Bella Vista: a summary so far

A report written by Paul Heath QC investigating the Tauranga City Council’s role in the Bella Vista Homes subdivision found it did not adequately perform some of its functions

Tauranga City Council (TCC) commissioned Mr Heath to write the report after it came under fire earlier this year for ordering the evacuation of 21 residences built by Bella Vista Homes at The Lakes subdivision in Pyes Pa, including four that had been issued with Code Compliance Certificates (CCCs).

The homes were located on two subdivided sites at Aneta Way and Lakes Boulevard. After receiving a series of reports, the council issued 17 of the dwellings with dangerous buildings and characterised another four as affected.

Under the Building Act 2004, a building can be considered dangerous if, in the ordinary course of events (excluding the occurrence of an earthquake), the building is likely to cause:

1. a) Injury or death (whether by collapse or otherwise) to any persons in it or to persons on other property.
2. b) Damage to other property. An affected building is defined as one that is adjacent to, adjoining, or nearby a dangerous building. Subsequently, the dangerous building notices for 2, 3 and 4 Aneta Way were lifted.

In April, the council asked Paul Heath QC to investigate its involvement with the 21 properties, with the terms of reference focused on identifying whether or not the council performed its regulatory functions adequately and not why it may have failed to perform them adequately.

In his report, Mr Heath notes that issues with the land were identified in a 2015 report written by Coffey Geotechnics, which was prepared following the completion of earthworks for stages 3A and 3B of the Lakes subdivision and was presented to the council as part of the resource consent application process.

It noted that the ground was not good ground and had a lower bearing capacity than normal, but was defined as suitable for raft floor slabs. It also included cautions about the use of fill and leaving exposed cuts, and stipulated that some of the properties needed to allow for the collection and disposal of storm water from an adjacent slope.

Resource consent process questioned

The Coffey report was later relied on in 2016 as part of an application to vary conditions of the land use consent. An application was also made to amend the consent notice conditions to facilitate the change.

After seeking further information, the council granted both applications on a non-notified basis. In his report, Mr Heath questions whether the council dealt adequately with geotechnical aspects of the applications:

“The point that has concerned me is whether the council ought to have made further inquiries to determine whether the April 2015 Coffey report could be treated as providing a reliable foundation to answer safety stability concerns that might otherwise arise out of the proposed subdivision […]

My concerns are based on the type of information that those responsible for processing the applications needed to possess in order to determine whether there were any grounds on which they should be refused.”

Mr Heath particularly noted that the Resource Management Act emphasises the importance of inquiries into site-specific geotechnical considerations in circumstances where there is potential for damage from materials, and that the council could have imposed conditions under the Act to ensure the geotechnical aspects of the applications were properly dealt with.

Building inspection and geotech issues; council found wanting

Mr Heath summarised the findings of a series report written by experienced building advisor Rose McLaughlan, stating that she found six main defects that were common to most of the properties:

1. An absence of retaining walls that has led to the erosion of the slopes that sit between the Lakes Boulevard and Aneta Way properties. None of the four properties issued with CCCs are affected by this defect.
2. An absence of engineering inspection reports dealing with ground conditions, footings and block walls. These defects apply to all of the Lakes Boulevard properties.
3. Failure to provide a building platform to raft slabs, and undermining of footings.
4. Failure of the tanking membrane, and inadequate drainage behind walls.
5. General construction defects, such as cladding, drainage and structural connections.
6. Vehicle access and manoeuvring.

Mr Heath also relied on a number of reports prepared for the council by multinational engineering firm AECOM that concluded a number of the buildings were dangerous under s121 of the Building Act 2004. One of the reports, which focused on the un-retained slopes at the rear of Lakes Boulevard building, states that:

“The geotechnical engineering assessment is primarily required due to the unretained slopes (up to approximately 6m high) at the rear of the Lakes Boulevard buildings. It is considered that in heavy or prolonged rainfall it is likely that instability will occur in the slopes, which could result in destabilisation of 5 and 6 Aneta Way, and the potential collision of debris with the buildings below on Lakes Boulevard. Secondly, ongoing erosion and lack of support to parts of the foundations of 301A and 307A Lakes Boulevard is likely to cause partial collapse of the masonry walls in these buildings.”

Mr Heath said that a second report written by AECOM concluded that:

1. Bella Vista homes had provided insufficient detail in its resource consent applications to show that the development could be undertaken in accordance with regulatory requirements.
2. No contemporary geotechnical report appeared to have been made available to (or requested) by the council, in a manner that conforms with relevant provisions of the Infrastructure Department Code.
3. There was “widespread noncompliance” with the stability requirements of clauses B1 and

B2 of the Building Code. AECOM stated that “in many cases as-built site works are not in accordance with the approved plans”, something that was exacerbated by “insufficient inspection by engineers”.

These arose out of the need for Bella Vista Homes to undertake earthworks in order to construct the 21 dwellings over two subdivided sites.

In his report, Mr Heath concluded that while the council dealt adequately with the resource consent applications made in respect of the Bella Vista subdivision, it did not perform monitoring and enforcement functions adequately in relation to geotechnical aspects of the intended construction works.

He also stated that the council did not perform its Building Act inspection functions adequately, in response to both geotechnical and structural considerations, and that it shouldn’t have issued the four properties with CCCs.

Mr Heath also noted that there is a need for some form of inquiry or investigation to ascertain why the council failed to adequately perform its regulatory functions, as the terms of reference of his report focused only on identifying whether or not the council performed its regulatory functions adequately and not why.

The aftermath

Following the release of Mr Heath’s report, the council voted to purchase the 21 properties. In a media release dated 6 June, the council announced it will begin negotiations with individual homeowners to achieve full and final settlement.

While there is no time frame set for the negotiations, Chief Executive Garry Poole said that the council will move as quickly as possible to have the matter resolved.

“We know that this has been a difficult situation for homeowners and residents, who have been living in temporary accommodation since March, but we hope that today’s decision lifts some weight off their shoulders,” said Mr Poole.

The cost of purchasing the 21 properties is unknown and will be part of the negotiations. It is also likely that a number of court actions will follow, which could set legal precedents that will have wider consequences for the building industry.

For a full copy of Paul Heath QC’s report, visit: https://www.tauranga.govt.nz/council/council-news-andupdates/latest-news/artmid/456/articleid/2525