It’s time we spoke about the elephant in the room.
MBIE.
The lack of GIB is a hot topic. So hot that the government has established a ministerial task force.
That might address the symptom, shortage of GIB, but it won’t go near addressing the real problem.
Aggressive marketing alone did not enable Winstone Wallboards to achieve its market dominance. The specification of GIB faced fewer Council driven barriers than for any other plasterboard. Designers knew GIB would get through Council processes without a second glance. Winstone Wallboards benefited from the inconsistent, and at times, unfair application of the building regulatory framework and through this built and grew its market share.
MBIE as steward of the building regulatory framework must learn lessons from the GIB shortage and ensure that this does not happen again.
In New Zealand regulatory stewardship is a statutory obligation. Section 12(1)(e) of the Public Service Act 2020 provides that one of the five core ‘public service principles’ is to proactively promote stewardship of the public service, including stewardship of the legislation administered by agencies.
In 2013, The Treasury noted that
…. recent experience in New Zealand of significant regulatory failures reminds us that how well government policy is translated into workable legislation, and how well regulatory regimes are monitored, implemented, enforced and maintained is just as important for regulatory performance as the policy design.
The construction sector in New Zealand is in trouble.
The cost is unnecessarily high.
The time to build is long and arduous.
The design and the construction processes, particularly for residential are fragmented. We have neither a clerk of works or clerk of design.
We have learned little from leaky buildings and have forgotten the wise words of the 2002 Hunn Report.
New Zealand needs the construction sector to function efficiently, for costs to reduce wherever possible and for the quality of buildings to improve.
This will only be achieved through MBIE stepping up and being a more effective and competent steward of the system.
A key focus for MBIE must be Council behaviour.
New Zealand needs the Council processes to be consistent, transparent and fair.
New Zealand needs for Councils to act within the law when carrying out their building regulatory functions.
Building owners, product suppliers, designers and builders need to know what is required, from them, they need to know what objective criteria will be applied and they need to trust that the system will be fair.
A fair system will weed out the rubbish, and incentivise the quality; documentation and products.
A fair and understood system will incentivise and encourage voluntary compliance.
Voluntary compliance will reduce the risk faced by Councils.
I am unsure why MBIE continues to ignore Councils’ performance.
I am unsure why MBIE looks to defend the performance of the Councils.
But unless MBIE tackles the way in which Councils are carrying out their building regulatory roles we will never see any improvement in the construction sector.
MBIE seem to turn a blind eye to Councils’ ignorance of the law, high-handed behaviour and costs that cannot be appealed by a customer.
MBIE seems to condone both Council behaviour and the lack of consequences arising from their actions.
MBIE does not focus sufficiently on implementation. And worryingly it does not seem to have the necessary skills to be able to focus in this area.
There is a significant power imbalance between Council staff and everyone else.
Challenging a Council decision is very difficult.
Determinations are taking far in excess of the 60 working days allowed for in the Building Act. And many people do not have the luxury of waiting even for the 60 working days.
The industry and public in general are scared to challenge councils. That fear is founded as I have seen first-hand the consequences of challenging a Council.
When and why did council behaviour become so inimical to building productivity?
New Zealanders must be able to rely on MBIE, to introduce workable legislation and to ensure that the regulatory regime is effectively implemented.
It must demonstrate effective leadership as part of its stewardship.
It can do this by:
Providing definitive advice to product suppliers that will be relied upon and actioned across New Zealand. This advice must include applicable building code clauses and objective criteria for establishing reliable evidence.
Providing objective criteria that creates a reasonable grounds framework that is consistent, understood and fairly applied.
Holding Councils to account where their actions are demonstrably inconsistent with the legislation.
Before introducing legislation it needs to have considered the ‘devil in the detail’.
The following examples suggest actions MBIE could have undertaken that may have changed what we now face.
GIB
In 2009, the solution for managing product substitution (Minor Variation Regulations) was passed into law. Managing the substitution of one brand of plasterboard for another should have been simple. The comparable product test would have been straight forward for all uses apart from where bracing and fire resistance rating performance was required.
In 2022 MBIE has issued plasterboard substitution ‘guidance’. The guidance lacks objectivity and does not provide a definitive pathway that could be followed and where Council behaviour could then be predicted. It does not represent analytical thinking that regulatory stewardship requires.
Building Product Information Regulations
MBIE has recently introduced Regulations that require product suppliers to supply information on their products.
This sounds good in theory except that
No service has been established that a product supplier could rely on to determine which building code clauses to include?
Regulation 7 excludes some items, such as a truss and frame from being considered a building product. But what happens if a rigid air barrier is also installed; does that fall under Reg 7 or does it becomes a product category 2?
The regulations uses the term product line; but what is a product line, does it cover a brand of flexible building wrap and all associated tapes and fixings?
The regulations require that the name of the manufacturer as well as the supplier be disclosed. But for products that comprise multiple products does the manufacturer for each component have to be disclosed?
MBIE is preparing Guidance, but it is not guidance that product suppliers need; it is someone at the end of a phone answering their questions.
And what happens where a product supplier has met all the information obligations and Council still refuses to include their specification in a project? What’s the point in providing this information if it is ignored by Councils?
Individuals pay
The cost of MBIE’s failure to hold councils to account costs the individual; building owner, product supplier, builder. The financial burden is real and is unfair.
There are any number of examples where Council have incurred significant cost that is both unfair and unkind and has nothing to do with mitigating risk.
And the worst thing about this is the individual is utterly powerless.
I am tired
I am tired of being mis-treated and personally attacked by councils because I expect them to comply with the law and I feel for the individuals that I am trying to help.
I am tired of being nervous that notwithstanding I am right, the outcome may be worse for the person I am trying to help.
I am tired of doing free work because I see how unfairly Council is treating an individual.
MBIE must do something
If government is serious about its housing policy and MBIE is serious in delivering those policy objectives for their Minister then it must heed the words of Treasury workable legislation, and how well regulatory regimes are monitored, implemented, enforced and maintained is as important as the policy itself.
MBIE must lead a move away from the unruly wild west to a regulatory sector that operates fairly, transparently, lawfully and objectively. MBIE must recognise and understand the problems that will continue if Councils are not brought into line.
MBIE must lead a change in the sector where compliance is incentivised and rewarded.
To achieve this MBIE needs good, practical technical advice to work in conjunction with the policy analysts.
Louise Swann
The Good Building Consultant