Decision reserved over remedial work on Kmart building

Customers pile into Queenstown's new Kmart store as it opened its doors for the first time this...
The Queenstown Lakes District Council is prosecuting Dominion Constructors Ltd for carrying out building work without consent. Photo: Joshua Walton
Prosecuting the company that built the Kmart building in Queenstown is causing ripples in New Zealand construction even as it focuses on a law to promote accountability, the Queenstown District Court was told yesterday.

The Queenstown Lakes District Council is prosecuting Dominion Constructors Ltd for carrying out building work without consent, for work done on the now open and compliant Kmart building in Frankton.

It focuses on on-site work on August 2, 2018, when start bars to be used in the building’s pre-cast concrete-to-wall foundation junctions were cut.

They were cut when workers realised they were not in the right place to connect to the pre-cast walls.

New bars were drilled and secured in the concrete to connect properly to the wall, the court heard.

The work was not supervised by an engineer and was not flagged with the council. It was also not immediately described to the company’s directors.

A subcontractor later told the council what happened, the court heard.

For Dominion Constructors, lawyer Richard Rayond said the council was abusing process by using s40 of the Building Act, which says building work must not be carried out without consent.

The building work was enabled by a consent: the section was not intended to be used for departures that might happen during the building, but which were remedied before the building was finished. He asked for the charge to be dismissed.

Parliament could not have intended the Act to expose builders to prosecution for a work-in-progress, even if they had addressed issues and completed the work to the terms of the consent, he said.

The case was ‘‘causing ripples in the construction industry’’ by saying one commits a criminal offence if one departs from a consent, even if one fixes that departure.

This would ‘‘cause the industry to grind to a halt’’ and not allow builders to adjust to the conditions and deal with problems as they arose, he said.

Mr Raymond said his client co-operated with the council when its directors learned what happened. It conducted expensive invasive testing, identified the extent of the problem, and set about to fix it.

The council issued a notice to fix and a wall was built alongside the existing wall.

There were no residual concerns, the building was safe and it got its code of compliance, he said.

It had cost Dominion Constructors millions of dollars, he said.

For the council, Nathan Speir said it was a matter of good luck that the defects came to light.

It was not a simple mistake — it was a deliberate act of concealment by at least one person on site, he said.

An independent engineering adviser told the council the bars were modified and removed without the knowledge of a structural engineer. It was

unusual that such a significant number of bars — more than 60 — could be amended without seeking advice from the engineer, Mr Speir said.

Had this gone unnoticed, the building would not have complied with its consent and been at risk of collapse or partial collapse in fire, wind or earthquake events, he said.

The Act was developed to improve building practices and to promote accountability among builders.

Simply, a builder cannot construct a building without consent. If they made any changes to the plans on which consent relied, they were not doing what they were consented to do.

An offence was committed as soon as the work was carried out. To suggest that was somehow counteracted by Dominion’s subsequent response was like saying ‘‘if you commit an armed robbery and decide to pay reparation, you haven’t committed an offence’’.

It was not fair to suggest the council’s interpretation of the law would pave the way for prosecutions all over the country, he said.

The Act provided for prosecution or fines, and the Solicitor-general’s guidelines expected cases to meet evidential and public interest standards.

He noted Dominion acted appropriately when it was issued with a notice to fix, but the notice exposed the extent of the defect.

The work was not a minor variation to the consent, which was why the eventual fix was the erection of a whole new wall.

In response, Mr Raymond said the building, as it was before the notice to fix, was in no risk of collapsing except when a fire was followed by an earthquake or an extreme weather event.

Judge John Brandts-Giesen said the defence appeared to rely upon a ‘‘reasonably legalistic interpretation’’ of the Act, suggesting it did not imply that the consent had to be carried out according to the plans and specifications of the consent.

Mr Raymond said that would be the case ‘‘whilst the building is still under construction’’, which would allow remedial work to be conducted before completion.

Judge Brandts-Giesen reserved his decision.

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