In the New Zealand construction industry, producer statements play a crucial role in verifying compliance with building consent requirements. These documents, issued by engineers and other professionals, provide assurance to Building Consent Authorities (BCAs) that construction work has been completed in accordance with the Building Code. However, a recent Court of Appeal decision has highlighted the legal significance of these statements, particularly in relation to potential criminal liability under the Building Act 2004.
Understanding Producer Statements
Producer statements are professional documents that serve as evidence of compliance with the Building Code. They come in four main forms:
PS1 – Design: Certifies that a proposed design complies with the Building Code.
PS2 – Design Review: Confirms that an independent review of a PS1 has been completed.
PS3 – Construction: Confirms that certain aspects of the construction process meet the required standards.
PS4 – Construction Review: Verifies that the completed construction work aligns with approved building consents and meets the required standards.
APS4 statements are particularly critical, as they confirm the final compliance of building work. These statements provide a foundation for BCAs to issue Code Compliance Certificates (CCCs) without conducting additional inspections.
The Legal Risks of Inaccurate PS4 Statements
A recent Court of Appeal ruling has reinforced that issuing an inaccurate PS4 statement can expose engineers to criminal liability under section 40 of the Building Act. The case in question involved the Tauranga City Council’s prosecution of an engineer who issued PS4 statements for non-compliant construction work in the Bella Vista Homes development. The court found that:
Issuing a PS4 statement constitutes "building work" under the Act.
A false or misleading PS4 statement can lead to a breach of section 40, which prohibits carrying out building work that does not comply with the approved building consent.
Engineers who sign off on non-compliant work may face prosecution, with penalties including fines of up to $200,000, plus additional fines of $10,000 per day for ongoing offences.
Practical Implications for Engineers and Consultants
Given the legal significance of PS4 statements, engineers and consultants must adopt best practices to mitigate risks and uphold professional integrity. Key recommendations include:
1. Thorough Construction Monitoring
Conduct on-site inspections at critical stages of construction.
Maintain detailed records of inspections, including notes, photographs, and test results.
Do not rely solely on contractor assurances—verify compliance independently.
2. Ensure Accuracy in PS4 Statements
Clearly document the scope of the construction monitoring performed.
Include any assumptions, exclusions, or qualifications in the statement.
Ensure that any referenced documents, such as engineering reports or test results, are attached.
3. Avoid External Pressure
Do not sign off on work due to commercial or program pressures if it does not meet compliance standards.
Push back against contractors or clients who attempt to influence the content of a PS4 statement.
4. Legal and Insurance Considerations
Ensure statutory liability insurance covers potential claims related to producer statements.
Seek legal advice if there is uncertainty regarding compliance before issuing a PS4.
Follow industry-standard forms (such as those recommended by Engineering New Zealand) to ensure statements remain legally defensible.
The Role of BCAs and Industry Bodies
BCAs rely on producer statements to streamline compliance processes and reduce regulatory costs. However, they must also ensure that engineers adhere to professional and legal obligations. Industry bodies, such as Engineering New Zealand and ACE New Zealand, provide guidance on best practices and advocate for the integrity of the producer statement system.
Conclusion
The accuracy of producer statements, particularly PS4s, is critical for ensuring the safety and compliance of building projects. Engineers must approach these documents with diligence and integrity, recognizing that errors or misrepresentations can have serious legal consequences. By adopting rigorous construction monitoring practices, maintaining thorough records, and resisting external pressures, professionals can safeguard their reputations and contribute to a robust, reliable building consent process in New Zealand.