Such statements play a role in ensuring that building work complies with building code
In a recent decision, the Court of Appeal ruled that issuing producer statements related to non-compliant building work can result in liability under s. 40 of the Building Act 2004.
The decision arose from a legal question referred by the solicitor-general, challenging a previous high court ruling in Cancian v Tauranga City Council. The Court of Appeal disagreed with the high court’s finding, answering in the negative the question, “Was the court correct to find that the issue of producer statements in relation to non-compliant building work does not give rise to liability under section 40 of the Building Act 2004?”
The core issue was whether producer statements – documents issued by professionals certifying compliance with building standards – constitute “building work” under the act. The case centred around Bruce Cameron, an engineer, and The Engineer Ltd (TEL), his company. Both were convicted by the district court for issuing incorrect producer statements that certified non-compliant building work on a residential subdivision known as "The Lakes" near Tauranga. The high court, however, quashed their convictions, ruling that issuing a producer statement could not trigger liability under s. 40.
Section 40 of the Building Act 2004 prohibits any building work from being carried out without building consent. The Court of Appeal considered the statutory text and purpose of the act, ruling that producer statements are indeed a part of the building process and thus fall under the definition of “building work.” This definition includes any work related to the construction or inspection of a building, such as site monitoring and assessments carried out by engineers like Cameron.
The Court of Appeal emphasised that producer statements, although not formally recognised by the Building Act, play a significant role in ensuring that building work complies with the building code. These documents help streamline the regulatory process by allowing building consent authorities to rely on expert certifications rather than conducting all inspections themselves. The court concluded that when a producer statement wrongly certifies compliance with the building code, it can lead to liability under s. 40.
