Plastertech Systems Limited v Auckland Council
[2019] NZCA 227
•17 June 2019 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA47/2019 [2019] NZCA 227 |
| BETWEEN | PLASTERTECH SYSTEMS LIMITED |
| AND | AUCKLAND COUNCIL |
| Court: | Collins, Peters and Mander JJ |
Counsel: | S Moore for Applicants |
Judgment: | 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 maintenance, continue to satisfy the performance requirements of this code for the lesser of the specified intended life of the building, if stated, or:
(a) the life of the building being not less than 50 years, if:
(i)those building elements (including floors, walls, and fixings) provide structural stability to the building, or
(ii)those building elements are difficult to access or replace, or
(iii)failure of those building elements to comply with the building code would go undetected during both normal use and maintenance of the building.
…
(Emphasis added).
Clause A2 defines “building element” to mean:
... [A]ny structural or non-structural component and assembly incorporated into or associated with a building. Included are fixtures, services, drains, permanent mechanical installations for access, glazing, partitions, ceilings and temporary supports.
Determinations that a building consent was required
In the District Court, Judge Collins found that the double studs contributed to the structural stability of the building and were an integral part of a wall.[4] Because the durability requirement was 50 years, the component required to be replaced had failed to satisfy the Code’s provisions for durability. There was no dispute that the double studs had not endured for 50 years since their installation. It followed that the exemption for general repair, maintenance and replacement work did not apply because the work undertaken was of the type described in cl 1(3)(c) of sch 1 to the Act.
[4]Auckland City Council v Lee, above n 2, at [25].
In the High Court, Palmer J, after reviewing the expert evidence, found the double studs provided structural stability to the building and that, as a result, the durability requirement was 50 years.[5] On the basis of the evidence adduced at the trial, Palmer J found he had no reason to disagree with Judge Collins’ conclusion. He also found that a double stud was difficult to access or replace and not “moderately” so, and that its failure would not be easily detected during normal maintenance.[6] He therefore rejected that the building durability requirement was anything less than 50 years.[7]
[5]Plastertech Systems Ltd v Auckland Council, above n 1, at [17]–[18].
[6]At [19].
[7]Clause B2.3.1(b) provides that the durability requirement will be one of only 15 years if:
(i) those building elements (including the building envelope, exposed plumbing in the subfloor space, and in-built chimneys and flues) are moderately difficult to access or replace, or
(ii) failure of those building elements to comply with the building code would go undetected during normal use of the building, but would be easily detected during normal maintenance.
Palmer J concluded that the work involved the replacement of a building component that failed to satisfy the Code for durability for the reason explicitly provided as an example in cl 1(3)(c), namely a failure to comply with the external moisture requirements of the Code.[8] It followed that a consent was required.
Analysis
[8]Plastertech Systems Ltd v Auckland Council, above n 1, at [19].
Leave will not be granted for a second appeal unless it involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.[9] The proposed appeal involves the High Court’s assessment of the application of an exception to the exemption otherwise provided by the Act to allow general repair, maintenance and replacement work to be undertaken without a consent.
[9]Criminal Procedure Act 2011, s 237(2).
Both Judge Collins and Palmer J’s decisions regarding the application of the exception rested on their review and analysis of evidence from four expert witnesses which led them to conclude that the double studs were an integral part of the wall that provided structural stability and had been installed in circumstances where there had been a durability failure due to water ingress. As a result, the work required to replace that component required a consent.
On appeal to this Court, the Companies relied upon several Ministry of Business, Innovation and Employment (MBIE) determinations relating to the interpretation of the term “complete or substantial replacement” as those words are used in cl 1(3)(a) and (b) of sch 1 to the Act. The Council, during the hearing of the appeal to the High Court, conceded that cl 1(3)(b) did not apply and that the removal of the double studs did not constitute complete or substantial replacement of the whole component of the wall system.[10] However, Palmer J’s conclusion that a building consent was required was based on the application of cl 1(3)(c) of the schedule. Those determinations are not therefore of direct relevance to the issue proposed to be determined on a second appeal.
[10]Plastertech Systems Ltd v Auckland Council, above n 1, at [14].
Establishing a miscarriage of justice requires the identification of an error which has resulted in a real risk that the outcome of the trial was affected. The error sought to be relied upon by the Companies in the present application centres on Palmer J’s assessment of the expert evidence called before the District Court. The Companies sought to rely on parts of some of the experts’ evidence which could be interpreted as suggesting that the works were not structural in nature. However, as noted, Palmer J’s decision rested on the application of cl 1(3)(c) which related to the repair or replacement of a component that had failed to satisfy the provisions of the Code for durability, and which provided structural stability to the building.
The qualifications placed by some of the experts on the extent of the structural support provided by the studs did not prevent Palmer J from coming to the factual conclusions he reached, nor did this evidence when combined with the balance of the expert opinion prevent the Judge from concluding that the building element provided structural stability as that term is referred to in cl B2.3.1(a)(i) of the Code. Furthermore, we do not consider those findings are necessarily inconsistent with the MBIE determinations which relate to the application of cl 1(3)(b), which was not relied upon by Palmer J in upholding the Companies’ convictions.
We do not consider the judgment has wider application other than to the specific circumstances of the present case. As acknowledged by the Council, Palmer J’s judgment is not authority for the proposition that a consent will be required for all window maintenance work. The decision that Judge Collins was correct to find that the double studs provided structural stability to the building was based entirely on the expert evidence called in this particular case.
Decision
For these reasons, we conclude that the case does not raise a question of sufficient general public importance to merit a second appeal. Nor do we consider there has been any miscarriage of justice.
Result
The application for leave to appeal is declined.
Solicitors:
Ong & Partners, Auckland for Applicants
Auckland Council – Legal Services, Auckland for Respondent
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