Power of Entry and s222
In recent times councils seems to have assumed unrestricted power of entry and exercise this power as if they are unfettered.
In fact the powers are restricted and provide privacy and jurisdiction restriction that are in the interests of owners and the council officers.
If an owner of a house hold unit is approached they have the right right to refuse entry under both the Building act s226 and the RMA under s332
Power of entry for inspection
Under s332 RMA (Resource Management Act) entering dwellinghouses needs a court order
332 (1) Any enforcement officer, specifically authorised in writing by any local authority, consent authority, or by the EPA to do so, may at all reasonable times go on, into, under, or over any place or structure, except a dwellinghouse, for the purpose of inspection to determine whether or not—..................
and dwellinghouse is defined as ;
dwellinghouse means any building, whether permanent or temporary, that is occupied, in whole or in part, as a residence; and includes any structure or outdoor living area that is accessory to, and used wholly or principally for the purposes of, the residence; but does not include the land upon which the residence is sited
Under the building acr s 226 a household unit needs permission of the occupier
222 Restriction on entry to household unit
(1) Despite section 222, an authorised officer may not enter a household unit that is being used as a household unit without--
(a) the consent of the occupier of the household unit; or
(b) an order of the District Court made under section 227.
Household unit is defined in s7 of the Building act as
household unit--
(a) means a building or group of buildings, or part of a building or group of buildings, that is--
(i) used, or intended to be used, only or mainly for residential purposes; and
(ii) occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household; but
(b) does not include a hostel, boardinghouse, or other specialised accommodation
Councilt it seems try and restrict the meaning to the interior of the household unit but as the definition includes a group of buildings the writers view is that this meansmnore than that and should includes decks and the immediate surrounds as for a dwellinghouse in the RMA.
This approach is consistent with the serious privacy concerns that private residences attract. It would be inconsistent to suggest that an inspector could wander around the outside of a dwelling (un-be-known to the occupant) peering into windows and this would not be considered the same invasion of privacy that the RMA protects against with its definition of dwellinghouse.
So, given that s226 requires the occupiers permission even if they get this the inspection must be restricted to the matters contained in s222.
In a recent case the owner was of the view that any inspection would be limited to the jurisdiction conferred on Council officers pursuant to s 222 of the BA. In my discussions with that council it was claimed that Council would not accept any restriction on its ability to inspect the property. This is incorrect and s222 provides the restrictions already.
The 10 day notice required under s227 seems designed to allow an occupier to prepare for the application to the court and seek advice. An opportunity to speak to the court seems appropriate and indeed essential to give owners the assurance that only a strict interpretation of the meaning of s222 will be allowed and the council put on notice not to stray from that brief.
For clarity, the Council’s inspection ought to be confined to the jurisdiction conferred under s 222 of the BA, which I have replicated below. I have highlighted RED the relevant wording. that might apply to a detached dwelling
"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.
(4) In this section and sections 223 to 228,--
inspection means the taking of all reasonable steps--
(a) to determine whether--
(i) building work is being carried out without a building consent; or
(ii) building work is being carried out in accordance with a building consent; or
(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."
What is an inspection allowed to do?
The understanding of what an inspection can be is the key to this discussion.
The meaning if understood to provide for what is permissive, is in the case of a dwelling, concerned only with whether a building is not dangerous or insanitary and if building work is being carried out with or without a building consent.
It is particularly relevant that the mention of building work is strictly to current building work is being carried out. This is consistent with the definition of building work
building work--
(a) means work that is either of the following:
(i) for, or in connection with, the construction, alteration, demolition, or removal of a building:......."
building work is thus the doing of work and not the building per se that may result or be affected. When building work stops then the continuing offence stops.
It is significant that the only existing building that can be inspected is for the purposes of dangerous or insanitary and where an application for a CoA is mage (the other provisions not being relevant to a household/dwelling.
The exception for a CoA reinforces the view that existing building cannot be part of an inspection and this includes "unauthorised work" where building work is not being carried out.
So what must councils do when they note irregularities?
This seems to require that while councils can look they cannot act on that 'look'
This is not an unreasonable restriction on councils given that the existence of unapproved building is not an offence under the building act even if it meant that its establishment indicated an offence at the time. Owners are entitled to retain unauthorised works at their risk as long as s124 in respect to dangerous or insanitary are satisfied. (and this obligation applies to all building all the time).
If a council has evidence of who the offence was committed by, then they have the prerogative of issuing an infringement notice with its fine of $1000 (payable on conviction unless paid sooner).
Indeed an infringement fine is the only practical measure a council can take for an offence under s40 apart from prosecution for the person carrying out the work and they have not stopped.
This understanding has little testing in courts and needs to be upheld in a court to reestablish the rights of owners and reduce the current overreach by compliance officials.
The understanding is supported by Auckland Councils document AC1805 that deals with unauthorised works and on page 4 after discussing CoA's at length concludes that the owner also has the option if they don't want a CoA of removing work or (most importantly) "Doing Nothing".
The doing nothing is predicated on the proper understanding of s40 that creates an offence to a person carrying out work without a consent but the offence is the person not the building per se.
The building can remain (albeit 'unauthorised') and at the owners risk. (or an owner can elect to seek a CoA but a council doesnt have to issue one)
It is a concern to the writer that compliance officers working for regulatory departments of council have through overreach and over zealous behaviour been able to insert themselves into peoples lives and create mischief for owners by issuing NTF's for historical offences that are not continuing offences but perceived as such simply on the basis that something exists.
If a strict understanding of s222 was applied the building could be looked at in terms of s124 dangerous and insanitary and to establish whether building work was being carried out at the time but not to go on a fishing trip and collate a list of unauthorised works that then formed a basis for enforcement under a NTF. Council officers should be restricted making advice notes on property files alerting others to the existence of 'unauthorised works' but having discharged their duty of care that becomes the end of the matter.
Conclusion;
Under the building act the council has limited powers of inspection that in the case of private residential buildings only include dangerous or insanitary or when building work is in progress and is being carried out. (with or without a consent)
If follows that even if these apply then the enablement only applies to these strict activities and cannot be an invitation to look further a field. Any historical offences must remains as just that and if required an advice note logged to discharge the councils duty of care to others such as present and future owners. It certainly does not invite enforcements as is the current practice unless a continuing offence is identified
((this page is a work in progress,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
In recent times councils seems to have assumed unrestricted power of entry and exercise this power as if they are unfettered.
In fact the powers are restricted and provide privacy and jurisdiction restriction that are in the interests of owners and the council officers.
If an owner of a house hold unit is approached they have the right right to refuse entry under both the Building act s226 and the RMA under s332
Power of entry for inspection
Under s332 RMA (Resource Management Act) entering dwellinghouses needs a court order
332 (1) Any enforcement officer, specifically authorised in writing by any local authority, consent authority, or by the EPA to do so, may at all reasonable times go on, into, under, or over any place or structure, except a dwellinghouse, for the purpose of inspection to determine whether or not—..................
and dwellinghouse is defined as ;
dwellinghouse means any building, whether permanent or temporary, that is occupied, in whole or in part, as a residence; and includes any structure or outdoor living area that is accessory to, and used wholly or principally for the purposes of, the residence; but does not include the land upon which the residence is sited
Under the building acr s 226 a household unit needs permission of the occupier
222 Restriction on entry to household unit
(1) Despite section 222, an authorised officer may not enter a household unit that is being used as a household unit without--
(a) the consent of the occupier of the household unit; or
(b) an order of the District Court made under section 227.
Household unit is defined in s7 of the Building act as
household unit--
(a) means a building or group of buildings, or part of a building or group of buildings, that is--
(i) used, or intended to be used, only or mainly for residential purposes; and
(ii) occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household; but
(b) does not include a hostel, boardinghouse, or other specialised accommodation
Councilt it seems try and restrict the meaning to the interior of the household unit but as the definition includes a group of buildings the writers view is that this meansmnore than that and should includes decks and the immediate surrounds as for a dwellinghouse in the RMA.
This approach is consistent with the serious privacy concerns that private residences attract. It would be inconsistent to suggest that an inspector could wander around the outside of a dwelling (un-be-known to the occupant) peering into windows and this would not be considered the same invasion of privacy that the RMA protects against with its definition of dwellinghouse.
So, given that s226 requires the occupiers permission even if they get this the inspection must be restricted to the matters contained in s222.
In a recent case the owner was of the view that any inspection would be limited to the jurisdiction conferred on Council officers pursuant to s 222 of the BA. In my discussions with that council it was claimed that Council would not accept any restriction on its ability to inspect the property. This is incorrect and s222 provides the restrictions already.
The 10 day notice required under s227 seems designed to allow an occupier to prepare for the application to the court and seek advice. An opportunity to speak to the court seems appropriate and indeed essential to give owners the assurance that only a strict interpretation of the meaning of s222 will be allowed and the council put on notice not to stray from that brief.
For clarity, the Council’s inspection ought to be confined to the jurisdiction conferred under s 222 of the BA, which I have replicated below. I have highlighted RED the relevant wording. that might apply to a detached dwelling
"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.
(4) In this section and sections 223 to 228,--
inspection means the taking of all reasonable steps--
(a) to determine whether--
(i) building work is being carried out without a building consent; or
(ii) building work is being carried out in accordance with a building consent; or
(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."
What is an inspection allowed to do?
The understanding of what an inspection can be is the key to this discussion.
The meaning if understood to provide for what is permissive, is in the case of a dwelling, concerned only with whether a building is not dangerous or insanitary and if building work is being carried out with or without a building consent.
It is particularly relevant that the mention of building work is strictly to current building work is being carried out. This is consistent with the definition of building work
building work--
(a) means work that is either of the following:
(i) for, or in connection with, the construction, alteration, demolition, or removal of a building:......."
building work is thus the doing of work and not the building per se that may result or be affected. When building work stops then the continuing offence stops.
It is significant that the only existing building that can be inspected is for the purposes of dangerous or insanitary and where an application for a CoA is mage (the other provisions not being relevant to a household/dwelling.
The exception for a CoA reinforces the view that existing building cannot be part of an inspection and this includes "unauthorised work" where building work is not being carried out.
So what must councils do when they note irregularities?
This seems to require that while councils can look they cannot act on that 'look'
This is not an unreasonable restriction on councils given that the existence of unapproved building is not an offence under the building act even if it meant that its establishment indicated an offence at the time. Owners are entitled to retain unauthorised works at their risk as long as s124 in respect to dangerous or insanitary are satisfied. (and this obligation applies to all building all the time).
If a council has evidence of who the offence was committed by, then they have the prerogative of issuing an infringement notice with its fine of $1000 (payable on conviction unless paid sooner).
Indeed an infringement fine is the only practical measure a council can take for an offence under s40 apart from prosecution for the person carrying out the work and they have not stopped.
This understanding has little testing in courts and needs to be upheld in a court to reestablish the rights of owners and reduce the current overreach by compliance officials.
The understanding is supported by Auckland Councils document AC1805 that deals with unauthorised works and on page 4 after discussing CoA's at length concludes that the owner also has the option if they don't want a CoA of removing work or (most importantly) "Doing Nothing".
The doing nothing is predicated on the proper understanding of s40 that creates an offence to a person carrying out work without a consent but the offence is the person not the building per se.
The building can remain (albeit 'unauthorised') and at the owners risk. (or an owner can elect to seek a CoA but a council doesnt have to issue one)
It is a concern to the writer that compliance officers working for regulatory departments of council have through overreach and over zealous behaviour been able to insert themselves into peoples lives and create mischief for owners by issuing NTF's for historical offences that are not continuing offences but perceived as such simply on the basis that something exists.
If a strict understanding of s222 was applied the building could be looked at in terms of s124 dangerous and insanitary and to establish whether building work was being carried out at the time but not to go on a fishing trip and collate a list of unauthorised works that then formed a basis for enforcement under a NTF. Council officers should be restricted making advice notes on property files alerting others to the existence of 'unauthorised works' but having discharged their duty of care that becomes the end of the matter.
Conclusion;
Under the building act the council has limited powers of inspection that in the case of private residential buildings only include dangerous or insanitary or when building work is in progress and is being carried out. (with or without a consent)
If follows that even if these apply then the enablement only applies to these strict activities and cannot be an invitation to look further a field. Any historical offences must remains as just that and if required an advice note logged to discharge the councils duty of care to others such as present and future owners. It certainly does not invite enforcements as is the current practice unless a continuing offence is identified
((this page is a work in progress,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
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