The Defect Notice That Arrived After Practical Completion
A municipal building surveyor inspects a completed three-unit development after a complaint from a purchaser. The surveyor finds that the balustrade to a first-floor balcony is 950 mm high where 1 m is required, the balustrade has climbable horizontal elements, and a bedroom window in one unit opens onto the balcony with no barrier. The occupancy permit was issued eight months ago by a private surveyor. The builder says the balustrade was 'as per the plans' and that the matter is now a civil issue between the builder and the purchasers. The owners corporation wants the municipal surveyor to force rectification. The builder has offered to install a temporary mesh screen and revisit it 'after settlement'.
1. What enforcement options are open to the municipal building surveyor, and which is the most appropriate first step?
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The municipal building surveyor has a range of enforcement tools: a building notice requiring the owner to show cause why the work complies, followed by a building order to rectify; an emergency order if there is an immediate danger; and referral to the regulator. The most appropriate first step is a building notice to the owner (and, where the Act allows, to the builder), identifying each non-compliance precisely: the balustrade height below the required 1 m, the climbable elements, and the unguarded window opening.
A building notice is preferable to an emergency order here because the defect is serious but not shown to be immediately imminent; an emergency order should be reserved for genuine immediate risk. The surveyor should not accept the 'civil issue' framing: non-compliant building work remains a building control matter regardless of the contract between builder and purchaser. The notice should set a realistic rectification period and require a compliant design, not a temporary screen. The surveyor should also consider whether the issuing surveyor's occupancy permit was based on inaccurate information, which may require separate referral.
2. The builder proposes a temporary mesh screen. How should the surveyor respond, and what standard must any rectification meet?
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The surveyor should reject the temporary screen as a final resolution. A mesh screen does not cure the height shortfall and may itself introduce climbable elements; 'revisit after settlement' is not a commitment the surveyor can rely on. The rectification must produce a balustrade that satisfies the applicable performance requirements: a height of at least 1 m above the floor, no climbable elements within the relevant zone, and a barrier to the window opening so that a person cannot fall through or over. The design should be certified by a suitably qualified person and the work inspected before it is accepted.
The surveyor can allow a genuinely temporary protective measure only as an interim safety step while a permanent solution is designed and built, and should record that it is interim only. The building order should specify the performance outcome and a date, not a method, so the owner can choose a compliant design. On completion the surveyor should inspect and record the rectification, and only then treat the matter as closed.
3. What are the surveyor's obligations regarding the original occupancy permit and the record of this inspection?
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The surveyor should record the inspection findings in detail, including the measurements taken, the location of each defect and photographs. If the occupancy permit appears to have been issued on the basis of inaccurate information or without the balustrade being properly checked, the surveyor should consider notifying the regulator that issued or oversees the private surveyor, because that is a separate integrity issue from the rectification of this building.
The surveyor should not purport to revoke the occupancy permit personally unless the legislation gives that power in these circumstances; the correct path is to use the notice and order powers and to refer the permit question to the regulator. Throughout, the file should show a clear chronology: complaint received, inspection date, findings, notice issued, response, order issued, rectification inspected and accepted. That chronology is what protects the surveyor if the owners corporation or builder later challenges the action.