Most commercial fitout work in New Zealand requires a building consent. The general rule under the Building Act 2004 is that all building work requires consent unless it is specifically exempted by Schedule 1. Purely cosmetic work generally falls outside the consent regime. Almost anything that touches fire systems, structure, means of escape, sanitary facilities or plumbing does not.

Getting this assessment right at the start matters more than most clients expect, because the answer determines whether your programme carries a 6 to 10 week consent period or does not.

The default position

Section 40 of the Building Act 2004 prohibits building work without a consent unless an exemption applies. The burden sits with the building owner to establish that an exemption applies, not with the council to prove that consent is required.

Building work carried out without a required consent creates real problems: enforcement action, difficulty obtaining a Code Compliance Certificate, complications on sale or refinancing, insurance issues, and a building warrant of fitness that cannot be properly issued.

The following commercial interior work is generally exempt, provided it does not affect any specified system, the primary structure, or means of escape from fire:

  • Repainting and redecoration
  • Replacing floor coverings like for like
  • Replacing ceiling tiles within an existing grid
  • Installing or replacing loose furniture and freestanding fixtures
  • Non structural, non fire rated signage internally
  • Minor repairs and maintenance using comparable materials
  • A penetration of 300mm diameter or less, provided it does not affect the primary structure or a specified system such as a fire suppression system

That last exemption is narrower than it sounds and is frequently misapplied. A 300mm penetration through a fire rated wall affects a specified system. A penetration through a structural element affects the primary structure. Either takes the work outside the exemption.

Consent is generally required for commercial fitout work that:

Affects fire safety systems. Relocating or adding sprinkler heads, smoke detection, alarm devices, emergency lighting or exit signage. Modifying fire rated construction, including partitions, ceilings and penetrations through fire separations.

Affects means of escape from fire. Changing the layout so that travel distances, exit widths, exit numbers or the path of egress are altered. This is triggered more often than clients expect, because adding meeting rooms to an open plan floor changes egress paths.

Affects the primary structure. Any load bearing element, any new significant load such as plant or heavy storage, any penetration through structural elements.

Involves sanitary facilities or plumbing. New or relocated toilets, kitchens, tea points with drainage, and any drainage or potable water work.

Involves specified systems. Anything on the building’s compliance schedule, which typically includes fire systems, mechanical ventilation, lifts, emergency lighting, backflow preventers and automatic doors.

Constitutes a change of use. See below, because this carries additional obligations beyond the consent itself.

For most commercial fitouts of any substance, at least one of these applies. Assume consent is required and be pleasantly surprised, rather than the reverse.

Change of use: the trap in commercial fitout

Where a fitout changes the building’s use category under the Building Act, the owner must satisfy the territorial authority that the building will comply with the Building Code for means of escape from fire, protection of other property, structural performance, fire rating, and access and facilities for people with disabilities, as nearly as is reasonably practicable.

That phrase, as nearly as is reasonably practicable, is the expensive part. It can require upgrades to fire systems, accessibility provisions and structural elements that have nothing to do with the fitout you actually wanted to do.

Common commercial change of use scenarios:

  • Converting retail or office space to hospitality
  • Converting office space to a childcare, medical or education use
  • Converting warehouse or industrial space to office or retail
  • Increasing occupant density significantly
  • Converting commercial space to accommodation

If your project involves any change in what the space is used for, get a change of use assessment before you commit to the deal, not after. The upgrade obligations can exceed the cost of the fitout itself and, in some buildings, can make the project unviable.

Certificate of Public Use

Where a change of use is involved and the public will use the premises before a Code Compliance Certificate has been issued, a Certificate of Public Use may be required. This allows the public to occupy or use the building in the interim, subject to conditions.

For a hospitality or retail operator with a fixed trading date, the interaction between the CCC timeline and the CPU process is a real programme consideration and should be raised with the council early.

Building consent addresses whether the work complies with the Building Code. Resource consent addresses whether the activity is permitted under the district plan. They are different processes with different timeframes, and needing one does not tell you anything about whether you need the other.

Common resource consent triggers for commercial fitout in Auckland:

  • Signage exceeding permitted dimensions or illumination
  • Extended hours of operation
  • Kitchen extraction discharge to air
  • Outdoor dining on private or public land
  • A change of activity not permitted in the zone
  • Car parking changes
  • Heritage or special character overlays

Resource consent runs on its own timeline independent of the construction programme, and for hospitality projects it frequently takes longer than the building consent. Start it early.

How to establish what you need

Get a pre application assessment. Auckland Council and other territorial authorities offer pre application meetings. For a project of any complexity this is time well spent and can prevent an entire round of requests for further information.

Engage a fire engineer early where fire systems or egress are involved. Fire design is frequently the item that determines both the consent outcome and the fitout scope.

Do not rely on the previous tenant’s arrangement. The fact that the last occupier operated in the space does not establish that their work was consented or that your use falls in the same category.

Ask for the compliance schedule and the building’s consent history. The building owner should hold both. They tell you what specified systems exist and what has previously been consented.

Assume consent is needed until advised otherwise in writing. Programme on that basis. If it turns out you are exempt, you have gained weeks. The reverse is far more painful.

Frequently asked questions

Does a commercial fitout need building consent in New Zealand? Usually yes. All building work requires consent under the Building Act 2004 unless specifically exempted by Schedule 1. Work affecting fire systems, means of escape, the primary structure, sanitary facilities or any specified system on the building’s compliance schedule requires consent. Purely cosmetic work such as repainting and like for like floor covering replacement generally does not.

Can I repaint and recarpet without a consent? Generally yes. Repainting, redecoration and like for like replacement of floor coverings are normally exempt, provided the work does not affect a specified system, the primary structure or means of escape.

What is the 300mm penetration exemption? Schedule 1 exempts a penetration of 300mm diameter or less, provided it does not affect the primary structure or a specified system such as a fire suppression system. The exemption is narrow. A penetration through a fire rated element or a structural member falls outside it.

What is a change of use and why does it matter? A change of use occurs when a building or part of it changes to a different use category under the Building Act. It triggers an obligation to upgrade means of escape from fire, protection of other property, structural performance, fire rating, and accessibility as nearly as is reasonably practicable. These upgrade costs can exceed the cost of the fitout and should be assessed before committing to a lease.

Do I need resource consent as well as building consent? They are separate. Resource consent may be required for signage, extended trading hours, extraction discharge, outdoor dining, parking changes or an activity not permitted in the zone. For hospitality projects, resource consent frequently takes longer than the building consent and should be started early.

Sources

  • Building Act 2004, section 40 and Schedule 1
  • Ministry of Business, Innovation and Employment, guidance on exempt building work
  • Auckland Council, building consent and resource consent guidance
  • Auckland Unitary Plan

This article is general information and not legal advice. Whether consent is required depends on the specific scope of work and building. Confirm with your territorial authority or a suitably qualified adviser.