Aneta Way in the Bella Vista Homes subdivision. Photo / NZME
The lawyer for the former developer of the failed Bella Vista Homes subdivision has urged a Rotorua High Court judge to quash his client's convictions on several grounds.
This included a submission that due to new evidence, former Bella Vista Homes director Danny Cancian believed he had been "disadvantaged" in terms of the defence case he could have run at his trial.
In 2020, Cancian was convicted and fined $60,000 for breaching the Building Act in relation to three properties within the 21-home development after a five-week trial.
His company, Bella Vista Homes Ltd (now in liquidation), was also convicted in relation to the same non-compliant works at 297 and 301 Lakes Boulevard and 5 Aneta Way.
Engineer Bruce Cameron and his company The Engineer Limited have also appealed their convictions relating to building work undertaken not in accordance with the Building Act.
Cameron and The Engineer Ltd were found guilty of six of the same charges each, relating to non-complying building works at numbers 297, 301, 303 and 307 Lakes Boulevard.
He was accused of inspecting building works at some of the homes and submitting producer statements indicating to the council he was satisfied the works were compliant.
In the High Court on Wednesday, lawyer Bill Nabney argued that Justice Graham Lang should set aside Cancian's convictions for several reasons.
Despite Cancian's record of work for 297 and 301 Lakes Boulevard, another licensed building practitioner, Ross Gibson, gave evidence at the trial that he either did the footing work or supervised it.
Given Gibson's evidence and his record of work provided to the council, Cancian should not have been found guilty in relation to those charges, he said.
Nabney said in terms of the 5 Aneta Way conviction, there was new evidence that the Claymark specification manual Judge Mabey relied on was not available when work was completed.
He said if the manual did not exist and the building consent did not refer to this specification, then this charge should not have been found proven either.
Nabney said in terms of the claim that incorrect nails had been used on weatherboards, in the absence of any specifications, it was open to the builder to have used lighter nails.
Cancian believed he had been "disadvantaged" at his trial because of these factors and he could have run a quite different defence case, he said.
Cancian has also appealed his sentence in relation to the Lakes Boulevard properties.
Nabney submitted if the appeal were dismissed for those charges, the fines should reflect the "relatively minor" nature of those offences.
Tauranga City Council brought charges against five parties after 21 houses in various stages of completion in The Lakes were evacuated in March 2018.
Richard Marchant, the trial prosecutor for the council, said despite Cancian's evidence at trial, Judge Mabey rejected any evidence where it conflicted with other witnesses' evidence.
These were strict liability offences and a breach of the building code was, therefore, a breach of the building consent, he said.
The judge found Cancian was the supervisor and project manager for 297 Lakes Boulevard and 5 Aneta Way and "must have known" the footings sizes were non-compliant.
Marchant said Cancian, as the licensed building practitioner for 301 Lakes Boulevard and 5 Aneta Way, was responsible for ensuring the work was fully compliant.
Cancian had also issued a record of work for the footings at 301 Lakes Boulevard, but now claimed that document was fraudulently created, he said.
Cancian also still does not accept he was the supervisor of work at 301 Lakes Boulevard.
Marchant said Cancian did not have the right to "pick and choose" which obligations he should meet under the Building Act and urged Justice Lang to dismiss his appeal
Gregor Alan, the lawyer for Cameron and his company, argued his clients should be acquitted on all charges as Cameron did not carry out any building works or supervised it.
He argued Judge Mabey had erred in finding Cameron liable for conviction and had
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, who also introduced the issue of compliance with the building code."
He said Cameron should not be held criminally liable for any defective building work outside the scope of his inspection role.
Alan said the council's prosecution case against Cancian was predicated on the basis that the developer had his "fingers" all over the entire development
Any suggestion that Cameron had the power to instruct Cancian to seek variations to the building consent if his inspection producer statements were incorrect "did not wash".
Nathan Speir, the council's second legal counsel, rejected those submissions.
He said as the engineer onsite, Cameron's role was to make sure the foundation footings and steel reinforcing work met the required building standard and the building consent.
Cameron failed to do so and his role was "pivotal" to the success of the development.
His inspection sign-offs had effectively given a "green light" to the next person in the chain that they were "good to go" in terms of the next stage in the construction process.
This included him ticking off the concrete filler in foundation walls was "ready to pour".
Judge Mabey found Cameron's culpability was "higher" than Cancian's because his sign-offs were relied upon in terms of whether it was "good ground" to build on.
"And the consequences of these failures have been well documented," he said.
Justice Lang reserved his decision.
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