Issuing an infringement notice
Powers of entry and issue
The Building Act gives authorised officers the power to enter building sites and to issue infringement notices. These powers and who they apply to are discussed below.
Inspection by authorised officers
To inspect a property you need to be an authorised officer of a territorial/regional authority. Section 222 of the Building Act gives you this power. This power means you can inspect buildings, building sites or land where building is under way or proposed, and enter premises during normal working hours. The officer must produce to the occupier written evidence of his or her identity when first entering private land and when requested at any other time.
When you enter private property, under section 224 of the Building Act you must also show your written warrant.
Even though you may be authorised by a territorial authority/ regional authority6 for inspections, you also need to be authorised as an enforcement officer to issue infringement notices.
Section 229 of the Building Act allows a territorial authority6 to authorise any of its officers to issue infringement notices under section 372. If it grants an authorisation to issue an infringement notice, the territorial authority must supply the enforcement officer with a warrant.
The warrant must clearly state the functions and powers the enforcement officer has been authorised to carry out under the Building Act.
You need to carry your warrant and identification at all times and show them when asked (section 230). It is important to know that there are some restrictions on these powers. Under section 226, an authorised officer cannot enter a household without the consent of the owner or by order of a District Court.
While you may have authority to go onto property and carry out enforcement activities, the law also expects you to do so in a reasonable and professional manner. For example, you are required to:
- find the owner or occupier as soon as you enter a property
- once you find them, produce your identification and warrant and show it any time you are asked for it
- if there is more than one building officer present, make sure you both show your identification and warrant
- if the owner is not present, leave a written notice showing the date and time of the inspection and the name of each enforcement officer who inspected the property. This should be left in a prominent position at the property, or attached to the structure inspected.
Factors to consider before issuing an infringement notice
Under Section 372 of the Building Act, an infringement notice may be served on a person if an enforcement officer:
- observes the person committing an infringement offence, or
- has reasonable cause to believe an infringement offence is being or has been committed by that person.
This section notes some points you should consider before deciding to issue an infringement notice.
Know your legal basis and policies
Always refer back to the Building Act and the Building Infringement Regulations. It is important that you can explain the legal basis for issuing an infringement notice to an offender if necessary.
Territorial/regional authorities will likely develop policies for managing the infringement system. It may be helpful to refer to similar policies developed for a range of other infringement systems such as the Resource Management Act infringement system. Policies need to be clear, transparent and applied consistently. Be familiar with your policies and how they work.
Best practice approach
As well as ensuring you are acting consistently with the Building Act and Building Infringement Regulations, and are following territorial/regional authority policy and building consent authority policy, you may like to also give regard to the following elements of a ‘best practice’ approach.
- No surprises. The building infringement system assumes infringement notices will be served on a ‘no surprises’ basis (ie, offenders should generally have good warning that an infringement notice could be issued). For example, territorial/ regional authorities could publicly signal crack- downs on persistent offences, before issuing infringement notices. An early discussion or letter about the infringement system to builders and building owners could be a helpful first step in encouraging compliance. A warning letter or notice to fix could be issued prior to an infringement notice. The key point is that the infringement notices are intended to act as a deterrent and achieve compliance, not as an ‘out of the blue’ punishment.
- Be fair. In some situations you will need to use your discretion. For example, you could consider the scale of the offending involved when deciding whether to warn, issue a notice to fix, or to issue an infringement notice (the examples below deal with this in more detail). As a guide, remember ‘natural justice’. Natural justice is a legal concept based on the idea that some legal principles are so obvious they should be applied without having to be enacted into legislation.
For example, everyone has the right to tell their side of the story. Think about fairness on a case-by-case basis. Deciding whether to issue an infringement notice is as much about investigating all the facts. An infringement notice may work well as a deterrent to a repeat offender (eg a tradesperson who has often breached the Building Act), rather than a homeowner who may not be fully aware of their obligations under the Building Act.
- Be consistent.It is important that the building infringement system is implemented as set out in the Building Infringement Regulations and that territorial/regional authority policy is followed. This will help ensure the infringement system is implemented consistently and that correct procedures are followed both in your region and across New Zealand.
- Document and record. Most enforcement policies put in place by territorial/regional authorities will include a process for documenting decisions around issuing infringement notices. You may already be familiar with Building (Accreditation of Building Consent Authorities) Regulations 2006 section 6, which covers the need for clear and detailed record-keeping.
The same attention to detail and documentation needs to be followed here. If the infringement notice is later challenged in court, good record- keeping will be important. It is also important to think about obtaining the best possible evidence prior to issuing infringement notices. Think about what you have observed and be thorough in recording this.
6. And regional authorities by virtue of s14(3)(b) of the Building Act.