Bella Vista Homes developer and two other parties appeal convictions

Former Bella Vista Homes Limited boss Danny Cancian. Photo / NZME

Parties convicted of alleged wrongdoing in the Bella Vista Homes saga have taken the matter to the Rotorua High Court in a bid to have their charges overturned.

In 2020, former property developer Danny Cancian was convicted of breaching the Building Act in relation to three properties within the 21-home development following a five-week trial.

His company Bella Vista Homes Ltd (now in liquidation) was also convicted in relation to non-compliant works.

Engineer Bruce Cameron and his company The Engineer Limited was convicted of various charges relating to carrying out building work not in accordance with the Building Act.

Cameron was accused of inspecting building works at some of the homes and submitting producer statements to Tauranga City Council indicating he was satisfied the works were compliant.

In the High Court on Tuesday, lawyer Gregor Alan before Justice Graham Lang said his clients Cameron and The Engineering Ltd should have been acquitted of their charges as Cameron did not carry out the building works nor supervised it.

Alan argued Judge Paul Mabey QC had erred in finding Cameron liable for conviction.

"Your honour, Judge Mabey's reasoning for finding guilt was sweeping and denigrating, and heavily relied on the council's negligence theory relating to the producer statements."

Judge Mabey had also relied heavily on the council's expert witness' evidence about those documents, and they had also introduced the issue of compliance with the building code, he said.

Alan said as an independent structural engineering inspector, Cameron should not be held criminally liable for any defective building works outside the scope of his role.

Any suggestion that Cameron should have sought an amendment to the building consent if the contents of the producer statements were incorrect did not wash, he said.

Producer statements are linked to the issuing of code compliance certificates that certify the work carried out is consistent with the building code.

Alan said the council's prosecution case against Cancian was predicated on the basis that as the developer he had his "fingers" all over the entire development.

"We submit that the proposition that Mr Cameron was somehow in a position to seek a variation or amendment to a building consent does not pass muster," he said.

Alan said a final inspection would be required before the code compliance certificates were issued and there was no evidence he was acting as a licensed building practitioner.

The charges were strict criminal liability offences and the council had failed to prove the elements of each charge against his clients beyond a reasonable doubt.

The appeal follows prosecution by Tauranga City Council which brought charges against the five parties after 21 houses in various stages of completion in The Lakes were evacuated in March 2018.

In the 2020 trial, Cameron and his company were fined $45,000 each.

Cancian was ordered to pay $20,000 for each of three charges, totalling $60,000.

The appeal hearing continues today.