What was the outcome of Tenancy Tribunal case 9049444?

The tribunal order states: By way of declaration, that Body Corporate 516844:

How much money was awarded in case 9049444?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9049444?

The primary dispute was Leaks. Related themes: Healthy homes, Unit Titles.

Where can I read the official tribunal order for case 9049444?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10395957-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9049444?

The tribunal order states: By way of declaration, that Body Corporate 516844:

How much money was awarded in case 9049444?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9049444?

The primary dispute was Leaks. Related themes: Healthy homes, Unit Titles.

Where can I read the official tribunal order for case 9049444?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10395957-Tribunal_Order.pdf.

Auckland Central, Auckland Tenancy Tribunal Case 9049444 — Leaks

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Order

By way of declaration, that Body Corporate 516844: a. has not given the consent sought by JEQ Investment Limited on proposed building works to its unit within a reasonable time; and b. has unreasonably withheld consent to the proposed building works sought by JEQ Investment Limited.

Body Corporate 516844 is to issue its consent to the proposed building works sought by JEQ Investment Limited forthwith.

Quantum of damages and costs are reserved.

Reasons

As owner of commercial unit PU101 at the unit title complex at 70 Anzac Avenue, JEQ Investment Limited (‘JEQ’) seeks the following orders from the Tribunal: a. A declaration that the body corporate consents to the proposal for the proposed works so that JEQ can proceed with seeking the Building Consent for the proposed Works; b. $35,000 as damages for loss of rental income; c. Auckland Council Building Consent application Fee; 2 d. Tenancy Tribunal arbitration fees; e. legal costs; and f. any other order the Tribunal deems fit.

In June 2022, JEQ through its architect ONG Design sought the body corporate’s consent for proposed building works at PU101 70 Anzac Avenue, Auckland City.

Those proposed building works included: a) Installation of a ventilation system; b) Installation of a grease trap system; c) Install internal partitions within the unit; and d) Installation of 3 toilets.

It is common ground that the proposed works to the unit falls under section 80 (h) and (i) Unit Titles Act 2010 (‘UTA’) which require JEQ not to make any additions or structural alterations to the unit that materially affect the use, enjoyment, or ownership interest of any other unit or the common property without the written consent of the body corporate.

Section 208 (1) UTA states that if a provision in this Act requires a person to obtain the consent of another person to do a thing, a person whose consent is requested— (a) must not unreasonably withhold consent; and (b) must, within a reasonable time,— (i) give the consent; or (ii) notify the person requesting the consent that the consent is withheld.

The material issue before the Tenancy Tribunal is whether the body corporate, whose consent is requested by the unit owner, has either unreasonably withheld consent or failed to give its consent within a reasonable time.

Where the Tribunal finds that the body corporate has unreasonably withheld consent or failed to give its consent within a reasonable time, the Tribunal has jurisdiction under s78(1)(a) Residential Tenancies Act 1986 (‘RTA’) to make orders in the nature of a declaration and s176 UTA confirms that s78 RTA applies to the Tribunal’s jurisdiction to hear and determine disputes arising between the unit owner and the body corporate ‘with all necessary modifications’.

Pursuant to s171(3A) UTA the Tribunal may: (a) order any party to do anything necessary to remedy a breach by that party of an obligation arising under this Act; and (c) make any supplementary orders of a consequential or ancillary nature necessary to exercise or perfect the exercise of any of its jurisdiction. 3

Having heard from counsel of both parties and considering the parties’ correspondence and documentation and submissions filed by both parties, I find that the body corporate has unreasonably withheld consent when they failed to give its consent to the proposed works within a reasonable time.

I consider that JEQ has clearly and unequivocally requested consent for the proposed works from June 2022 onwards and supplied all requested documentation as required by the body corporate (or its committee) over an extended period of time.

The 30 June 2022 email from ONG requested Rean Khoo, as the body corporate Manager (“Rean”) for ‘their procedure for supplying bodycorp authorisation letter to allow us to lodge for building consent’. Despite counsel for the body corporate’s submission that this is a mere request for information rather than for consent, I consider it is apparent to the body corporate that consent has been formally sought as far back as in June 2022, more than 2 years ago now. The request for ‘bodycorp authorisation letter to allow us to lodge for building consent’ should have been apparent to the body corporate that JEQ is requesting for consent to carry out building works which require application for and approval of a building consent from the territorial authority.

On 5 July 2022, JEQ’s architect submitted the plans regarding the proposed works with additional information requested by the body corporate committee for their consideration.

Between June 2022 until November 2022, JEQ and body corporate committee (‘the Committee;) and/or the Committee’s representative repeatedly engaged in correspondence so that JEQ may alleviate any concerns which the committee and/or body corporate may have regarding the proposed works.

The Committee, at JEQ’s cost, initially engaged CS & R – Commercial Services & Reports (“CSR”) to review the proposed works.

On 4 November 2022, CSR produced a peer review of the proposed works, which was provided to JEQ and the Committee (“Initial Review”).

On 10 November 2022, Focus Law, on behalf of JEQ, provided a letter to Liza Fry- Irvine Law (“Liza”) the legal representative of the body corporate and the Committee at the time, setting out the rules which bind JEQ regarding the proposed works to alleviate any concerns the Committee may reasonably hold.

On 11 November 2022, Liza provided a response to Focus Law summarising the Initial Review into seven (7) separate instances of work: a) Installation of suspended ceiling: Liza indicated that JEQ has engaged a structural engineer to assist, which the Council will expect. It appears reasonable to approve this given it forms part of the Auckland Council (“Council”) approval process. 4 b) Filter/Ventilation System: CSR recommends “a double ESP/UV filter inline and specifically designed louvre frills to shunt the discharge air away from the building,” plus “anti-vibration mountings. c) Toilet System: JEQ is to confirm in writing that they will engage a structural engineer to advise on the penetration through the structural floor slab and provide a copy of this report to the body corporate promptly upon JEQ receiving the same. The Initial Review indicated that the involvement of a structural engineer would normally form part of the Auckland Council (“Council”) approval process. d) Grease Trap: CSR identified a likely error in the architectural plans regarding the location of the existing wastewater connection that the grease trap will connect to. CSR recommended that the body corporate ask JEQ to provide updated information on the correct wastewater connection location. e) Ceiling Grills: Liza indicated that the body corporate should consent to the work, subject to JEQ confirming in writing that they will use “anti-vibration mountings” where possible. f) Glass Manifestation: Liza indicated that the glass manifestation is necessary for health and safety purposes and should be approved by the body corporate, on the condition that JEQ confirms in writing that the manifestation will not be in the form of signage. g) Installation of electrical infrastructure: Liza further indicated that CSR should confirm that all installation of electrical infrastructure is checked by the Council through the consent approval and work certifications, and that the body corporate can rely on this alone.

On 31 January 2023, in response to the Initial Review, Focus Law provided the following documentation (“Jan 2023 Reply”) for the Committee and the body corporate to consider: a) a regulatory information report - drafted by Exavo Warrington Fire dated 20/11/2017; b) a powerpoint proposal dated 10 November 2022; c) developer design documentation; d) an agreement to provide a producer statement during construction; e) base build hydraulic designs; f) a fire report dated 30 August 2022; g) a producer statement design for the Proposed Floor Plan Ventilation; h) a peer review report by ONG Design dated 20 January 2023; i) a scanning report drafted by A1 Kiwi Cutters & Drillers Limited dated 28 November 2022; and 5 j) a structural design drafted by Space Structural Engineering & Design dated 20 January 2023.

By email dated 2 February 2023, Rean indicated the following: a) That JEQ was required to liaise directly with CSR to amend/comment on/review their report so it becomes the final copy that will be distributed to all owners during an EGM (“Review”); and b) JEQ to confirm in writing whether JEQ’s Further Documentation complied with all the requirements in the CSR report, and whether JEQ had any communication with David Clifton of CSR about the updates. If not, the Committee would continue to use the Initial Review to reject JEQ’s proposal of Works.

By letter dated 8 February 2023, Focus Law emphasized to Rean, the body corporate, and the Committee: a) As set out in the Jan 2023 Reply, JEQ had already agreed to the installation of a double ESP/UV filter inline system; b) As set out in the Jan 2023 Reply, JEQ had already provided the report named "Scanning Report" and "Base Build Hydraulic Design" regarding the installation of the 3 toilets and basins; c) As set out in the Jan 2023 Reply, JEQ had already advised the water pipe shall connect to the wastewater pipe located under the slab and will not affect the use of any other AU units; d) As set out in the Jan 2023 Reply, JEQ had already advised the new fintech extract fan shall be equipped with an inlet and discharge silencer and speed control; and e) JEQ confirmed that there is no proposed exterior signage.

In addition to Liza’s requested issues, JEQ further repeated that: a) JEQ is not planning to advertise or market the Unit as an event venue without the written consent of the body corporate; b) JEQ is open to discussions regarding a waste management plan; c) JEQ has no intention of installing gas in the Unit; d) JEQ is agreeable to regular on-site meetings to be arranged for monitoring purposes.

On 14 February 2023, Rean, by email, indicated: a) The body corporate only trusted David’s from CSR opinion and without the same, the Committee would not grant consent; b) That JEQ is to provide all emails regarding communications with David to conduct the Review; 6 c) That JEQ is to continue to contact David from CSR to implement the Review; and d) If there is no Review, the body corporate and the Committee will not give any consent to the proposed Works.

On 16 February 2023, Focus Law contacted CSR to conduct the Review. On the same day, David responded that he would be on medical leave and would not be returning until mid-March to April.

Focus Law subsequently contacted Luke Thompson and Barrett Caton from CSR to conduct the Review.

On 22 February 2023, Luke Thompson responded that due to their lack of knowledge surrounding the project to date and lack of authority within CSR, they would be unable to assist with the Review.

On 23 February 2023, Focus Law alerted Rean regarding David’s absence.

On or about 1 March 2023, Focus Law was advised that the body corporate had engaged Liza and Millennium Lawyers to act as their legal representatives.

On 7 March 2023, Liza indicated by a letter that if JEQ was not willing to wait for David’s return, the body corporate agreed to use another suitable expert to complete the review, on the basis that the suitable expert must also be a chartered and registered building surveyor.

On 10 March 2023, Focus Law, by letter to Liza, indicated that all matters had been satisfied and that it was the body corporate and the Committee who had requested the Initial Review and subsequent Review.

I am unable to find any fault with JEQ’s lawyer approach and response to the delay up which clearly stemmed from the body corporate’s chosen expert. I agree with JEQ that the onus was on the body corporate and the Committee to seek a suitable substitute.

On 20 March 2023, Liza, by letter, indicated that the Initial Review noted several outstanding matters, and JEQ has provided additional information it claims satisfies those matters. Liza maintains it is not for the Committee to decide whether that is the case and it is for JEQ to seek a review of the Initial Review to confirm its claim. The Committee is then able to rely on the opinion of that building professional when making its consent recommendation to the body corporate.

On 27 March 2023, Focus Law, on behalf of JEQ, notified the body corporate of its intention to instruct Maynard Marks to conduct the Review instead.

On 29 March 2023, Liza indicated that the Committee agreed for Maynard Marks to conduct the Review.

On 5 May 2023, Maynard Marks, as the expert agreed upon by JEQ, the body corporate, and the Committee, conducted a review of JEQ’s Works building consent documentation against the fit-out report produced by CSR dated 4 7 November 2022, to confirm consent documentation is in compliance with the requirements (“MM Report”).

The MM Report provided the following recommendations: a) As an act of prudence, JEQ should clarify with the fire engineer if any proposed seating will affect the escape routes; b) Clarify the proposed use and the grounds for the permitted activity; c) Provide in writing to the body corporate that notice will be provided for any proposed “event”; d) Provide written confirmation that gas is to be or not to be installed; e) Provide confirmation that any future lease shall include provisions to ensure all body corporate rules are adhered to; and f) Provide details of any proposed signage currently omitted from the documentation.

On 12 May 2023, the MM Report and a further letter from Focus Law to the body corporate and the Committee specifying the following were provided: a) JEQ will ensure that the distance between the café serving area and the opposing wall is no less than 1.45 meters and will clarify with the fire engineer if any proposed seating in this proposed area will affect the escape routes; b) JEQ intends to utilize the Unit as a café/restaurant/office area; c) JEQ agrees that if they intend to hold an “event,” the body corporate's consent will be sought prior to the “event” occurring; d) JEQ confirms that any future lease shall include provisions to ensure all body corporate rules are adhered to; and e) JEQ confirmed there is no proposed signage, and if there is any proposed signage, the consent of the body corporate will be sought.

On 14 June 2023, Liza, by letter to Focus Law, requested the following clarifications: a) Whether the concern about the need for new pipes to run from one side of the unit to the other (through accessory units and areas below) to connect to wastewater was still a concern, and if not, to explain why; b) A structural engineer was to review the floor slab scans and confirm in writing any structural impact or risk related to the penetration of the floor slab; c) JEQ was required to provide the Committee with an updated Fire Report that references the correct Rev E drawings and includes the fire engineer's comments on whether the proposed seating (fixed or loose) would affect the fire escape route; d) Maynard Marks was asked to confirm in writing whether Auckland Council would accept the building consent application without any signage details; 8 e) JEQ was to explain all changes made between Rev B and Rev E; f) The structural engineer was to confirm in writing that their January 20, 2023, Structural Design report was based on the updated architect Rev E plans; g) Written confirmation was sought from JEQ’s architect or planner regarding the grounds upon which the "café/restaurant/office" is considered a permitted activity; h) JEQ was required to provide written confirmation that they would operate, service, and repair the ventilation system, UV lamps, and grease trap according to the manufacturer's specifications, at their own cost; i) Written confirmation was requested from JEQ that they would take out contract works insurance; j) Written confirmation was needed from JEQ that they would consult with the body corporate (via its Building Manager) prior to and during the proposed works.

In a subsequent letter dated June 29, 2023, Focus Law confirmed that JEQ agreed to: a) Maynard Marks providing written comments on CSR’s concerns, including whether the concern that new pipes need to be run from one side of the unit to the other in order to connect to wastewater is no longer a concern, and if not, why; b) Maynard Marks confirming that there will be only one floor slab penetration and that penetration is needed to connect to a new drain pipe to a new wastewater connection point under the bathroom floor; c) A structural engineer reviewing the floor slab scans to confirm in writing any structural impact/risk and requirement for the penetration to the floor slab; d) Clarifying the proposed use and grounds for the permitted activity

In the letter dated 29 June, 2023, Focus Law further requested the Committee to call an Extraordinary General Meeting for the matter to be heard, to determine whether the body corporate would agree for the proposed works to commence.

On 5 July 2023, Liza, by letter to Focus Law, confirmed that the body corporate agrees to call an Extraordinary General Meeting on the provision of further documents.

On 28 July 2023, Maynard Marks provided a review of the MM Report, based upon the request by the body corporate (“MM Report Review”). A summary of Maynard Marks’ response is set out as follows: a) We agree that during the Building Consent process, Auckland Council will need to consider the input from a hydraulic engineer. At this stage, this concern is moot. b) We believe that CSR have incorrectly identified the drainage lines, and, in our opinion, we do not see any issue with the current proposed connection location. c) We have reviewed the plumbing schematic on page A.07 Rev. F of the Developed Design. The drainage is indicated above the floor slab level, not below, 9 and there is only one penetration point through the slab whereby it connects to the existing in-place wastewater line underneath. d) They agree that the installation will be subject to Council inspection, installing contractor PS3, and possibly Hydraulics Engineer's inspection and PS4 due to the nature of the large format drainage systems. This is a normal and acceptable consenting, construction control, and sign-off process. e) We note that the previous developed design contained two drainage points, one being noted as an existing drainage point. This was noted in the original building consent plans, however, upon site inspection, the unit’s drainage point has been capped below the slab. The developed design has since been updated as noted within section 2.0 of this report and contained within Appendix A. We confirm that only one proposed drainage point remains.

In a letter dated August 3, 2023, Focus Law conveyed the following: a) The further review conducted by Maynard Marks addressed all questions regarding paragraphs 4, 5, and 6; and b) As per the Auckland Unitary Plan, the building is situated in a Business-City Centre Zone, permitting retail activities, including food and beverage services; and c) Reiterated for the Committee to call the EGM for the matter to be determined.

In a letter dated August 24, 2023, Liza indicated the following: a) The Committee required further new information. b) A structural engineer (Space) was to review the floor slab scans and provide written confirmation of any structural impact or risk associated with the penetration of the floor slab in the bathroom for drainage connection. c) JEQ was expected to comply with the insurance matter; and d) JEQ's architect or a planner must specify the grounds upon which the revised proposed use as a "café/restaurant/office" qualified as a permitted activity.

It is noteworthy at this juncture to record that no Extraordinary General Meeting had been called despite the body corporate’s indication that an EGM would be called on the provision of further requested documentation dated 5 July 2023.

On September 4, 2023, Focus Law responded to Liza, addressing the following: a) Reiterating the position as set out in the MM Report Review, b) Why additional new matters were still being raised by the body corporate and/or the Committee in regards to a revision which had been provided in January 2023. c) According to the Maynard Mark review, "the previous developed design contained 2 drainage points... we confirm that only 1 proposed drainage point remains, within the same location as the previous developed design revision." Therefore, as the previous design and the structural engineer had already 10 conducted a scan based on the previous design, no further confirmation should be required. d) JEQ reconfirmed again their agreement with the requirements in paragraph 7 concerning insurance matters. e) A screenshot and description of the Auckland Unitary Plan was provided, which described the legal right to operate from the Unit; and f) Further again reiterating, that the Committee should call for an EGM for the matter to be determined.

After that, no further requests and /or clarification were required by the body corporate and/or the Committee, and on September 18, 2023, Liza by email alerted Focus Law that an Extraordinary General Meeting was called for Tuesday, 3 October 2023, which was later rescheduled for 12 October 2023 (“EGM”).

On 12 October 2023, at the EGM, the following issues were raised by the members of the body corporate: a) Steven, as the chairman of the Committee, indicated that a toilet pipe could not be joined to another system in China. Jason from ONG Design indicated Steven’s understanding was incorrect in that in any system all wastewater pipes would end up in a single terminal pipe at the very end, and he has seen a similar system like this. b) Steven further indicated that he was not satisfied with just Auckland Council’s consent because Auckland Council has made mistakes in the past. Kelvin from Focus Law responded that both Maynard Marks and CSR had deferred matters to be decided by Auckland Council in the building consent process, indicating that Auckland Council is the gold standard. c) A body corporate member, which was also a member of the Committee questioned why CSR’s review was not sought. Kelvin responded that the Committee had agreed for Maynard Marks to act in replacement of CSR. d) Another body corporate member indicated their reservation for the installation of the grease trap as there is no current purpose identified. Kelvin responded that all works were to be done in pre-emption to accommodate possible uses and that initially, there was a Japanese cuisine restaurant interested in renting the Unit. e) A body corporate member requested for the proposed works to be broken down into separate items of works so that the body corporate members could vote on each item of work independently. This motion was moved by Kelvin, but was turned down by Steven as the chairman of the Committee, as he indicated that he only wanted to deal with the proposed works as a whole. f) Body corporate members further indicated that if they agreed to the proposed works, they would not be able to control the use of the Unit in the future. Steven, the body corporate Chairman, did not approve on the basis that there was no proposed use. 11 g) A body corporate member indicated that they would not consent to the proposed works as the Unit was previously supposed to be provided as a common area for all residential owners to use.

At the EGM, the motion for the consent for the proposed works failed.

Assessing the above steps taken by all parties and independent reviews undertaken by different but agreed experts, I find that the body corporate has acted unreasonably by withholding consent at the EGM. It is safe to assume that members of the body corporate had relied on irrelevant and extraneous matters such as the Unit was previously supposed to be provided as a common area for all residential owners to use, but they were unhappy that JEQ now wishes to use it as a restaurant.

I also consider the above issues raised by the body corporate members unreasonable in light of steps taken by JEQ to alleviate their concerns. Notably, having finally deferred to reviews by Maynard Marks, the body corporate ought to have considered itself bound by its recommendations and granted the motion for consent in principle, at the very least.

Any other detailed issues, if relevant or material, may be raised by the body corporate subsequently but by 12 October 2023, the body corporate should have granted consent in principle so that JEQ’s application for building consent can be lodged without further delay.

As pointed out by counsel for JEQ, the body corporate convened the EGM after all questions were raised and answers provided by JEQ. After the EGM, it did not comment, nor sought any further documents and/or information from JEQ, for the consideration of the proposed works. The body corporate had made a decision at the EGM on the basis of the information available at the time of the EGM.

It is inescapable to conclude that the body corporate did not approve the proposed works based only on their subjective interpretation of the information supplied.

Under the above circumstances, I find that the body corporate has breached the obligation prescribed under section 208 UTA when they failed to give its consent within a reasonable time and unreasonably withheld consent.

This resulted in JEQ commencing these proceedings at the Tenancy Tribunal.

The first Tribunal hearing scheduled on 2 February 2024 was adjourned to 7 May 2024.

After the Tribunal application was lodged (and after the February hearing had been adjourned), a further EGM was called on 28 February 2024, with the following motions to determine whether the body corporate: a) Would be self-represented by the Committee; b) Would be represented by a legal representative; c) Would sue JEQ for false advertising by the initial developer of the building; or 12 d) Would enter into further negotiation discussions.

Motion b) was carried and the body corporate were to engage a legal representative.

On 7 May 2024, JEQ and the body corporate attended the Tribunal hearing before me, where the body corporate’s legal representative tendered a new DRAFT unsigned report provided by CSR, prepared on or about the same date as the hearing, as purported evidence of the body corporate’s reason for declining consent (“CSR Review”).

Counsel for JEQ noted the CSR Review was submitted to the Tribunal after the EGM, therefore its contents (preliminary in nature) would not have swayed the body corporate in its decision to decline the proposed works at the EGM in any event.

I agree with counsel for JEQ that in the Tribunal’s determination of whether the body corporate's actions were unreasonably withheld, I ought to primarily examine the information on which the body corporate was aware at the time the decision to withhold consent was granted and/or denied, ie., on 12 October 2023.

As set out above: a) On 20 March 2023, the Committee explicitly commented that they would not be the individuals to decide whether the additional information provided would satisfy the requirements of the Review, and that the Committee would rely on a building professional when making its consent recommendation to the body corporate. b) The Committee required JEQ to provide a review by a suitable professional of the additional documents provided in January 2023, to identify whether any matters remained outstanding. c) On 29 March 2023, the body corporate and JEQ explicitly agreed to engage Maynard Marks as their expert to conduct the Review. d) On 5 May 2023, Maynard Marks provided a report to JEQ, which was then forwarded to the body corporate and the Committee, stating that all matters have either been resolved and/or would be resolved subsequently in the Building Consent process. e) From the date of the MM Report was provided to the Committee and/or the body corporate, until the date of hearing, JEQ had never been notified of the body corporate’s requirement to conduct a further review of the MM Report, by CSR and never actioned the same, until May 2024. f) Commencing from 4 September 2023, no further information and/or clarification were requested by the body corporate and/or the Committee. All questions issues were addressed by JEQ to the body corporate’s legal representative, Liza Irvine, prior to the convening of the EGM. g) As such, it is safe to assume the decisions of the body corporate at the EGM on 12 October 2023 was based upon: 13 i. The 10 reports provided by JEQ’s in its Jan 2023 Reply to the body corporate; ii. The CSR Report; iii. The MM Report; iv. The MM Report Review; and v. The supplementary information provided by JEQ and/or its agent whether in written form prior to the EGM.

From the above, I agree with counsel for JEQ that the body corporate's conduct throughout the proceedings indicates a pattern of repeatedly seeking information, followed by requests for additional details on different issues.

Having agreed to have Maynard Marks conduct a review, and then be bound by it, the body corporate then relied on extraneous considerations when they declined it. The CSR Review was not before the body corporate at the time of their deliberation and decision making exercise during the October 2023 EGM.

I consider from the history of the parties’ engagement with each other as summarised above, the Tribunal should take judicial notice of subjective elements which may be found in building and specialist opinions/reports. No two sets of opinions from different experts are identical nor are they expected to be identical.

The fact that one report may pick up on certain aspects of the proposed building works but not another does not necessarily mean that the latter report is necessarily defective or deficient.

I consider that a certain level of nit-picking exists regardless of whether the report- maker or reviewer acknowledges having engaged in the nit-picking exercise or not!

Stepping back, I consider that the obligation of a body corporate under section 80 (h) and (i) UTA should be on whether or not the unit owner’s additions or structural alterations to the unit materially affect the use, enjoyment, or ownership interest of any other unit or the common property which consideration carries with it a degree of objectivity to it.

Irrelevant considerations such as the Committee’s or individual body corporate member’s views of the nature of the unit owner’s proposed business and commercial operation should play no or little part in their deliberation to grant or not to grant consent. Provided of course the building works proposed fall within the resource consent perimeters which is the case here.

Consequently, I accept JEQ counsel’s point that the body corporate's subsequent submission set out in the CSR Review at the hearing appears to be an attempt to introduce new issues for JEQ to address post facto of the body corporate’s unreasonable decline of the proposed works.

In that context, I do not consider it necessary or even fair to the unit owner to now proceed to evaluate and assess the issues raised in the CSR Review on whether 14 they have either been contradicted by the MM Report or were never established in the first place, as per JEQ counsel’s submission.

By agreeing for Maynard Marks to act as the expert to conduct the Review, and their willingness to accept the advice of Maynard Mark as their expert advice, I consider that the body corporate is bound by it rather than embark on a shopping expedition to find other building surveyors to attempt to find further fault with JEQ’s building works.

I find that the body corporate’s engagement of CSR Review is merely a retrospective attempt to justify the body corporate’s decision making process during the EGM because the CSR Review and/or its contents were not provided to the body corporate and/or the Committee prior to making their decision regarding the proposed works in October 2023, and as such did not form part of their considerations in October 2023.

In determining whether the body corporate actions “unreasonably withheld and/or delayed consent”, one must only consider whether at the time which the body corporate made their judgement, these matters were in the mind of the individual body corporate members.

Had the comments set out in the CSR Review been raised to JEQ prior to the EGM, such issues could have been answered and/or resolved. The last minute submission of the CSR Review has caused JEQ unnecessary costs with advancing its position at the EGM and at the Tribunal hearing.

For reasons set out above, I uphold JEQ’s objection to the CSR Review being accepted for the Tribunal’s deliberation of the body corporate’s refusal in declining the proposed works which decision I have found to be unreasonable.

If the CSR Review should nevertheless be considered by the Tribunal, I do not consider I can make a proper finding on JEQ’s challenges to the CSR Review, JEQ having elected not to call further building experts to review the CSR Review. I consider JEQ counsel’s reply submissions here to be akin to giving evidence from the Bar.

That said, I agree with JEQ counsel that it is reasonable for the body corporate to provide approval to the JEQ to lodge its consent papers to the Council for the salient details and calculations to be reaffirmed in the Building Consent process.

Through the building consent process, the body corporate is provided a degree of protection via a statutory process.

Even if the CSR Review had been provided to the body corporate, the only reasonable position for the body corporate would be for the body corporate to have granted consent to JEQ’s building works for these reasons: a. the CSR Review concluded on the installation of suspended ceiling that while ‘highly unusual for the addition of a suspended ceiling to exceed the loading capacities of the beams,’ the CSR Review sees ‘no 15 reasonable issues withholding approval on the basis that the Body Corporate is provided a degree of protection via this statutory process’. b. the CSR Review concluded on the filter/ventilation system that while a Mechanical Engineer should confirm the matters raised by the Body Corporate and provide confidence in the proposed design and additionally, if Airflow Engineering Limited will observe the undertaking of the mechanical works and supply a PS4 for this project and the contractor provide a PS3, the CRS Review sees no reasonable issues to withhold approval. c. the CSR Review noted on the toilet system they have not viewed any details illustrating the pipes layout post the point of penetration, and the architectural drawings A.07 F that the waste pipe is a proposed new connection. However in the MM Report Review, Maynard Marks believed that CS & R had incorrectly identified the drainage lines, and, in their opinion, they did not see any issue with the current proposed connection location. Maynard Marks have reviewed the plumbing schematic on page A.07 Rev. F of the Developed Design and the drainage is indicated above the floor slab level, not below, and there is only one penetration point through the slab whereby it connects to the existing in-place wastewater line underneath. This issue to the toilet system identified by the CSR Review has therefore been allayed by the MM Report Review earlier. d. the CSR Review concluded on the grease trap item that they see no reasonable issue in withholding approval if their recommended actions are undertaken, and the body corporate accepts a reduction in floor-to- ceiling height where the pipe penetrates and flows to its connection point. Further, as per the MM Report, wastewater pipes are contained within unit PU101 and are located above the floor level, discharging to an existing and proposed waste point. e. the CSR Review concluded on the ceiling grills item that if Airflow Engineering Limited will observe the undertaking of the mechanical works and supply a PS4 for this project and the contractor provide a PS3, they see no reasonable issues to withhold approval. f. the CSR Review concluded on the glass manifestation item that they ‘do not see reason to withhold approval on this matter specific to the manifestation’. g. the CSR Review concluded on the installation of electrical infrastructure that they ‘do not see reason to withhold approval on this matter due to the controlled nature of this service and installation requirements that are supported by the 2010 Regulations and the CCC process’. h. In the CSR Review’s Overall Comments: 16 i. ‘Based on the discussed, in our view, it would be deemed reasonable for the Body Corporate to provide approval to the "Tenant" (the Applicant) to lodge the Consent, as these details and calculations will be reaffirmed in the Building Consent process’. ii. ‘This is a requirement for the Building Consent, and the Body Corporate is provided a degree of protection via this statutory process’. iii. ‘We recommend that the 2022 review report be checked, any outstanding matters still not superseded by the updates be responded to, and supporting documentation to be provided’. However an earlier Review was already undertaken by Maynard Marks in 2023, which review was sanctioned by the Committee and was to be relied upon by the body corporate to give their consent or not. iv. ‘Thus, we do recommend acceptance of the proposal at this time, but there are actions that are required, undertakings to be given, and additional detail and information to be provided to Council (and the Body Corporate) including the services impacts on the building’. v. ‘If the required actions and care are undertaken, we see no reasonable issues with withholding approval’.

My assessment of the CSR Review is that no major issues have been identified which justifies the body corporate’s refusal to give consent in October 2023. At worst, the body corporate should have given consent subject to the few conditions set out in CSR Review which conditions even if they concern new plans from JEQ, could be allayed later during JEQ’s application for building consent phase.

It is common knowledge from the onset that JEQ’s works require a building consent. The impact of the proposed works must be vetted by the Council pursuant to the Building Code. It is not in order for the body corporate and the Committee to usurp the role of the Council is its purview of the Building Code requirements by acting as a gatekeeper for the territorial authority.

From the CSR Review itself, the Council is to be expected to ensure the proposed works shall be compliant under the Building Code regime.

It is now more than 2 years since JEQ had first applied to the body corporate for approval of the proposed works. The unit remains vacant and counsel for JEQ submits that JEQ had suffered delay all this time without the ability to generate any return and expended a huge amount of time, man hours and legal fees. 17

I therefore accede to the unit owner’s application for a declaration that the body corporate has not given the consent sought by JEQ on proposed building works to its unit within a reasonable time.

Pursuant to the Tribunal’s jurisdiction under s171(3A) UTA to order any party to do anything necessary to remedy a breach by that party of an obligation arising under this Act and to make any supplementary orders of a consequential or ancillary nature necessary to exercise or perfect the exercise of any of its jurisdiction, I now order the body corporate to consent to the proposed building works.

I do not consider that the body corporate is allowed to encumber JEQ with further conditions such as those set out in CR Review and 2PIR Consulting which were both issued after 12 October 2023.

I find it unreasonable for the body corporate to keep moving the goalpost in the manner that they did since 2023. The CR reports and 2PIR Consulting report are the latest form of encumbrance which the body corporate has continued to pile upon JEQ. No matter how accurate and reasonable those terms appear from a professional builder’s and engineer’s standpoint, I agree with counsel for JEQ that they represent a long line of obstacles unreasonably placed in front of the unit owner in an apparent attempt to delay and/or frustrate their plans to use their unit for its designated commercial purpose.

As it stands, unit 101 sits as an empty shell with no utility.

I find that the body corporate’s breach of its statutory duty should result in an appropriate remedy of damages, if proved and not too remote, to address JEQ’s loss arising from the body corporate’s failure grant consent at its EGM on 12 October 2023. However, there is insufficient material before me to assess and decide on quantum of damages presently.

As JEQ is legally represented, I also award costs to JEQ.

Counsel for JEQ may file a memorandum on quantum of damages and costs by 7 October 2024 and counsel for the body corporate may file reply submissions by 21 October 2024. Brief reply submissions, if any, may be filed by JEQ by 28 October 2024.

I will make a determination on damages and costs on the papers thereafter.