Tan v Auckland Council

JurisdictionNew Zealand
CourtHigh Court
JudgeBrewer J
Judgment Date18 December 2015
Neutral Citation[2015] NZHC 3299
Docket NumberCRI-2015-404-323
Date18 December 2015

[2015] NZHC 3299



Chin Keon (Daniel) Tan
Auckland Council

S C Price and S A Jammes for Appellant

T Hu and S P Symon for Respondent

Appeal against a District Court decision that the phrase “carry out” under s40 Building Act 2004 (BA) (must not carry out any building work except in accordance with a building consent) included supervision and instruction of people who did the physical building work — the appellant was the project manager of a property being built — did not physically do any building work — appellant admitted knowing that the project needed building consent, but he had caused the work to be done to avoid delay — whether the appellant had carried out building work under s40BA — whether the principle of lenity applied (any ambiguity was to be decided in favour of the appellant).

The issues were: whether the term “carry out any building work” in s40 BA included the supervision or instruction of those who physically carried out building work; whether a wider meaning of s40 would render s 386 BA (liability of principal for acts of agents) otiose; and, whether the principle of lenity applied (any ambiguity was to be decided in favour of T).

Held: Section 5(1) Interpretation Act 1999 (IA) (ascertaining meaning of legislation) provided that the meaning of an enactment must be ascertained from its text and in the light of its purpose. The Shorter Oxford Dictionary defined “carry out” as: “perform, conduct to completion, put into practice.” Giving directions to commence building work and supervising building work would constitute conducting to completion or putting into practice that work. The ordinary meaning of “carry out” was wide enough to encompass acts of supervision or instruction.

In terms of the purpose of the statute, the BA was enacted as a direct response to the leaky building crisis. It sought to strengthen the regulation of building in order to minimise the possibility of building failure in the future. Section 3 BA (purpose) and s4 BA (principles to be applied in performing functions or duties, or exercising powers, under this Act) made it clear that the purpose of the BA was to ensure that building work met certain standards in order to achieve the goals of public health, safety and wellbeing, and sustainable development. The BA made owners, designers, builders and authorities responsible for ensuring that the purpose was met. By making it a criminal offence in s40 to carry out building work without building consent, Parliament must have intended to minimise the amount of unconsented building work carried out so as to ensure that buildings meet the goals set out in s 3.

A narrow interpretation of “carry out building work” in s40 BA would mean that only the trades people contracted to work on a building site would be liable; for example, the labourers, builders and plumbers. Those workers usually had only limited knowledge of the project, restricted to their area of responsibility. In most building projects, such workers would inevitably rely on what the building owner or project manager told them about the status of the building consent.

By contrast, those delegated with planning and oversight of the building project were more likely to be tasked with obtaining the building consent. Those with oversight were in the best position to make sure that unconsented building work did not occur.

A wider interpretation of s40 BA placed the responsibility for ensuring compliance with the building consent with those people who had the closest connection to the building consent application process and those who were best placed to know whether a building consent had actually been obtained.

In limited circumstances, there would be overlap between s386 BA and a wide interpretation of s40 BA. One such situation would be where the owner had delegated the building project in its entirety to the project manager and the project manager hired trades people to work on the site. The project manager would be liable if building work was carried out without consent under both provisions. Section 386 BA was unable to cover situations that a wider interpretation of s40 BA would be able to cover, such as the present one, where the trades people that a project manager supervised were contracted by the same company which employed the project manager and the trades people were not employed by the project manager personally.

Section 7 BA (interpretation) did not show that “building work”, except where provided by the legislation, was the doing of physical work itself and not anything broader. Such an interpretation was inconsistent with a clear intention of Parliament that those in a supervisory capacity be held liable, reflected both in s386 BA and the part of the BA relating to Licensed Building Practitioners. The BA did draw a distinction between the words “carry out” and “supervision”. “Supervise” was defined in the Act as meaning “to provide control or direction or oversight of the building work to ensure that the building work meets a certain standard”.2But the distinction is made only in relation to the Licensed Building Practitioners regime. The existence of this regime suggested Parliament contemplated that the purposes of the Act were furthered where those who supervised the work, in addition to those who physically did it, were held liable. It would be consistent with this legislative indication, and with the purposes of the Act, for the offence in s40 to cover acts of supervision.

The external context of the legislation was consistent with the wider interpretation which best accorded with the BA's purpose. The legislative history did not exclude a wide interpretation. Further, A wide interpretation of “carry out” brought the BA into line with the Resource Management Act 1991.

The principle of lenity did not override the need for a purposive interpretation and criminal statutes were not immune from purposive interpretation. This presumption had lost some of its force with the growing emphasis on purpose in s5(1) IA (Burrows and Carter Statute Law in New Zealand). The DC had not erred in favouring a purposive interpretation over a strict application of the principle of lenity.

The term “carry out any building work” in s40 BA was not limited to the physical carrying out of building work but included the supervision or instruction of those who physically carry out building work.

Appeal dismissed.



The appellant, Mr Tan, has been charged by Auckland Council (“the Council”) with one charge of carrying out building work without a building consent contrary to s 40 of the Building Act 2004 (“BA04”).


Mr Tan is the project manager of the property being built. He argues that he cannot be charged under s 40 as he did not “carry out” any building work. In other words, he did not physically do any building work.


The parties sought a pre-trial determination from the District Court on the interpretation of “carry out” in s 40. Judge Thorburn ruled that it includes the supervision and instruction of people who do the physical building work and held that the charge against Mr Tan was good. 1 Mr Tan appeals that decision.


Mr Tan is employed by Alpha Laboratories (NZ) Ltd (“Alpha”) to manage the expansion of a block of units in East Tamaki for use in a food processing business (“the property”).


On 7 July 2014, an officer from the Auckland Council's building compliance team visited the property. The officer observed that three of the four units on the property had been consolidated into one and there was a large air-conditioning system on the roof. Steel structures to support and brace the air-conditioning system had been installed as well as draining, plumbing and associated fixtures and pipe-work. In addition, part of the connecting fire-rated wall and the connecting fire-rated stud wall that separated the units had been removed. Internal partitioning had been installed and the interior walls had been clad with thermal and fire retardant panels.


All of this building work required building consent. The Council had not received any application for building consent.


Mr Tan did not physically do any of the building work. His involvement was limited to instructing and supervising the actual builders.


Mr Tan admitted knowing that the project needed building consent, but he had caused the work to be done to avoid delay.

The interpretation issue

Section 40 provides:

40 Buildings not to be constructed, altered, demolished, or removed without consent

  • (1) A person must not carry out any building work except in accordance with a building consent.

  • (2) A person commits an offence if the person fails to comply with this section.

  • (3) A person who commits an offence under this section is liable on conviction to a fine not exceeding $200,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence has continued.


The term “carry out” is not defined in the BA04.


I understand the issue to be:

Is the term “carry out any building work” in s 40 of the BA04 limited to the physical carrying out of building work or does it include the supervision or instruction of those who physically carry out building work?

Judge Thorburn's decision

Judge Thorburn made a number of observations about the BA04:

  • (a) The predecessor Act (the Building Act 1991) created the offence of liability for unauthorised building work when a person “does any building work or permits any other person to do any building work”. 2 The wording was changed in s 40 of the BA04. 3

  • (b) The main impetus for the...

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