Andrew Melvin King-Turner Limited v Tasman District Council
[2021] NZHC 343
•2 March 2021
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2020-442-25
CRI-2020-442-26 [2021] NZHC 343
BETWEEN ANDREW MELVIN KING-TURNER LIMITED AND STEVEN GEOFFREY KING-TURNER
Appellants
AND
TASMAN DISTRICT COUNCIL
Respondent
Hearing: 9 February 2021 (AVL), further material received 15 February
2021
Counsel:
G P Malone for Appellants
N A Speir and J J Magrath for Respondent
Judgment:
2 March 2021
JUDGMENT OF ELLIS J
[1] Mr Steven King-Turner is a chartered professional engineer. He is also a director and shareholder of Andrew Melvin King-Turner Ltd (AMKL). Mr King-Turner and the company specialise in structural engineering design, including inspection and certification.
[2] On 2 September 2020, Mr King-Turner and AMKL were convicted for carrying out building work other than in accordance with a building consent, contrary to s 40 of the Building Act 2004 (the BA04).1 They now appeal these convictions. The meaning and reach of s 40 is central to the appeals.
1 Tasman District Council v King-Turner [2020] NZDC 18062.
KING-TURNER v TASMAN DISTRICT COUNCIL 2021 NZHC 343 [2 March 2021]
Background
[3] On 9 October 2018, the Tasman District Council (the Council) received an application for a building consent in relation to works at 15 Cupola Crescent, Richmond (the property). The council is a Building Consent Authority (BCA) for the purposes of the BA04. The applicant for the consent was the owner of the property. The plans submitted with the application specified, among other things, a retaining wall some 1.5 metres high.
[4] In response to a request by the Council for further information, the applicant provided an engineer’s inspection schedule dated 29 August 2018. That schedule recorded that AMKL/Mr King-Turner had already carried out a number of inspections of works on the property, including:
(a)site stripping on 27 August 2018;
(b)building platform compaction on 28 August 2018;
(c)pole hole excavation on 7 September 2018; and
(d)poles and rails on 26 September 2018.
[5] On 15 October Mr King-Turner also signed and issued a form entitled “Producer Statement – PS4 – Construction Review” (the PS4) on behalf of AMKL. The PS4 represented to the property owner that Mr King-Turner believed that the timber pole retaining wall and building platform had been completed in accordance with the relevant requirements. More particularly, it stated:
I believe on reasonable grounds that part … of the building works have been completed in accordance with the relevant requirements of the Building Consent and Building Consent Amendments identified above, with respect to Clause B1 of the Building Code.
[6] Although the PS4 purported to confirm compliance with “the Building Consent and Building Consent Amendments identified above”, no consent or amendments were, in fact, identified on the form. Given that no building consent had at that point been obtained for the wall or the raft platform, that is unsurprising.
[7] On 16 November, the Council granted a building consent for the works. And later on 10 May 2019 it issued a Code Compliance Certificate (CCC) for the works covered by the consent, including the retaining wall.
[8] On 11 January 2019, however, Mr King-Turner was interviewed by the Council about the PS4. He was accompanied by his counsel, Mr Malone. Mr King-Turner stated that:
(a)He had inspected the post holes on 7 September 2018 because he was inspecting an adjacent site and noted that the holes had been drilled.
(b)He issued the PS4 producer statement on the basis that it complied with his design of the building.
(c)He had not inquired about the status of the building consent, so was unable to include the building consent number in the PS4.
(d)In his experience and for some time, the Council had accepted PS4s without the building consent number being entered, particularly where a simple retaining wall was involved.
(e)For that reason, he would not always consider looking for the consent number.
(f)In this case, he assumed there had been a building consent.
(g)It was not his job to police the building consent—he was to carry out inspections that ensured the building work complied with the building code.
The charges
[9] The Council then laid charges against Mr King-Turner and AMKL under s 40, which provides:
40 Buildings not to be constructed, altered, demolished, or removed without consent
(1)A person must not carry out any building work except in accordance with a building consent.
(2)A person commits an offence if the person fails to comply with this section.
(3)A person who commits an offence under this section is liable on conviction to a fine not exceeding $200,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence has continued.
[10]The term “building work” is defined in s 7 as follows:
7 Interpretation
In this Act, unless the context otherwise requires,—
…
building work—
(a)means work—
(i)for, or in connection with, the construction, alteration, demolition, or removal of a building; and
(ii)on an allotment that is likely to affect the extent to which an existing building on that allotment complies with the building code; and
(b)includes sitework; and
(c)includes design work (relating to building work) that is design work of a kind declared by the Governor-General by Order in Council to be restricted building work for the purposes of this Act; and
(d)in Part 4, and the definition in this section of supervise, also includes design work (relating to building work) of a kind declared by the Governor-General by Order in Council to be building work for the purposes of Part 4.
Prosecution in the District Court
[11] Because s 40 creates a strict liability offence, Judge Barkle considered it unnecessary to engage with the points made by Mr King-Turner at interview. He observed that all that needed to be established by the Council was that the signing and issuing of the PS4 constitutes “building work”, as defined. And in that regard, he noted that the defendants had accepted that he was bound by a decision of this Court
in Kwak v Park, where Woolford J had held that the completion of producer statements does constitute “building work”.2 The defendants were convicted in short order, accordingly.
The appeal
Approach
[12] The appeals against conviction are brought under s 229 of the Criminal Procedure Act 2011 (the CPA). Section 232 of the CPA provides that the High Court may only allow an appeal against conviction if satisfied that the trial Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or that has resulted in an unfair trial.3
[13] Following Sena v Police, such appeals are to proceed by way of rehearing, and the appeal court is required to form its own view of the facts and determine the appeal accordingly.4 If an appeal court comes to a different view from the trial Judge on the evidence, the trial Judge will necessarily have erred and the appeal must be allowed.5 That said, the appeal is not to be approached de novo: it is for the appellant to show that an error has been made to such an extent that the process has miscarried.6
Issues
[14] The primary issue in the appeal is whether completion and issuing of the PS4 prior to the granting of any building consent for the relevant works constitutes carrying out building work other than in accordance with a building consent, contrary to s 40. Related to that is whether the decision in Kwak is either distinguishable, or wrong.
2 Kwak v Park [2016] NZHC 530.
3 Section 232(4).
4 Sena v Police [2019] NZSC 55.
5 At [38].
6 At [38].
[15] The Council also submitted that the appellants’ acceptance at first instance that Kwak was binding on the District Court Judge (and so not distinguishable) meant that they were unable to show any miscarriage of justice or error of law in his decision. But I do not intend to deal with that question further. Counsel for the defendants had expressly recorded in the District Court that their position in relation to Kwak was subject to their desire to challenge it on appeal. Unlike the District Court Judge, I am not bound by Kwak, and if I disagree with it then the convictions would plainly be founded on a material error of law. Nor do I accept that it is not open to the appellants on appeal to attempt to distinguish the decision in Kwak, despite their not doing so below. Again, if the decision can be shown to be distinguishable in some material respect, it must necessarily follow that the convictions are erroneous and should be quashed.
Other contextual matters
[16] Before turning to the central, s 40, question, it is necessary first to say something about several further background matters that—in my view—are crucial to any understanding and analysis of that issue.
What are producer statements?
[17] Under the Building Act 1991 (the BA91), a producer statement was defined as:7
any statement supplied by or on behalf of an applicant for a building consent or by or on behalf of a person who has been granted a building consent that certain work will be or has been carried out in accordance with certain technical specifications:
[18] It may be observed that this definition plainly contemplates the supply of producer statements both before and after the grant of a building consent. And other references to producer statements in the BA91 make it clear that their purpose was to assist a territorial authority to establish compliance with the building code rather than a building consent.8
7 Building Act 1991, s 2.
8 See for example ss 33(5) and 43(8).
[19] But it seems that over-reliance on such statements, without sufficient scrutiny of either the author’s qualifications or their contents, resulted in many decisions based on them that were not robust. For that reason, no doubt, producer statements are not referred to in—and have no specific status under—the BA04.
[20] Notwithstanding that change, it seems producer statements remain widely used in the building industry as a means of establishing compliance with the building code and/or a building consent. Indeed, the PS4 form issued by the appellants in this case is one that has been crafted (and endorsed) by Engineering New Zealand, the New Zealand Institutes of Architects Incorporated, and the Association of Consulting and Engineering New Zealand (ACENZ). This form includes the following note:
This statement shall only be relied upon by the Building Consent Authority named above. Liability under this statement accrues to the Design Firm only. The total maximum amount of damages payable arising from this statement and all other statements provided to the Building Consent Authority in relation to this building work, whether in contract, tort or otherwise (including negligence) is limited to the sum of $200,000.
[21] It may be noted in passing that $200,000 is also the maximum penalty for breach of s 40 (unless the offence is a continuing one).
[22] The form also refers to another document, entitled “Guidance on Use of Producer Statements”. That document explains:
Producer statements were first introduced with the Building Act 1991. The producer statements were developed by a combined task committee consisting of members of the New Zealand Institute of Architects, Engineering New Zealand, Association of Consulting Engineers New Zealand in consultation with the Building Officials Institute of New Zealand. The original suit[e] of producer statements has been revised at the date of this form [October 2013] as a result of the enactment of the Building Act (2004) by these organisations to ensure standard use within the industry.
The producer statement system is intended to provide Building Consent Authorities (BCAs) with reasonable grounds for the issue of a Building Consent or a Code Compliance Certificate, without having to duplicate design or construction checking undertaken by others.
[23]The guidance document refers to four different types of producer statements:
PS1 Design Intended for use by a suitably qualified independent design professional in circumstances where the BCA accepts a producer statement for establishing reasonable grounds to issue a Building Consent;
PS2 Design Review Intended for use by a suitably qualified independent design professional where the BCA accepts an independent design professional’s review as the basis for establishing reasonable grounds to issue a Building Consent;
PS3 Construction Forms commonly used as a certificate of completion of building work are Schedule 6 of NZS 3910:2013 of Schedules E1/E2 of NZIA’s SCC [Standard Conditions of Contract] 2011.
PS4 Construction Review Intended for use by a suitably qualified independent design professional who undertakes construction monitoring of the building works where the BCA requests a producer statement prior to issuing a Code Compliance Certificate.
[24] As was the position under the BA91, the guidance makes it clear that (depending on their type) producer statements may be issued both before and after obtaining a building consent. The stated purposes of both the PS1 and the PS2 make it clear that they are intended to be issued before a building consent is obtained. On the other hand, given that the stated purpose of a PS4 appears to be to record the monitoring and review of building works (as a means of assisting a BCA to assess compliance), it is logical that the PS4 would be issued after any necessary building consent was obtained.
Roles and responsibilities under the BA04
[25] One notable feature of the BA04 is that that in subpt 4 of pt 1 it expressly specifies the responsibilities of different actors under the Act. These relevantly include:
(a)the responsibility of an owner9 to obtain and ensure compliance with, any necessary building consent (s 14B);
(b)the responsibility of a designer10 to ensure that relevant plans and specifications or the relevant advice are “sufficient to result in the building work complying with the building code, if the building work
9 “Owner” in relation to land or any buildings on land is defined in s 7 as the person who is or would be entitled to the rack rent from the land, including the owner of the fee simple of the land.
10 Defined as “a person who prepares plans and specifications for building work or who gives advice on the compliance of building work with the building code”.
were properly completed in accordance with those plans and specifications or that advice” (s 14D);
(c)the responsibility of a builder (defined as “any person who carries out building work”) to ensure that the building work complies with the building consent and the plans and specifications to which the building consent relates and to ensure that building work not covered by a building consent complies with the building code (s 14E(2));
(a)the responsibility of a licensed building practitioner who carries out restricted building work to ensure that the restricted building work is carried out or supervised in accordance with the requirements of the Act and that he or she is licensed in a class authorised to carry out or supervise that restricted building work (s 14E(3));11 and
(b)the responsibility of a BCA to check to ensure that an application for a building consent complies with the building code and that building work has been carried out in accordance with the building consent for that work and to issue building consents and certificates in accordance with the requirements of the Act (s 14F).
[26] Section 14A makes it clear that these provisions are not intended to be a definitive or exhaustive statement of the parties’ respective responsibilities. They may, for example, be subject to contractual obligations or agency relationships. But a straightforward reading of them suggests that:
(a)it is the owner who is responsible for obtaining all necessary building consents; and
(b)it is the owner, the builder, and the BCA who are responsible for ensuring compliance with any building consent.
11 “Restricted building work” is defined to mean any building work that is either building work or design work of a kind declared by the Governor-General by Order in Council to be restricted building work. The relevant Order in Council (the Building (Definition of Restricted Building Work) Order 2011) suggests that restricted building work is work that has a weathertightness or building integrity aspect.
[27] By contrast, designers are responsible for ensuring that any plans (if followed) or advice will result in the compliance of the relevant building work with the building code.
[28] In the present case, the appellants are chartered professional engineers under the Chartered Professional Engineers of New Zealand Act 2002. As I understand it, this means that they meet the definitions both of “designer” and—by virtue of s 291 and regulations made under s 285—licensed building practitioner. Thus they are subject to the obligations under:
(a)s 14D, which—as just mentioned—do not include ensuring either that a building consent is obtained or that, once obtained, it is complied with; and
(b)s 14E(3), which include ensuring that restricted building work is undertaken in accordance with the Act and, so (at least arguably) in accordance with any requirement in the Act that a building consent be first obtained.12
[29] As a matter of logic, it is difficult to see how the appellants could also be said to fall within the s 14E(1) definition of “builder”, and so made subject to the specific obligation under s 14E(2) to ensure compliance with any building consent. Design work is included in the definition of “building work” only if it is of a kind declared by Order in Council to be either building work or restricted building work. But this is an issue that engages with the decision in Kwak and so will be discussed in more detail, later, below.
The underlying problem
[30] In the District Court, there was affidavit evidence from Ms Stacey Campbell, the Legal Manager at Engineering New Zealand. She explained that recent media coverage about the construction of properties without the required building consents,
12 There is no suggestion that the work to which the PS4 related in the present case was “restricted building work”.
and high-profile failures such as Tauranga’s Bella Vista subdivision,13 has led to increased public scrutiny of engineers’ roles in the consent process. She said:
Engineering New Zealand became aware that Building Consent Authorities (BCAs) were concerned about engineers supervising construction or signing Producer Statements – Construction Monitoring (PS4s) for properties that don’t have building consent.
[31] Ms Campbell appended to her affidavit an article she had co-authored on the subject. In it, she wrote:
Building consent authorities (BCAs) are telling us they have serious concerns about engineers supervising construction or signing PS4s for properties that don’t have building consent.
Under the Building Act 2004, all building work must have building consent unless it meets certain exceptions set out in the Act. Due to time pressures, contractors and property owners sometimes want to proceed with building work before consent has been granted. This is illegal and can result in a fine of up to $200,000.
When you sign a PS4, you are saying that you believe on reasonable grounds that building work complies with building consent and the building code. If you sign a PS4 for building work that does not have building consent, you could be held liable for making a false declaration. You could also face other penalties or professional discipline under the CPEng Act and Engineering New Zealand’s Disciplinary Regulations.
…
BCAs rely on engineers to ensure that where a project does not have building consent, it will not be constructed. You are a critical check to ensure the process runs smoothly and applicable laws are followed.
BCAs can also raise complaints with Engineering New Zealand when engineers supervise work that does not have building consent. Under the Engineering New Zealand Code of Ethical Conduct, engineers must act with honesty and integrity. If an engineer supervises work or signs a PS4 for work that does not have building consent, they could be found to have acted with a lack of honesty or integrity. Engineers are also obligated to comply with applicable New Zealand laws, including the Building Act. A complaint can be stressful, time-consuming and potentially lead to a disciplinary finding against you.
In some cases, you may have assumed building consent existed, without explicitly asking your client or sighting the consent. Before you sign a PS4, you must believe on reasonable grounds that the work complies with the building consent. This requires you to take positive steps – it is more than assuming there is building consent for the work. Ask and confirm there is
13 Which was the subject of a lengthy District Court judgment: Tauranga City Council v Cancian
[2020] NZDC 25470.
building consent before you sign a PS4. This protects you against any suggestion you knowingly signed a PS4 or supervised work that had no building consent.
[32] The present case is plainly the result of concerns of the kind discussed in this article.
Does “carrying out building work” under s 40 include issuing a PS4?
[33] As noted earlier, the charge under s 40 is for carrying out building work other than in accordance with a building consent. There is no dispute that there was no such consent here. Rather, the focus in the District Court was on whether issuing a producer statement (or, more specifically, a PS4) constitutes “building work” as relevantly defined in s 7 of the BA: “work … for, or in connection with, the construction, alteration, demolition, or removal of a building”.
[34] This question was considered by this Court in Kwak, and—given it was regarded as determinative in the District Court—it is useful to begin by considering that decision.
Kwak v Park
[35] Kwak concerned a civil claim (alternatively) in negligence simpliciter or for negligent misstatement brought by Mr and Mrs Kwak against the original owner and builder of their home, Mr Park. Mr Park had built the house in 1998. When he sold it in 2001, a condition of sale was the obtaining of a Code Compliance Certificate (CCC) from the private building certifier (A1 Building Certifiers Limited). In order to get a CCC, Mr Park signed producer statements certifying that he had properly completed aspects of the building work.14
[36] Mr and Mrs Kwak bought the house in 2003. It transpired that the house was plagued by weathertightness issues. In 2011, the Kwaks initiated a claim under the Weathertight Home Resolutions Services Act 2006 (the WHRS Act) against Mr Park.15
14 Mr Park issued these producer statements while the BA91 was in force. They were therefore formally recognised by statute at that time.
15 Although the claim was originally against others, Mr Park was, eventually, the only defendant left standing.
[37] Under the WHRS Act, the operation of the 10-year statutory limitation period meant that liability could only attach in relation to “building work” done in 2001 or later. As the Weathertight Homes Tribunal noted:
On 17 January 2011, the Kwaks applied for an assessor’s report. This means that any action in respect of building work carried out prior to 17 January 2001 is limitation barred. There is no evidence of any relevant building work being carried out after 17 January 2001. The only events that are not limitation barred are therefore the inspections carried out by [A1 Building Certifiers Limited] after 17 January 2001, the issue of producer statements by Mr Park and the issue of the CCC [Code Compliance Certificate].
[38] Ultimately, the adjudicator held that the negligent misstatement claim could not succeed because there was no evidence of reliance by Mr and Mrs Kwak on the producer statements. And she rejected the alternative argument advanced by the Kwaks that the issuing of a producer statement itself constituted negligent “building work” (in respect of which Mr Park might owe the Kwaks a direct duty of care) because the producer statements could only be regarded as negligent misstatements made to A1 Building Certifiers Limited.
[39] In the Kwaks’ appeal to the High Court, the operation of the time bar—and the related question of whether a producer statement could constitute “building work”— was the first issue requiring determination. It is useful to set out Woolford J’s analysis more or less in full. He said:
[45] The first question arises because of statutory criteria set out in the WHRS Act and the Building Act 2004. To be an eligible claim under the WHRS Act, s 14 sets out several criteria for affected dwelling houses. The first is that it must have been ‘built’ before 1 January 2012 and within the period of 10 years immediately before the day on which the claim is brought.
[46] The Supreme Court considered the meaning of ‘built’ in Osborne v Auckland Council. It held that the intention in s 14(a) of the WHRS Act was to align the eligibility criteria with s 393 of the Building Act 2004. The word ‘built’ in s 14(a) must have been intended to be construed by reference to the expression ‘building work’ in s 393.
[47]Section 393 provides:
393 Limitation defences
(1)The Limitation Act 2010 applies to civil proceedings against any person if those proceedings arise from—
(a)building work associated with the design, construction, alteration, demolition, or removal of any building; or
(b)the performance of a function under this Act or a previous enactment relating to the construction, alteration, demolition, or removal of the building.
(2)However, no relief may be granted in respect of civil proceedings relating to building work if those proceedings are brought against a person after 10 years or more from the date of the act or omission on which the proceedings are based.
(3)For the purposes of subsection (2), the date of the act or omission is,—
(a)in the case of civil proceedings that are brought against a territorial authority, a building consent authority, a regional authority, or the chief executive in relation to the issue of a building consent or a code compliance certificate under Part 2 or a determination under Part 3, the date of issue of the consent, certificate, or determination, as the case may be; and
(b)in the case of civil proceedings that are brought against a person in relation to the issue of an energy work certificate, the date of the issue of the certificate.
[40]After referring to the definition of “building work” in s 7 of the BA (set out at
[10] above), the Judge went on:
[49] The essential question is therefore – was the completion of the producer statements by Mr Park “work for, or in connection with, the construction of a building”?
[50] In my view, it was. First, the completion of producer statements is work, which can be defined as exertion or effort directed to produce or accomplish something. There is no logical reason why the ordinary meaning of work should not apply or the definition be restricted to physical work. Second, the work of completing a producer statement is in connection with the construction of a building, just as much as the physical work of applying a waterproof membrane.
[51] I note that the earlier definition of building work in the Building Act 1991 did not specifically include design work. The fact that the definition of building work was expanded in the Building Act 2004 to specifically include design work does not mean, however, that the completion of producer statements does not fall within the definition. Design work in general has been held to be within the meaning of construction.
[52] There is no reference to certification in s 14(a) of the WHRS Act, but as the Supreme Court commented in Osborne:
The apparent omission in relation to certification is, however, remedied once it is realised that the word “built” [in s 14(a)] must have been intended to be construed by reference to the expression “building work” in s 393 of the Building Act, which does encompass certification.
[53] So we now have both design and certification falling within the statutory definition of building work. It would be anomalous if the definition of building work was interpreted to exclude the completion of producer statements, which, in my view, are just as much building work as design and certification.
[54] [The Tribunal] had difficulty accepting that the producer statements signed by Mr Park fell within the definition of building work because they were indeed statements and related to acts such as the application of waterproofing membranes that were limitation barred having occurred more than ten years prior to the claim being brought. Although they are indeed statements, producer statements are properly viewed as an integral part of the building process. A building is unlikely to receive a code compliance certificate without them.
This case
[41] The present appeal does not, of course, concern the meaning of s 14 of the WHRS Act, but rather a criminal charge laid under s 40 of the BA04. The key s 40 question is not simply whether, in issuing the producer statement, the appellants were “carrying out building work”, but whether they were carrying out such work other than in accordance with a building consent.
[42] It seems tolerably clear that the purpose of s 40 is to prohibit the undertaking of building work without, or contrary to, a building consent.16 But as a matter of simple logic, the focus of the section can only be on work that is capable of, and requires, authorisation by a building consent. Given that producer statements have no formal status under, and are not referred to in or required by, the BA04, it is difficult to see how issuing one (or any other similar statement) could constitute work of that kind. Even under the BA91—which did expressly recognise producer statements—it seems plain that issuing such a statement was not itself an action that required a building consent.
[43] My view that issuing a producer statement is not building work under s 40 is fortified by the statutory division of roles and responsibilities referred to earlier. As
16 There are specific exceptions to that prohibition contained in s 42, but they are not relevant here.
noted there, it is owners and builders who are required to comply with building consents. And while I have accepted it is arguable that the appellants might have a responsibility to ensure that restricted building work is carried out or supervised in accordance with the requirements of the Act (and, so, a building consent), there has been no suggestion that the work that was the subject of the PS4 here was work of that kind. Even if it was, it would not be the act of issuing of the PS4 that would constitute the breach; it would be the failure to ensure that the work was done or supervised in the required way.
[44] I accept that BCAs and the building industry more widely may regard PS4s as a convenient means by which engineers convey their “advice” as to the compliance of the relevant building works with a building consent, and that BCAs may often rely on that advice. And I agree that it makes no sense for such advice to be given when there is no building consent in existence. But giving nonsensical or negligent advice does not engage s 40; any breach of that provision lies elsewhere, and with others.
[45]I agree with the view expressed by Ms Campbell in the article referred to at
[31] above. An engineer who certifies17 or confirms that building work complies with a building consent when—for whatever reason—it does not is at risk of disciplinary proceedings, liability in tort (for misstatement), or prosecution under s 369 of the BA04 for making a false or misleading statement.
[46] In terms of the PS4 issued by the appellants in this case, my own view is the only rational interpretation of it is that it certified only that the relevant work complied with the building code. It cannot reasonably be interpreted as certifying that the work complied with an (unidentified) building consent, let alone that a building consent existed. The leaving blank of all references to a building consent would logically and immediately raise an issue about whether one had been issued. And if one had not, the position revealed by the PS4—namely that the work had already been done— might well give rise to the prospect of liability under s 40 for the owner and/or the builder. While it may be that this presents enforcement difficulties for BCAs (which
17 I use this term in its ordinary and wider sense, rather than in the sense used in the BA04 where, as I understand it, certification relates to the issue of code compliance certificates.
were darkly hinted at, but neither explained nor the subject of evidence in the District Court), that is a matter for Parliament, not the Courts.
[47] Notwithstanding the view I have reached, I do not think it is necessary for me to go so far as to say I consider that the decision in Kwak is wrong. That case involved different circumstances, different statutory provisions, and different policy concerns. And as I have noted, the producer statements in that case were issued under the BA91, which arguably suggests that they were intended to carry some form of legal consequence.
[48] The signal point for the purposes of this appeal is that, putting to one side any (as yet unargued) case involving restricted building work, I consider that issuing a producer statement (or any other similar kind of signed statement or declaration by an engineer) that wrongly confirms that building work has been completed in accordance with the building code or a building consent is not capable of constituting an offence under s 40.
Result
[49] The appeals are allowed. The convictions entered by the District Court are quashed, accordingly.
Rebecca Ellis J
Solicitors:
Solutions Law Office, Nelson for Appellants Rice Speir, Auckland for Respondent
2