Wellington City Council v Lakhi Maa Ltd [2020] NZDC 26755

Published 21 April 2021

Application for order — authorisation to carry out seismic work — earthquake prone building — heritage building — eathquake strengthening notice — jurisdiction — power by inference — discretion — personal property rights — public safety — Wednesbury unreasonableness — Building Act 2004, ss 3, 7, 124, 126, 133AL & 133AS — Building (Earthquake-prone Buildings) Amendment Act 2016 — District Court Rules 2014 — Grubmayr v Bloxham [2004] NZAR 557 — Attorney-General (Canada) v Hallet & Carey Ltd [1952] AC 427 (PC) — Malborough District Council v Chaytor [1995] DCR 382 — Southland District Council v Barrett DC Invercargill CIV-2013-025-000241, 4 December 2013 — Christchurch City Council v Manning DC Christchurch CIV-2008-009-3471, 29 January 2009 — Rotorua District Council v Bhana DC Rotorua CIV-2013-063-000196, 19 July 2013 — Grey District Council v Jarden [2020] NZDC 20480. The applicant city council sought by way of originating application an order granting authorisation, pursuant to s 133AS of the Building Act ("the Act"), for it to undertake "seismic work" on a building belonging to the respondent. The respondent owned a hotel which had heritage status but had been identified as an earthquake prone building ("EPB"). Prior to the respondent purchasing the hotel, two notices that the building required earthquake strengthening had been issued and had not been complied with. Subsequent to purchase the respondent applied for resource consent to redevelop the section but later withdrew the application. Shortly after the current application was filed by the council the respondent applied for resource consent to demolish the building. The issue for determination was whether the Court could or should make an order authorising the council to carry out general, unspecified seismic work. The nature of the work was unspecified in the application but could range from demolition to retaining and strengthening the entire existing building. Research into options and pricing for those options was required, which would also require time and money. Counsel for the council submitted that an inference could be drawn from the fact that s 133AS applications were by way of originating application so Parliament did not intend the Court to consider competing proposals as this procedure was unsuitable for resolving factual or expert opinion disputes. The Judge noted it was unlikely that Parliament had even turned its mind to procedural considerations as these were governed by the District Court Rules. In determining whether the Court had the power to grant such general orders, the Judge considered the recent amendments to the Act and noted that Parliament had not provided any guidance on how the Court's power may be exercised. The fact of the Court's power itself was a matter of inference by the provision that a territorial authority may apply to the Court for an order. The presence of the word "may" implied that the council had discretion whether to apply, but it was unclear whether the Court had discretion to refuse to make an order if the preconditions for obtaining one were satisfied. The Judge proceeded on the basis that there was judicial discretion, otherwise involving the Court at all would be unnecessary. The powers conferred by Parliament in s 133AS were broad, and exercise of the powers could result in significant interference with property rights and the imposition of financial liabilities. It is established law that interference with personal property rights must be the minimum necessary to achieve an overriding objective. The objective under s 133AS was public safety – protecting the public from EPB's – and the right to apply to the Court provided a safeguard to rights of citizens in relation to personal property. There were several cases where the Court had granted orders for work to be carried out on dangerous or unsanitary buildings pursuant to s 126 of the Act, but none where the work specified in the application was in such general terms. The Judge declined to make the order for work in the general terms specified by the applicant. Instead the Judge granted leave for the council to amend its application to specify the nature of the seismic work following research into the options available. Judgment Date: 22 December 2020.