Plastertech Systems Limited v Auckland Council
[2018] NZHC 3400
•20 December 2018
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 AppellantAND
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.
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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 Collins considered the significant financial penalty on the companies affected the gravity of Mr Whitlow’s and Mr Lee’s offending and the consequences of their convictions would be out of proportion to the gravity of their offending. So he discharged them without conviction.3 He convicted and fined Plastertech $25,000 and Simple Construction $10,000 and directed 90 per cent of the fine be paid to Auckland Council.4
The appeal
[5] Plastertech and Simple Construction appeal their convictions under s 229 of the Criminal Procedure Act 2011. Under s 232, I must allow the appeal if I am satisfied a miscarriage of justice has occurred for any reason. Under s 232(4), a miscarriage of justice means “any error, irregularity or occurrence . . . that has created a real risk that the outcome of the trial was affected”. That includes errors of law.5
Relevant building law
[6] Understanding building consent requirements involves navigating a legal thicket of provisions, exemptions and exceptions to exemptions, all strewn with alphabet soup. The most relevant provisions quoted below are emboldened. Section 40 of the Building Act 2004 provides a person “must not carry out any building work except in accordance with a building consent” and commits an offence if he or she does. Section 42A(1)(a) provides a building consent is not required for repair, maintenance or replacement work described in cl 1 of sch 1 of the Act:
1 Auckland City Council v Lee [2017] NZDC 13089.
2 At [27].
3 Auckland Council v Plastertech Systems Ltd [2017] NZDC 21464 at [13]–[15].
4 At [18]–[20].
5 Wiley v R [2016] 3 NZLR 1 at [26].
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.
[7]But sub-cl (3) provides for relevant exceptions to this exemption:
(3)However, sub-clauses (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;
(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;
[8] The relevant provisions of the building code for durability, referred to in sub- cl (3)(c), are in cl B.2.3.1 of sch 1 to the Building Regulations 1992 (the Building Code):
B.2.3.1Building 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.
(b)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.
[9]Clause A2 defines “building element” to mean:
… any 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.
[10]As I stated recently in Grant v Ridgway Empire Ltd:6
In effect, if someone is just replacing a building component or assembly a consent is not required. But if that component or assembly, incorporated into or associated with a building, fails to perform for the applicable durability period, replacing it will require a consent under the exception in (ab)(iii) of the Third Schedule. Presumably, that it because additional assurance is required about a component or assembly that has failed during the period it is supposed to be durable.
Was a building consent required here?
Judge Collins’ decision
[11] The appellants challenge two aspects of Judge Collins’s decision that there was no exemption from the requirement to have consent:
(a)For the purposes of cl 1(3)(b) of Schedule 1, Judge Collins found the work “involved ‘replacement of a component that contributes to the building’s structural behaviour’”.7
(b)For the purposes of cl 1(3)(c), Judge Collins found the double studs contributed to the structural behaviour of the building and are an integral part of a wall.8 That meant the durability requirement was 50
6 Grant v Ridgway Empire Ltd [2018] NZHC 2642 at [46].
7 Auckland City Council v Lee, above n 1, at [21].
8 At [25].
years under cl B2.3.1(a)(i) of the Code and the component replaced had failed to satisfy the Code’s provisions for durability.
Appellants’ submissions
[12] On the cl 1(3)(b) decision, Mr Moore, for the appellants, submits these studs cannot be considered to “contribute to the building’s structural behaviour” because then almost every element of a building could be said to do that and the intention of cl 1(3)(b) cannot be to capture all minor structural elements. He refers to guidance issued by the Ministry of Building, Innovation and Employment under s 175 of the Act which suggests the purpose of schedule 1 is to exempt “low-risk” building work because the compliance costs are likely to outweigh any benefits of requiring a consent.9
[13] On the cl 1(3)(c) decision, Mr Moore submits the durability requirement is 15 years, under cl B2.3.1(b), because the studs are not walls and do not provide structural stability to the building under cl 2.3.1(a)(i). He submits the studs were only moderately difficult to replace and their failure went unnoticed during normal use but was easily detected during normal maintenance (which includes replacement of component parts). He submits a substantial portion of a structural component must fail in order to fail the durability requirements. He submits the window leaking here was an isolated failure and did not go to the overall structure of the building and the double stud was a non-structural element as it was not load-bearing. He sought to minimise the extent of the work involved and submitted requiring consent for this sort of work would raise compliance costs unduly.
[14] On the cl 1(3)(b) issue, Mr Tamatea, for the Council, concedes removal of the double studs did not constitute complete and substantial replacement of the whole component of the wall system. That concession is based on the “complete and substantial” element of the clause. But he maintains they did provide structural support for the purposes of cl 1(3)(c). He advises that is the same position taken by the Council in the court below.
9 Ministry of Business, Innovation and Employment Guidance: Building work that does not require building consent: Building Act 2004 (3rd ed, March 2014) at 11.
[15] On the cl 1(3)(c) issue, Mr Tamatea submits the most appropriate applicable provision in B.2.3.1 is subcl (a)(i) because it refers to walls and the double studs were a component of the wall that provided structural stability for the window, the external cladding and internal wall lining. He submits the double studs are more than moderately difficult to replace because that involves removal and replacement of the cladding and wall lings which is beyond the average homeowner. He submits the failure of the studs was not easily detected on its own and their failure only became apparent when the cladding and wall linings were removed. He submits that where cladding fails and structural elements of framing are replaced, a consent is required to ensure the replacement is done correctly.
Was a consent required?
[16] In light of the Council’s concession on the cl 1(3)(b) question, that decision of Judge Collins is no longer at issue between the parties and I do not consider it further. Whether the appellants succeed therefore depends on whether a consent was required because of breach of the durability requirements of the Building Code.
[17] On the cl 1(3)(c) issue I consider, as Judge Collins found, this double stud was an integral part of a wall. It was a component incorporated into the building and therefore a “building element” under the definition of that term. On the basis of the expert evidence, as set out by Judge Collins, I find the double stud provided structural stability to the building:
(a)the evidence from Mr Quentin Dagger, Council witness and authorised officer, was the building work involved “substantial replacement of [a] component… contributing to the building’s structural behaviour” and replacement of a component that failed to satisfy the provisions of the building code for durability;10
(b)the evidence from Mr Rangi Johnson, Mr Whitlow’s expert witness with experience and qualifications in the building industry, was the two
10 Auckland City Council v Lee, above n 1, at [11].
double studs provided structural support and their absence would contribute to instability;11
(c)the evidence from Mr Harold Gibson, the engineer called by Mr Whitlow, was “clearly of the view that the double studs did not provide load bearing vertical support”, but the “overall effect” of his evidence was “that the double studs provided horizontal structural support for the building”;12 and
(d)the evidence from Mr Geoffrey Radley, an engineer called by the Council, was not effectively challenged on his view that the double studs provided horizontal load stability and structural support for the window framing, cladding and interior wall linings.13
[18] On the basis of this evidence, I see no reason to disagree with Judge Collins’ conclusion that the double stud provided structural stability to the building. The durability requirement is therefore 50 years under cl B.2.3.1(a)(i).
[19] Neither do I accept replacing a large window is maintenance. And I do not accept a double stud is only moderately difficult to access or replace. Its failure would not be easily detected during normal maintenance. So, the building durability requirement is not 15 years under cl B.2.3.1(b). The work therefore involved replacing a component that failed to satisfy the Building Code for durability for the reason given explicitly as an example in cl 1.3(c): failure to comply with the external moisture requirements of the Code. A consent was required.
Result
[20]I decline the appeal.
Palmer J
11 At [14].
12 At [19].
13 At [20].
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