Rice Speir https://ricespeir.co.nz Alternative Legal Thinking Mon, 24 Sep 2018 08:59:20 +0000 en-NZ hourly 1 https://wordpress.org/?v=4.9.8 https://ricespeir.co.nz/wp-content/uploads/2018/02/cropped-Rice-Speir-Favicon-32x32.png Rice Speir https://ricespeir.co.nz 32 32 Solicitor avoids summary judgment https://ricespeir.co.nz/solicitor-avoids-summary-judgment/ https://ricespeir.co.nz/solicitor-avoids-summary-judgment/#respond Mon, 24 Sep 2018 06:58:35 +0000 https://ricespeir.co.nz/?p=5182 Summary judgment can be an effective means of disposing of litigation before it ever reaches trial.  However, there are certain requirements that need to be carefully considered before launching such an application.  Recently, Rice Speir successfully defended its solicitor client in a summary judgment application brought in the High Court at Whangarei (Daisley v Whangarei…

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Summary judgment can be an effective means of disposing of litigation before it ever reaches trial.  However, there are certain requirements that need to be carefully considered before launching such an application.  Recently, Rice Speir successfully defended its solicitor client in a summary judgment application brought in the High Court at Whangarei (Daisley v Whangarei District Council & Peters).

The facts

In 2004 Mr Daisley purchased a rural property in Northland where a quarry was located.  The LIM that Mr Daisley obtained prior to his purchase made no reference to any consent issued in relation to the quarry on the property.  Nevertheless, Mr Daisley (through a company controlled by him) began operating the quarry shortly after the purchase.

The Whangarei District Council maintained that the quarrying operation was unconsented and unlawful.  Mr Daisley was issued with a series of abatement and infringement notices culminating in an enforcement order application.

Mr Daisley did not accept that his quarrying activities were unlawful and so, upon service of the order application, he instructed his solicitor to oppose the council’s application.  Mr Daisley’s solicitor arranged for a search of the council’s files which revealed an ancient land use consent relating to quarrying at the property.

The claim

Mr Daisley filed a claim in the High Court against the council and his then-solicitor.  The amount claimed is in excess of $35M.  Rice Speir is defending the solicitor.

Mr Daisley’s claim against his solicitor alleged that, after discovery of the consent, his solicitor failed to provide him with advice as to his legal options for holding the council to account when Mr Daisley had instructed his solicitor to do so.  The causes of action against the solicitor included negligence and breach of fiduciary duty.

Summary judgment

Earlier this year, Mr Daisley applied for summary judgment against both the council and his solicitor.  The application sought judgment on liability only (not damages).

Because Mr Daisley had not sought summary judgment when he first filed his claim, his application for summary judgment could only be filed with the Court’s permission.  Practically speaking, this required Mr Daisley to explain why the application was being made almost three years after he first filed his claim.  Mr Daisley could not adequately explain this delay.  In addition, Mr Daisley only wanted summary judgment on some of his causes of action and not others.  As a result, even if Mr Daisley had been successful in his application, the Court would still need to decide issues of liability at trial.

Mr Daisley failed to satisfy the Court that either the council or the solicitor had no arguable defences to the claims against them – the essential criteria for a successful summary judgment application.

In terms of Mr Daisley’s claim against the solicitor, the Court first observed that a successful claim against him was reliant upon the Court being satisfied that the claims against the council would succeed, which it was not.  In addition, there were significant factual disagreements between the solicitor and Mr Daisley – yet a further feature of the claim that meant it was not appropriate for summary judgment.  The Court referred to written correspondence that failed to support Mr Daisley’s position that he had given the instructions to his solicitor which he now claimed he had.

Ordinarily, costs would not be awarded following a summary judgment application.  However, the Court determined that the merits of Mr Daisley’s application were such that he should pay the solicitor and the council costs associated with defending the summary judgment application.

Take away points

Whether as a plaintiff or defendant, summary judgment applications can be an efficient and cost-effective means of disposing of litigation before trial.  However, Daisley is an important reminder of the high bar that must be reached before a court will give summary judgment.

Broadly speaking, at the very least defendants should not have arguable defences, the relevant law should be settled, and there should not be disagreements about significant facts.  The judgment in Daisley is also a reminder that, where appropriate, summary judgment applications need to be pursued promptly.  These applications do not have to be made at the time the claim if first filed, but unexplained and lengthy delays could be fatal to a court giving permission to file an application at a later time.

Parties should carefully consider whether summary judgment is a realistic possibility.  The consequences of pursuing summary judgment where a party cannot satisfy the basic requirements of the application can be costly.  As demonstrated in Daisley such costs can include not only the party’s own costs but also the costs of the party required to respond to the application.  A cost-saving exercise can quickly become a cost-adding exercise.

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A welcome initiative from MBIE on the “gap” in B2 https://ricespeir.co.nz/mind-the-gap/ https://ricespeir.co.nz/mind-the-gap/#respond Sun, 23 Sep 2018 05:53:00 +0000 https://ricespeir.co.nz/?p=5176 In May 2018, at the Building Officials Institute of New Zealand Conference, Helen Rice and I convened a panel discussion on an issue facing most councils in New Zealand – design engineers refusing to certify compliance with clause B2 of the Building Code. We explained that the situation is a directive from IPENZ and ACENZ,…

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In May 2018, at the Building Officials Institute of New Zealand Conference, Helen Rice and I convened a panel discussion on an issue facing most councils in New Zealand – design engineers refusing to certify compliance with clause B2 of the Building Code.

We explained that the situation is a directive from IPENZ and ACENZ, who consider that no engineer or producer statement author can show blanket compliance with clause B2 when a range of materials have been specified in a design.

Our question was, where does this leave councils?  In order to grant a building consent, councils must be satisfied on reasonable grounds that all of the building work will comply with the Code, including B2.  A building control officer doesn’t have the luxury to exclude certain materials from its decision and therefore why should design engineers, the experts in their fields, be able to play on a different wicket?

And what happens when things go wrong?  When a claim eventuates the design engineer will argue that it has no liability and it is the ratepayer that will be left to pick up the pieces.

In a somewhat heated debate, we took the position that the current state of B2 was unacceptable and invited MBIE to work with councils and the industry to bridge the gap.

 

Submissions sought by 21 September 2018

We were very pleased on 8 August 2018 to read MBIE’s Building Controls Update that identified MBIE is seeking feedback on proposals to amend a number of Acceptable Solutions and Verification Method, including Clause B2 Durability: B2/AS1.  In their Statement of proposals for amending Acceptable Solutions and Verification Methods MBIE says:

“The Government’s goal is a more efficient and productive building industry that builds it right the first time and stands behind the quality of its work.  To help achieve this, MBIE seeks to ensure that Acceptable Solutions and Verification Methods reflect the latest research, knowledge and building practices.  The proposed changes to some Acceptable Solutions and Verifications Methods are part of this work.”

In terms of B2/AS1 in particular:

“MBIE proposes to amend Acceptable Solution B2/AS1 to introduce a new Technical Specification to advise and clarify durability requirements for steel construction.  The advantages of doing this are that:

  • Current knowledge and practices should be reflected in the Acceptable Solution.
  • The Acceptable Solution would clearly specify requirements for corrosion protection.
  • Maintaining the Acceptable Solution will help consenting efficiency because steel protection measures will no longer need to be treated as an alternative solution proposal.”

MBIE invited written comments on the proposals and we know that a number of our clients intended to have their say.

Let’s hope that minding the gap in B2 is soon to be a thing of the past.

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A meaty issue for Land Meat New Zealand Limited https://ricespeir.co.nz/a-meaty-issue-for-land-meat-new-zealand-limited/ https://ricespeir.co.nz/a-meaty-issue-for-land-meat-new-zealand-limited/#respond Sun, 23 Sep 2018 05:47:25 +0000 https://ricespeir.co.nz/?p=5172 A recent sentencing decision demonstrates the difficulty for defendants hoping to establish successful defences to charges under the Resource Management Act 1991 (Manawatu-Wanganui Regional Council v Land Meat New Zealand Limited). Land Meat New Zealand Limited (Land Meat) had pleaded guilty to discharging a contaminant, being meat processing waste water, onto land in circumstances where…

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A recent sentencing decision demonstrates the difficulty for defendants hoping to establish successful defences to charges under the Resource Management Act 1991 (Manawatu-Wanganui Regional Council v Land Meat New Zealand Limited).

Land Meat New Zealand Limited (Land Meat) had pleaded guilty to discharging a contaminant, being meat processing waste water, onto land in circumstances where it may have entered water (i.e. breaching s 15(1)(b) of the RMA).  It sought to rely on s 341(2)(b) of the RMA which provides parties with a defence if it can be proved that the action/event to which the prosecution relates was beyond the control of the defendant and not reasonably foreseeable.  Land Meat was unsuccessful.

The Court held that, despite mitigating the effects expediently, it was nonetheless reasonably foreseeable that an offending discharge would occur if there was a system breakdown.  There were also measures available to Land Meat to prevent the discharges that occurred.

 

Facts

Land Meat operated a meat processing plant in an industrial area close to the Whanganui River.  As part of its processing operations, waste water flowed through a series of traps, filters, screens and a sump, separating out solids from the water.  The water flowed from the plant’s waste water system to the Whanganui District Council’s trade waste system, which was monitored by the council.

On 2 March 2017, the council while undertaking its routine monitoring, observed that there was no effluent coming through the flume from the plant to the council system.  This indicated that there was a system break-down.  The council went to the plant and saw waste water running out of the area housing the sump and followed the flow to the River.

Land Meat’s explanation was:

  1. The sump was usually serviced by two pumps; a primary and back-up pump. The primary pump had failed the previous month and was out for repair.  The backup pump was the only pump in operation on the day in question, though an electric pump had been hired as a temporary back-up while the primary pump was being repaired.
  2. On the day the discharge occurred the backup pump failed due to a build-up of fat solids. This was quickly identified and processing stopped.  The electric hire pump was installed so that processing could re-start.
  3. The electric hire pump then failed as a result of a staff member accidently kicking the cable – this was sucked into the pump and the pump failed.

Strict liability and defences

Offences under the RMA are strict liability.  However, s 341(2)(b) provides a defence in circumstances where:

  1. The action or event to which the prosecution relates was due to an event beyond the control of the defendant, including natural disaster, mechanical failure, or sabotage; and
  2. The action or event could not reasonably have been foreseen or provided against by the defendant; and
  3. The effects of the action or event were adequately mitigated or remedied by the defendant after it occurred.

The defendant must give written notice of its intention to raise this defence within seven days of service of the charging documents.

In this case, Land Meat raised the defence in time.  It was also generally accepted that Land Meat had adequately mitigated the effects.  The issues remaining were therefore whether the event or action was beyond the control of Land Meat and not reasonably foreseeable.

 

Decision

The Court did not accept that the discharge was beyond Land Meat’s control.  Firstly, it was not true that Land Meats had to contend with the simultaneous failure of three separate pumps.  In fact only two pumps had failed on the date of the incident.  Secondly, the first pump had failed because of the build-up of fat solids.  Second, no evidence was given explaining why the build-up of solids that are an ordinary component of the waste water and that requires on-going monitoring was a matter beyond the control of Land Meat.  A maintenance regime should have been in place to avoid this occurring.  Finally, the failure of the third electric hire pump was not beyond the control of Land Meat– adequately securing or protecting the power cable to this electric pump could well have avoided the pump’s failure and in turn the discharge.

The Court proceeded to find that it was also foreseeable that such a discharge could occur and that Land Meat should have had measures in place to deal with a spillage.  Land Meat acknowledged that any wastewater would flow onto hard surfaces surrounding the sump and, because of the geography of the site, any such discharge would then flow, as storm-water did, to the River.  There were options available to Land Meat to prevent any such flows entering the River (for example, bunding of the area and adequate maintenance of the pumps to prevent fat build-ups).

The Court held that Land Meat failed to make out the defence.

 

Take home points

The threshold for proving a defence, despite only being on the balance of probabilities, is high.  There are very few examples of defendants successfully making out this defence.  Councils should accordingly take a robust approach to any suggestion that there may be difficulties establishing liability for offending on the potentially availability of this defence.

Councils should be aware that the timeframe for a defendant being able to raise a defence is short.  The clock starts ticking once charging documents have been served.  A defendant attempting to raise the defence out of time will need to establish a good basis for the delay.  Councils should also not accept notices from defendants raising the defences that do not adequately meet the requirements of sub-section (3) – the defendant needs to specifically set out the facts relied upon as establishing each of the three elements of the defence.

Finally, Land Meat is a reminder that the reasonable foreseeability analysis of the defence is focussed on the event with which the prosecution is concerned (the discharge of waste water from the treatment area) rather that the specific failure which caused the event (failure of the pump).  Practically speaking, this means that a defendant needs to consider how to mitigate the effects of an action or event that is beyond its control and ensure that adequate protections are in place to address such eventualities.

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Can’t see the wood for the trees – part 2 https://ricespeir.co.nz/cant-see-the-wood-for-the-trees-part-2/ https://ricespeir.co.nz/cant-see-the-wood-for-the-trees-part-2/#respond Sun, 23 Sep 2018 05:37:12 +0000 https://ricespeir.co.nz/?p=5164 In our March 2018 newsletter we discussed the District Court case where the Queenstown Lakes District Council was found not responsible for damage to motel units caused by a falling tree located on a council reserve.  The motel owner has now successfully appealed that decision to the High Court, which found the council liable for…

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In our March 2018 newsletter we discussed the District Court case where the Queenstown Lakes District Council was found not responsible for damage to motel units caused by a falling tree located on a council reserve.  The motel owner has now successfully appealed that decision to the High Court, which found the council liable for the damage the tree caused (Plaza Investments Ltd v Queenstown Lakes District Council).  Stand by for part 3 as we understand the council is currently considering an appeal.  Read on for important learnings from this decision.

This is a tough decision for councils.  It is hot on the heels of another tough decision where the Gisborne District Council was found responsible to a landowner in relation to a fire that started in pampas grass on the council’s land (deliberately started by an unknown third party) and then spread to the plaintiff’s land causing widespread damage.

 

Summary of the District and High Courts’ findings

The District Court had found no liability for the Queenstown Lakes District Council for the damage to the motel units, concluding that the council owed a duty of care to undertake inspection and maintenance of the trees on the council’s reserve, but that it had not breached its duty as the steps it had taken were reasonable.

The case was successfully appealed to the High Court, which found the council responsible for the damage that the 30 metre tall 120 year old Lombardy poplar tree (the Tree) had caused to the motel units.  The council’s duty of care was stated by the High Court as a duty to take “reasonable steps” to prevent or minimise known hazards on council’s land from causing damage to its proximate neighbours.  The Court said this is an objective test – the question is whether the council took the same steps that a reasonable local authority with similar hazards, powers and resources would have taken in the circumstances.

 

The facts

A quick reminder of the important facts of this case – important because the facts determined for the High Court whether the council had acted “reasonably” to prevent or minimise known hazards on council’s land from causing damage to its proximate neighbours and whether the council’s actions/omissions caused the Tree to fall.

During high winds on 17 January 2014 the Tree snapped just above its root crown.  The Tree landed partly on the road and partly on the plaintiff’s motel, damaging the eastern end of the motel units, its signage, a garden and some cars.  It was accepted that the total cost to repair the damage was $63,577.72.

The Tree was one of a group of tall Lombardy poplars in the reserve, scheduled as heritage trees in the District Plan in view of their historic significance and contribution to the amenity values of the reserve.  In 2004, a similar tree fell in the reserve, landing on an abandoned car.  Other trees had been felled by the council on advice of arborists, due to their poor state and the potential safety hazard they posed.  In 2009 two trees fell on Queenstown’s Lower Shotover Road, one of which killed a person.

After the Tree fell on the motel in 2014, inspection of the Tree revealed its heart was significantly compromised by white rot in the vicinity of the break.  A central matter of dispute concerned whether the council employed an appropriate method of inspection and testing of the Tree prior to its fall.

The different methods of testing discussed in the case were:

  1. Visual tree assessment, which does not involve intrusion into the tree trunk. This involves visual examination by a trained arborist for any relevant visually evident changes that could be an indicator of the tree’s health and condition; and
  2. Internal methods of testing that, if used, would be typically used in conjunction with visual testing such as “a picus tomograph” involving mechanical intrusion through the bark to test the relevant part of the heart wood or “resistograph” involving driving fine needles into the heart wood to locate and graph areas of decay, hollows, cracks, ring structure and other possible structural integrity issues.

In 2005 and 2007 the council’s contractors undertook internal testing of the trees in the Park.  The 2007 tests identified that the Tree had “dozy timber” but the report writer did not recommend any of the trees in the reserve be felled.  Following the 2007 testing, the council decided that it would carry out regular visual only inspections of the trees in the reserve as part of its regular tree maintenance programme.

No further internal testing was carried out between 2007 and when the Tree fell.  However the last arborist’s visual inspection was four months before the Tree fell on the plaintiff’s motel.  The council’s record of this last inspection recorded the Tree as presenting to the council’s contractor as one of the better specimens in the reserve.

 

What is the council’s duty of care?

The Court considered that the District Court had incorrectly “narrowed” the council’s duty of care to inspection and maintenance of trees only.  The High Court expanded the duty to include taking reasonable steps to prevent or minimise known hazards on council’s land from causing damage to its proximate neighbours.

The High Court accepted the District Court was correct in defining the standard of care the council should have met as objective, being what a reasonable local authority in the council’s position in 2014 would have done.  But “the reasonable local authority” against which the council ought to be measured had to have similar hazards (i.e. veteran trees with known defects and risk), powers and resources.

The Court said that the council would have satisfied its duty of care to manage risks on its own land had it annually monitored its aged poplar trees for decay or decline including internal testing from time to time.

 

Did the council breach its duty of care?

The key consideration for the High Court in deciding this question was whether the adherence by the council to its District Tree Policy was reasonable when managing “high risk trees”.

The Court accepted that adherence to the District Tree Policy may be suitable for the care and control of trees generally.  However aged poplars were a known hazard to the council.  Despite this the District Tree Policy did not address how the council ought to prevent or minimise the risk such trees posed.

Adherence to its own District Tree Policy without doing more to manage trees that were a known risk was a not a “get out of jail free” card for the council.

What should the council have done to properly manage the risks arising from the veteran Poplar trees?

The High Court criticised the District Court’s approach to both the factual and expert evidence and disagreed with the conclusions reached.

The High Court after reviewing the evidence concluded that there was only one detailed record (from 2010) of visual inspections for each tree carried out after 2007.  Without more the Court said that the visual inspections were inadequate to test for decay and fell short of meeting the council’s duty to assess real risk.  In reaching this conclusion the Court said that the 2007 testing and report recommended annual monitoring and identified that the Tree was “dozy” (i.e. had early decay).  Importantly, the council was also well aware of the risks these types of trees posed in its area.

The Court pointed out that the council had carried out internal testing in 2009 to similar trees in another area and this exercise should have demonstrated to the council the probative value of internal testing vs. visual inspections.

The Court said that, had the council taken reasonable steps to minimise the risks associated with the aged Poplar trees (including the Tree), the Tree’s decay most likely would have been detected and its fall prevented.

 

The learnings – key points to note

If there are trees with known defects on council land that could cause damage to neighbouring properties, those known hazards need to be managed commensurate with the relevant council’s powers and resources.  Adherence to any particular council policy (in this case the District Tree Policy) alone will not be enough where the policy is drafted in general terms and focuses on general maintenance and inspection but does not specifically manage known hazards (here, trees with known defects).

What are your known risks on council land?  Pampas grass?  Veteran poplars?  Something else entirely?  This decision is a reminder that the High Court will likely find the council responsible if it does not proactively manage known risks on its land, including to ensure that the known risks do not cause damage to adjoining land.

If the council is relying on existing policies to manage known risks, we recommend that the council reviews its policies to confirm they are up-to-date and expressly set out how known risks are to be actively managed.  Policies should not be generic.  They need to recognise and address specific known hazards and risks.  Once councils have confirmed their policies are robust, then they need to ensure that the policies are adhered to and that their adherence is well documented and accessible for others to check.

If you have any concerns about your policies, give us a call – we are experienced in assessing councils’ regulatory compliance and will be able to assist to ensure your council is in the best possible position if the worst should happen to show it acted reasonably in the circumstances.

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The new workplace hazard for Council officers – online attacks https://ricespeir.co.nz/online-attacks/ https://ricespeir.co.nz/online-attacks/#respond Wed, 12 Sep 2018 01:33:15 +0000 https://ricespeir.co.nz/?p=5115 For those in positions of official responsibility, and particularly in local government, the prospect of public frustration over certain decisions is ever-present.  People forget that a council officer is simply doing his or her job when they are faced with delays and expense from a problematic project.  It is easy for a council officer to…

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For those in positions of official responsibility, and particularly in local government, the prospect of public frustration over certain decisions is ever-present.  People forget that a council officer is simply doing his or her job when they are faced with delays and expense from a problematic project.  It is easy for a council officer to become the target of frustration.

In the past, councils may have received disgruntled letters or perhaps an irate phone call.  However, in the digital age where criticism can be given from behind a keyboard and most people and organisations have an “online presence”, the ease with which online attacks can be launched and the extent to which they can be publicised are significantly greater than more traditional forms of criticism.

Of course a certain level of criticism is to be expected as a public official.  It comes with the territory.  However, in such circumstances, the criticism should be focussed on the facts and not on the individual.  A decision may be justifiably challenged and disputed, but a personal attack on the decision-maker is inappropriate.

An individual finding themselves in a situation where work-related online criticism has taken an upsetting personal, public, and persistent turn need not simply grin and bear it.  There are legal avenues available and it is possible to both prevent and, if necessary, remove unwarranted and harmful digital criticism.

 

The legal options

Both the Harassment Act 1997 (HA) and the Harmful Digital Communications Act 2015 (HDCA) allow an individual to apply to the court for orders preventing online harassment.  Recent changes to the HA have brought this piece of legislation up-to-date for a digital age. The HDCA is fairly new legislation that was introduced with the specific purpose of preventing harm to individuals caused by digital communications.

Both the HA and the HDCA recognise the importance of freedom of expression, in that broadly-speaking individuals should be able to express their views publically, even if those views are negative or critical.  However, there is a line that can be crossed. Where conduct amounts to harassment or harmful digital communication as defined in the legislation, court orders can be obtained to prevent the conduct in question from continuing.

The Harassment Act

Online harassment under the HA might take the form of direct electronic contact (email or instant messaging, for example) with another person.  For such direct contact to amount to harassment it needs to establish a pattern of behaviour. In other words, the electronic contact needs to have occurred on at least two or more occasions within a year.

Online harassment under the HA can also arise from a single act if that single act continues to have an effect over a longer period.  In terms of online communications, an instance of this sort of conduct could be posting offensive material about another person on electronic media where that person can see it.  An example would be person A posting a statement directed at person B on a Facebook group page.  It does not matter that the post was not communicated or sent directly to person B, as long as person A knows there is a likelihood that person B will see what was posted, or that it will be brought to their attention.

Once harassment is established, a court can only make an order stopping the harassment if it is satisfied the order is necessary to protect the applicant (person B) from further harassment.  The court also needs to be satisfied that the harassment is causing the applicant distress, and that a reasonable person in the same position would feel the same way.  Finally, the degree of distress experienced needs to be reasonably serious so that a court order preventing the harassment is justified.

The Harmful Digital Communications Act

The HDCA identifies a list of ten “communication principles” that apply to digital communications Digital communication is defined broadly as any form of electronic communication.  These principles essentially state what a digital communication should not be, such as communications that disclose sensitive personal information, are threatening or indecent, are used to harass, or that make false allegations.

Where a digital communication breaches the communication principles, it will qualify as harmful.  However, before a court will make an order stopping such a communication, it needs to be satisfied that the breach of the communication principles is a serious one and that the breach has caused, or is likely to cause, harm to an individual.  Harm means serious emotional distress.

There is, however, one further hurdle to obtaining a court order under the HDCA – any complaint under the HDCA must first be referred to the government-approved agency for consideration.  The current approved agency is Netsafe.  Netsafe must be given a reasonable opportunity to assess a complaint and decide what (if any) action to take before an application is made to any court.  A referral to Netsafe can be made easily online through their website (netsafe.org.nz).

 

Take away points

Within the realm of digital communications, if conduct amounts to harassment under the HA it is likely to also be a harmful digital communication for the purposes of the HDCA.

The communication principles under the HDCA potentially cover a wider breadth of conduct that the HA. From the online perspective, the HDCA was certainly tailor-made for digital communications. However, the level of harm that needs to be established before the provisions of the HDCA apply (serious emotional harm) is potentially higher than under the HA.  That being said, an individual applying for an order under the HA still needs to satisfy the court that the degree of distress they are experiencing justifies the court’s intervention. The endpoint may therefore be that in terms of the harm that needs to be shown, there is little practical difference between the HA and HDCA.

The important point is that New Zealanders are now pretty well catered for when it comes to legal protections against online abuse.

If the circumstances require urgent response, proceeding under the HDCA may be unattractive because of the initial delay associated with Netsafe assessing a complaint before an application to the court can be made.  That being said, our experience with Netsafe to date has been a relatively positive one and there is of course the possibility of Netsafe resolving the complaint without any further court involvement.

In particularly urgent and serious situations, it may be that the best way to ensure an effective and speedy remedy is to proceed down both paths simultaneously – filing an application with the court under the HA while at the same time making a referral to Netsafe under the HDCA.

In concluding, we can briefly return to our opening comments concerning the official personally attacked for simply doing his or her job.  While the demands and expectations of the job might mean that an official may need to establish a higher level of distress than a private individual in the same circumstances, that does not mean public figures should put up with behaviour that amounts to harassment or harmful digital communications.  This legislation provides quick and affordable ways to help people in New Zealand stop harmful online personal criticism and attack.  Public officials should be as ready to rely on this legislation to protect their reputation and well-being as any other member of the community.  We can help you.

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Guidance on council decision-making functions https://ricespeir.co.nz/guidance-on-council-decision-making-functions/ https://ricespeir.co.nz/guidance-on-council-decision-making-functions/#respond Tue, 05 Jun 2018 09:00:05 +0000 https://ricespeir.co.nz/?p=5063 The recent decision of Enterprise Miramar Peninsular Incorporated v Wellington City Council  [2018] NZHC 614 has provided some interesting guidance around council decision-making functions under the HASHAA and the RMA, particularly in relation to compliance with statutory timeframes and bias. The decision suggests: Apparent mandatory statutory timeframes, at least in HASHAA context, are in fact…

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The recent decision of Enterprise Miramar Peninsular Incorporated v Wellington City Council  [2018] NZHC 614 has provided some interesting guidance around council decision-making functions under the HASHAA and the RMA, particularly in relation to compliance with statutory timeframes and bias.

The decision suggests:

  • Apparent mandatory statutory timeframes, at least in HASHAA context, are in fact not as mandatory as they seem (in the sense that non-compliance invalidates the ultimate decision), provided that no party is prejudiced by the non-compliance.
  • Broadly speaking in the context of HASHAA and the RMA, the decision of a council to conduct its decision-making power is more administrative in nature than it is quasi-judicial.

HASHAA

The Housing Accords and Special Housing Areas Act 2013 (HASHAA) was designed to increase land and housing supply by allowing local authorities to grant resource consents under s 25 of HASHAA more easily than via the Resource Management Act 1991 (RMA).

The significant difference is that under HASHAA, the local authority is not under a duty to notify anyone of the fact that someone has made an application.  It may, at its own discretion, decide to notify owners of adjacent land or anyone it deems directly affected.  This decision to notify must be made within 10 working days of receiving an application.  Within 20 working days of receiving the application, the local authority must notify all parties whether or not the application has been accepted.

Background

Wellington City Council (WCC) was a part-owner of a parcel of unused land in the Shelly Bay area (Shelly Bay land).  WCC had advertised this area for sale as land for future development.

The Wellington Company Limited (TWC) was a large investment company, specialising in property development.  TWC arranged to purchase the Shelly Bay land from WCC and others, and then made an application under HASHAA for resource consent to develop the area into multiple housing complexes.

WCC processed this application itself through its employees, and did not notify anyone other than TWC of receipt of the application.  WCC later granted the application (with some conditions), again only notifying TWC.

Enterprise Miramar Peninsula Inc (the applicant) was an incorporation designed to protect and develop the Miramar area (including Shelly Bay).  The applicant was opposed to the resource consent issued to TWC, and sought judicial review of the decision granting the resource consent on the following two grounds:

  1. Non-compliance with the HASHAA procedural rules; and
  2. WCC’s decision to act as the decision-maker of the application (it was alleged that WCC was inherently biased and conflicted because of its role as landowner).

Non-compliance with the HASHAA procedural rules

The applicant argued that failure to comply with the HASHAA statutory timeframes automatically invalidated the decision to grant the resource consent.  The applicant relied in particular on the following:

  1. Within 10 working days, the local authority must decide whether to notify any parties it considers affected, of a resource consent application. It did not.
  2. Within 20 working days from receiving an application, the decision/outcome of the application must be notified to affected parties. That notification in this case took over 100 days.

In response to these claims by the applicant, the Court held that while the failure to comply with the mandatory timeframes was regrettable, it did not automatically invalidate a decision.  There were further factors that required consideration:

  1. The nature of the provisions;
  2. The degree of non-compliance; and
  3. The effect of the non-compliance.

The Court placed significant weight on the fact that the applicant was not an affected party and would not have been notified at either of the above two stages.  The non-compliance therefore had minimal, if any, effect on the applicant.  In addition, other provisions of the RMA indicated that non-compliance with timeframes was not intended to be fatal to the ultimate decision.  This aspect of the appeal was dismissed.

WCC’s choice to act as decision-maker of the application

The applicant alleged that because WCC owned and advertised for sale part of the Shelly Bay land, it had a financial interest in the resource consent and therefore should have contracted independent commissioners to make this decision.  By not doing so, the applicant alleged bias and conflict of interest on the part of WCC.

The Court observed that the statutory context in which WCC exercised its powers was key.  Local authorities are tasked with dual functions; regulatory and non-regulatory.  In view of this dual function, complete impartiality cannot be expected of a local authority in the same way as other decision-making bodies, such as the Court.  Therefore, while Judges will be disqualified for merely the appearance of bias, so long as a decision-maker in a local authority maintains an open mind, its decision will not be invalid.  Similarly, although a local authority may receive a pecuniary benefit after making a decision to grant resource consent, that decision will not be automatically invalid.  Provided the decision maker gives genuine and professional consideration to the application and is not influenced by commercial gain there will be no conflict.  This is a different situation to where, for example, an individual councillor may have a personal pecuniary interest.

Discussion on independent commissioners

The judgment went into further detail on a council outsourcing its decision-making ability to independent commissioners.

Section 76(2)(d) of HASHAA specifically incorporates s 34A of the RMA, which allows councils to delegate powers and functions to employees and other persons.  The applicant argued that this section was designed as a recusal mechanism for councils where it has have a conflict of interest.

The Court did not accept this argument and said that the purpose of this section was not to act as a recusal mechanism, but to assist councils in obtaining additional resources where it did not have capacity or the relevant expertise.

Take home points

Apparent mandatory statutory timeframes, at least in HASHAA context, are in fact not as mandatory as they seem (in the sense that non-compliance invalidates the ultimate decision), provided that no party is prejudiced by the non-compliance.

Broadly speaking in the context of HASHAA and the RMA, the decision of a council to conduct its decision-making power is more administrative in nature than it is quasi-judicial.  In particular:

  1. Both HASHAA and the RMA anticipate the dual role of councils;
  2. Section 34A‘s primary purpose is to address resource constraints;
  3. There is no indication that s 34A should be invoked where there is a perceived bias or potential conflict of interest on the part of a council; and
  4. A council is under no obligation to appoint independent commissioners instead of delegating its powers to its own employees.

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Dangerous and affected buildings in 2018 https://ricespeir.co.nz/dangerous-and-affected-buildings-in-2018/ https://ricespeir.co.nz/dangerous-and-affected-buildings-in-2018/#respond Tue, 05 Jun 2018 07:00:11 +0000 https://ricespeir.co.nz/?p=5073 Rice Speir’s recent involvement in the “Bella Vista Homes” situation in Tauranga has prompted this update on the dangerous and affected building regime in the Building Act 2004 (the Act).  As media reports suggest it is unprecedented for 21 homes to have been issued with dangerous and/or affected building notices at the same time.  In addition,…

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Rice Speir’s recent involvement in the “Bella Vista Homes” situation in Tauranga has prompted this update on the dangerous and affected building regime in the Building Act 2004 (the Act).  As media reports suggest it is unprecedented for 21 homes to have been issued with dangerous and/or affected building notices at the same time.  In addition, this case appears to be the first documented use of the “affected building” classification that was introduced to the Act in 2013 following the Canterbury earthquakes.

Our take home points

  • The dangerous and/or affected building provisions are for the protection of the public. They should be considered in a fair, large and liberal way.
  • Councils everyday deal with real people with real problems. As regulators operating within a statutory framework, councils work at the edge with short notice and in difficult situations.  We know from our experience working with councils that they go the extra mile and they care.
  • Just because notices aren’t often issued does not mean that they shouldn’t be in appropriate situations.
  • The decision to issue notices can be urgent and is sometimes finely balanced. Not everyone will agree with your logic but you need to be at your best when your best is needed.
  • Your thinking and preparation of the notices will be scrutinised at a later time by others without context. In these times, you need to be thinking clearly and recording your steps in a logical way.
  • You are not alone in making these tough decisions. You belong to a team that must come together in order to achieve the appropriate outcomes.

What is a dangerous building?

The dangerous building provisions of the Act have not received a lot of judicial consideration.  Most of the reported cases are pre-2004 and therefore are only of limited value.  The overriding objective of the regime however is the protection of the public.  The starting point in considering whether a building is dangerous is 121 of the Act.  The section is to be interpreted in a fair, large, and liberal way.

121 Meaning of dangerous building

  • A building is dangerous for the purposes of this Act if,–
  • In the ordinary course of events (excluding the occurrence of an earthquake), the building is likely to cause –
    • Injury or death (whether by collapse or otherwise) to any persons in it or to person on other property; or
    • Damage to other property

What is “in the ordinary course of events”?

The District Court has determined the phrase “in the ordinary course of events” to mean:

The usual gamut of climatic occurrences likely to be encountered in this country.  Such climatic occurrences would include the range of temperature variations and different climatic conditions that are likely to be encountered in the course of a year.  For example, dry and wet spells, heavy downpours, winter storms, equinoctial gales.  The phrase would not include, however, incidents not normally occurring such as for example 50 year floods and cyclones.

Local conditions can also be factored into the consideration.  For example, Rotorua has a more corrosive atmosphere given its unique climactic conditions and, arguably, Tauranga is more prone to slips than some other parts of New Zealand as evidenced by the fact that a 2005 storm event caused over 2000 slips in the area.

What is “likely to cause injury or death”?

The phrase “likely to cause injury or death” has been considered on several occasions, albeit some time ago.  In one case it was held that “likely” does not mean “probable” as that put the test too high.  On the other hand a mere possibility is not enough.

Essentially, what is required is “a reasonable consequence or [something which] could well happen” or “the reasonable probabilities are that the building will cause injury or death unless it gets timeous attention.”

What sort of “damage to other property” is anticipated?

It is often overlooked that a building doesn’t have to cause injury or death to be dangerous.  Damage to other property is an equal trigger.  Therefore, you have to be able to point to one building being a risk to another building nearby.  This creates an interesting overlap with the “affected building” regime that was introduced in 2013.

What is an affected building?

In 2013 the Building Amendment Act introduced a new category of “affected building”.  The section has its origins in the Orders in Council enacted to assist the Canterbury region to deal with dangerous buildings following the 2010/2011 earthquakes.

Section 121A provides that councils can issue dangerous building notices in respect of buildings that may not be dangerous buildings in themselves but are “affected” by another building.  The affected building must be adjacent to, adjoining, or nearby a dangerous building.

Perhaps the most common situation where this could arise (as was the case with Bella Vista) is roofs lifting under gale force winds and the potential for non-dangerous buildings “down wind” to be affected.  Similarly, where buildings are perched on cliffs for example there is the potential for an otherwise safe building below to be affected due to the risk of the building above collapsing and causing danger to people or property below.

What powers are available to the council when it is satisfied that a building is dangerous and/or affected?

If satisfied that a building is dangerous or affected, a council may attach a notice warning people not to approach the building; fence off access to the building; issue a notice restricting entry to a building; and/or give notice requiring work to be done to reduce or remove the danger.

There is no particular process or procedure that must be followed for the issuance of a dangerous building notice.  No form is prescribed and there is not even a requirement that the notice be signed.  However, where a notice requires work to be carried out on the dangerous building, certain criteria must be met.  The council can apply to the District Court for an order authorising it to carry out the building work if the work is not completed or not proceeding with reasonable speed.

If a council has identified a building as being dangerous or affected, it is an offence for a person to use or occupy, or to permit another person to use or occupy that building.

Conclusion

The dangerous and/or affected building provisions in the Act are not often used but that doesn’t mean they shouldn’t be in appropriate situations.  Remember, the provisions are designed for the protection of the public and should be interpreted in a fair, large and liberal way.

The circumstances around dangerousness can present urgently and the decision is sometimes finely balanced.  Not everyone will agree with your logic but you need to be at your best when your best is needed.  In saying that, you are part of a team that must come together in order to make these tough calls.

Decisions by local authorities always involve competing issues.  However, if you are thinking clearly and recording your steps in a logical way you are best placed to find the right way forward.

The team at Rice Speir are passionate about building control and are available to discuss difficult decisions before they are made.  We look forward to receiving these types of calls.

By Nathan Speir and Luka Grbavac, Partner and Solicitor at Rice Speir

 

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Prosecuting to protect the past https://ricespeir.co.nz/prosecuting-to-protect-the-past/ https://ricespeir.co.nz/prosecuting-to-protect-the-past/#respond Tue, 05 Jun 2018 06:35:57 +0000 https://ricespeir.co.nz/?p=5079 At a time where land for new commercial and residential buildings is becoming increasingly scarce, heritage can be seen as a hindrance to development.  Property owners, failing to appreciate the significance of their historic items, will undertake work without consulting with councils and/or applying for resource consent.  However, the public interest in preserving heritage is…

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At a time where land for new commercial and residential buildings is becoming increasingly scarce, heritage can be seen as a hindrance to development.  Property owners, failing to appreciate the significance of their historic items, will undertake work without consulting with councils and/or applying for resource consent.  However, the public interest in preserving heritage is high.  Heritage is protected under planning instruments, as well as being specifically considered under the Resource Management Act 1991 (RMA) as a matter of national importance.   In order to ensure that our neighbourhoods retain their heritage character, councils should not be afraid to prosecute for breaches of heritage plan provisions.

Elements of the offence

The elements to prove a charge for undertaking work on a heritage item without a resource consent are the same as for any other breach of a plan under s 338(1)(a) of the RMA:

  1. A person must use land;
  2. In a manner that contravenes a district rule;
  3. Where such use is not expressly allowed by a resource consent or otherwise allowed as an existing use under ss 10 or 10A of the RMA.

The unlawful alteration of heritage is a strict liability offence.  It is irrelevant that a person may not have recognised the heritage value of their property or subsequently obtained retrospective resource consent for the work.

Examples

Following the inclusion of historic heritage as a matter of national importance in the RMA in 2003, there have only been a handful of cases where the breach of heritage planning provisions have been prosecuted.  However, it is likely these cases will only increase as property becomes more expensive, land becomes scarcer and the maintenance costs for heritage items rise.

Ling v Christchurch City Council[1]

Mr Ling owned a section upon which there was a Heritage New Zealand-registered category 2 historic place.  After failing to obtain resource consent to demolish this building, Mr Ling successfully obtained a building consent and resource consent authorising construction of a two-storey office block at the rear part of the section.  However, in creating the driveway to the office block, Mr Ling had shorn off the right hand wall of the historic place, destroying its symmetry.

Mr Ling pleaded guilty to the charges.  At sentencing, the Court considered the offending was deliberate and that the predominant factor in sentencing was deterrence.  Mr Ling had aspirations for developing his property but was hamstrung by the overarching public interest of preserving historically significant buildings.  Property owners need to be aware of these considerations when purchasing and developing their properties.  Mr Ling was fined $7,500.

Christchurch City Council v Solid Stone Ltd[2]

Solid Stone Ltd owned a property that contained the historic Trinity Church building.  Solid Stone Ltd’s director, Mr Slade, had discussed with the council redeveloping the property.  He was advised that if any aspect of the heritage fabric of the building was altered, it would require resource consent.  In the months following, it was found that building work on the property was being undertaken without consent.  Retrospective resource consent was subsequently granted authorising the work.

Solid Stone Ltd pleaded guilty.  Although the work was ultimately authorised, the Court found at sentencing that the offending was deliberate, given Mr Slade’s knowledge that consent was required.  The Court was not impressed with Solid Stone Ltd’s development approach which was to amend the fabric first and apply for resource consent later.  Furthermore, as the building was ultimately converted into a restaurant, it was clear Solid Stone Ltd was attempting to bypass the correct process for commercial gain.  In considering the seriousness of the offending, the Court emphasised the national importance under the RMA of the protection of historic heritage from inappropriate use and development .  Solid Stone Ltd was fined $2,000 and ordered to pay legal, court and investigation costs.

Auckland Council v Liu & Ors[3]

Mr Liu was the director of a company that owned a site at Gilles Ave, Newmarket containing a basalt stone retaining wall.   The wall was a Category B Scheduled Place under the Proposed Auckland Unitary Plan.  Mr Liu’s contractor, Mr Parsons, excavated holes in the wall without a resource consent and partially destroyed a stone staircase in the middle of the wall.  Although the defendants subsequently reinstated the wall and steps, they were found guilty of contravening the plan’s heritage protection rules.

At sentencing the judge found the relative gravity of the offending was moderate.  The complete destruction of heritage had not occurred.  However it was not the lowest level of offending when considered against the RMA provisions that identify heritage as a matter of national importance. Although the loss, in light of the repairs, would unlikely be apparent without forensic inspection or specialist knowledge, the integrity of the wall and steps (being the quality of what was inherited from a previous generation) was diminished.  Mr Liu was fined $8,000 and Mr Parsons was fined $1,800.

Take-home points

Councils should be vigilant in monitoring heritage buildings, particularly where owners have sought to obtain resource consents and been met with resistance.

Councils should not be afraid to pursue prosecution even where the damaged heritage fabric has been remediated and/or authorised by retrospective resource consent.  Breaches of s 338(1) are strict liability offences and property owners need to be deterred from attempting to bypass consenting processes.

Fines for breaching heritage provisions in plans have tended to be on the low side (albeit a number of cases were decided before the tariffs under s 339 of the RMA increased).  This is often because the breaches can be somewhat rectified.

Heritage is about more than just aesthetic values.  It is also about preserving traditional materials and methodologies, and preventing the chipping away of historical integrity.

[1] Ling v Christchurch City Council CRI-2004-409000212 HC Christchurch, 2 December 2004.

[2] Christchurch City Council v Solid Stone Ltd CRN06009504445, CRN0600950444 DC Christchurch, 30 May 2007.

[3] Auckland Council v Liu & Ors [2017] NZDC 10864.

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Building Act Potpourri https://ricespeir.co.nz/building-act-potpourri/ https://ricespeir.co.nz/building-act-potpourri/#respond Thu, 29 Mar 2018 07:47:28 +0000 https://ricespeir.co.nz/?p=4882 Rice Speir regularly fields questions from local government clients about the day to day application of the Building Act and Building Code. Here are a few issues that we have dealt with recently that may be of interest. Pre-fabricated buildings We have recently dealt with the issue of pre-fabricated buildings constructed overseas, then placed on…

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Rice Speir regularly fields questions from local government clients about the day to day application of the Building Act and Building Code. Here are a few issues that we have dealt with recently that may be of interest.

Pre-fabricated buildings

We have recently dealt with the issue of pre-fabricated buildings constructed overseas, then placed on site in New Zealand. Technically, the pre-fabricated buildings do not require a building consent. The simple reason is that building work undertaken overseas is not subject to the Building Act. There is no authority for a council to compel an application for a building consent in this situation, which would then allow a council to satisfy itself that the prefabricated structure is code compliant.

The use of pre-fabricated structures is becoming increasingly common, which we understand may not be particularly satisfactory to councils as there is no certainty around the compliance of the pre-fabricated structures with the Code. We are currently looking to clarify exactly what a council can do to ensure a building pre-fabricated overseas complies with the Code, absent an application for building consent. Please contact us if you would like more information.

Residential Driveways

We have recently examined the issue of whether residential driveways need to comply with clause D1 of the Code. The confusion about whether clause D1 applies may arise from the similarity of the terms “access route” and “accessible route” referred to in the clause.

In our view, clause D1 applies to residential driveways, but a lack of clarity in the Building Code suggests that this issue is a good one to be determined by MBIE. Based on the advice of an expert traffic engineer, we have formed the view that driveways fall within the natural meaning of “construction edge” referred to in clause D1 and “structure” in the Building Act. Our view is that driveways do form part of an “access route”. We have not seen any references that indicate domestic driveways are exempt from this, and the Code appears to cover residential vehicle area developments. If you have any thoughts on this issue, please let us know.

Second “kitchens”

Our local government clients are increasingly seeing construction jobs where one room is set up to accommodate a second kitchen, but that second kitchen is not fully plumbed and operable. That room may, for example, have cabinetry, benchtops and spaces that will fit a fridge, oven or microwave. This would allow the future owner to easily convert the room into a second kitchen. A second kitchen would need a different building consent (and often, a resource consent and separate development contribution), but there is commonly uncertainty about whether or not the space constitutes a “kitchen” before it is fully completed. This in turns raises the issue of what the appropriate response should be when an application for Code Compliance Certificate is received.

By way of example, we recently advised on a situation where the homeowners had installed cabinetry and a bench, without a sink, as part of otherwise consented renovations. The space did not (yet) have any plumbed connections. It was clear that the intention was to use the space as a second operational kitchen at some point, and the property was marketed as having the potential to accommodate separate families in future.

The right call for a council in this type of situation will be fact specific. In each case, it will be important to consider exactly what fixtures are currently in place (for example sinks, drainage, plumbing and appliances), what the space is intended to be used for, and whether what is built complies with the consented plans. It will often be a finely balanced issue, which we would be happy to work through with you.

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Can’t See the Wood for the Trees https://ricespeir.co.nz/cant-see-the-wood-for-the-trees/ https://ricespeir.co.nz/cant-see-the-wood-for-the-trees/#respond Wed, 28 Mar 2018 02:40:52 +0000 https://ricespeir.co.nz/?p=4851 Queenstown Lakes District Council was found to not be liable for damage to motel units caused by a falling tree, which was on council land. The District Court concluded that the council did owe a duty of care to undertake inspection and maintenance of the trees on the council’s reserve, but had not breached its…

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Queenstown Lakes District Council was found to not be liable for damage to motel units caused by a falling tree, which was on council land. The District Court concluded that the council did owe a duty of care to undertake inspection and maintenance of the trees on the council’s reserve, but had not breached its duty as the steps it had taken were reasonable.

During high winds on 17 January 2014 one of the trees in the council’s reserve, a 30 metre tall 120 year old Lombardy poplar, snapped just above its root crown. The tree landed partly on the road and partly on the plaintiff’s motel, striking and damaging the eastern end of the motel units, its signage, a garden and some cars.It was accepted that the total cost to repair was $63,577.72.

The tree was one of a group of tall Lombardy poplars in the reserve, scheduled as heritage trees in the District Plan in view of their historic significance and contribution to the amenity values of the reserve.  In 2004, a similar tree fell in the reserve landing on an abandoned car.  Other trees had been felled by the council on advice of arborists, in view of their poor state and the potential safety hazard they posed.
After the 2014 incident, inspection of the tree showed that its heart was significantly compromised by white rot in the vicinity of the break.  It is accepted that this, in combination with a strong wind, was a material cause of the tree’s fall.  A central matter of dispute concerned whether the council employed an appropriate method of inspection and testing of the tree prior to its fall.

The different methods of testing relevant to the case were:

(a) Visual tree assessment, which does not involve intrusion into the tree trunk.It involves examination of a tree by a trained arborist for any relevant visually evident changes that could be an indicator of the tree’s health and condition; and
(b) Mechanical methods of testing that, if used, would be typically used in conjunction with visual testing such as “a picus tomograph” involving mechanical intrusion through the bark to test the relevant part of the heart wood or “resistograph” involving driving fine needles into the heart wood to locate and graph areas of decay, hollows, cracks, ring structure and other possible structural integrity issues.

The council undertook regular visual inspections of the trees, including the tree in issue, as well as mechanical testing in 2005 and 2007.  That testing concluded that no trees had any signs of decay.  The last arborist’s inspection was four months before the tree snapped and fell on the plaintiff’s motel.The council’s record of this last inspection recorded the tree as presenting to the council’s contractor as one of the better specimens in the reserve.

The claim

The duty of care

The Court accepted that no prior case in New Zealand could be found whereby a council was held to owe a duty of care to a property owner in respect of damage caused by a tree.  The Court determined the case on settled principles as applied in New Zealand (and assisted to some limited extent by overseas authorities) that the council owed a duty of care to undertake inspection and maintenance of the trees on the reserve to the standard that a reasonable council would have applied in January 2014 in view of all of the information then available.

Breach of duty

The council submitted that it fulfilled its duty, informed appropriately by competent experts.  The Court held that a reasonable local authority would have taken advice from appropriate arborists and the evidence demonstrated that that had occurred.  There was no question in the evidence that the arborists that the council engaged were lacking in any relevant competence, nor was there any evidence that the council in any way inappropriately constrained the briefs of those experts or the budgets that they were to apply.
The Court was not prepared to extend the duty to an obligation on the council to undertake internal or resistograph testing of the trees after 2007.  What was most strongly in favour of the plaintiff’s case was the consensus in the expert evidence that the tree was, at the time it fell, of an age and in a locality that ought to have been considered to warrant close and regular scrutiny.  The Court said that the nub of the matter was whether, with that knowledge, a reasonable local authority in the council’s position would have gone further than the regular visual testing it did.  The Court concluded that the evidence fell well short of demonstrating that the council ought to have undertaken resistograph testing or something like it.
The Court also found that the resistograph testing may well have proven helpful but it could well have not shown anything of material worth.  The Court also noted that there was a lack of evidence from the plaintiff on whether or not the council’s approach to monitoring and inspecting as at January 2014 fell short of a typical local authority practice.

The Learnings
At the heart of every negligence claim is an examination of whether the defendant acted reasonably.  In this case, the council was able to rely on records spanning 10 years that documented the monitoring and inspection of the trees in the council’s reserve, including the tree in question.  In contrast, the plaintiffs were not able to persuade the Court that the council had fallen short of the standard of a reasonable council.  Those robust records assisted the council in successfully defending the claim and this case serves as a good reminder of the importance of thorough record keeping and having good processes.
Watch this space as an appeal has been heard by the High Court.

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