An empty section after some Bella Vista homes were removed. Photo / File
The judge who presided over a five-week trial amid allegations five parties involved in the failed Bella Vista Homes subdivision breached the Building Act has released his verdicts.
Judge Paul Mabey QC convicted developer Danny Cancian of breaching the Act in relation to three of the properties in the development. Cancian's company Bella Vista Homes Ltd (BVHL), which is now in liquidation, was also convicted.
Judge Mabey released his written verdict yesterday in relation to a raft of charges laid by Tauranga City Council against five parties linked to the subdivision.
The three other defendants prosecuted by the council were engineer Bruce Cameron, his company The Engineer Limited, and bricklayer Darrel Joseph.
All of the charges related to allegedly carrying out building work not in accordance with the Building Act, in particular not in line with a building consent and/or approved plans.
The council brought charges against the five parties after 21 houses in various stages of completion in The Lakes were evacuated in March 2018.
The charges related to eight of those properties, including seven in Lakes Boulevard and another in Aneta Way.
Cancian and Bella Vista Homes Ltd each defended seven charges.
The council alleged block foundation walls at 297, 297A, 299, 301, 301A, and 307 Lakes Boulevard were not constructed in accordance with approved plans.
This included alleged defects in the steel reinforcing and that the wall footings in some rear walls were inadequately sized to resist soil loads.
The council alleged the timber cladding system at 5 Aneta Way was not built in line with approved building plans, the building consent, nor to the manufacturer's requirements.
Judge Mabey found Cancian and Bella Vista Homes guilty of three charges each in relation to non-compliant works at 297 and 301 Lakes Boulevard and 5 Aneta Way.
But the two defendants were acquitted on four further charges each relating to construction works at 297A, 299 and 301A Lakes Boulevard.
Joseph was convicted of the three charges he defended which related to block laying work he had undertaken at 297, 299 and 307 Lakes Boulevard.
His convictions related to defects in block walls and foundations including inadequate wall footings and reinforcing steel at those three properties.
Cameron and The Engineer Ltd were found guilty of six of the same charges each, relating to non-complying building works at numbers 297, 301, 303 and 307 Lakes Boulevard.
Judge Mabey said the prosecution related to alleged breaches of the Building Act, and the case was not about why Bella Vista subdivision had failed.
"I heard evidence concerning the absence of retaining walls, alleged council incompetence or misconduct, why BVHL went into liquidation and other cross-claims between interested parties.
"It is not my task to resolve these matters unless they impinge directly upon what I must decide in relation to the charges," the judge said.
Judge Mabey said Cancian, in his evidence at the trial and in his interview during the council investigations, was adamant the failure was due to the council's actions.
He said Cancian had said more than once he was a victim of the council's obstruction by excessive requests for further information and "biased and prejudicial inspectors".
Judge Mabey said Cancian's credibility was a "central consideration" in relation to his charges, and his evidence was not preferred where it conflicted with other witnesses' evidence.
The judge said rather than face reality, Cancian chose to attribute the failure of the subdivision to "unreasonable and personally targeted decisions by council officers".
Cancian claimed these officers had been "determined to put him out of business", which Judge Mabey said he did not accept.
"My impression of the council officers was that they were fair, reasonable, objective and doing no more than their job.
"They were subject to threats and intimidation, and, in Ms Hubbard's case (a council building inspector) a personal attack on Facebook such as she had to change her name. "
Judge Mabey said he found Cancian "neither credible nor reliable on central issues" and rejected his evidence where it conflicted with other evidence he accepted.
The judge said Cameron's six charges related to block work and ground bearing issues.
Cameron was accused of inspecting building works at some of the homes and submitting producer statements to the council indicating the works were safe and compliant.
Producer statements directly relate to code compliance certificates which certify that the work carried out was consistent with the building code.
Cameron gave evidence during the trial that the works he signed off on would have no issue if the building works had been carried out in accordance with the consent.
This was a submission Judge Mabey rejected. He said, in his view, Cameron had failed in his duty as an engineer at a "high level".
Judge Mabey said he found Joseph guilty by taking into account admissions made during his interview with the council.
Joseph admitted he "fell below" the standard required of a Licensed Building Inspector.
This included making statements of "incomplete attention to the plans, incomplete and inappropriate application of his trade skills" and "a lax attitude" to compliance with the requirements of the building code.
Judge Mabey has set a nominal sentencing date of January 22.
The maximum penalty for each charge is a fine of $200,000.
In February, 2018, experts were brought in by the council to assess each home for defects, subsequently leading to their evacuation on March 9, 2018. In November that year, the council bought the homes from the owners for $14 million.
Bella Vista Homes Ltd:
Three charges of breaching building consent in relation to 5 Aneta Way and 297 and 301 Lakes Boulevard, in particular: Foundation block walls not constructed as per approved plans; Timber cladding/ cladding system not constructed as per plans, consent specifications and NZ Building Code and manufacturers requirements, specifically incorrect formation of external corners and failure to provide a position for drainage; and cut ends of timber weatherboards not fully primed.
Danny Cancian, director of Bella Vista Homes Ltd:
Three charges of breaching building consent in relation to 5 Aneta Way and 297 and 301 Lakes Boulevard, in particular: foundation walls not constructed as per approved plans: timber cladding or cladding system not constructed as per plans, consent specifications and NZ Building Code and manufacturers requirements - specifically incorrect formation of external corners and failure to provide a position for drainage; and cut ends of timber weatherboards not fully primed.
The Engineer Ltd:
Six charges of breaching building consent in relation to 297, 301, 303 and 307 Lakes Boulevard in particular: Block foundation walls not constructed as per approved plans; inadequate ground-bearing capacity; misplaced or absent reinforcing steel; and wall heights exceeding approved plans.
Bruce Cameron, director of The Engineer Ltd:
Six charges of breaching building consent in relation to 297, 301, 303, and 307 Lakes Boulevard, in particular: Block foundation walls not constructed as per approved plans; inadequate ground-bearing capacity; misplaced reinforcing steel; inadequate wall footing; and wall heights exceeding approved plans.
Darrel Joseph:
Three charges of breaching building consent in relation to 297, 299 and 307 Lakes Boulevard, in particular: Block foundation walls not constructed as per approved plans; inadequate wall footing; misplaced or absent reinforcing steel; and wall heights exceeding approved plans.
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