Carrying out building work without a building consent — Tan v Auckland Council

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Timothy Bates of Auckland law firm Legal Vision.

I wish to review the recent decision of Tan v Auckland Council. Mr Tan, the appellant, had been charged by the Auckland Council with one charge of carrying out building work without a building consent, contrary to section 40 of the Building Act 2004. By way of background, section 40 states:

Section 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.

Breach of this provision comes with a maximum fine of $200,000.

 

Facts

Mr Tan was employed by Alpha Laboratories (NZ) Ltd to manage the expansion of a block of units in East Tamaki for use in a food processing business. On July 7, 2014, an officer from the Auckland Council building compliance team visited the property and observed that substantial building works had been completed. However, the council had not received any application for building consent in respect of these works.

Mr Tan did not do any of the building work. His work was limited to instructing and supervising the actual builders. He admitted that he knew the building works completed required a consent. However, he instructed the building works to advance, so as to avoid delay.

He was prosecuted pursuant to section 40 of the Act for carrying out building works without a consent, and was found by the District Court to be in breach of this section.

 

What is the meaning of the words “carry out”?

The central issue on appeal was the meaning of “carry out”, which is an undefined term in the Building Act 2004. In the District Court, it was held that the words must be interpreted to include any person who is engaged in building work and development at a level or in a role that provides a meaningful contribution to making the building work happen.

This means that a building supervisor would clearly be one who was carrying out the work.

Through counsel, Mr Tan argued for a much narrower interpretation of the words “carry out” such that they did not include the concept of supervision. In support of this narrow interpretation a series of arguments was presented by his counsel.

Fairness is irrelevant to the interpretation of a statute — the focus must be on clear words.

The court held that the ordinary meaning of the words was broad enough to encompass the concept of supervision, and such an interpretation was also more consistent with the purpose behind the Act, which was to strengthen the regulation of building.

Wider Interpretation is inconsistent with other provisions of the Building Act 2004.

Mr Tan argued that a wider interpretation of these words would render section 386 of the Act redundant.

Section 386 was a deeming provision that specifically imposes liability upon a principal where representatives, agents and contractors carry out the actual works.

He also argued that the definition of “building work” did not include supervisory work and, thus, this showed that building work is the doing of physical work itself and not anything broader.

Furthermore, he argued the Licensed Building Practitioner regime imposed liability in a supervisory capacity. The lack of express reference to supervision suggested that Parliament intended to exclude supervision from the scope of section 40.

The High Court disagreed with this argument and, instead, concluded that the wider interpretation of these words to include supervision was consistent with these specific provisions found elsewhere within the Act.

The High Court also found that the wider meaning had support in the legislative history of this section and the subsequent amendments of the Building Act 2004.

Finally, it was held that a wider interpretation of the words “carry out” in preference to the narrow meaning argued for by Mr Tan avoided absurdity and injustice.

At paragraph 68 Justice Brewer stated:

“It would indeed be nonsensical and ‘savagely unfair’ on those ‘wielding the hammers and shovels’ to expose them, and not those who supervise or instruct them, to prosecution.”

It follows that his Honour reached the conclusion that the term “carry out any building work” in section 40 was not limited to the physical carrying out of the building work, but includes the supervision or instruction of those who physically carry out the building work.

The Appeal was dismissed. The District Court decision remains in place, although a fine is yet to be issued.

This decision shows the perils of carrying out building work without a building consent.

 

Note: This article is not intended to be legal advice (nor a substitute for legal advice). No responsibility or liability is accepted by Legal Vision or Building Today to anyone who relies on the information contained in this article.