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Examples of infringement situations

 

Remember – in all situations, the officer who inspects a site needs to be an authorised officer of a territorial/regional authority and the officer who issues an infringement notice must be an enforcement officer who is warranted.

Example A:

  • A building consent authority officer visits a site for a pre-pour concrete inspection. During the inspection the officer identifies that the next stage of the work involves earthworks and making vertical cuts, which will result in a fall hazard.
  • The officer notes on the inspection form that the specified person (in this case, the property developer) must install safety barriers to comply with Clause F5 of the Building Code and discusses this with the builder on site.
  • At the next inspection, the building consent authority officer notes that the barriers have not been installed and issues a notice to fix requiring barriers to be installed.
  • At a later time, the officer returns and identifies that the specified person still has not installed the barriers.
  • The territorial authority enforcement officer then8 issues an infringement notice to the developer for failing to comply with the first notice to fix (s168) followed by a second notice to fix requiring the work to stop until such time as Clause F5 is complied with. The infringement notice is for not complying with section 168 of the Building Act.

Note: Notices to fix and building infringement notices are two separate tools. They can be used separately or at the same time. In this situation, the building consent authority officer gave clear instruction to the builder and had issued a notice to fix subsequent to a number of visits and discussions. An infringement notice and fee is an appropriate penalty for ignoring the first notice to fix on such an important safety issue.

The builder must pay the fee regardless of whether the second notice to fix is complied with.

Even if the infringement notice is paid, the territorial authority would still need to determine whether the original offence has been rectified.

Example B:

  • A building consent authority officer, while undertaking an inspection in a building that contains specified systems, identifies that the building warrant of fitness (BWoF) is not on display.
  • The territorial authority has recently publicised that this has been a recurring problem and that it intends to crack down on offenders. The officer contacts the building owner via a message on voicemail about the issue.
  • The officer follows up the message with a letter explaining the need to display the BWoF, the offences prescribed in the Building Act 2004 and the possible issuing of an infringement notice.
  • One week later, having received no response, the territorial authority enforcement officer visits the building to determine if the notice has been displayed. The notice is not visible so the officer issues a notice to fix.
  • Ten days later the territorial authority enforcement officer revisits the building. The BWoF is still not displayed, at which point the officer issues an infringement notice, with the previous correspondence attached. The officer hand delivers the infringement notice to the registered office of the building owner.

Note: In this situation the building owner was well informed of the need to display a BWoF. Failure to display the BWoF prompts a notice to fix. The infringement notice was then issued to further encourage compliance. The infringement is for not complying with section 108(5)(a) of the Building Act.

Example C:

  • A building consent authority officer visits a private home to undertake an inspection in accordance with a building consent. While undertaking the inspection, he notes that a well-known and experienced builder is erecting a retaining wall over 2 metres in height in the dwelling next door.
  • Further investigation reveals that the building work has not been consented. A discussion with the building owner reveals that the builder had told them a building consent was not required.
  • In this case, the territorial authority enforcement officer issues an infringement notice to the builder and a notice to fix to the builder and the homeowner requiring work to stop and a consent be obtained.

Note: The officer has investigated the situation and ascertained that the homeowner was not aware of the need for a consent. The homeowner did not receive an infringement notice, as the officer considered that the homeowner had been following the guidance of an experienced builder. The infringement is for non-compliance with section 40 of the Building Act.

Example D:

  • During heavy rain, a slip occurs that undermines the foundations of a house. In order to protect the house from any further damage, an engineer requires a retaining wall to be constructed to underpin the house foundation and prevent further slippage. The owner contacts the territorial authority, explains the situation and the territorial authority agrees to allow the retaining structure to be constructed under emergency works provisions. The territorial authority also explains to the owner the need to obtain a certificate of acceptance as soon as possible. This advice is followed up in writing by the territorial authority. The territorial authority observes at the end of the first week that the wall is nearing completion.
  • One month after the work is complete the territorial authority writes to the owner noting the work is complete but no application for a certificate of acceptance (COA) has been made. The correspondence points out the relevant provisions and offences and provides the COA application forms.
  • After another month, the territorial authority issues a notice to fix allowing ten working days for an acceptable application for a COA to be made. At the end of 15 working days (five working days after the due date) no application has been received. The territorial authority issues an infringement notice for failing to apply for a COA within the required timeframe. The infringement notice is issued for not complying with s42 of the Building Act.

Footnotes

7. These examples are to be treated as possible situations where an infringement notice could be issued rather than an exact narrative
of how such a notice is issued or whether it is appropriate to issue such a notice.

8. The building consent authority officer and territorial authority enforcement officer may be one and the same person.

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This information is published by the Ministry of Business, Innovation and Employment’s Chief Executive. It is a general guide only and, if used, does not relieve any person of the obligation to consider any matter to which the information relates according to the circumstances of the particular case. Expert advice may be required in specific circumstances. Where this information relates to assisting people: