Part 1
Amendments to principal Act
Clause 4: this amends the interpretation section of the Act (section 7). One of the changes made by this Bill is to replace the term “compliance document” with the terms “acceptable solution” or “verification method”. The definitions of those terms are inserted by clause 4(1) and (4) and the definition of compliance document is repealed by clause 4(2)(a). A number of clauses give effect to those changes by updating the use of the new terminology throughout the Act and in 3 other statutes. They are: clauses 6 to 12, 16, 17, 54, 57 to 61, and 63 to 65. There is no need to refer to those clauses again, which explains why otherwise there appear to be gaps in this clause by clause analysis.
Clause 5: this amendment to section 11 (Role of the chief executive) anticipates amendments in relation to the power of the chief executive to issue infringement notices and to authorise other persons to issue them (see clause 51).
Clause 9: this clause substitutes new provisions for existing sections 22 to 25A as part of the change from the use of a compliance document to the use of acceptable solutions and verification methods. There is otherwise no substantive change.
Clause 13: this clause increases the maximum penalty for an offence committed under section 40.
Clause 14: this clause purports to amend section 42(1). This is comprehensible only if it is remembered that this Bill follows the Building Amendment Bill (No 3) and has been drafted on the basis that Bill (No 3) will have been enacted. Accordingly this clause amends section 42(1) of the Act after amendment by Bill (No 3).
Clause 15: this clause inserts new section 42A. Again, the comments made above in respect of clause 14 apply here. New Section 42A describes the building work that is exempt under new Schedule 1 of the Act and sets out the conditions for the exemption to apply.
Clauses 18 to 27: subpart 6 of Part 2 of the Act (Special provisions for certain categories of buildings) currently applies to dangerous, earthquake-prone, and insanitary buildings. This group of clauses introduces a fourth category of building—an affected building, that is, a building that is not dangerous in isolation but is adjacent to, adjoining, or nearby a dangerous building (see clause 19). Clause 21 replaces section 124 (Powers of territorial authorities in respect of dangerous, earthquake-prone, or insanitary buildings) with a new provision that is largely similar to the current provision but excludes affected buildings from the power to give a notice to reduce or remove the danger in question (since an affected building is not inherently dangerous) and adds the power to issue a notice restricting entry to all categories of building. New section 125 sets out the requirements for the 2 distinct notices (see clause 22) and there are minor consequential amendments to sections 126 and 127 (see clauses 23 and 24). Clause 25 recasts existing section 128(1) to reflect the additional power to restrict entry and for ease of reference the relevant offence provisions are gathered into a stand-alone provision—new section 128A (see clause 26). Finally, in this context, clause 27 adds new section 132A requiring a territorial authority, in its policy on dangerous, earthquake-prone, and insanitary buildings, to take into account affected buildings.
Clauses 28 to 37: this group of clauses contains the necessary amendments to give effect to the policy decision to distinguish, for safety purposes, between a classifiable dam and a referable dam. The starting point is the insertion of the definitions of those terms in the interpretation section of the Act (section 7—see clause 4(5)). Those definitions do not carry the matter much further without the necessary regulations having been made, since “classifiable dam” and “referable dam” each has the meaning given to it by regulations made under the Act. New section 134 sets out the obligation of a dam owner to classify a dam. That obligation arises in 2 cases—first, if the dam is a classifiable dam; secondly, if the dam is a referable dam and the relevant regional authority has required the owner to classify it, as the regional authority is empowered to do by new section 134A. New section 134B (Method of classification) carries over the provisions of existing section 134 with no substantive change except that the provisions relating to the offence of failing to classify (existing section 134(3) and (4)) are now located in new section 134C.
Clauses 38 to 41: this group of clauses clarifies the process for the investigation by the chief executive of a complaint about a building consent authority and the exercise of the chief executive's disciplinary powers in respect of a building consent authority.
Clause 42: this clause amends section 217(2) to make explicit that the right of a person under section 217(1) of the Act to access information kept by a territorial authority is subject to the power of the territorial authority to withhold information under the Local Government Official Information and Meetings Act 1987.
Clause 43: this clause repeals sections 229 to 231. Those provisions reappear in a different form in new sections 371A to 371D (see clause 51).
Clause 44: this clause inserts new Part 4A. This Part, in new sections 362A to 362S, sets out consumer rights and remedies in relation to residential building work. In providing for implied warranties in residential building contracts (the term residential building contract is defined in new section 362B), these provisions mirror, and are based on, equivalent provisions in the Consumer Guarantees Act 1993. Existing sections 396 to 399 are repealed and reappear in new Part 4A as new sections 362G to 362J. Additional provisions adapted from the Consumer Guarantees Act are new sections 362K to 362O and 362Q. In addition to the provisions that can be traced to corresponding provisions in the Consumer Guarantees Act, new Part 4A contains the following protection for consumers under residential building contracts:
new section 362D: this requires a building contractor to provide a client under a residential building contract with certain information before the contract is entered into:
new section 362E: this stipulates minimum requirements for residential building contracts over a certain value:
new section 362P: this provides for the remedy of a defect in building work if notified by a client under a residential building contract within 1 year of completion of the building work in question. This does not detract from the client's other remedies, but the position of the client is enhanced under this new section by the presumptions in favour of the client contained in new section 362P(3):
new section 362R: this requires a building contractor who has carried out building work under a residential building contract to provide the client and the relevant territorial authority with the prescribed documentation and information.
New section 362S is a redrafting of existing section 364, which is repealed by clause 49.
Clauses 45 to 48: as a result of the insertion of new Part 4A it is necessary to renumber existing section 362A as section 362T. There are consequential amendments that follow.
Clause 49: this repeals section 364 as a result of that provision being moved and redrafted as new section 362S.
Clauses 50 to 52: this group of clauses relate to the issue of infringement notices. Their equivalent are currently found in existing sections 229 to 231 (which are repealed by clause 43). Those provisions have been redrafted to allow, in addition to authorisation by a territorial authority as currently provided, for the chief executive to authorise a person as an enforcement officer with the power to issue infringement notices. Under new section 374 as substituted by clause 52, payment of an infringement fee must be paid to the relevant territorial authority or the chief executive, depending upon who issued the infringement notice in question.
Clause 53: the offences contained in new sections 362D(2), 362E(4), and 362R(4) are infringement only offences and this is reflected in paragraph (b) of the definition of infringement offence in section 370 as substituted by clause 50(2). As such an infringement offence is not an offence punishable on summary conviction and clause 53 disapplies section 376 in respect of those offences.
Clause 55: sections 396 to 399 are removed to new Part 4A and these provisions are accordingly repealed by clause 55(1), with a savings provision in clause 55(2).
Clause 56: this clause amends the general regulations provision found in section 402 to capture the various references to the making of specific regulations in the amendments made under earlier clauses.
Clause 62: this clause replaces Schedule 1 with a new Schedule 1 (Building work for which building consent not required). This carries over the existing schedule with some technical amendments and has been redrafted for ease of reading and navigation.