Notable/significant decisions
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Section 317(1)(a)
An LBP has been convicted, whether before or after he or she is licensed, of any offence punishable by imprisonment for a term of 6 months or more and the commission of the offence reflects adversely on the person's fitness to carry out or supervise building work or building inspection work.
C2-01244 – Multiple convictions for tax evasion and dishonest offences
Board noted there is no fit and proper person entry criteria to become licensed but the Act allows the Board to carry out a post licensing assessment under “fitness to carry out or Supervise” in this charge.
Must be a link between the convictions and fitness. Factors to be considered include:
- Nature of the convictions;
- Gravity of the convictions;
- Acceptance of responsibility;
- Previous history of discipline; and
The effect on public confidence.
Section 317(1)(b)
An LBP has carried out or supervised building work or building inspection work in a negligent or incompetent manner.
C2-01688 – Misleading quotes and poor contracting practices
The Board considered negligence could include a misleading quote provided and processes associated with contract variations. The Board extended their interpretation of “building work” under their disciplinary function to include contractual and other provisions that must be adhered to in respect of residential building work.
The Board also found that the Respondent had brought the regime into disrepute.
C2-01649 – Discussion about restricted building work and official advice
The Board found that building work that involved structurally insulated panels was restricted building work. The Ministry had previously advised Respondent that it was not.
C2-01785 – Tanking membrane and restricted building work
The application of a waterproofing membrane (tanking) was held to be restricted building work by the Board. The Board set aside the MBIE Determination 2014/064. The Board considered that tanking involved external moisture management and there was a licence classes that covered it.
C2-01068 – Defining building work
This decision contains the Board’s definition of Building Work and what it includes
The phrase “for, or in connection with” used in the definition (of building work) connotes in the Board’s view a wide range of matters that could be brought into play including the processes and systems used to manage the construction, alteration, demolition or removal of a building.
The Board also sets out their reasoning why carrying out building work without a building consent can be negligence and or incompetence.
C2-01247 – Defining carrying out in relation to site set out and ancillary work
The Board provides consideration of definition of “carrying out” in relation to preparation for work or ancillary work. The LBP gave instructions relating to boundary position when a house was constructed, resulting in an incorrect house location.
The Building Act clearly envisages that more than one licensed building practitioner can be involved in a building project and that each practitioner is liable for their actions and conduct. The Act also clearly envisages that the actions and conduct of a practitioner can extend beyond physical building work and can include preparatory or auxiliary work.
Penalty decision
Substantive decision
C2-01143 – Supervision of restricted building work
The Board provides a detailed discussion on the supervision of restricted building work.
The Board’s position is that under the disciplinary provision in s 317(1)(b) supervision applies to all building work carried out under the supervision of a licensed building practitioner and that where the work is carried out under a building consent an additional requirement applies in that it must also comply with the building consent under which it is carried out.
In C2-01143 the Board also discussed the levels of supervision it considers will be necessary to fulfil a licensed building practitioner’s obligations noting that the level of supervision required will depend on a number of circumstances including:
- the type and complexity of the building work to be supervised;
- the experience of the person being supervised;
- the supervisor’s experience in working with the person being supervised and their confidence in their abilities;
- the number of persons or projects being supervised; and
- the geographic spread of the work being supervised.
The Board also needs to consider whether the work met the requirements of the building code and, if not, any degree of non-compliance.
Section 317(1)(c)
An LBP has carried out (other than as an owner-builder) or supervised restricted building work or building inspection work of a type that he or she is not licensed to carry out or supervise.
C2-01363 – Strict liability offence
The Board considers that this is a ‘strict liability’ type of offence.
This offence will only apply to restricted building work as there is no requirement to be licensed for work that is not restricted. The Board also notes that the provisions could also apply to building work which requires a licence under another enactment such as plumbing or prescribed electrical work.
Section 317(1)(d)
An LBP has carried out or supervised building work or building inspection work that does not comply with a building consent.
C2-01305 – Complying with the consenting process
The Board discusses the application of Tan v Auckland Council [2015] NZHC 3299. A failure to notify the Council of changes to the consented documents defeats the purpose of the consent and compliance process. Moreover undertaking building works that vary from those plans that have been consented can potentially put person and property at risk of harm.
Where the required process for carrying out variations to a building consent is not followed the matter can be considered under the disciplinary charge of negligence.
Section 317(1)(da)(ii)
An LBP has failed, without good reason, to provide the homeowner or Territorial Authority with a record of work on completion of restricted building work undertaken or supervised, in accordance with section 88(1) of the Building Act 2004.
CB25315 – Records of work in the public domain
Decision that provision to the territorial authority in a timely manner, but not to the owner, will not result in a finding of a failure to provide a record of work on completion. Decision based on code compliance process and that the record of work, once with the territorial authority, is in the public domain and accessible to the owner. Intention of regime is to create a permanent record of who did what in the way of restricted building work. Territorial Authority having the record of work achieves that aim.
C2-01829 - Each LBP carrying our RBW needs to provide their own ROW
Consideration of what is restricted building work, the requirements for a record of work, when completion occurs and reliance on official advice with regard to non-provision. Re hearing following a successful appeal.
C2-01689 - Records of work and who is accountable for the work
District Court decisions in Ali v Kumar et al [2017] NZDC 23582 and Bell v MBIE et al [2017] NZDC 23847 were set aside by the Board (different material facts found to exist). The work was completed by others and the point in time had arrived when the Respondent knew or ought to have known that his restricted building work was complete and that a record of work was due.
C2-01649 – records of work and official advice
The Board considers the Respondent was given, and relied on, official advice from the Registrar and the Respondent, on the basis of it, did not provide a record of work. The Board did not hold the Respondent accountable for his reliance on that advice, but found his behaviour lacking in other areas.
C2-01642 – Discussion about restricted building work and decks in relation to records of work
Finding that decks were restricted building work as the decks in question formed part of the primary structure and were a means of access under Clause D1 of the building Code.
C2-01170 – Records of work discussion
The Board provides a detailed discussion on records of work.
C2-01307 – Records of work and restricted building work
The Board writes an analysis and application of records of work to restricted building work and classes of licence.
The Board noted there are three requirements which need to be met for a record of work to be required:
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- the building work must relate to the construction or alteration of the primary structure or the external moisture-management system of a house or a small-to-medium apartment building;
- building work must be of a kind described in clause 5(3) of The Building (Definition of Restricted Building Work) Order 2011;
- The building work must be of a kind for which a licensing class to carry out or supervise the work has been designated by Order in Council under section 285 of the Act.
C1129 – Example of a good reason for not providing a record of work
The LBP provided a good reason for not providing a record of work.
The LBP could not supervise due to the position that his employer put him in. The LBP took appropriate action in relation to his employer’s demands by resigning his employment.
C2-01204 – Example of a good reason for not providing a record of work
The LBP provided a good reason for not providing a record of work.
The LBP had knowledge that the restricted building work he undertook would be removed and redone.
C2-01441 – Example of a good reason for not providing a record of work
The LBP provided a good reason for not providing a record of work.
The LBP had knowledge that the restricted building work he undertook would be removed and redone.
C2-01284 – Records of work and restricted building work
No restricted building work undertaken or supervised.
Licensed building practitioners on site were required to do records of work for the restricted building work they carried out.
C2-01495 – Records of work and the definition of a residential unit
The Board discusses the definition of a residential unit and the application of that definition to restricted building work.
The Board considers that both residential and non-residential aspects of this particular project were restricted building work.
The Board’s reasoning is that the building as a whole is one contiguous unit. Various structural and weathertight elements such as framing, trusses and cladding of one part are integral to the other and cannot be separated or treated as distinct. Therefore to require that certain aspects be carried out by a licensed building practitioner and not others would not only be impracticable but it would potentially defeat the requirement for the restricted parts of the residential unit to be completed or supervised by a licensed building practitioner
Section 317(1)(e)
An LBP has:
- made a false declaration; or
- has provided or made use of a document containing a false declaration; or
- has provided or made use of a document knowing that document to be not genuine;
for the purpose of becoming licensed, or for the purpose of any other person becoming licensed.
C2-01720 – Using a false identity document to obtain a licence
The LBP obtained a New Zealand Passport under a false name and used his false identify to apply for an LBP licence as a Carpenter.The LBP was convicted in the District Court under the Immigration Act.
Section 317(1)(h)
An LBP has breached s 314B of the Building Act 2004 (an LBP has misrepresented his or her competence and/or has worked outside his or her competence).
C2-01217 – Misrepresentation of and working within competence
The Board discusses the two types of disciplinary offence under s 314B. The first relates to representations as to a person’s competence (314(a). The second relates to carrying out or supervising building work outside of a licensed person’s competence (s 314(b).
Misrepresentation under s 314(a) is not defined in the Act so it bears the meaning it has at common law. A misrepresentation is a representation which is false. There was no evidence that there had been a misrepresentation.
In the context of the Act and the disciplinary charge under s 317(1)(h) and 314B(b) a licensed building practitioner must only work within their individual competence. Note that to carry out restricted building work outside of a licence class is a disciplinary offence under s 317(1)(c).
Section 317(1)(i)
An LBP has conducted himself or herself in a manner that brings, or is likely to bring, the regime under this Act for licensed building practitioners into disrepute.
C2-01720 – Using false documentation and disrepute
Respondent obtained a NZ passport in a false name and using a false identity which he then used to obtain a licence as a carpenter. Respondent was then prosecuted and convicted in the District Court under the Immigration Act.
C2-01124 – Disrepute and business practices
Board extended disrepute to business practices and the risk of overcharging.
Penalty decision
Substantive decision
C2-01167 – Disrepute and contractual right to carry out work
The Board discuss destruction and removal of a deck with no contractual right to do so .
Penalty decision
Substantive decision
C2-01312 – Disrepute and business practices
The Board considered gross overcharging by the LBP.
Quantity Surveyor report estimated value of work at $35K, over $70K charged to the client. Invoices issued were not able to be substantiated and there were errors in invoicing.
Penalty decision
Substantive decision
C2-01111 – Breaching district plan while having a financial interest in a property
The LBP was convicted in the Environment Court. The LBP changed a living room into a bedroom following the completion of work and the issuance of a Code Compliance Certificate. This change breached the district plan. The LBP had a financial interest in the dwelling.