Test case battle lines drawn

On 17 March there was a hearing in the District Court.  At issue was the WCC’s application to have a detailed seismic assessment (DSA), purportedly based on an American engineering standard, accepted as evidence for the Appeal of MBIE’s Determination ruling on the EPB status of 124 Wakefield St. This is unusual. An appeal should normally be argued on the evidence that was put before the lower court of tribunal.  We were opposed to its introduction. The Council had to demonstrate that the evidence was cogent, fresh or there were special circumstances, and they had not.

The hearing started badly for the Council. They had not even provided the DSA to the Court, and as Judge Tuohy pointed it was not evidence as it had not been presented by a witness. Nor had it been subject to testing in the determination process. These were all points that we had made.

The Judge then took a more strategic view. He had reviewed the file, and had a reasonable knowledge of the case. The critical question was whether the building was earthquake prone now, not whether the Council followed an appropriate policy back in 2010.  In that respect MBIE’s Determination had missed the point.

It seems clear to him that a Initial Evaluation Procedure (IEP) score could not have been sufficient to determine whether a building was earthquake prone.

Judge Tuohy said that this was an important issue and In deciding whether the building was earthquake prone a judge would want to have access to expert opinion from both sides, including what had been leant from Christchurch and the Wellington earthquakes in 2013 and 2016. Otherwise it was likely that the case would be put back to MBIE for a rehearing, and he surmised that we would not find that appealing. He was right about that.

The upshot is that:

  • The parties agreed that the key issue was that whether the building was earthquake prone now.
  • We would get our expert evidence together to present to the Court.
  • The Council’s DSA will be accepted as evidence
  • It is likely that the appeal will effectively become a new trial with new expert evidence and some provision for cross-examination.

So we will be presenting, in addition to the evidence presented to the Determination:

  • A critique of the Council’s American DSA and why it does not apply the New Zealand legal tests.
  • Evidence on the performance of reinforced concrete buildings in the Hawkes Bay, Christchurch, Wellington and other earthquakes.
  • An assessment of the probability of the building collapsing in a moderate earthquake using the GNS Science model.

This was a good outcome for us. We get a head to head battle in a real court on the key issue. Is the building likely to collapse in a moderate earthquake.

On whether it was good for the Council, we will see. It seems clear that they would be toast on the day if they were just to rely on the IEP. But that would be likely to just result in a referral back to MBIE. Now they face the prospect of a loss on the real issue.