Building work and premises intended for public use

What does section 363 of the Building Act provide for?

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

Under the Act, a new 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 territorial authority confirms it is safe to do so.

This could result in a fine of up to $200,000, and a further fine of up to $20,000 for every day or part of a day the offence has continued.

Read section 363 of the Building Act and amendments online on the Interim Website of New Zealand Legislation (Public Access to Legislation Project)  or download a PDF copy from our website.

When does section 363 apply?

In premises intended for public use affected by building work, section 363 applies in either of the following situations.

• A building consent has been issued to undertake the building work, but a code compliance certificate or certificate for public use has not yet been issued (or the conditions on the certificate for public use are not being complied with).
• A building consent was never issued for the building work that has been undertaken, even though one was required.

In these circumstances, an offence under section 363 will be committed if members of the public use the affected part of the premises from the time the physical work starts until documentation is issued confirming it is safe to do so.

People in control of premises affected by building work consented or begun before 31 March 2005 have until 31 March 2010 to obtain a code compliance certificate (CCC) or a certificate of acceptance for that work and comply with the requirements of section 363.

When does section 363 not apply?

Building work for which no building consent is required, such as a non-structural fit-out of a shop or office, is not affected by section 363.

Building consents and code compliance certificates were introduced on 1 July 1992. Section 363 does not apply to work done before this date that affects premises intended for public use.

What are ‘premises intended for public use’?

Section 363 defines premises intended for public use as premises intended to be open to members of the public, or being used by members of the public, whether free of charge or for payment.

Premises can be all or part of a building.

Premises with free and open access will typically be classified as premises intended for public use. Examples include shopping centres as well as premises where the public can enter on payment of a fee, such as a sports stadium, swimming pool or zoo.

Premises with restricted access (for example, where access is blocked and entry gained via a key pad or coded swipe card) are unlikely to be considered premises intended for public use.

Premises intended for public use as defined by section 363 are likely to include, but are not limited to:

• schools and childcare centres
• hospitals and rest homes
• premises providing public accommodation, such as hostels and guest houses
• places of assembly, including churches, cinemas and conference facilities
• clubrooms and recreation centres with public access
• restaurants and bars
• public foyers in office and apartment buildings
• public structures.

What does ‘affected by building work’ mean?

How much of the premises will be considered affected will depend on the project.

Affected by building work can mean work occurring on the premises, or work being done elsewhere in the building if it poses a threat to public safety on the premises. In many cases, the areas affected will vary at different times during the project.

Under section 363, access to the affected part of the premises needs to be restricted.

Many of the safety precautions you could take would be similar to those undertaken under the Health and Safety in Employment Act 1992.

The following is an example of how a business could remain open, but in a limited capacity while building work is under way.

Adding an outside extension/smoking area to a public bar

The public must be able to enter without passing by or through the building work. The site and any tools or materials must not be accessible to the public. The public must not be able to access any part of the premises where the structural integrity is compromised by the work, or where the public’s safety is jeopardised.

Who administers section 363?

Territorial authorities will be largely responsible for implementing section 363. They will establish policies and processes for its enforcement at a local level.

What should people who control premises do?

People who control premises are responsible for ensuring building work on their premises is done safely, and in accordance with the law. This responsibility includes ensuring all necessary building consents and code compliance certificates have been granted.

People who control premises are also responsible for ensuring members of the public can use their premises safely. If premises are affected by building work, this could include ensuring barriers are put up to restrict access, or in some cases it could involve closing premises.

Planning a new project - what is a certificate for public use?

People proposing to construct new premises intended for public use will need to factor in the need to comply with section 363 before members of the public can use the premises into their timeframe and planning.

If people want to start using premises before a code compliance certificate is issued, they can apply for a certificate for public use. This certificate enables members of the public to use the premises until a code compliance certificate is granted.

A territorial authority will issue a certificate for public use where it is satisfied it is safe for members of the public to use the premises. (Issuing a certificate is likely to involve some form of inspection.) Territorial authorities can take into account any safety precautions that have been put in place. Certificates for public use can be for all or part of the premises.

Once all the building work is complete, a code compliance certificate must be obtained.

Existing premises intended for public use

People in control of premises affected by building work consented or started before 31 March 2005 have until 31 March 2010 to comply with section 363. This gives people who control premises 5 years to resolve any issues with building work affecting their premises.

People who control premises should check their building records to ensure all building work affecting the premises has received a building consent and code compliance certificate.

If there are no outstanding building consents or code compliance certificates for building work affecting the premises, no further action is required. However, it may be worth checking with the territorial authority to ensure that its records confirm this.

If work has been consented, but no code compliance certificate issued, the person in control of the premises should contact the territorial authority to see if a code compliance certificate can be issued for that work.

If a territorial authority cannot grant a code compliance certificate, or if work has been done without a building consent, it may be possible to get a certificate of acceptance. Section 363 will not apply to building work affecting premises that has a certificate of acceptance.

If a building consent has been issued but no building work was ever done, no offence has been committed under section 363.