Plastertech Systems Limited v Auckland Council - [2019] NZCA 227

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA47/2019
[2019] NZCA 227

BETWEEN	PLASTERTECH SYSTEMS LIMITED First Applicant SIMPLE CONSTRUCTION LIMITED Second Applicant
AND	AUCKLAND COUNCIL Respondent

Court:	Collins, Peters and Mander JJ
Counsel:	S Moore for Applicants D J Collins and A R Govind for Respondent
Judgment: (On the papers)	17 June 2019 at 3.00 pm

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)

Plastertech Systems Ltd and Simple Construction Ltd (the Companies) seek leave to appeal a decision of Palmer J that building work carried out by them required a consent under the Building Act 2004 (the Act).[1] Leave is required because this would be a second appeal, the decision of Palmer J being itself an appeal from a decision to the same effect reached by Judge Collins in the District Court.[2]

Background

[1]Plastertech Systems Ltd v Auckland Council [2018] NZHC 3400.

[2]Auckland City Council v Lee [2017] NZDC 13089.

In 2014, building work was carried out by the Companies which involved the removal of a large window, making the surround watertight, and replacing the window, framing and cladding, including two double studs adjacent to the window. The Auckland City Council (the Council) prosecuted the Companies for carrying out the building work without a consent. The Companies took issue that a building consent was required. They maintained the work involved repair and maintenance which is exempt from requiring a consent.

The Building Act 2004

A person “must not carry out any building work except in accordance with a building consent” and will commit an offence if he or she does so.[3] However, a building consent is not required for repair, maintenance or replacement work described in cl 1 of sch 1 to the Act:
1        General repair, maintenance, and replacement
(1)The repair and maintenance of any component or assembly incorporated in or associated with a building, provided that comparable materials are used.
(2)Replacement of any component or assembly incorporated in or associated with a building, provided that—
(a)       a comparable component or assembly is used; and
(b)      the replacement is in the same position.
…
[3]Building Act 2004, s 40.
The Council points to sub-cl (3), which provides exceptions to this exemption as follows:
(3)However, subclauses (1) and (2) do not include the following building work:
...
(b) complete or substantial replacement of any component or assembly contributing to the building’s structural behaviour or fire-safety properties; or
(c) repair or replacement (other than maintenance) of any component or assembly that has failed to satisfy the provisions of the building code for durability, for example, through a failure to comply with the external moisture requirements of the building code; or
…
(Emphasis added).
The relevant provision of the building code relating to durability is cl B2.3.1 of sch 1 to the Building Regulations 1992 (the Code) which provides:
B2.3.1Building elements must, with only normal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZCA 227
Decision Date: 17 June 2019 at 3.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Plastertech Systems Limited and Simple Construction Limited sought leave to appeal a decision that they had to obtain a building consent under the Building Act 2004. The Auckland City Council prosecuted the companies for carrying out building work without a consent. The companies argued that the work involved repair and maintenance, exempt from requiring a consent, but the Council maintained otherwise. The legal issues involved the interpretation of the Building Act 2004 and the Building Regulations 1992, specifically whether the work carried out by the companies required a building consent. The Court of Appeal found that the case did not raise a question of sufficient general public importance to merit a second appeal, and there had been no miscarriage of justice. The application for leave to appeal was declined.

Orders