What is council power to inspect and enter your property???
This discussion below is a work in progress and comments gratefully recieved............watch this space.
Council are more and more taking it upon themselves to inspect existing properties and then issuing enforcement proceedings for unauthorised works. This is particular to compliance and monitoring regulation teams as distinct from building inspection teams responsible for building consents and code compliance.
On the face of it the Building Act gives wide powers to inspect buildings greater than other acts such as RMA and the Local government Act, but this power seems to be limited under a careful reading of the act. The power to inspect is given under s222. There is also restrictions on inspection of house-hold units but once an occupant gives permission this restriction falls away. (and council do not tell occupants they do not have to give permission) 1.S222 is the section that gives council the power to inspect and when it may do so. The exercise of power of decision to issue enforcement proceedings such as a NTF under s164 of the building act, cannot be made without evidence and this requires evidence from an inspection. That inspection must be lawful. Allowing council to issue any NTF based on evidence unlawfully attained is against natural justice and fairness that the judicial/determinations processes must uphold.
The councils exercise of power of decision is firstly predicated on whether the council has the power in the first place, This requires a consideration of s222 which limit’s the power of inspection and thus the exercise of that power. What the building act states;
222 Inspections by territorial authority(1)An authorised officer is entitled, at all times during normal working hours or while building work is being carried out,-- (a)to inspect-- (i)land on which building work is or is proposed to be carried out; and (ii)building work that has been or is being carried out on or off the building site; and (iii)any building; and (iv)any residential pool (or the immediate pool area); and (b)to enter premises for-- (i)the purpose of inspecting the building; or (ii)the purpose of determining whether the building is dangerous or insanitary within the meaning of subpart 6 of Part 2; or (iii)the purpose of determining whether the building or a part of the building is earthquake prone or potentially earthquake prone within the meaning of subpart 6A of Part 2; and (c)to enter premises for the purpose of determining whether section 162C is being complied with.(2)An authorised officer must, on entering private land under subsection (1), and when requested at any subsequent time, produce to the occupier of the land written evidence of the authorised officer’s identity. (3)The powers conferred by this section are in addition to, and do not limit, the powers conferred by section 173 of the Local Government Act 2002. (4)In this section and sections 223 to 228,-- authorised officer means an officer of a territorial authority to whom either or both of the following applies: (a)he or she is authorised to carry out inspections; or (b) he or she is authorised to enter land-- (i)by this Act; or (ii)by an order of the District Court made under section 227
Under s222 inspection means inspection means the taking of all reasonable steps-- (a) to determine whether-- (i)building work is being carried outwithout a building consent; or (ii)building work is being carried out in accordance with a building consent; (iia) section 162C is being complied with; or (iii)a notice to fix has been complied with:
(b)to ensure that,-- (i)in relation to buildings for which a compliance schedule is issued, the inspection, maintenance, and reporting procedures stated in the compliance schedule are being complied with; or (ii) in relation to buildings that have specified systems, the requirement for a compliance schedule is being complied with:
(c)to enable a territorial authority to-- (i)identify dangerous, earthquake-prone, or insanitary buildings within its district; and (ii)carry out its functions or duties in relation to those buildings: (d)to satisfy a territorial authority as to whether a certificate of acceptance for building work should be issued under section 96. (emphasis added) Section (b) and (c) relate to the councils other functions and (d) also provides the exception to inspection of completed work (and when s166 does not apply). Determination of whether building work is being carried out is the first step. In this case the council has no power to inspect. Conclusion; 1. “building work” is a defined term in the building act and is the doing of work. It is not the building per se.
2.S222 allows an inspection to determine if building work is being carried out and while this might include the observation of work already done this requires building work to still being carried out or the power ceases. There can only be an offence under s40 if work is still (being carried out) and ongoing (and that work needs a consent). The offence is anyway to the person carrying out building work.
3.But this becomes academic as If no work is being carried out then the inspector must withdraw. Also his power of inspection is restricted to that building work currently being carried out (if any). It is possible that being aware of unauthorised work means the inspector might make an advice note on the property file but this is the limit of his power, (but this discharges his duty of care to future owners)
4.It follows also that a NTF cannot be issued for completed historical work and no assessment of code compliance can be attributed to the building as s166 has also not been triggered (as no operable consent is present). This is why s166 is headed “special provisions” as the section is the exception to the rule. S166 is only available to the council where an operable consent is present. This is not the case in this instance. Even then a BCA can only inspect work being carried out with or without a consent (because it is under schedule 1)
5.We appreciate that s40 has been liberally interpreted to include work recently completed but this does not alter the more immediate wording in s222 that allows council interest in the first place. S164 (1)(a) in respect to the issue of a NTF uses the example of “(for example, the requirement to obtain a building consent); but council only have power to exercise if “building work is being carried out without a building consent”, and the owner is required to obtain one.
6.This restriction and limitation on the exercise of power is there for the protection of owners as well as the best interests of councils. This is so, least the council perceive that because something existing is unauthorised (or not approved by them) they must act, which is precisely the problem prevalent at Auckland council at this time (in particular the west Auckland compliance team area as in this case)
7.If there is to be any consideration of s183 (unders178 and a determination application), then this important restriction on the power of inspection under s222 must first be considered. It is untenable to say that s222 does not apply when this is the section that gives the council power to exercise it power in the first place to issue a NTF.
8.An inspection that is unlawful cannot be used to support a NTF of any kind and the technical deficiencies of wording is irrelevant to this and no massaging of wording can address the lack of power to issue one.
9.It would save this determination considerable time (and MBIE resources) if this issue was recognised as there is no need to consider a NTF if there is no offence being carried out at this time now. (and s124 does not apply). If there is no power of inspection then the work simply remains as “unauthorised building” and at the owners discretion. This is also consistent with the councils own guidance practice note AC1805.
10.S124 still remains within councils power of decision but in most cases that does not apply. If it does s124 has a separate enforcement process under a DBN.
Council can get along with its important roles to monitor building work and its other obligations as described in s124. This is consistent with the purposes of the act in s3 and the principles stated in s4 (1) (c) of the building act which is again consistent with the limited powers of inspection available to councils. To allow council to act in excess of its power is simply overreach and statutory abuse.
11.We accept that s222 (1) (b) gives different power in respect to s124 and swimming pools and to inspect for a NTF already issued but these different exceptions do not require building work to be present and this reflects the limited powers where these sections do apply. If this was not the case and the legislation imposed no limitation on council power then s222 (1)(b) would not be required.