Notices to fix
Notice to fix provisions in the Building Act 2004 came into force on 31 March 2005.
A notice to fix is a statutory notice requiring a person to remedy a breach of the Building Act 2004 or regulations under that Act. It is similar to a notice to rectify under the Building Act 1991 but, unlike a notice to rectify, a notice to fix can be issued for all breaches of the Act, not just for building work.
The main points about notices to fix are as follows.
- A building consent authority or a territorial authority must issue a notice to fix for any contravention of the Building Act 2004 and building regulations (eg, failing to obtain a building consent).
- If a notice to fix relates to building work carried out without a building consent, the notice can require the owner to apply for a certificate of acceptance.
- When a notice to fix has been issued by a building consent authority that is not a territorial or regional authority, the matter is then handed to the territorial authority to decide whether the notice has been complied with.
- Where a territorial authority is satisfied that the requirements of the notice to fix issued by a building consent authority have been met, it must confirm this in writing to the building consent authority.
- If a territorial authority is not satisfied that the requirements of a notice have been complied with (where building work is required), for example, after a follow-up inspection, it must provide written notice of its reasons and issue a further notice to fix to the specified person.
- A notice to rectify issued under the Building Act 1991 is deemed to be a notice to fix under section 164 of the Building Act 2004.
|Location in Building Act 1991
||Location in Building Act 2004
Notices of rectification
|Part 2 - Building
Subpart 8 - Notices to fix
|Section 42 of the Building Act 1991 concerning notices to rectify is equivalent to Part 2, Subpart 8, sections 163-168 of the Building Act 2004.
Issuing a notice to fix
Who can issue
A responsible authority must issue a notice to fix. A responsible authority includes a:
- building consent authority
- territorial authority.
Who to issue to
A notice to fix is issued to a specified person. A specified person is the building owner and, where applicable:
- the person carrying out building work
- any other person supervising that building work.
When to issue
The responsible authority must issue a notice to fix if it considers on reasonable grounds that:
- a specified person is contravening the Building Act 2004 (eg, doing building work without a building consent, or doing work not in accordance with a building consent)
- a specified person is contravening any of the Building Regulations under the 2004 Act (including the Building Regulations 1992, containing the Building Code)
- a building warrant of fitness is not correct
- the inspection, maintenance or reporting procedures stated in the compliance schedule are not being, or have not been, complied with.
Content of a notice to fix
The notice to fix must require a specified person to:
- remedy the contravention or comply with the Building Act 2004 or Regulations
- correct the building warrant of fitness
- comply with the inspection, maintenance or reporting procedures stated in the compliance schedule.
A notice to fix must also:
- be issued on Form 13 of the Building (Forms) Regulations 2004
- set a reasonable timeframe within which the notice must be complied with
- instruct the specified person to contact the territorial authority on completion of the building work (if applicable).
A notice to fix may:
- instruct the owner to apply for a building consent, or for an amendment to an existing building consent
- instruct the owner to apply for a certificate of acceptance for building work without a building consent
- state that all or any building work must cease immediately until the responsible authority is satisfied that the specified person is able and willing to resume operations in compliance with the Building Act 2004 and Regulations.
Use of discretion
It is possible for other matters, besides those listed above, that relate to remedying a contravention of the Act or regulations, correcting a building warrant of fitness, or complying with procedures in a compliance schedule to be included in a notice to fix.
Responsible authorities have some discretion in what they choose to include in notices to fix. They should use this discretion to ensure a notice to fix is appropriate to the circumstances of a particular situation.
Notice to fix for building work
There are three situations in which a notice to fix can be issued for building work that has not been, or is not being, carried out in accordance with this Act or the building consent. The notice to fix applies only:
- to building work required during the period in which a building consent is operative
- in respect of building work for which a building consent should have been obtained
- in respect of building work for which a building consent was not required, but where there was a requirement that the work meet the Building Code.
The building consent authority must supply a copy of the notice to fix to the relevant territorial authority within 5 days of issuing it.
Following up a notice to fix for building work
The specified person to whom the notice to fix was issued must notify the territorial authority that the relevant building work has been completed.
Once notified, the territorial authority must inspect the building work to which the notice to fix relates.
After inspecting the building work, the territorial authority must (in writing) either:
- confirm to the specified person that the notice to fix has been complied with, or
- confirm in writing that the notice to fix has not been complied with.
Confirming compliance with the notice to fix
The territorial authority must provide a copy of the confirmation advice to the building consent authority that issued the notice to fix.
Non-compliance with notice to fix
If the territorial authority confirms that a notice to fix has not been complied with, the territorial authority must:
- give the specified person concerned written notice of the refusal and the reasons for it
- issue a further notice to fix in respect of the building work.
See page 39 of the Building Officials’ Guide to the Building Act 2004 for a flowchart of the notice to fix process.
Inspecting work under a notice to fix
- Where a notice to fix requires building work to be undertaken, the territorial authority may need to inspect this work as it proceeds. If the work to be undertaken is not covered by the original consent, it may require that the specified person apply for a new or amended consent for that work. If this is the case, inspections will be arranged when the consent is issued.
- Section 222(4)(a)(iii) entitles an authorised officer to conduct inspections to determine compliance with a notice to fix.
Where building work has been done under a current building consent, and a notice to fix requires remedial work to be completed, it must describe the work to be carried out. Some discretion must be exercised by the building official, and this will depend on the complexity of the work involved.
Example: remedial work is relatively straightforward. The notice to fix should describe the required work, for example, by way of reference to an Acceptable Solution.
Example: remedial work is complex and requires specialist input. The notice to fix should set out some clear instructions, for example:
- certain work is to be remedied
- the specified person is to consult with a qualified person for example, an engineer
- the specified person is to apply for an amendment to the building consent detailing the design changes provided by the consulting engineer
- no remedial work is to be undertaken until the building consent is granted.
Responsible authorities should develop guidelines for issuing and enforcing notices to fix.
When issuing a notice to fix, the responsible authority must consider what outcome it wants to achieve, and state requirements clearly. Requirements should be achievable as far as is possible.
Example of a notice to fix
A large laundry and a small kitchen/dining room are located in a lean-to at the rear of a house. The owner obtains a building consent to:
- remove the wall between the laundry and kitchen
- relocate the laundry
- remodel the kitchen
- install one set of French doors from the kitchen out on to a deck that is only 900 mm high and not covered by the consent.
During the project the owner decides to install an additional set of French doors from the rear bedroom onto the same deck. The door opening is under construction when the building officer arrives at the site to inspect the work.
The building officer identifies that the work is not part of the building consent, and issues a notice to fix with the following instructions.
- Submit an application for an amendment to the building consent with updated drawings and a bracing calculation for approval by the territorial authority.
- Once approved by the territorial authority, install:
- a correctly sized lintel over the new opening
- additional bracing.
- Call for inspections before the lintel and bracing are covered over.