New Zealand’s Specialist Project Lawyers

Resource consent for the stage 1 foundation works was granted on 23 December 2021, and the granting of this subsequent consent will enable the establishment of the new Outpatient building, the first of the two new clinical buildings that will comprise the New Dunedin Hospital.

Housing a range of consultation and treatment spaces, day surgery facilities, and procedure and diagnostic services, works on the Outpatient building are anticipated to commence in early October 2022.  Utilising the fast track consenting legislation has enabled the development to stay on track despite the challenges of the last two years.

A team from Greenwood Roche, led by Lauren Semple and Julian Smith, are advising on all consenting and property matters relating to the New Dunedin Hospital.  

The village will comprise eight interconnected buildings, ranging from three to eight storeys in height, containing 316 independent living units, serviced units and care / dementia rooms adjacent to the Parnell Train Station and at the foot of Auckland Domain.   

Greenwood Roche worked with the wider project team to develop the proposal for a retirement village at the Parnell site over a number of years and subsequently acted for Summerset Villages (Parnell) Limited through the application, public notification and hearings process, with consent being granted by the Council in May 2021.  Residential neighbours of the proposed village then appealed to the Environment Court against the Council’s decision to grant consent, seeking extensive changes to the village design and to conditions of consent relating to the lengthy construction period.  Through alternative dispute resolution processes, Greenwood Roche successfully negotiated with the appellant and other interested parties to resolve the appeal and a consent order was issued by the Environment Court in August 2022, enabling the development to proceed. 

Wednesday’s breakthrough marked the completion of the tunnel excavations for the City Rail Link Project.  The next stage of construction is now underway to install the railway tracks and other systems necessary for the operation of the rail network.

Since the Dame Whina Cooper began operation in May 2021 tunnelling teams have been hard at work digging two 1.6 kilometre tunnels between Britomart and Mount Eden stations, with the first being completed prior to Christmas in 2021.  The machine excavated up to 1,500 tonnes of spoil and travelled around 32m daily.  It was also equipped to remove excavated tunnel spoil and install concrete segments to line the newly bored tunnel as it progressed.  

Now that its journey is complete, the machine will be lifted to the surface, disassembled and returned to the manufacturer to allow parts to be repurposed for other projects.

Greenwood Roche is very proud to be involved in this significant project. We are engaged as project counsel to the Link Alliance, the consortium of companies responsible for the design and construction of the City Rail Link project.

The enabling works comprise excavation and removal of existing building slabs, earthworks and dewatering, and piling required for the foundations of the hospital buildings.  These works will be underway shortly, with the first piles due to be installed by mid-May.  The $1.4 billion new Dunedin Hospital will support the SDHB’s continued provision of high quality health services throughout the lower South Island, and will be a key urban landmark for Dunedin, testament to the city’s long-standing role in health provision and health education.
 
Lauren Semple, Rachel Murdoch and William Hulme-Moir have been advising the Ministry on all consenting matters relating to the new Dunedin Hospital including applying for and obtaining Ministerial approval to utilise the COVID-19 Recovery (Fast-track Consenting) Act 2020.  The new Dunedin Hospital is one of two recent projects that the team have successfully consented via this fast track route.  Subsequent stages of the Dunedin hospital project will consent the above ground works for the new Inpatient, Outpatient and Logistics buildings.
 
The obtaining of resource consent has progressed in parallel with the acquisition of property rights for the development. Julian Smith led our team advising the Ministry on those property rights.

The upgrade, undertaken through difficult terrain and in challenging weather conditions, provides transmission capacity for the possible closure of the Tiwai Point aluminium smelter or for new renewable generation in the area.

Greenwood Roche again assisted Transpower with landowner negotiations along the route of the line, including preparing the agreements, negotiating terms with landowner representatives and completing easement documentation.

Have you memories of a long school building surrounded by sun-baked asphalt and playing fields, quite possibly with not a shade tree in sight? Our client solarZero has launched a new project to generate solar electricity off school roofs across the country.

With financing made available by New Zealand Green Investment Finance, the solarZero Schools initiative enables solarZero to deploy distributed solar generation across schools, demonstrating to future generations in a tangible way what a low carbon world can look like.

The 20 year contract we have helped solarZero develop provides solar energy services to the school for no up-front cost and with long‑term fixed costs at a price below the current cost of retail electricity, making it an attractive option for schools. Across the school sector there is scope for up to 200MW of solar power over time which is a significant contribution to current renewable energy targets.

The long-term contract contains some novel features, being required to operate within the regulatory framework for New Zealand state schools and meet the requirements of the Ministry as school property owner.

Our work here builds on significant experience across different team members’ work on previous hotel transactions, including large international hotel chains throughout New Zealand.

Our work included advising on and implementing the joint venture structure, undertaking due diligence on the property, assisting with the financing of the transaction and settling the acquisition.

The acquisition was part of Ngāi Tai ki Tāmaki’s Deed of Settlement with the Crown, which was finalised in 2018, and included the leaseback of the land to the Ministry of Education.

The proposed Plan Change is required under the Resource Management Act 1991 (RMA) to, among other changes, incorporate the Medium Density Residential Standards (MDRS) within the District Plan to enable more intensified housing through the city.  The requirement is aimed at accelerating and strengthening the outcomes for our urban centres anticipated by the National Policy Statement on Urban Development 2020 (NPS-UD). Notification of the Plan Change was required by law to occur on 20 August 2022.  Christchurch City Council had already delayed notification of the Plan Change previously for Covid-19 related reasons.

Implementing the MDRS through the Plan Change would have allowed up to three homes of up to 12m high to be built in most residential areas of the city (with certain exceptions), without the requirement for resource consent.  The Plan Change would have had immediate effect upon its public notification.

The Plan Change faced resistance from many members of the community, and was unpopular around the Councillor table from the start with Deputy Mayor Andrew Turner beginning his remarks by stating:

"Christchurch isn't Auckland. Christchurch does not need Auckland's solutions to problems that Christchurch doesn't have”

However, despite views of this nature being reasonably widely shared the Councillors (and the Council as an organisation) have no statutory ability to simply decide not to implement the required MDRS changes.  As such, in declining to approve the Plan Change, there is now a real risk that Hon Nanaia Mahuta (as the Minister for Local Government) will utilise the powers available to her under the Local Government Act 2002 and appoint a Commissioner or a Crown Manager to implement the Plan Change on the Council’s behalf. With local body elections on the horizon, if a Commissioner is appointed, the Minister may also decide to postpone the upcoming Council election.  In wider fallout there could be ramifications for the Greater Christchurch Partnership (of which the Council is a member) and its relationship with the Crown under its Urban Growth Partnership.

If a Commissioner or Crown Manager is appointed, their role is not necessarily limited to simply notifying the required Plan Change - it could extend to all of the Council’s functions and duties, as well as, in the case of the appointment of a Commissioner, the exercise of the Council and its members powers under the Local Government Act and any other enactment.  There is also a risk that if an appointment of this nature were to occur, Councillors will no longer have any input into the content of the Plan Change, and the Change may ultimately be notified with less Qualifying Matters than those recommended by Council officers. This risk was clearly articulated by current councillor Dr Melanie Coker in her speech on the Change:

"I want to vote no, not to notify to give the proverbial finger to the government and let them take full responsibility. I also want to vote yes to notify to try our best to protect our character and heritage areas and trees in our suburbs."

Certainly a bold move on the part of Christchurch City Council to reject a statutory direction which may have wide reaching consequences.  It will be interesting to see how the Government reacts to this stand and whether the decision to reject the Plan Change will be of long-term benefit to Christchurch or will instead result in an even more enabling plan change being notified.  

We are closely observing this process as it unfolds and will be providing regular updates – watch this space!

September 2022

In the recently released Court of Appeal decision Aotearoa Water Action Inc v Canterbury Regional Council [2022] NZCA 325, consents granted by the Regional Council (allowing up to 8.8 billion litres of water to be used for water bottling purposes) have been set aside.  This decision will likely affect any existing water consents sought to be used for a different purpose than consented, and may also have ramifications in other regions across the country.

Background

Consents had historically been granted by the Regional Council to “take and use” water for the purposes of a freezing works and a wool scour respectively. Those consents were later transferred to Rapaki Natural Resources Ltd and Cloud Ocean Water Ltd.  Both companies subsequently applied for (and were granted) new consents to “use” (for a different purpose) the water able to be taken under the existing “take” consents.

Once the new “use” consents were granted, the Regional Council amalgamated those consents with the historical “take” consents.  The Court described this as an “administrative process” in order to demonstrate that the companies had consents to both “take and use” water for bottling purposes. This included the issuing of new consent numbers. Interestingly, the Court of Appeal described this process as a “legitimate administrative step” despite the Regional Council acknowledging that such a process has no statutory basis in the Resource Management Act 1991 (RMA).

As acknowledged in the Canterbury Land and Water Regional Plan (LWRP), most rivers and streams in Canterbury are at or near full allocation for reliable ‘run-of-river’ takes. Similarly, many groundwater allocation zones in the region are at or over allocation limits for abstraction.  The approach taken by the Regional Council, in processing an application for a “use” only, effectively enabled the water bottling companies to sidestep the relevant rule in the LWRP which makes new applications to “take and use” water in fully-allocated groundwater allocation zones (including the applicable to the subject site of the consents) a prohibited activity. 

The Court of Appeal’s main focus was on whether the granting the consents to “use” water for water bottling, without granting new consents to “take” the water, was lawful. Essentially, the question before the Court was whether a consent to “use” water under s14 of the RMA can be sought and granted without an associated application to “take” water for the same use.  The case for Aotearoa Water Action Incorporated was that applications for “take” and “use” must be considered together. 

The Court found that there is no reason based on the wording of s14, to treat a “take” as necessarily combined with “use”, any more than there is to treat “take” as being necessarily linked to the other activities provided for in the provision such as “dam” or “divert”.  However, whether a Council can grant a separate consent for a “use” and a separate consent for a “take”, will depend on the terms of the relevant regional plan.

The Court closely considered the relevant rules of the LWRP, noting that that Plan refers variously to “taking or use” and “taking and use”, with this difference in wording being considered by the Court to be important and clearly intended. 

As the relevant rule that applied to the companies’ consent applications referred to the “taking and use” of groundwater, the Court held that the LWRP contemplated that it be regarded as one activity. This meant the Council could not lawfully grant a resource consent to “use” water separately to the authorisation to take water.  The Court stated that if both elements were to be considered separately, it is difficult to see how the plan can be administered in a way that preserves its integrity.

The Court’s decision is of some significance in Canterbury, given the questions that now arise (particularly for consent holders who have been granted new “use” consents on the basis rejected by the Court).  We anticipate that the Regional Council may seek to enable separate “use” consents from “take” consents by way of a change to the LWRP, and that other regional councils or unitary authorities around the country will also now be closely scrutinising the wording of their Plan rules.  As examples, the Wellington Regional Freshwater Plan appears to generally use the terminology “take or use” in relation to water, suggesting the granting of “use” consents separately from “take” consents may be lawful there. The Auckland Regional Plan, in contrast, appears to treat the taking and using of water as a single activity.

Cloud Ocean Water has sought leave to appeal the decision to the Supreme Court.  The Regional Council has decided not to appeal the decision.  Whether or not leave will be granted by the Supreme Court should be known later this year.  

If you would like specific advice on the implications of the Court of Appeal’s decision and how it might affect any consents you currently hold (or might wish to acquire), please contact Monique Thomas.

August 2022.

The new prohibitions apply to a range of business activities, including pricing, sales techniques and advertising.

The Commerce Commission’s guidance describes “unconscionable conduct” as conduct or a business activity that is a “substantial” departure from New Zealand’s generally accepted or expected standards of business conduct: and conduct that “obviously” departs from what is to be expected from persons acting in good commercial conscience.

Interestingly, the threshold for “substantial” or “obvious” departure is relatively high and we are yet to see how the courts here will apply it in assessing unconscionability.

The Law

Section 7(1) of the Fair Trading Act 1986 states that the courts may make a finding of unconscionable conduct against a person in trade whether or not:

• there is a system or pattern of unconscionable conduct; or
• a particular individual is identified as disadvantaged, or likely to be disadvantaged, by the conduct; or
• a contract is entered into.

Under section 8(1), the courts may have regard to certain matters in deciding whether a person’s conduct is unconscionable, including:

• the relative bargaining strength of the parties;
• the extent to which the parties acted in good faith;
• the extent to which the affected party could protect their interest;
• whether the affected party could understand the documents;
• the use of undue influence, pressure or unfair tactics; and
• whether any adverse impacts or risks to the affected party’s interests were explained.

Ultimately, the courts’ assessment of these matters will be influenced by any other relevant factors, the specific facts of the case before them: and what is fair, just and reasonable in the overall circumstances of the case.

New Zealand businesses can take lessons from Australia…

Until New Zealand courts have considered these issues, lessons can be taken from the Australian experience. Below are some examples of conduct or behaviour that have been found to be unconscionable by the Australian courts in:

• deception and unconscionable sales techniques (particularly where the affected party is vulnerable) e.g. the sale of expensive vacuum cleaners, by creating a sense of obligation to buy, to elderly who did not want or need the cleaners;
• misstatements, non-disclosure of information, threats and intimidation for unilateral profit gouging e.g. where a franchisor demanded a 50% fee increase from franchisees for access to a national telephone number which the franchisees relied on to receive consumer inquiries and work, not only requiring existing franchisees to vary their franchise agreements accordingly but also disconnecting franchisees who did not pay the increased fee;
• false advertising, taking advantage and unconscionable sales techniques e.g. an online education provider enticed students to enrol in full-time courses with claims the courses were free and with offers of free laptops, but they were enrolled under a student loan scheme and left with large debts. The company did not assess the students' suitability for the courses including their language, literacy and numeracy skills and students were unlikely to complete the course. The company also paid large commissions to salespeople who they did not train and monitor.

What to do

While the New Zealand courts develop their own jurisprudence around what is and isn’t unconscionable, we recommend businesses play it safe, always asking themselves “what is reasonable and fair here”.  Consider the section 8(1) list of matters in relation to any marketing or sales initiative, any negotiating conduct or any contracting that could lead to customers or others you engage with incurring an obligation to you or being potentially misled.

August 2022

It provides an opportunity to deliver mass housing at speed, minimise on-site waste, energy consumption and health and safety requirements, and optimise transportation of labour, equipment and materials. Yet instead of waves we are seeing ripples (and most of those are made by Kāinga Ora’s building programme). Amy Rutherford and Jordan Ropati of Greenwood Roche Project Lawyers examine what’s impeding progress.

One of the key issues is a building consents system which is not designed for modular construction.  The government has sought to remedy this issue with changes to the Building Act 2004 which will, according to MBIE, “enable faster consenting for innovative, efficient building methods, and increase the use of offsite and prefab manufacturing and products”.

This article provides an overview of legislative changes to the Building Act which will come into force on 7 September 2022 (the Amendment Act) and comments on whether these changes will make any meaningful impact on the uptake of modular construction in New Zealand. 

The problem with the consents system

The Building Act was not designed to deal with the realities of modular construction.  

By way of example, the current consenting process requires a separate consent for each module produced. If a module is produced in a different building consent authority (BCA) region to where it is delivered for assembly, then consent may be required from both councils.  Not only does this result in duplication of processes, it creates the potential for inconsistent decisions between BCAs. 

These issues, added to the typical speed at which building consents are being processed, can negate any of the programme benefits that comes with using this method of construction.

What is changing?

The Amendment Act seeks to address these issues by creating a separate scheme for Modular Component Manufacturers (MCMs), which will operate adjacent to the standard consent process. 

Certification outside of BCA

The new consenting scheme creates a new accreditation body, new certification bodies and new certifications that can be applied for to produce modular components.

The accreditation body oversees the certification bodies to ensure uniform standards are rolled out. The certification bodies certify MCMs. MCMs are certified to produce a specific modular component or design and build modular components.

When considering a building consent with modular components, a BCA must accept a current manufacturer’s certificate as evidence of compliance with the building code for that modular component.  This is significant because it avoids the requirement for the BCA to undertake its own inspection (including, in respect of the off-site manufacture of the modular components).

New timeframes for building consent

Subject to the MCM and certification for the modular component complying with the requirements of the Amendment Act, the processing times for consent applications that relate to the installation of a single modular component will be reduced to 10 working days (down from 20 working days).

Risk shift

The Amendment Act shifts responsibility from BCA to the MCMs and certification bodies for providing the necessary checks and balances to ensure modular components comply with the building code.  Contemplating the shift in responsibility, the Amendment Act requires both MCMs and certification bodies to procure ‘adequate’ cover from civil liability.  It also allows MBIE to specify what suitable cover is. 

Nationwide application

The scheme introduced by the Amendment Act operates nationwide which should help solve any cross-territory issues which occur under the old system.

Will it make a difference outside of the public sector?

While the Amendment Act comes into effect on 7 September 2022, there will not be an immediate impact as there are no accreditation or certification bodies in place.  Applications for these will begin in September so it may be a while still until the impact of the changes can be properly assessed.  

In addition, as the opt-in for accreditation and certification bodies is voluntary, the effectiveness of the Amendment Act will depend on uptake.  Given that the compliance with requirements of the Amendment Act will involve cost and resource, we expect parties will only opt in to the scheme if there is a demand for the service which justifies the cost and resource.

On the issue of demand in the private sector, the major barriers remain.  These include public perception of modular construction as low or cheap quality construction and also a lack of funding options.  While improving the consenting laws is a step in the right direction for the uptake in modular construction, we expect the industry will need to address these wider issues before there is a major change in the uptake of modular construction in the private sector.

Published in August 2022 issue of Building Today magazine.

The Model is science’s best estimate of the likelihood and strength of earthquakes across New Zealand and the review is a big deal – it has taken two-and-a-half years and will reflect the significant advances in knowledge since the last update in 2010, including from international best practice and the Canterbury and Kaikōura earthquakes. The impacts of change will be significant: end-users of the Model, including MBIE, EQC, local authorities, NZTA, land use planners and the insurance sector all rely on the Model to estimate the impact of earthquakes on land, buildings, and infrastructure. This in turn underpins government policy, public and private sector investment decisions and helps to increase resilience. 

While many uses of the Model are forward-looking, the review will have immediate impacts on the property sector, particularly for building owners and tenants. One effect will be the update of structural design requirements under the Building Code, which the Model directly informs. The current structural design standard, NZS1170.5, was based on an earlier 2002 Model, so revision of the Model and design standards is overdue. The Seismic Risk Working Group is currently considering how new Model outputs will be incorporated into the building code, but, in general terms, an increase in assessed seismic risk can be expected to mean an increase in structural design requirements. Any changes there will have obvious implications for the design and cost of new buildings.

The most immediate and significant impact for the property sector, however, is likely to be on the seismic standard of existing buildings. In short, this is because an increase in Building Code requirements for new buildings will mean a decrease in the relative compliance of existing buildings. Existing buildings face being downgraded as new building standards move on.

How far existing buildings will be affected depends upon the degree of change to the Model and the Building Code, but the outlook isn’t promising. A recent paper by Professor Brendon Bradley of the University of Canterbury in the NZSEE journal (Probabilistic Seismic Hazard Analysis of Peak Ground Acceleration for Major Regional New Zealand Locations) shows that major changes in some areas are likely.

Bradley’s research showed that, for 24 locations across New Zealand, expected mean earthquakes magnitudes and peak ground accelerations were generally higher than current Building Code requirements under NZS1170.5. While some areas were unaffected, in others, such as Wellington, Gisborne and Napier, the differences were significant. Peak ground accelerations for Wellington, for example, were more than 50% higher than is currently assumed under NZS1170.5. As a result, changes to the Code and effective downgrades to buildings could be significant; some buildings may effectively fall below the 67% or 80% NBS thresholds often seen by tenants as red lines.

While specific changes are yet to be confirmed, we can make some predictions:

• What is the rating? As the last few years have shown, seismic risk is a key concern for tenants in higher risk areas. The Wellington market, in particular, is affected on an almost weekly basis by assessments based on revised seismic assessment guidelines introduced in 2017-18.  Tenants and owners will want to know where their buildings sit against revised standards, whether or not this is supported by seismic assessment guidelines.
• Is vacating an option? To date, tenants have been prepared to vacate when buildings have fallen short. However, with a rising standard, it may be different. If all existing buildings are effectively not as safe as we thought, tenants may be more likely to shrug their shoulders and stay. Downgrades across the market may also constrain relocation options.
• Knowing the risk is key. Due diligence on acquisitions and new leases will remain be critical and a “flight to quality” will continue. Expert advice is also key – having a lawyer (and often an engineer) who can navigate and explain the complexity is important.
• Legal provisions will be in the spotlight. Rights for tenants to abate rent, vacate and even terminate leases due to low NBS ratings have become the norm. Whether or not these rights are effective – if tenants want to exercise them – will be tested.
• Experts and government have a role to play. The market has adapted relatively quickly to seismic issues, but understanding of risk still has a way to go.  Engineers have more work to do to educate the market on the appropriateness and limits of NBS as a proxy for safety. Equally, government needs to ensure that a transparent and effective measure, reflecting the public’s desire for reliable consistent ratings of buildings, is available.
• Higher standards and more upgrades? Some existing buildings have reached the economic and technical limits of upgrade capacity, but demand will mean that building strengthening projects continue. Anecdotally, some agencies have already begun insisting on increased design assumptions to take account of the anticipated building code changes.

The updated National Seismic Hazard Model is due to be released in August/September 2022.  Brace for impact.

June 2022

Construction supply chain woes continue, EBOSS reports

The demand for construction materials has escalated drastically over the last 12 months and forecasts from EBOSS suggest that it will only continue to rise until Q3 2022 at the very least. Couple this with a constrained supply chain as a flow-on effect from the pandemic and you have the recipe for continual increases to prices and lead times of construction materials.

Starting with the supply issue, the problem largely stems from the New Zealand industry’s reliance on freight. The report found that 90% of all construction product sold in New Zealand is either imported or contains imported components. This dependence on imports was never an issue until the market experienced rapid change over the last year. New Zealand is currently experiencing a significant increase in its construction workload (which include the measures taken to address the housing crisis). Globally, other countries are having the same idea. The United States is experiencing a 15-year housing boom, and both China and India are anticipating construction demand to grow at least 12%. New Zealand is struggling to get access to both materials and freight in the face of this. In fact, EBOSS’ survey found that four out of five domestic suppliers are experiencing issues relating to either:

• increased freight costs;
• access to worldwide shipping;
• the lead times for freight getting out of ports;
• delays at NZ ports; or
• freight availability.

These problems are being aggravated by the domestic demand for materials – building consents issued hit an all-time high in the year to July 2021 in New Zealand, eclipsing the previous record set way back in 1974.
 
Given that supply issues are looking like they’re here to stay, parties considering a development project should:

• plan ahead and discuss areas where delays or additional costs can be expected (and ensure these are factored into project budgets and programmes);
• consider mitigation measures available;
• consider whether fixed prices are the best option for the project; and
• consider the financial health of each party and ability of each to continue to perform their obligations if either party takes the risk on cost escalation throughout the life of a project (including insolvency risk).

You can read the full report here.

Green Star compliance required for Government builds from 2022

In pursuit of its plan for a carbon neutral public sector by 2025, the Government is rolling out a standard which will ensure new buildings over a certain value meet a minimum Green Star rating of five.

From 1 April 2022 this standard will apply to all non-residential government buildings with a capital value over $25m and from 21 April 2023 the standard will apply to all non-residential government buildings with a capital value over $9m.

The Green Star standard evaluates the environmental attributes and performance of a building using a suite of rating tools developed to be applicable to each industry sector. For a five-star rating (or higher), a building must score at least 60 out of a possible 100 points. The system is administered by the NZ Green Building Council and has been adapted to apply to a New Zealand context.

Case Law

Misrepresentation, implied terms: Davies v Smith [2021] NZHC 2865

In 2014 the Davies entered into a contract with Mr Smith in his capacity as director of KM Smith Builder Limited (KM Smith) to build a house on a property owned by the Davies. The Davies claimed that Mr Smith made representations regarding his ability to manage the project, the cost of the project, and the date of completion which induced them to enter into the contract. The Davies further claimed that the contract contained the following implied terms:

1. The cost estimate was between $2.5 and $2.8m;
2. Mr Smith would ensure costs would be reasonable and in accordance with the contract; and
3. KM Smith would ensure the subcontractor costs were reasonable.

In response to the misrepresentation claims, the Court found that Mr Smith had sufficiently outlined KM Smith’s general modus operandi to the Davies in respect of project management and performing work on a cost reimbursement basis. On the date of completion, Doogue J found that, while Mr Smith did provide an indicative date, he qualified that indication heavily so as to fall short of a misrepresentation.
 
As a result of this finding, the alleged implied terms based on these alleged representations could not be read into the contract. However, the Judge addressed the Davies’ submissions all the same.
 
An implied term as to the price would clearly and unequivocally change the entire nature of the contract which was on a cost reimbursement basis and therefore could not be read in.
 
The parties were not in dispute about the existence of an implied term that the cost of construction would be reasonable, but the Court found that the Davies failed to establish that the cost expended was not reasonable.
 
On the subcontractor issue, Doogue J stated that while KM Smith has a contractual duty to keep subcontractor costs to a reasonable level, the Davies were unable to point to any loss occasioned by KM Smith’s failure to seek competitive quotes.

Waivers, estoppel: Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 2) [2021] NSWCA 93

This recent decision by the New South Wales Court of Appeal (NSWCA) highlights the risk of informal arrangements made to keep projects moving being seen as contractual waivers without express communication otherwise.

Valmont Interiors (Valmont) was engaged by Giorgio Armani (Armani) for construction and fit-out works of a store at the Sydney Kingsford Smith Airport under a construction contract (Contract).  Joinery work was to be provided by a separate contractor however, when it became clear that it would not be ready in time, Armani instead directed Valmont to supply the remaining joinery items.  Valmont completed the work and sought payment.
 
Armani refused to pay Valmont for the joinery items on the basis that Valmont had failed to notify Armani of the variation in accordance with the time bar in the Contract.
 
In the District Court Armani was estopped from relying on the time bar in the Contract because of its own failure to follow the variation procedure when approving and paying for variations.  The judge held that the estoppel only applied to work performed up to the date of the email in which Armani made it clear to Valmont that it would rely on the variation procedure going forward.  This decision was to Valmont’s detriment as most costs had been incurred after the date of the email and Valmont appealed.
 
On appeal, the NSWCA held that the estoppel had effect both before and after the email.  Armani’s email did not displace the assumption that Valmont would be compensated for the cost of supplying the joinery.  Further, Armani’s statement that “there are not variations” suggested that the direction to supply joinery was not a variation, but rather an extra-contractual request by Armani.  In the circumstances, the NSWCA found it was unconscionable for Armani to resist payment for the joinery.
 
This case demonstrates the need for contracting parties to take particular care to familiarise themselves and comply with variation procedures.  Informal arrangements made to expedite projects need to be clearly expressed as a one-off if there is a risk they can be viewed as a waiver.  Finally, if you believe another party is acting on the false assumption that a waiver exists, the onus is on you correct this assumption.

Please contact our Construction team for more information.

March 2022

This article does not provide legal advice. If you would like advice about anything referred to above, please contact a member of our construction law team directly.

Key changes to the PLAWhilst the Epidemic Preparedness (COVID-19) Notice 2020 (Epidemic Notice) is in force, a “no access in an emergency” clause will apply to leases and licences that do not include a similar clause that covers an epidemic.

The PLA now implies a “no access in an emergency” clause into any lease or licence that does not contain a similar clause, and which is in operation during the period from 18 August 2021 until the Epidemic Notice expires (currently mid-December 2021, subject to ongoing three-monthly renewals). If a “no access in an emergency” clause is implied, it will be triggered if:  

• the tenant at any time “is unable to gain access to all or any part of the leased premises to conduct fully their operations from all or any part of the leased premises, because of reasons of health or safety related to the epidemic” (No Access Period); and
• the parties have not already agreed a rent and outgoings abatement prior to 18 August 2021. However, to the extent that any agreed abatement does not apply for the full No Access Period, the Act will apply in respect of the period not covered by the abatement.

New leases (but not existing leases) can contract out of the “no access in an emergency” clause – but this is contingent on appropriate wording being included in the lease. 

If the “no access in an emergency” clause applies and is triggered, the tenant will be entitled to an abatement of a “fair proportion” of rent and outgoings.

The abatement will apply to a “fair proportion” of rent and outgoings during any No Access Period that occurs following 18 August 2021. Whilst “fair proportion” is not defined in the PLA (and must be agreed by the parties), the PLA requires the parties to consider any loss of income experienced by the tenant during the No Access Period when determining a “fair proportion”.

We note that:

• there is likely to be dispute as to which factors should to be taken into account by the parties when agreeing the fair proportion (apart from the mandatory requirement to consider the loss of the tenant’s income during the No Access Period);
• by referring only to the loss of the tenant’s income during the No Access Period, there is an argument that the PLA is directing the parties to disregard any subsequent increase in income (which may have the effect of off-setting the tenant’s loss) following the end of the No Access Period; and  
• generally speaking, when determining a “fair proportion”, it is currently understood (but by no means settled by the Courts) that the parties should consider a range of factors including the remaining term of the lease and rights of termination, COVID-19 related financial assistance, the relative resources of the parties and the actual impact of COVID-19 related restrictions on the tenant’s ability to generate income. The Property Council has recently introduced guidelines in relation to assessing a “fair proportion” which may be of assistance.  

Disputes about a “fair proportion” are to be referred to arbitration under the Arbitration Act 1996.

The PLA requires disputes to be referred to arbitration but does not preclude the parties from agreeing other methods of dispute resolution (for example, mediation or determination by an agreed expert).

Importantly, the PLA includes an obligation on both parties to take all reasonable steps to respond to abatement-related communications within 10 working days. Both landlords and tenants need to abide by these timeframes.

Until the landlord and tenant agree the “fair proportion”, a landlord cannot terminate the lease for non-payment of rent and outgoings. 

This is a critical point from a landlord’s perspective. Although this is onerous, we note that section 246 of the PLA has not been amended. This means that a landlord can still cancel a lease for breach of other, non-rent related lease covenants.

Is a tenant entitled to an abatement?

Does the lease already contain a similar “no access in an emergency” clause?

ADLS leases from 2012 onwards generally include a “no access in an emergency” clause, and are therefore unlikely to be affected by these provisions. The wording of the “no access in an emergency” provision in the PLA is close to, but not the same as, the wording used in clause 27.5 of the ADLS lease. However, we understand the legislative intention to be that if there is a clause in a lease that operates akin to clause 27.5 of the ADLS lease, the PLA provisions will not apply.

The implied clause could apply to Property Council leases. The equivalent clause (clause 7.5(c)) of the Property Council office lease differs from clause 27.5 of the ADLS lease, as the concept of “no access in an emergency” has different triggers. The landlord must also be able to collect loss of rent insurance in order for the tenant to be entitled to an abatement.

Bespoke leases (or modified forms of the ADLS/Property Council leases) will require assessment on a case by case basis. Regardless of the form of lease, we recommend that you take legal advice in relation to any specific lease provisions that may be under consideration.

Has an abatement already been agreed?

As noted above, the “no access in an emergency” clause will not be triggered where the parties have already agreed to an abatement prior to 18 August 2021 (provided that the abatement covers the entire “no access” period).

Can the Tenant “conduct fully” its operations?

What “conduct fully” means is not specified in the Act, but we think it will generally be interpreted to mean that business is able to be conducted at least very substantially, if not fully. It may cover situations where the tenant is operating from the premises sub-optimally, for example as a result of restrictions on capacity or customer access, or due to social distancing requirements. Much will depend on the specific circumstances, the nature of the tenant’s business, the premises and the terms of the lease.

Seek legal advice

Given these changes, we strongly recommend that landlords do not agree any abatement, rely on any form of security to recover unpaid rent and outgoings, or act to terminate leases for non-payment of rent and outgoings, without first seeking expert advice.

If you would like any further information about the effect of the changes to the PLA or how to deal with them, please contact any of our experienced property lawyers.

December 2021

We specifically focus on construction contracts but our comments apply equally to a range of professional services contracts in which fitness for purpose is often sought to be implied.

What is a “fitness for purpose” warranty?

A fitness for purpose warranty is a contractual or implied warranty given by a contractor, consultant or supplier to deliver a product (or a building or service) that is capable of being used in the way that the principal intends to use it. The warranty is included as the principal is reliant on the contractor’s particular skill and expertise to design, build and/or supply a product or service that will perform as required. 
 
A contractor/consultant has a separate duty at common law to exercise a duty of care in accordance with professional standards, and may be liable for breach if it is proven not to have met that level of care (subject to relevant common law tests). In comparison, breach of a fitness for purpose warranty only requires evidence that the product (or building) does not meet a certain standard that the principal has made clear is required (or sometimes which can reasonably be inferred from the principal’s requirements). This lower threshold makes fitness for purpose warranties far more onerous for the contractor and very often will have adverse insurance repercussions.
 
A fitness for purpose warranty may be:

• created by an express contractual provision;
• implied by statute, such as under section 362I of the Building Act 2004 (in relation to household units) and under section 8 of the Consumer Guarantees Act 1993 (in relation to goods supplied to consumers); or
• in some circumstances, implied into a contract by common law.

Implied fitness for purpose warranty

Generally, a fitness for purpose warranty may be implied by common law into a construction contract if the contractor has some level of input and control over the design of the final product. In this scenario, the principal is reliant on the contractor’s knowledge and skill to ensure the product is suitable for the stated or implied purpose. If a contractor is merely following designs prepared by another party, the contractor will not have sufficient control over the design and there is therefore limited scope for such a warranty to be implied by common law.
 
For any term, including a fitness for purpose term, to be implied into a contract, the test in BP Refinery (Westernport) v Hastings Shire Council, must be met. The implied term must:

• be reasonable and equitable;
• be necessary to give business efficacy to the contract;
• be so obvious that it goes without saying;
• be capable of clear expression; and
• not contradict an express term.

In Greaves v Baynham Meikle, a contractor engaged to construct a warehouse to be used, in part, for the storage of oil drums on the first floor under a design and construct contract was sued after the first floor cracked, necessitating expensive remedial works. The English Court of Appeal found that the purpose for which the warehouse was required (including that oil drums would be stored on the first floor) was made known to the contractor and became the “common intention of the parties”. Therefore, an implied warranty existed that the design would be fit for such purpose. In this case, the design, for which the contractor was responsible, was inadequate and constituted a breach of such warranty. Through the same failure, the contractor was also held to be in breach of the duty to use reasonable care and skill imposed by law, showing that the two duties will overlap.
 
In IBA v EMI Electronics Limited and BICC Construction Limited, a broadcasting authority sought specific assurances from the contractor that a television mast would meet specifications and would not break, the broadcasting authority having experienced problems previously. The contractor assured the broadcasting authority that the mast would be suitable and no tests would be needed. The mast subsequently failed and the Court found it “could see no reason why” a contractor who contracts to design, supply and erect a mast (and by analogy other projects) would not be “under an obligation to ensure it is reasonably fit for the purpose for which he knows it is intended to be used”.
 
What does this mean for consultants? In Global Switch (Property) Singapore Ltd v Arup Singapore Pte Ltd, the Singapore High Court dismissed a US$17.5m claim brought by Global Switch against Arup Singapore, over alleged failures of duty that led to a data centre outage. Global Switch claimed that it was Arup’s responsibility to design a chilled water system to cool the data centre in a way that reflected the needs of Global Switch. The Court found no implied fitness for purpose because the high threshold for implying a term was not met and the contractual documents were not clear as to the standard of design or purpose that was required. The absence of sufficient clarity meant an implied term “was too vague and ambiguous to succeed”, and was not required for business efficacy. Other relevant considerations included that Arup was already under a contractual duty to use reasonable care and skill in performing its obligations and likely would not have accepted an additional (unnecessary) fitness for purpose term.

This case should not be taken as a carte blanche rejection of fitness for purpose warranties in consultancy agreements – each case should and will be considered on its particular circumstances. It does, however, indicate that in principle, providers of professional advisory services will generally be under an obligation to use reasonable care and skill, but are not responsible for providing a perfect result unless that has been expressly provided for. In other words, fitness for purpose warranties will not always be readily implied.
 
Insurance repercussions

It is important for contractors (especially in construct-only contracts with limited temporary design) and consultants to identify if they have unwittingly taken on a fitness for purpose warranty. Depending on the level of professional indemnity cover the party holds, it may only respond where a claim arises from professional negligence and the policy may be invalidated altogether. Contractors, especially design and build contractors, should err on the side of caution and assume they are taking on a fitness for purpose obligation when carrying out design work. While some overseas design and build contracts (i.e. JCT and ICE) expressly exclude fitness for purpose obligations, the New Zealand Standards suite does not.
 
Finally, a couple of tips for those design and construct contractors or consultants that may accept a fitness for purpose warranty (under NZS 3916 construction contract or possibly on an Australian project where fitness for purpose is more reflective of market practice):

• check the interaction with your professional indemnity insurance; and
• limit the express fitness for purpose warranty to a measurable standard against which you can design and construct.

Our experienced construction law team can assist with any queries regarding the matters raised in this article.

November 2021