The Journal Dunedin played host to NZIBS' 25th Anniversary
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
NZ INSTITUTE OF BUILDING SURVEYORS JOURNAL
ISSUE 3 OCTOBER 2019
The Journal
Dunedin played host to
NZIBS’ 25th Anniversary
Fittingly, the country’s oldest university city
was also where the Institute was established.
IN THIS ISSUE
NZIBS’ 25th Conference Investigating an Resolving old historic Getting the lay of the land
a success unknown defect CCC
CONTENTS FROM THE PRESIDENT
NZ INSTITUTE OF BUILDING SURVEYORS JOURNAL
ISSUE 3 OCTOBER 2019
The Journal
Dunedin plays host to
NZIBS’ 25th anniversary
The Institute, established in 1994, continues
to play a lead role in both the property and
construction industries
NZIBS PRESIDENT
Rory Crosbie
IN THIS ISSUE
NZIBS’ 25th Conference Investigating an Resolving old historic Getting the lay of the land
a success unknown defect CCC
NZIBS’ 25th Conference a success...................2
Investigating an unknown defect.....................3 NZIBS’ 25th
Give care and consideration to facts...............4
rawMAT is the only pre-hydrated Bentonite
system available world-wide.............................6
Conference
Healthy homes and pre-purchase
inspections...............................................................8
Resolving old historical code
a success
compliance certificates.................................... 10 A good time was had at the 25th are carefully and sensitively changing
Anniversary Conference in Dunedin. the face of local heritage building
Proudly celebrating 25 years.......................... 12 It was great to see a large turnout stock.
Getting the lay of the land ............................ 14
at the various events which took
place during the event. A quick site tour of St Paul’s
Thank you to our sponsors.............................. 14
Cathedral to view the many stained-
The conference was opened by glass windows and to discuss the
innovator of the year Ian Taylor. maintenance management of the
Members were virtually blown external stone façade, followed
away by Ian’s story on how a small by a great evening enjoyed at the
Dunedin company has taken on gala dinner over at the Forsyth Barr
the world. He reminded us that Stadium.
CONTACTS the ingredients for success remain
unchanged. Trust, and can-do We kicked into it again early Saturday
President: Rory Crosbie attitude have realised huge success morning for four well attended
for Ian’s companies. workshops, where some of us learned
Secretary: Noeline Clark
about prefabricated “mushroom pods”.
NZIBS Contact: New Zealand Institute Matt Allen from RCP provided us Following the members AGM, the new
of Building Surveyors, with an overview of the challenges 2019/2020 Executive met and for the
PO Box 1283, Dunedin, 9045 to be managed to deliver the new first time in the Institute’s history,
Phone: 0800 113 400 Dunedin Hospital, a potential the Executive elected a female Vice
8 to 10 year project. Morrison President, Heather Crilly.
Email: secretary@buildingsurveyors.co.nz
Kent Lawyer, Michael Wolff,
Layout: Heysmartypants Design provided us with a whistle stop I look forward to working with Heather
www.heysmartypants.co.nz update on current legal topics and the new Executive over the next
and Chartered Building Surveyor, 12 months to deliver on the strategic
Editor: Robin Miller
Christian German, talked about vision. Work has already started on
Newsletter Disclaimer the plans for the 2020 Conference,
the challenges he and his Dunedin
The information in any NZIBS newsletter is for which will take place in the Hilton in
general use only. The information has been provided University Estates team face trying
by NZIBS and by third parties including NZIBS to stay ahead in the competitive Auckland on September 24-26. The
members. While NZIBS has endeavoured to provide
education market by maintaining last Auckland conference took place
accurate information, neither NZIBS nor the third way back in 2003.
parties provide any guarantees regarding the and upgrading their existing
correctness, currency, completeness or suitability of building stock, in line with the
the information for any particular purpose. It should So, what is planned for the year
universities’ strategic objectives.
not be relied on in place of appropriate specific advice ahead? It is clear from conversations
or verification. Opinions provided by third parties on with various members at the above
any matter do not necessarily represent the opinion During the afternoon session, we
or policy of NZIBS. heard from three wise locals; the conference that our members continue
developer, engineer developer and to work for an even greater cross-
conservation advisor on how they section of clients across the country.
2 ISSUE 3 OCTOBER 2019
INDUSTRY UPDATE
Our members are involved with land
development, due diligence during
real estate transactions, the provision
of technical expertise on a range of
remediation projects and are now
assisting on the large infrastructure
NOEL JELLYMAN
projects underway across the country. Registered Building Surveyor
Larger clients with portfolios of property
are using our members to complete
stock condition surveys and assist
with the development of maintenance
strategies and plans. Disputes continue,
keeping our members busy as expert
witnesses. This leads to our members
acting as experts in court on contract Investigating an
unknown defect
disputes, earthquake insurance and
product claims, and defective building
work claims. Our forensic skill set
continues to set us apart. Our ability to
collect evidence on defective buildings
Engaged to inspect a building and carry out a Building Envelope Condition
and during the remediation of our report, I came across a defect that I had not seen before.
existing building stock is well recognised.
The roof was a 100m²
On the latter, we are working closely Butynol Membrane over
with other project disciplines such Plywood substrate – Non
as structural, geotechnical and fire trafficable area. The
engineers, architects and quantity plywood had been joined
surveyors in the delivery of many using a groove in each
complex projects. I was intrigued to hear sheet with a uPVC biscuit.
that some of our members are working Thermal movement in
with bridge engineers in the condition the uPVC had pushed the
assessment of bridges at the end of their uPVC jointer through the
expected life while others are working membrane at most sheet
closely with fire engineers. joins and on both sides of
the roof.
So, the variety of service our members
are currently offering across a When uPVC expands and
spectrum of sectors is astounding but shrinks on a cyclical daily
not surprising given our skill set and basis, it moves in the
professional approach our members are same direction which is the direction with least resistance. It moves like a
obliged to take in the delivery of these caterpillar. The daily movement is so small it is undetectable. Over a period
services. of 10 years or more, however, it becomes pronounced and obvious, as seen
below.
In our 2020 March Training Day event
(to be held at the Villa Maria in Auckland In this case scenario, at
on March 14), we aim to take a re-look this joint, the membrane
at the remediation of buildings, mainly had been repaired once
commercial. Next year’s MTD’s theme but the uPVC had pushed
will be Remediation - what’s new? The through again.
many challenges will be explored, from
If a single screw had been
the typical types of defects, contractor
placed to lock the uPVC
engagement, technical complexities and
prior to the repair, would
solutions required to ensure compliance that have prevented the
is achieved, and the financial challenges defect recurring?
imposed upon the building owners in
their drive to return their properties to a Should a full re-roof have
code compliant asset. been undertaken?
What’s clear is there are many Would the patch repair
opportunities for the Institute over the have been sufficient had
next 25 years of its existence. And it a single screw been installed through the joint to lock the uPVC biscuit in
looks like our members will be busy too. place?
ISSUE 3 OCTOBER 2019 3
INDUSTRY UPDATE
Give care and
consideration to facts
Recently I have had three separate client files where builders had been
engaged on labour-only contracts or carpentry labour-only.
Half-way through each of the new c) in accordance with the drawings Contractor of the work undertaken
housing project, the contracts for one and specifications, and the relative cost.
reason or another, were cancelled
by owner project managers and d) in accordance with building There can be no doubt that if a
the carpenters locked out from the consent, Contractor is notified in writing that
site. Experts were then brought into there is a defect, he has an obligation
e) using materials that are fit for under the contract to fix it.
inspect the works and schedules of
purpose,
alleged defects prepared. Inevitably, a
The Contractor also has the right to
stalemate between the parties arose f) using materials that are new, reasonable time to undertake the
and the matter went to Adjudication
remedial works.
under the Construction Contracts g) in accordance with all laws and
Act 2002 or to a Judicial Settlement legal requirements. When assessing building works that
Conference or court case. are incomplete as opposed to alleged
NZS 3910 defects, in my opinion it is important
My involvement in such cases has led
Removal and Making Good to be careful to also differentiate
me to look at case law around:
between what is “a defect” and
• When is a defect actually a defect, a) The Engineer may at any time what may be “incomplete works”. It
prior to the expiry of the Defects is also important to identify if the
• When has a carpenter an Notification Period, by notice in Contractor, under the terms of the
obligation to remediate, or is the writing, instruct the Contractor to contract, has rights and obligations
work simply incomplete? remove and re-execute or to make to remediate a particular element of
good any work which, in respect of the works.
Often there will be a mix of defective materials or workmanship, is not
works that require remediation, in accordance with the Contract. “Incomplete building works” are
in addition to other items of work The Contractor shall comply with not “defective building works”. On
that should properly be described as a Charge Up Labour Contract, they
the instruction at their own cost.
“incomplete works”. are works the owner was going
b) If the Contractor fails to carry to need to pay for in any event. If
Regarding defective works, in most “incomplete works” are confused in
out any work instructed under a)
contracts there is an obligation with the defects, then this distorts
(above) within any time stated
or entitlement in respect of the or exacerbates the scope of the
in the notice or other reasonable
Contractor that has caused the defects and inflates the amount
time, the Engineer may, (after
defect, which allows that Contractor of compensation sought to put
giving five working days further
to carry out the necessary remedial the owner back in the position
written notice to the Contractor
work, albeit at his own cost. they would have been in, but for
stating that it is given under the
clause), direct others to undertake a Contractor’s mistakes and/or
Certified Builders Contract the work. omissions.
Typical relevant contract clause:
c) The reasonable cost of the work Occasionally, building projects
RMB’s Warranties
undertaken by others under b) become derailed because the
The RMB warrants that works it is (above) shall be recoverable relationship between the owner/
responsible for will be carried out: by the Principal from the project manager and the builder or
Contractor. As soon as practicable labour-only contactor breaks down.
a) in a tradesman-like manner, As a result, the work grinds to a halt
after completion of the work,
the Engineer shall notify the and the parties reach a stalemate.
b) with reasonable skill and care,
4 ISSUE 3 OCTOBER 2019
NZ INSTITUTE OF BUILDING SURVEYORS JOURNAL
The follow-on is usually a claim from
the builder for the money he is owed,
then a counter claim from the owner
for alleged defective works. Owners
tend to terminate the contract or
withhold payment based on alleged
defects in workmanship or materials;
however, the conceptual difficulty
the owners may face is that if the
building work is “incomplete”, then it
cannot yet be “defective works”. How
could the building works be defective
when the builder could have, and
presumably would have, completed it
to a satisfactory standard were it not
for the dispute?
There have been judgments that
focus on this matter, which are
summarised in the 2016 judgement
of G.M. Harrison in the Waitakere
District Court:
Tugage v West End Painters Ltd.
(as held by the High Court)
In particular, in Tugage v West End the “cost of cure must be reasonable facts. It is appropriate to identify
Painters Ltd., the judge said: to be the appropriate measure.” The defects and, if it is appropriate, also
Court referred to the Australian case to be fair and honest in terms of
“The standard of workmanship is stating what parts of the works are
of Bellgrove v Ellridge where that
judged at the completion of the better designated as “incomplete” or
Court held the work must not only be
project, not at the time when the the responsibility of the other party.
“necessary to produce conformity”,
owner prematurely brings it to
it must also “be a reasonable course
an end, and prevents the builder
to adopt”.
from achieving the standard of
workmanship that he is capable of.” The Court in Marlborough District
In the event a dispute ripens over the Court v Altimarloch Joint Venture
scope of defective works and goes on Limited went on to consider the
to a form of dispute resolution, then case of Ruxley Electronics and
an award of compensatory damages Construction Limited v Forsyth
for breach of contract is designed to which was a building contract case
place the plaintiff in the position he where the cure measurement was
or she would have been in had the disproportionate to the benefit to be
contract not been performed. The obtained. The Court considered that
Noel Jellyman
assessment of damages is essentially the reasonableness of cost of cure is
Noel is a Registered Building Surveyor,
a statement of fact, i.e. the loss then a necessary test of whether it is
a member of the Adjudication
actually and reasonably suffered by an appropriate measure of damages. Association of New Zealand – of
the plaintiff. which he is Past President – and
Ultimately, the cost of reinstatement
a Society of Construction Law
Marlborough District Court v to produce conformity with the member. His decades-long experience
Altimarloch Joint Venture Limited contract must be reasonable. allows him to carry out a wide
range of professional assignments
The Supreme Court in Marlborough In summary, when engaged as including structural design work,
District Court v Altimarloch Joint professionals, it is important to be structural inspections, geotechnical
Venture Limited considered whether independent and impartial when investigations, dispute resolution
the cost of cure was reasonable engaged to carry out an inspection work, expert witness investigation
to achieve conformity with the of alleged defective works. Careful and reports.
contract. The Court considered that consideration should be given to the
ISSUE 3 OCTOBER 2019 5
INDUSTRY UPDATE
WATERPROOFING SYSTEMS,
TECHNICAL DIRECTOR
John Stallard
rawMAT is the only pre-hydrated
Bentonite system available world-wide
The unique and significant feature of rawMAT Bentonite is its initial
pre-hydration occurs under factory-controlled conditions and is a fully
waterproof Bentonite membrane in supplied roll form.
6 ISSUE 3 OCTOBER 2019
NZ INSTITUTE OF BUILDING SURVEYORS JOURNAL
Other features of rawMAT: maintaining water tightness. In the picture above on page
6 is the McCurdy truck pits; once the pumps come off,
• it’s the only system which has direct Bentonite to there is a constant head of water under test. The result is
Bentonite lapping, that the truck pits remained 100 per cent watertight.
• it’s the only Bentonite system which can directly
When selecting a tanking membrane system, there is still
migrate into the cementitious substrate to become
no system which can cover all circumstances. Each job
part of the substrate, preventing any chance of water
should be evaluated carefully, and the selection made on
migration vertically.
an informed decision.
To assist with this decision-making work, view the
levels of tanking guide below. If you need assistance, please
don’t hesitate to contact Waterproofing Systems
NZ Ltd on (09) 579 1460, info@waterproofing.co.nz, or
visit www.waterproofing.co.nz.
rawMAT Detail b-RAW00 Lap Joint
One of the most notable projects where rawMAT Bentonite
has been used is Stage One of the Britomart tunnel. The
tunnel is 300 metres long x 45 metres wide x 13 metres
deep, with a constant 7 metres head of water with tidal
pressure twice each day. The project is now 17-years-old
and it has been a true reflection of how exceptionally good
the rawMAT system is.
It is really important when considering rawMAT bentonite
that it is designed for continuously damp, wet situations.
This ensures that the rawMAT bentonite remains fully
hydrated and the expansion pressure remains in force is Below ground tanking membranes levels of tanking
One of the most notable projects where rawMAT Bentonite has been used is Stage One of the Britomart tunnel.
ISSUE 3 OCTOBER 2019 7
INDUSTRY UPDATE
DARIN DEVANNY
Registered Building Surveyor
Healthy homes and
pre-purchase inspections
It’s logical to think that the average home buyer would expect that
a house they are buying reaches the Healthy Homes Standards at a
minimum.
And if they are not at that standard,
they would like to know that
they don’t, so they know what
improvements to make before
they buy. If the Healthy Homes
Standards are a minimum standard
for tenancies, then surely that is the
expected minimum standard for all
New Zealand Houses.
Additionally, a property pre-purchase
inspector may not know whether the
house is to be tenanted or not. So, it
makes sense that the Healthy Homes
standards – heating, insulation,
draughtiness, ventilation, drainage
and moisture matters – are assessed
by a pre-purchase inspector to ensure
they are likely to meet the standards.
Otherwise home buyers may decide Expectations of pre-purchase inspections have changed over the last decade.
to rent out their homes, then only to Pre 2010, a pre-purchase inspection report typically involved a brief report with
find it doesn’t meet the standards. perhaps a few scattered photos that showed small details of the general aspects
such as the roof, the exterior walls and internal rooms.
Only the insulation standards are
currently required to be met. From The site inspection involved a walkthrough visual inspection only. However,
July 2021, all new and renewed today, it is much more than just a visual inspection. The process will typically
tenancies will need to comply with include much more specific testing, such as a floor-levels assessment to
all the prescribed standards. From check for settlement, moisture scanning of risk areas that may be affected by
July 2024, all tenancies must comply. dampness in the walls, more rigorous testing of plumbing fixtures to assess for
8 ISSUE 3 OCTOBER 2019
NZ INSTITUTE OF BUILDING SURVEYORS JOURNAL
leaks in showers for example – which significant potential defect) that occurring and consider if invasive
have become problematic. They “ought to have been identified by testing is the next best step.
also outline risks for the presence of a reasonable building surveyor” is
hazardous materials such as asbestos substantial. Similarly, not identifying Pre-purchase inspection reports are
and lead paint. the potential extent of an issue is as not likely to become much better
much of a risk for an inspector. The unless there is a standard that
Money lenders have become much amount of pre-purchase inspection requires suitably trained building
more cautious on leaky buildings companies operating across New surveyors to carry out such reports.
and, in the earthquake affected areas, Zealand have grown substantially Liability on pre-purchase inspectors
they are concerned about cracks over the last decade. The standard is not likely to become any less until
in the foundation. Pre-purchase of reports vary enormously as there there is a constant expectation on
inspectors must be very careful when is no regulations on what a report what a report shall cover and what
assessing and commenting on the should include or who should be an inspector ought to have done
condition of foundations, particularly completing them. This is a big on site to complete a reasonable
ones that show signs of settlement issue because the expectations assessment on the property.
and damage such as cracks. Even if of homebuyers who commission
the damage is minor, it could easily “NZS 3604:2005 Residential
such reports are widely varied and
become much worse. Inspection” does not adequately spell
sometimes skewed.
out the necessary steps to complete
Leaky buildings have carried similar Pre-purchase reports often comprise a robust and comprehensive pre-
risks for the last two decades pages of moisture scanning and infra- purchase inspection report. The
and that risk from a pre-purchase red images, which can seemingly NZIBS Executive have been working
inspector’s point of view is still identify moisture inside the walls. on a reporting procedure for its
significant. Possibly even more risky Experienced building surveyors know members to provide pre-purchase
than before where new “meshed they can’t, and such information residential inspections. It has been a
coating applications” have been can be very misleading. But it has long-running project but is expected
applied over older existing systems become the expectation of money to be available to members about
which cover up the issues that lay lenders that such information is mid-2020. It will provide procedures
beneath. included within reports. We know for members to follow in order to
that that the best way to identify maintain consistency and provide
Pre-purchase inspections are known comprehensive condition reports on
buildings that are likely to leak is to
to be a risky and litigious field to residential dwellings subject being
weigh up the risks and decide how
provide services in. The risk of not sold.
much likelihood there is of leaks
identifying significant defects (or
ISSUE 3 OCTOBER 2019 9
IN THE LOOP
Resolving old historical code
compliance certificates
It was when the 1991 Building Act came into existence (enacted in
1993), that the new building consent regime came into effect. This is
the time when what used to be called ‘building permits’ changed to
‘building consents’.
While it was intended under the these matters, or they could possibly The owner could also face the
1991 Act that all building consents see difficulties in keeping their requirement and costs of engaging
would be issued a Code Compliance insurance cover for the building. This a registered building surveyor to
Certificate (CCC), no timeframes leaves many owners distressed and in provide a full report on the present
were ever given to complete the CCC. a very vulnerable position. state of the building project, which
Therefore, under the 1991 Building the assessment could identify costly
Act regime, there are now thousands Under the NZ Building Act 2004, the remedial work. This in turn is not
of old building consents that have requirement for Building Consent favourable to them due to extra costs
never been issued their CCC’s. Today Authorities (BCA) is at the expiry of of remedial works before a BCA can
it is becoming an issue for property two years from the date a building even consider and be satisfied that
owners when it comes time to sell consent was granted, the BCA must all works are compliant with the
their properties. Many properties decide on whether to issue a CCC consented plans.
constructed around the early 2000’s (under Section 95 of the BA2004).
with no CCC’s were never picked up If a final inspection has not been All BCA’s have their own policy or
in the Sale and Purchase Agreement, undertaken, then the BCA will guidelines on how to manage and
as it was never considered by some undertake a final onsite inspection process old outstanding building
legal advisors as an important aspect and from there they must decide if consents. Their view as to what they
of the transaction. all works comply with the consented consider old can vary, but typically if
plans. If not, then a letter is written an outstanding consent is more than
Today we are hearing more insurance to the property owner, under Section five-years-old, then B2 – durability
and bank providers wanting to know 95a (BA2004), stating the refusal and code starts to become a potential
if CCC’s have been granted for all the reasons for the refusal. factor in compliance and decision
building consents on their clients’ making.
property before they will even As noted above, it is not until the
consider providing insurance cover, owner decides to sell the property When the BCA carries out a final
loans, etc. There are now instances that the consented works which inspection of a consent (it may even
where insurance companies have does not have a CCC becomes of be a consent less than five-years-
become aware of properties that they more concern; they are unable to old) to determine if the works meet
have already insured where CCC’s complete a sale, the purchaser has the requirements of the consented
have not been issued. Consequently, been advised that the bank will not plans and specifications, there may
they have written to the property loan, the insurance company will not be a number of outstanding non-
owner advising them the issue of no cover, and ultimately the owner faces compliant issues. At this stage the
CCC and that they need to rectify the risk of losing a sale. BCA will then write a letter to the
10 ISSUE 3 OCTOBER 2019NZ INSTITUTE OF BUILDING SURVEYORS JOURNAL
owner or agent of the owner under No.2) and working closely with the Ensure that you have a clear and
Section 95A of the BA 2004 listing BCA. robust agreement with your client
the non-complying areas. covering what will be included in the
When carrying out a survey after survey and what falls outside the
It is common when this letter is a Section 95A letter has been scope of work. It is also a good idea
issued that the property owners issued, the surveyor must cover all to state in the terms and conditions
will engage a building surveyor the points raised in the letter. The that while every effort will be made
to review the BCA letter and seek surveyor must also ensure that there to achieve an acceptable outcome,
further advice. Once again, as I have are no other areas that are non- ultimately it is the BCA that has
mentioned before in earlier articles, compliant which may have been the final say on whether a CCC is
NZIBS is held in high regard with missed by the BCA at the time they granted or refused, not the surveyor.
many of the BCA’s throughout the carried out the inspection. This is due However, by meeting an agreement
country and therefore they are to most 95A letters stating that it is with the BCA on the best path
willing to accept our input on these “not limited to” the items that have forward to achieving the issuing of a
types of matters. been listed. CCC, then the outcome is more likely
to be just that.
It is also a good idea to fully Once the survey has been completed
discuss with your clients that this there will more than likely be the As a last note to resolving an old
process may take some time to requirement for remedial work to outstanding building consent,
work through and that patience be carried out. At this point, it is should the BCA still refuse to grant
will be required. If there is a Sale recommended that a meeting with a CCC for whatever reason, then
and Purchase Agreement on their the BCA be held to discuss the the only pathway forward is to
property, getting a CCC may not be remediation plan and ensure that apply for a determination with the
achievable before the settlement the BCA agrees with the pathway Ministry of Business, Innovation
date, but this is something the client forward and, once the remediation and Employment (MBIE) which will
and their legal advisor can discuss. work have been completed, the BCA bind the two parties to whatever
It is best to be very up front with will issue CCC. There is nothing worse decision MBIE rules. Here again, we
your clients, so they know what is than carrying out the repairs to then as registered building surveyors with
happening before you begin the CCC find out the BCA will not be in a NZIBS will possibly be called on to
process. position to grant a CCC for reasons provide a report with outcomes of
that would have been made clear our findings for MBIE to assist them
The steps required range from at the time of the meeting with the in their decision-making and final
carrying out a weathertight survey BCA to discuss the remediation. ruling.
(commonly asked for by BCA’s
due to their limited specialist Once all remedial work has been It is also a good idea to fully discuss
equipment and time restrictions) to carried out, then an application for with your clients that this process
proving non-inspected areas that a CCC (Form 6) can be made. It is may take some time to work through
were missed during the building highly likely – depending on the age and that patience will be required.
of project are complying with the of the consent – that a wavier to If there is a Sale and Purchase
consented plans. There are also B2 Durability backdating the time Agreement on their property, getting
times when BCA’s have no records that this building code clause starts a CCC may not be achievable before
of the inspections on a building, will be required. This date may be the settlement date, but this is
perhaps caused when councils have two or three months after the last something the client and their legal
amalgamated, and the files have inspection the BCA carried out or advisor can discuss. It is best to be
become lost. In a situation like when building work was practically very up front with your clients, so
this, the best approach to proving completed and the building was first they know what is happening before
compliance is to take the COA used. Again, this should be discussed you begin the CCC process.
approach (as outlined in an earlier when meeting with the BCA.
article on COA’s, NZIBS The Journal
ISSUE 3 OCTOBER 2019 11NIZBS UPDATE Proudly celebrating 25 years With a quarter of a century under their belt as one of the country’s most professional industry bodies, the NZIBS celebrated their collective efforts in the city where it all began. 16 ISSUE 3 OCTOBER 2019
NZ INSTITUTE OF BUILDING SURVEYORS JOURNAL
ISSUE 3 OCTOBER 2019 17LEGAL UPDATE
Getting the lay of the land
It is not unusual to find yourself be maintained. In practical terms, land but also include resulting
working on a property or land in provision must be made to maintain, damage to buildings, which can
New Zealand with a contour which preserve or uphold the status quo. quickly become a significant issue.
may have an impact on the scope What is required, legally, is not to
or nature of the job. When working interfere with the land that is being The requirements of the obligation
in these situations it is important to modified in a way that adversely are negative rather than positive; in
understand the legal rights between affects the right of another to enjoy other words, it is an obligation not
neighbours to ensure there are no their own land (Brouwers v Street to do something rather than to do
ongoing issues as a result of your [NZCA]). something. The best choice of action
actions or to ensure you do not will always be not to undertake any
unwilling expose yourself or your Importantly in the building context, work before taking the necessary
client to risk. the obligation does not extend to steps to ensure that all surrounding
a responsibility to provide support issues have been well-thought-out.
For instance, you may be directed for any non-natural use of the land, Even where your clients have consent
to undertake (or manage) the such as additional building works. to undertake the project, checking
excavation of their section and the This is important to consider when in quickly at the beginning to raise
removal of an existing retaining wall. you are completing work above a any questions that may not have
Despite what many landowners may retained site. It may be the existing been considered can save thousands
believe, there is no concrete right to reinforcement, while sufficient to of dollars, countless hours, and
modify their own property without support the status quo, will not unnecessary stress down the road.
regard to how this may affect their extend to additional stress, and
neighbours. In this circumstance part of the job may be to complete
you could risk liability if you did additional strengthening to
not inform your client of their neighbouring reinforcing.
responsibility to neighbouring land.
The obligation is not extinguished
Under the common law, a landowner merely because your client has
has the right to “natural support” obtained the necessary Council
and in return, the obligation not to consents to undertake their project.
interfere with the “natural support” The High Court discussed this issue
of any adjacent or subjacent in Hawkes Bay Protein v Davidson in
Michael Wolff
neighbour. “Natural support” is a 2002 and held that “even if there [is]
Michael is a litigation law and dispute
legal term of art – this does not compliance with planning permission,
resolution expert with extensive
mean that land must be left as-is, such is not a defence”. The cost of experience in dispute resolution,
however requires that whatever damages where support is removed construction and insurance litigation.
support was naturally occurring must will relate not only to the affected
NZIBS SPONSORS
Thank you to our sponsors
18 ISSUE 3 OCTOBER 2019You can also read
