Fraudulent building consent documentation puts renewed attention on producer statements
Building consent authorities have been checking their records urgently to identify whether they have issued any building consents or code compliance certificates in reliance upon fraudulent documentation. This follows recent revelations that a Taupō based engineering technologist fraudulently used the names of various CPEng Engineers to sign producer statements.
Although producer statements do not have any legal status under the Building Act 2004, many Councils continue to rely on them as a mechanism for establishing compliance with the Building Code. Engineers, architects and designers routinely provide producer statements. However, some Councils will only accept a producer statement if the author has been approved to do the work and is listed on a Council register.
It is understood the fraudulent documentation affects more than 1000 properties, but the extent to which those buildings do not comply with the Building Act and Building Code will only be identified once engineers have assessed the relevant documentation, such as design drawings and calculations. Completing that process for all affected buildings is likely to take many months. In the meantime, Engineering NZ is working to help councils to develop guidance on the types of risks to impacted properties.
Forty-two councils have been caught up in the scandal and of course questions will be asked about their internal processes. This is not the first time that fraudulent producer statements have been identified. A policy document dated July 2015 refers to the Auckland Council identifying photocopied documents as having been altered fraudulently and the reason why the Council might require an original producer statement to be provided. Technological advancements allowing security protections around the issue of such documents should be considered as part of a wider review of these types of documents.
MBIE’s review of the building consenting system
In recent weeks MBIE has also shone the spotlight on producer statements with the release of an Options Paper on the Review of the Building Consent System. The Options Paper examines possible changes to the building consent system and, among other important proposals, recognises that the role of producer statements needs to be clarified.
MBIE has recognised that the Act’s silence on producer statements means there is no certainty, clarity or consistency about who should provide them and how they should be used. Building consent authorities decide for themselves what they will and will not accept. There is also uncertainty within building consent authorities about the extent to which they can rely on producer statements. This can lead to the building consent applicant having to meet the costs of obtaining a third party review of the design as part of the consenting process.
MBIE is seeking feedback on the high-level options in the Options Paper until 7 August 2023. The reforms which will follow are intended to support the Government’s objective of making homes more affordable through lifting the performance of the building consent system. The desire is for a system that ensures building work is done right the first time and provides fairer outcomes if things go wrong. Unfortunately, in light of the number of buildings affected by one person’s willingness to commit fraud, more scrutiny and care in the process may well be required.
If you would like to discuss the submission process or if you have any questions about the building consent review process, please get in touch with our Construction Law Experts or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.