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Buildings intended for public use

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 council confirms it is safe to do so.

To find out more, see our section for building owners, managers and developers, or read our information leaflet New safety measures for premises intended for public use published in June 2005.

Earlier information sent to TAs

The Building Amendment Act 2005, which came into effect on 14 April 2005, amended this information previously sent to territorial authorities:

  • Guidance Notes for Territorial Authorities [PDF 39 KB, 6 pages] providing guidance on section 363, relating to buildings intended for public use affected by building work, was sent to territorial authorities on 17 December 2004.
  • Section 363 letter [PDF 49 KB, 2 pages] was sent to territorial authorities on 23 November 2004.

Offences under section 363

Section 363 creates a new offence concerning premises intended for public use that are being used when they are affected by building work. The purpose of section 363 is to ensure the public is safe when using buildings.

Application

From 31 March 2005, the section 363 offence applies to building work affecting public premises that started or was consented after 31 March 2005.

Transitional provision

The section 363 offence does not apply to building work affecting public premises if:

  • a building consent was granted for the building work before 31 March 2005
  • the building work began before 31 March 2005.

However, section 363 will apply to such building work after 31 March 2010. No offence will be committed if either of the following have been issued for the building work before 31 March 2010:

  • a code compliance certificate
  • a certificate of acceptance issued under section 96(1)(d).

Exemption

The offence does not apply to building work commenced before 1 July 1992 that affects public premises. This exemption applies regardless of when the work was completed.

When is the offence committed?

When a person who owns, occupies or controls premises either uses or permits the use of any part of those premises that:

a) is intended to be open to members of the public or is being used by members of the public; and

b) is affected by building work and any of the following circumstances exist in respect of the building work:

  • a building consent is required for the work, but no building consent has been granted for that work, or
  • a building consent has been granted for the work, but neither of the following have been issued - a code compliance certificate, or a certificate for public use, or
  • a building consent has been granted for the building work and a certificate for public use has been issued, but no code compliance certificate has been issued for the work and the conditions set out in the certificate for public use have not been met.

Premises intended to be open or to be used by members of the public

‘Premises’ can mean all or part of a building. Premises to which the offence applies are premises that are intended to be open to members of the public or are being used by members of the public.

Premises are intended to be open to the public whether or not:

  • members of the public are charged for using the premises
  • it is intended that members of the public be charged for using the premises
  • members of the public will be excluded from the premises regularly or from time to time.

In general terms this means that premises will be intended to be open to members of the public where there is:

  • open access - examples of this include restaurants, hospitals, schools, churches and retail shops (note: this is not a complete list)
  • access controlled by payment of a charge - an example of this could be a nightclub where entry from the street is on payment of a cover charge.

Buildings with restricted access (for example, key pad or coded entry) are unlikely to fall into the category of premises intended to be open to members of the public.

A reception area that is open to the public, even though the remainder of the building is closed off, would be categorised as premises intended to be open to members of the public.

Premises affected by building work

A part of the premises may be affected by building work whether or not the building work:

  • is complete
  • is yet to be completed
  • is being done or has been done in or to:
    • the part itself
    • some other part of the building that the premises comprise or form part of
  • involves or involved the building of:
    • the part itself
    • some other part of the building that the premises comprise or form part of.

Building work requiring a consent

A building consent is required for all building work with the exception of building work covered by sections 41 and 43, and Schedule 1 of the Building Act 2004.

Principles for applying section 363

Each territorial authority should develop its own policy and approach to enforcement of section 363. Building officials will have to balance working constructively with building owners to achieve solutions with the need to ensure the public safety objectives of the legislation are met.

Premises covered by section 363

See page 51 of the Building Officials’ Guide to the Building Act 2004 for a flowchart to help determine whether the premises or part falls under the provisions of section 363 and, hence, whether there is potential for an offence to be committed. The flow chart reflects the offence as it applies from 31 March 2005. It does not deal with the changes that will occur from 31 March 2010.

Suggested approach

Building work started or consented after 31 March 2005

Territorial authorities should make sure people who start building work after 31 March 2005 that may affect public premises are aware of section 363. The PIM and building consent application processes are good opportunities to provide people with information on section 363.

Territorial authority officials should be aware of section 363 when they inspect building work. If officials identify problems, the territorial authority should consider whether a certificate for public use is appropriate, whether a notice to fix should be issued, or whether the owner should be prosecuted.

Building work started or consented before 31 March 2005

The offence in section 363 will not apply until 31 March 2010 to building work started or consented before 31 March 2005. Owners, occupiers and people who control public premises will have this period to sort out any problems with building work affecting the premises.

A code compliance certificate or certificate of acceptance will need to be obtained for the work to avoid committing an offence after 31 March 2010. Territorial authorities should assist owners, occupiers and people who control public premises through this process, where possible.

Territorial authorities could use the warrant of fitness process to identify any problems with existing building work. When a building warrant of fitness form is provided to the territorial authority, the property file should be checked to determine whether there are any outstanding building consents or code compliance certificates. If one of these conditions is identified and the building work affects public premises, the territorial authority should tell the owner about section 363. The territorial authority should then follow up on this notification and help the owner to make sure the problem is fixed before 31 March 2010.