An earthquake-prone building notice in Masterton has been reversed because the council did not follow the correct
process in issuing it.
The building at 45 Chapel St is owned by Masterton Trust Lands Trust and was one of several near-new buildings designed
by a negligent engineer a decade ago.
These buildings were the subject of a lengthy legal battle between the Trust and engineer Kevin O’Connor and Associates
Limited, the council as the building consent authority, and the council’s peer review engineers.
When issuing the earthquake-prone building (EPB) notice on 45 Chapel St in 2022, Masterton District Council used its own
reports it was “in receipt of”, instead of asking the Trust to provide an engineering assessment, as per legislation.
A determination from the Ministry of Business, Innovation, and Employment said the Trust had questioned the council’s
authority to issue the notice.
“The owner submits that the authority’s process leading to issuing the EPB notice was flawed and therefore the notice is
invalid,” the ruling said.
“The [council] submits that it had grounds for and was justified in issuing the EPB notice “because of the information
it was in receipt of”.
Principal advisor of MBIE determinations Peta Hird said the council had used two of its own engineering reports
“advising that the building fell below 34% NBS”.
The council told MBIE it had to act on the information it had and “could not ignore it”.
"It was not reasonable to put in motion a process under [the Building Act] that could take 12 months, when the council
had all the information it needed to make the assessment,“ the council told MBIE.
“If there was a 12-month delay occasioned by following the process, and an earthquake occurred in that time with loss of
life or injury in the buildings, the council could and should be severely criticised for not acting no the information
it held.”
But Hird said territorial authorities cannot put aside requirements in legislation “even where that authority already
has information which, in its view, establishes it is earthquake prone”.
“I further note it is possible that the interpretation set out in this determination may be applicable to other
properties belonging to the owner.”
The building, occupied by My Ride, has since been removed from the Earthquake Prone Buildings Register, as have
Trust-owned buildings tenanted by Carpet Court and Beaurepaires.
Trust general manager Andrew Croskery said the decision related to a matter that Masterton's council and the Trust "had
a difference of opinion on" in 2022.
“MBIE provided the clarification we all needed. There have been many changes at MDC since 2022 and I believe a similar
circumstance is unlikely.”
He said the Trust relied on its own engineering assessments on its buildings and strengthened buildings that had
assessments of less than 67% NBS.
– LDR is local body journalism co-funded by RNZ and NZ On Air