Wellington council fights to take possession of earthquake-prone building

The heritage building at 114 Adelaide Rd. Photo / WCC Heritage

A wrangle over earthquake-prone building legislation, heritage, and the question of who pays has played out during what felt like a game of ping pong in a Wellington courtroom this afternoon.

In a landmark case, Wellington City Council wants the court to give it authority to take possession of the Adelaide Hotel building to carry out long overdue earthquake strengthening work. The owner would then be liable for the costs.

It's the first time a council has applied for such an order.

The iconic watering hole, also the former Tramway Hotel, was built in 1899 in Mt Cook and is listed as a heritage building.

It's also earthquake-prone, which means it's less than 34 per cent of the New Building Standard (NBS).

The deadline for seismic work was almost seven years ago in December 2013. Current owner Lakhi Maa Limited purchased it in 2015.

The council and the company's director have been unable to reach an agreement to make the building safe, so the case has landed in court.

Everyone in the room today was sensitive to the fact the resulting decision will create a precedent.

Lawyer Kevin Smith represented Lakhi Maa Limited and argued the purpose of the earthquake-prone legislation was to protect the users of a building, which in this case is derelict and unoccupied.

He therefore questioned whether the rules were applicable and noted the unreinforced masonry on the outside of the building has been secured.

But Judge Chris Tuohy did not appear to be persuaded by that argument given the state of the building's core structure.

"What they're hanging on to might go in the next northerly", he said.

Tuohy also questioned the suggestion that councils couldn't do anything about an earthquake-prone building unless it was occupied.

Smith found more favour with the judge in his criticism that the council's application was vague.

It asks for the authorisation to undertake "seismic work" and doesn't elaborate further of what that would entail, although neither does the legislation itself.

"The council notice seems to indicate that it's asking for the power to do whatever it wants at the cost firstly of the ratepayer and then owner," Smith said.

Outside the Wellington Corporation Tramways shed, Drummond Street, 1900. Photo / WCC

"The application before you is basically for a blank cheque."

Wellington City Council's lawyer Nick Whittington said it was a "bit odd" to think of the council being given a blank cheque.

He said council had other controls on it including democratic accountability, procurement rules, and a raft of policies they were obliged to follow.

Smith argued Tuohy should play an involved role throughout the council's process of seismic work, if the application was granted, to ensure each stage was fair and reasonable.

Whittington suggested a stage by stage assessment of the court every time an earthquake-prone building notice expired would be onerous, considering the 550 buildings with looming deadlines in Wellington alone.

Playing out in the background of the court action is an application by the owner of the building to demolish it, which could be difficult because of its heritage protections.

Smith suggested the court case should be adjourned to see the outcome of that application so as not to waste time and resource.

Tuohy speculated any court order for demolition could have the ability to override the resource consent process anyway.

"This legislation's not about heritage, it's about public safety, nothing else, he said.

"If a piece of legislation is in there to stop people being killed in earthquakes, then how far are heritage values to be taken into account?"

But Whittington said he understood the Building Act and Resource Management Act sat side by side.

The Building Act allowed for a judge to give the council the authority to do the work, but the Resource Management Act still then had to be satisfied for the actual work itself.

Whittington noted Tuohy was in an unfortunate position with this case being the first of its kind before the court and dealt with a difficult section of legislation.

Tuohy acknowledged the incredible power he was being asked to exercise "with no direction at all from Parliament as to how and why".

The relevant section of the earthquake-prone building legislation merely states a territorial authority may apply to the district court for an order authorising it to carry out "seismic work".

This action is available to a council if the strengthening deadline has been missed, or the owner is not proceeding with reasonable speed in light of that deadline.

Tuohy said he intended on delivering an interim decision in the coming weeks setting out a framework for an ultimate decision.