidance n where t g in an emergency event because they are transient, unfamiliar with the envirnment, r as in the case f children r yung adults are mre likely t panic. 5.2.38 While I have nt been prvided any evidence in this case that suggests there is a level f care r assistance similar t that which wuld be extended t children r yung adults; I am f the view the use f the building falls within SA. My view is based n the intent f the Regulatins t require upgrades when the use f a building changes t ne with increasing safety and health risks. 5.2.39 I acknwledge the descriptin f SA limits it t nly buildings where transient accmmdatin r limited care r assistance is prvided. Hwever, given the reliance n the effective behaviur f ccupants in a husehld unit in regard t life safety in SH and SR when cmpared t a grup f disparate peple s lack f effectiveness, it nly leaves SA. I cnclude therefre, the use has changed frm SH t SA under the Regulatins. 5.2.40 The prvisins f sectin 114 and sectin 115 are nly triggered if the new use has mre nerus r additinal perfrmance requirements than the ld use. In rder t establish whether thse sectins are triggered, I must nw turn t the classified uses within Clause A1 t establish the perfrmance requirements in the new use. 5.3 Classified use 5.3.1 The classified use is determined by the intended use f the building. I have nted in previus determinatins 16 it is nt nly the particular functin that an wner may be using a building fr at any particular pint in time but als a building s physical cnfiguratin and attributes (and/r the plans and specificatins fr prpsed building wrk) that determines the varius use categries. The layut f the building influences the level f scial chesin and the ccupants awareness f each ther s mvements, which alng with the peratin is a significant factr in determining the building s use. 16 Determinatin 2011/069 Regarding cnditins t a building cnsent and the use f a building (Department f Building and Husing) 12 July 2011, and Determinatin 2017/036 Regarding whether there is a change f use in respect f building wrk carried ut t create a 12- bedrm building with an assciated sleeput (Ministry f Business, ) 30 May 2017 Ministry f Business, 20 20 April 2018
5.3.2 The classified uses cnsidered in this determinatin are as fllws: Table 2: Classified uses defined in Clause A1 f the Building Cde Classified use Examples 2.0 Husing 2.0.1 Applies t buildings r use where there is self care and service (internal management). There are three types: 2.0.2 Detached dwellings Applies t a building r use where a grup f peple live as a single husehld r family. 2.0.3 Multi-unit dwelling Applies t a building r use which cntains mre than ne separate husehld r family. 2.0.4 Grup dwelling Applies t a building r use where grups f peple live as ne large extended family. a hliday cttage, barding huse accmmdating fewer than 6 peple, dwelling r hut an attached dwelling, flat r multi-unit apartment within a cmmune r marae 3.0 Cmmunal residential 3.0.1 Applies t buildings r use where assistance r care is extended t the principal users. There are tw types: 3.0.2 Cmmunity service Applies t a residential building r use where limited assistance r care is extended t the principal users. 3.0.3 Cmmunity care Applies t a residential building r use where a large degree f assistance r care is extended t the principal users. There are tw types: (a) Unrestrained; where the principal users are free t cme and g (b) Restrained; where the principal users are legally r physically cnstrained in their mvements. a barding huse, hall f residence, hliday cabin, backcuntry hut, hstel, htel, mtel, nurses hme, retirement village, time-share accmmdatin, a wrk camp, r camping grund. (a) hspital, an ld peple s hme r a health camp (b) a brstal r drug rehabilitatin centre, an ld peple s hme where substantial care is extended, a prisn r hspital. Detached dwelling 5.3.3 The criterin fr detached dwelling is that a grup f peple live as a single husehld r family. I have already established the ccupants are nt living as a single husehld. 5.3.4 The fllwing facts cnfirm this view: the ccupants d nt enter int a single tenancy agreement as ne flat they have limited chice regarding the ther ccupants the high number f ccupants the duplicatin f facilities n the basement and grund level Ministry f Business, 21 20 April 2018
the view f the ccupants that they were living in a barding huse arrangement and have separate lives there are lcks n the drs, which suggests a lw level f trust. 5.3.5 Based n the ccupatin and layut f the building, I am f the view the ccupants are mre likely t live independently f each ther and be less aware f fellw ccupants' presence and mvements. There is a lwer expected level f familiarity between the ccupants, and less scial chesin than that which wuld ensure any individual becming aware f fire wuld naturally alert and assist thers within the building t escape. 5.3.6 The imprtance f scial chesin is discussed in guidance issued by the Ministry under sectin 175, Acceptable Slutins C/AS1 C/AS7 interpretatins 17. The guidance nted, because detached dwellings have very lw fire prtectin (minimum Type 1 alarm system) a high degree f scial chesin and mutual respnsibility between ccupants is necessary t ensure they assist each ther in a fire event. A high degree f scial chesin is justificatin fr the lwer fire prtectin requirements fr husehld units t satisfy the Acceptable Slutins; it relies n ccupants warning each ther, being aware f the building and its escape rutes and quickly evacuating. 5.3.7 T functin as a husehld, all ccupants need t be knwn t each ther t gain scial respnsibility t help each ther in an emergency, and the layut f the building is an influencing factr. I nte that in this case, the layut f the building, with separate entrances n each level, lckable drs and the number f ccupants is such that it wuld nt be clear wh was present at any given time, and alerting thers wuld be difficult. 5.3.8 I cnclude therefre the building s use des nt fall under the classified use detached dwelling. Multi-unit dwelling 5.3.9 The perfrmance requirements fr multi-unit dwellings are similar t detached dwellings, but with mre nerus perfrmance requirements f the Building Cde relating t fire and nise separatin between husehld units. 5.3.10 If this building was tw flats, as discussed in paragraphs 5.2.9 and 5.2.27, it wuld fall under the use multi-unit dwelling. Each unit wuld typically cntain fd preparatin and sanitary facilities, and each flat r grup f flatmates live independently f the ther grups within the building. 5.3.11 In this instance, as previusly described in paragraph 5.2.31 the building des nt perate as tw flats, nr des it appear t prvide fr a series f individual husehld units. Therefre, I am f the view the building cannt be crrectly described as cntaining multiple units and des nt fall within the classified use multi-unit dwelling. 17 Acceptable Slutins C/AS1 C/AS7 interpretatins: 1.7 Can key lcks be prvided n drs within husehld units r suites? https://www.building.gvt.nz/building-cde-cmpliance/c-prtectin-frm-fire/c-clauses-c1-c6/prtectin-frm-fire-faqs/acceptableslutins-cas1-cas7-interpretatins/ (Ministry f Business, ) Ministry f Business, 22 20 April 2018
Grup dwelling 5.3.12 Based upn the high number f ccupants, I cnsidered whether the use wuld fit in the classified use grup dwelling. There are higher perfrmance requirements related t this classified use because f the increased number f peple and the effect this has n escape times in fire events. 5.3.13 In Determinatin 2011/069, I prvided a brader interpretatin regarding what cnstitutes a grup : Grups f peple culd encmpass peple undertaking similar wrk tgether, peple f different natinalities wh live tgether in grups, r grups f peple in particular relatinships. 5.3.14 The previus determinatin recgnised there were reasns beynd familial relatinships fr peple t live as ne large extended family. This interpretatin reflects the shared purpse and/r necessary cperatin t achieve a certain standard f living (such as in a cmmune) exhibited in grup dwellings. 5.3.15 I d nt believe the building falls within this classified use. I have seen n evidence the ccupants as described, and rather t the cntrary there is evidence the ccupants live independently f ne anther. Cmmunity service 5.3.16 I nw cnsider whether the building falls within the classified use cmmunity service. 5.3.17 One f the examples given fr cmmunity service is a barding huse. The term barding huse has n definitin under the Act r Building Cde 18. The Oxfrd English Dictinary defines barding huse as a private huse prviding fd and ldging fr paying guest. 5.3.18 The applicant has stated that he is nt running a barding huse. Using the rdinary and natural meaning f the wrd I wuld agree this is crrect. 5.3.19 Hwever, the term barding huse is nly an example t illustrate the types f uses that fall under cmmunity service. The examples within Clause A1 are nt exhaustive. Just because the building is nt a barding huse in the rdinary and natural meaning f the term des nt necessarily mean it des nt fall within the classified use cmmunity service. 5.3.20 T determine whether the building falls within this use, I analysed the examples t understand the services expected in relatin t the limited care r assistance, and I cmpared the examples against thse in cmmunity care, which applies t residential buildings where a large degree f assistance r care is prvided. 5.3.21 There is a varying degree f what cnstitutes care r assistance prvided t the ccupants, in sme cases this culd be cnsiderably minr. Sme examples f care r assistance include the prvisin f meals, cleaning, day-t-day upkeep, nsite management etc. Cmmunity care is intended t cver situatins where ccupants are largely dependent n anther persn, whereas users in cmmunity service are largely independent. 5.3.22 The degree f independence in cmmunity service explains the varying range f what limited assistance r care can manifest as within in the examples prvided fr 18 The term barding huse is defined in ther legislatin, such as the Residential Tenancies Act 1986. Hwever, that definitin des nt extend t the Building Act and I d nt cnsider whether the building is classified as a barding huse as defined in the RTA as I d nt have jurisdictin in respect f matters under that Act. Ministry f Business, 23 20 April 2018
that classified use. Fr example, back cuntry huts ffer minimal services t ccupants, whereas htels ffer a wider range f assistance. 5.3.23 In a general flatting situatin, the ccupants: arrange fr the set up f pwer and utilities t the prperty they are renting are in charge f paying the utilities directly are respnsible fr either cancelling r transferring the accunt nce they leave. 5.3.24 Whereas in this instance the ccupants pay a flat rate, which is inclusive f pwer, water and internet. The ccupants d nt need t set up, pay directly, r cancel the utility accunts. The landlrd, wh is the applicant in this case, is respnsible fr the payment and administratin f the accunts. In this respect, I cnsider the fact the landlrd is respnsible fr the payments and administratin f the accunts cnstitutes the prvisin f limited assistance t the ccupants. 5.3.25 I have als cnsidered the perfrmance requirements as they apply t the examples f cmmunity service buildings. Overall, buildings r uses that fall within cmmunity service have mre demanding fire and accessibility perfrmance requirements when cmpared t uses within Husing. Als, cmmunity service buildings have lwer perfrmance requirements fr habitable space and amenities when cmpared t a detached r multi-unit dwelling. 5.3.26 The perfrmance requirements reflect the typical shrt stay, varied ccupancy numbers, likelihd f an unfamiliar envirnment, and that ccupants are unlikely t have clse relatinships with the ther building ccupants. It reflects the fact ccupants in thse circumstances are expsed t higher risk in the event f an emergency than smene wh is in a detached dwelling r multi-unit dwelling. 5.3.27 Whether r nt the building in this case is classified as a barding huse in terms f the rdinary and natural meaning f the term is nt definitive regarding whether it belngs with the cmmunity service classificatin. The building in questin has high ccupancy numbers, is nt a single husehld, and there is limited assistance. I cnsider the ccupants in this building are expsed t similar cnditins as ther examples within cmmunity service. Accrdingly, I cnclude the crrect classified use is cmmunity service. 5.3.28 The building in its new use has mre nerus perfrmance requirements, such as: Clause C3.4 regarding surface linings Clause C5.3 regarding access and safety fr firefighting peratins Clause F6 regarding visibility in escape rutes Clause F8 regarding signs. 5.3.29 Therefre, as there has been a change in the use categry under Schedule 2 f the Regulatins and the new classified use has mre nerus perfrmance requirements than the ld use, sectins 114 and 115 are applicable. 5.4 What happens next? 5.4.1 Under sectin 115 there is the requirement fr the wner t establish that the building will cmply, as near as reasnably practicable, with either all the prvisins f the Building Cde r certain perfrmance requirements depending upn the situatin. Ministry f Business, 24 20 April 2018
5.4.2 As I have determined a change f use has ccurred frm SH t SA, it is nw fr the applicant t prvide sufficient infrmatin t the authrity fr it t be able t be satisfied the building, in its new use, will cmply under sectin 115: as nearly as reasnably practicable with the Building Cde prvisins relating t means f escape frm fire, prtectin f ther prperty, sanitary facilities, structural perfrmance, fire-rating perfrmance and access fr peple with disabilities t at least the same extent as befre the change f use ccurred in respect f the remaining Building Cde prvisins. 5.5 Ntice t fix 5.5.1 The applicant has accepted the building wrk t cnstruct fire-rated walls and fire dr required a building cnsent and has since sught a certificate f acceptance fr the uncnsented building wrk. I cnsider the authrity was crrect t include this wrk in the ntice t fix. (I discuss the authrity s refusal t grant the certificate f acceptance in paragraph 5.6.) 5.5.2 In regard t fire separatins nt being frmed t cmply with Clause C3, I understand this t be in relatin t the basement ceiling cnstructin. The Pstline r fire-rated linings inspectin failed because tw layers f 13mm fire-rated plasterbard were installed (instead f ne layer f 16mm), the secnd layer was incrrectly fixed, and sme areas had nly ne 13mm layer. 5.5.3 There is als cnflict between the cnsent drawings, with ntatins prpsing different fire linings. The ntatin n sheet 05 states: All ceilings t all levels: 60/60/60 FRR ceiling 2 layers f 13mm [manufacturer s fire rated plasterbard] While, the ntatin n sheet 10 states: Entire ceiling t basement level: 60/60/60 FRR ceiling 1 layer f 16mm [manufacturer s fire rated plasterbard] 5.5.4 The authrity has prvided infrmatin that wuld indicate the nn-cmpliance was in regard t the basement ceiling linings, but I nte als the failed inspectin (refer paragraph 2.5.3) and incnsistences in the dcumentatin nted abve. 5.5.5 Cnsequently, I am f the view the authrity crrectly issued the ntice t fix in respect f the uncnsented building wrk and nn-cmpliance with Clause C3. As I have established a change f use has ccurred, I als cnclude the authrity crrectly issued the ntice t fix in respect f the change f use. 5.6 Certificate f acceptance 5.6.1 The building wrk that was carried ut withut building cnsent cnsists f the cnstructin f the fire-rated wall system, (which includes the wall framing, fasteners, and plasterbard linings) and a fire dr t the stairs n the basement level (see Appendix B). The authrity has refused t issue a certificate f acceptance fr the wrk because cmpliance wuld be difficult t establish. 5.6.2 During the hearing the applicant questined why the authrity had refused the certificate f acceptance withut undertaking alternative methds f inspecting the building wrk, such as the use f radiscpy r x-ray t check the cnstructin. The applicant has carried ut building wrk that required a building cnsent, and it is fr Ministry f Business, 25 20 April 2018
the applicant t prvide sufficient evidence t the authrity t establish that cmpliance with the Building Cde was achieved. 5.6.3 I must nw assess whether there was sufficient evidence fr the authrity be satisfied n reasnable grunds the building wrk cmplied with the Building Cde at the time f applicatin fr the certificate f acceptance. 5.6.4 In the fllwing paragraphs I cnsider cmpliance with Clauses B1 and C3 in respect f the wall framing, linings and fire dr. Clause B1 Structure 5.6.5 The applicant needed t establish the wall framing as installed cmplies with Clause B1 f the Building Cde. While the wall framing is nn-ladbearing, it must still meet the perfrmance requirements in regard t nrmal use and ccupancy t avid cllapsing r rupturing. 5.6.6 The authrity can n lnger inspect this wrk because the linings have been installed. The applicant prvided phtgraphs f a fire-rated wall under cnstructin; hwever, the phtgraphs are nt f the uncnsented building wrk. N ther evidence was prvided regarding the sizing r fixing f the framing. Clause C3 Fire affecting areas beynd the fire surce 5.6.7 In regard t the fire-rated wall system and fire dr, the applicant has stated this has been installed accrding t the specificatins and inspected by the authrity. 5.6.8 The phtgraphs prvided by the applicant d nt appear t shw the wall in questin. I nte als the fire-rated specificatin requires a minimum size fr the wall framing and it has nt been established that this has been installed. 5.6.9 I received cnfirmatin the dr itself is fire-rated t -/60/30, which wuld prvide 60 minutes integrity and 30 minutes insulatin. Hwever, n infrmatin was prvided t shw it was installed with the apprpriate hardware t clse autmatically and self-latch in the event f a fire. I nte the installed dr clser bserved n site is nt n the fire dr manufacturer s apprved hardware list. Cnclusin 5.6.10 Based n the evidence received t date, I cnsider the authrity did nt have sufficient grunds t be satisfied the building wrk cmplied with the Building Cde. On that basis I cnclude the authrity was crrect t refuse t issue the certificate f acceptance. Ministry f Business, 26 20 April 2018
6. The decisin 6.1 In accrdance with sectin 188 f the Building Act 2004, I hereby determine: a change f use has ccurred and ntificatin was required under sectin 114 there is insufficient infrmatin t establish that the framing installed withut building cnsent cmplies with Clause B1 there is insufficient infrmatin t establish the fire-rated lining and fire-rated dr installed withut building cnsent cmplies with Clause C3. 6.2 Accrdingly, I determine the authrity crrectly exercised its pwers in issuing the ntice t fix N. NOT21367031 and in refusing the certificate f acceptance, and I cnfirm thse decisins. Signed fr and n behalf f the Chief Executive f the Ministry f Business, Innvatin and Emplyment n 20 April 2018. Katie Grdn Manager Determinatins Ministry f Business, 27 20 April 2018
Appendix A A.1 Relevant sectins f the Act 37 Territrial authrity must issue certificate if resurce cnsent required (1) This sectin applies if a territrial authrity cnsiders that (a) a resurce cnsent under the Resurce Management Act 1991 has nt yet been btained; and (b) the resurce cnsent will r may materially affect building wrk t which a prject infrmatin memrandum r an applicatin fr a building cnsent relates. (2) The territrial authrity must issue a certificate, in the prescribed frm, t the effect that until the resurce cnsent has been btained (a) n building wrk may prceed; r... 40 Buildings nt t be cnstructed, altered, demlished, r remved withut cnsent (1) A persn must nt carry ut any building wrk except in accrdance with a building cnsent... 96 Territrial authrity may issue certificate f acceptance in certain circumstances (1) (1) A territrial authrity may, n applicatin, issue a certificate f acceptance fr building wrk already dne (a) If- (i) the wrk was dne by the wner r any predecessr in title f the wner; and (ii) a building cnsent was required fr the wrk but nt btained; r (b) if sectin 42 (which relates t building wrk that had t be carried ut urgently) applies; r (c) if subsectins (3) and (4) f sectin 91 (which apply if a building cnsent authrity that is nt a territrial authrity r a reginal authrity is unable r refuses t issue a cde cmpliance certificate in relatin t building wrk fr which it granted a building cnsent) apply. (d) [Repealed] (2) A territrial authrity may issue a certificate f acceptance nly if it is satisfied, t the best f its knwledge and belief and n reasnable grunds, that, insfar as it culd ascertain, the building wrk cmplies with the building cde. (3) This sectin (a) des nt limit sectin 40 (which prvides that a persn must nt carry ut any building wrk except in accrdance with a building cnsent); and (b) accrdingly, des nt relieve a persn frm the requirement t btain a building cnsent fr building wrk. 114 Owner must give ntice f change f use, extensin f life, r subdivisin f buildings (1) In this sectin and sectin 115, change the use, in relatin t a building, means t change the use f the building in a manner described in the regulatins. (2) An wner f a building must give written ntice t the territrial authrity if the wner prpses (a) t change the use f a building; r... Ministry f Business, 28 20 April 2018
115 Cde cmpliance requirements: change f use An wner f a building must nt change the use f the building, (a) (b) in a case where the change invlves the incrpratin in the building f 1 r mre husehld units where husehld units did nt exist befre, unless the territrial authrity gives the wner written ntice that the territrial authrity is satisfied, n reasnable grunds, that the building, in its new use, will cmply, as nearly as is reasnably practicable, with the building cde in all respects; and in any ther case, unless the territrial authrity gives the wner written ntice that the territrial authrity is satisfied, n reasnable grunds, that the building, in its new use, (i) will cmply, as nearly as is reasnably practicable, with every prvisin f the building cde that relates t the fllwing: (A) means f escape frm fire, prtectin f ther prperty, sanitary facilities, structural perfrmance, and fire-rating perfrmance: (B) access and facilities fr peple with disabilities (if this is a requirement under sectin 118); and (ii) will, (A) if it cmplied with the ther prvisins f the building cde immediately befre the change f use, cntinue t cmply with thse prvisins; r (B) if it did nt cmply with the ther prvisins f the building cde immediately befre the change f use, cntinue t cmply at least t the same extent as it did then cmply. A.2 Relevant clauses f the Building Cde Clause A1 Classified Uses 2.0 Husing 2.0.2 Detached dwellings Applies t a building r use where a grup f peple live as a single husehld r family. Examples: a hliday cttage, barding huse accmmdating fewer than 6 peple, dwelling r hut. 2.0.3 Multi-unit dwelling Applies t a building r use which cntains mre than ne separate husehld r family. Examples: an attached dwelling, flat r multi-unit apartment. Clause A1 - Classified Uses 3.0 Cmmunal residential 3.0.2 Cmmunity service Applies t a residential building r use where limited assistance r care is extended t the principal users. Examples: a barding huse, hall f residence, hliday cabin, backcuntry hut, hstel, htel, mtel, nurses hme, retirement village, timeshare accmmdatin, a wrk camp, r camping grund. 3.0.3 Cmmunity care Applies t a residential building r use where a large degree f assistance r care is extended t the principal users. There are tw types: (a) (b) Unrestrained; where the principal users are free t cme and g. Examples: a hspital, an ld peple s hme r a health camp. Restrained; where the principal users are legally r physically cnstrained in their mvements. Examples: a brstal r drug rehabilitatin centre, an ld peple s hme where substantial care is extended, a prisn r hspital. Ministry f Business, 29 20 April 2018
A.3 Relevant clauses f the Building Regulatins 19 5 Change the use: what it means Fr the purpses f sectins 114 and 115 f the Act, change the use, in relatin t a building, means t change the use (determined in accrdance with regulatin 6) f all r a part f the building frm ne use (the ld use) t anther (the new use) and with the result that the requirements fr cmpliance with the building cde in relatin t the new use are additinal t, r mre nerus than, the requirements fr cmpliance with the building cde in relatin t the ld use. 19 The Building (Specified Systems, Change the Use, and Earthquake-prne Buildings) Regulatins 2005 Ministry f Business, 30 20 April 2018
Appendix B B.1 As-built and 2016 cnsented flr plans Bedrm Fire-rated dr Bedrm Kitchen and Living rm Fire-rated linings Bedrm Bedrm Bedrm Figure B1(a): As-built basement flr plan (nt t scale) Bedrm Bedrm Kitchen Bedrm Bedrm Bedrm Figure B1(b): Cnsented basement flr plan (nt t scale) Ministry f Business, 31 20 April 2018
Bedrm Living rm Bedrm Living rm Bedrm Bedrm Figure B1(c): Cnsented grund flr plan (nt t scale) Lunge/r bedrm Living rm Bedrm Kitchen Bedrm Bedrm Figure B1(d): As-built grund flr plan (nt t scale) Ministry f Business, 32 20 April 2018