Plastertech Systems Limited v Auckland Council - [2018] NZHC 3400

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-390

[2018] NZHC 3400

BETWEEN
PLASTERTECH SYSTEMS LIMITED

First Appellant

SIMPLE CONSTRUCTION LIMITED
Second Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 17 September 2018

Appearances:

S Moore for Appellants

V J Tamatea for Respondent

Judgment:

20 December 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 20 December 2018 at 10.30 am pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors:
S Moore, Barrister, Auckland Auckland Council

PLASTERTECH SYSTEMS LTD v AUCKLAND COUNCIL [2018] NZHC 3400 [20 December 2018]

Summary

[1] Plastertech Systems Ltd (Plastertech) and Simple Construction Ltd replaced a large window which had been leaking. This involved replacement of an adjacent double stud. They were convicted of carrying out the work without obtaining a building consent. They appeal on the basis the work is exempt from the requirement to obtain a consent. I consider a consent was required. On the basis of the expert evidence, the work involved a building element providing structural stability to the building. It was not maintenance. The legal thicket of building consent provisions, exemptions and exceptions to exemptions, all strewn with alphabet soup, means there was a durability requirement of 50 years under the Building Code (the Code). There was no exemption from the requirement to obtain a consent. I decline the appeal.

What happened?

The building work

[2] In 2014, the property owner of unit 6, 139 Connell Street, Blockhouse Bay, Auckland, contracted with Plastertech to replace a window flashing which had been leaking. The work involved removing a large window, making the surround watertight, and replacing the window, framing and cladding, including two double studs adjacent to the window. The work was required because there had been considerable water ingress which caused rotting and decay. As it was simple construction, Plastertech subcontracted Simple Construction to do the job. Mr Keith Whitlow is the principal of Plastertech and Mr Ki Sun Lee is the principal of Simple Construction.

The prosecution

[3] The Auckland City Council prosecuted Simple Construction for carrying out the building work without a Council consent, Mr Lee for assisting with that, and Plastertech and Mr Whitlow for procuring the offence and assisting Simple Construction to commit it. The defendants represented themselves. There was no question the work was done and was done by those parties. The issue was whether a building consent had been required. The defendants argued no consent was required

because it involved repair and maintenance that is exempt from requiring consent and the work was urgent because it was needed to save or protect life or health.

[4] On 20 June 2017, Judge R J Collins issued judgment.1 He considered the expert evidence from both parties. He concluded the work was not exempted from requiring consent under the Building Code or the Building Act 2004.2 Accordingly, he found the charges proved against the defendants beyond reasonable doubt. At sentencing, Judge…

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: [2018] NZHC 3400
Decision Date: 20 December 2018

CaseChat Overview and Summary

Plastertech Systems Limited and Simple Construction Limited appealed against their convictions for carrying out building work without obtaining a building consent. The work in question involved replacing a large window and adjacent double studs on a property in Blockhouse Bay, Auckland. The appellants argued that the work was exempt from the requirement to obtain a building consent because it was maintenance work or urgent work necessary to save or protect life or health. The Auckland Council submitted that the work was not exempt, as it involved a building element contributing to the building's structural behaviour and had failed to satisfy the durability requirements of the Building Code. The court had to decide whether the work was exempt from the requirement to obtain a building consent under the Building Act 2004 and the Building Regulations 1992. The court considered the evidence of expert witnesses on both sides and concluded that the double studs provided structural stability to the building and their replacement involved a breach of the durability requirements of the Building Code. The court held that the work was not exempt from the requirement to obtain a building consent. The appeal was declined.

The court ordered that Plastertech Systems Limited pay a fine of $25,000 and Simple Construction Limited pay a fine of $10,000, with 90% of the fines to be paid to the Auckland Council.

Orders