Does the issuing of a producer statement qualify as building works for the purposes of a section 40 prosecution?

Introduction

Criminal liability in relation to producer statements under the Building Act 2004 has been a cause for confusion. Much of this confusion has arisen from whether or not producer statements are considered as part of the building works. However, in Re Solicitor-General’s Reference, the Court of Appeal have confirmed that the issuing of producer statements after construction monitoring can give rise to liability under section 40 of the act (which prohibits non-consented building works).

This case was a question of law put before the court in accordance with the Criminal Procedure Act 2011, s313. The Solicitor-General sought an answer to the following question;

“was the court correct to find that the issue of producer statements (following or as a result of construction monitoring) in relation to non-compliant building work does not give rise to liability under s 40 of the Building Act 2004?”

To which the Court of Appeal responded, “no”.

Background

This question arose from the original case of Cancian v Tauranga City Council. For the purpose of this particular question, the case involved prosecutions of Mr Cameron (an engineer) and TEL (an engineering firm of which Mr Cameron was sole director). TEL was engaged to carry out engineering work on a residential subdivision near Tauranga. Mr Cameron carried out tasks on behalf of TEL such as site monitoring and issuing producer statements. During the works, Tauranga City Council and WorkSafe became aware of quality and site safety concerns with the development. This led to the works being halted and some of the houses being designated as unsafe. Additionally, some houses that had already been completed and sold were required to be vacated by their new owners due to safety concerns. The Tauranga City Council brought cases against Mr Cameron and TEL under the Building Act 2004, s40 for carrying out noncompliant building works.

The defendants were convicted under section 40 at the District Court. The court was satisfied that issuing a producer statement amounted to “building works” for the purpose of the Building Act. They also found that the investigations that Mr Cameron and TEL undertook prior to the issuing of the producer statement were insufficient. Therefore, section 40 was satisfied, and a conviction was made. 

On appeal, the High Court quashed these convictions on the basis that producer statements did not amount to “building works”. They reasoned that the Building Act 2004 and building consent make no explicit reference to producer statements. Consequently, the defendants cannot have breached the consent by issuing inadequate producer statements, as the consent does not regulate them and thus set no minimum standards for such statements. They went on to explain that the liability in this case is more likely to be attributed to parties involved in the construction itself (such as developers and builders).

Court of Appeal

This court was limited to analysing the legal question of whether the issuing of a producer statement can give rise to liability under section 40. Their answer to this, was yes. In reaching this conclusion they undertook an exercise in statutory interpretation, first looking at the wording of the Building Act 2004, then its purpose.

The Building Act 2004 has a broad definition of “building works” which can include “work for or in connection with the construction…” and also includes siteworks. “sitework” is defined by the act as work on the building site that is associated with the construction. Based on this wording, the Court of Appeal was satisfied that a broad interpretation of “building works’ was appropriate, and that issuing a producer statement would amount to both “works for or in connection with the construction” and “sitework”. They were persuaded by the fact that while producer statements are not explicitly mentioned in the Act they are well recognized in the industry as legitimate. They are commonly relied upon by authorities as a reasonable assurance that the works are compliant with the relevant building consent and code.

Turning to the purpose of the Building Act 2004, the Court of Appeal notes that many of the specific purposes of the act (listed in section 3) are associated with health and safety. They were satisfied that including the issuing of producer statements in “building works” for the purpose of section 40 was consistent with this purpose as it compels issuers to ensure that relevant checks are made and that the information contained within producer statements is accurate. Furthermore, regulating the accuracy of producer statements furthers this purpose by ensuring that any other liable parties (such as owners/developers) can rely on producer statements in upholding their own duties under the Act.

The court closed their analysis with a reminder that to find the issuer of a producer statement liable under section 40, it must be proven beyond reasonable doubt that matters certified in the statement are incorrect.

Conclusion

Overall, Re Solicitor-General’s Reference provides a welcome clarification on the scope of “building works”. It will be interesting to see if and how this scope continues to broaden. In the meantime, it serves as a reminder that criminal liability under the Building Act 2004 is not limited to parties carrying out the physical aspects of the work. 

Note: This article is not intended to be legal advice (nor a substitute for legal advice). No responsibility or liability is accepted by TM Bates & Co. or Building Today to anyone who relies on the information in this article.