Why was the infringement system introduced?
As noted in the Introduction, territorial/regional authorities and building consent authorities are responsible for enforcing various aspects of the Building Act to ensure builders, designers, building owners or owners’ agents etc meet their obligations.
Until the Building Infringement Regulations came into force, the only ‘enforcement’ action (wherea builder or building owner is obliged by law to fix or rectify something) territorial/regional authorities could take were court-based prosecutions.
This reliance on court-based prosecutions as a means of ensuring compliance was identified as an issue during a review of building legislation in 2003. This review found that this means of enforcement was costly, time-consuming, and often disproportionate to the offence. As a result, compliance with the Act was lower than desired2.
By putting in place an infringement system, territorial/regional authorities now have an extra tool to encourage compliance with the Building Act. An infringement system was chosen as the appropriate tool to use as:
- many territorial/regional authorities already have established infringement systems (for example, parking or dog control infringement systems)
- infringement notices can be used quickly and easily
- infringement notices are easily understood by the public and are simple to implement
- infringement notices are a ‘no surprises’ way to encourage compliance
- offenders can avoid time and association costs of court action, but will face significantly greater certainty of council enforcement actions (in the form of instance fines).
Infringement notices are intended to be used as a deterrent, to encourage rectification and to reduce persistent re-offending – not as a revenue-raising tool.
Is the building infringement system compulsory?
No. Territorial/regional authorities have the option of implementing the infringement system under the Building Infringement Regulations or they can continue using court-based prosecutions as the only form of enforcement. If territorial/regional authorities do adopt the building infringement system, they have to adopt it exactly as set out in the Building Act and Building Infringement Regulations, which includes reference to the Summary Proceedings Act 19573.
This is to ensure the building infringement system is applied fairly and consistently across the country (ie, similar processes are followed in deciding when and how to impose an infringement notice, and when a notice is imposed it is the same fee imposed for the same offence).
Territorial/regional authorities must adopt the system as set out in the Building Infringement Regulations, as any deviation from the requirements of the Act could mean parts of the system would not be enforceable.
2. Terrritorial /regional authorities issue on average 350 formal notices to fix per annum, however, compliance rates are at best 50 percent and as low as 20 percent, so between 500 and 1250 notices to fix per annum are not complied with. Only 1–7 percent of these offences are prosecuted due to the time and cost associated with taking court action. Taking a prosecution generally costs a local authority $ 3,000 – $ 20,000. Court fines (if given) have ranged from $ 2,000 – $30,000, depending on the nature and level of offending. While the local authority taking the prosecution receives 90 percent of any court-imposed fine, and can, in addition, be awarded costs, these combined rarely cover the prosecution costs.