Deviation by developer causes tragic death

An Auckland property developer was fined $89,000 after causing a death and serious injury occurred at an Auckland apartment construction site.

Auckland City Council laid charges against Brent Douglas Clode and Clode Consulting Limited, under section 80 Building Act 1991 in two broad categories: 1) Carrying out unauthorised work, or permitting others to carry out work, otherwise than in accordance with a current building consent, and 2) using a pre-cast panel along the Parliament Street boundary, as a wall, a use for which the pre-cast panel was not safe.

Further charges ware laid by the Department of Labour’s Occupational Health and Safety Service (OSH) under the provisions of the Health and Safety in Employment Act 1992. These also relate to the failure of Clode, Clode Consulting Limited, Raiser Development Limited and it’s site foreman Glen Geldard to ensure people were kept safe from injury at the site and in this particular instance, death.

In total, Clode and his various corporate entities were fined $89,000 – due to his $11,000 contribution which he’d had already paid to the victims and families involved. Geldard, for his part, was fined $5,000.

The case, which was heard at the Auckland District Court yesterday, relates to the now completed construction of a 14 level apartment building, with a four level basement car park, located at 1 Parliament Street in Auckland city.

Bob De Leur, the council’s principal building officer says, “Council and OSH are sending a strong warning to the large scale commercial construction industry. If you default on your responsibilities and ignore the underpinning principles and processes of the legislation, you will find it will come at a considerable cost – both personal and financial.”

“Developers should know there will be dire consequences for those deliberately deviating from the Building Act, the building code and the Health and Safety in Employment Act.”

On 21 January 2002, the 6-7 metre deep excavated face of the Parliament Street boundary bank collapsed. The collapse began in the corner of Eden Crescent and Parliament Street when a large section of soil fell from the top part of the bank’s vertically cut face. The collapse occurred along approximately 50 per cent of the Parliament Street boundary. The collapsing soil pushed two of the first three pre-cast panels over. The panel closest to the end where the collapse started, fell on to Allied Workforce Worker, Te Rue Taparia John Tearetoa and killed him. At this time, a large excavator was working in the corner at the boundary of Parliament Street and Eden Crescent and may have been the trigger of the collapse.

Raiser Development Limited worker, Leslie Bruce Harvey who was standing in the Eden Crescent/Parliament Street corner where the collapse began, was buried up to his shoulders in soil as a result of the bank collapse. Mr Harvey suffered a significant knee injury when emergency workers finally pulled him out from under the collapse. A third worker, Jim Matana, who was working with Mr Tearetoa, narrowly escaped injury from the falling panel.

The council said Clode, a 1988 Olympian Kayaker, effectively controlled the construction site. He was also the engineer responsible for inspecting basement retaining walls and excavation during the construction work. He faced a total of 10 joint charges, together with his companies, and the site foreman Glen Geldard.

Clode was convicted and fined $15,000 with court costs of $130. The council will receive 90 per cent of this amount, payable within 28 days. Clode Consulting Limited was also convicted and fined the same amount with the same provisions. Raiser Development Limited was convicted and fined $29,000 with court costs of $130. $7,500.00 of this will be paid to Mr Harvey. Mr Geldard was convicted and fined $5,000 with court cost of $130.

Mr De Leur noted that, “Such fines are necessary to reflect the harm done, to hold the offenders responsible, and to send a clear deterrent message about safety of such workplaces - which in this case saw a death and serious injury. Essentially, had the building work as displayed on the approved building consent been complied with on site, the construction would have been safe and this fatality would not have occurred.”

The council was concerned that other site contractors and employees had wanted to raise alarms earlier about the risk of Clode’s actions, and were further disappointed to learn that Clode arranged for Raiser Developments Limited – Clode’s own company – to continue carrying out work in the dangerous area when another company had ceased work under the bank drilling pile holes to the consented depth.

The entire project was to be constructed on a five-stage building consent application process. At the time of the collapse, three stages had been applied for and two stages had been consented to.

Had the works been carried out as consented to, there would have been no cut face of that magnitude, nor any such sized panel. It was also not good engineering practice to have a 7 metre high exposed cut face and had it been adequately supported and retained, then there would have been no collapse.

Mr De Leur said the council was pleased with the overall result and saw fines in a case such as this must not be seen as simply a palatable commercial cost but rather a real disincentive to non-compliance. Otherwise, the events that occurred in the present case are more likely to occur again.

The council was concerned for the welfare of the families and acknowledges that no amount of money will replace a life. A tapu lifting ceremony had been held shortly after the incident, which culturally acknowledged the tragedy at the site.

For more information about the building act, visit www.aucklandcity.govt.nz/buildingconsents

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