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' if the matters are outside their jurisdiction.
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.
But Councils have to be able to do their job?
This plea is often heard from council officers and their lawyers.
it begs the question; What is their job?
The role and responsibilitoes of a territorial Authority (TA) are stated in s3 , s4 and s12
s3 , 4 includes a comprehensive list of matters that the Cheif executive states;
Purpose and principles
3 Purposes
This Act has the following purposes:
(a) to provide for the regulation of building work, the establishment of a licensing regime for building practitioners, and the setting of performance standards for buildings to ensure that--
(i) people who use buildings can do so safely and without endangering their health; and
(ii) buildings have attributes that contribute appropriately to the health, physical independence, and well-being of the people who use them; and
(iii) people who use a building can escape from the building if it is on fire; and
(iv) buildings are designed, constructed, and able to be used in ways that promote sustainable development:
(b) to promote the accountability of owners, designers, builders, and building consent authorities who have responsibilities for ensuring that building work complies with the building code.Section 3: replaced, on 13 March 2012, by section 4 of the Building Amendment Act 2012 (2012 No 23).
Note;
It is noted that BCAs are referenced in (b) in partnership with others to ensure Building work complies with building code but that this does not extend to TA's and does not extend to existing buildings,
4 Principles to be applied in performing functions or duties, or exercising powers, under this Act(1) This section applies to--
(a) the Minister; and
(b) the chief executive; and
(c) a territorial authority or regional authority (but only to the extent that the territorial authority or regional authority is performing functions or duties, or exercising powers, under subpart 6A of Part 2 (which relates to earthquake-prone buildings) or in relation to the grant of waivers or modifications of the building code or the adoption and review of policy on dangerous and insanitary buildings or dangerous dams); and
(d) in subpart 6B of Part 2,--
(i) a person who may designate an area for the purposes of that subpart:
(ii) a responsible person as defined in section 133BB(1).(2) In achieving the purpose of this Act, a person to whom this section applies must take into account the following principles that are relevant to the performance of functions or duties imposed, or the exercise of powers conferred, on that person by this Act..............................."
the full list of principles is stated here https://www.legislation.govt.nz/act/public/2004/0072/latest/DLM306046.html?search=sw_096be8ed81f3dea1_determination_25_se&p=1
Again the significant list of principles that underpin the desires and aims of the building act do not apply to Territorial Authorities except for the narrow functions and powers that relate to sub part 6 (EQ prone buildings, waivers and modifications to the building code, and matters relating to dangerous and insanitary buildings.
s12 states the roles of BCA and TA
Role of building consent authority and territorial authority(1) Under this Act, a building consent authority--
(a) issues building consents, but not if a building consent is required to be subject to a waiver or modification of the building code; and
(b) inspects building work for which it has granted a building consent; and
(c) issues notices to fix; and
(d) issues code compliance certificates; and
(e) issues compliance schedules.(2) Under this Act, a territorial authority--
(a) performs the functions of a building consent authority set out in subsection (1)(a) (including the issue of building consents subject to a waiver or modification of the building code) if--
(i) the territorial authority is also a building consent authority; and
(ii) an owner applies to the territorial authority for a building consent; and
(b) issues project information memoranda; and
(c) grants exemptions under clause 2 of Schedule 1; and
(d) grants waivers and modifications of the building code; and
(e) issues certificates of acceptance; and
(f) issues and amends compliance schedules; and
(g) administers annual building warrants of fitness; and
(h) enforces the provisions relating to annual building warrants of fitness; and
(i) decides the extent to which buildings must comply with the building code when--
(i) they are altered; or
(ii) their use is changed; or
(iii) their specified intended life changes; and
(j) performs functions relating to dangerous, insanitary, or earthquake-prone buildings or buildings located in areas designated under subpart 6B of Part 2; and
(ja) enforces duties or obligations under section 162C (residential pools must have means of restricting access); and
(k) carries out any other functions and duties specified in this Act; and
(l) carries out any functions that are incidental and related to, or consequential upon, the functions set out in paragraphs (a) to (k).
So we can see that a TA has a role in respect to existing buildings (as distinct from "building work") in respect to ;
(c) issues notices to fix; and
(g) administers annual building warrants of fitness; and
(h) enforces the provisions relating to annual building warrants of fitness; and
(i) decides the extent to which buildings must comply with the building code when--
(i) they are altered; or
(ii) their use is changed; or
(iii) their specified intended life changes; and
(j) performs functions relating to dangerous, insanitary, or earthquake-prone buildings or buildings located in areas designated under subpart 6B of Part 2; and
(ja) enforces duties or obligations under section 162C (residential pools must have means of restricting access); and
(k) carries out any other functions and duties specified in this Act; and
(l) carries out any functions that are incidental and related to, or consequential upon, the functions set out in paragraphs (a) to (k).
Compliance schedules and BWOF only apply to distinct buildings that incorporate specified systems (defined in the regulations (eg sprinklers alarms lifts etc) that apply generally only to public buildings. They do not generally apply to detached dwellings.
If these specialized buildings are not relevant then the role is restricted to (c) NTF, (i) building changes (j) EQ prone dangerous and insanitary buildings(ja) swimming pools. unless (k) and (l) applies.
For residential buildings that dont have swimming pools and where no building work is being carried out there is therefore a very limited role for a TA to undertake.
The answer to the question is that they do not have a job to do?
The list does not include ongoing code compliance of existing buildings and unapproved building works (as distinct for which there is no obligation apart from the exception if compliance schedule is involved (the exception proves the rule?)
What is note worthy is that the resultant list is aligned so well with s222 if it is interpreted correctly. A TA does not have to inspect existing buildings and even those that may have unauthorised building. It can inspect for s124 dangerous or insanitary but this is the limit generally (and having established it is safe and sanitary then it must withdraw (or if given this assurance bu I suitably qualified person the that is sufficient and this is the underlying principle well established in the safe and sanitary report regime that is an informal part of the building act practice well recognised in the pre 2004 days and only muddied recently by the different option of a COA that provides a voluntary mechanism for limited compliance approval.
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 enforcement (as is the current practice) unless a continuing offence is identified. This is not the existence of unapproved buildings.
So how do we get council compliance inspectors to stay within their role and responsibility?? It certainly needs court guidance. Attempts have been made to get MBIE to recognise the issue through their determinations but currently they hide behind s177 and say s222 is not determinable which is really a bit of a crock considering that are happy to talk s40 and schedule 1 (and not just exemption 2 which is determinable). A case of selective hearings and not wanting to touch the hard stuff?? Bureaucratic sidestepping?
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