Building Act 2004 convictions — appealed

Timothy Bates of Auckland law firm Legal Vision.

Timothy Bates of Auckland law firm TM Bates & Co reviews a recent appeal to the High Court of convictions and sentence for charges laid under the Building Act 2004.

This case concerns the convictions of three appellants who had been charged under section 40 of the Building Act 2004, which prohibits carrying out building work other than in accordance with a building consent.

Bella Vista development

The convictions each relate to a development of land near Tauranga. The first appellant was Mr Cancian, the director/shareholder of Bella Vista Homes Ltd (Bella Vista), which was the developer.

Bella Vista acquired land near Tauranga for the purpose of undertaking a subdivision known as The Lakes. It subdivided the land into sections and then sold land and building packages in the subdivision to the public.

The second and third appellants were The Engineer Ltd, the company contracted to carry out the engineering work in relation to the construction of the dwellings, and Mr Cameron, the director/shareholder of that company.

As work progressed on the development, Worksafe New Zealand and the council grew concerned regarding the quality of the work and the safety of Bella Vista employees.

They intervened, leading to the cessation of construction work in the subdivision.

Charges were ultimately laid by the council against the three appellants under the Building Act 2004 and, in the District Court, the appellants were convicted on several charges of carrying out building work not in accordance with building consent in relation to some of the properties in the subdivision.

Mr Cancian

Mr Cancian appealed against his convictions in relation to three of the eight properties at the subdivision. His appeal was successful in relation to 301 Lakes Boulevard only.

In the appeal, Justice Lang found that the filing of a Record of Work does not establish that the Licensed Building Practitioner that files it carried out or supervised the restricted building work.

He ruled that it is a record of restricted building work having been carried out, not building work per se. In addition, the court noted that section 88(4)(a) of the Building Act 2004 does not, of itself, create any liability in relation to any matter to which the Record of Work relates.

It followed from this that the only ground that Mr Cancian could have been convicted in respect of this property was if he had project managed construction at this property.

There was no evidence that he had occupied this role in respect of this property, thus the conviction here was overturned.

The High Court did rule that Mr Cancian’s project management role had been established as regards 297 Lakes Boulevard.

Although Justice Lang did not agree with some of the reasoning applied to the conviction, the conviction was upheld in respect of this property on the basis that Mr Cancian was the overall project manager for the particular property.

In particular, the court held that where Mr Cancian was directly involved in excavation decisions relating to the heights and siting of houses to be built in the subdivision, then this directly impacted on the rear walls of 297 and 301 Lakes Boulevard, which could not be constructed as consented and required significant variation in height and footing size.

The High Court considered that Mr Cancian must have been aware of that fact.

As regards 5 Aneta Way, Justice Lang upheld the conviction on the basis that the particulars were proven beyond reasonable doubt, and Mr Cancian had a responsibility on the basis he was the LBP on-site.

Producer statements

The second and third appellants appealed convictions on charges relating to four of the eight properties at the subdivision.

The charges laid by the council against Mr Cameron and The Engineer Ltd were based on the fact they had filed producer statements with the council confirming that work had been carried out in accordance with the consent when this was not the case.

The court noted that producer statements have long been fraught with issues as to their legal status.

Their widespread use under the 1991 Building Act has led to issues, due to being relied upon without sufficient scrutiny.

Although their legal status was altered pursuant to the Building Act 2004 with constraints on resources, they are still widely used as a means of establishing compliance with code and building consents.

At paragraph 58, Justice Lang helpfully notes the utility of producer statements, avoiding the need for building consent authorities (BCAs) to expend their resources in the physical inspection of every item of building work.

He observes they have particular value in relation to building works such as foundations, masonry, and structural aspects within buildings.

It was noted: “These can be very technical parts of a construction project, and many BCAs do not have the resourcing or in-house capability to inspect these aspects of the building.”

Justice Lang found that the issuance of producer statements in relation to non-compliant building work did not give rise to liability under section 40, primarily on the basis that the building consent did not refer to producer statements and, therefore, issuing a producer statement could not be in breach of that building consent.

Ultimately, the court therefore ruled that Mr Cameron and The Engineer Ltd’s appeals against conviction were allowed, and the convictions and fines were quashed.

This decision makes some important comments about the significance of producer statements and the problems they create where they are not accurate.

Whilst an engineer or architect may take comfort from this case that liability under section 40 will not flow where a producer statement is shown to be inaccurate, the liability of an inaccurate producer statement may lie in negligence or other causes of action.

Furthermore, the inaccuracy of a producer statement may bite to its provider in so much as a BCA may no longer be willing to accept a provider’s future producer statements.

Note: This article is not intended to be legal advice, nor a substitute for legal advice. No responsibility or liability is accepted by TM Bates & Co or Building Today to anyone who relies upon the information in this article.

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