Producer statements are regularly used during building construction work to advise building consent authorities that work has been carried out in accordance with the relevant building consent and the building code. The statements enable a consent authority to reduce the cost and time taken to monitor construction projects, compared to the authority doing the inspections itself.

Conflicting High Court interpretations of the term “building work” in s 40 Building Act 2004 had been given in Kwak v Park [2016] NZHC 530 and Andrew Melvin King-Turner Ltd v Tasman District Council [2021] NZHC 343. The Solicitor-General had referred the question after a District Court conviction (which relied on Kwak v Park) was overturned by the High Court (which relied on Andrew Melvin King-Turner Ltd v Tasman District Council).

The Court of Appeal held that issuing producer statements in relation to non-compliant building work could give rise to criminal liability. It found that the definition of ‘building work’ was broad and “clearly captures any work for or in connection with the construction of a building” (at [51]).

“We conclude that although it is not a statutory document, a producer statement is a standard document with well understood content and purpose, intended to contain reasonable statements of professional opinion that the building works to which they relate have been completed in accordance with the building consent and the building code.”

The Court accepted that their interpretation would potentially criminalise the giving of an opinion, given the context of a statutory offence provision which created strict liability. However, it noted that the producer statement also (a) reflected work carried out for the purposes of giving the opinion and (b) confirmed that the opinion-giver had reasonable grounds for believing that the work complied.

“The author of the producer statement will not be criminally liable unless it is established beyond reasonable doubt that the matters certified in the statement are incorrect.”