Conversion from a retail shop to a bakery – A cautionary tale about the Change of Use implication
For this project, the base building was a simple two-level structure, and due to the ground slope, both levels have direct egress to the outside. The upper level was proposed to be fitted out as a bakery from an existing retail space. Both the old use and new use were concerned with small occupancy – fewer than 10 people. The implication was, in effect, a change from selling goods to foods. To many, this would appear to be minor works that would not concern the base building compliance. But in fact, council did indeed request a base building review.
Upon reviewing the case with the council, we discovered that they deemed the fit-out to be considered ‘Change of Use’.
According to MBIE, a change of use occurs when both:
- the use of a building or part of a building changes from one use to another as defined in the Building (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005 (the Regulations)
- and the new use has more onerous or additional Building Code requirements than the old use.
We need to understand the defined term of the building’s ‘use’:
The ‘use’ of every building or part of a building is categorised by law. For the purposes of the Building Act, that use is specified in Schedule 2 of the Regulations.
The key issue here is that simply changing the ‘use’ is not automatically considered as ‘Change of Use’ as defined as section 115, which would trigger some base building upgrades on the ‘as nearly as is reasonably practicable’ (ANARP) basis.
The secondary condition is that the new ‘use’ must be more onerous in terms of building compliance requirements.
Due to the addition of a commercial kitchen, the ‘use’ technically changed, even though the perceived fire risk was the same (the purpose group changes from CS to CL).
In this specific case, it was tricky to determine whether the new ‘use’ was any more onerous than before as the triggering compliance requirement. After some research, the only onerous requirement was found on the structural loading requirement from retail to the bakery (therefore commercial kitchen), which changed from 4kPa to 5kPa. The existing floor was only designed to 2.5kPa. This crucial fact would not have been easy to identify without the help of a structural engineer.
The relevant code requirement on Change of Use is quoted below:
“115 Code compliance requirements: change of use
An owner of a building must not change the use of the building,—
in any other case, unless the territorial authority gives the owner written notice that the territorial authority is satisfied, on reasonable grounds, that the building, in its new use,—
will comply, as nearly as is reasonably practicable, with every provision of the building code that relates to the following:
means of escape from fire, protection of other property, sanitary facilities, structural performance, and fire-rating performance:
access and facilities for people with disabilities (if this is a requirement under section 118); and….”
So, yes, the application was technically considered as ‘Change of Use’ under the Building Act.
As this is an old building, without detailed structural assessment, if the building is to comply in full with current structural code requirement, the cost of the upgrade is very likely to be major. This might include potential significant time lost, to the point that would make this small project impossible to carry out.
It is however also noted that the Council must apply s115 requirement in ‘as reasonably as practicable’ basis. The nature of works and the base building conditions must be considered.
Very often, during the building consent process, council assessors rely on a competent consultant to provide a case justifying that a potentially doable base building upgrade is not feasible as it is not ‘reasonably as practicable’.
A consultant, in this case, would need to perform what is called ‘Gap Analysis’, analysing cost and sacrifice against the benefits. This, especially when challenged by the Council, requires a deep understanding of building compliance to provide such analysis to get acceptance.
The Auckland Council practice note extract on ‘Change of Use’, relating to ‘as nearly as is reasonably practicable’ can be found here:
‘… Council must apply the ‘as nearly as is reasonably practicable’ test. This was tested in a High Court judgement and involves a costs and benefits assessment where the sacrifices and difficulties of achieving full compliance are balanced against the advantages of upgrading….’
The keyword, here, is ‘balanced’. We used our expert compliance knowledge to justify that is the case and saved the client from potential major cost implication.