Specialty Timbers New Zealand

Determinations

Determinations are essentially a dispute resolution process allowed for under the Building Act where MBIE will make a ruling, generally between a Building Consent Authority (BCA) and building owner, although not always, on the interpretation of a Section of the Act or compliance with the Building Code. Determinations are legally binding decisions and must be accepted by building consent authorities for the building work considered in the determination.

Alternative solutions, precedence and determinations

Determinations may be used in alternative solutions and can set a precedent for BCA's and building owners.

From the MBIE website:

Persons with an interest

It is appropriate to include in the determinations process persons whose rights, obligations or interests might be affected by the outcome of the determination. Where those persons do not meet the test of a party under section 176, they are included as a person with an interest.

Persons with an interest in a determination may include:

a person involved in a civil dispute where the determination may be used in evidence
designers and builders whose work is the subject of the determination but who do not meet the definition of a party under section 176 – typically designers and builders whose work is in respect of buildings or building work that is not Restricted Building Work
developers, franchise holders, sector bodies
a manufacturer or supplier of a product
a neighbour who is not a party under section 176(e)(i) as the matter for determination does not relate to a provision in the building code that has the purpose of protecting other property, but has an interest in the determination (e.g. as it relates to building work near their boundary).

There may be others to be considered as persons with an interest where the outcome of the determination may set a precedent or have national significance.

At any stage during the determinations process, parties or persons with an interest in the determination may be identified either by the Ministry or one of the parties involved. When a person with an interest has been identified, the Ministry will notify the parties involved in the determination.

Use of previous determinations

Previous determinations may provide some guidance if you are faced with similar problems. Each determination is clearly written so you can see the analysis leading to the decision.

MBIE is not bound by previous determinations in the same way a court is bound by the decisions of a higher court. However, they are taken into account if the circumstances are similar.

From BRANZ Build 176 (1 Feb 2020):

All about determinations

DETERMINATIONS ARE legally binding decisions made by the Ministry of Business, Innovation and Employment (MBIE) on matters of doubt or dispute about building work. They must be accepted by building consent authorities for the building work considered in the determination.

They are written so that the discussion and analysis leading to the decision is clearly explained. This means they can be used as guidance by others when faced with similar problems.

From the Simpli website:

Comparison to a Determination

An alternative solution may be supported by an MBIE issued determination. MBIE determinations are essentially a dispute resolution process allowed for under the Building Act where MBIE will make a ruling, generally between a BCA and building owner, although not always, on the interpretation of a Section of the Act or compliance with the Building Code. Proposing an alternative solution that previously received a positive determination outcome is a deemed to comply pathway that BCAs must accept*.

Like product certifications, however, MBIE determinations are often project specific and limited in scope. If you are using a determination to support the compliance of your alternative solution it is often helpful to provide a summary explanation as to why the determination supports your solution, acknowledging the similarities and also any differences in scope and how the determination supports the compliance of your solution. This supports BCAs in their decision making and being satisfied on reasonable grounds that your solution meets the conditions of the determination and is therefore deemed to comply.

*Obviously the reverse is true too - ie a negative determination will make it uncomplying.

From NZ Wood design guides for timber buildings, Consenting timber buildings, Chapter 6.1, February 2020

6.3 PREVIOUS DETERMINATIONS / PRECEDENCE

Determinations are specific to buildings, building works, and the actions of inflicted parties, and as such are bound by the unique aspects of those specifics. Determinations therefore are only binding in respect of the specific circumstances of each individual application. While historical determination rulings can be useful for Building Consent Authorities or other parties in establishing regulation compliance interpretation, they cannot be seen as legal precedence given each determination is relevant only to its specific circumstances. Similarly is MBIE not bound by previous determinations in the way that a court is bound by the decisions of a higher court. Where circumstances are substantially similar however, there is expectation that MBIE take account of previous determinations and the rulings carry similar outcome. To aid in avoiding repetitive determinations, MBIE captures and publishes details of each determination including the analysis that led to a decision. This documentation can then be drawn upon as guidance for Building Consent Authorities and other parties faced with substantially similar circumstances to reach a resolution without requiring another determination. Noting that historical determinations do not set precedence however, parties may still choose to apply for a new determination if they feel their circumstances do not entirely reflect those of previous determinations, or a party is not satisfied with the ruling of a historical determination of similar but not identical circumstances.

From the Auckland Council website:

Previously issued determinations

Determinations are official decisions made by MBIE regarding compliance with the New Zealand Building Code. These determinations provide authoritative interpretations and rulings on specific building issues.

The outcome of ‘previous determinations’ may be used in support of an application, but as determinations are site specific, acceptance in one case will not automatically mean acceptance in all applications.

The applicant/designer will need to explain the link between the determination and the work they are proposing. They will need to outline how the previously issued determination supports that the alternative solution they are proposing will also achieve compliance with the Building Code.

For more on determinations go to the MBIE website »

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