Can your council be liable for issuing a building consent and failing to supervise?

Huang v North Shore City Council (High Court, Auckland, CIV 2005-404-002991, 12 December 2005, Venning J)

The plaintiffs sought to argue that the Council was negligent and in breach of its statutory duty when it issued a building consent and failed to supervised the construction of a house built in 2000-2001 and purchased by the plaintiffs in 2003.

Approved Building Certifiers (“ABC”) had been appointed building certifiers under the Building Act 1991 (“the Act”) by the developers. In support of the developer’s application for a building consent, ABC had issued a certificate confirming that the proposed work would comply with the building code. The Council relied upon the certificate to issue the building consent. Subsequently the Council received reports from ABC confirming ABC’s inspection of the builder’s work and, once the building work had been completed, ABC issued a code compliance certificate. The Court had to decide whether, given this, it was arguable that the Council could owe a duty of care to the plaintiffs.

As to the issue of the building consent, the scheme of the Act contemplated that a building certifier could, once approved in terms of the Act, issue a certificate to confirm the proposed building work would comply with the provisions of the code if the work was properly completed in accordance with the plans and specifications. The legislation directed the Council to accept such certificate and issue the building consent. The Council could not in the circumstances owe a duty to the plaintiffs to peruse the plans or not to accept the certificate from the approved building certifier. There was no evidence and no pleading to suggest that the Council, before it issued the building consent, had any reason to doubt ABC’s certificate generally, or the certificate issued by ABC in relation to compliance with the plans and specifications in respect of this particular house.
As regards the alleged duty to supervise, inspect or identify defects, there was no direct statutory duty on the Council to do so. Certainly inspections were required to ensure compliance, but the Act and the relevant regulations contemplated that the building certifiers might carry out inspections instead of the Council’s own officers. In this case ABC’s engagement extended to “field inspections for compliance”. It could not seriously be suggested that the Council was under a duty to inspect when ABC was also carrying out inspections.

Please note that the above information is intended to provide general information only. The contents contained in this article do not constitute legal advice and should not be relied on as such. For legal advice please contact our professional team at Forest Harrison.