Notices to fix — frequently asked questions
What happens to a notice to rectify issued under section 42 of the Building Act 1991?
It is to be treated as if it were a notice to fix under section 164 of the Building Act 2004 (section 435).
Can a notice to fix be issued when the work was approved in a building consent but subsequently proves to be non-compliant during the construction process?
Yes. The notice to fix can instruct the owner to do remedial work, even if this work was not detailed in the building consent documentation.
Can a notice to fix be issued for work that is outside the scope of the building consent?
Yes. The building officer must make a decision on the approach to adopt, depending on the scope and complexity of work. The notice to fix may require the specified person to apply for a certificate of acceptance or amend the consent and undertake remedial work, or remove the building work.
Can a notice to fix stop all or part of a building project?
Yes. For example, where only one aspect of the project is in breach of the consent, a notice to fix can require that aspect to stop while the rest of the project continues.
If a notice to fix requires a specified person to apply for a certificate of acceptance from the territorial authority, what should an owner do if the territorial authority refuses the application?
The specified person should discuss the notice to fix requirements with the responsible authority that issued the notice to fix. If the matter cannot be settled, the owner may apply to the Department of Building and Housing for a determination.
What is a reasonable time to comply with a notice to fix?
When deciding on an appropriate compliance time to put in a notice to fix, consideration should be given to, among other things, issues such as human and site safety, the scope of the work, and availability of people and materials to do the work. Each case will have to be judged on its own merits. If someone is required to build a barrier around a deck it may be a job that can be done within 10 days. However, if someone is required to build a large retaining wall it may not be possible to build it within 10 days and the specified person may be given a longer period.
Should a notice to fix tell the specified person how to fix the problem?
This will also need to be considered on a case-by-case basis. The instruction may be to comply with the building consent. The purpose of the notice is to identify the problem, and instruct the specified person to fix it. The notice does not need to design the solution.
Can a notice to fix instruct the specified person to do work not covered by a building consent?
Yes, but the notice may also require that the owner apply for a building consent to do the work.
Can a territorial authority charge for resolving a notice to fix issued by a building consent authority that is not a territorial or regional authority? If so who do they charge, the specified person or the building consent authority?
A territorial authority can charge the owner for the reasonable costs associated with resolving a notice to fix (section 219).