Buildings intended for public use

The Building Act 2004 was introduced to strengthen building controls and increase protection for the public.

Under the Act, a public safety measure, known as section 363, makes it an offence to permit people to use parts of premises intended for public use that are affected by building work, unless the council confirms it is safe to do so.

To find out more, see our section for building owners, managers and developers.

Offences under section 363

Section 363 creates a new offence concerning premises intended for public use that are being used when they are affected by building work. The purpose of section 363 is to ensure the public is safe when using buildings.

Exemption

The offence does not apply to building work commenced before 1 July 1992 that affects public premises. This exemption applies regardless of when the work was completed.

When is the offence committed?

When a person who owns, occupies or controls premises either uses or permits the use of any part of those premises that:

a) is intended to be open to members of the public or is being used by members of the public; and

b) is affected by building work and any of the following circumstances exist in respect of the building work:

a building consent is required for the work, but no building consent has been granted for that work, or
a building consent has been granted for the work, but neither of the following have been issued - a code compliance certificate, or a certificate for public use, or
a building consent has been granted for the building work and a certificate for public use has been issued, but no code compliance certificate has been issued for the work and the conditions set out in the certificate for public use have not been met.

Premises intended to be open or to be used by members of the public

‘Premises’ can mean all or part of a building. Premises to which the offence applies are premises that are intended to be open to members of the public or are being used by members of the public.

Premises are intended to be open to the public whether or not:

members of the public are charged for using the premises
it is intended that members of the public be charged for using the premises
members of the public will be excluded from the premises regularly or from time to time.

In general terms this means that premises will be intended to be open to members of the public where there is:

open access - examples of this include restaurants, hospitals, schools, churches and retail shops (note: this is not a complete list)
access controlled by payment of a charge - an example of this could be a nightclub where entry from the street is on payment of a cover charge.

Buildings with restricted access (for example, key pad or coded entry) are unlikely to fall into the category of premises intended to be open to members of the public.

A reception area that is open to the public, even though the remainder of the building is closed off, would be categorised as premises intended to be open to members of the public.

Premises affected by building work

A part of the premises may be affected by building work whether or not the building work:

is complete
is yet to be completed
is being done or has been done in or to:
- the part itself
- some other part of the building that the premises comprise or form part of
involves or involved the building of:
- the part itself
- some other part of the building that the premises comprise or form part of.

Building work requiring a consent

A building consent is required for all building work with the exception of building work covered by sections 41 and 43, and Schedule 1 of the Building Act 2004.

Principles for applying section 363

Each territorial authority should develop its own policy and approach to enforcement of section 363. Building officials will have to balance working constructively with building owners to achieve solutions with the need to ensure the public safety objectives of the legislation are met.