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
Chin Keon (Daniel) Tan
Auckland Council

[2015] NZHC 3299



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).


S C Price and S A Jammes for Appellant

T Hu and S P Symon for Respondent



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 review of the 1991 Act was the leaky house crisis. The BA04 introduced requirements for consents, the establishment of a licensing regime for building practitioners, and the setting of performance standards for construction. 4

  • (c) Part 4 of the BA04 creates specific provisions for building practitioners and those engaged in the “carrying out of and supervising of” building projects involving “restricted building work”. The part makes provision for proper licensing of all practitioners engaged in projects of the restricted nature including supervisors, designers and others apart from the builder. 5

  • (d) The section under which the defendant is prosecuted falls in Part 2 of the BA04, which can be distinguished from Part 4. Part 2 applies to any building project undertaken by any person, licensed or otherwise, and is to be regarded as being of general and broad application when compared to Part 4. 6


After setting out the arguments of counsel and the principles of statutory interpretation, the Judge held:

  • (a) Section 40 relates to consent and authorisation. It is not to do with any specifically identified role within a building project or building work. Because nobody should be engaged in work that is unauthorised, the provision relates to any person. 7

  • (b) It is unclear why the wider wording in the Building Act 1991 (that is, “does any building work or permits any other person to do any building work”) was not imported into the BA04. 8

  • (c) In any building project there will be chains of command and authority and at the bottom of that hierarchy, both in terms of authority and remuneration, are those “wielding the hammers and shovels”. If a project was being undertaken without consent and thus unauthorised it would be nonsensical and savagely unfair on those persons to expose them, and not those who supervise or instruct them, to prosecution. 9

  • (d) An owner who has commissioned building work, who has a statutory obligation to take responsibility for obtaining the consent, who knows the work is being undertaken without consent, and who is paying for the work to be done, would, on the narrow interpretation, not be culpable on the basis that he or she did not actually strike a nail or turn a sod. 10

  • (e) Accordingly, the term “carry out” in s 40(1) of the BA04 must be interpreted to include any person who is engaged in building work and development at a level or in a role that provides a meaningful contribution to making the building work happen. This means that a building supervisor would clearly be one who was carrying out the work. 11

  • (f) The charge against Mr Tan has been properly laid. 12

Leave to appeal

Section 296 of the Criminal Procedure Act 2011 provides, inter alia, that if a person has been charged with an offence, he or she may appeal on a question of law against a ruling made by a trial Court before or after the determination of the charge with the leave of the first appeal Court.


Counsel did not realise that Mr Tan's appeal can only be heard with the leave of this Court and failed to make submissions on this point. A grant of leave was not

opposed by the Council. It is appropriate, in my view, that it be granted. That is because the legal question raised by this appeal is potentially determinative of the outcome of the case against the appellant. I grant leave accordingly
Approach to appeal

This is a general appeal. I must form my own view on the merits while giving due weight to the views of the District Court Judge. So, if I reach a different conclusion to that of Judge Thorburn, I will intervene and allow the appeal. 13

The application to adduce fresh evidence

I deal first with the Council's application to adduce fresh evidence. The evidence is a document that sets out advice from the Department of Building and Housing as received by the Select Committee on the Building Amendment Act 2007 (“the advice document”).


The Building Amendment Act 2007 initially included an amendment to s 40: 14

Clause 11 amends section 40 of the Act, which relates to building consent requirements for building work. The amendment substitutes new section 40(1), and extends the offence set out in section 40 to engaging or permitting another person to carry out building work except in accordance with a building consent. This brings the offence into line with the former corresponding offence in the Building Act 1991.


Clause 11 was struck out by a majority of the Select Committee. 15 The Select Committee did not provide any reason for doing this in its report. Nor is there any reference in Hansard as to why this was. The significance of the advice document is that, in the Council's submission, it sheds light on the Select Committee's decision not to amend the words of s 40 of the BA04 as suggested by clause 11. Essentially, the advice to the Select Committee was that the clause 11 amendment was unnecessary because the “carry out” wording was wide enough to include all those involving in building work.


The principles for the admission of fresh evidence were set out by the Privy Council in Bain v R. 16 There are two threshold conditions that must be met: the evidence must be of sufficient freshness and sufficient credibility. The Court must then be satisfied that it is in the interests of justice that the evidence be admitted.


Mr Price for Mr Tan opposes the application to adduce fresh evidence. He submits that the admissibility criteria are not met:

  • (a) The advice document does not constitute “evidence”. At best, it is inadmissible opinion evidence.

  • (b) The...

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1 cases
  • Cancian v Tauranga City Council
    • New Zealand
    • High Court
    • 28 March 2022
    ...the installation of the foundations and footings, both of which are forms of restricted building work under the 2004 Act. 22 In Tan v Auckland Council, Brewer J confirmed that a person who supervises and instructs those who physically carry out building work may be liable for breaches of s ......

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