The Toomath’s building in Wellington was the subject of a landmark court case and could have been a blueprint for ending the wrangle over earthquake-prone building legislation, heritage, and the question of who pays - until the property went up in flames on Sunday.
Wellington City Council has issued a dangerous building notice requiring urgent works to demolish the derelict two-storey masonry structure built in 1900.
The building has historic value for its association with the estate of Edward Toomath, an early Wellington settler highly regarded as the father of education in New Zealand.
However, public safety has overruled the protection the earthquake-prone property had through its heritage status.
Historic Places Wellington chairwoman Felicity Wong said it was a preventable situation.
“We don’t yet know the cause of the fire but if the building was being properly cared for, it would be a different story. It is demolition by neglect – plain and simple.”
It is an abrupt end to what has at times felt like a game of legal ping pong over the past decade.
Ministry of Business, Innovation and Employment records show the building was issued a red sticker notice when the earthquake-strengthening deadline expired in 2013.
The council then tried to work with the owner to get the building strengthened but failed to get any traction.
All other avenues were considered to be exhausted when the council cordoned off the building in 2019 due to the safety risk.
Later that year the council applied to the Wellington District Court to take possession of the building, strengthen it, and charge the costs back to the owner.
The council also applied to do the same for another building in the city, the former Adelaide Hotel, which was also meant to be strengthened by 2013.
There are other buildings in Wellington with expired strengthening deadlines, but the council has long considered these two as the most risky.
Wellington District Court Judge Chris Tuohy heard the case for the former Adelaide Hotel building in November 2020.
Tuohy acknowledged the power he was being asked to exercise “with no direction at all from Parliament as to how and why”.
The relevant section of the earthquake-prone building legislation merely states a territorial authority may apply to the district court for an order authorising it to carry out “seismic work”.
Lawyer Kevin Smith, who represented the owner of the building at the time of the case, said the council application was vague because it didn’t elaborate beyond asking for the authorisation to undertake “seismic work”. Although it was only as vague as the legislation itself.
“The council notice seems to indicate that it’s asking for the power to do whatever it wants at the cost firstly of the ratepayer and then owner,” Smith said.
“The application before you is basically for a blank cheque.”
Tuohy declined the council’s bid, after considering the fundamental issue of whether it should be given permission to strengthen the building without specific plans for the work.
The council then successfully took an appeal to the High Court to take possession of both the former Adelaide Hotel and the Toomath’s Buildings to get them strengthened.
It was considered to be a landmark case. It set a precedent for future cases as it was the first time a council in New Zealand had applied for such an order.
Justice Rebecca Ellis said in her decision the requirement for councils to do preliminary design work before applying to take possession of a building presented legal and practical difficulties such as getting into the building.
“It is not difficult to imagine that some building owners would decline to do so in order to thwart or delay the statutory processes. Again, that is utterly at odds with the relevant statutory scheme,” she said.
Ellis acknowledged that building owners, such as those involved in this case, have concerns.
“In particular, they say that an order permitting a territorial authority to do whatever seismic work it sees fit leaves them open to being required to pay for extravagant or ‘Rolls-Royce’ earthquake strengthening (of, say, 90 per cent new building standard) and may well be inconsistent with whatever plans the owners themselves have for the buildings.”
However, Ellis said such concerns were overstated in her view.
In April 2022 the owner of the Toomath’s Buildings lodged a case with the Court of Appeal and received resource consent approval from the council to strengthen the property that same month.
But by the following year, the two parties had managed to settle their differences and appeal proceedings were dropped.
As of this month, discussions between them regarding seismic work were ongoing and the council was waiting on further information on plans.
Flames burnt through the roof and debris fell to the ground when fire broke out at the Toomath’s Buildings on Sunday afternoon.
One witness said it reminded her of the deadly Loafers Lodge fire from earlier this year.
“We saw smoke blooming out of the abandoned building’s windows and roof. It was quite bad. The smoke was brown, turning to black,” she said.
“The entire upper Cuba St was just - it looked like fog rolled through the city.”
No one was killed or injured. Police want to speak with four young people seen entering the building before it caught ablaze.
Ghuznee St remains cordoned off from Marion St to Cuba St. There is no access for southbound traffic down Ghuznee St and pedestrians and motorists are being told to avoid the area if possible.
Demolition work will begin as soon as reasonably practicable.
Wellington City Council chief planning officer Liam Hodgetts acknowledged the situation was frustrating for local residents, pedestrians and commuters but said public safety is the priority.
“Our staff are working closely with the building owners to resolve this situation as fast as possible, and while there are a lot of considerations required for such a major undertaking, we are on the right track.
“We advised the owners of the building of the absolute urgency in getting the work completed to address safety concerns and the need to reopen the road, and they are complying with our requests. We will support them in their endeavours to achieve this and the next steps.”
As of August, there were 577 earthquake-prone buildings in Wellington. Hundreds of strengthening deadlines for these buildings will expire this decade with a spike in 2027.
If owners do not complete the strengthening work on time, the council can impose safety requirements such as hoardings or a fence to prevent people from approaching the building.
It can also seek a conviction and fine not exceeding $200,000, or it can take possession of the building and do the work itself.
Wellington City Council’s approach is to work with owners and only intervene as a last resort.
The council will never know what would have eventuated with the Toomath’s Buildings if the fire hadn’t happened.
As for the old Adelaide Hotel, council spokeswoman Victoria Barton-Chapple said the owner has obtained a resource consent allowing for the majority of the building to be demolished with the facade retained.
The plan is to construct a new building behind it.
“The council understands that the owner is not likely to implement that resource consent in the immediate future and has not lodged a building consent to undertake this work,” Barton-Chapple said.
“The council is scoping the most appropriate way to resolve the building’s earthquake-prone status, to further inform its decision-making.”
Georgina Campbell is a Wellington-based reporter who has a particular interest in local government, transport, and seismic issues. She joined the Herald in 2019 after working as a broadcast journalist.
The Government wants to keep operating them for another year.