Last Friday we attended a hearing for the test case. The hearing was run by MBIE officials and attended by Wellington City Council.
Disagreement between the parties centered around the interpretation of key words in the ‘Meaning of earthquake-prone building’ s 122 of the Building Act:
Ultimate capacity – EBSS contended that ‘ultimate capacity’ should be interpreted in accordance with its natural and ordinary meaning. A building’s ultimate capacity is exceeded when it fails in a structural sense and could collapse. WCC contended that ‘ultimate capacity’ means ‘ultimate limit state’ which is a defined engineering term. At the point a building’s ultimate limit state is reached there is an extremely low probability of collapse. We think this is inappropriate and if Parliament wanted to set this standard it would have used ‘ultimate limit state’ instead.
Likely – EBSS contended that to give meaning to ‘likely to collapse’, given a natural and ordinary interpretation of ‘ultimate capacity’, it must connote a high degree of probability. WCC contended that ‘likely’ means something that ‘could well occur’.
We went on to present evidence that the probability of the test case buildings collapsing in a moderate earthquake (the legal test) is in the range of 1:15,000 to 1:40,000 based on GNS Science data. WCC did not dispute this point. This cannot be considered ‘likely to collapse’ even on the most strained definition of ‘likely’.
A number of other technical points were traversed, including some procedural issues that may leave WCC vulnerable. MBIE will be issuing a further draft determination and taking further submissions from the parties before issuing its final determination.
The MBIE officials appeared to genuinely engage with our ideas. We hope this will translate to a positive outcome.