A year on from Christchurch’s 22 February 2011 earthquake, legal responsibility for earthquake-proofing buildings is a hot topic.

One of the high-profile buildings to collapse, the Canterbury Television Building, was recently reported to be sub-standard in terms of Building Code requirements at the time of its construction. In particular, the combination of asymmetrical walls and non-ductile columns is said to have meant that the CTV Building was unable to withstand the stress of the 6.3 magnitude earthquake.

A Technical Investigation into the Structural Performance of Buildings has been undertaken by the Department of Building and Housing. The Investigation reported on the failure of the Pyne Gould Corporation, Forsyth Barr, Hotel Grand Chancellor and CTV buildings. The Expert Panel made a series of recommendations which the Department expects will lead to legislative changes, influencing the way that buildings are designed and constructed in the future. The Police and the Institution of Professional Engineers are considering the report and the Department also urged local councils to take it into account when devising their own earthquake response policies. The Department is now reviewing the structural soundness of a further 352 buildings in Auckland, Christchurch and Wellington, and estimates that approximately 130 of those buildings would present a safety risk in the event of an earthquake. Auckland Council has independently assessed 1,400 buildings, and will continue working through its list of potentially earthquake-prone buildings over the next four years.

In addition, the Canterbury Earthquakes Royal Commission of inquiry was established in May 2011 to report on the causes of building failure, as well as the legal and best-practice requirements for buildings in New Zealand’s Central Business Districts. The Commission's final report must be delivered to the Governor-General by 12 November 2012. As part of the investigation, a public hearing lasting up to 5 weeks will be held beginning in June 2012 to ascertain why the CTV Building collapsed. The findings in the Technical Investigation report will be contested during this hearing.

These reviews have had a ripple-effect in other sectors. We are aware of private building owners and occupiers commissioning engineering firms and insurance companies to assess whether their buildings are ‘earthquake-prone’,[1] a term used to describe buildings with strength less than 33% of the AS/NZS 1170.5:2004 seismic loading standard. In the event that a building is deemed to be ‘earthquake-prone’, there is a requirement to undertake structural works to bring the building up to at least 33% of code requirements. The time frame for completing these works is set out in each territorial authority policy. In Auckland, the Council has adopted a flexible approach, and will discuss and agree upon a course of action and timeframe for alteration with the owner of any earthquake-prone building. Buildings deemed to be ‘dangerous buildings’ will be subject to much shorter time frames.

Different degrees of compliance with the Building Code are required depending on the age and type of building in question, and the standards in place at the time of its construction. Buildings that fully complied with the relevant regulatory standards at the time of construction may still need further work undertaken. Some Councils have indicated they may require a higher standard of compliance than that prescribed by the Building Act, although questions remain over whether they can require works above the statutory minimum.

The issue of who has legal responsibility for earthquake-prone buildings can become complex for building owners and employers. In some instances, both the owner of an earthquake-prone building and a lessee/employer whose staff occupy the building have specific obligations under the Health and Safety in Employment Act. In that case, both the building owner and the employer may be liable for any hazard posed by the building.

Earthquake-strengthening works to historic buildings are potentially more complex again, as the Resource Management Act and Historic Places Act contain additional requirements. These buildings also present difficulties due to the tension between heritage preservation and public safety.

Liability for structural building works is a complicated issue and one that is likely to come further into the spotlight in the near future. If you have concerns about a building that you own or occupy, contact one of the ChanceryGreen team for advice.

A prominent Queenstown tourism business was directed to pay $320,000 in a costs decision released just prior to Christmas. In 2010, Kawarau Jet Services Holdings Ltd and related company Clearwater Pursuits Ltd (the appellants) unsuccessfully appealed against a Queenstown Lakes District Council decision to grant consent to a new commercial jet boat operator, Queenstown Water Taxis Ltd (the applicant). The Court confirmed the consent, and reserved costs. The applicant and the Council subsequently filed applications for an award of 100% and 75% of their costs, respectively.

Costs arguments

The applicant and the Council contended that the appellants were trade competitors. They argued that it was the hope of protecting a commercial advantage, not a genuine interest in public safety, that motivated the appeal. The applicant cited the appellants’ lack of co-operation and the position adopted by many of their expert witnesses as factors increasing the length and expense of the hearing process.

The appellants acknowledged that they were trade competitors, but insisted their concern for public safety on the Kawarau River was genuine. While they acknowledged that the Court had been critical of their legal representatives and expert witnesses, they pointed out that their legal representatives had been replaced prior to the final hearing. The appellants argued that it would be wrong to penalise them (via an exacerbated costs award) for their previous counsel’s case management or witnesses’ lack of expertise.

The Environment Court’s decision

The Court found that the Council’s application was appropriately pitched at 75% of costs incurred. It directed the appellants to cover 75% of the applicant’s and Council’s costs (with the exception of the fees associated with one expert witness, which the appellants were required to indemnify in full). This amounted to $187,500 payable to the applicant and a further $133,000 to the Council.

The Court gave a strongly-worded critique of the appellants’ approach to the proceedings. It stated that their case was “filled with drama in a multitude of ways”, having been “advanced in a highly inappropriate manner, involving endeavours to frustrate the applicant’s case at every turn rather than engaging in practices encouraged by modern courts”. The appellants were criticised for extending the hearing by taking “virtually every possible point”, and giving “evidence that lacked accuracy and credibility”. The Court also criticised the appellants for failing to engage with the applicant on issues which were determined to have been reasonably capable of early settlement.

Ultimately, the Court expressed a view that the appellants’ interest was motivated by trade competition. Despite the 2009 RMA Amendments not being applicable in this case, the Court found that the appellants’ behaviour was in breach of principles found in pre-2009 case law, imposing a duty on trade competitors to act responsibly.

The Court also emphasised that expert witnesses must write their own evidence, and present it in an accurate, credible, and non-partisan way. The Court stressed the importance of adequately briefing expert witnesses about the duties placed on them by the Court’s Practice Note, enabling them to construct their evidence in accordance with it. The Court used the appellants’ failure to do so as an example of why parties are rightly liable for the “shortcomings” of their witnesses. The Court also found that it was appropriate to attribute responsibility for the misconduct of the appellants’ previous counsel to the appellants, noting that “[i]f there were to be no costs consequences on parties for such failings, the duties would frankly prove almost unenforceable”.

This decision is notable for the unusually high quantum of costs awarded. It also serves as a warning for parties to manage their case in a manner that doesn’t expose them to a significant cost award. It demonstrates, too, that the Courts will refuse to allow trade competitors to use thinly veiled arguments of public interest to protect or advance their commercial advantage.

Congratulations to Beca Environmental who found all of the words in our Christmas card word-finder!

Here is the full list of words for you to find.

We outline the key provisions of the NES for Soil Contamination, which comes into force on 1 January 2012.  The NES has important implications for both developers and prospective purchasers of land which is (or is supected to be) contaminated.

On 4 October, the Government introduced the Heritage New Zealand Pouhere Taonga Bill (the Bill) to Parliament. The broad aim of this Bill is to “re-balance heritage values against values associated with private ownership”.

We examine some of the key provisions of the recently released Draft Auckland Plan.

Following the failure of the Rudd administration’s Carbon Pollution Reduction Scheme, the Gillard Government has passed its ‘Clean Energy Plan’ through the Australian House of Representatives that will see Australian businesses facing a price on carbon from mid-2012 under a Carbon Pricing Mechanism (‘CPM’ or ‘Mechanism’). The CPM is the key feature of the Clean Energy Plan announced in July 2011, with other aspects including funding for the land-use sector, renewable energy projects, and increased energy efficiency. Progress of the legislation has been ‘fast tracked’ through Parliament and the Australian Government hopes to have them passed into law by the Senate in November 2011. Despite the initial success of the policy, there remains a high level of public and political opposition.  Together with the current global uncertainty regarding the future of an international framework post-2012, there may yet be further hurdles to establishing the CPM.

The New Zealand Government has introduced a consultation document to seek views on banning the use of certified emissions reduction units (CERs) from certain industrial gas projects due to concerns regarding the environmental integrity of such units.

This article examines the implications of the Aquaculture Legislation Amendment Bill (No 3), which came  into effect on 1 October 2011.

We summarise two recent Environment Court decisions where substantial costs awards were ordered, and comment on some key principles arising from those cases regarding costs and hearing procedure generally.

A number of landowners are having difficulties obtaining statutory declarations necessary to complete applications for ‘less than 50 hectare’ exemptions from the New Zealand Emissions Trading Scheme (NZ ETS). Time is running out as applications must be filed by 30 September 2011.  We examine the implications of this requirement below.

In this article we discuss the ETS Review Panel's report, entitled "Doing New Zealand's Fair Share".  

In early 2011, the Ministers for the Environment and Conservation called for public input on a Proposed National Policy Statement on Indigenous Biodiversity (Proposed NPS). A total of 426 submissions on the Proposed NPS are now being summarised by the Ministry. Following that, recommendations for the finalised NPS can be expected from the Minister.  If confirmed in its notified state, the document will have significant implications for councils throughout the country, as well as RMA decision-makers, private landowners and developers.

Resource consent has now been granted for Mighty River Power’s Turitea wind farm, near Palmerston North.

The Government has released the New Zealand Energy Strategy and the companion New Zealand Energy Efficiency and Conservation Strategy.  We detail the NZES.

Application deadlines under the NZ ETS are looming for owners of pre-1990 forest land.  We explain why it is important for pre-1990 forestry owners to be aware of whether they are eligible for either an exemption from the NZ ETS, or a 'free allocation' to obtain carbon credits from the Government. 

We summarise the key provisions of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill.  The Bill has been sent to Select Committee.  Please contact a member of our team if you would like further information on the Bill.

Amendments to the Resource Management Act as a result of the Resource Management (Simplifying and Streamlining) Act 2009 which removed blanket tree protection rules were at the time applauded by many developers and private landowners. We examine a recent case where those changes were tested by the Environment Court, and conclude that the removal of blanket tree protection rules is perhaps not as effective as first perceived it to be. Councils may not face the “long and expensive” task of changing the provisions within district plans, initially thought required to manage urban vegetation, provided they can show the trees intended to be protected are specified by virtue of one of the categories detailed by the Court.

In the first consideration of the 2009 amendments on trade competition, General Distributors (Progressive Enterprises) sought a declaration from the Environment Court that Foodstuffs Properties (Wellington) was in breach of the RMA by making a submission opposing its non-complying resource consent application to establish a new Countdown supermarket in Tawa. We set out our summary of the Environment Court decision on this important jurisdictional issue.

The Minister for the Environment, the Hon Dr Nick Smith, has released details of proposed legislation to manage the environmental effects of activities in New Zealand’s Exclusive Economic Zone. The Minister’s Office has obtained Cabinet approval to have Parliamentary Counsel draft the Exclusive Economic Zone and Extended Continental Shelf (Environmental Effects) Bill.