Wellington City Council v Lakhi Maa Limited
[2021] NZHC 3443
•14 December 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-A-TARA ROHE
CIV-2021-485-59
[2021] NZHC 3443
BETWEEN WELLINGTON CITY COUNCIL
Appellant
AND
LAKHI MAA LIMITED
Respondent
CIV-2021-485-57 BETWEEN
WELLINGTON CITY COUNCIL
AppellantAND
SCOTER VENTURES LIMITED
Respondent
Hearing: 19 and 20 July 2021 Counsel:
N M H Whittington, M D East and C A Bentley-Beckham for Appellants
G W D Manktelow and K R Smith for Lakhi Maa Limited K H Rogers for Scoter Ventures Limited
Judgment:
14 December 2021
JUDGMENT OF ELLIS J
[1] There are over 500 Wellington buildings on the national Earthquake Prone Buildings Register.1 The term “earthquake-prone” is an elliptical way of saying that a building will have its ultimate capacity exceeded in a moderate earthquake and, in the event of a collapse, would likely cause injury or death to persons in or near the building or on any other property or cause damage to any other property.
1 Ministry of Business, Innovation and Employment “Register of earthquake-prone buildings”
<epbr.building.govt.nz>.
WELLINGTON CITY COUNCIL v LAKHI MAA LIMITED [2021] NZHC 3443 [14 December 2021]
[2]Each of the respondents owns one such building:
(a)Lakhi Maa Ltd (LML) owns 114 Adelaide Road in Mt Cook. LML bought the building in 2015, knowing it was earthquake-prone.
(b)Scoter Ltd (Scoter) owns Toomath’s building, located at 43 Ghuznee Street, Te Aro. Scoter has owned the building since 1986.
[3]Both buildings are heritage listed.
[4] Part 6A of the Building Act 2004 (the BA) is concerned with the remediation of earthquake-prone buildings. It provides mechanisms whereby owners can be required to fix such buildings within a specified time period. If an owner does not comply, a territorial authority (TA) can apply to the District Court for an order authorising the remediation to be carried out by the TA, at the owner’s expense.
[5] In this case, Wellington City Council (the relevant TA) made applications in relation to the buildings owned by each respondent. But the District Court declined the applications, ruling that the Council must first specify the work it intends to undertake so that the Court could, if necessary, undertake a cost-benefit analysis of the intended seismic work, assessed against any competing proposal put forward by the building owner.
[6] The Council now appeals that decision. It says the Court has no ability to undertake an assessment of the kind just mentioned and says, in a case where the statutory preconditions are made out (as it says they are here), the application must be granted.
The statutory scheme
[7] This is one of those relatively rare cases that turns solely on statutory interpretation; it is therefore necessary to set out the relevant legislative scheme in some detail.
[8]The purposes of the BA are set out in s 3. They are:
(a)to provide for the regulation of building work, the establishment of a licensing regime for building practitioners, and the setting of performance standards for buildings to ensure that—
(i)people who use buildings can do so safely and without endangering their health; and
(ii)buildings have attributes that contribute appropriately to the health, physical independence, and well-being of the people who use them; and
(iii)people who use a building can escape from the building if it is on fire; and
(iv)buildings are designed, constructed, and able to be used in ways that promote sustainable development:
(b)to promote the accountability of owners, designers, builders, and building consent authorities who have responsibilities for ensuring that building work complies with the building code.
[9] Both public safety (s 3(a)(i)) and owner accountability (s 3(b)) are at play in this case.
The introduction of Subpart 6A – Special provisions for earthquake-prone buildings
[10] The BA, as first enacted, dealt with earthquake-prone buildings in the same way (and through the same set of provisions) as dangerous and insanitary buildings under pt 2.
[11] But the process for the identification and remediation of such buildings under pt 2 was relatively ad hoc. After a comprehensive review of the regulatory framework and approach to earthquake-prone buildings,2 it was determined that what was required was a systematic, nationwide approach to the identification of earthquake- prone buildings, together with risk-based time periods within which building owners must, at their own cost, remediate their buildings.3
[12] Among the problems identified during the review was that earthquake-prone buildings were not being remediated quickly enough, with considerable variability in
2 Prompted by the Christchurch earthquakes in 2010 and 2011.
3 This process included a Royal Commission of Inquiry, a consultation report by the Ministry of Business, Innovation and Employment and two Local Government and Environment Select Committee reports.
terms of the way in which the TAs were performing their regulatory and enforcement functions. Some TAs, for example, were requiring building owners to strengthen beyond the threshold for earthquake-proneness.
[13] When first introduced, the Bill that eventually became the Building (Earthquake-prone Buildings) Amendment Act 2016 imposed a “one size fits all” approach nationwide. All TAs were to be required to assess earthquake-prone buildings within five years, and building owners were then to have 20 years to strengthen earthquake-prone buildings.
[14] Many who made submissions on the Bill raised concerns about cost, in particular the cost to owners of upgrading heritage buildings. The appropriate trade- off between safety, costs to building owners, and preservation of heritage buildings occupied much Select Committee and Parliamentary time. Eventually the Bill was redrafted to balance these concerns in the following ways:
(a)New Zealand was categorised into areas of seismic risk (low, medium and high). The time frames for strengthening would vary, depending on the seismic risk area in which the building was located.
(b)Category 1 heritage buildings were to be afforded a longer time frame for work to be completed.
(c)Priority was given to the identification and strengthening of earthquake-prone education and emergency buildings.
(d)A large number of buildings (such as residential one-storey buildings) and structures were to be exempted from the legislation, on the basis that they posed low risk or would be impractical to fix.
[15]The resulting Bill was described as enacting:4
… a very pragmatic system to strike a balance between protecting people from harm in earthquakes in respect of earthquake-prone buildings, but also being
4 (10 May 2016) 713 NZPD 10923.
pragmatic about managing the costs of strengthening or demolishing buildings.
[16] The possibility of ratepayers (through TAs) subsidising the cost of buildings being identified as earthquake-prone (for example, by covering the cost of engineering assessments) was rejected.5 Rather, the new subpt 6A of pt 2 contains a number of provisions reflecting the principle that public safety requires building owners to bear all of the economic impact, ameliorated by the time frames owners are given to comply with their obligations. Subpart 6A came into force on 1 July 2017.
The definition of earthquake-prone buildings
[17]As noted earlier, a building is considered earthquake-prone when:
(a)the building (or part of it) will have its ultimate capacity exceeded in a moderate earthquake;6 and
(b)if it were to collapse, the building would do so in a way that is likely to cause injury or death to persons in or near the building or on any other property, or damage to any other property.
[18] The Chief Executive of the Ministry of Business, Innovation, and Employment (MBIE) prescribes the methodology for identifying earthquake-prone buildings (the EPB Methodology). Under the EPB Methodology, buildings are assigned a new building standard rating (NBS Rating), which is calculated as a percentage. It assesses a building as if it were a new build, built on the same site on or after 1 July 2017 against the seismic performance requirements of the Building Code. Buildings with an NBS Rating of less than 34% are regarded as earthquake-prone.
5 Local Government and Environment Committee Building (Earthquake-prone Buildings) Amendment Bill 2013 (182-1): Interim Report of the Local Government and Environment Committee (23 June 2015) at [85] and [92].
6 Ultimate capacity means the probable capacity to withstand earthquake actions and maintain gravity load support.
The role of the TAs
[19] Under s 133AG, a TA is required to identify potentially earthquake-prone buildings within specified time frames. 7 As I have said, the length of these time frames depends on the “seismic risk” of the relevant geographical area and whether the building concerned is a “priority building”.8
[20]In this case, there is no dispute that:
(a)Wellington is an area of high seismic risk; and
(b)the two buildings presently in issue have the potential to impede a high traffic or emergency route if they collapse.
[21] If a TA has identified a building as potentially earthquake-prone, s 133AH requires the TA to ask the owner to provide an engineering assessment of the building. Section 133AH(2) stipulates various matters that such a request must contain, including (by dint of para (e)) an explanation of the owner’s obligations under s 133AI. Those obligations are that a building owner must, no later than 12 months after the TA makes the s 133AH request:
(a)provide to the territorial authority an engineering assessment of the building or part that complies with the requirements of the EPB methodology; or
(b)provide to the territorial authority evidence of a factual error in the basis on which the territorial authority has identified the building or part as potentially earthquake prone; or
(c)notify the territorial authority that the owner does not intend to provide an engineering assessment.
7 Section 222 was amended specifically to permit a TA to enter and inspect buildings for the purpose of making the relevant assessments.
8 The term “priority building” is defined in s 133AE as one located in an area of “medium or high seismic risk” and which falls within one of a number of specified categories, including “a building that a [TA] has identified under section 133AF(2)(b) as having the potential to impede a transport route of strategic importance (in terms of an emergency response) if the building were to collapse in an earthquake”.
[22] Where a building owner fails to comply with these obligations, or where it notifies the TA that it does not intend to provide an engineering assessment, then under s 133AI(3):
(a)the TA must proceed as if it had determined the building to be earthquake-prone; and
(b)the TA may obtain an engineering assessment of the building and recover, as a debt due from the owner of the building, the costs of doing so.
[23] Mr Whittington submitted—and I accept—that s 133AI is consistent with the general scheme of subpt 6A, in that:
(a)the obligation to undertake the necessary action (here, to provide an engineering assessment) falls on building owners, and it is those owners who must bear any associated costs; and
(b)non-compliance by an owner allows a TA to assume responsibility for the process and to recover the costs from building owners.
[24] On receiving an engineering assessment, the TA must determine, in accordance with the EPB methodology: (a) whether the building is earthquake-prone, and (b) if the building is earthquake-prone, its earthquake rating. As well, if a TA determines that the building is earthquake-prone, it must (among other things) issue what is known as an EPB notice. An EPB notice must be in the prescribed form and is required to contain certain information, including:9
(a)the identity of the building determined to be earthquake-prone;
(b)whether the building is a priority building;
(c)the relevant earthquake rating;10
9 Section 133AL(2).
10 Unless this has not been determined: see s 133AK(4) and cl 2 of sch 1AA.
(d)advice that the owner of the building is required to carry out building work (referred to as seismic work) to ensure that the building is no longer earthquake-prone;
(e)the deadline for completing seismic work (see section 133AM);
(f)advice that the owner may apply under section 133AN for an exemption from the requirement to carry out seismic work;
(g)in the case of a heritage building to which section 133AO applies, advice that the owner of the building may apply under that section for an extension of time to complete the seismic work; and
(h)advice that the owner is not required to complete seismic work if the TA determines or is satisfied, in accordance with section 133AQ, that the building is not earthquake-prone.
[25] The term “seismic work” is defined in s 7 as “the building work required to ensure that the building is no longer earthquake-prone”. In order for a building to be deemed no longer earthquake-prone, its NBS rating will need to be raised to at least 34%, or part or all of the building will need to be demolished.
[26]And “building work”:
(a)means work—
(i)for, or in connection with, the construction, alteration, demolition, or removal of a building; and
(ii)on an allotment that is likely to affect the extent to which an existing building on that allotment complies with the building code; and
(b)includes sitework; and
(c)includes design work (relating to building work) that is design work of a kind declared by the Governor-General by Order in Council to be restricted building work for the purposes of this Act; and
(d)in Part 4, and the definition in this section of supervise, also includes design work (relating to building work) of a kind declared by the
Governor-General by Order in Council to be building work for the purposes of Part 4.
[27] Neither s 133AL nor the prescribed form provide for, or contemplate, particularisation by the TA as to how the owner should undertake the seismic work required to make the building no longer earthquake-prone. Again, s 133AL makes it clear that it is the building owner’s responsibility to undertake this work and to bear the cost of so doing.11
[28] Section 133AM prescribes specific deadlines for building owners to complete the required seismic work. By contrast with the deadlines for remediating dangerous or insanitary buildings, which are set by the TA, these deadlines are imposed by statute, by reference to the seismic risk of the area in which the building is located and whether the building is a priority building. Thus s 133AM(2) provides:
The deadline is the expiry of whichever of the following periods, as measured from the date of the first EPB notice issued for the building or the part of the building (rather than any replacement EPB notice), is applicable:
(a)in an area of low seismic risk, 35 years for any building; and
(b)in an area of medium seismic risk, 12 years and 6 months for a priority building and 25 years for any other building; and
(c)in an area of high seismic risk, 7 years and 6 months for a priority building and 15 years for any other building.
[29] These deadlines reflect a risk-based approach that prioritises remediation of buildings posing the most risk; as a consequence, the economic impact on owners is commensurate with the risk posed by the particular building.
[30] Where owners have defaulted on their obligations to complete seismic work in accordance with the statutory deadlines, s 133AS comes into play. That section provides:
11 It may be observed that by this point in the process there remains no doubt as to the status of the building. Unlike the position with dangerous or insanitary buildings, which is the subject of an adjudicative assessment by the TA, determining that a building is earthquake-prone is based on engineering assessments undertaken following a prescribed methodology.
133AS Territorial authority may carry out seismic work
(1)This section applies if seismic work on a building or a part of a building that is subject to an EPB notice is not completed by the deadline that applies under section 133AM, or is not proceeding with reasonable speed in the light of that deadline.
(2)The territorial authority may apply to the District Court for an order authorising the territorial authority to carry out seismic work on the building or the part of the building.
(3)Before the territorial authority applies to the District Court under subsection (2), the territorial authority must give the owner of the building or the part of the building not less than 10 days’ written notice of its intention to do so.
(4)If a territorial authority carries out seismic work on a building or a part of a building under the authority of an order made under subsection (2),—
(a)the owner of the building or part is liable for the costs of the work; and
(b)the territorial authority may recover those costs from the owner; and
(c)the amount recoverable by the territorial authority becomes a charge on the land on which the work was carried out.
(5)Seismic work authorised to be done under this section may include the demolition of a building or part of a building.
[31] Section 133AS is, therefore, also consistent with the central premises underlying all of subpt 6A: building owners have an obligation to carry out seismic work so that the relevant building is no longer earthquake-prone and to bear the cost of doing so. Where building owners fail to discharge that responsibility within the statutory time frames, the TA may—by way of application to the Court—assume responsibility for the required work and recover the costs of doing so from building owners.
[32] Lastly, it is relevant to note that a building owner may apply to the chief executive of MBIE for a determination under s 177 of the BA in relation to the exercise of any power of decision under subpart 6A of pt 2 (other than a power of decision under section 133AS). An application for determination has the effect of temporarily suspending the relevant decision; the determination may confirm, reverse, or modify
the decision or exercise of a power to which it relates. This constitutes a safeguard in favour of the building owner.
The decision under appeal
[33] As noted earlier, the Wellington City Council applied to the District Court under s 133AS for an order authorising it to carry out seismic work on the buildings owned by LML and Scoter. The nature of the seismic work proposed was not specified. LML and Scoter opposed the application.
[34] Early on in his decision, the District Court Judge identified the question that now lies at the heart of this appeal—whether the Court could authorise the seismic work without particularisation. He said:
[5] A fundamental issue quickly emerged at the first hearing, that is, whether the Court could or should make an order in the unspecific terms requested by the Council. The Council is requesting an order which does no more than authorise it to carry out “seismic work”.
[6] The exact nature of the seismic work required to make the building not earthquake prone has not been established. It is not in dispute that there could be several options ranging from demolition of the entire building through to retaining and strengthening the whole existing building. Between these two extremes there may be options which involve strengthening parts of the building, such as the facades, and demolishing the remainder either with or without new construction as an integral part of that.
[7] Obviously, these various options could have radically different consequences in terms of cost and the future use and value of the land on which the building stands. It is also not in dispute that before anyone could decide what option to take, it would be both prudent and necessary for the practicability and the cost of the various options to be investigated by appropriate professionals. This would, in itself, be a considerable task requiring the expenditure of a significant sum.
[8] It is the Council’s position that the Court has a discretion as to whether or not to make an order but not to specify in that order the nature of the seismic work which is authorised unless the applicant requests a more particularised order. It says that that should be decided solely by the Council under the authority of the Court’s order. The respondent disputes that proposition.
…
[10] Because this issue is so fundamental to the making of an order and to the potential terms of any such order, this judgment is limited to that point. The other issues raised are, to one degree or another, dependent on the outcome.
[35] After setting out the relevant statutory provisions and summarising the parties’ submissions, the Judge remarked that the provision itself contains essentially no guidance as to how the Court must exercise its power:
[19] It is difficult to conceive of a provision in which Parliament has conferred a power on the Court with less guidance as to how that power should be exercised. Even the very existence of the power is a matter of inference only from the grant to a territorial authority of the power to apply to the Court for an order. Although the use of the word “way” in s 133AS(2) indicates that the territorial authority has a discretion to apply, it is not clear whether the Court has a discretion to refuse to make an order if the preconditions for obtaining one have been satisfied. However, both parties accept that there is such a discretion and I proceed on that basis. It seems sensible since otherwise there would be little reason for the Court to be involved at all.
[20] The section itself provides no direct guidance on the factors which should affect the Court’s exercise of that discretion. It is silent also on the form or conditions of any order it may make. The Court must, therefore, decide those matters having regard to the statutory framework and whatever assistance can be gained from case law.
[36] The Judge noted that the provisions in the BA relating to earthquake-prone buildings were designed to further the public safety purpose set out in s 3(l)(a) but said that this “provides little assistance on the discrete issue here”. Then, he said:12
[22] I find some assistance from the provisions of ss 133AL(5) and 133AS(4). The former indicates that not only the owner but others who have financial or other interests in the building must be notified of the imposition of an EPB. The latter imposes a liability on the owner and a charge on the land on which the building is situated for the costs incurred by a territorial authority in carrying out seismic work authorised by an order of the Court where the notice is not complied with. This suggests that Parliament recognises that those persons have a legitimate interest in the making of an order.
[23] In enacting s 133AS, Parliament conferred a broad discretion on the District Court. The exercise of that discretion may result in very significant interference with property rights and the imposition of equally significant financial liabilities on the owner of that property and on others who may have an interest in the property. It has always been one of the essential functions of the Courts to protect property rights as Parliament would have been aware. As the High Court in Grubmayr v Bloxham stated:
Our law, whether statutory or common, has always respected personal property rights, and any interference must be the minimum necessary to satisfy some overriding objective.
[24] The protection of property rights extends where possible, to interpreting legislation in a manner consistent with the non-interference with
12 Footnotes omitted.
property rights. Lord Radcliffe explained the principle of non-interference in
Attorney-General (Canada) v Hallet & Carey Ltd:
[T]here is a well-known general principle that statutes which encroach upon the rights of the subject, whether as regards person or property, are subject to a ‘strict’ construction. Most statutes can be shown to achieve such an encroachment in some form or another, and the general principle means no more than that, where the import of some enactment is inconclusive or ambiguous, the Court may properly lean in favour of an interpretation that leaves private rights undisturbed.
[37] After again observing that the purpose of an order under s 133AS(2) is to advance public safety (“which is the overriding consideration”), the Judge said the Court should exercise its discretion in a manner that constitutes “the most limited interference with a building owner’s property rights that is reasonable in the circumstances”.13 As well as according with general principle, the Judge noted that this approach was evident in the case law relating to s 126 of the BA, relating to dangerous or unsanitary buildings (and which had formerly applied to earthquake- prone buildings as well).14 He referred, in particular, to the decision of Judge Walker in Marlborough District Council v Chaytor, which involved an application for a demolition order under the predecessor to s 126 (s 65(4) of the Building Act 1991).15 He observed that the wording of s 65(4) was materially similar to the wording of s 133AS.
[38] The Judge noted that, in Chaytor, Judge Walker had referred to the importance of property rights and, after finding that the statutory preconditions for the making of the order were established, took the view that the Court must go on to decide whether the work intended to be done is “reasonable”. Then, he said:16
[29] It is to be observed that the Council’s position is that the Court is not required to decide whether the work is reasonable, only whether it is reasonable for the Council to “step in”. Indeed, it is obviously impossible for the Court to decide whether the work is reasonable unless it knows what work is proposed. The suggestion that the obligation on a territorial authority to act reasonably in a Wednesbury sense is sufficient protection for a citizen is not persuasive. That could be judged only after the event and in any case would require an application to the High Court for judicial review to establish.
[30] Research has brought to light a number of District Court decisions where applications under s 126 of the Act have been made. Some have
13 At [25].
14 At [26].
15 Marlborough District Council v Chaytor [1995] DCR 382.
16 Emphasis added.
referred to Chaytor. None has been for a general order for building work. All have been for specified work. In some cases, expert reports were presented. In one it was noted that where possible an owner should be given the opportunity to present an option other than demolition. The approach of the District Court to s 126 appears to be to consider the expert evidence and, where appropriate, grant orders for specific work to be conducted by the authority.
[31] I find the Council’s arguments difficult to follow. I am unable to understand why the Court should not have the responsibility of assessing whether or not a particular proposal for achieving earthquake-prone status should be authorised. I agree the financial position of the owner is not relevant to that, but the economics and practicability of different proposals are surely relevant to his property rights; and thus to the reasonableness of any proposed order.
…
[33] There is also a syntactic clue that suggests that the subsection contemplates specification of the seismic work to be done in the absence of the definite article before the words “seismic work”. If it was intended that an order should merely duplicate the generalised seismic work which might have been required under the relevant EPB referred to in s 133AS(1), the natural usage would have been to refer to “the” seismic work , ie. that seismic work specified in the EPB.
[39] The Judge therefore declined to make an order in the general terms sought by the Council, saying that the Council would need to amend and particularise its application by reference to the work deemed to be required after investigation. That is the decision presently under appeal.
Discussion
[40] There is no dispute that the express preconditions for making an application and an order under s 133AS are met in the present case. In short, both respondents have been issued with an EPB notice for their earthquake-prone buildings, with which they have not complied. They do not contend that they have proceeded with reasonable speed in the light of the deadlines in the EPB.
[41] Rather, the principal question on appeal is whether a TA is permitted to make (and whether the Court is required to consider) an application under s 133AS in generalised terms or whether it must first particularise the seismic work proposed to be done. Alongside and intersecting with that question is the issue of the nature and extent of the Court’s discretion under that section.
[42] The Council’s primary position is that the discretion implicitly conferred on a Court under s 133AS is limited;17 provided that the statutory preconditions (non- compliance with an EPB notice or failure to progress with reasonable speed) are met, an order is effectively mandatory. The Court has no role (for example) in engaging with engineering issues or in assessing the reasonableness or cost-effectiveness of the proposed seismic work, all of which remain matters for the relevant TA.
[43] I agree with that position, essentially for all the reasons advanced by Mr Whittington. I deal with them in no particular order.
[44] First, I agree that the Judge erred in finding that the discretion under s 133AS is required to be exercised in a way that constitutes “the most limited interference with a building owner’s property rights that is reasonable in the circumstances”.
[45] The relevant principles of statutory interpretation in cases where private property rights are affected by legislation were authoritatively discussed in Waitakere City Council v Estate Homes Ltd.18 The following propositions emerge from that decision:
(a)there is a common law right not to be deprived of property without compensation;19
(b)when interpreting a statute, it will be presumed that Parliament did not intend to infringe that right;20
(c)this presumption applies only where there is a “taking” of property;
(d)a “taking” occurs only where the owner is permanently, and without choice, deprived of his or her property;21 and
(e)the presumption does not apply where the statute merely regulates a property owner’s use of his or her property.22
17 I say “implicitly” because, as the District Court Judge noted, s 133AS does not directly empower the Court to make an order.
18 Waitakere City Council v Estate Homes Ltd [2006] NZSC 116, [2007] 2 NZLR 149.
19 At [45].
20 At [45].
21 At [46] and [51].
22 At [45] to [51]. See also New Zealand Council of Firearms Owners v Minister of Police [2020] NZHC 1456 at [51].
[46] In my view, an order under s 133AS does not involve a relevant “taking”. Even if a TA decides to demolish—rather than strengthen—a building, the owner retains ownership of the land, retains a right to possession, and retains the right to exclude trespassers. All an owner has had taken from them is control over the seismic work to be undertaken in order to make the building comply with the law.
[47] Nor can it be said that the property owner is left without a relevant choice. An application under s 133AS can only be made in circumstances where a building owner has chosen not to comply with legal obligations imposed on them.
[48] In any event, it is difficult to see how the interpretive presumption could be applied to s 133AS. Compensation is excluded as an option; the legislative provisions are clear on their face. Consistent with the wider scheme of the Act, it is the owner of the building who must pay for the relevant seismic work. So what would compensation be paid for, and how would it be assessed?
[49] Secondly, introducing a requirement that the TA must determine the nature and extent of the seismic work required before making an application under s 133AS (which is the effect of the District Court decision) presents legal and practical difficulties. A TA’s ability to recover the cost of seismic work done on a building that is subject to an EPB notice is governed by s 133AS(4), which is predicated on an order first being made. So if the TA is required to do preliminary design work23 in order to determine the scope of any seismic work before making an application for such an order, then the TA has no ability to recover the costs of that work from the building owner. That result is contrary both to the scheme of the BA overall and to the specific provisions of subpt 6A.
[50] It also seems that TAs do not have any power to enter earthquake-prone buildings for the purposes of such preliminary design work. Absent the authority inherently conferred by an order made by the District Court under s 133AS, the only statutory powers of entry conferred on a TA are s 222 of the BA or (more generally) s 171 of the Local Government Act 1974. Mr Whittington submitted that neither
23 Design work falls within the statutory definition of seismic work.
would be available here.24 And without such a power, TAs would need to rely on building owners granting permission to enter in order to undertake the necessary assessment; it is not difficult to imagine that some building owners would decline to do so in order to thwart or delay the statutory processes. Again, that is utterly at odds with the relevant statutory scheme.
[51] Thirdly, the proposition that the District Court could assess the reasonableness of the seismic work proposed before granting an order under s 133AS would (contrary to the Judge’s view) inevitably require the Court to undertake some form of cost/benefit analysis; reasonableness cannot be assessed in a vacuum. Any such assessment or analysis here would be both inconsistent with the statutory scheme and—in practice—unlikely to be workable.
[52] I agree with Mr Whittington that, by enacting subpt 6, Parliament has expressly rejected the proposition that the economic viability of seismic work is a reason not to remediate earthquake-prone buildings. The mandatory statutory time frames for taking action emphasise the prevailing importance of public safety, just as s 133AS reflects the prioritisation of public safety over both private property rights and economic considerations.25
[53] As well, there is necessarily a concern that the District Court is not well-placed to engage in a merits-based assessment of engineering issues or to assess and adjudicate contested design proposals, engineering matters, and competing costs. That point is highlighted in a case such as the present, where (as in many similar cases) the order sought relates to heritage buildings. In the event that a TA determines that the appropriate seismic work involves demolition of such a building, s 6(f) of the Resource
24 Section 222 specifically permits entry only for the prior purpose of “determining whether the building … is earthquake prone or potentially earthquake-prone”. Whether or not entry would be authorised as a corollary of the more general right of “inspection” (which is defined to include “the taking of all reasonable steps … to enable a territorial authority to … carry out its functions in relation to [earthquake-prone] buildings” is perhaps more debatable, but does not need to be the subject of a definitive finding here. Section 171 only permits entry in order to “do anything the local authority is empowered to do under … any other Act”. It therefore could not apply unless and until seismic work was authorised by the Court under s 133AS.
25 In any event, it is not the assumption of responsibility on the part of the TA that causes economic loss to the building owner, but rather the ownership of the earthquake-prone building in the first place. The TA’s actions only have the effect of quantifying the cost of the work necessary to make the building no longer earthquake-prone.
Management Act 1991 would be engaged and a resource consent would be required. In those circumstances, the spectre of the District Court engaging with the reasonableness of the proposed demolition (and whether remediation might be more appropriate) is jurisdictionally problematic. Issues of that kind are properly within the exclusive domain of the two specialist consent authorities: local authorities and the Environment Court.
[54] Against all of that, I acknowledge that building owners such as the respondents have concerns. In particular, they say that an order permitting a TA to do whatever seismic work it sees fit leaves them open to being required to pay for extravagant or “Rolls Royce” earthquake strengthening (of, say, 90 per cent NBS) and may well be inconsistent with whatever plans the owners themselves have for the buildings.
[55]In my view, however, such concerns are overstated.
[56] As to the possibility of a TA requiring owners to pay for “Rolls Royce” seismic work, Mr Whittington referred me to the decision in University of Canterbury v Insurance Council of New Zealand Inc. There, the Supreme Court expressed scepticism about the notion that a TA could require remediation to an earthquake-prone building to a standard higher than the minimum NBS. O’Regan J (speaking for himself, McGrath and Blanchard JJ) said:
[58] It is unlikely that Parliament would have intended to choose a threshold of 34 per cent of NBS (and likely to collapse) but then provide that the remedial power of a territorial authority can require a very significant upgrading of the building to a level up to 67 per cent of NBS (or, conceivably, even higher). We do not think Parliament could have intended that a territorial authority could require a building that is at 30 per cent of NBS to be upgraded to 67 per cent of NBS (or an even higher standard) while no remedial action at all could be required in relation to a building that is at 35 per cent of NBS. Mr Weston acknowledged that this could be seen as unusual, but argued that it may simply reflect an intention on the part of Parliament to target the very worst buildings for remedial action, while at the same time allowing a territorial authority to ensure that the remedial action was of sufficient scope to make buildings safe not just in a moderate earthquake but in any earthquake. We consider that to be unlikely.
[57] Although that case was decided before the enactment of subpt 6A (when earthquake-prone buildings were dealt with like other dangerous and unsanitary
buildings), the reasoning applies equally—and even more forcefully—where seismic work is undertaken by the TA pursuant to an order made under s 133AS.
[58] As for any conflict between seismic work undertaken by the TA and the owner’s own developments plans, there are two further points. The first is that it is only by virtue of the owner’s own default or delay that a TA will be (in effect) forced to take over the remediation obligation; the remedy lies first and foremost in the owner’s hands. Indeed, it is arguable that the legislative purpose is likely to be furthered by incentivising owners to move quickly to do the work themselves, in order to avoid a TA itself undertaking work that may be inconsistent with what they wish to do with their buildings.
[59] And as a practical matter, the obtaining of an order does not preclude continuing dialogue between the owner and the TA about the nature of the seismic works (provided that dialogue is productive and does not unduly contribute to further delay). TA decisions made and actions taken following the making of an order are also potentially liable to judicial review. I am not inclined to agree with the District Court Judge’s outright rejection of that as a tenable remedy in such cases.
[60] Lastly, I also acknowledge that the views just expressed, and my conclusion overall, may seem to be at odds with District Court decisions in relation to similar orders sought for the remediation of insanitary and dangerous buildings, including Chaytor. But there are several points of distinction.
[61] Although s 126—the statutory provision empowering a TA to apply for an order authorising it to carry out building work in relation to an insanitary/dangerous building—is in very similar terms to s 133AS, its use is not predicated on a failure to comply with statutorily imposed time frames. Rather, an application may be made where:
(a)the TA is satisfied that a building is unsanitary or dangerous (as defined); and
(b)the building owner has failed timeously to complete the work required by a s 124(2)(c) notice.
[62] The designation of a building as insanitary/dangerous, the work required to remediate or remove the danger, and the time required to do so are all contestable matters involving questions of judgment. The prerequisites for making an application under s 126 are therefore also contestable and may, perhaps, properly be the subject of expert evidence and judicial determination.
[63] By contrast—and as discussed earlier—there is little that is contestable about the designation of a building as earthquake-prone, or about what is required to make it not so. In a case of an application under s 133AS, the application of the BA itself will already have determined whether a building is earthquake-prone, the minimum standard of remediation, and the time frames for completion.
[64] As well, a number of the cases involving insanitary or dangerous buildings involve private dwellings, to which slightly different considerations apply. Houses that may be insanitary or dangerous do not pose the same public safety risks (a fact that is expressly recognised by the fact that the earthquake-prone building register is limited to commercial and multi-unit buildings).26 The need for a straightforward, streamlined, and less contestable remediation process is considerably greater in subpt 6 cases.
Conclusion
[65] The District Court decision in this case suggests that TAs will be required to embark on a multi-stage application procedure of a kind that, in my view, is not contemplated by, and is inconsistent with, s 133AS. I agree with the Council that such an attenuated process—whereby a TA may not only have to apply for staged orders, but may need to justify its proposed seismic work on a cost-benefit basis—would involve restriking (on a case-by-case basis) a balance already struck by Parliament. The possibility (for example) of the Court having to re-engage in the likely event of design changes during such a process will cause delays that sit poorly with the overarching objective of public safety and the statutory time frames. Moreover, it will
26 In Chaytor itself, for example, the building in question was a private dwelling and the issue was whether or not it had properly been deemed “insanitary”. Such threshold questions do not arise where s 133AS is engaged.
also likely involve significant District Court judicial resources, given the large number of earthquake-prone buildings.27
[66] Accordingly, I consider that s 133AS must be interpreted consistently with its purpose and in a way that provides TAs with a mechanism for expediting the completion of important seismic work and reducing risk. The interpretation adopted by the District Court imposes barriers to TAs carrying out seismic work with the necessary speed, contrary to the public safety purpose of the legislation.
[67] The appeal is allowed. The decision in the District Court is quashed and the orders sought by the Council under s 133AS in relation to each respondent are granted.
[68] For completeness, I record my view that an originating application process seems apt for s 133AS matters.
[69]2B costs should follow the event in the usual way.
Rebecca Ellis J
Solicitors:
Meredith Connell, Wellington for Appellants
Guy Manktelow, Lower Hutt for Lahki Maa Limited DLA Piper, Wellington for Scoter Ventures Limited
27 For example, as I said at the start of this judgment, there are over 500 other earthquake-prone buildings in Wellington. By 2029 the statutory deadline for over 400 of these buildings will expire. Approximately 200 of these deadlines will expire in 2027 alone.
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