Section 402(1)(y) to (za) of the Building Act enables regulations to be made that specify infringement offences, set the fee for each infringement notice and prescribes forms for issuing infringement notices. The Building Infringement Regulations prescribe the infringement notice and reminder notice which must be used. As required, the prescribed forms include the summary of rights.
A template for the infringement notice (including prescribed requirements and summary of rights) is attached as Appendix 3.
Each territorial/regional authority may develop its own individual template. However, please note that it must include all information prescribed in the Building Infringement Regulations.
The infringement notice must include:
- the name of the enforcement authority
- the details of the person to whom the notice is being issued (eg name and address)
- the details of the infringement (the nature of the alleged offence under the Building Act and the date, time and place of when it occurred)
- how much time the offender has to pay the fee (28 days) and by when it must be paid where the fee can be paid
- how the fee can be paid
- a ‘summary of rights’
- a statement of the person’s right to request a hearing
- a statement of what will happen if the person doesn’t pay the fee or request a hearing.
Summary of rights
The summary of rights is an important part of any infringement notice.
The summary of rights provides the offender with an explanation of how they can deal with the infringement notice including how to pay, or how
to take steps to challenge it.
The summary of rights should be set out on the back of the infringement form and must be replicated as prescribed in the Building Infringement Regulations.
It is important that you understand these rights and can explain the basics if asked.
See Appendix 3 for the Summary of rights.
Serving the infringement notice
An enforcement officer can either deliver the notice to the person receiving the infringement notice by hand or post it to them to the person’s last known residence or business address (section 372 of the Building Act). It is important to ensure the notice reaches the correct person in a timely manner. This may not always be the person or address on the consent application. For example, if a builder applied for a consent on behalf of an owner, but it was the owner who committed the offence, then the authorised officer will need to confirm the right address for the owner.
When a number of people are responsible for the activity, a separate infringement notice can be issued to each person who has caused the problem (eg the owner and occupier, the company directors and employees).
This is very much a case-by-case situation and discretion needs to be used.
In this situation the most culpable people need to be identified. Ask some questions. Who was initially warned of the offence and advised an infringement notice was possible? Who received the notice to fix? If a person is unaware of the offence and the penalties, they may have a defence under section 386 of the Building Act.
Section 380 of the Building Act defines a continuing offence as ‘The continued existence of anything, or the intermittent repetition of any action, contrary to any provision of this Act is taken to be a continuing offence’. For example, a lack of a building consent for a four-week period is one offence over that period of four weeks.
Flow chart example
The flow chart sets out an example of an infringement notice process. [Figure – flow chart]