EPB Test Case


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…
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Test Case Update: Documents confirm Determination bias

On 5 June 2016 draft guidelines for the Seismic Assessment of Existing Buildings were released (available at eq-assess.org.nz). They will replace the NZSEE guidelines that have driven Wellington City Council’s seismic strengthening policy. At a high level the new guidelines are mostly just a rehash and justification of the original guidelines. The documents support our conclusion, if there were any…
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The test case: MBIE gloats over building owners’ gullibility

The key proposition that is being contested in the test case is that the Wellington City Council did not apply the legal test for an earthquake=prone building.  To be an earthquake-prone building, the building must exceed its ultimate capacity and be likely to collapse in a moderate earthquake. The Council switched the ultimate capacity test to ultimate limit state, and ignored the…
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Opening shot fired in test case war

For readers who have been following the test case through the Determination process it will come as no surprise that the Determination has been appealed to the District Court.   The appeal was filed in January and the process started with a case management conference, which was held on Friday 15 April.  The main outcome was that the parties would endeavour…
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Owners of two Wellington buildings have sought a Determination from the Ministry of Business Innovation and Employment (MBIE) overturning the Wellington City Council’s Earthquake prone building designations on the grounds that the Council has not applied the correct legal test to identify an earthquake prone building.  EBSS is assisting the owners.

A Determination is a quasi-judicial process under the Building Act 2004, which gives building owners an opportunity to have a Council decision on various matters under the Act overturned or amended. The process has three steps:

  • Draft determination
  • Meeting
  • Final determination

The Act provides that a Determination must be completed in 60 working days but MBIE has failed to meet this requirement. The final Determination can be appealed to the District Court by either the Council or the applicants.

The case
As explained above the applicant’s case is that the Wellington City Council has not applied the correct legal test for identifying an earthquake prone building. The law provides that an earthquake prone building must be likely to collapse in a moderate earthquake.  

However, the Council has applied a framework, recommended by the New Zealand Society for Earthquake Engineering (NZSEE), that essentially ignores the legal test.  The framework imposes a much stronger test that ensures that, at the earthquake prone building trigger point, buildings are unlikely to collapse in a moderate earthquake.  As likely does not mean unlikely it is clear that the Council’s designations are unlawful.

The definition of an earthquake prone building has been argued in the courts and in December 2014 the New Zealand Supreme Court issued a judgment that confirmed that an earthquake prone building must be likely to collapse in a moderate earthquake.  MBIE is bound by that judgment.


 As the law is settled the Determination should come down to a matter of fact.  A ‘moderate earthquake’ is:

  • Defined in regulation to be one third as strong and with the same duration as a ‘design earthquake’
  • It is similar to the impact of the 2013 Cook strait earthquake on Wellington

and is a 1 in 60-70 year event.

There is overwhelming evidence, presented in the application, that a moderate earthquake in Wellington is not likely to cause the buildings in question to collapse. The odds of a collapse is in the order of 10,000 to one.

Will MBIE do its job?
This determination obviously presents MBIE with some challenges. MBIE has actively promoted the use of the NZSEE framework and has failed to alert Ministers and the public to the legal issues it poses. MBIE has an obvious conflict of interest. It will not only be judging the Council’s actions with this Determination but its own.

MBIE could, and should have, engaged an independent party to advise the Chief Executive on the Determination, but it did not.  The draft Determination was issued in the name of a MBIE executive who played a central role in MBIE’s flawed review of the seismic strengthening framework in 2012.

In the draft determination it is conceded that the NZSEE interpretation of the legal definition of earthquake prone building was not correct.  However, it was still concluded, without any logical argument, that the Councils use of the NZSEE framework was sound.

The applicant’s have responded to the draft Determination in writing and have sought a meeting to discuss it.  We will be presenting the full case on this site in due course.