What is a public building?

By Hans van der Wal, Associate

First published in Local Government magazine January 2009

The 2004 Building Act has made it critical for the owners of new commercial and recently renovated buildings to know whether their building is considered to be for a public use under that Act. That question will determine whether moving in before the Code Compliance Certificate (CCC) has been issued is an offence or not.

While the whole thrust of the Building Act is that buildings have to comply with the Building Code and the CCC is the means by which this is definitively ensured, there is no general criminal prohibition against using a building before a CCC has been issued. There are two notable exceptions in that it is an offence to:

> Transfer new homes to the new owner without CCC, and

> Use a public use commercial building before the issue of CCC.

It is the second that causes the problems, as the Building Act is more than a little fuzzy as to what is meant by a public use. Section 363 states that it applies to buildings covered by section 362A. All that section says is that the building:

> Must be totally or partially open to or intended to be used by members of the public;

> Must be a building;

> But it does not matter whether the public has to pay to use it or whether the public can be excluded from time to time.

Who the public are and what constitutes a use by them are left undefined, yet everything depends on the meaning of these terms. Some councils take a very wide view and see employees of the building’s owner or occupier as members of the public. On that view, even construction workers might be seen to be members of the public, which would make it illegal for them to use the building while completing it - making a nonsense of the section.

On the other hand, a very narrow interpretation could also be taken, based on the intent and use of the building being truly for members of the public. In this way, for example, only truly public buildings like libraries, restaurants, shops and gyms would be covered, as their key purpose and use is to provide services and to be accessible to the public. Office blocks, factories and other buildings, whose purpose is not primarily to provide access or services to the wider public would be excluded.

The fact that both interpretations are available creates a problem. A person who wishes to use a building should be left in no doubt as to whether that use is lawful or illegal. Criminal prohibitions must be certain. At present the matter depends on how strict the relevant council wishes to be. The owner/occupier of a new or recently renovated building is effectively at the local council’s mercy in terms of which interpretation it chooses.

Even looking at the mischief at which section 363 appears to have been directed does not settle the matter. Rightly or wrongly, the section does not make it illegal to use any building without a CCC. It could have. So it does not seek to prevent everyone from using a building without a CCC, but only some people, presumably because they are part of a group that is a greater risk because a building is not certified to provide the safety features required by the Building Code. The problem lies in trying to identify what particular group of people is more at risk because of the absence of a CCC.

Perhaps the answer lies in the degree of control that can be exercised by the owner/occupier of the building over those intended to have access to it. For example, the control that an owner/occupier would have over its employees or contractors would put it in a far better position to manage employees’ or contractors’ exposure to the risks of an uncertified building. This could also be extended to those needing prior authorisation to enter a building, like those required to sign a guest register and accept terms of entry.

In the end, that approach could provide answers, but it relies on a case-by-case analysis of each scenario, effectively requiring building owners or councils to seek legal advice on individual cases to make sure they do not fall foul of the law.

Unless a definition of public use is inserted into section 362A, the current unsatisfactory uncertainty is set to continue until some unsuspecting new building owner is selected as the unfortunate target for a test case, which will force the Courts to make a determination. Who knows what the result will be or whether it will be what Parliament actually intended.

Hans van der Wal is a member of the Environmental Law team at national and trans-Taman law firm Duncan Cotterill. www.DuncanCotterill.com

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