Lawyer Geoff Hardy explains when and how landscapers are regulated by common law, the Building Act and the Construction Contracts Act
Landscaping is similar to building in that it involves humans making modifications to the natural environment, though it is usually more concerned with aesthetics and less with functionality. There is the creative side of it – landscape architecture or design – and then there is the physical side of it the horticulture, construction, and maintenance.
There is generally less risk of harm to persons or property with landscaping than there is with designing and constructing buildings that might collapse on you or catch fire. So you would be tempted to think that landscaping doesn’t need to be highly regulated at all. But is that true? Do landscapers get a free rein, or are they in fact as strictly policed as builders are?
Obviously landscapers are subject to the common law (the law made up by Judges rather than Parliament) just like builders are. The two main features of the common law are:
The law of contract (you have to honour the promises you made to your client).
The law of negligence (you have to take reasonable care to avoid harming other people).
However, on top of the common law, you also have laws introduced by Parliament – these are variously known as legislation, statutes, or more commonly as “Acts” and “Regulations”.
The two main statutes that regulate the building trade are the Building Act 2004 and the Construction Contracts Act 2002. In the residential context, builders are also governed by the Consumer Guarantees Act 1993, but that Act essentially duplicates what the Building Act says, so it isn’t covered in this article.
The Building Act
The Building Act is the one that makes sure our buildings are safe and easy to use. The Building Code is one of the ways that it does that. The Act also gives to the Ministry of Business, Innovation and Employment (the “MBIE”) the power and the responsibility to regulate building in New Zealand. It creates the building consent, code compliance, warrant of fitness and swimming pool safety regime and gives Councils the power and the responsibility to administer that regime.
And since the leaky building crisis it has done three additional things – it requires builders who do important residential work to be licensed, it has established the Building Practitioners Board (the “BPB”) to discipline them, and it gives to homeowners a lot of special rights and remedies against their builders.
The licensing regime and the consumer rights and remedies are worth a mention. A licensed builder has to carry out or supervise all residential building work that is critical to the building’s structural integrity, weathertightness or fire safety, and the Council keeps permanent records of which licensed builders were involved.
Licensed builders have to prove their capabilities and continually improve their knowledge, and if they have done anything wrong they can be disciplined by the BPB. In a residential building project costing $30,000 or more, there are four mandatory documents that builders (licensed or unlicensed) have to give to their customers, and those customers can enforce a lot of implied warranties against them as well as insist that any defects emerging within 12 months are rectified immediately.
The Construction Contracts Act
The Construction Contracts Act (the “CCA”), on the other hand, is the one that tries to free up cash flow within the industry. It does that by prohibiting certain unfair clauses in building contracts, by establishing a payment claim/payment schedule system that forces parties at the top of the pecking order to either pay up or explain themselves, and by creating a quick and dirty method for resolving building disputes promptly and economically.
Recently, that dispute-resolution system has been modified, architects, engineers and quantity surveyors have been brought within the ambit of the Act, and rules have been introduced requiring payment retentions to be held in trust or otherwise secured for the benefit of the intended recipients.
Do any of those rules apply to landscapers? Do they have to comply with the building code, ensure building consents are obtained, and become licensed? Are they required to hand over the four mandatory documents, and are they subject to the powerful consumer rights and remedies? Do they have to ensure their contracts are CCA-compliant, are they subject to the payment claim/payment schedule system, can they use CCA adjudication to resolve disputes, and do their payment retentions have to be held in trust?
The answer to all those questions is – quite possibly. It all turns on the definitions of “building work” under the Building Act, and “construction work” under the CCA.
What is Building Work?
Under the Building Act, “building work” essentially means the construction, alteration, demolition or removal of a “structure”. There is no definition of “structure” but logically it would mean something tangible and man-made. There is no doubt that landscaping items such as retaining walls, fences and gates, pergolas, paths and driveways, awnings, tanks and pools, decks, platforms, bridges, boardwalks, playground equipment, and drains are all structures, because Schedule 1 of the Building Act 2004 expressly exempts most of them from the requirement to obtain a building consent. If they weren’t structures, they wouldn’t need an exemption at all. The building code contains provisions relating to most of those items. So to the extent that landscaping involves any of the above items – or sitework preparatory to or associated with them – then the Building Act would apply.
That means that the building code and building consent regime would apply to a lot of landscaping work, but not necessarily the other requirements. The licensing requirements only apply if you are designing or doing “restricted building work”, which is work that is critical to make a home structurally sound and weathertight. And the consumer rights and remedies (the mandatory documents, the implied warranties, the 12 months defects liability period) only apply to residential projects for $30,000 or more where you are not doing exclusively design work and you are not a subcontractor.
What is Construction Work?
Under the CCA, “construction work” is much more comprehensively defined than “building work” under the Building Act. It means the construction, erection, installation, carrying out, alteration, repair, restoration, renewal, maintenance, extension, demolition, removal, or dismantling of any building, erection, edifice, or structure forming, or to form, part of land. And it expressly includes site clearance, earthmoving, excavation, tunnelling, and boring, laying foundations, prefabricating customised components of any building or structure, site restoration and landscaping, and the provision of roadways and other access works. Finally, it includes design or engineering work carried out in New Zealand in respect of the above work.
What does this tell us? It tells us that if you are a landscaper or a landscape designer, and you get into a dispute with either a Council or a customer, they might be able to pinpoint a lot of laws that you are unwittingly in breach of. On the other hand, if you are a conscientious landscaper, it means that you can find out ahead of time what laws you are subject to, and ensure that you are squeaky clean.
Geoff Hardy has 45 years’ experience as a commercial lawyer and heads up the construction law
team at the Auckland firm Martelli McKegg. He guarantees personal attention to new clients at
competitive rates.
His phone number is (09) 379 0700, fax (09) 309 4112, and e-mail geoff@martellimckegg.co.nz.
This article is not intended to be relied upon as legal advice.