KEY POINTS:
Q. I have a commercial property with asbestos roofing I am planning to replace. Is this exempt work under Schedule 1 of the Building Act 2004?
A. Removal and replacement of asbestos roofing would be classified as "building work" under section 7 of the Act. However, Schedule 1 to the Building Act provides exemptions from the need for a consent for certain building works. In particular, paragraph (a) of the schedule states that a building consent is not required for "any lawful repair and maintenance using comparable materials".
So, is the replacement of asbestos roofing with another type of roofing "lawful repair and maintenance using comparable materials"?
This raises two questions; what do "lawful" and "comparable" mean?
The Department of Building and Housing (DBH) determination 2006/116 took the meaning of "lawful" to be "maintenance and repair that will lead to ongoing compliance with the Building Code". Compliance document CD-F2 published by the DBH says an "acceptable solution" with regard to asbestos is:
2.0.1 Asbestos or materials containing asbestos are acceptable when the asbestos is bonded in a matrix, or encapsulated with an appropriate coating to ensure no free particles can escape. Asbestos that can crumble is not acceptable for the purposes of the Building Code. If the use of asbestos does not comply with the code, then the replacement of ACM with another ACM is not "lawful", as it does not lead to ongoing compliance. However, replacement with a different code-compliant product would be lawful. Whether this replacement means a building consent must be obtained requires consideration of the meaning of "comparable".
The DBH determination 2000/01 held that in the building context, "comparable" means "akin to or like the originals in the sense of their being made of similar materials and similar configuration" and "their performance in terms of the building code was equivalent to or as good as that of the originals". These are two steps to a single test. Determination 2006/116 noted that "all requirements must be met to meet the criteria set out in Determination 2000/01". If the replacement does not meet either of the tests, the materials are not likely to be "comparable" under clause (a).
Asbestos was widely used until its health hazards were recognised in the 1970s. Regulations now impose restrictions on those working around asbestos. Any work involving asbestos that can crumble is "restricted work" and must be performed or supervised by someone with a certificate of competence.
Replacement of an ACM with a product of similar composition (ie including asbestos) is unlikely to be desirable, and is potentially impractical as well, as ACMs are no longer readily available.
It may be that modern equivalents (possibly alternative organic fibres or glass reinforced plastics) would be acceptable to the DBH/Council as being "of similar materials and configuration". However, the second part of the test must also be met. The performance of the new materials must be equivalent to, or as good as the ACM in terms of code compliance.
It is likely you will require a building consent for the replacement of asbestos roofing unless you can replace it with a material that complies with both similarity of composition and performance.
Asbestos was used particularly for its strength, fire-retardant properties, and light weight. Each alternative "similar" material would have to satisfy the DBH/a Council that it is similar in performance under the Code to the ACM that is being removed.
If it is not clear whether your building work is exempt you may apply to the relevant council under clause (k) of the First Schedule, or to the DBH for a determination under section 177 of the Building Act, that the work complies with the Code.
As removing asbestos is hazardous, make sure you use contractors with certificates of competence for the work.
The information contained in Prime Assets is intended to provide general information in summary form current at the time of printing. The contents do not constitute legal advice and should not be relied on as such. Specialist advice should be sought in particular matters.
