Wellington City Council has won an appeal in the High Court to take possession of two earthquake-prone buildings, strengthen them, and charge the costs back to the owners.
The decision sets a precedent for future cases as it's the first time a council has applied for such an order.
The deadlines to strengthen 43 Ghuznee St, the Toomath's Building, and 114 Adelaide Rd, the former Tramway Hotel, expired years ago. Both buildings are heritage listed.
A building, or part of a building, is earthquake-prone if it is likely to collapse and cause injury or death, or damage to another property, in a moderate earthquake.
There are about 590 of these buildings in Wellington, which are less than 34 per cent of the New Building Standard (NBS).
In late 2019 the council applied for an order authorising it to undertake seismic work and recover the costs from the building owners, after trying to work with them to no avail.
Wellington District Court refused to grant the orders, ruling the council must first specify the work it intended to undertake so a cost-benefit analysis could be considered against any competing proposal put forward by the building owner.
But the High Court has quashed that decision in a ruling released yesterday.
Justice Rebecca Ellis said in her decision the requirement for councils to do preliminary design work before applying to take possession of a building presented legal and practical difficulties.
For example, councils would not yet have the authority to enter a building to undertake the work, meaning they'd have to rely on building owners to grant them permission to do so.
"It is not difficult to imagine that some building owners would decline to do so in order to thwart or delay the statutory processes. Again, that is utterly at odds with the relevant statutory scheme", she said.
Ellis noted that if a council decided to demolish the building rather than strengthen it, the owner would still retain ownership of the land, right to possession, and right to exclude trespassers.
"All an owner has had taken from them is control over the seismic work to be undertaken in order to make the building comply with the law."
Nor could it be said the property owner has been left without a relevant choice, Ellis said.
The application to take possession of a building in the first place can only be made in the circumstances that the building owner has chosen not to comply with legal obligations imposed on them, Ellis said.
Ellis acknowledged that building owners, such as those involved in this case, have concerns.
"In particular, they say that an order permitting a Territorial Authority to do whatever seismic work it sees fit leaves them open to being required to pay for extravagant or "Rolls Royce" earthquake strengthening (of, say, 90 per cent NBS) and may well be inconsistent with whatever plans the owners themselves have for the buildings."
However, Ellis said such concerns were overstated in her view.
Wellington City Council chief infrastructure Officer Siobhan Procter said council officials will continue to engage with owners regarding next steps, including whether a resource consent is needed given the heritage status of both buildings.
"The court ruling gives the council authority to commence the work required to investigate, design and carry out the seismic work to make the two buildings safe"
Procter said the decision was positive for local authorities seeking to use such powers and set a precedent for future applications.