By Raf Dow
Abstract
This case study examines MBIE Determination 2024/072, which addresses the legal and practical requirements surrounding producer statements (PS3s), including PS3s for membrane roofing on residential buildings in New Zealand. Although it is commonly understood in the industry that a PS3 producer statement is required for membrane roofing compliance, the determination clarifies that councils cannot insist on a PS3 as the sole evidence of compliance when issuing a Code Compliance Certificate (CCC). The situation involved a homeowner being unable to provide certain producer statements, including a PS3 for the roof membrane, due to subcontractor changes and lost documentation. The council refused to issue a Code Compliance Certificate (CCC) on the grounds of missing producer statements—despite the roof’s proven performance and its passing inspections. The MBIE determination found this refusal unjustified, as the council did not consider other available evidence of compliance and there was no evidence of non-compliance with the building work. The paper highlights the importance of comprehensive record-keeping, particularly the role of Licensed Building Practitioner (LBP) Records of Work (ROWs), in ensuring traceability and compliance. The findings reinforce that while producer statements are valuable, they are not legally mandatory, and councils must consider all reasonable evidence of compliance. Practical recommendations are provided for roofing professionals to maintain robust documentation and clear communication with clients and authorities.
Case Study: When Is a Producer Statement (PS3) Really Required? Lessons from MBIE Determination 2024/072
Producer statements (especially PS3s for membrane roofing) are a familiar part of the compliance process, but a recent Ministry of Business, Innovation & Employment (MBIE) determination shows that councils can’t always enforce their use as a strict requirement. Here’s what happened, and what it means for our industry.
The Situation
A homeowner in Auckland applied for a Code Compliance Certificate (CCC) for a property with a membrane roof. The local council (the Building Consent Authority, or BCA) refused to issue the CCC, citing missing paperwork—including a PS3 producer statement for the membrane roof. However, it’s important to note that the core issue in this case was not simply the absence of the membrane PS3. The council’s refusal was based on a combination of outstanding producer statements and documentation for several aspects of the build (including the membrane roof, solar water heating, and reinforced concrete piles), rather than any identified non-compliance with the actual building work. The roof had been installed by a sub-contractor, and after several years and staff changes, the required PS3 couldn’t be located.
The Council’s Position
The council insisted that without the PS3 (and some other producer statements), they could not issue the CCC—even though:
· The membrane roof had passed physical inspections.
· The roof had performed well for years, with no leaks or issues.
· The building consent conditions required producer statements to “demonstrate compliance,” but didn’t make them the sole form of evidence.
The Owner’s Response
The owner pointed out that:
· The roof was in good condition and performing as intended.
· The inability to produce a PS3 was due to circumstances outside their control (staff changes, subcontractor not identified, lost paperwork).
· Other evidence (inspections, performance history) supported compliance.
MBIE’s Determination
MBIE found that:
· Producer statements (like PS3s) are helpful evidence, but not mandatory under the Building Act 2004.
· Councils must consider all available evidence of compliance, not just paperwork.
· If a PS3 can’t be provided, other proof—such as inspection records, site performance, or a manufacturer’s inspection—can be used.
· Refusing a CCC solely because a PS3 is missing, without specific evidence of non-compliance, is insufficient.
Key Quote from the Determination:
“A producer statement does not hold any particular status under the Building Act, and an authority cannot require that a producer statement (as the only outstanding matter) be provided for issuing a code compliance certificate.”
Practical Lesson: The Value of Good Record-Keeping
While the main focus of the MBIE determination was on producer statements, the case also highlights the importance of robust documentation in roofing projects. For restricted building work (RBW) such as residential roofing, Licensed Building Practitioners (LBPs) are legally required to provide a Record of Work (ROW) to both the homeowner and the council. This document records who carried out or supervised the membrane installation, but it also ensures that, years down the track, the project team can always identify the responsible parties—even if staff or contractors have changed.
In this particular case, the inability to identify the original membrane roofing subcontractor made it much harder for the owner to provide the paperwork the council wanted. Having a properly completed ROW on file would have included the LBP’s details and could have streamlined the compliance process. It’s also critical to apply for your CCC promptly after the final inspection. Delays can result in lost paperwork, unavailable contractors, and increased compliance challenges, as demonstrated by the difficulties faced in this case.
Takeaway::Keep thorough records for every project—including Records of Work (ROWs), producer statements, QA documentation, and photos. Homeowners should be advised to apply for their Code Compliance Certificate (CCC) without unnecessary delay. It’s not just about ticking boxes—it’s about protecting your business, your clients, and the long-term integrity of the building.
What This Means for Membrane & Waterproofing Pros
· Do your paperwork, but don’t panic if a PS3 goes missing. If you can’t provide a PS3, make sure you have other evidence—inspection records, performance reports, or a manufacturer’s assessment.
· Councils can’t enforce PS3s as the only route to compliance. They must consider all reasonable evidence that the membrane system meets the Building Code and consented plans.
· Communication is key. If you’re missing documentation, talk to the council early and suggest alternatives (such as a site visit by the membrane supplier or engineer).
· Keep clients informed. Let homeowners and builders know that while producer statements are best practice, they’re not the only way to prove compliance.
References
Building Performance. (n.d.). Producer statements: Guidance for building officials. https://www.building.govt.nz/building-officials/guides-for-building-officials/producer-statements/
Building Performance. (n.d.). MBIE determinations. https://www.building.govt.nz/resolving-problems/resolution-options/determinations/
Licensed Building Practitioners. (n.d.). Record of work – What you need to know. https://www.lbp.govt.nz/for-lbps/record-of-work/
Ministry of Business, Innovation & Employment. (n.d.). Building code and system insights. https://www.mbie.govt.nz/building-and-energy/building/building-system-insights-programme/building-code/