BUILDING ACT 2004 - SECT 36A Requirement to give advice in relation to proposed building work
BUILDING ACT 2004 - SECT 36A
Requirement to give advice in relation to proposed building work(1) This section applies if—
(a) an entity's advice on an application for building approval has been sought as prescribed by regulation; and
Note See s 30A (3) (When building approvals not to be issued—advice on referral).
(b) the entity—
(i) has given advice on the application; or
(ii) has not given advice within the time prescribed for giving the advice; and
(c) the certifier is required under section 28 to issue a building approval on the application; and
(d) the certifier issues the building approval; and
(e) the approved plans for the building approval are substantially consistent with the advice.
(2) For this section, if an entity fails to give advice sought within the time prescribed by regulation in relation to an application for building approval referred to the entity, the entity is taken to have given advice that the entity supports the application.
(3) The entity must not act inconsistently with the advice in relation to the application for building approval unless—
(a) further information in relation to the building work proposed in the application comes to the entity's attention (other than information mentioned in subsection (4)); and
(b) the entity did not have the further information when the entity gave the advice; and
(c) the further information is relevant to the advice the entity gave; and
(d) the entity would have given different advice if the entity had the further information before giving the advice.
(4) Subsection (3) (a) does not apply to further information in relation to building work proposed in the application for building approval if the information—
(a) was not required in the building approval application; and
(b) is required by the entity after the application is approved; and
(c) is consistent in all significant respects with information already provided by the applicant, except that it is more detailed.
(5) For this section, an entity acts inconsistently with advice in relation to an application for building approval if—
(a) the advice is that the entity will issue or give an approval or other thing in relation to the building work; and
(b) the application is approved; and
(c) the entity—
(i) does not issue or give the approval or other thing consistent with the advice; or
(ii) issues or gives the approval or other thing in a way, or subject to a condition, that prevents the applicant undertaking the building work approved.
Example of advice
that the entity will agree to the erection of a building over a buried sewer main
(6) Also for this section, an entity acts inconsistently with advice in relation to an application if—
(a) the advice is that an activity to which the application relates does not require a particular authorisation (however described); and
(b) the entity prosecutes someone, or takes other compliance action, in relation to the activity because the activity is carried out without the particular authorisation.
Example of acting inconsistently
An Act prohibits activity A without an approval. The entity responsible for administering the Act gives advice sought as prescribed by regulation (see s 30A (3)) that the activity (activity B) in the application does not fall within the description of activity A. The application is approved consistent with the advice. The entity can not prosecute a person for carrying out activity B in accordance with the approved application because activity B does fall within the description of activity A and the person did not have approval.
(7) For this section, an entity acts inconsistently with advice in relation to an application if the entity—
(a) refuses to do something required to be done by the entity to allow the applicant to undertake the development approved in the application; or
(b) does something in a way, or subject to a condition, that prevents the applicant from undertaking the development approved in the application.