Referral on a question of law relating to the application of s 40 Building Act 2004 to producer statements issued following or resulting from construction monitoring – interpretation of “building work” and “sitework” in s 7(1) – statutory purposes
Re Solicitor-General’s Reference (No 1 of 2022) [2024] NZCA 514
Section 40(1) Building Act 2004 provides that a person must not carry out any building work except in accordance with a building consent. Failure to comply with that requirement is an offence punishable by a maximum fine of $200,000.
There are conflicting High Court authorities on the question of whether issuing producer statements (following or as a result of construction monitoring) in relation to non-compliant building work gave rise to liability under s 40.
Producer statements have no legislative basis but are routinely issued and relied upon in the construction industry to advise building consent authorities about construction work that has been carried out while implementing building consents.
Building consent authorities may accept producer statements as giving reasonable assurance that the work has been carried out in accordance with the building consent and building code. This process reduces the cost and delays that would be incurred if consent authorities carried out their regulatory functions using only their own employees.
The issue of criminal liability for issuing producer statements arose in Cancian v Tauranga City Council [2022] NZHC 556.
The District Court convicted an engineer and engineering company of s 40 offending for producer statements issued in connection with The Lakes development near Tauranga. On appeal, the High Court quashed those convictions, holding that the issuing of producer statements in relation to non-compliant building work does not give rise to liability under s 40.
The Solicitor-General, with leave, referred a question of law arising from this judgment to the Court of Appeal under s 313(3) of the Criminal Procedure Act 2011.
Applicable principles: Building Act 2004, ss 3, 7, 40; Legislation Act 2019, s 10 – interpretation of “building work” and “sitework” – assessment of the Act’s text and purpose – do producer statements fall within the ambit of building work? (yes) – is holding the authors of producer statements accountable under s 40 in accordance with the purposes of the Act? (yes, it helps to achieve the purposes of the Act by assisting a number of actors to comply with their roles under the Act).
Held: The court answered the question of law as follows:
Was the court correct to find that the issue of producer statements (following or as a result of construction monitoring) in relation to non-compliant building work does not give rise to liability under s 40 of the Building Act 2004?
No
Note: In considering an argument that the outcome would criminalise the giving of an opinion, in the context of a strict liability offence, the court noted:
[69] … However, the producer statement is more than an opinion — it reflects the work the author has carried out to be able to express the opinion, and confirms the author has reasonable grounds for belief in compliance.
[70] Building consents and the building code have prescriptive and verifiable standards as to what they each require. The author of the producer statement will not be criminally liable unless it is established beyond reasonable doubt that the matters certified in the statement are incorrect. In the present case, Judge Mabey was readily able to conclude beyond a reasonable doubt that the producer statements were wrong. If that standard could not be met, no offence would be committed.
0 Comments