Re-tiling your shower – a slippery issue in more ways than one

A recent Law News article in Issue 17 (5 June 2015) entitled “Tiled showers – did you know a building consent may be required?” has been generating a considerable amount of interest.

Not only was the story picked up on by the mainstream media, receiving coverage on www.stuff.co.nz, but we have received some letters about the issues discussed as well.

Registered Building Surveyor Alan Light wrote to Law News as follows on 22 July 2015:

“Dear Editor

The article (5 June) ‘Tiled showers-did you know that a building consent may be required?’ raises some issues that need to be clarified.

It is true that tiled showers come with higher construction risks and the waterproof membranes are critical to them. Builders whether professionals or home owners need to take great care in their construction whether they have a consent or not and purchasers need to be vigilant.

The law states:

S 17 requires all building work to comply with the building code with or without consent.

S 40 requires all building work to be undertaken in accordance with a building consent.

S 41 exempts work described in Schedule 1 from the need for consent (but owner can still seek one).

There are two possible clauses in Schedule 1 that might allow a tiled shower to be built:

1. Under 1(2) as a replacement of assembly in the same position with comparable assembly. What is ‘comparable’ has been interpreted to mean ‘like for like’ but must also have its ordinary meaning in my view; ‘to be able to be compared to’ and ‘as good as or better’ (this allows for an existing shower to be replaced with a comparable tiled one).

2. Under 35. That allows alteration to sanitary plumbing as long as number of fixtures are not increased in the house and the plumbing work has been undertaken by registered plumber, or one sanitary fixture replaced with another sanitary fixture (which may be a shower and there is no distinction for a tiled shower).

The article goes further however in relying on a MBIE guideline document page 87. It does state; ‘Examples where building consent is required’:

‘Installing a tiled wet area shower will require a building consent. This is because it will involve critical building work that is not sanitary plumbing, such as carpentry and installing waterproof membranes.’

This statement is not supported by a simple reading of the Schedule 1 and lawyers must appreciate its legal standing as perhaps a prudent warning issued under s175 rather than a fact and not a binding document. A tiled wet area shower is still a sanitary fixture and does perhaps involve carpentry and membranes but so too could the installation of a bath or other fixture, but these are still allowed and not criteria to be considered under schedule1; 1 or 35. The letter of the law should be upheld not council or MBIE policy.

The article then considers the warranty clauses in ADLS Agreement and consequence of unconsented building work. The wording should reflect that the work may not have required consent and perhaps ADLS could look to improve this clause. Owners are entitled to rely on Schedule 1

Finally the article perpetrates a myth that unconsented work (that required a consent) may be unlawful and owners forced to remove it. The power of a council has been well described since 2000 and recently eloquently restated in a MBIE determination 2009-115 (www.building.govt.nz/determinations-view-past-determinations) that states at 6.9:

‘6.9 The following view was held in Determination 2000/1:

The [Building Industry] Authority recognises that if building work that was done unlawfully is not demolished then the owner would appear to benefit from its unlawful actions. Nevertheless, if that building work, although done unlawfully, complies with the Building Code, then the Authority considers that it is unreasonable to require it to be demolished so that it can be constructed again …’

The only consequence of work that is not dangerous or insanitary is that the owner (at their prerogative) may apply for a Certificate of Acceptance (CoA) under s96. There is no continuing offence in unapproved work as s40 states that the offence is with the person ‘carrying’ out the building work (without consent) not with the owner who may inherit it (refer determination 2014-035 at 5.5.2).

So, if no continuing offence exists, the work is adequate, and does not need to be removed by the new owner, then what is the problem?

The loss of value alluded to in the article occurs because of the reputational damage from impugning the un-consented tiled shower not the shower itself and it could be leaking, consented or not. Purchasers’ lawyers must not look to consents to protect their client interests but ensure due diligence with competent inspection is undertaken and they and their client must accept caveat emptor.

Alan Light NZCB, MBOINZ, MNZIBS, Registered Building Surveyor.”

Law News gave the authors of the original article, Joanne Chilvers and Emily Black of Hesketh Henry, the chance to respond. They wrote to us as follows on 4 August 2015:

“Dear Editor

We observe the comments of Mr Light in his letter dated 22 July 2015, and offer the following comments in response:

  • Regardless of Mr Light’s opinion, MBIE and several major Councils (including Auckland, Hamilton City and Waikato District Councils) have taken the position that replacing a tray and liner style shower with a tiled shower is generally not covered by either of the exemptions listed in Schedule 1 of the Building Act to which Mr Light refers. MBIE has also supplied its reasoning in support of this position.
  • It should be kept in mind that if a home owner chooses to dispute MBIE’s position on this issue, then at the time when they come to sell their home they need to be aware of the standard vendor warranties in the ADLS/REINZ agreement for sale and purchase. They would be ill-advised to ignore the warranties in the face of the current interpretations of Councils and MBIE.
  • Mr Light’s comment that purchasers’ lawyers and purchasers ‘must accept caveat emptor’ is not compatible with the vendor warranties given in the current ADLS/REINZ agreement for sale and purchase. When acting for vendors, lawyers should ensure that their clients are aware of and understand the extent of those vendor warranties and take steps to prevent their clients incurring liability under those vendor warranties.

Joanne Chilvers, Senior Associate, and Emily Black, Senior Solicitor, Hesketh Henry.”

… to which Mr Light further commented:

“Owners and the community look to lawyers to safeguard their interests and interpret the strict meaning of the law. If councils and MBIE are misleading the public then they must be ‘called out’. If warranty clauses are tripping up owners (because purchasers allege work needed consent and it did not) then perhaps that clause should be simply removed but the clause 6.2 (5) does say ‘Where vendor has done work … building consent required by law was obtained’). Allowing councils and MBIE to determine what the law means and says is surely a case of the ‘tail wagging the dog’. If the legal profession doesn’t face this who will?”

We would be interested in hearing the views and experiences of other practitioners on these issues. Please send any letters or contributions to the Editor at lisa.clark@adls.org.nz.

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