Solicitor-General’s Reference (No 1 of 22) - [2024] NZCA 514
Date of Judgment
11 October 2024
Decision
Solicitor-General’s Reference (No 1 of 22) (PDF 350 KB)
Summary
Criminal practice and procedure - Solicitor-General's reference
Building - Construction and control
We answer the question of law (arising from Cancian v Tauranga City Council [2022] NZHC 556) as follows:
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?
No.
This judgment concerns a question of law referred to this Court by the Solicitor-General with the leave of this Court, which relates to the application of s 40 of the Building Act 2004 (the Act) to producer statements issued following or resulting from construction monitoring. The question of law arises from Cancian v Tauranga City Council [2022] NZHC 556, in which the High Court allowed the conviction appeals of a Mr Cameron and his company, The Engineer Ltd, relating to the issue of producer statements in connection with a residential subdivision and development near Tauranga known as The Lakes.
Does the issue of producer statements (following or as a result of construction monitoring) in relation to non-compliant building work give rise to liability under s 40 of the Act?
Held: Yes.
Although the Act does not provide for producer statements, the issue of producer statements clearly falls within both "building work" and "sitework" as defined in the Act. A producer statement is a standard document with well understood content and purpose, intended to contain reasonable statements of professional opinion that the building works to which they relate have been completed in accordance with the building consent and the building code. In the case of Mr Cameron, this necessarily involved on-site construction monitoring, physically carrying out investigations and testing, and providing instructions or directions to building contractors in respect of the next stages in construction. A statement by a qualified professional that there has been compliance when that is not the case will itself be building work that is not in accordance with the building consent. There was therefore a breach of s 40(1). This conclusion accords with the purpose of the Act.
The absence of statutory reference to the role of producer statements is not significant when the provision of the statements in fact assists all the parties who have relevant responsibilities under the Act to fulfil their responsibilities. Building consents and the building code have prescriptive and verifiable standards as to what they each require. The author of the producer statement will not be criminally liable unless it is established beyond reasonable doubt that the matters certified in the statement are incorrect.
Building - Construction and control
We answer the question of law (arising from Cancian v Tauranga City Council [2022] NZHC 556) as follows:
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?
No.
This judgment concerns a question of law referred to this Court by the Solicitor-General with the leave of this Court, which relates to the application of s 40 of the Building Act 2004 (the Act) to producer statements issued following or resulting from construction monitoring. The question of law arises from Cancian v Tauranga City Council [2022] NZHC 556, in which the High Court allowed the conviction appeals of a Mr Cameron and his company, The Engineer Ltd, relating to the issue of producer statements in connection with a residential subdivision and development near Tauranga known as The Lakes.
Does the issue of producer statements (following or as a result of construction monitoring) in relation to non-compliant building work give rise to liability under s 40 of the Act?
Held: Yes.
Although the Act does not provide for producer statements, the issue of producer statements clearly falls within both "building work" and "sitework" as defined in the Act. A producer statement is a standard document with well understood content and purpose, intended to contain reasonable statements of professional opinion that the building works to which they relate have been completed in accordance with the building consent and the building code. In the case of Mr Cameron, this necessarily involved on-site construction monitoring, physically carrying out investigations and testing, and providing instructions or directions to building contractors in respect of the next stages in construction. A statement by a qualified professional that there has been compliance when that is not the case will itself be building work that is not in accordance with the building consent. There was therefore a breach of s 40(1). This conclusion accords with the purpose of the Act.
The absence of statutory reference to the role of producer statements is not significant when the provision of the statements in fact assists all the parties who have relevant responsibilities under the Act to fulfil their responsibilities. Building consents and the building code have prescriptive and verifiable standards as to what they each require. The author of the producer statement will not be criminally liable unless it is established beyond reasonable doubt that the matters certified in the statement are incorrect.