The right tool for the job in Building Act enforcement

Failing to comply with a notice to fix.

Recently we assisted Tasman District Council in prosecuting a landowner who had transformed his rural, two-storey shed into a potential dwelling. The council’s practices received a glowing endorsement from the Court, which is always worth celebrating.

The basic facts were that neighbours first complained of the man’s alterations to his consented shed in 2013. Council staff inspected the work in December of that year and did their best to resolve the issues amicably. However, the defiant landowner forced the council to issue two notices to fix, neither of which were complied with. As a last resort, the council commenced a prosecution under section 164 of the Building Act for failing to comply with one of the notices to fix.

The landowner promptly pleaded guilty to the charge and was fined $4,000. 90% of the fine was directed to be paid to the council, however the matter was never going to be a cost-recovery exercise. The real benefits came from the Judge’s public endorsement of the council’s practices.

The Judge agreed that one of the council’s roles was to regulate the built environment for people’s safety and that ultimately consenting gives home buyers confidence. He also gave support to our submission that “to put one’s head in the sand is not good enough.”

The Judge’s comments attracted some media attention and the council’s Environment and Planning Manager, Dennis Bush-King, received a valuable opportunity to relay some key messages, including:

“We have been trying over a long period of time to work this out. Action like this is a last resort. We do not have the resources to attend to it all, but we do respond to complaints.”

The importance of getting messages like this across to the community should not be underestimated. If Tasman District Council’s decision to prosecute has deterred one other person from carrying out illegal building work then it has done well by its ratepayers.

Our experience suggests that some readers consider Building Act enforcement and compliance as costly, not customer focussed and too aggressive. We often hear complaints that, unlike Resource Management Act prosecutions, fines imposed for Building Act offending are akin to a slap on the wrist with a wet bus ticket.

To those readers we say that the only reason the fines aren’t more serious is because, unlike the Resource Management Act, there aren’t enough Building Act prosecutions being commenced to push Judges to impose harsher penalties.

Councils have a number of enforcement tools available to them but those tools, like any other, are only useful if they leave the shed occasionally – for the right job.

To read the Stuff article on the above prosecution please use the link below and for any questions on Building Act enforcement and compliance feel free to call.

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