28 JULY 2011 NEW ZEALAND GAZETTE, No. 113 3199

Where this criterion applies, the claimant will be required to provide evidence of the scope and costs of the repairs to the satisfaction of the Department which will be reviewed against the estimate in the full assessor’s report. The agreed repair costs will be an amount determined by the Department. When considering the scope of repairs carried out, the Department will take into consideration the definition of repair in the Act and whether any aspects of the repair works constitute betterment.

I. Existing claimants without a full assessor’s report who have undertaken repairs: Claimants who:

(i) have an eligible claim as at the date of this notice; and

(ii) have carried out or physically commenced repairs to the relevant dwellinghouse (whether or not the repairs have been completed) before the date of this notice which the claimant wishes to have included in the agreed repair costs; and

(iii) cannot obtain a full assessor’s report; and

(iv) had building consent granted for the repairs on or after 1 November 2009,

may be eligible for a contribution, provided that:

(v) criterion 1D will not apply; and

(vi) criteria 1E and 1F will only apply to the extent that the repairs have not been completed; and

(vii) all other applicable criteria are met; and

(viii) the repairs have been carried out in accordance with all applicable laws and are satisfactory to the Department.

Where this criterion applies, the claimant will be required to provide evidence of the scope and costs of the repairs to the satisfaction of the Department. The agreed repair costs will be an amount determined by the Department. If the evidence of costs provided by the claimant is not satisfactory to the Department, then the claimant will not be eligible for a contribution. When considering the scope of repairs carried out, the Department will take into consideration the definition of repair in the Act and whether any aspects of the repair works constitutes betterment.

Clause 2: Participating Territorial Authority Contribution

Subject to clause 2C, to qualify for a contribution from a Participating Territorial Authority:

A. the claimant must meet all of the criteria set out in clause 1; and

B. the territorial authority must owe a duty of care to a person in the position of the claimant in respect of the damage to which the full assessor’s report or the concise assessor’s report (as applicable) relates.

C. A claimant who:

(i) has previously been or is currently involved in any civil proceedings relating to the weathertightness of the dwellinghouse where the relevant Participating Territorial Authority is named as a party, or has been joined as a party; and

(ii) discontinues those proceedings before lodging a claim in accordance with the Act,

will not qualify for a contribution from the Participating Territorial Authority, unless the Participating Territorial Authority agrees otherwise.

Without limiting clause 2B above, as at the date of this notice:

1. the intended use of the dwellinghouse when built will be relevant to whether a Participating Territorial Authority has a duty of care, generally the intended use must have been for residential purposes; and

2. the Participating Territorial Authority may not owe a duty of care to dwellinghouses within mixed use developments depending on the proportion of the residential component of the development; and

3. a Participating Territorial Authority will not be required to contribute in circumstances where:

(a) the relevant territorial authority did not inspect the dwellinghouse or issue a code compliance certificate or interim code compliance certificate for the dwellinghouse.

(b) the relevant territorial authority issued a code compliance certificate for the dwellinghouse because required to do so by the Department by a determination under subpart 1 of Part 3 of the Building Act 2004.

(c) the relevant territorial authority issued a code compliance certificate or interim code compliance certificate for the dwellinghouse for non-weathertight aspects of the dwellinghouse only.

(d) a private certifier carried out all inspections and issued a code compliance certificate, regardless of whether the relevant territorial authority holds the private certifier’s records.

(e) the relevant territorial authority issued a code compliance certificate or interim code compliance certificate for the dwellinghouse in reliance on a certificate from a private certifier issued under section 56 of the Building Act 1991 in respect of weathertightness related work.

(f) the relevant territorial authority never inspected the weathertightness related work forming part of the dwellinghouse.

(g) the relevant territorial authority inspected the weathertightness related work and either:

(i) issued a notice to fix (under the Building Act 2004);

(ii) issued a notice to rectify (under the Building Act 1991); or

(iii) otherwise advised the homeowner of any defects,

and a code compliance certificate was never issued.

(h) the claim relates to a dwellinghouse within a retirement village within the meaning of the Retirement Villages Act 2003, and the owner by or on behalf of whom the claim is made is the retirement village’s operator or promoter as defined in that Act.

For the avoidance of doubt, the above circumstances are not the only circumstances in which a claimant may not receive a contribution from a Participating Territorial Authority.

For further information please contact the Department of Building and Housing on freephone 0800 116 926 or visit their website www.dbh.govt.nz

Dated at Wellington this 28th day of July 2011.

KATRINA BACH, Chief Executive, Department of Building and Housing.

New Zealand Gazette, 22 February 2007, No. 20, page 412 (SR 2007/21)

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