A landmark High Court decision suggests that the way should be clear for Auckland Council to get on with the job of facilitating the repair of leaky buildings under the Financial Assistance Package, rather than looking for legal loopholes to get itself off the hook, says leading lawyer Adina Thorn.
She says the judgment by Justice Heath addressed the issue of whether apartments on the Unitec campus and the AUT campus are “dwellinghouses”. The Court found they were dwellinghouses. The Council had declined its contribution because it said the apartments were “hostels” “or other institutions”.
“Unfortunately for the owners in this instance, the Council had taken the line that the buildings were not ‘apartments’ but were instead ‘hostels’ or ‘other institutions,’ and therefore were not entitled to the Council’s 25% contribution under the Financial Assistance Plan.
The Council’s view that they were “hostels” or some kind of “other institution” ignored the fact they were ordinary self-contained apartments. There were no communal kitchens.
Adina noted: “It seems odd from a building compliance point of view the regulatory arms of the Council seemed to treat them as apartments. Yet when the Council was asked to contribute under the FAP, it maintained they were not “dwellinghouses”.
Adina Thorn says the decision raises the question of how many other dwellings have been wrongly declined contributions under the FAP.
“Given there are few claims that have successfully accessed the Financial Assistance Package, it suggests there may be other claims that have been wrongly declined contributions”.
She says the issues raised in these proceedings are significant. Many leaky home owners, who wish to obtain contributions, will desire clarity and consistency under the Financial Assistance Package scheme and they should take legal advice.
She says the Financial Assistance Package legislation was enacted to make it easier for the unfortunate people owning leaky buildings to obtain at least half of the cost of repair, without the need to take legal action.
“It is supposed to make it easy for them to access funding readily and quickly from the Government and territorial authorities. These proceedings highlight how difficult the FAP process can be – especially if owners have to go to Court to challenge the Council’s decisions”.