Protection of public safety or heritage values – which should prevail?

Public safety or heritage protection – which should have priority? This was essentially the question recently considered by the High Court in Lambton Quay Properties Nominee Limited v Wellington City Council [2014] NZHC 878.

Background to the case

The Harcourts building (as it is now known) has stood on the corner of Lambton Quay and Grey Street in central Wellington since 1928. Following the Canterbury earthquakes, the Council assessed the building at 17% of the New Building Standard. On 27 July 2012, the Council served the building owner (Lambton Quay) with an “Earthquake-Prone Building Notice” under section 124(1)(c) Building Act 2004 (Building Act, as it then stood).

The notice required the building owner by 27 July 2027 to either:

  • strengthen the building so that it is not deemed to be earthquake-prone; or
  • demolish all or part of the building, so that any remainder is not earthquake-prone.

Following expert advice, Lambton Quay dismissed both strengthening the building, and retaining the facade as part of a re-development, as being commercially viable. Lambton Quay therefore applied for resource consent to demolish the building in September 2012. Consent was required because the building has a Category 1 rating under the (then) Historic Places Act 1993, and is listed on the heritage schedule of the Council’s District Plan.

The consent application was declined by both the Council, and Environment Court on appeal. In appealing to the High Court, three of Lambton Quay’s grounds of appeal (from a total of 15 grounds, the reminder of which are not pertinent to this summary) were that the Environment Court erred in determining that:

  • the District Plan and section 6 RMA required Lambton Quay to establish that alternatives to demolishing the building had been “exhaustively and convincingly excluded” (this was the sixth and tenth grounds of appeal combined); and
  • there was a “tension” and “inherent irony” between the RMA and section 124 Building Act which could not be reconciled, and in doing so, failed to give adequate consideration to the risk to public safety and surrounding buildings if the Harcourts building remains as it is until potentially 2027.

High Court’s findings

The High Court upheld all three grounds of appeal. In respect of the sixth and tenth grounds, the Court found the Environment Court had stated two different tests as to the requirements of the District Plan and section 6 RMA. The High Court was left in genuine doubt as to which of the two tests the Environment Court actually applied. Further, it considered one of those (that alternatives to demolishing the building had to have been “exhaustively and convincingly excluded”) was the wrong legal test. On this basis, the High Court found it was bound to uphold both grounds of appeal.

The High Court also disagreed with the Environment Court’s conclusion that the Building Act and RMA provisions relevant to Lambton Quay’s consent application were completely irreconcilable. In particular, the High Court considered that there was a commonality between the overriding purposes of the Building Act and RMA, and the relevant parts of the District Plan. That commonality was the issue of public safety. Thus when assessing reasonable alternatives to demolition of the Harcourts building, the Environment Court should have considered the risks to public safety of nothing being done to the building until 2027, given Lambton Quay’s inability to comply with the “Earthquake-Prone Building Notice”. The High Court found that by not fully considering this issue, the Environment Court had failed to take into account a relevant and important matter, which was a material error of law. 

Comment

This case provides useful guidance about the interaction between what may appear to be contradictory provisions of the RMA and Building Acts. There are undoubtedly many buildings (both commercial and residential) throughout the country with recognised historic values, but which present significant seismic risk (often due to their historic nature), to which this decision may be applicable.

Striking the appropriate balance between public safety and historic values has been a particularly relevant issue since the Christchurch earthquakes, as further demonstrated by the introduction of the Building (Earthquake-prone Buildings) Amendment Bill 2013 (Bill) on 9 December 2013. The Bill had its first reading on 5 March 2014, and is now before the Local Government and Environment Select Committee. The Committee is currently due to report back on the Bill by 5 September 2014. As introduced, the Bill (inter alia) requires:

  • territorial authorities to complete a seismic assessment of all non-residential and multi-unit, multi-storey residential buildings in their areas within five years of the legislation being passed; and
  • following such assessments, earthquake-prone buildings to be strengthened or demolished within 15 years (with some buildings, including Category 1 heritage buildings, potentially eligible for exemptions and/or extensions to this timeframe).

The Lambton Quay case has been remitted back to the Environment Court for re-hearing in light of the High Court’s findings. The re-hearing is to take place in mid-August. Developments with respect to the re-hearing, and Bill, are awaited with interest.

Posted on April 10, 2015 and filed under Policy.