Bill 34 - Building Code Administration Act

BILL 34

Building Code Administration Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions

1 The following definitions apply in this Act.

“building” means a building as defined in the Code. (bâtiment)

“Building Code Administrator” means the person appointed under section 21. (administrateur du Code du bâtiment)

“building inspector” means (inspecteur en bâtiment)

aa person who has the primary responsibility to a regional service commission for the enforcement of local government by-laws or other provincial laws with respect to building and construction within the region, and

ba building inspector, or a person who has the primary responsibility for the enforcement of by-laws or other laws with respect to building and construction, appointed under the Local Governance Act.

“Code” means the National Building Code adopted by reference in the regulations, and includes all revisions, errata and corrections to errata issued from time to time. (Code)

“construct” means to do anything in the erection, installation, extension or material alteration or repair of a building and includes the installation of a building unit fabricated or moved from elsewhere. (construire)

“court” means The Court of Queen’s Bench of New Brunswick, and includes any judge of that court. (cour)

“Crown” means the Crown in right of the Province. (Couronne)

“demolish” means to do anything in the removal of a building or a material part of a building. (démolir)

“development officer” means a development officer as defined in the Community Planning Act. (agent d’aménagement)

“local service district” means a local service district as defined in subsection 1(1) of the Local Governance Act. (district de services locaux)

“Minister” means the Minister of Public Safety and includes any person designated by the Minister to act on the Minister’s behalf. (ministre)

“owner” means a person who holds title to real property and includes a person who has entered into an agreement to purchase the real property. (propriétaire)

“regional service commission” means a regional service commission established under the Regional Service Delivery Act. (commission de services régionaux)

Application

2 This Act applies to the design, construction, alteration, replacement and demolition of buildings in the Province.

Act binds Crown

3 Except as otherwise provided in the regulations, this Act binds the Crown.

Prohibitions

4( 1) No person shall construct a building in the Province unless

aa building permit has been issued under this Act, and

bthe construction work conforms

( i) with the Code,

( ii) with the standards prescribed by a building by-law of the local government in which the building is to be constructed or by a regulation, and

( iii) with the terms and conditions of the building permit.

4( 2) No person shall demolish a building in the Province unless

aa demolition permit has been issued under this Act, and

bthe demolition work conforms

( i) with the standards prescribed by a building by-law of the local government in which the building is to be demolished or by a regulation, and

( ii) with the terms and conditions of the demolition permit.

BUILDING BY-LAWS AND PERMITS

Building by-law

5( 1) Subject to this section, a council of a local government may make a building by-law to prescribe standards for the building, locating or relocating, demolishing, altering, structurally altering, repairing or replacing, or any combination of the work, of a building.

5( 2) In relation to work referred to in subsection (1), a building by-law may prohibit the undertaking or continuing of any work in violation of standards prescribed by the bylaw.

5( 3) A council of a local government may, by building by-law,

aprescribe a system of permits for

( i) construction work, and

( ii) demolition work,

bprescribe the terms and conditions for the issuance of those permits,

cprescribe the terms and conditions of those permits,

dprescribe the grounds on which the issuance of those permits may be refused,

eprescribe the grounds on which those permits may be suspended, revoked or reinstated,

fprovide for the form and manner in which applications for the issuance of those permits may be made and the content of the applications,

gprescribe the fees for the issuance of those permits, and

hprovide for the circumstances in which the fees paid for those permits may be refunded.

5( 4) No building by-law is valid unless the requirement of paragraph 112(1)(b) of the Community Planning Act is complied with and the building by-law comes into force when filed in the land registration office in accordance with that paragraph or on a date after the filing as the by-law provides.

5( 5) Section 15 of the Local Governance Act applies to the making of a building by-law.

Building and demolition permits

6 A building inspector shall issue a building permit or a demolition permit, as the case may be, if the following conditions are fulfilled:

athe owner or a person acting on behalf of the owner makes an application in accordance with a building by-law or a regulation;

ba development officer has approved the construction or demolition under subsection 108(1) of the Community Planning Act; and

cthe owner or a person acting on behalf of the owner pays the fees prescribed by a building by-law or a regulation.

Building permit required for change of use of building

7 Even if no construction work is proposed, no person shall change the use of a building or part of a building with respect to the occupancy classifications of the Code or permit the use to be changed unless a building permit has been issued.

Posting of building or demolition permit

8 An owner or a person acting on behalf of the owner shall post the building or demolition permit, as the case may be, or a copy of the building or demolition permit, within the time and in the manner fixed by regulation, in a prominent place on the premises in respect of which the building or demolition permit was issued.

INSPECTIONS

Inspections

9( 1) For the purpose of ensuring compliance with a building by-law, this Act or a regulation under this Act, a building inspector may, at any reasonable time,

aenter any building or real property in the area for which the inspector has the responsibility of conducting inspections,

bbe accompanied and assisted by a person who has special or expert knowledge,

cconduct tests, make inquiries and take samples, measurements, photographs or video recordings that the building inspector considers necessary, and

dperform any other duty or power prescribed by a building by-law or a regulation.

9( 2) The minimum number of inspections that are required to be made by an inspector per construction or demolition work shall be prescribed by regulation.

Notice of readiness for inspection

10( 1) An owner or a person acting on behalf of the owner shall notify the building inspector, in accordance with the regulations, that the construction or demolition work is ready for inspection.

10( 2) After receipt of a notice, the building inspector shall carry out the inspection within the period of time prescribed by regulation.

Building inspectors may charge fees

11 A building inspector may charge the fees prescribed by a building by-law or a regulation for the services prescribed by the building by-law or the regulation.

Entering a building or real property

12( 1) Before or after attempting to effect entry under paragraph 9(1)(a), a building inspector may apply for an entry warrant under the Entry Warrants Act.

12( 2) A local government and a regional service commission shall issue an identification card or other proof of identification to every building inspector appointed by the council of the local government and the commission, and, when executing his or her duties or powers under a building by-law, this Act or a regulation under this Act, a building inspector shall produce the identification card or other proof on request.

12( 3) Despite paragraph 9(1)(a), a building inspector shall not enter an occupied part of a private dwelling except in the following circumstances:

athe building inspector has the consent of the occupier;

bthe building inspector has obtained an entry warrant under the Entry Warrants Act; or

cthe building inspector has reasonable and probable grounds to believe that the building poses a threat to public safety.

12( 4) If a building inspector is refused admission to any building or real property referred to in paragraph 9(1)(a), the building inspector may serve on the owner a demand stating that the inspector shall be permitted to enter the building or property.

Obstruction or interference

13( 1) No person shall obstruct or interfere with a building inspector who is carrying out or attempting to carry out an inspection under section 9.

13( 2) A refusal of consent to a building inspector to enter an occupied part of a private dwelling is not and shall not be deemed to be interfering with the work of or obstructing a building inspector, except where an entry warrant has been obtained or the building inspector has reasonable and probable grounds to believe that the building poses a threat to public safety.

ORDERS

Orders

14( 1) If construction or demolition work is undertaken in contravention of the Code, a building by-law, this Act or a regulation under this Act, a building inspector may make one or more of the following orders:

acessation of the construction or demolition work;

balteration of the construction or demolition work to remove the contravention; and

ctaking any other action required to make the building or real property safe.

14( 2) When an order under this section is served, no person shall perform any construction or demolition work on the building or real property or the part of the building or real property in respect of which the order was made, other than work that is necessary to carry out the order or make the premises safe in accordance with the order.

14( 3) When an order is made that requires construction work or demolition work to be carried out, the owner is responsible for paying the expenses of carrying out the construction or demolition work.

Content of order

15 An order shall

abe in writing,

bbe signed by the building inspector,

cbe served on the owner of the land or building in respect of which the order is issued and, if a person applied for the building permit or demolition permit on behalf of the owner, on that person,

dstate the grounds for requiring the action specified in the order,

estate that the action specified in the order is to be taken within the period stated in the order, and

fstate the location of the building or real property or the part of the building or real property in respect of which the order is made.

OFFENCES AND PENALTIES

Offences and penalties

16( 1) Subject to subsection (2), for the purposes of Part 2 of the Provincial Offences Procedure Act, a person who violates or fails to comply with a provision of a building by-law or a regulation commits an offence punishable as a category B offence.

16( 2) For the purposes of Part 2 of the Provincial Offences Procedure Act, a person who violates or fails to comply with a provision of the regulations in respect of which a category has been prescribed under paragraph 22(1)(n) commits an offence of the category prescribed by regulation.

16( 3) For the purposes of Part 2 of the Provincial Offences Procedure Act, a person who does any of the following commits an offence punishable as a category E offence:

aviolates or fails to comply with subsection 13(1); and

bviolates or fails to comply with an order of a building inspector under section 14.

16( 4) When a person violates or fails to comply with an order under section 14 and is convicted of an offence in respect of the violation or failure, the court imposing the conviction may order the person to comply with the order under section 14.

16( 5) For the purposes of Part 2 of the Provincial Offences Procedure Act, a person who violates or fails to comply with an order of the court under subsection (4) commits an offence punishable as a category H offence.

16( 6) For the purposes of Part 2 of the Provincial Offences Procedure Act, a person who does any of the following commits an offence punishable as a category B offence:

aviolates or fails to comply with section 4;

bviolates or fails to comply with section 7;

cviolates or fails to comply with section 8; and

dviolates or fails to comply with subsection 10(1).

MISCELLANEOUS AND GENERAL

Service of orders or demand

17( 1) An order or demand that is to be served on a person under this Act shall be sufficiently served if

athat person is an individual, it is served by personal delivery on the individual,

bthat person is a corporation, it is served by personal delivery on an officer, director or agent of the corporation or on a manager or person who appears to be in control of any office or other place of business where the corporation conducts business in the Province,

cit is mailed by ordinary mail to the latest known address of the person,

dit is served by prepaid courier to the latest known address of the person, and

eit is posted for three consecutive days in a prominent place on the premises in respect of which the building or demolition permit was issued.

17( 2) Service by ordinary mail shall be deemed to have been effected five days after the date of mailing.

17( 3) Service by prepaid courier shall be deemed to have been effected on the date the sender receives an acknowledgment of receipt card bearing a signature that purports to be the signature of the person to whom the order or demand was sent or receives confirmation in writing from the carrier that the order or demand was delivered to the person to whom the order or demand was sent.

Proof of service

18( 1) Proof of the service of an order or demand in any manner provided for in section 17 may be by a certificate or an affidavit purporting to be signed by the building inspector or the carrier who effects service under paragraph 17(1)(d), naming the person to whom the order or demand was given and specifying the time, place and manner in which the order or demand was given.

18( 2) A document purporting to be a certificate under subsection (1) shall be

aadmissible in evidence without proof of signature, and

bconclusive proof that the person named in the certificate is aware of the matters referred to in the certificate.

18( 3) In any prosecution for a contravention of this Act or the regulations where proof of the service is made as set out in subsection (1), the burden of proving that one is not the person named in the certificate or affidavit shall be on the person charged.

18( 4) An order or demand that has been served in accordance with section 17 and purports to be signed by the building inspector shall be

areceived in evidence by any court of competent jurisdiction without proof of the signature,

bproof in the absence of evidence to the contrary of the facts stated in the order or demand, and

cin a prosecution for a contravention of this Act or the regulations, proof in the absence of evidence to the contrary that the person named in the order or demand is the owner.

Immunity

19 No action lies for damages or otherwise against any of the following persons or entities in relation to anything done or purported to be done in good faith, or in relation to anything omitted in good faith, under this Act or the regulations by that person or entity:

athe Province;

bthe Minister;

cthe Minister of Environment and Local Government;

dthe Building Code Administrator;

ea building inspector;

fa regional service commission; and

ga person acting under or who has acted under the authority of this Act or the instructions of a person or entity referred to in this section.

Administration

20 The Minister is responsible for the administration of this Act and may designate one or more persons to act on the Minister’s behalf.

Building Code Administrator

21 The Minister shall appoint an employee of the Department of Public Safety as the Building Code Administrator to exercise the powers and perform the duties imposed on the Building Code Administrator under this Act and the regulations.

REGULATIONS

Regulations

22( 1) The Lieutenant-Governor in Council may make regulations

aadopting by reference the Code;

badopting by reference the National Energy Code of Canada for Buildings;

cadopting by reference a building code, supplementary to the Code for the purpose of making public buildings accessible to and usable by physically disabled persons or prescribing reasonable standards and designate classes of buildings to which the standards apply;

dprescribing one or more provisions of this Act to which the Crown is not bound;

eexempting any building or class of building from the application of this Act or the regulations or from the application of any provision of this Act or the regulations;

fprescribing the qualifications of building inspectors and the different qualifications necessary to inspect different classes of buildings;

gprescribing additional duties and powers of building inspectors;

h prescribing the minimum number of inspections that are required to be made by an inspector per construction or demolition work;

iprescribing the responsibilities and obligations of local governments and regional service commissions with respect to construction or demolition work;

jfixing the time and manner in which information shall be provided for the purposes of section 8;

krespecting the notification required under section 10, the content of the notice, the form and manner in which the notice shall be given and the period within which the inspection shall be carried out after receipt of the notice;

lprescribing the stages of construction for which an inspection is required under section 10, including the different stages of inspections for different classes of buildings;

mprescribing the responsibilities and obligations of owners, contractors, subcontractors and professionals with respect to construction or demolition work;

nprescribing, in relation to offences under the regulations, categories of offences for the purposes of Part 2 of the Provincial Offences Procedure Act;

o prescribing the powers and duties of the Building Code Administrator;

pdefining any word or expression used in but not defined in this Act for the purposes of this Act, the regulations or both; and

qrespecting any matter that the Lieutenant-Governor in Council considers necessary for the administration of this Act.

22( 2) The Lieutenant-Governor in Council may make regulations with respect to construction and demolition work in local governments that have not made a building by-law and in local service districts

aprescribing a system of permits for

( i) construction work, and

( ii) demolition work,

bprescribing the terms and conditions for the issuance of those permits,

cprescribing the terms and conditions of those permits,

dprescribing the grounds on which the issuance of those permits may be refused,

eprescribing the grounds on which those permits may be suspended, revoked or reinstated,

fproviding for the form and manner in which applications for the issuance of those permits may be made and the content of the applications,

gprescribing the fees for the issuance of those permits, and

hproviding for the circumstances in which the fees paid for those permits may be refunded.

22( 3) Despite the Financial Administration Act, a fee prescribed under paragraph (2)(g) shall be paid to the appropriate regional service commission and shall be credited to the cost of the delivery of the land use planning service under subsection 161(4) of the Local Governance Act.

TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS

Building by-laws enacted under section 62 of the Community Planning Act

23( 1) A building by-law made under section 62 of the Community Planning Act that does not conform with the requirements set out in this Act or a regulation made under this Act shall remain in effect for a period of 12 months after the commencement of this section.

23( 2) If, within 12 months after the commencement of this section, a building by-law made under section 62 of the Community Planning Act does not conform with the requirements set out in this Act or a regulation under this Act, the building by-law shall cease to have effect.

Permits under the Community Planning Act

24 A building permit or a development and building permit issued under the Community Planning Act shall remain in effect after the commencement of this section if the construction or demolition work for which the permit was issued

awas commenced within 12 months after the date of issue of the permit, and

bis not discontinued or suspended for a period of 90 consecutive days or more.

Appeals under section 120 of the Community Planning Act

25 If, before the commencement of this section, an appeal was filed with the Assessment Planning and Appeal Board under section 120 of the Community Planning Act concerning a building permit or development and building permit issued under that Act, the Assessment Planning and Appeal Board shall deal with and decide the appeal in accordance with that Act.

Applications under section 135 of the Community Planning Act

26 If, before the commencement of this section, an application was made to The Court of Queen’s Bench of New Brunswick or a judge of that court under section 135 of the Community Planning Act concerning any of the following issues, the court shall proceed with the application in accordance with that section:

acontravention or failure to comply with

( i) a by-law made under section 62 of that Act,

( ii) an order or demand made with respect to construction work or demolition work,

( iii) terms and conditions imposed under subsection 121(1) or (2) of that Act on a building permit or a development and building permit issued under that Act, or

( iv) a decision of the Assessment Planning and Appeal Board concerning a building permit or a development and building permit issued under that Act, or

bobstruction of a building inspector.

Applications under section 136 of the Community Planning Act

27 If, before the commencement of this section, an application was made to The Court of Queen’s Bench of New Brunswick or a judge of that court under section 136 of the Community Planning Act with respect to the operation or non-enforcement of a building by-law enacted under section 62 of that Act or a resolution or order of a council concerning construction or demolition work, the court shall proceed with the application in accordance with section 136 of that Act.

Community Planning Act

28( 1) Subsection 1(1) of the Community Planning Act, chapter 19 of the Acts of New Brunswick, 2017, is amended

aby repealing the definition “building inspector”;

bin the definition “non-conforming use” in the portion preceding paragraph (a) by striking out “or a development and building permit” and substituting “under the Building Code Administration Act”;

cby adding the following definition in alphabetical order:

“building inspector” means a building inspector as defined in the Building Code Administration Act. (inspecteur en bâtiment)

28( 2) The heading “Regional plan, municipal plan, rural plan, by-law or regulation to be consistent with statement of provincial interest” preceding section 15 of the Act is repealed and the following is substituted:

Regional plan, municipal plan, rural plan, by-law or regulation under this Act or a building by-law under the Building Code Administration Act to be consistent with statement of provincial interest

28( 3) Section 15 of the Act is repealed and the following is substituted:

15( 1) A regional plan, municipal plan, rural plan, a by-law or a regulation under this Act or a building by-law made under the Building Code Administration Act, or an amendment or addition to any of them, that is made or adopted after the coming into force of a statement of provincial interest shall be consistent with the statement of provincial interest.

15( 2) A regional plan, municipal plan, rural plan, a by-law or a regulation under this Act or a building by-law made under the Building Code Administration Act, or an amendment or addition to any of them, that is made or adopted after the coming into force of a statement of provincial interest that is inconsistent with the statement of provincial interest, is considered inconsistent with this Act and regulations under this Act and is of no effect to the extent of the inconsistency, unless the council can demonstrate to the Minister a practical reason for being so.

28( 4) The heading “Division B” preceding section 62 of the Act is repealed.

28( 5) The heading “Building By-laws” preceding section 62 of the Act is repealed.

28( 6) The heading “Building standards and permits” preceding section 62 of the Act is repealed.

28( 7) Section 62 of the Act is repealed.

28( 8) Clause 102(1)(b)(i)(B) of the Act is repealed and the following is substituted:

( B) developments for which no building permit is required under the Building Code Administration Act,

28( 9) Subsection 108(1) of the Act is amended in the portion preceding paragraph (a) by striking out “or development and building permit” and substituting “under the Building Code Administration Act”.

28( 10) Section 111 of the Act is amended

ain subsection (2), by striking out “, a building by-law”;

bin paragraph (8)(b), by striking out “, building by-law”.

28( 11) Paragraph 124(1)(h) of the Act is repealed and the following is substituted:

hprescribing matters that a development must be in conformity with under subsection 108(1) before a building permit under the Building Code Administration Act may be issued;

28( 12) Section 125 of the Act is amended

ain subsection (1)

( i) in paragraph (h) by striking out “and building”;

( ii) in paragraph (i) by striking out “and building”;

bin paragraph (14)(c) by striking out “paragraph (1)(a), (b), (f), (g), (h) or (i)” and substituting “paragraph (1)(a), (b), (f) or (g)”.

28( 13) Subsection 134(1) of the French version of the Act is amended by striking out “inspecteur des constructions” and substituting “inspecteur en bâtiment”.

Provincial Building Regulation under the Community Planning Act, chapter C-12 of the Revised Statutes, 1973

29 Section 11 of the French version of New Brunswick Regulation 81-126 under the Community Planning Act, chapter C-12 of the Revised Statutes, 1973, is amended in the following provisions by striking out “inspecteur des constructions” and substituting “inspecteur en bâtiment”:

asubsection (4); and

bsubsection (5).

Aldouane Local Service District Zoning Regulation under the Community Planning Act, chapter C-12 of the Revised Statutes, 1973

30( 1) Section 2 of the French version of New Brunswick Regulation 93-172 under the Community Planning Act, chapter C-12 of the Revised Statutes, 1973, is amended

aby repealing the definition « inspecteur des constructions »; and

bby adding the following definition in alphabetical order:

« inspecteur en bâtiment » désigne un inspecteur en bâtiment nommé par le Ministre en vertu du Règlement provincial sur la construction – Loi sur l’urbanisme et ayant compétence dans l’ensemble ou toute partie du secteur; (building inspecteur)

30( 2) Section 23 of the French version of the Regulation is amended in the following provisions by striking out “inspecteur des constructions” and substituting “inspecteur en bâtiment”:

asubsection (1);

bsubsection (2);

csubsection (4) in the portion preceding paragraph a);

dsubsection (6)

( i) in paragraph a);

( ii) in paragraph c);

esubsection (7)

( i) in the portion preceding paragraph a);

( ii) in the portion preceding subparagraph c)(i);

fparagraph (8)a);

gsubsection (11).

Condominium Property Act

31 Paragraph 5(3)(e) of the Condominium Property Act, chapter C-16.05 of the Acts of New Brunswick, 2009, is amended by striking out “or development and building permit”.

Local Governance Act

32 Section 138 of the French version of the Local Governance Act, chapter 18 of the Acts of New Brunswick, 2017, is amended by striking out “inspecteur des constructions” and substituting “inspecteur en bâtiment”.

Regulation under the Local Governance Act

33 Section 9 of the French version of New Brunswick Regulation 2018-19 under the Local Governance Act is amended by striking out “inspecteur des constructions” and substituting “inspecteur en bâtiment”.

Marshland Infrastructure Maintenance Act

34 Section 15 of the Marshland Infrastructure Maintenance Act, chapter 35 of the Acts of New Brunswick, 2013, is amended by striking out “or a development and building permit”.

Metric Conversion Act

35 Schedule A of the Metric Conversion Act, chapter M-11.1 of the Acts of New Brunswick, 1977, is amended in section 4

aby repealing subsection (3);

bby repealing subsection (4);

cby repealing subsection (5).

Regulation under the Regional Service Delivery Act

36 Paragraph 21(1)(g) of the French version of New Brunswick Regulation 2012-109 under the Regional Service Delivery Act is amended by striking out “inspecteur des constructions” and substituting “inspecteur en bâtiment”.

Workers’ Compensation Act

37( 1) The heading “Notice of building permit or development and building permit” preceding subsection 53(7) of the Workers’ Compensation Act, chapter W-13 of the Revised Statutes, 1973, is repealed and the following is substituted:

Notice of building permit

37( 2) Subsection 53(7) of the Act is amended by striking out “or development and building permit”.

REPEAL AND COMMENCEMENT

Repeal

38 New Brunswick Regulation 90-128 under the Metric Conversion Act is repealed.

Commencement

39 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.