Most Read Contributor in New Zealand, September 2016
Did you hear the one about the man who went to court for
the right to demolish an unsafe building and walked out with two
That is essentially what happened to the owner of the
heritage Harcourts Building when the Environment Court dismissed
his appeal against its refusal last year to grant him a demolition
consent, and raised safety concerns about a neighbouring property,
also owned by him.
The Harcourts Building, at the expensive end of the Wellington
CBD, was built in 1928 and has Category One status under the
Historic Places Act. It is between 14% and 19% of current
specification for seismic code when the minimum standard is
It had been fully tenanted but, since the Christchurch
earthquakes of 2010 and 2011, all but one of the tenants has left,
and the remaining tenant is paying a fraction of their previous
The owner – Mark Dunajtschik – was served by the
Wellington City Council (WCC) in July 2012 with a notice
under section 124 of the Building Act giving him 15 years to either
strengthen the building or pull it down.
The notice seemed to suggest that the WCC was neutral about
which option he chose so he undertook extensive investigations as
to the cost and outcomes of improving the building's seismicity
and made a commercial decision to replace it with a new building
which would be integrated with the adjacent HSBC Tower.
Mr Dunajtschik developed and still owns the Tower, the lifts and
stair structure of which are built into the Harcourts Building
lightwell and airspace.
However, his development plans were brought to a shuddering halt
when the WCC declined him the necessary resource consent to tear
down the Harcourts Building. This was consistent with the WCC's
District Plan which contains strong provisions for the protection
of heritage buildings.
He appealed to the Environment Court and lost so he then
appealed the Environment Court's decision to the High Court
which upheld the appeal and referred the case back to the
Environment Court to be reheard.
The Environment Court had to consider two matters:
whether there was any reasonable alternative to total
the risk to public safety and to surrounding buildings if the
Harcourts Building was allowed to remain as is – a
consideration made relevant by the fact that Mr Dunajtschik had
threatened to leave the building "to rot" if he could not
pull it down.
The court was scathing of this attitude, describing it as
"unreasonable", and considered it unlikely that he would
carry out the threat given the prime position of the building and
that to leave it empty and neglected would affect the marketability
of the HSBC Tower.
More significantly, it heard new evidence, not raised at the
first hearing, that the failure of the Harcourts Building in an
earthquake could cause serious damage to the HSBC Tower, trapping
anyone above the 8th floor.
Mr Dunajtschik had offered to pay $5 million each toward
restoring two iconic Catholic buildings, St Mary of the Angels
Church and St Gerard's Monastery; amounts which the court
acknowledged were sufficiently generous to probably ensure that
both buildings would be preserved.
But it said the primary test was not about the preservation of
heritage but about whether there was no reasonable alternative to
demolition of the Harcourts Building and, given its primary
conclusion that this threshold was not met, "payments to other
projects (no matter how meritorious) do not arise".
What happens now?
Mr Dunajtschik could try his "luck" again with the
High Court. Or he could begin to develop retention and
refurbishment options. Or find a buyer.
If he chooses to do none of these things, the Environment Court
says that the WCC may have to act.
"The Council has clearly concluded the risk is
acceptable (at least to the public) in giving the owners 15 years
to comply with the notice. If the HSBC Building risk now identified
is considered unacceptable, then the Council has the power to
address that building's safety, to give an earlier date for
repair compliance or identify a building as
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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