KEY POINTS:
A court ruling which backed a council plea for the Government to take some share of the blame for the leaky building disaster is being challenged.
Mary Scholtens, QC, said yesterday the Attorney-General had filed an appeal against a decision in the High Court at Auckland which ruled
the Government was responsible for the issue because it reviewed councils.
The Court of Appeal will be asked next year to review Justice Pamela Andrews' ruling which backed the North Shore City Council's plea to drag former state agency the Building Industry Authority into litigation.
At issue is who is to blame for the Grange, a 105-unit housing estate at 92 Bush Rd, Albany. The property was developed by Tim Manning and the body corporate has named various parties in litigation.
Andrew Williams, North Shore City Mayor, said yesterday the decision to appeal the High Court ruling was frustrating and he regarded such action as a waste of time.
"So much energy is going into litigation rather than solutions and local government - and the North Shore has been party to that - has put to central Government the need to come up with some formula to sort out this $2 billion nationwide problem.
"We're going to spend a lot of money through the courts to nobody's benefit and after the election whoever is in power will need to come up with a formula," Williams said.
Local government wants the Government to share half the cost and the other half to be divided equally between homeowners and councils, Williams said.
"That's what we would hope for. The mayors throughout New Zealand had a meeting to endorse that and it's now gone to central government. So far it's landed on deaf ears but the National Party has said they are prepared to look at some form of solution."
He is worried about the court's ruling against his council in the Byron Ave leaky building case, a Takapuna complex in which he said the council did not even issue code compliance certificates.
The court awarded more than $2 million to Byron Ave residents.
Greg O'Sullivan of building consultants Prendos said The Grange appeal posed serious issues for the Crown and council.
"It has ramifications far beyond the court case.
"If this matter was allowed to proceed and the case was heard finding the authority negligent in auditing council, it could potentially bring the authority into every council leaky building dispute in New Zealand.
"Of course, the reverse also applies: if the council fails to prove its case against the authority, the status quo remains and councils are left to face this issue without Crown involvement," he said.
In the Grange case, the council had argued successfully in court that the authority was partly responsible for the leaky building problem because it had reviewed the council. It was negligent because it failed to warn against the risks in approving buildings with monolithic cladding.
The authority was negligent in its performance of statutory functions under the Building Act, Judge Andrews decided.
Scholtens, acting for the Attorney-General, opposed this argument and said the authority was not liable because it only became aware of problems with untreated timber and monolithic cladding in 1998. Its audit of the council was three years earlier.
Also, the 1995 review of the council was only to allow that council to evaluate its own procedures and the authority had no direct power over councils, she argued.