If you snooze, you lose – prosecuting under the Building Act 2004

The moment a council officer notices something wrong at a building site, the clock begins ticking on a prosecution.

A council gets just six months to prosecute under the Building Act from that moment.  Once you know (or should know) about non-compliant building work, time starts to run for filing charging documents in Court.

Running out of time is one of the most common problems we see when helping councils with the decision to prosecute.

Unfortunately “who knew what and when” is often the beginning of the end for a council wanting to take enforcement action.

Six months is not a lot of time when you think about what needs to be done.  Council officers have to identify the problem, document it clearly, consider other options (like a notice to fix), seek legal advice, consider delegations and prepare charging documents.

Building Act prosecutions can be a minefield without good systems and specialist help.

“When a building inspector is on a building site and thinks “this is bad” … the clock has started.”

When does the clock start ticking?

When a building inspector is on a building site and thinks “this is bad”, that counts as actual knowledge and the clock has started.  If an ordinary person would say “this can’t have been overlooked, how could it have been missed?” that is constructive knowledge and again time has started to run.

Building Control Officers are busy people and wear many hats.  It would be great if prosecutions weren’t necessary but unfortunately, builders continue to cut corners and the public expects councils to clean up the mess.

Appropriate enforcement action can avoid litigation for councils and save a lot of money and anguish.

We have seen it work and we have also seen the consequences of inaction.  Your biggest problem is time but fortunately, it is the easiest one to solve.

Rice Speir tips for dealing with limitation

The key to avoiding limitation issues is to be proactive.  If a building issue concerns you, then you should start thinking about enforcement and speak with your team.

Not every case needs to be prosecuted but they are all subject to the six month limitation period.

“Setting an electronic calendar reminder helps to prevent time slipping away.”

Setting an electronic calendar reminder is a fantastic way to prevent time from slipping away.

Ask questions and speak with colleagues.  The more you talk about serious building issues the easier it will be to stay within the time limit.

There is a fall-back option.  The same time pressure does not apply when issuing a notice to fix.  By doing so, even after six months has expired, you preserve the ability to file a charging document for failing to comply with the notice to fix.

Finally, we enjoy taking phone calls from you with tricky issues and decisions needing to be made under pressure so keep them coming.

2 Comments

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Bushy Besterreply
December 4, 2018 at 8:34 pm

Thanks and an interesting read. It would have been great if you could have quoted the specifics of the legislation that refers the the time period. Here I assume you would have been referring to: Section 378 Time limit for filing charging document, correct???
Thanks Bushy

Nathan Speir
Nathan Speirreply
December 13, 2018 at 6:29 pm
– In reply to: Bushy Bester

Hi Bushy
Great to hear from you and we’re glad you found the article interesting. Where possible we try and keep our articles free of legalese but you are absolutely correct, section 378 of the Building Act 2004 is the relevant section. Interestingly, the same principles apply to prosecutions under the Resource Management Act 1991, see section 338(4).
Thanks for the feedback.

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