Lapsed Building Permits

The legislation clearly intends that building work under a building permit is either (1) completed, inspected and written-off, or, (2) where applicable, dealt with under s81(2) of the Building Act as work which is not going ahead - whether before commencement or mid-way through.

Unless work is terminated, failure of the person in charge of building work to:

• complete building work within the currency of the building permit and
• call for inspection at the work completion stage are offences against s16 and 33 of the Building Act.

Although private building surveyors are not authorised to bring proceedings for offences under the Building Act there are alternative methods to compel compliance: (1) contract terms at appointment, or (2) alerting or threatening to alert the Building Commission, who may prosecute; or the Building Practitioners Board who may investigate the conduct of any wayward building practitioners. Unfortunately, at the time of writing, neither the Building Commission the Practitioners Board appear to have a co-ordinated approach with relation to this issue. As the Municipal Building Surveyor, in applying the Building Control Intervention Filter Criteria, considers the relevant building surveyor as holding administrative duty until functions are completed (regardless of time elapsed) private building surveyors are expected to use their own effective methods to drive a proper resolution of the situation.

Final Inspections

It is not necessary for a building permit to be in force for a final inspection to be conducted. Letters to owners requesting additional fees before a final inspection is carried out may be counter-productive and in breach of s78(4)  and s34 of the Act. Many private building surveyors also write to Council advising that works are not complete. This is not necessary and such advice is not taken by Council as evidence that the responsibilities of the relevant building surveyor have ended, if that is their intention.

Lapsed Building Permit Applications

Where a building permit application is refused, deemed refused or is withdrawn, the status of the appointment to carry out functions also needs to be resolved.

If the owner does not wish to proceed with the project the original appointment must be wound up as soon as possible. As a pbs's appointment is statutorily binding under the Building Act the simple lapse or withdrawal of the application is not sufficient for this purpose. The Act requires that the owner must make a committed statement that work is not proceeding (is terminated) and is required to notify the Commission and Council. This should be in writing.

Although the RBS may seek to act for the owner to administer the above, this is not appropriate because (1) the determination can only be made by the owner, (2) communication between owner and RBS may be ambiguous and (3) there is potential for conflict of interest.

The RBS cannot guess that work is not to go ahead simply because a building permit application lapses. The owner should be instructed by the RBS to write to the Commission and Council as per the Act if it is claimed that work is not proceeding. If the owner refuses to make such a statement, work may have commenced or be still intended. In such a case the RBS maintains appointment and powers as an authorised person - meaning that, under Council's Building Control Intervention Filter Criteria, there will be an on-going expectation that the RBS will use their powers for any enforcement requirements. Ideally the RBS should inspect the site to check if work has illegally commenced.

Under some circumstances the private building surveyor may have justification to seek consent to termination of appointment by a request to the Building Commission under s81(1) of the Building Act.