A question of consent

How could a house be built so differently from the council-approved drawings and still be signed off by Auckland City Council building inspectors?

Plans submitted for building consent for the Ponsonby Gardens townhouses showed a ventilating drainage cavity between stucco and framing timber. But they were built without a cavity - something the owners would learn only when assessors investigating their leaky homes removed the cladding. In its place was Triple S, a fibreboard backing which, when its edges are unprotected, acts "like blotting paper".

There were other changes that contributed to leaks, such as the use of an alternative waterproofing and design changes to balustrades and parapets.

And there were obvious areas of non-compliance - cladding sunk into the ground and the lack of a "step down" between internal and external levels. Did building inspectors turn a blind eye or simply miss these departures from the plans?

The owners believed the changes were significant enough to require the developers to apply for a new building consent.

But council lawyer Rodney Harrison, QC, argued the council was obliged to allow such variations under the "permissive" 1991 Building Act. Harrison said the 1991 act gave both builders and councils far more leeway to decide what was an "acceptable solution" under the building code.

Building code compliance was to be judged "largely by performance results rather than stipulating in advance precisely what materials and techniques must be adopted".

For the owners, John Gray argued the council completely misinterpreted its role and powers under the new act. The onus was on inspectors to "positively form an opinion" that a building was constructed in line with the building consent and in compliance with the building code.

The claimants alleged other council failings: the inexperience and training of at least one inspector, the inadequacy of the drawings and the dearth of council records about the project.

Adjudicator Tony Dean found that although the lack of details in the drawings indicated a "slack attitude" by council officers, the council was justified in issuing building consent.

The use of Triple S backing was not a problem in itself. The cladding failure was caused by inadequate clearances, inadequate junctions between plaster and weatherboard and the failure to flash or seal the exposed edges of the Triple S.

"All of these matters were capable of being seen during one or other of the routine inspections ... and all of them should have been noticed, even judging by the standards in 1995-96."

Dean found the council negligent in issuing the building code compliance certificate at the end of the project and ordered it to pay $106,000. The council spent more than three times that amount defending the case. A further 964 claims within the Auckland City Council's boundaries are lodged with the service.

An unknown number of claimants are awaiting court proceedings.