By - 14 Aug 2012
The High Court released its decision in the Auckland Council
v Blincoe & Ors claim yesterday. The decision is a victory
for home owners, as the High Court has confirmed that local
Councils should not have approved the use of sealant around
windows. The successful parties were represented by Martelli
McKegg and Grant Illingworth QC.
Many leaky homes were built without proper flashings around
windows. Silicon sealant was often used instead of metal flashings,
which did not provide adequate protection against leaks. In
Auckland Council v Blincoe & Ors, the Auckland Council
appealed against a decision of the Weathertight Homes Tribunal. One
of the Council's grounds for appeal was that it was entitled to
accept the use of silicon sealant rather than metal flashings
because this was an "acceptable solution", i.e. a method of
construction approved by the Building Industry Authority as meeting
the requirements of the Building Code.
The High Court disagreed. It held that the use of silicon
sealant was not an acceptable solution. What the Building Industry
Authority had approved was the use of a proprietary seal, not the
use of silicon sealant. The Court observed that a "proprietary
seal" was "one manufactured or marketed under a patent or
registered trademark" and would likely be the subject of specific
instructions regarding its application. Silicon sealant did not
fall within that definition, so the use of silicon sealant had not
been approved by the Building Industry Authority. Therefore the
Council was not entitled to accept the use of silicon sealant alone
to waterproof the sides of the windows.
This case re-affirms the principle that Councils may face
liability for accepting practices which were common at the time the
work in question was done, such as the use of silicon sealant
rather than metal flashings. No matter how commonplace a practice
is/was, local Councils may not approve it without having reasonable
grounds to believe the practice would meet the requirements of the
Building Code. When conducting inspections, local Councils
were required to exercise independent judgment as to whether the
work being inspected was likely to meet those requirements.
For more information please contact:
Lisa
Gerrard
Links
Auckland Council v Blincoe - reserved decision of
Hon. Justice Courtney