Background
High-quality building products are central to safer and durable buildings, which will support the building and construction sector to make good decisions about the use of building products. Subsequent regulations will be able to clearly set out what building product information is required and clarify the responsibilities of manufacturers, suppliers, and builders in respect of building products and methods.The subsequent regulations are here and as of Monday, 11 December 2023 came into force. These regulations therefore impact new (rather than used) products which are manufactured in or imported into the country on or after that date. The intent is that customers should have access to information about a building product before they purchase it and Class 1 and Class 2 products have slightly different disclosure requirements.[3]
What is in the regulations?
Regulations 4 to 7 describe what products are covered by the regulations, namely Classes 1 and 2 but not gas and electrical appliances and fittings.[4] Scaffolding is also omitted under regulation 7. The information requirements only apply to products that are critical to the performance of a building.
What information must be disclosed in relation to a building product, by class, is set out in regulations 8 and 9. Those in Class 1 must comply with the information required in Schedule 1 and the bespoke products in Class 2 must comply with the substantive disclosure in Schedule 2.
When information must be disclosed, and by whom, is the next issue. Retailers and distributors must be vigilant that the required information (provided by the manufacturer and importer) is available for the designated building products they sell or distribute. The requirements for the timing of disclosure are set out in regulations 10 and 11. For Class 1, the timing is either before or when the product is offered for supply by a wholesaler, retailer, or other distributor of the product.  For Class 2, the timing of disclosure is before the product is ordered by a client.
The final two regulations are 12 and 13. They relate to first the method of disclosure and the requirements to review, update and maintain required building product information. The requirements apply to responsible persons, being a defined term outlined below. Each responsible person must ensure the required building product information is published and maintained on an Internet site and available free of charge and without pre-conditions (for example, the need to create an account, insert a password, log in, or provide an email address). The internet address must be on the product and the site must display the schedulised substantive disclosure.
Changes to building product information must be provided on the website, as must changes to the actual website address.
The obligations under the regulations are imposed on a responsible person which is defined in regulation 3 as:
in relation to a designated building product, means—
- the person living, or incorporated, in New Zealand who is the manufacturer or importer of the building product; and
- each of the persons living, or incorporated, in New Zealand who sell the building product by wholesale or retail, or otherwise distribute the building product
The short set of regulations is intended to have a substantial positive effect on the construction industry.
Why were the regulations made?
A high-performing building and construction sector is crucial to New Zealand’s economy and vital for delivering safe, healthy and durable buildings for all.[5]
The new regulations were developed for a threefold purpose. First, to help designers, builders and homeowners to choose the most suitable products for their purposes (from a range of alternatives) and to install them correctly. Secondly, to promote more efficient building consenting practices, and lastly to result in less necessary reworking of building work and fewer defects claims.[6]
The Building Act 2004 provides a number of statutory tools to address non-compliance. MBIE may elect to:[7]
- issue a notice to take corrective action, which requires a person to take actions to remedy the non-compliance, or ensure that the non-compliance is not continued or repeated;
- issue an infringement notice; or
- carry out a prosecution.
It is an offence to omit regulatory information or to make a false or unsubstantiated claim.
Conclusion
MBIE’s building systems reforms have been ongoing since around 2019.[8]
The coming into force of the regulations represents further strides on the journey to achieving the legislative intent of the governing Building (Building Products And Methods, Modular Components, And Other Matters) Amendment Act 2021 (including the amended sections 4(2)(b) and 4(2)(f) of the Building Act 2004):
(2) Â Â Â Â Â In achieving the purpose of this Act, a person to whom this section applies must take into account the following principles that are relevant to the performance of functions or duties imposed, or the exercise of powers conferred, on that person by this Act:
…
(b)Â Â Â Â Â Â the need to ensure that any harmful effect on human health resulting from the use of particular building products, building methods, or building designs, or from building work, is prevented or minimised:
…
(f)Â Â Â Â Â Â Â the importance of standards of building products, building methods, and building designs in achieving compliance with the building code:
References
[1] Ministry of Business, Innovation and Employment. (2023, December 13). Transcript: Building product information requirements.Â
[2] New Zealand Parliamentary Debates. (2020, May 27). 746 NZPD 18180.
[3] Class 1 products are mass-produced or produced in batches (e.g., weatherboard, plasterboard, insulation, structurally graded timber), and Class 2 are bespoke products including customised concrete mixes, specialty doors, and joinery.
[4] Gas Act 1992 and Electricity Act 1992. (Omitted during consultation process).
[5] Ministry of Business, Innovation and Employment. (2022, July 25). Regulations under the Building (Building Products and Methods, Modular Components, and Other Matters) Amendment Act 2021.
[6] Carter Holt Harvey Limited v Minister of Education [2016] NZSC 95; [2017] 1 NZLR 78; and Cridge v Studorp Ltd [2021] NZHC 2077; [2022] 2 NZLR 309.
[7] Ministry of Business, Innovation and Employment. (2023, December 13). Compliance and enforcement: Building product information requirements.Â
[8] Ministry of Business, Innovation and Employment. (2023, December 13). Transcript: Building product information requirements webinar.
