The Building Amendment (Enforcement and Other Measures) Act 2017 has resulted in amendments to section 241 of the Building Act 1993 (“Act”). Section 241 – Proceedings for offences, was amended on 16 August 2017.
The changes to section 241 are of importance to proceedings pursuant to Part 3, 4, 5, 7 and 8 of the Act, are as follows:
- subsection 241(7), which was substituted by a different subsection; and
- subsection 241(8), being an additional new subsection.
What has remained unchanged?
A council can still commence a proceeding for an offence within the period of three years after the commission of the alleged offence, this provision has remained unchanged.
With the exception of subsections 241(7) and 241(8) the remainder of section 241 has not been amended.
The changes to section 241 of the Act, allow proceedings to be brought within two years after the offence first came to the attention of Council, provided it is not more than 10 years after the offence occurred.
For example, subsection 241(7) of the Act allows a council two years to commence a prosecution for building work it has just discovered that occurred eight years ago without a building permit.
We are of the view the offence is not required to have occurred after the amended section 241 came into operation (i.e. 16 August 2017) for the amended section 241 to apply. What is relevant to the application of section 241 is when the alleged offence first came to the attention of council and when a proceeding is commenced.
For example if an alleged offence, being the carrying out of building work without a building permit occurred in 2010 and the relevant council became aware of the building work on 17 August 2017 (after section 241 was amended) section 241 would apply to the alleged offence.
What may constitute coming to the attention of the relevant council is not yet fully understood. Arguably it ought to be interpreted as coming to the attention of those in the council responsible for enforcing the Act. If it was interpreted as meaning any part of the council, such as cleaning staff, this could be problematic. Until this has been tested in a Court it will remain partially unclear as what it exactly means.