Notice To Fix
What is a Notice to Fix
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. A notice to fix can be issued for all breaches of the Act, not just for building work.
Who issues a Notice to Fix
A responsible authority must issue a notice to fix. A responsible authority includes a:
- building consent authority
- territorial authority.
Who can be issued with a Notice to Fix
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.
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 (for example, 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.
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.
Included in 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. The building official needs to exercise some discretion 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 but not limited to:
- certain work is to be remedied
- a time frame in which the remedial work must be completed by
- 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.
- the requirement to apply for a Certificate of Acceptance (work completed without a consent)
Failing to comply with a Notice to Fix
Failing to comply with a Notice to Fix is an offence under the Building Act 2004. Worse case scenario, if convicted (meaning a decision made by the courts), you will be liable for a fine of up to $200,000 and a further fine of up to $20,000 for everyday the offence continued.
Therefore a Notice to Fix can be quite a serious issue, however we (council) will be working with you through this process to try and avoid any unnecessary costs and or time delays. Remember going to court would be the last option to achieve a result or outcome.
Publish Date: 31 Jan 2018