In a recent decision of the Christchurch High Court, the Christchurch City Council successfully defended a summary judgment application, writes Sarah Macky, Partner at Heaney and Partners.
The claim was brought by a plaintiff company connected to the development of a substantial 60-unit residential development in Christchurch.
The case is Complete Shelf Company No 8 Ltd v Christchurch City Council [2025] NZHC 1242.
Successful summary judgment applications are typically brought when a plaintiff has a claim against a defendant and the defendant has no credible defence to the claim. Summary judgment applications are usually unsuccessful.
This is often because even though the liability of the defendant may ultimately be found, the only way to properly evaluate the merits of the plaintiff’s claim and the defendant’s defence is for evidence to be carefully considered in the context of a full trial where witnesses give evidence and are cross-examined.
However, in this case, it is not certain that the Council will be found liable even after a full trial.
Complete Shelf argued the Council was liable for approving the building consent for the 60-unit development because there were two defects in the approved plans.
First, there were fire compliance issues as the edge of the balconies of the units needed to be at least 300mm from the centre line of the party wall between each unit; and second there were compliance issues with the balcony overhang in terms of adequacy of fire rating because it was part of the inter-tenancy wall.
Two months after the building consent was issued and construction work had started at the development, the Council carried out an internal audit during which the Council’s senior fire engineer reviewed the building consent drawings.
The Council’s fire engineer concluded the consent drawings did not comply with the relevant fire standard for the 300mm balcony clearance. As a result, Complete Shelf said work on the development had to stop.
Regarding the 300mm balcony clearance defect, prior to the building consent being issued, Complete Shelf’s architect and the Council exchanged information about the need for the 300mm clearance on the balconies. At that time, Complete Shelf’s architect provided a separate drawing to the Council addressing the issue.
Despite this, for some unknown reason, the drawings submitted and approved for the building consent did not address the 300mm balcony clearance issue that had been provided for in the Complete Shelf architect’s separate drawing prior to the building consent being approved.
The Court concluded that Complete Shelf was well aware of the 300mm balcony clearance issue and that the Council acted appropriately up to issuing the building consent.
The Court held it was not appropriate for Complete Shelf to ignore its knowledge (including that of its architect) that the balcony clearance issue had been raised by the Council prior to the building consent being approved.
With regard to the balcony overhang defect, while the existence of this defect could not be explained as having previously been identified prior to the building consent being approved, like the 300mm balcony clearance defect, there was competing evidence on whether it was, in fact, a defect that reasonably ought to be detected when a council reviews plans during a building consent approval process.
In the summary judgment hearing the Council submitted evidence from Mr Peter Sparrow, an experienced building surveyor with experience in how a local authority would approach the issue of a building consent. Mr Sparrow’s evidence was that the Council had acted reasonably in issuing the building consent.
In the summary judgement application, Complete Shelf presented no evidence that directly engaged with Mr Sparrow’s evidence.
As such, there was no clear path available in Complete Shelf’s summary judgment application for the conclusion to be reached that the Council had no defences available to it.
Furthermore, there are clearly evidential issues raised in the evidence of Mr Sparrow that need to be tested and considered in the context of a full trial, meaning that the summary judgment application by Complete Shelf was unsuccessful.
This case is a welcome example of the courts giving just and fair consideration to evaluating the reasonableness of a council’s actions regarding its building approval processes.
It also reinforces the need to consider all relevant evidence when assessing whether or not a council has fallen below a reasonable standard of care in performing its functions.