BODY CORPORATE 335089 v VERO INSURANCE NEW ZEALAND LIMITED [2020] NZHC 2353

BODY CORPORATE 335089 v VERO INSURANCE NEW ZEALAND LIMITED [2020] NZHC 2353 [10September 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2017-409-000666[2020] NZHC 2353BETWEEN BODY CORPORATE 335089PlaintiffAND VERO INSURANCE NEW ZEALANDLIMITEDDefendantCIV-2017-409-000671BETWEEN BODY CORPORATE 341154PlaintiffAND VERO INSURANCE NEW ZEALANDLIMITEDDefendantHearing: 27–31 May; 3–7 June; 10–14 June; 17–21 June; 1–5 July;8, 10, 11 July 2019, with supplementary written submissions 13,16 August 2019Appearances: N A Till QC, K M Graham and M L Rhodes for PlaintiffsC M Meechan QC, M A H Macfarlane, S E M Corban,R B McStay and A C Eager for DefendantJudgment: 10 September 2020JUDGMENT OF OSBORNE JThis judgment was delivered by me on 10 September 2020 at 2.30 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:TABLE OF CONTENTSPART I – INTRODUCTORY MATTERSGlossary of termsAbbreviationsIntroduction [1]Factual backgroundThe layout of the properties [4]Construction: Buildings 1 [8]Construction: Buildings 4 [14]Buildings 2 and 3 [18]Civil engineering [19]Condition of the buildings and properties [21]The Canterbury earthquake sequence [22]Site visit [28]The plaintiffs' insuranceThe Vero policies [31]EQC's involvement [38]Category 3 damage [43]The plaintiffs' claims and the positions of the parties [45]Issues [52]PART II — THE LAWThe onus of proof [53]What constitutes damage? [56]How does "damage" relate to "failure"? [59]What is the repair standard under the Policies? [65]Compliance with the Building Act 2004Compliance with the New Zealand Building Code (NZBC) [72]Compliance with %NBS rating system [78]PART III — THE DAMAGE AND REMEDIATIONBuildings 2 and 3 — 152 and 160Description of the buildings [80]Settlement caused by liquefaction at 152 and 160 [84]Various types of settlement at 152 and 160 [91]Plaintiff's pleading in relation to 152 [99]Plaintiff's pleading in relation to 160 [101]Buildings 2 and 3 — at 152 in particularSlab-cracking (floor) [104]Cause of slab-cracking [111]Settlement and dislevelment [114]The implications of the slab-cracking [124]Voids [132]Superstructures — Buildings 2 and 3/152 [140]Buildings 2 and 3/152 — requirements of remediation [167]Repair by epoxy injection [172]Plaintiffs' position [174]Vero's position [176]Conclusion — use of epoxy resin [187]Buildings 2 and 3/152 — painting of cracks of 0.3 mm and less [188]Buildings 2 and 3 — at 160 in particularBackground [194]Slab-cracking (floor) [196]Cause of slab-cracking [203]Settlement and dislevelment [206]The implications of the slab-cracking [214]Voids [215]Superstructures — Buildings 2 and 3/160 [220]Buildings 2 and 3/160 — requirements for remediation [229]Buildings 1/152 and 160Description of Buildings 1 [230]Plaintiff's pleading in relation to 152 [232]Plaintiff's pleading in relation to 160 [233]Vero's defences [235]Foundations and slab [237]Pile head damage and failure [239]Settlement of ground below Building 1/152 [242]Damage to pile heads [254]Discontinuity of some piles at 3–4 m [258]Tilted or bent piles [269]Deduction of damage from lateral movement of Building 1/152 [283]Calculated damage [289]Conclusion — damage to Buildings 1 piles [301]Building 1/152 — damp proof membrane [302]Building 1/152 — floor slabs [308]Slab-cracking [310]Ground floor slab dislevelment [316]Superstructure [324]Dislevelment of upper floors [325]Verticality of walls [332]Cracking in walls [335]Roofs [379]Holistic assessment [384]Finite element analysis (FEA) [390]Remedy — Building 1/152 [400]Remedy — Building 1/160 [417]The availability of natural servitude at 160 Salisbury StreetThe relevance [419]The factual context [420]The legal context [421]Position of the territorial authority [423]Application of NZBC, cl E1 [425]The evidence — the path of secondary flow [429]The evidence — the extent of secondary flow [438]Conclusion — natural servitude [445]Buildings 4/152 and 160Description of Buildings 4 [448]Plaintiff's pleading in relation to Building 4/152 foundation and slab [451]Plaintiff's pleading in relation to building 4/160 foundation and slab [453]Vero's pleading [456]Overview of the respective cases [459]Building 4/160 — "complete foundation failure"? [461]Buildings 4/152 and 160 — voids [465]Building 4/152 — slab-cracking [471]Building 4/160 — slab-cracking [476]Building 4/152 — dislevelment [478]Building 4/160 — dislevelment [495]Building 4/152 — superstructure [513]Building 4/160 — superstructure [521]Building 4/152 — settlement [530]Buildings 4/152 and 160 — localised settlement [549]Civil engineering issuesAround Building 4/152 [554]Underground/152 [558]Above ground/152 [568]Catchment fall and flow 152 and 160 [592]Underground/160 [604]Above ground/160 [605]Longitudinal fall [620]PART IV — OUTCOMESRelief soughtDeclarations [623]Professional fees [627]Loss of rent [634]Landlord's fixtures and fittings [637]Costs [639]Orders [642]PART I — INTRODUCTORY MATTERSGlossary of termsAbbreviationsAEP Annual exceedance probability (for stormwater)BRANZ Inc, an independent building research organisationCat 3 Category 3 damage, a categorisation of damage adopted by VeroCCC Christchurch City CouncilCES Canterbury earthquake sequenceDPC Damp proof-course (in walls)DPM Damp proof membrane (in solid concrete floor)E1/AS1 see NZBC E1/AS1 belowEQC Earthquake CommissionETABS A software for structural analysis and design of multi-storeybuildingsGPR Ground penetration radar (scanning)EAG report Engineering Advisory Group reportFEA Finite element analysis (for consideration of stiffness of structuralelements)FFL Finished floor levelFGL Finished ground levelIDS Infrastructure Design Standard (of CCC)MBIE Ministry of Business, Innovation and EmploymentMBIE Guidance A guidance document (of MBIE) on the repair and rebuilding ofhouses affected by the Canterbury earthquakes (Version 3,December 2012), issued under s 175 Building Act 2004NBS New building standard — the standard for newly constructedbuildingsNZS 3101 New Zealand Standard 3101:2006 (concrete structures)NZS 3109 New Zealand Standard 3109:1997 (concrete construction)NZS 3114 New Zealand Standard 3114:1987 (specification forconcrete/surface finishes)NZS 4210 New Zealand Standard 4210:2001 (masonry construction)NZS 4404 New Zealand Standard 4404:2010 (land development andsubdivision infrastructure)NZBC New Zealand Building CodeNZBC E1/AS1 New Zealand Building Code clause E1 (surface water) AcceptableSolution 1 – an acceptable solution to compliance with BuildingCode clause E1NZBC E2/AS1 New Zealand Building Code clause E2 (external moisture)Acceptable Solution 1 – an acceptable solution to compliance withBuilding Code clause E2OFP Overland flow pathPIT Pile integrity testingPGA Peak ground accelerationRL Reduced levelSFP Secondary flow pathULS Ultimate limit state – (for earthquake events)Introduction[1] These proceedings relate to earthquake damage to two near-neighbouringproperties at 152 and 160 Salisbury Street, Christchurch. On each property there hadbeen built in 2003/2004 almost identical residential apartment buildings (12apartments in all). The plaintiffs in these proceedings are the owners of thoseproperties (separately referred to as "the 152 plaintiff" and "the 160 plaintiff", andjointly as "the plaintiffs").[2] The defendant, Vero Insurance New Zealand Ltd (Vero), insured the properties.Vero accepts that it has an obligation to fix damage caused by the 4 September 2010and 22 February 2011 earthquakes, part of the Canterbury earthquake sequence (CES).[3] The key issues in these proceedings are the extent of damage to the twoproperties and what is required to return the properties to a "when new" condition interms of the insurance policies. Do they each require demolition and rebuilding (theplaintiffs' case) or are there achievable repair solutions for each?Factual backgroundThe layout of the properties[4] The buildings at 152 Salisbury Street (152) and 160 Salisbury Street (160) weredesigned and constructed upon similar layouts, as depicted in Figure 1.Figure 1North[5] The properties are separated by a single property. They back on to propertiesin Peterborough Street (to their south) as depicted in Figure 2.Figure 2[6] For the purposes of this judgment the buildings will be described as:(a) Buildings 1 — comprising units 1, 2 and 3 at 152 and 160;(b) Buildings 4 — comprising units 4, 5 and 6 at 152 and 160; and(c) Buildings 2 and 3 — comprising respectively the garages for units 1, 5and 4 (in Buildings 2) and the garages for units 2, 3 and 6 (in Buildings3).[7] Buildings 1 at both 152 and 160 are adjacent to Salisbury Street. The rear ofeach property is accessed from Salisbury Street through an archway entrance underunit 3. Units 1 and 2 have ground floors either side of the archway. An originalarchitect's drawing showing the elevation of the northern face of Buildings 1 (facingSalisbury Street) is reproduced in Figure 3.Figure 3Construction: Buildings 1[8] Each unit in Buildings 1 is three-storeyed. The building as a whole isrectangular in plan, approximately 15 m long and 8.4 m wide.[9] There is a mix of foundations, including pile foundations and raft foundations,and there are some differences in superstructure between 152 and 160. Building 1 at152 is constructed in concrete block whereas Building 1 at 160 is constructed inconcrete tilt slab (panels).[10] The piled foundations are a combination of 150 mm x 150 mm and 100 mm x100 mm concrete piles extending approximately 9 m below ground level.[11] Each raft foundation contains a 100 mm thick concrete slab on a damp proofmembrane (DPM) on a minimum 150 mm thick compacted hardfill. The slab wasreinforced with 665 mesh. The slab was not continuous but split in two, supportingunits 1 and 2 respectively.[12] The first and second floors were constructed of 75 mm thick in situ concretetopping on 75 mm unispan units with 665 mesh central.[13] The concrete block walls at 152 are 190 mm thick with steel reinforcing. Thepre-cast panels at 160 are 180 mm thick with both 120 mm and 200 mm thick concretewall panels.Construction: Buildings 4[14] Buildings 4 are again three-storeyed structures in concrete block (152) orconcrete tilt slab (160). As with Buildings 1, they are approximately 15 m long and8.4 m wide.[15] Each foundation contains a 150 mm thick concrete slab on DPM on a minimum700 mm thick compacted hardfill. The slab is reinforced with 665 mesh. Thecompacted hardfill extends 1 m out from the perimeter of the foundation.[16] Below the buildings are six 450 mm diameter concrete post-holes with steelreinforcing along the west and east sides, with the foundations extending around 1.3 mbelow floor level.[17] There are 190 mm thick concrete block walls with steel reinforcing (152) ortilt-panel walls, generally 140 mm thick (160).Buildings 2 and 3[18] Buildings 2 and 3 (the single-storey garages) are described below at [80]–[83].Civil engineering[19] Both 152 and 160 had designed and constructed sewers and stormwater drains.Each property has a common asphalt driveway under the Buildings 1 archway andover the common area between the garages. There are on each property walls, fences,gates and paved courtyards around all units (except the elevated unit 3).[20] The nature and rights of secondary stormwater flows particularly at 160 are thesubject of disputed evidence (as discussed below at [429]–[444]).Condition of the buildings and properties[21] The evidence indicates that the properties had been well maintained and werein good condition at the time of the CES. Money and effort had been invested onlandscaping. Unit courtyards had been variously developed.The Canterbury earthquake sequence[22] A number of the unit-owners have given evidence, including some who werein their units at the time of the 4 September 2010 and/or 22 February 2011 earthquakes.[23] The evidence establishes that the September 2010 earthquake (with anepicentre 38 km from 152 and 160) made the buildings "swing" and caused minordamage. The owners of 152 commissioned a structural inspection report from StructexMetro Ltd in October 2010. The report provided them with assurance that thebuildings at 152 remained structurally sound and recommended non-structural repairswhich, for the most part, would involve repair and repainting.[24] The February 2011 earthquake (with an epicentre 10 km from 152 and 160)caused much more extensive damage.[25] The evidence of the witnesses is generally to the effect that the February 2011earthquake was "quite something else". Krista Hastings, who owns 5/160 along withher husband, described the impact:I had just returned home from work. When the jolt happened, I was in thekitchen. It was a huge struggle to get the four steps to the table for cover, asglassware and dishes, rained down around me. I felt not only the sidewaysmovement but vertical movement as well.[26] Electricity and water services were lost to both 152 and 160 for a lengthyperiod. Both properties lay within what became the central city cordon. Owners andtenants made arrangements to live elsewhere for at least that period.[27] Alan Wightman, the geotechnical engineering expert called for Vero, providedunchallenged evidence as to ground accelerations caused in the CES. The September2010 earthquake (with its epicentre 38 km away) had a mean equivalent peak groundacceleration (PGA) of 0.20 g.1 The February 2011 earthquake (with its epicentre 10km away) had a mean equivalent PGA of 0.33 g. Mr Wightman's evidence was thatthe ultimate limit state (ULS) designed ground acceleration for liquefaction analysisat the properties is 0.35 g.Site visit[28] Following the openings of counsel for the plaintiffs and Vero, counsel and Iattended both properties. Buildings 1 and 4 have not been the subject of permanentrepair since the earthquake events. Cracking of varying extent and degrees wasevident on the walls of Buildings 1 and 4. It was also evident on the (Buildings 2 and3) garage floors (the floors of the residential units generally being covered andunavailable for inspection). The various areas of damage have been well representedin photos produced in evidence.[29] There was an evident misalignment between some buildings. There was anapparent and significant drop in the level of the driveway and other areas adjacent tosome buildings, exemplified in some areas by cracking, exposure of unpaintedsurfaces and slopes on structures such as concrete steps, fences and gates. Again, allthese were well represented in photos exhibited at trial.[30] Also evident were repair patches to garage floors at 160 (only) after theEarthquake Commission (EQC) had arranged for repair work on the garages(Buildings 2 and 3). As discussed at [40] below, it is common ground that those repairswere ineffective.The plaintiffs' insuranceThe Vero policies[31] Each of the properties was insured under Vero's MaxiPlan Home Policy (HomePolicy). Each property had been insured for full replacement against accidental lossof or damage to the property up to an agreed floor area.21 Peak ground acceleration (PGA) may be measured in g (the acceleration caused by the Earth'sgravity).2 In the underwriting records, the floor areas for the two properties had historically been confusedbut the parties acknowledged, following the earthquakes, that there was cover for the full areas ofimprovements on each property.[32] The primary insuring clause in the Home Policy is the same as that consideredby this Court in Parkin v Vero Insurance New Zealand Ltd.3[33] The Home Policy provides in its Introduction:4What you are insured forWe will insure you for accidental loss or damage to your home at the situationshown on the schedule during the period of cover.What we will pay – at our option1. the cost incurred in rebuilding or repairing the damaged portion of thehome using currently equivalent building materials and techniques toa standard or specification no more extensive, nor better than itscondition when new; or2. the indemnity value should you not rebuild or repair within 12 monthsunless we agree to extend the time period.[34] Vero provides cover on a top-up basis:15. Natural Disaster InsuranceIn the event of the home suffering damage caused by• earthquake; we will pay:a. the difference between the cost of reinstatement and the amountreceived by you under the Earthquake Commission Act 1993 and itsamendments provided that:i. the Earthquake Commission has accepted liability under theAct for the loss or damage;ii. we shall not be liable for any excess imposed by the Act; andiii. the total amount paid by us with the addition of the amountrecoverable from the Earthquake Commission shall notexceed the amount that would be paid under the policy if thecause of loss was other than natural disaster;3 Parkin v Vero Insurance New Zealand Ltd [2015] NZHC 1675. Similar primary insuring clauseshave also been considered in He v Earthquake Commission [2017] NZHC 2136; aff'd [2019]NZCA 373; Bligh v Earthquake Commission [2018] NZHC 2102; Bruce v IAG New Zealand Ltd[2018] NZHC 3444; and Fitzgerald v IAG New Zealand Ltd [2018] NZHC 3447.4 Emphasis original in all excerpts from the Policy.b. for loss or damage to any permanently installed swimming or spapools, drains, pipes and cables, paths, driveways, garden walls (otherthan retaining walls that will be limited to $10,000) and tennis courts.The basis for settling claims and all other policy terms and conditions willapply.[35] The definition section of the Home Policy defines "home":Home means each dwelling (including residential flat or holiday home) withinthe residential boundaries of the property on which the home is situated.It includes any part of the home used as a home office or health care practice.It also includes:• walls, fences, gates;• gas pipes, fresh-water pipes, electricity and telephone cables;• any driveways, paths, footpaths and tennis courts;but does not include:• the land itself.[36] Each plaintiff also had insurance under Vero's Residential Body CorporatePolicy (the Body Corporate Policy) (together, "the Policies"). Under cl 4 of the BodyCorporate Policy, the natural disaster insurance provision committed Vero to payingfor loss or damage to any permanently installed drains, pipes and cable, paths,driveways and garden walls suffered by the home, to a limit of $25,000 in any oneperiod of insurance.[37] The term "home" is defined in the Body Corporate Policy to mean eachdwelling within the residential boundaries of the property on which the home issituated. Accordingly, at each of 152 and 160, there are six homes (units 1–6).EQC's involvement[38] The responsibilities of EQC in relation to insurance claims for earthquakedamage are dealt with in the Earthquake Commission Act 1993.[39] Under that legislation, EQC was required to cover the cost of repairingearthquake damage up to a "cap" of $115,000 (less excess) for each unit.[40] Until March 2016, EQC maintained the position that the plaintiffs' claims werewithin cap. EQC (in April/May 2015) arranged for repairs to the garages at 160(Buildings 2 and 3). The EQC repairs were intended to address voids below thosegarages and to re-level the garages, using low mobility grout. There are issues as tothe adequacy of the EQC repairs — it is recognised that Buildings 2 and 3 were notfully repaired by the EQC repairs and may have been further damaged.[41] In March 2016, EQC notified the relevant parties that it now considered theplaintiffs' claims to be over cap. For a brief period, Vero rejected the "over cap" statusbut in May 2016 it accepted the claims were over cap.[42] In May 2016, EQC made payments:(a) to the owners of 152 for the February 2011 event of $683,100 (being$690,000 less excess of $6,900);(b) to the owners of 152 for the September 2010 event of $46,282.02 (being$48,082.02 less excess of $1,800);(c) to the owners of 160 for the February 2011 event of $521,343 (afterdeducting $161,757 for the cost to re-level the garage buildings and$365.57 for emergency repairs); and(d) to the owners of 160 for the September 2010 event $37,265.82.Category 3 damage[43] Vero, as the private insurer, became responsible for any "over cap" sums. ThePolicies also responded to what Vero terms Category 3 (Cat 3) damage, being damageto garages, paths, driveways and garden walls.[44] The unit owners at 152 or 160 have not attended to Cat 3 damage — the natureof other required repairs meant that it would have made no sense to undertake Cat 3repairs in the meantime.The plaintiffs' claims and the positions of the parties[45] By their statements of claim the plaintiffs sought declarations as to theearthquake damage sustained on the properties; the scope of reinstatement workrequired to repair the earthquake damage; and Vero's obligation to pay the rebuildingor repair costs (and other identified, minor costs).[46] In relation to all Buildings (1, 2, 3 and 4 at 152 and 160) the plaintiffs soughtdeclarations that they were entitled to have each building rebuilt.[47] It is common ground between the parties that (upon repair or rebuilding as thecase may be) the plaintiffs will be entitled to reimbursement for the work necessary torepair Cat 3 damage.[48] The plaintiffs also sought judgment for the professional fees which each hasincurred and will continue to incur.[49] As explained at [627]–[633] below, leave will be reserved to the parties toapply further in that regard.[50] In the event of further application, the Court will need to determine to whatextent professional fees incurred by the plaintiffs are covered under their policyentitlements.[51] In opening the plaintiffs' cases, Mr Till QC indicated that the plaintiffs werestill considering whether to allege breach of contract on the part of Vero and, upon thebasis of breach, to claim general damages. Witnesses' evidence had been briefed inrelation to matters going to general damage. In the event, before openings hadconcluded, Mr Till advised the Court that the plaintiffs would neither assert breach ofcontract nor pursue general damages. Accordingly, evidence was not led by any partyas to breach of contract or matters which would inform general damage.Issues[52] The major issue between each plaintiff and Vero is whether the nature andextent of damage to the properties, and each of the four buildings thereon, necessitatesa demolition and reinstatement of each building if Vero is to comply with the Policies'standard of "when new". The plaintiffs' case is that all buildings have suffered suchstructural damage as to require replacement. Additionally, the plaintiffs assert that byreason of settlement caused by the CES affecting the clearance of Buildings 2, 3 and4, those buildings need to be rebuilt at higher levels. In the event that the Court findsthat demolition and rebuilding are not required, there are issues as to the aspects ofVero's proposed remediation.PART II — THE LAWThe onus of proof[53] The insured make claims under the policies of insurance. As for claimantsgenerally, it is the plaintiffs who have the burden of proving, on the balance ofprobabilities, every material fact of their causes of action.5[54] The plaintiffs therefore have the burden of proving that there was damagecaused by the CES and what is required to remedy that damage.6 An evidential onusmay move to the defendant where the plaintiffs establish a prima facie case in relationto particular issues — as, for instance, in Jarden v Lumley General Insurance (NZ)Ltd.7 There, the Jardens' evidence established that there had been no leaks to theirhouse over the 10 years prior to the CES, with the consequence that the Court ofAppeal held that the evidential onus moved to Lumley to show that the leaks resultedfrom causes other than earthquake damage.5 As applied in recent earthquake cases — Jarden v Lumley General Insurance (NZ) Ltd [2015]NZHC 1427, (2015) 18 ANZ Insurance Cases 62-077 at [47]–[54]; He (HC), above n 3, at [55];O'Loughlin v Tower Insurance Ltd [2013] NZHC 670, [2013] 3 NZLR 275 at [146]; M Ball andD Kelly Kelly and Ball Principles of Insurance Law (online looseleaf ed, LexisNexis) at[8.0190.1] and [8.0190.5]; and Anthony A Tarr and Julie-Anne R Kennedy Insurance Law in NewZealand (2nd ed, Law Book Company, Sydney, 1992) at 174.6 Bligh v Earthquake Commission, above n 3, at [31].7 Jarden v Lumley General Insurance (NZ) Ltd [2016] NZCA 193, (2016) 19 ANZ Insurance Cases62-104 at [40].[55] As Asher J recognised in O'Loughlin v Tower Insurance Ltd, there is somedifficulty in assessing the correct approach to onus of proof where earthquake damageis established but neither party has carried out an actual repair.8 In that situation, ahypothetical repair is involved. In O'Loughlin, the Court found the insurer to haveassumed the burden of establishing the appropriateness of its estimated cost of notionalfuture repair (on the balance of probabilities) in a situation where the insurer hadelected to make a payment based on an equivalent notional repair.9What constitutes damage?[56] By both the Home Policy and the Body Corporate Policy, the owners of theunits comprising the Body Corporates were insured for accidental loss or damage(including damage caused by earthquake) (together with extended coverage).[57] This Court and the Court of Appeal have considered the meaning of "damage"in a number of cases involving claims for earthquake damage.10 From that case law, Ifind that the term "damage" as used in the Policies has the following characteristics:(a) there has been physical damage in the sense of an alteration in anegative way to the physical state of the insured property; and(b) what has been impaired is the value, amenity or usefulness of theproperty; and(c) the impairment has been material in the sense that it can be describedas more than de minimis.8 O'Loughlin, above n 5, at [148]. Asher J alternatively (and in case he was wrong in relation to theonus being upon the insurer) approached the question of onus on the assumption that the onus wason the plaintiffs to prove contractual breach, including the inadequacy of the offered paymentbased on a notional repair.9 At [149]–[150].10 For example, O'Loughlin, above n 5; Kraal v Earthquake Commission [2014] NZHC 919, [2014]3 NZLR 42; aff'd [2015] NZCA 13, [2015] 2 NZLR 589 at [37]; Parkin, above n 3, at [36]–[38];Jarden, above n 5; C & S Kelly Properties Ltd v Earthquake Commission [2015] NZHC 1690 at[175]; He (HC), above n 3, at [60]–[67]; Bligh, above n 3, at [17]–[27].[58] The application of this approach to "damage" may be illustrated by referenceto the outcome in two cases.11 In C & S Kelly Properties Ltd v EarthquakeCommission, notwithstanding there being pre-existing settlement of floors, the Courtrejected a de minimis argument in relation to earthquake damage. The Court foundthat the dislevelment caused by the CES was considerably more than de minimis andalso had an impact on the amenity and utility of the house and its value.12 The decisionin Sadat v Tower Insurance Ltd — another case involving pre-existing floordislevelment — may be contrasted.13 The plaintiffs there established that theSeptember 2010 earthquake probably caused some increases in floor sloping but wereunable to establish that such increases as did occur were of such an extent as to requiresignificant re-levelling. In other words, the increases did not result in a "materialdifference".14 Similarly, the Court found that the plaintiffs had not established a"material difference" to the structural integrity of foundations arising from somefurther cracking of the perimeter foundation.How does "damage" relate to "failure"?[59] It is in the nature of the concept of "damage" that some material damage maybe repairable while other material damage may not be so, instead requiring rebuilding.[60] In short, not all damage to an element or a building will constitute a failure ofthat element or building.[61] Warwick Weber (a structural engineer called by the plaintiffs) repeatedly in hisevidence in chief, when addressing his opinion on matters relating to damage, spokeof "failure". Ms Meechan QC began her cross-examination of Mr Weber withquestions as to his use of the word "failure" in expressions such as "foundation failure"and "shear head failure". Mr Weber explained his use of the term "failure" in this way:"So if there has been damage or a negative impact on those undamaged strengths Iwould call it a failure".11 As identified in He (HC), above n 3, at [65]–[66].12 C & S Kelly, above n 10, at [306].13 Sadat v Tower Insurance Ltd [2017] NZHC 1550.14 At [254].[62] When questioned as to how he differentiated the concepts of failure anddamage, Mr Weber responded that he would say they are the same thing in this context.[63] Ms Meechan cross-examined Mr Weber particularly in relation to 97references he had made to "shear head failure". She put it to Mr Weber that he wastalking about damage to the head of the pile (through shear force). Mr Weber replied:"Yes that's right, yes, I'd be happy with that."[64] In this judgment I will use the terms "damage" and "failure" distinctively, toreflect a difference in meaning — I use the term "damage" to signify damage in thesense identified at [57] above that may or may not be repairable, whereas I use"failure" to signify damage which is beyond repair.What is the repair standard under the Policies?[65] As set out above at [33], Vero's commitment under the Policies (in thecircumstances applying here) is to pay the plaintiffs the cost incurred in rebuilding orrepairing damaged portions using currently equivalent building materials to acondition no more extensive, nor better, than their condition when new.[66] In other words, the Policies incorporate a "when new" standard rather than an"as new" standard.[67] The primary insuring clause contained in the Policies is the same as thatcontained in the Vero policy which was the applicable policy considered in Parkin.15[68] Similar (but not identical) primary insuring clauses have been considered bythis Court in a number of other cases.16[69] The distinction between "as new" and "when new" standards is important. Thedistinction was considered both in this Court and in the Court of Appeal in East vMedical Assurance Society of New Zealand Ltd.17 East establishes that "as new",15 Parkin, above n 3, at [107]–[121].16 He (HC), above n 3; Bligh, above n 3; Fitzgerald, above n 3; and Bruce, above n 3.17 East v Medical Assurance Society of New Zealand [2014] NZHC 3399 at [103]–[104]; aff'd [2015]NZCA 250, (2015) 18 ANZ Insurance Cases 62-074 at [38].where used in relation to the rebuilt or restored condition of the house, involves aquality standard, not a temporal standard. "When new", on the other hand, imports atemporal standard contemplating a restoration to the condition of the building whenbuilt (in this case in 2003/2004).18 In Parkin v Vero Insurance Ltd, Mander Jconsidered the same policy standard as contained in the present policies.19 HisHonour reviewed authorities in relation to the standard, applying those to the facts inParkin. He found that repair of piles employing a "jacking and packing" method metthe policy standard — the piles themselves had no aesthetic quality and the "jackingand packing" methodology restored the structural integrity of the house.20[70] Subsequently, in Fitzgerald v IAG New Zealand Ltd, Gendall J extensivelyreferred to and applied Parkin (and other authorities) in interpreting the "when new"standard.21[71] The "when new" standard, based on the authorities, gives rise to a number ofconsiderations:(a) Where a component has a functional (which expression here includes astructural) purpose, the standard requires restoration so that thecomponent functions in line with its "when new" condition. But wherea component also has or only has an aesthetic purpose, the originalaesthetic quality of the component must (also) be restored.(b) The restoration is not required to be to the same level as modernstandards but rather to the same level as the original standard (subjectto the fact that currently equivalent building materials and techniquesare to be used).(c) The repairs must put the building in the same position as far as possibleas it originally was.18 See also Turvey Trustee Ltd v Southern Response Earthquake Services Ltd [2012] NZHC 3344,(2013) 17 ANZ Insurance Cases 61-965 at [17]; and Parkin, above n 3, at [117]–[145].19 Parkin, above n 3, at [105]–[116].20 At [145].21 Fitzgerald, above n 3.(d) The result must render the fact of the earthquake damage immaterial.Compliance with the Building Act 2004Compliance with the New Zealand Building Code[72] It is common ground between the parties that the repair methodology — to berecognised by the Court as meeting the Policies' standard — will also have to complywith any relevant provisions of the Building Act 2004 and the New Zealand BuildingCode (NZBC) (promulgated by the Building Regulations 1992) which govern repair.[73] In Fitzgerald v IAG New Zealand Ltd, Gendall J considered the provisions ofthe Building Act in the following summary which I adopt:22[47] Section 17 of the BA [Building Act] requires that all building workmust comply with the Building Code to the extent required by the BA.Sections 112 and 42A of the BA specify that, after repair, the building as awhole must continue to comply with the Building Code to the extent that itdid before the repair or alteration. The BA does not require the repairedbuilding to comply as if it were a new building.[48] The requirements of s 17 have been summarised as:23• Any new work must comply completely with the Building Code subjectto any waiver or modification granted by the territorial authority (forexample, if a shower compartment made of ordinary glass is beingreplaced, then the replacement must be made of safety glass as requiredto comply with the Building Code); and• After the alteration, the whole building must comply with the BuildingCode to the extent specified by s 112.[74] Section 112 Building Act relevantly provides:112 Alterations to existing buildings(1) A building consent authority must not grant a building consent for thealteration of an existing building, or part of an existing building,unless the building consent authority is satisfied that, after thealteration,—(a) the building will comply, as nearly as is reasonablypracticable, with the provisions of the building code thatrelate to—22 Fitzgerald, above n 3 (footnote and emphasis original).23 Duncan Laing and others Building Law in New Zealand (online looseleaf ed, Thomson Reuters)at [BL112.02]; adopted in Wheeldon v Body Corporate 342525 [2015] NZHC 884, (2015) 16NZCPR 829 at [160].(i) means of escape from fire; and(ii) access and facilities for persons with disabilities (ifthis is a requirement in terms of section 118); and(b) the building will,—(i) if it complied with the other provisions of the buildingcode immediately before the building work began,continue to comply with those provisions; or(ii) if it did not comply with the other provisions of thebuilding code immediately before the building workbegan, continue to comply at least to the same extentas it did then comply.(2) Despite subsection (1), a territorial authority may, by written notice tothe owner of a building, allow the alteration of an existing building,or part of an existing building, without the building complying withprovisions of the building code specified by the territorial authority ifthe territorial authority is satisfied that,—(a) if the building were required to comply with the relevantprovisions of the building code, the alteration would not takeplace; and(b) the alteration will result in improvements to attributes of thebuilding that relate to—(i) means of escape from fire; or(ii) access and facilities for persons with disabilities; and(c) the improvements referred to in paragraph (b) outweigh anydetriment that is likely to arise as a result of the building notcomplying with the relevant provisions of the building code.[75] As summarised in Fitzgerald, this means that the Building Act requires onlythe aspects of the house that have been repaired to be brought up to current compliancelevels. Elements which are not repaired may be left at the same level of complianceas they previously were.24[76] In any particular case, the Court may accordingly be required (upon evidenceled) to determine whether a proposed methodology complies with the Building Actand/or will be granted a consent. That may in turn require the Court to consider the24 Fitzgerald, above n 3, at [50].applicability of what is commonly referred to as the MBIE Guidance (a guidancedocument of the Ministry of Business, Innovation and Employment (MBIE) on therepair and rebuilding of houses affected by the CES).25 The Court may refer to theMBIE Guidance in order to determine whether a proposed methodology is anacceptable solution which fulfils the obligation under ss 17 and 112 Building Act.26[77] In an appropriate case, the Court when granting declarations based on aproposed methodology which the Court has found to be Code-compliant may make itsdeclarations conditional upon the obtaining of relevant consents or exemptions. TheCourt may make an alternative declaration as to the methodology required in the eventnecessary consents and exemptions are unable to be obtained.27Compliance with %NBS rating system[78] For the purpose of the seismic (or earthquake) rating of existing buildings,engineers adopted a New Building Standard (NBS). The %NBS rating system hasbeen explained thus:28The rating given to a building as a whole expressed as a percent of the newbuilding standard achieved, based on an assessment of the expected seismicperformance of an existing building relative to the minimum that would applyunder the Building Code (Schedule 1 to the Building Regulations 1992) to anew building on the same site with respect to life safety.The %NBS is an evaluation in terms of protecting life in earthquakes and not inrelation to the damage the building could be expected to sustain.[79] It was common ground between the parties (and their experts) in this case thata %NBS of not less than 34 per cent must be achieved at Building 1 where the %NBShas its significant application in this case.2925 Ministry of Business, Innovation and Employment Repairing and rebuilding houses affected bythe Canterbury Earthquakes (3rd ed, 1 December 2012) [MBIE Guidance].26 Fitzgerald, above n 3, at [56].27 Fitzgerald, above n 3, at [82]–[85].28 MBIE, 2017 (1).29 Building Act 2004, pt 2, sub-pt 6A (Special provisions for earthquake-prone buildings) appliespursuant to the provisions of s 133AA (because Building 1 contains three or more household unitsand comprises two or more storeys).PART III — THE DAMAGE AND REMEDIATIONBuildings 2 and 3 — 152 and 160Description of the buildings[80] The properties at 152 and 160 contain single-storey garages (Buildings 2 and3) which are of identical layout and (with the exception of their construction inconcrete block (152) and concrete tilt slab (160)) are similar in design.[81] The foundations of both Buildings 2 and 3 consist of slab thickenings to theperimeter and below the walls. The thickenings are 400 mm deep (including 100 mmslab thickness). The slab is 100 mm thick, reinforced with a single central layer of665 mesh. The slab sits on a DPM over a layer of compacted hardfill. The compactedhardfill extends 1 m out from the north, east and south sides (Buildings 2) and fromthe north-west and south sides (Buildings 3) of the foundation.[82] The walls are respectively 190 mm thick concrete block walls with steelreinforcing (152) and concrete tilt slabs generally of 120 mm thickness (160).[83] The garage buildings were constructed with lightweight roofs. They have alow seismic mass, which is dominated by the weight of the walls.Settlement caused by liquefaction at 152 and 160[84] For Vero, Mr Wightman, a geotechnical engineer of ENGEO Ltd, providedreports of cone penetration testing to depth, machine borehole testing, and depth andshallow borehole testing.[85] The testing of ground at both 152 and 160 identified numerous layers belowsurface, including liquefiable layers. The sub-surface comprises interbedded alluvialmaterial consisting of silt, sand and peat.[86] Mr Wightman performed liquefaction analyses using on-site as well aspublished data.[87] Mr Wightman then calculated liquefaction settlements for a ULS event (0.35g) and for two different serviceable limit state (SLS) events (event 1 being a PGA of0.13 g and event 2 being a PGA of 0.19 g).[88] At 152, Mr Wightman's calculations of vertical settlement (from liquefactionsettlements) are set out in Table A:Table A (152)Design caseCalculated vertical settlementTotal Upper 10 mULS 100–180 mm 90–160 mmSLS case 1 40–90 mm 40–70 mmSLS case 2 60–120 mm 60–100 mm[89] For 160, Mr Wightman completed a liquefaction analysis based on similartesting to that conducted at 152. Mr Wightman's calculations of vertical settlement(from liquefaction settlements) are set out in Table B:Table B (160)Design caseCalculated vertical settlementTotal Upper 10 mULS 90–130 mm 90–130 mmSLS case 1 20–50 mm 20–40 mmSLS case 2 55–80 mm 55–65 mm[90] In summary, the analysis of Mr Wightman indicated that the soils at both 152and 160 have been and remain susceptible to liquefaction.Various types of settlement at 152 and 160[91] Issues arise as to the settlement of buildings in this case, and in particular as towhich buildings and land have settled. Witnesses have referred to global, local anddifferential settlement.[92] Adrian Cowie, in his brief of evidence for the plaintiffs, provided adiagrammatic explanation of how he uses the terms "global", "local" and "differential"in relation to settlement, as set out in Figure 4.Figure 4[93] Mr Cowie would define the terms respectively:(a) "Global settlement" — a settlement affecting both developed andundeveloped land, being the amount the entire footprint of a buildingsettles in height (but excluding any local and/or differential settlement).(b) "Local settlement" — the settlement of the building into the groundmore or less on its own footprint (reducing the clearance of the floor tothe ground).(c) "Differential settlement" —the floor tilt or dislevelment of the floor.[94] Mr Cowie also refers to "total settlement" representing the total by which thecurrent lowest floor level has settled in height. He refers to this as the sum of theglobal, local and differential settlements. Mr Cowie approaches his analysis of totalsettlement upon the basis that three components — global, local and differential —may be identified separately and measured separately. Mr Cowie, as his diagram(Figure 4) indicates, for the purposes of his calculations treats global and localsettlement as uniform, with "differential settlement" representing any "tilt". Henevertheless recognised (agreeing with Boyd Thomson (of Envivo Ltd), a surveyingwitness for Vero) that global settlement may not be uniform across a site.[95] An issue arose in the course of the trial as to whether witnesses were usingthese terms in exactly the same way. It is unnecessary here to consider whetheralternative meanings might more appropriately be used — given that Mr Cowie laidout these meanings at the start of the process of the exchanging of evidence, theconvenient course is that the Court for this proceeding generally adopts Mr Cowie'susages.[96] Mr Thomson, while recognising the three concepts used by Mr Cowie, wouldnot treat global and local settlement as necessarily uniform or consistent — he viewsglobal and local settlement as covering both uniform and non-uniform settlement.[97] Both Mr Cowie and Mr Thomson recognised that what is ultimately importantis that measurement of the extent of settlement (including any differential settlement)be accurate.[98] Both Mr Cowie and Mr Thomson also recognised that beyond the footprint ofa building which has experienced local settlement, there may be a zone of influence— land which is affected by the local settlement in such a way as to itself settle.Mr Cowie referred to a concept of "the zone of influence for local settlement" from aparticular building.Plaintiff's pleading in relation to 152[99] The 152 plaintiff particularises damage to the garages at 152 as being:(a) extensive cracking to slabs;(b) voids under the slabs identified by slab-tapping;(c) differential settlements (17 mm at Building 2/152 and 28 mm atBuilding 3/152); and(d) floor slopes greater than 1 in 200 across 23 per cent of the floor.[100] The pleading in relation to the garage slabs at 152 may be contrasted with thepleading in relation to the Building 1 slab which commences with an allegation of"complete foundation failure".Plaintiff's pleading in relation to 160[101] The 160 plaintiff particularises damage to the garages at 160 as being:(a) extensive cracking to the slabs;(b) injection and jacking holes from EQC repair;(c) the buildings will require significant lifting; and(d) floor slopes greater than 1 in 200.[102] The pleading in relation to the garage slabs at 160 may be contrasted with thepleading in relation to Buildings 1 and 4/160 in which, for each, "complete foundationfailure" is alleged.[103] By its general pleading in relation to all alleged damage at 152 and 160, Veroadmitted that all buildings had suffered cracking to the concrete ground floor slabs upto 1 mm but typically less than 0.5 mm.Buildings 2 and 3 — at 152 in particularSlab-cracking (floor)[104] Mr Weber (the plaintiffs' structural engineering witness) gave evidence ofinspections he had carried out on all buildings. He stated that he had observed "verysignificant cracking" to the top of the floor slabs in Buildings 2 and 3/152. He referredto the cracks being typically up to 1 mm wide. He referred to crack maps drawn byMr Cowie as showing the extent of cracking. The crack maps show lines of crackingsomewhat more numerous in Building 3 than in Building 2.[105] Mr Cowie, who had prepared the crack maps, identified the visible cracking inBuilding 2 as being "a significant amount". He stated that it was significantly morethan would be expected solely due to shrinkage of the concrete slab during and afterconstruction. Mr Cowie did not adjectivally describe the amount of cracking on theBuilding 3 slab. He again stated that he would not expect the amount and type ofcracking purely from shrinkage.[106] Mr Cowie opined in relation to both slabs that the cracking was due mainly, ifnot exclusively, to the CES.[107] Mr Weber, considering the floor cracking on Buildings 2 and 3 alongside other"individual aspects of failure", opined that the overall picture is one of "excessiveearthquake damage".[108] For Vero, Samuel Polson, a structural engineer, addressed the cracking in thefloor slabs of the 152 garages. He described the cracks as "minor typically up to0.5mm wide". He observed that it appeared that no saw cuts were ever added to theslabs to assist with controlling the location of shrinkage cracks. He stated that, inrelation to a slab only 100 mm thick, bearing directly upon the ground, his expectationwas that many of the cracks evident were likely to have formed due to shrinkage. Hestated that cracks smaller than 0.3 mm do not require repair whereas cracks in the slabsurface and at the slab edge which exceed 0.3 mm in width should be repaired usingepoxy injection techniques.[109] I find Mr Cowie's crack maps of the slabs of the 152 garages to be generallyaccurate as to location and length. Vero did not significantly challenge them in thoseregards. The crack maps are consistent with photographs which were produced inevidence and accord with the Court's own overall impression gained from its siteinspection with counsel.[110] I find no evidence of crack width (in the 152 garages) greater than 0.5 mm.Cause of slab-cracking[111] There is no evidence that, at the time of construction or subsequently, saw cutswere made to assist with the control of shrinkage cracks and I find that there were nosuch cuts.[112] Mr Polson stated frankly that he had not been able to determine if the slabcracks on Buildings 2 and 3/152 had been caused by earthquake shaking or slabshrinkage. He said it was also possible that cracks which had formed from slabshrinkage had opened further through earthquake shaking.[113] Mr Weber considered it important, in considering foundation damage, to haveregard to a range of matters including "significant cracking throughout the slab,excessive floor slopes and differential settlement". He described the total damage tothe garages (including cracking of the slab) as related to foundation settlements whichoccurred because of the CES. In Mr Weber's evidence, the combined effect of thefoundation damage negatively altered load paths in Buildings 2 and 3 and theirbuilding-strength because yielding or strain hardening occurred causing damage toreinforcement (in both slab and walls). This created an "ongoing deterioration of thestructure due to loss of corrosion protection to reinforcement".Settlement and dislevelment[114] Mr Cowie took measurements and concluded that Building 2 had suffered atotal settlement of 221 mm, comprising 204 mm of global settlement and 17 mm ofdifferential settlement (with the possibility that 14 mm of the settlement was local).[115] Mr Cowie concluded that Building 3 had suffered a total settlement of 239 mmcomprising global settlement of 211 mm and differential settlement of 28 mm, withno appreciable local settlement.[116] Mr Cowie also presented maps of specific areas of the Building 2 slab withgrades steeper than 1 in 200 (23 per cent) and 1 in 150 (4 per cent).[117] Mr Weber's conclusion, having regard to Mr Cowie's measurements, was thatthere was evidence of earthquake-induced differential settlement in Buildings 2 and 3which could then be taken (with other factors) to indicate that the slab-cracking wasalso earthquake-induced and "significant".[118] Vero's case in relation to floor slopes, as outlined in Ms Meechan's opening,was threefold:(a) In Building 2, no slope exceeded 0.5 per cent over 2 m.(b) In Building 3, the maximum slope was 0.65 per cent over 2 m, with anoverall variation of 25 mm.(c) All floor slope differentials were within "when new" constructiontolerance.[119] Mr Polson drew on a number of documents as a guide to determine thecondition the building was likely to have been when new and whether, following theCES, there has been a loss of functionality (meaning damage). Mr Polson referred inparticular to:(a) the structural work specification for 152, which required the concreteslab to have finish class U3 per NZS 3114:1987 (the New ZealandStandard Specification for concrete surface finishes);(b) table 3 in NZS 3114 which specifies for U3 a maximum gradualvariation between two points less than 3 m apart of 5 mm, with anoverall surface tolerance (pursuant to table 5.2 NZS 3109) of plus orminus 10 mm;(c) Verification Method VMB1/VM4 of the NZBC, Appendix B, whichlimits a foundation design to a probable maximum differentialsettlement over a horizontal distance of 6 m to no more than 25 mmunder serviceability limit state load combinations; and(d) a report of the Engineering Advisory Group to the Department ofBuilding and Housing dated 10 April 2011, which found evidence of anoverall variation between 10 mm and 23 mm in the floor level of newconcrete foundation slabs (the EAG report).[120] The EAG report analysed details of nine slabs poured between the September2010 and February 2011 earthquakes in Christchurch (six) Porirua (two) and Kaiapoi(one). None of the floors surveyed achieved the Standard Specification. The reportersnoted that it was not possible to feel any appreciable slope on the slab surfaces whenwalking on the analysed slabs. In other words there was no apparent loss of amenitythrough the variation in levels.[121] Against the background of the various documents to which he had referred, MrPolson focused on the floor level variation across the ground floor of individual units(in relation to the garages, that is the individual garages). He observed that the floorslope across two points 2 m apart was less than 0.65 per cent. He stated that in hisopinion the foundations of the 152 garages were within a reasonable "when new"construction tolerance, as found by the EAG report. He concluded that there had notbeen, through the CES, damage to levels such as required repair as there had been noloss in the functionality or performance of the foundation system.[122] As a point of reference, Mr Polson identified also the MBIE Guidance.30 TheMBIE Guidance was intended for timber-framed residential buildings, which these arenot. Mr Polson nevertheless opined that the MBIE Guidance provides some usefulguidance on criteria for re-levelling of foundations. Table 18.2 of the Guidanceindicates that, for concrete slab buildings, when total differential settlement is less than50 mm in a single unit and floor slopes are less than 0.5 per cent over a length of atleast 2 m in a single unit, then no levelling is required. Mr Polson observed that theMBIE Guidance variation figure (50 mm) is significantly beyond the 20 mm variationthreshold which he had adopted.30 MBIE Guidance, above n 25.[123] Upon the basis of the evidence, the plaintiffs have not established that therewas any earthquake-induced dislevelment such as might indicate, in conjunction withthe slab-cracking, additional evidence of structural damage.The implications of the slab-cracking[124] Mr Weber stated that he had inspected the top of the slabs of Buildings 2 and3/152. He continued:Cracks are typically up to 1mm wide which means the slabs have lostsignificant bending and shear strength, damage to reinforcement will haveoccurred and ongoing deterioration of [the] slab through loss of corrosionprotection of the reinforcement.[125] In relation to the width of cracking, Mr Weber produced video footage of anearthquake simulation (the "Shake Table test") in which one could observe cracksopening up and closing on a wall under simulated shaking conditions. Mr Weberexplained the purpose of the video was to show that it is very difficult to determinefrom residual cracks alone the extent to which the cracks had opened and closed duringthe CES. In cross-examination, Mr Weber noted that the video was for a six-storey ornine-storey building so that it was "pretty dramatic", but Mr Weber added that: "to acertain degree this would be happening here". He confirmed that the video was not arepresentation of this building but he could state with certainty that, at 152, crackswould have been opening and closing "to some degree" in the CES.[126] The video simulation produced by the plaintiffs does not permit the Court todraw any conclusion as to the extent to which the cracks now evident in the buildingslabs opened during the CES beyond what is now visible. The only conclusions thatcan reliably be drawn on the evidence before the Court in relation to the structuralsignificance of the cracking are those based on what the witnesses had been able tophysically identify.[127] I am satisfied that, of the cracking physically evident, some probably arosepost-construction as a result of the failure to create expansion cuts. But I am equallysatisfied that some of the cracking resulted from the CES. There is a final, furthercategory of damage, namely cracking caused by slab shrinkage, which opened furtheras a result of the earthquake shaking.[128] Mr Weber in his evidence opined that the crack patterns in both slabs andpanels would have allowed moisture ingress and negatively impacted on the corrosionprotection of reinforcing steel within the slabs/panels. However, in cross-examinationhe was taken to the provisions of the concrete structures standard, NZS 3101. He wasquestioned as to his conclusion that there would be deterioration of the reinforcingsteel. Mr Weber stated that his comments were in relation to an area in which he isnot an expert and derived "just from conversations with experts".[129] Within NZS 3101, cl 3 deals with "Design for Durability". At cl 3.2.3, thestandard states:It is generally recognised that fine cracks in concrete do not significantly affectcorrosion initiation of embedded reinforcement but larger crack widths maycause premature corrosion activity locally. Reference 3.1 considers thatcorrosion is not affected by crack widths less than 0.4 mm.The reference referred to in the standard (3.1) is an article by Messieurs François andArliguie published in 1999.31 The standard summarises the outcome of that researchwhich flowed from experiments conducted over a twelve year period on reinforcedconcrete elements kept in a loaded state in a confined salt fog. Mr Weber was notaware of the François/Arliguie research until cross-examined in relation to it.[130] In addition to Mr Weber, the plaintiffs also called Simon O'Brien (of HamptonJones Consultancy Ltd), a chartered building surveyor with experience in post-earthquake repair assessments, including in relation to weathertightness. He similarlyopined by reference to his own inspection and Mr Cowie's crack maps that the extentof cracking had "fundamentally breached the weathertightness and durability of thebuildings", with "each crack" creating an opening for water ingress. He stated thatthis was evidenced by the presence of some lichen at cracks. He opined that waterwould likely have come into contact with the reinforcing steel. He concluded thatrepair to a "when new" standard would not be possible unless invasive testingdemonstrated the absence of oxidisation. Mr O'Brien himself had not undertaken suchinvasive testing. It emerged in cross-examination that Mr O'Brien had also notconducted any non-invasive test such as exterior swabbing to determine any level of31 R François and G Arliguie "Effect of Microcracking and Cracking on the Development ofCorrosion in Reinforced Concrete" (1991) 51(2) Magazine of Concrete Research 143.salt at the cracks in the buildings, although that could have been done. Mr O'Briennevertheless took issue with Mr Polson's focus on the width of cracks, and noted MrPolson's not commenting on the depth or frequency of cracking (he himself not givingevidence as to depth). As to crack width, he disagreed with the emphasis placed byMr Polson on the recognition in NZS 3101.2006 of the work of Messieurs Françoisand Arliguie (above at [129]). I did not find Mr O'Brien's criticism of Mr Polson'sevidence to undermine the informed reliability of that evidence. I find, consistentlywith the recognition in NZS 3101, as referred to by Mr Polson, that the crack width isof critical importance in the assessment of potential damage and that Mr Polson'sconclusions accurately reflect the situation which probably exists across the buildings.[131] There is not a sound evidential basis on which the Court could conclude thatthe nature of cracking caused to the concrete slabs in the CES will have led to anydeterioration or risk of deterioration due to moisture ingress and/or corrosion.Voids[132] The plaintiffs assert that the CES created areas of voids under Buildings 2 and3/152. The evidence of Mr Weber and of Mr Cowie is that the presence of such voidswas established by slab-tapping. Mr Weber referred to hammer-tapping.[133] In his evidence, Mr Cowie stated that he had carried out "hammer tests" tovarious portions of the garage floors and that sound typical of voiding was present innumerous areas throughout the structure. Mr Cowie stated that in his opinion the"soundings" (together with other measurements and site indicators) indicated thatvoiding was "significantly more than likely". He added that, in order to conclusivelydetermine the depth and extent of voiding, intrusive coring would be required entailing100 mm diameter cores to be taken at around 1 m centres. Mr Polson rejected the useof hammer-tapping as a reliable or accurate method for stating with any certainty thatvoids existed beneath a slab.[134] As the primary structural engineer called for the plaintiffs, Mr Weber wascross-examined by Ms Meechan as to best practice in relation to establishing theexistence of slab voids. Mr Weber was referred to a passage in the evidence given byMr Cowie as a witness in the Jarden case.32 The passage which Ms Meechan quotedreads:33I consider it good practice to carry out both ground penetrating radar andintrusive coring to determine accurately the presence or absence of slab voids.To rely solely on floor level variations and/or slab cracking is, in myexperience, a very imprecise method to determine voids.[135] In his judgment in Jarden, Kós J recorded: "Mr Cowie conceded that 'tappingthe concrete slab is an imprecise method of determining the presence, or absence, ofslab voids' ".34[136] In cross-examination, Mr Weber agreed with that evidence. He also confirmedthat he had not carried out any intrusive coring to determine the presence or absenceof voids under the slab.[137] A picture of an area of sub-surface can be built up by ground penetration radar(GPR), utilising a device containing a transmitter and receiver. In this case GPR scansof the concrete slab foundations at 152 were carried out by Safety First ServiceLocators Ltd in June 2015. On the basis of the scans, the report writer (Rick Butson)reported that no significant voids were detected in any of the six garages comprisingBuildings 2 and 3. Mr Polson in his evidence observed, having referred to that report,that he would have expected the garage buildings and underlying ground to havesettled together, without voids forming beneath the slab, by reason of the shallowfoundations all being founded above the potentially liquefiable layers.[138] Having regard to the evidence, the plaintiffs have not established either thatthere are significant voids beneath the slabs of Buildings 2 and 3/152 or that the CEScaused voiding. To the contrary, upon the basis of the GPR results and Mr Polson'sevidence I find it established that Buildings 2 and 3/152, during the CES, settled moreor less consistently with the ground, with no significant voids resulting.[139] As summarised by Mr Till in his opening for the plaintiffs, Mr Weber'sconclusions of observed foundation damage (significant slab-cracking, excessive floor32 Jarden (HC), above n 5.33 At [44].34 At [44].slopes and differential settlement, and slab voids) contributed to the conclusion thatfoundation damage of Buildings 2 and 3/152 has resulted in negatively altered loadpaths throughout the garage structures. By reason of the above findings in relation tothose alleged components of damage, I also reject Mr Weber's evidence that there hasbeen a negatively altered load path throughout the Buildings 2 and 3/152 structuresthrough foundation damage. I find positively that nothing that happened within theslabs in the course of the CES led to an alteration in the load paths of the garagestructures.Superstructures — Buildings 2 and 3/152[140] By their statement of claim, the plaintiffs assert and particularise damage tothe walls of the garage buildings as follows:In the garages step cracking and cracking in concrete blocks indicate structurehas racked and moved laterally during the earthquakes. Residual leanmeasurements do not show significant leans, but visible cracking indicateslarger leans occurred during the earthquake shaking.[141] In his evidence, Mr Weber summarised the damage to the superstructure ofBuildings 2 and 3/152 as:Cracking to the concrete block walls resulting in the significantly altered loadpath system and building strength. Damage to reinforcement including strainhardening and negatively affected stress and stain [sic] profiles. There isongoing deterioration of the structure due to loss of corrosion protection toreinforcement.[142] Later in his evidence in chief, Mr Weber again referred to the wall crackingdamage which, in conjunction with damage at foundation level, led him to concludethat the "overall picture is one of excessive earthquake damage" with negativelyaltered load paths and building strength reduction.[143] In the balance of his evidence in chief, Mr Weber devoted detailed analysis toa consideration of Buildings 1 and 4/152 based on verticality and other surveyevidence produced by Mr Cowie. The plaintiffs have not produced verticality surveyevidence for Buildings 2 and 3/152. Mr Weber did not comment on the verticality ofBuildings 2 and 3. Nor did his initially briefed evidence in chief identify hisassessment or reasoning in relation to any cracking of walls on Buildings 2 and 3/152.[144] For his part, Mr Cowie produced six photos showing what he described as"lateral separations in the blockwork and between walls at the corners" in Building 2.He also produced "3d views" of Buildings 2 and 3/152 showing some crackingbetween blockwork on a number of faces of Buildings 2 and 3/152. He also produceda (more limited) number of photographs in relation to Building 3.[145] Mr Polson's evidence was briefed and served upon the plaintiffs in the pre-trialperiod. Mr Polson gave his evidence as briefed. Mr Polson carried out an inspectionof the buildings on 6 March 2019 and assessed cracks (whether earthquake-caused ornot) which required repairs. He approached the matter on the basis that, for repair,cracks which exceeded 0.3 mm would be epoxy-injected and that cracks of 0.3 mm orless would be raked out and re-pointed. Upon that basis, he estimated that in Buildings2 and 3/152 there were 2.5 m of cracks to be epoxy-injected and 22 m of cracks to beraked out and re-pointed.[146] Mr Polson stated that he completely disagreed with Mr Weber's conclusionthat for the garages "the overall picture is one of excessive earthquake damage". MrPolson considered the garage earthquake damage to be somewhere between nil andminor.[147] Mr Polson also disagreed with Mr Weber's conclusion that superstructuredamage had caused the load paths in the buildings to be negatively altered and buildingstrength reduced. Mr Polson opined that the garage buildings had not suffered adegradation in strength.[148] He commented specifically on two aspects of the plaintiffs' evidence in relationto the superstructure of Buildings 2 and 3/152. He first observed the lack of averticality survey for the buildings. Secondly, he referred to what he described as"minor cracking" to a block course in the front garage (for unit 6) in Building 3. Hestated that the crack was in one block face only and did not appear to propagate intothe adjacent blocks. He opined that the crack may have formed during constructionof the wall rather than being earthquake damage — he would have expected, if it wereearthquake damage, that the crack would likely have extended to the top or bottom ofthe wall (which it does not).[149] I recognise that Mr Cowie has gone to the extent of producing crack maps. Inthemselves, they identify what may be described as a modest presence of cracking.There is, however, no detailed analysis in relation to any of the particular cracksdescribed on Mr Cowie's crack maps for Buildings 2 and 3/152. To the extent theplaintiffs have produced photographs, they appear to show some cracks of noticeablewidth.[150] I am satisfied on the evidence that Buildings 2 and 3/152 suffered someearthquake damage in the form of cracking between blockwork. I am not satisfied thatall the cracking shown on Mr Cowie's crack maps was caused in the CES — inparticular, it is at least equally likely that a significant portion of it pre-dated the CES.[151] Mr Weber opined that the reinforcement in the walls of Buildings 2 and 3/152would have suffered strain hardening during the CES with negative effect on stressand strain profiles. Mr Weber in his evidence as briefed had spoken specifically of"strain hardening", but he elected in giving his evidence to add to that by referring toboth "yielding" and "strain hardening". Mr Weber explained that he came to discussstrain hardening because of his conclusions in relation to other damage recorded in thestandard of repair required.[152] He stated that the level of strain hardening which occurred in the buildings at152 was impossible to tell without dismantling the building. This was because of the"extensive nature of cracking". He stated that fracturing of reinforcement will occurwhen cracks open up between 2–4 mm. Strain hardening represents a materialreduction in strength, which Mr Weber noted is all that is required given the definitionof damage and the reinstatement standard. Mr Weber stated that when cracks openup between 2–4 mm, reinforcing would start to deform and strain harden.[153] Mr Weber referred to "yielding" as the point when the reinforcing couldprovide no further resistance — it suffers plastic deformation, being permanent or non-recoverable deformation after release of the applied load.[154] Mr Polson also gave evidence as to the concepts of "strain" and "yielding". Hestated:296. When reinforcing steel is loaded in tension, as occurs during thebending of a reinforced concrete element, the steel stretches. Theproportional increase in the length of the steel is called the strain.Reinforcing under tension initially behaves linearly, in that the strainof the bar will reverse when the load is removed. This is called elasticbehaviour.297. when the force on the bar causes the strain [to reach a certain point]the bar will yield. In theory, the maximum load the bar can resist hasbeen reached, ... Permanent, residual deformation of bars iscalled plastic behaviour.[155] In Mr Polson's evidence, "strain hardening" occurs when a bar continues to beloaded following yield. When the bar reaches its ultimate strain, it will snap orfracture.[156] Structural engineers design buildings deliberately to allow reinforcing to yield,a concept known as "ductility". Ductile buildings will form plastic hinges, focusingthe yielded region, and acting to dissipate energy.[157] Mr Polson referred to the "trade-off for highly ductile buildings" being thatthey tend to suffer high levels of damage in large earthquakes. When the reinforcingbars yield, they can cause significant cracking at the hinge zones, residual deformationand spalling of concrete.[158] Mr Polson described the lateral load resisting system at 152 as neither flexiblenor highly ductile, the buildings being squat and stiff and designed to remainessentially elastic with very limited if any yielding of reinforcing, at ULS load levels.[159] Mr Polson explained that for strain hardening of the reinforcing steel to occur,the reinforcing must yield. For the reinforcing to yield, cracks in the concrete mustform. For strain hardening to significantly reduce the number of cycles that a bar canwithstand, the yield in the bar would need to be significant, with the strain deformationresulting in considerable cracking damage. Mr Polson stated that a number of cracksexceeding 1 mm would be expected. (I note the parallel reference by Mr Weber tocracks of 2 mm to 4 mm.)[160] Mr Weber made a detailed analysis in relation to strain hardening at Buildings1 and 4. It was in relation to those buildings that he concluded, on account of theevidence of wall deformation which he observed, that there had been between 10 and100 per cent strain hardening. Although that evidence related to Buildings 1 and4/152, the basis of Mr Weber's conclusions is also relevant to (and indeed formed abasis of) his conclusions that there had been such deformation of Buildings 2 and3/152 as to cause strain hardening and yielding.[161] Mr Weber based his analysis of deformation (and his following conclusions asto strain hardening) primarily on external cracking, particularly to Building 1/152. Inparticular, he described as "the area of biggest concern" the cracking around thearchway (below unit 3) in Building 1/152.[162] Ms Meechan cross-examined Mr Weber in detail as to the extent of hisinvestigation of cracking in the walls, Mr Weber having referred in his evidence to anexternal examination of walls. Mr Weber referred to only one crack which hedescribed as "going all the way through" but added that he did not know how thatcrack had performed during the earthquake and whether it would have been more todo with "in plane".[163] Ms Meechan also cross-examined Mr Weber in relation to a "clean-out port"in a wall in Building 1/152. There was the opportunity to examine the reinforcingsteel in that clean-out port. Ms Meechan noted that Mr Weber had the opportunity toexamine the reinforcing steel to support his hypothesis of strain hardening but he hadnot taken that opportunity. Mr Weber explained that he not had done so because hedid not believe that there was any deformation at that point. He therefore concentratedinstead on the deformation which he saw outside rather than on the internal longnorth/south walls. Mr Weber had not assessed deformation limits for the north/southwalls.[164] Mr Polson disagreed with Mr Weber's evidence that it was reasonable to saythat the opening and closing of cracks would have been significant enough to yield(through strain hardening) and possibly fracture. Mr Polson also disagreed with MrWeber's further conclusion that the load paths in the building would have been altered.Mr Polson rejected the suggestion that there had been a reduction in strength andbelieved that any reduction in stiffness would have been so small as to be negligible.[165] Mr Polson rejected a suggestion that the load paths in the building would havebeen interrupted by cracking. Mr Polson stated that that is not how cracking works,the load paths remaining the same if the load is the same. He observed that yieldingdoes not mean a loss in capacity as the reinforcing bar still has the same capacity as itdid prior to being yielded. He repeated that he did not consider there was anyindication the reinforcing bars had yielded. He added that, if they had, it would nothave altered the load paths within the structure. Load would still go through the wallelements which would bend along their length. Reinforcing would go into tension.Concrete would go into compression. Loads would transfer out to the foundations andthen to the ground, the load path remaining unchanged.[166] The plaintiffs' assertions that the reinforcing bars suffered strain hardening andthat the Buildings 2 and 3 suffered negative stress and strain profiles turns on MrWeber's evidence. That evidence falls short of establishing the conclusions stated.Having regard to the evidence of relatively limited cracking and in the absence of anydirect investigation and conclusion as to strain hardening of the reinforcing bar, I amnot satisfied that either strain hardening of reinforcing occurred or that the buildingswere negatively affected in their stress and strain profiles.Buildings 2 and 3/152 — requirements of remediation[167] The plaintiffs have not established that Buildings 2 and 3/152 suffered suchstructural damage as to require any remediation beyond repair. I have rejected theplaintiffs' allegations of fundamental structural damage.[168] What requires repair is cracking to both slab and superstructure, for which Verohas provided a repair methodology. As the plaintiffs' position has been that Buildings2 and 3/152 require demolition and rebuilding, it is convenient to focus theremediation discussion first upon Vero's position and evidence as to remediation.[169] Vero's proposed repairs to Buildings 2 and 3/152 are for all cracking (withoutregard to whether any particular cracking may have existed pre-CES).[170] Vero proposes that cracks in floor slabs of greater than 0.3 mm be repaired byepoxy injection; that cracking in block wall mortar joints be removed and re-pointed;that externally there be installed a Resene masonry render system by a Resene-approved applicator; and that for internal cosmetic repair of the garages there beprovision for the grinding of floors, acid etching followed by preparation and paintingof the floors, the raking out and cementing plaster on internal wall cracks and thepreparation and repainting of walls.[171] Scott McIlraith of Maynard Marks (a building surveyor) was instructed toprepare for Vero a scope of such repair works and provided a brief of evidence, whichwas taken by agreement as read.Repair by epoxy injection[172] The repair proposed by Mr Polson for cracks exceeding 0.3 mm in width usesepoxy injection techniques. In relation to such cracks, the cracks would be exposedand repaired with epoxy resin.[173] The evidence relating to the potential effectiveness of epoxy resin injection forcracks at 152 and 160 was dominated by reference to two reports:(a) a report of Simpson Gumpertz & Heger Inc entitled "Evaluation ofEpoxy and FRP repair of Earthquake Damaged Concrete Structures"dated 18 November 2014, co-authored by Ronald Hamburger —generally referred to as the "Hamburger report";35 and(b) a report of Batchelar McDougall Consulting Ltd (BMC) entitled"Epoxy Resin Injection as a Repair Strategy for Concrete" which maybe conveniently referred to as the "BMC report" and dated 23 May2019 (that is, the week before this trial commenced).3635 Nicholas G Wetzel and Ronald O Hamburger Evaluation of Epoxy and FRP Repair of Earthquake-Damaged Concrete Structures (Simpson Gumpertz & Heger Inc, November 2014) [Hamburgerreport].36 Evie Anderson Epoxy Resin Injection as a Repair Strategy for Concrete (Batchelar McDougallConsulting Ltd, May 2019) [BMC report].Plaintiffs' position[174] Mr Weber rejected the ability of epoxy resin to satisfactorily bond the cracksin the buildings at 152 and 160. In cross-examination, he confirmed that he was not"dissatisfied with the literature that suggests epoxy injection will satisfactorily bondcracks" but he identified, as he had in his evidence in chief, significant reservations asto the efficacy of epoxy injection in relation to the structures at 152 and 160. Inparticular, he opined that epoxy resin injection will not restore yielding ofreinforcement or the stiffness of the structures.[175] Mr Weber referred to the Hamburger report in support of his rejection of theuse of epoxy injection at 152 and 160. He referred to conclusions in the Hamburgerreport which indicated that epoxy injection cannot be used to successfully repairstrain-aged reinforcement, fatigued reinforcement and fractured reinforcement.37 Hereferred also to a conclusion in the Hamburger report stating that the stiffness andenergy dissipation capacity of a damaged structure repaired with epoxy injection ofcracks cannot be fully restored.38Vero's position[176] Vero called Mr Polson as the structural engineer who had designed Vero'sproposed repair works. Mr Polson had identified epoxy resin injection as the repairmethodology for cracks (beyond 0.3 mm) at 152 and 160.[177] Vero in relation to the epoxy resin methodology called Andrew Marriott, achartered structural engineer who is a principal in BMC, which produced the BMCreport. Mr Marriott stated that he had been retained in February 2019 to provide Verowith advice in relation to the properties at 152 and 160. The scope of his work hadincluded an independent assessment of the efficacy of epoxy to repair cracks in theconcrete floor slabs and the blockwork/tilt panel walls. Mr Marriott produced theBMC report. He confirmed that he had personally participated in the literature reviewreported on (although other members of the practice had been the signatory authors).37 Hamburger report, above n 35, at [5].38 At [5.6].[178] Mr Marriott stated that, based on his participation in the review, he believedthat epoxy resin injection was both a viable cosmetic and structural repair method forthe purpose of durability and reinstatement of shear transfer across a crack.[179] In relation to flexure, he stated that the repair of cracks was inconsequential inrelation to the strength and energy dissipation of the buildings at 152 and 160 havingregard to the moderately damaged elements, involving minimal or no yielding ofreinforcement.[180] He stated, in relation to stiffness, that a decrease noted in the initial cycles post-damage and generally post-repair became obsolete after the initial cycles, the originalpost-damage and post-repair stiffness being similar or the same.[181] He supported a proposal to fill cracks greater than 0.3 mm with epoxy injectedfrom one side and to coat cracks of 0.3 mm or less with an acrylic paint.[182] Mr Marriott, in his evidence, was taken through findings in the Hamburgerreport as to types of damage which were stated to be unable to be successfully repairedby epoxy injection. Damage within that category (as identified in the Hamburgerreport's conclusions at [5.3]) included crushed concrete, strain-aged reinforcement,fatigued reinforcement, fractured reinforcement and loss of plumb due to permanentearthquake-induced drift. Mr Marriott stated that he had seen none of those types ofdamage at 152 or 160.[183] Mr Marriott was then taken to the conclusion of the Hamburger report (at [5.4])in which it is stated: "Depending on the extent of damage, it is possible to repair somedamaged reinforced concrete structures with epoxy injection of cracks and restoretheir pre-damaged strength." Mr Marriott stated that he agreed with that statement,and that it applied in its entirety to the buildings at 152 and 160.[184] Mr Marriott was then taken to a conclusion in the Hamburger report (at [5.6])relating to stiffness, in which it was stated: "The stiffness and energy dissipationcapacity of a damaged structure repaired with epoxy injection of cracks cannot be fullyrestored." Mr Marriott stated that that conclusion does not relate to a structure suchas that at 152, which is a very stiff, low ductility structure. A concern would arise ifthe structure had high ductility and hence very large displacements.[185] In cross-examination, Mr Marriott recognised the different conclusions in theHamburger and BMC reports. He accepted that for very large cracks epoxy resinwould not be used (which in Mr Marriott's evidence is the finding of the Hamburgerreport). Mr Marriott drew a distinction between structures considered in theHamburger report which he described as "structures with higher ductility than thestructures at 152 Salisbury".[186] Mr Marriott was also cross-examined as to a conclusion in the Hamburgerreport (at [5.9]) that epoxy used in repair applications loses nearly all its strength andstiffness near 204 degrees Celsius and cannot be relied upon for structural strength infire conditions. Mr Marriott indicated that, not being a fire engineer, he was not in aposition to state what temperatures a household fire might reach.Conclusion — use of epoxy resin[187] There may come a case in which a court is required to hear detailed evidencebased on analysis of the Hamburger and the BMC reports and to determine the extentto which one report or the other might materially assist determinations of fact wherethere are differences in report conclusions. In relation to the buildings at 152 (and160), which is the focus of this part of the judgment, this is not such a case. I amsatisfied, particularly having regard to the evidence of Mr Polson and Mr Marriott,that the extent of (structural) damage to Buildings 2 and 3/152 (and by reason offindings below, the other buildings at 152 and 160) leaves it possible (in terms of theconclusion at [5.4] of the Hamburger report) to repair those buildings with epoxyinjection of cracks in order to restore their pre-damaged strength. I am similarlysatisfied primarily by reason of the evidence of Mr Polson, which I accept in thisregard, that an epoxy resin repair will not be compromised by reason of any onset ofcorrosion affecting the reinforcing steel.Buildings 2 and 3/152 — painting of cracks of 0.3 mm and less[188] Vero proposed that for cracks of 0.3 mm or less the repair should be by asmoothing and coating with an acrylic (or elastomeric-type) paint. Such would applyto both walls and slabs. For the garage slabs, a scope of works prepared by MaynardMarks specifically provides for acid etching and thereafter a chemical resistant paintfinish.[189] Stephen Bamford, the builder who provided a quotation to Vero based on theMaynard Marks scope of works, exhibited a photograph of an epoxy paint finisheffected by the Connect Group, whom Mr Bamford would sub-contract to undertakethis work. The photograph shows an immaculately finished (painted) garage floor.[190] Mr Bamford exhibited, as an alternative repair methodology, a photograph ofa carpeted garage floor (completed by a carpeting subcontractor of Mr Bamford).[191] In the event the Court were to find that the cracks in Buildings 2 and 3/152could be repaired as proposed by Vero, the plaintiffs' objection to the painting over ofcracks related specifically to the slab floors. The slabs as they exist remain in a bareconcrete finish, which may be said not to require maintenance in the way that a paintedfinish may require maintenance.[192] The plaintiffs did not call evidence as to different maintenance implicationswhich flow from the difference in finish between a bare concrete finish and a paintedfinish. As a matter of common sense I accept that there may be differences but, in theabsence of evidence, I cannot conclude that there will be a materially different burdenof maintenance arising from one finish or the other. I recognise that a repainting atsome point might bring a significant one-off cost (yet at an interval I cannotdetermine). But there may well be in the shorter term a significant saving ofmaintenance burden through the nature of a professionally prepared and paintedsurface. Where aesthetic considerations are equal, it is not a breach of the "when new"requirement of repair to provide something better than "when new".[193] I am satisfied on the evidence that the paint finish proposed by Vero for bothslabs and walls (in relation to cracks of 0.3 mm or less) will meet the insurer'sobligations.Buildings 2 and 3 — at 160 in particularBackground[194] I have set out above matters of background applicable to Buildings 2 and 3 atboth 152 and 160, including the description of the buildings ([80]–[83]), the settlementcaused by liquefaction ([84]–[90]) and the plaintiffs' pleadings in relation to bothBuildings 2 and 3 at both 152 and 160 ([99]–[102]).[195] Of course, the claim in relation to 160 (as distinct from 152) is that of a separateplaintiff in relation to a separate property. For that reason, for the purposes of thisjudgment the evidence (which was prepared and read from separate briefs) has beenseparately considered. That said, I will be refraining from the extent of narrativediscussion set out (above at [104]–[193]) in relation to 152 as the approach of the keywitnesses through their two sets of evidence (one in relation to each property) wasmaterially identical. What differed were some specific details. No witness suggestedthat there was likely to be a valid conclusion in relation to Buildings 2 and 3 at oneproperty which differed from the conclusion in relation to the other property. Myconsideration of the evidence leads me to the same conclusions for Buildings 2 and3/160 as reached in relation to Buildings 2 and 3/152.Slab-cracking (floor)[196] The evidence of the various witnesses in relation to their inspections ofBuildings 2 and 3/160 has to take into account the repair attempts pursued by EQCfrom April/May 2015, intended to address voids below the garages and to re-level thegarages. Those attempted repairs had further, visible impacts on the slabs.[197] As with 152, Mr Weber stated that the slabs of Buildings 2 and 3/160 had "verysignificant cracking", typically up to 1 mm wide. He again referred to crack mapsdrawn by Mr Cowie, which show line cracking somewhat more numerous in Building3 than in Building 2.[198] Mr Cowie, who prepared the crack maps referred to by Mr Weber in relationto both 152 and 160, identified that the garage structures after the EQC "repair" hadcracking in their concrete slabs, with both CES-induced cracking and consequentialcracking caused by the EQC repair work. Mr Cowie concluded that cracking hadoccurred as a result of the EQC re-levelling work in both Buildings 2 and 3. Referringspecifically to photos he had taken of Building 3, he stated that the cracking to the slabwas a result of the (EQC) re-levelling attempt (and possibly also due to the CES).[199] Mr Weber reached the same conclusion for Buildings 2 and 3/160 as he had forBuildings 2 and 3/152, namely that the floor cracking alongside other "individualaspects of failure" led to an overall picture of "excessive earthquake damage".[200] For Vero, Mr Polson addressed the cracking of the floor slabs of the 160garages. He referred to the re-levelling work undertaken (apparently for EQC). Hestated that cracks up to 2 mm wide were visible in the slabs of both Buildings 2 and 3.He stated that he had not been able to determine if the slab cracks were caused byearthquake shaking, slab shrinkage, or due to the re-levelling works, and that it wasalso possible that slab cracks formed from slab shrinkage had been opened further byearthquake shaking. As at 152, he observed no saw cuts to assist with controlling thelocation of shrinkage cracks, and expected that many of the cracks evident werelikely to have been formed due to shrinkage. His proposed repair methodology wasas for the 152 garages, namely epoxy injection techniques for cracks which exceeded0.3 mm in width, with repair not required for those smaller than 0.3 mm.[201] As with Mr Cowie's crack maps for 152, I find his crack maps of the slabs at160 to be generally accurate as to location and length. They are consistent with thephotographs that were produced in evidence and accord with the Court's own overallimpression gained from its site inspection with counsel.[202] I find no evidence of crack width in the 160 garages (greater than 2 mm).Cause of slab-cracking[203] There is no evidence that, at the time of construction or subsequently, saw cutswere made to assist with the control of shrinkage cracks. I find that there were nosuch cuts.[204] The state of the evidence in relation to the slab-cracking at Buildings 2 and3/160 is such that the 160 plaintiff has not established that any particular or all thecracking identified by Mr Cowie resulted from the CES. Mr Cowie's own evidenceindicates that it may not have. The evidence does not satisfy me that the slabs, as aresult of the CES, have cracking which requires their repair. As it happens, Vero hascommitted to the same repair methodology (for cracks) at 160 as applies at 152.[205] It follows from the above conclusions that to the extent Mr Weber took intoaccount, in his assessment of earthquake-induced foundation damage at 160, the"significant cracking throughout the slab", it will be necessary in evaluating hisevidence to bear in mind that the 160 plaintiff has not established that any particularor all the slab-cracking was a result of the CES.Settlement and dislevelment[206] Mr Cowie's assessment of the garages commenced after the EQC "repair" ofboth garages. He concluded that Building 2/160 had suffered a total settlement of 283mm, comprising 183 mm of global settlement and 100 mm of differential settlement(with no measurable local settlement).[207] Mr Cowie concluded that Building 3/160 had suffered a total settlement of 365mm comprising global settlement of 183 mm, local settlement of 58 mm anddifferential settlement of 124 mm (the last measurement being taken from a floor levelsurvey conducted by EQC).[208] Mr Cowie also presented maps of specific areas of the Building 2/160 slabswith grades steeper than 1 in 200 (60 per cent), 1 in 150 (28 per cent) and 1 in 100 (6per cent).[209] Mr Weber concluded, having regard to Mr Cowie's measurements, that therewas evidence of earthquake-induced differential settlement in Buildings 2 and 3/160which could then be taken (with other factors) to indicate that the slab-cracking wasalso earthquake-induced and "significant".[210] Vero's case in relation to four slopes, as outlined in Ms Meechan's opening,was (as in relation to 152) threefold:(a) In Building 2, no slope exceeded 0.5 per cent over 2 m.(b) In Building 3, the maximum slope was 0.65 per cent over 2 m, with anoverall variation of 25 mm.(c) All floor slope differentials were within "when new" constructiontolerances.[211] Mr Polson's evidence with regard to guidance documents, as summarisedabove at [119]–[122], was directed to both 152 and 160.[212] In turning to consider the garages at 160 in particular, Mr Polson observed thatthe floor slope across 2 m apart was less than 0.5 per cent throughout Building 2. InBuilding 3, the slab for all garage units other than that for unit 3 was less than 0.5 percent. That of unit 3 was approximately 0.65 per cent. In Mr Polson's opinion, thefoundations of the 160 garages were therefore all within a reasonable "when new"construction tolerance as found by the EAG report of 2011. Mr Polson also concluded,as he had in relation to 152, that there had not been, through the CES, damage to levelssuch as required repair, as there had been no loss in the functionality or performanceof the foundation systems.[213] As with 152, I find on the evidence that the 160 plaintiff did not establish thatthere was any earthquake-induced dislevelment such as might indicate, in conjunctionwith the slab-cracking, additional evidence of structural damage.The implications of the slab-cracking[214] For Buildings 2 and 3/152, I have already reviewed at [124]–[131] above theevidence as to the implications of slab-cracking. I have concluded that there is not asound evidential basis upon which the Court could conclude that the nature of anycracking caused to the concrete slabs in the CES will have led to any deterioration orrisk of deterioration due to moisture ingress and/or corrosion.39 That conclusion wouldapply equally to Buildings 2 and 3/160 had I concluded (which I have not) that the160 plaintiff had established that there was earthquake-induced cracking.Voids[215] As in the case of Buildings 2 and 3/152, the evidence of Mr Weber and of MrCowie was that the presence of voids under Buildings 2 and 3/160 was established byhammer-tapping. They adopted the same technique at Buildings 2 and 3/160.[216] At 160 as at 152, Vero had Safety First Service Locators complete GPR scansof the concrete slab foundations. No significant voids were detected in any of the sixgarages comprising Buildings 2 and 3/160. Mr Butson, the report writer, detected theexistence of voids of approximately 40 mm in depth under the ground slab of the unit1 garage in Building 2 and under each of the unit garages in Building 3. As describedby Mr Polson in his evidence, the voids are isolated and range from approximately 0.8m2 to approximately 6.5 m2. Mr Polson stated that either the re-levelling system usedby EQC for Buildings 2 and 3/160 (which included the filling of voids beneath theslab) did not successfully achieve void filling or the GPR survey has not correctlyidentified the voids.[217] Upon the basis of the evidence as it stands, the probable explanation is thatthere remain below Buildings 2 and 3/160 some areas of void. Given that the EQCrepairs in part aimed to fill voids, I find it probable that (as with other aspects of thoserepairs) the complete filling of voids was not achieved. This aspect is not an instanceof damage made worse. It is rather an instance of damage yet to be repaired. Ittherefore falls within Vero's responsibility.39 Above at [131].[218] Mr Polson in his evidence anticipated the need to address such voids as theCourt found to be established. His repair methodology proposes that all voids underall ground slabs should be filled using a flowable grout poured into the voids via smallopenings in the slab, with the damp proof-course (DPC) beneath the slab reinstatedwhere that is damaged in order to make the openings.[219] I referred in relation to 152 (above at [142]) that the 152 plaintiff's case basedon Mr Weber's observed foundation damage (significant slab-cracking, excessivefloor slopes and differential settlement, and slab voids) was that the foundationdamage of Buildings 2 and 3/152 had resulted in negatively-altered load pathsthroughout the structures. As in the case of 152, I reject Mr Weber's evidence of anegatively-altered load path in Buildings 2 and 3/160 by reason of the foundationdamage. While I have found that there probably are some voids, as shown by the GPRscans of Buildings 2 and 3/160, there is no evidence to establish that that set of issues(absent other significant foundation damage) would have led to a negatively-alteredload path in either Buildings 2 or 3.Superstructures — Buildings 2 and 3/160[220] The 160 plaintiff presented its case in relation to superstructure damage interms directly parallel to those asserted by the 152 plaintiff.[221] The 160 plaintiff's pleading in relation to the walls of the garage buildings at160 is materially identical to the pleading in relation to 152 (above at [140]).[222] The evidence of Mr Weber as to the damage to the superstructure of Buildings2 and 3/160 reproduced what he had stated in relation to 152 (above at [141]–[143]).[223] As in his evidence relating to 152, Mr Weber devoted detailed analysis to aconsideration of Buildings 1 and 4/160, based on verticality and other survey evidenceproduced by Mr Cowie. He did not produce verticality survey evidence for Buildings2 and 3/152 or comment on the verticality of those buildings.[224] Mr Cowie produced two photos showing what he described as "cracking andseparations around the tilt panel weld plates on the internal corners of numerousplaces" within Building 2. He produced a similar photo in relation to Building 3. Healso produced plans of "3d" views of Buildings 2 and 3/160 showing some crackingvariously on panels and emanating from corners of and around doors.[225] Mr Cowie stated that he was unable to determine whether this cracking wasdue to the CES or due to the EQC repairs.[226] Mr Polson gave evidence, as he had in relation to 152, of an inspection of thebuildings on 6 March 2019, at which cracks were assessed. Mr Polson observed thatthere had been damage to some of the panel-to-panel weld plate connections, likely tohave occurred due to distortion between the panels either from settlement or from there-levelling (EQC) process. Mr Polson stated that there was also minor cracking topre-cast panels above the side doors of some of the end garages and at the garage doorcorners of the middle units. On the external wall faces which he could view, Mr Polsonsaw no evidence of distortion to the flexible sealant filling the panel-to-panel gaps.[227] Mr Polson proposed repairs in two regards. First, he proposed that damagedpanel-to-panel joins be replaced with new angle brackets with bolted fixings, withsome repairs to spalled concrete also required by way of a structural mortar patch.[228] He approached the repairs to the wall cracks in the garage buildings on thesame basis as for Buildings 2 and 3/152 (above at [170]). The other differencesbetween the evidence of Mr Polson on the one hand and Mr Cowie and Mr Weber onthe other hand in relation to 160 were as they were in relation to 152. My conclusionfor Buildings 2 and 3/160 in relation to those matters is as it was for Buildings 2 and3/152.Buildings 2 and 3/160 — requirements for remediation[229] For remediation of cracks, I adopt the conclusions I have reached in relation tothe remediation of both the slab and superstructure for Buildings 2 and 3/152 (at[167]–[193] above). Centrally, the plaintiffs have not established that any crackingsignificantly altered the load path system or building strength of Buildings 2 and 3 ateither site. There is no requirement of demolition and rebuilding by reason of any lossof structural strength. The repairs proposed by Mr Polson to deal with the cracking inBuildings 2 and 3/152 and the damaged panel-to-panel connections are established asrestoring the garages to "when new".Buildings 1/152 and 160Description of Buildings 1[230] Buildings 1 at both 152 and 160 are situated at the northern end of theproperties adjacent to Salisbury Street.[231] Their construction is described at [8]–[13] above. As with the garages, theyare of identical layout and (with the exception of their construction in concrete block(152) and concrete tilt slab (160) respectively) are similar in form.Plaintiff's pleading in relation to 152[232] The 152 plaintiff particularises damage to Building 1/152 as being:(a) foundations and slab;(i) complete foundation failure;(ii) pile head damage and failure including shear;(iii) failure and spalling of pile heads;(iv) large voids under the slab;(v) significant cracking to the ground floor slabs;(vi) discontinuity of some piles at 3–4 m; and(vii) floor slopes greater than 1 in 200 across 18 per cent of theground floor;(b) walls:(i) measured residual leans indicative of deformation of thestructure due to the earthquake, supported by evidence of largelateral movement of the structure;(ii) significant step-cracking in structural concrete block walls;(iii) cracking at diaphragm levels; and(iv) loss of structural strength capacity;(c) internal linings:(i) loss of the verticality walls; and(ii) plasterboard affected by drumminess and popping from fixings;(d) upper floors:(i) floor slopes greater than 1 in 200 across 23 per cent of the floor;and(e) roofing and roof framing:(i) overall superstructure deformations.Plaintiff's pleading in relation to 160[233] The 160 plaintiff particularises the damage to the Building 1 at 160 in exactlythe same terms as the damage at 152 (above at [232]) except for the following(different) particulars:(a) Foundations and slab: there is no allegation (unlike for 152) of adifferential in floor slopes.(b) Upper floors: as with 152, the allegation is that there are floor slopesgreater than 1 in 200, but in relation to 160 it is not alleged that they areacross 23 per cent of the floor.[234] Just as the plaintiffs' pleadings did not appear to point to any materialdifference between Building 1/152 and Building 1/160 so too did Mr Till's openingand closing submissions treat both buildings as raising materially the same issues andrequiring materially the same solutions. Accordingly, in the analysis which follows Iwill consider in detail the evidence in relation to Building 1/152. The conclusionsreached in that regard apply equally, on the plaintiffs' cases, to Building 1/160. So,too, do the conclusions as to repair. I will therefore be discussing only briefly certaindifferences, which are ultimately immaterial, between Buildings 1/152 and 1/160. Iadd this in relation to particular evidence given by owners of units at 160 (in Buildings1 and 4 respectively). Timothy Harris, who purchased unit 1/160 after the CES (inJuly 2014), gave evidence of his observations of damage to his unit, includingprogressively increased cracking and subsidence, and repairs required to undergroundservices. John Parry, with his wife the owner of unit 6/160, also purchased his unitafter the CES (in April 2015). He, too, described damage which he observed. BothMr Harris and Mr Parry described their dealings with EQC over the ultimately failedgarage repairs. Mr Parry produced a schedule of the professional fees incurred by the160 plaintiff (the claim for which the parties subsequently agreed was not to beresolved at this trial).Vero's defences[235] Vero by its statements of defence admitted that Buildings 1/152 and 160 hadsuffered damage as a result of the CES, and in particular:(a) settlement of the ground around Buildings 1;(b) voids beneath the ground floor slab of Buildings 1; and(c) minor spalling and cracking at the interface of the precast piles and theground floor slab of Buildings 1.[236] Vero also by its general pleading in relation to all alleged damage at 152admitted there had been the following further damage as the result of the CES:(a) cracking up to 1 mm (but typically less than 0.5 mm) in the concreteground floor slabs;(b) cracking of the block walls up to 0.5 mm (but typically less with manyonly 0.1 mm);(c) minor cracking through the mortar courses in Buildings 1 (and 4); and(d) minor cracking to internal plasterboard linings.Foundations and slab[237] The plaintiffs' first particular of damage to the foundations and slab —"complete foundation failure" — was not an expression directly adopted by theplaintiffs' witnesses. At points in his evidence, Mr Weber spoke of a "level offoundation failure". As noted at [59]–[64] above, Mr Weber however adopted theterms "failure" and "damage" interchangeably. I find it appropriate to view theplaintiffs' allegation of "complete foundation failure" as something of a "catch-all" (asdescribed by Ms Meechan), bringing together the specific allegations of failure whichfollow in the plaintiffs' pleadings.[238] I turn therefore to focus on the particular pleadings of and evidence as todamage in the foundation of Building 1/152.Pile head damage and failure[239] The pleading is that there was pile head damage and failure including shearfailure and spalling of pile heads.[240] In this context, a shearing action is one which displaces something relative tosomething else. A "shear force" for instance is the sliding translational force within astructural member (or element), such as a pile or beam.[241] "Spalling" is the breaking away or removing by force of the edge or face ofconcrete or masonry. Thus a pile head may suffer spalling damage.Settlement of ground below Building 1/152[242] The parties agree that the ground under Building 1/152 has sunk, creating voidsunder the slab and foundation beams and slab thickening. Compared to otherbuildings, Building 1 itself has suffered less settlement due to the presence of its pileswhich carry vertical loads to firm ground at the pile base.[243] Evidence was given as to the width and extent of the voids.[244] Mr Weber, who inspected a number of excavated piles both at 152 and at 160(on 16 May 2017), produced photos taken at 152 which he stated showed voids ofaround 100–150 mm between the underside of foundation beams/slab and the ground.The photos show a distinct void but do not contain a linear measure for calculation ofthe width.[245] Mr Cowie referred to voiding which he inspected at a similar developmentnearby at 136 Salisbury Street, where he undertook intrusive coring of the ground floorconcrete slabs so as to make actual measurements of void depth. He said that thevoiding was consistent across the entire footprint of the structures and was around100–120 mm in depth. Mr Cowie provided a calculation of the voiding beneath theslab of both units 1 and 2/152 based on the difference between global settlement of theground around those buildings (210–239 mm) and the global settlement of the groundfloor units themselves (93 mm). Mr Cowie found that to indicate that there will bevoiding beneath the slab of both units 1 and 2/152 to a depth of around 117–146 mm.[246] In his evidence, Mr Cowie stated that the voiding beneath the slabs wouldextend across the entire footprints of units 1 and 2.[247] For Vero, Mr Polson produced the GPR report of Safety First Service Locators,which covered Buildings 1 in addition to the others. As Mr Polson explained, the GPRscan suggested the existence of voids approximately 30 mm in depth under parts ofthe ground slabs of units 1 and 2. Mr Polson noted that voids had also been visible onMr Weber's inspection.[248] The evidence does not establish the existence of voids below Building 1 asdeep or as extensive as posited in the 152 plaintiff's evidence. But it is establishedthat some degree of void exists beneath much if not all of the slab and that, where thevoid is substantial, it may be 30 mm in depth if not more.[249] The evidence establishes that, as in the case of Buildings 2 and 3, the CEScaused the ground below Building 1 to settle but, in the case of Building 1, significantvoids resulted when the piles acted to suspend the building above the new groundlevel.[250] It was common ground between the parties' engineering witnesses (includingMessrs Weber and Polson, but also Terence McCarthy, Mr Wightman and Lance Marr)that friction between the soil and the ground floor slab and passive resistance of thesoil against the perimeter ground beam would have played a part in the foundationsystem as designed and built. There appear to have been design assumptions of eitherearth pressure against the side of the foundation slab or soil friction below the slabcontributing to the resistance of lateral load (as in an earthquake). The piles weredesigned to take gravity loads whereas lateral loads were to be transferred to theground by a combination of friction between the soil and the ground floor slab andpassive resistance of the soil against the perimeter ground beam. The piles (onlyminimally embedded into the underside of the slab foundation) did not perform as areliable load path for lateral loads to transfer from the slab foundation to the piles.Messrs McCarthy and Wightman gave evidence that, in a ULS event, the design wouldnot provide sufficient resistance to lateral load. The piles would then be required totake some lateral loading.[251] The fact that voids were created in the CES meant that lateral loads were andare no longer transferred in the way Building 1 was designed and built.[252] Nothing in these findings is intended to imply that the design of Building 1 wassound. No witness suggested it was. Mr Marr, for instance, accepted that, knowingwhat he now knows, the design for the Building 1 foundation and piles was not a gooddesign such as to meet the requirements of a building to resist earthquake forces.[253] Mr Polson provided calculations indicating an estimated seismic capacity ofthe foundation system (in its undamaged original condition) of 27%NBS, a figureaccepted by Mr Weber in cross-examination. To the extent that Mr Weber, in a tableanalysing the %NBS, referred to "percentage NBS at time of design 100 per cent" forBuilding 1 (and the other buildings), I reject the figure — it was simply an assumed(and incorrect) figure, not one calculated with reference to what had been in factdesigned.Damage to pile heads[254] The plaintiffs pleaded "pile head damage and failure including shear failureand spalling of pile heads", which Vero admitted to the extent of "minor spalling andcracking at the interface of the precast piles and the ground floor slab of Building 1".The witnesses agreed that the cracking and spalling to the pile heads were likelycaused by the CES. Mr Weber inspected an excavation on 16 May 2017. Mr Polsonnoted as apparently CES damage, seen during his December 2018 inspection, cracksat the interface of the pile and slab and spalling of the pile edges at the slab interfacein many of the piles. One pile (identified as "pile 9" by the witnesses) had translatedlaterally, with a section of the concrete cover of that pile spalling off.[255] None of the witnesses has had access to the internal piles to assess whetherthey sustained damage in the CES.[256] The witnesses agree that the pile head spalling will have reduced the verticalload carrying capacity. The ability of the piles to transfer load through the slab to thepile heads has been reduced. Mr Polson and Mr Weber agreed that there would be areduction of capacity in the order of 10 to 20 per cent.[257] Mr Weber further stated that the physical damage to the pile heads will haveresulted in a loss of strength due to corrosion of prestressing strands, but he refrainedfrom putting any figure on such loss of strength. There is no evidence in that regard.Discontinuity of some piles at 3–4 m[258] In addition to his (16 May 2017) investigation (a "1m dig" closer to thesurface), Mr Weber supervised on 13 June 2018 an excavation down the length ofselected piles to around 3 m to visually inspect the exposed length of pile using aGoPro camera attached to a pole. Additionally, he had a specialist undertake sonictesting of the piles to identify any pile discontinuity at depth.[259] The 152 plaintiff initially pleaded that some piles were discontinuous(completely broken) at 3–4 m, based on the briefed evidence of Mr Weber. Hisevidence in turn relied upon a report by Southern Geophysical Ltd as to the results ofits sonic testing. The (June 2017) report from Southern Geophysical, however, whenproperly read does not assert a discontinuity at 3–4 m or otherwise. Mr Weberwithdrew that conclusion which he had based (incorrectly) on the SouthernGeophysical report.[260] Mr Weber still referred to his examination using a GoPro camera. He producedphotos which he had marked to indicate what he considered to be areas of spalling andcracking on two piles at around 2.5 m and below. He stated that that damage wasconsistent with what would be expected at the soil/peat layer interface because that isthe area where there is the greatest moment demand on the piles during earthquakesleading to bending and hinging of the piles around the area of the cracks.[261] Mr Weber also inspected piles again on 13 December 2018, finding a largequantity of water directly under Unit 1/152. On the same day he inspected one furtherpile under Building 1/160 at "depths up to 3m". He stated that this inspection alsorevealed "cracking and spalling of the piles at around 2.5m and below".[262] Dr Michael Finnemore, a geophysicist, gave evidence for Vero of testingconducted by his company, Southern Geophysical. He identified it as Pile IntegrityTesting (PIT) and referred to the report which Mr Weber had initially relied upon. Heconfirmed that on three piles at 160 (and four piles at 152) there was no toe reflectiongenerated by the PIT testing. He stated that that does not mean a pile is broken. Ratherhe can say from the testing that the pile is not broken in the top 3–4 m. PIT testingwould indicate any discontinuity due to a crack through the pile which creates an airgap, or spalling at the side of the pile affecting at least 25 per cent of the pile'sdiameter. Dr Finnemore went on to explain why toe reflections are sometimesachieved on one pile but not on others, even at the same site.[263] Dr Finnemore's evidence in this regard was based on his expertise andstraightforward. It was clearly to be preferred to that of Mr Weber in this regard —Mr Weber responsibly withdrew the opinion that there was cracking and spallingdamage at around 2.5 m and below.[264] Mr Polson addressed that part of Mr Weber's evidence which concerned thepile excavation which Mr Weber had supervised (on 13 June 2018) to a depth ofapproximately 3 m. Mr Polson considered the video of Mr Weber's investigations toshow minimal, if any, damage to the piles. Mr Polson nevertheless undertook a furtherinspection of his own, of nine piles. Two (designated as piles 10 and 11) wereinspected to approximately 2.6 to 3 m below the underside of the slab. Mr Polsonstated that he believed that there may be some hairline cracks in the piles. He alsoobserved that some spalling of pile edges was evident, which was typically minor innature, but with one larger area near the bottom of the excavation on pile 11. Nocracking of the pile was evident at that area of spalling.[265] Mr Polson made cross reference to pile testing undertaken by Richard Sullivanof R D Sullivan and Associates Ltd. He concluded that any hairline cracking in thepiles would not have reduced the pile's vertical or lateral load capacity. He furtherstated that, because the piles are under compression, any cracks would have closed,with no reduction in durability of the pile.[266] Mr Polson also referred to his experience of using driven concrete piles inChristchurch. Based on that, he stated he would expect to see piles with signs of minordamage (including damage to pile edges) before the piles are driven. He described thechipping off of portions of concrete as "inevitable" as piles are picked up, moved andstacked. He produced photos of samples of piles from Hi-Stress Concrete Ltd, whoprovided the piles for Building 1. After modest previous handling of the piles, somechipping and spalling of edges was evident. Mr Polson produced a photograph of across section of a pile indicating the extent of cover which encases the steel reinforcingwithin any pile, protecting it from the impact of minor spalling or chipping.[267] Mr Polson opined that neither the spalling on the pile edges inspected nor thehairline cracks were symptomatic of earthquake damage or failure.[268] On the evidence, the 152 plaintiff's allegation of the discontinuity of some pilesat 3–4 m below Building 1 was not established. Similarly, on the evidence the 152plaintiff has not established that there is material earthquake-caused damage, in eitherthe form of cracking or spalling, to piles below Building 1 (other than at the pile head).I find in relation to these matters that, beginning with the report on PIT testing, MrWeber was too ready to draw conclusions from the testing and inspections which werenot available or correct conclusions. I find Mr Polson's evidence on these aspects tobe coherent and to be preferred.Tilted or bent piles[269] The 152 plaintiff did not plead as a particular of earthquake-caused damagethat piles beneath Building 1/152 were tilted or bent. However Mr Cowie in evidencereferred to bends or tilts which he had observed in two piles at Building 1/152 duringand following an inspection on 13 December 2018. Mr Cowie stated: I observed a clear bend in a 100mm x 100mm pile at 152 Salisbury Streetas shown on Photos 1-8. This bend was clear to me both visibly, and bylooking at the photographs. The bend was clearer on site as there was nocamera lens distortion that is present in the photos.This bend was later confirmed when I took a laser plumb measurement to thetop 1.25m of the pile (the lower half of the excavated hole had collapsed bythe time I had my laser plumb available for the measurement) with it out ofplumb by between 12-13mm Photos 57-60 show a pile on Unit 2 to be 70mm out of plumb over a heightof approximately 2.5m. I also noted visibly a slight bend in this pile, however,was unable to measure this due to the out of plumb tilt of the pile.[270] On Mr Cowie's evidence, the pile which the witnesses call pile 11 has a tilt tothe east of 2.8 per cent whereas pile 10 has a tilt to the west of 1.04 per cent.[271] Mr Weber did not in his initial evidence identify the tilting or bending of piles10 and 11 as material considerations in his assessed earthquake damage of Building1/152.[272] Mr Polson responded to Mr Cowie's evidence in relation to the piles,concluding that the pile tilt was not earthquake damage but was as constructed. Hebased that conclusion on the fact that the piles tilt in different directions and there isno apparent mechanism to cause the tilting of piles. He referred to the detail in theevidence of Mr Wightman and in particular the absence of any indication that non-liquefiable crust material at ground level had translated in relation to the bearing layerat depth.[273] Mr Polson stated that he too had observed pile 10 during the December 2018inspection, when Mr Cowie viewed those piles. He stated that he noticed that pile 10had a tilt. He disagreed with Mr Cowie's description of the pile as having a bend. Hehimself did not view Mr Cowie's measurement of pile 11 and did not notice it ashaving a tilt during his own inspection.[274] Mr Polson referred to documents specifying tolerances for the verticality ofdriven piles. He referred to the Australian standard AS 2159-2009 ("Piling — Designand installation"), which states that driven piles should be within 75 mm of thespecified plan position and within 4 per cent inclination from vertical. He noted thatthose tolerances were also within the 1995 version of AS 2159, which would havebeen in effect at the time of the construction of 152 and 160. He observed that thereis no equivalent New Zealand standard specifying driven pile tolerances.[275] Mr Polson referred also to the Piling Specification document of the AucklandStructural Group (ASG) which Mr Sullivan had referred to in his evidence for thedefendant. The ASG document provides a 1 in 75 tolerance for deviation from verticalfor driven piles, equating to a tolerance of 1.33 per cent inclination from vertical, beingmore stringent than the Australian standard requirement.[276] Mr Polson then considered piles 10 and 11 in terms of the documents referredto. Both piles are within the 4 per cent tolerance described in AS 2159-2009. Pile 11alone exceeds the 1.33 percentage tolerance described in the ASG specificationdocument.[277] In his second supplementary brief of evidence, Mr Weber, in dealing with MrPolson's repair methodology, asserted that Mr Polson's proposed repairs ignoredamage at depth. He stated:2. The object of the repairs is to repair the piles to a when new condition.The assumption here is that the piles are not damaged at depth andthat the only repair required is at their heads.3. In my view the piles are damaged at depth. It is clearly demonstratedthat the buildings have permanently displaced to the ground, whichhas caused all piles to bend [278] In relation to Building 1/152, he referred in particular to pile 11. He stated thatan off-setting of the downpipe to the in-ground drainage of around 80 mm correlatedwith "the observed bend on Pile 11".[279] Allan Boulton undertook the pile driving when the buildings at 152 and 160were constructed. His initial brief of evidence focussed on the damage observed onpiles. He then gave additional evidence in relation to the verticality of driven piles.At the time of construction he had more than 25 years' experience of pile driving. Hedescribed the steps taken to ensure that the piles at 152 and 160 were driven vertically,which involved using spirit levels to line the leaders up before the piles were pitchedand then on the pile before driving started. When the piles had been driven to 3–4 m,the spirit level was again used to ensure they had been driven vertically. No furtherchecks followed as each pile would continue to be driven in the same paths. Pileswhich deflected from vertical in the first 4 m would be withdrawn and corrected or afurther pile driven alongside. Mr Boulton recalled no incident of either of thosecorrective measures being required, all piles being "within the tolerance of the spiritlevel without any issues".[280] Mr Weber was cross-examined as to the contractual requirements for theverticality of piles at 152 and 160. He accepted that when the specification told thepiling contractor that the piles "shall be vertical", it was obvious that they were notgoing to get the piles "dead vertical" and there is some tolerance allowed. In theabsence of a New Zealand standard, Mr Weber accepted that New Zealand engineerswill refer to an Australian standard which deals with the same issue. He accepted thatpiles 10 and 11 (at 1.4 per cent and 2.8 per cent "dis-verticality") were within theAustralian standard.[281] When questioned by Ms Meechan as to how the earthquake had caused piles10 and 11 "to tilt from dead vertical in two different directions", Mr Weber respondedthat he thought that what had happened, involving "lots of variables", is that pile 10(at 152) and pile 2 (at 160) were bowing (rather than tilting).[282] On the evidence adduced, the 152 plaintiff has not established that piles 10 and11 had suffered (unpleaded) earthquake damage in the form of either bowing or tilting.In the absence of precise measurements and records taken at the time of inspection,there are a number of available conclusions based on the witnesses' impressions onphysical viewing or the witnesses' interpretations of photographic evidence. The 152plaintiff has not established that either or both piles 10 and 11 were probably bowedor bent (as against tilting). In light of their "alteration" being in different directions, Iaccept Mr Polson's evidence that what is observed in relation to the two piles is moreconsistent with an as-built condition than a consequence of earthquake forces.Deduction of damage from lateral movement of Building 1/152[283] Evidence was given of observations as to the extent of permanent lateralground movement beside Building 1/152. The 152 plaintiff's case was that theobserved movement supported the likelihood that piles had broken at depth. Vero'scase was that the movement was below any level required to confirm or suggest thatthe piles may have broken at the depth suggested by Mr Weber.[284] The owner of unit 1/152, Annemarie Cartwright, gave evidence as to damageto her unit. In the course of her cross-examination, Ms Cartwright (in describingphotographs she had produced of the western side of her unit), stated that the groundhad not only dropped but had also moved away from the house, leaving a gap (throughwhich she had been losing her clothes pegs).[285] When the plaintiffs' geotechnical engineer, Mr McCarthy, came to give hisevidence he had heard Ms Cartwright's additional evidence in relation to the lost pegs.He gave evidence that he viewed as important the fact that there must have been a gapof at least 15 mm that had opened up.[286] Mr Wightman, Vero's geotechnical engineer, who gave his evidenceimmediately after Mr McCarthy, was cross-examined as to the significance of the gapoutside Ms Cartwright's unit. Upon the assumption that the gap was large enough tolose pegs, Mr Wightman accepted that that was evidence of permanent lateral groundmovement. But he added that it was not movement to the extent of 80 or 90 mm whichwould be required to suggest that the piles had broken at the depth recorded (by MrWeber).[287] Mr Polson had the opportunity (with Mr Wightman and Mr Marriott) to returnto the property during the course of the trial (on 13 June 2019) to inspect the areasunder discussion. Mr Polson measured a 12 mm gap between the building and thepavers on the western side of unit 1 and a 9 mm gap on the eastern side of unit 2. MrPolson stated in cross-examination that he now accepted that there was some lateralmovement at 152 but added that it was by no means anywhere near enough to havecaused a tilt of the piles.[288] There was no suggestion in the course of the trial that Mr Polson'smeasurements of the Building 1/152 gaps were inaccurate. The evidence at trial didnot establish that such gaps constituted evidence of lateral earthquake-inducedmovement on a scale sufficient to bend or tilt the piles.Calculated damage[289] In addition to his evidence as to observed damage and the results of PIT testing,Mr Weber gave evidence by way of calculations of estimated actual shear demandfrom the CES on the piles and compared them against the pile capacities. Hisconsideration focused on the shear load — the force that would in Building 1 tend toproduce a sliding failure at the top of the piles — and upon the bending moment —the reaction induced in a pile when earthquake forces cause the pile to bend. It was inthe context of this analysis that Mr Weber produced his table showing %NBS for eachbuilding as 100 per cent at the time of design. On his calculations, he assessed the%NBS (of Building 1/152) observed and calculated after the CES as 22 per cent. MrWeber's conclusion was that the February 2011 earthquake had produced lateralloading on the Building 1 piles but induced shear and bending moments that exceededthe piles' capacity and reduced their shear strength. Mr McCarthy expressed similarconclusions based on the capacity of the piles.[290] Mr Weber confirmed in cross-examination that he had not worked out a %NBSfor Building 1/152 as it stood before the CES. In cross-examination, Ms Meechantook him through the steps in the required seismic assessment (including the Z factorapplicable in 2010 of 0.22). Mr Weber confirmed that Building 1 then had a 47%NBS.Once the Z factor for Christchurch was increased (after the CES) the building wouldhave had (with the new Z factor) a 35%NBS. During this questioning, Mr Weberclarified that the 100 per cent which he showed for NBS in his table was not what theas-built foundations would have achieved but was instead what he assumed theoriginal design engineer would have had in his head.[291] While not all witnesses called for the plaintiffs recognised in their evidence inchief that the original design for Building 1 had been poor, such was clearly recognisedin the course of evidence at trial. For instance, this exchange occurred betweencounsel for Vero and Lance Marr, one of the plaintiffs' structural engineeringwitnesses:Q. was this design for the foundations and the piles a good design thatmet the requirements of a building to resist earthquake forces?A. Knowing what I know now no.[292] The plaintiffs' evidence did not establish a particular %NBS for Building 1/152in its "when new" state.[293] Mr Polson's calculation of 38%NBS as Building 1's designed "when new"rating was not substantially challenged by the plaintiffs' structural engineeringwitnesses, who recognised the design flaws.[294] Mr Polson in turn calculated a 38%NBS in the event his option A repairs wereundertaken (with an increased 41%NBS had option B been pursued).[295] Based in part on the 152 plaintiff's particulars of damage to the 152foundations, Mr Weber and Mr Marr arrived at lower %NBS figures. It was alsoapparent in their evidence that the plaintiffs' experts, in their assessment of theexpected collapse mechanism and the remaining strength of the building, tended toassess the remaining strength conservatively. The difference in approach wasexemplified in the cross-examination of Mr Polson when his %NBS calculations werebeing tested:Q. But if you were to accept my proposition that you should adopt aconservative approach given the potential collapse should you not ina conservative manner approach your calculations in the wayadvocated by Mr McCarthy and Mr Marr?A. No I think that is over conservative. I'll refer to my previous answerwhere I was making note of the performance of the existing structure.So yes you could use their numbers but I think they are unrealistic andthat the building has performed very well in the earthquakes and so touse their numbers and come up with a percent NBS of well below 30%would be unrealistic and alarmist when the building performanceclearly shows that it has performed very well and by reasonablecalculations you could show that the strength is much higher.[296] On the evidence, I am satisfied that Mr Polson's calculations of the %NBS ofBuilding 1/152 realistically represent the "when new" state of the building. Havingregard to such damage to the building as I have found to be established, I find also thatMr Polson's calculation that option A repairs, if undertaken, would effect an increaseto 38%NBS is realistic. Finally, I am satisfied that that is no less than the %NBS ofthe building in its "when new" state.[297] Mr Polson disagreed with all of the conclusions reached by Messrs Weber andMcCarthy in relation to exceeded capacity of piles and reduced shear strength. Hereferred to his scrutiny of the Hi-Stress manufacturing process by which the piles' steelcables/wires are tensioned during manufacture so as to give the piles bending capacityand increased resistance to pile-driving loads. Mr Polson also referred to the evidenceof Richard Sullivan who had undertaken tests on the 150 mm2 Hi-Stress piles whichconcluded that no plastic hinging of the piles should be possible.[298] Mr Polson also had regard to the evidence of Mr Wightman as to the point atwhich the piles would likely undergo their maximum bending moment, being on MrWightman's assessment at a depth of around 0.6 m for the 100 m2 piles and around 0.9m for the 150 m2 piles. Mr Wightman had disagreed with an assessment of MrMcCarthy that cracking or hinging would form in these piles at approximately 2.1 mbelow the foundation (subsequently clarified by Mr McCarthy to mean below the floorlevel on the foundation).[299] Based on the evidence as to the piles, Mr Polson concluded that the piles mostlikely did not experience bending moments or shear forces that would have causedplastic hinging or failure during the CES. He further concluded that if pile capacityhad been exceeded, it would have been demonstrated by non-ductile bending failureof the pile, with the pile in reality snapping.[300] I find Mr Polson's evidence and conclusions in these regards to be the mostreliable. His conclusions line up with the observed state of the piles. There is noreliable evidence of significant damage at depth. The reliable observed damage relatesto the point at which the pile heads interacted with the underside of the slab (whichVero accepts requires remediation).Conclusion — damage to Buildings 1 piles[301] The 152 plaintiff has established that there is earthquake-induced materialdamage to the piles and foundation system of Building 1/152 in the following aspects:(a) spalling and cracking damage to a number of piles;(b) a translational displacement on one pile; and(c) significant areas of voiding between slab and ground.With the exception of the specific evidence of a translational displacement on one pileat 152, the same findings of material damage flow over to Building 1/160.Building 1/152 — damp proof membrane[302] The 152 plaintiff's pleaded damage did not refer to the DPM below the slab inBuildings 1 or 3.[303] The evidence for the plaintiff, through Mr Cowie and Mr Weber, neverthelessaddressed the likelihood of damage to the DPM below Building 1 having regard to thefact that the foundation slab is now suspended.[304] Mr Cowie referred to his investigation of the nearby site at 136 Salisbury Streetwhere voiding had occurred. He reported that intrusive testing indicated that the DPMwas sagging and in places showed evidence of delaminating at the pressure-tapedjoins. Mr Cowie opined that it was more than likely that damage in the form ofdelamination of the taped joins of the DPM would have occurred beneath units 1 and2. Mr Cowie referred to BRANZ Bulletin 469 (relating to "damp-proof membranesto concrete slabs") which identifies the importance of placing DPM in an undamagedcondition so as to ensure its effectiveness as a barrier to moisture penetration. MrWeber similarly concluded that there would have been damage to the DPM beneathBuilding 1 in that it is no longer held in place or confined between the ground and theslab as it was when it was built. Mr Weber explained that that situation, combinedwith the extensive cracking in the slab, meant that the slab is subject to greater amountsof moisture passing through the slab, which increases reinforcement corrosion andadversely affects internal moisture levels.[305] Mr Weber was also cross-examined in relation to MBIE guidance publishedunder the name "Updates and Clarifications to the Residential Guidance" (of June2018).40 Mr Weber indicated he was unaware of the MBIE guidance. He was referredin particular to a passage under a heading "DPM evaluation beneath slab cracks"where the guidance records: "Field investigations to date have indicated that the DPMis typically undamaged beneath slab cracks up to 30mm wide". Mr Weber indicatedthat he had not seen any cracks in Building 1 in the floor which were more than 30mm wide.40 Ministry of Business, Innovation and Employment Updates and Clarifications to the ResidentialGuidance (June 2018).[306] For Vero, Mr Polson addressed the evidence as to the DPM. He stated that hedid not share the concerns identified by Mr Weber. Mr Polson recorded:The original project specification called for "Moistop 737" damp course orsimilar with sealed joins. This DPM is still intact and is likely stuck to theunderside of the slab. It is important to understand that the DPM only resistsvapour movement, it is not designed as, nor intended to provide, awaterproofing layer. Because the water table is well below the slab, atapproximately 1.5m depth, capillary action of the water up through the groundwill be controlled. This means that moisture will not pass through the slab atan increased rate, and the reinforcing will not corrode.Mr Weber was cross-examined in relation to the concept of moisture passing into theslab. He accepted that the purpose of the DPM is not to waterproof the slab but toresist moisture. He further accepted that the moisture if hitting the DPM, does notdifferentiate between a taut DPM and a sagging DPM.[307] I find that the 152 plaintiff has not established the probability of materialdamage to the DPM. Mr Polson's evidence was directed to the exact DPM productspecified for these sites. His evidence (which may be contrasted with the cross-examination of Mr Weber) in relation to the unlikelihood of moisture passing into theslab at an increased rate was cogent. To the extent that (where a DPM failure ispresent) concurrent cracks in the slab of appreciable width may lead to damage to theslab, there is no evidence to indicate that the cracks present at 152 (or 160) are of thenecessary width.Building 1/152 — floor slabs[308] The 152 plaintiff by its statement of claim identified two particulars of damageto the slabs being:(a) significant cracking to the ground floor slabs; and(b) floor slopes greater than 1 in 200 across 18 per cent of the ground floor.[309] Vero admitted that there was in Building 1/152 (as in all buildings) crackingup to 1 mm (but typically less than 0.5 mm) in the ground floor slabs. The allegeddamage to the slabs was otherwise denied.Slab-cracking[310] Mr Weber gave evidence of inspections he had carried out at units 1 and 2/152.He provided photographs of floors in the two units. He stated that the observed crackswere up to 1 mm in width. He described the crack pattern as "mosaic and extensive".He referred to crack maps drawn by Mr Cowie as showing the crack pattern anddamage. The crack maps show lines of cracking somewhat more numerous in unit 1than in unit 2.[311] Mr Weber summarised the top surface of the unit 1 and 2 concrete slabs asbeing "significantly cracked throughout" and stated that that is what would beexpected with "this level of foundation failure". The latter observation followed fromthe conclusions earlier in Mr Weber's evidence as to the failure of Building 1'sfoundation.[312] Mr Cowie also referred to his crack maps. He identified (by red squares) thelayout of the heads of piles beneath the slab and observed that the layout of the slab-cracking indicated clear evidence of pile bunching.[313] At the time of the slab inspection by Mr Weber and Mr Cowie (in May 2017),an EDC colleague of Mr Polson was able to visually inspect the ground floor slab ofunit 2. Mr Polson produced the hand-drawn crack maps made on that inspection ofunit 2. They very closely correspond to Mr Cowie's crack maps in terms of thelocation of cracks. The EDC crack maps additionally have a legend recording cracksmeasured at 0.1 mm to less than 0.5 mm (in red) and wider than or equal to 0.5 mm(in blue). There is relatively little cracking in the second category (thesemeasurements cannot be compared to Mr Cowie's as his crack maps did not record acrack width).[314] Mr Polson opined that the observed cracking in units 1 and 2 does not indicatefoundation failure. Mr Polson stated that the cracking resulting from failedfoundations would typically be major cracking of the slab (eg individual cracks widerthan 5 mm or multiple cracks of more than 1 mm). Mr Polson opined that the crackingthat he personally observed and has seen in Mr Weber's photographs was by no meanssufficiently clear to indicate foundation failure. Mr Polson viewed the cracks, as inthe case of the garages, as likely to have originated with shrinkage but acknowledgedthe possibility that the CES may have increased the cracking in the ground floor slab.[315] The evidence establishes that in Building 1 significant areas of the inspectedcracking — and a substantial portion of it — resulted from the CES. But the natureof the cracking does not establish foundation failure. The situation is the same forBuilding 1/160.Ground floor slab dislevelment[316] The 152 plaintiff pleads that floor slopes in Building 1/152 are now greaterthan 1 in 200 across 18 per cent of the ground floor (that is of units 1 and 2).[317] Mr Cowie, in his crack maps, also provided detail of differential settlements inunits 1 and 2. Those showed a 16 mm differential settlement (between the lowestobserved floor level (in unit 1) and the highest observed floor level (in unit 2)).[318] In addition Mr Cowie prepared plans showing the floor areas in which slopeswere steeper than 1 in 200 (16 per cent), steeper than 1 in 150 (4 per cent) and steeperthan 1 in 100 (1 per cent).[319] Mr Weber referred to Mr Cowie's plans. He stated that slopes greater than 1in 200 are deemed unacceptable pursuant to the current NZBC. Mr Cowie referred tothe areas sloping more steeply than 1 in 200 as being greater than calculated from theBRANZ floor level data. (Mr Cowie was referring to the BRANZ report of April 2011on floor level variation investigation.)[320] Mr Thomson, a cadastral surveyor of Envivo, provided evidence as to hisobservations of floor levels. He produced his report of 6 July 2016 setting out floorlevels of all units in Buildings 1 and 2, including ground floor levels.[321] Mr Polson in his evidence reviewed the floor level survey results of both MrCowie and Mr Thomson, observing that they are quite similar to one another. TheEnvivo details show 17 mm variation in unit 1 and 12 mm variation in unit 2 (thevariation across the entire ground floor being 17 mm). As Mr Polson observed, bothMr Cowie's and Mr Thomson's surveys showed that the ground floor slopes calculatedbetween points over 2.0 m apart were fewer than 0.5 per cent.[322] The various source documents to which Mr Polson referred in his evidence(and which I have summarised in relation to Buildings 2 and 3 (above at [119]–[120]),including the EAG report of 2011) indicate that the ground floor level variation inBuilding 1 is within a reasonable "when new" construction tolerance.[323] On the evidence, in parallel with that relating to Buildings 2 and 3, the 152plaintiff has not established that there was any earthquake-induced dislevelment suchas might indicate, including in conjunction with the slab-cracking, evidence ofstructural damage. The same conclusion applies in relation to Building 1/160, wherethe 160 plaintiff's allegations of dislevelment are similar.Superstructure[324] By its pleading, the 152 plaintiff asserted that Building 1 had suffered largelateral movement resulting in deformation of the structure and a loss of structuralstrength capacity. The 152 plaintiff asserted that such matters were evidenced byresidual leans, significant step-cracking in the block walls and cracking at diaphragmlevels, loss of verticality of internal linings, drumminess in plasterboard and poppingfrom fixings. It was further asserted that floor slopes are now greater than 1 in 200across 23 per cent of the floor area and that there have been overall superstructuredeformations to roofing and roof framing. In the evidence and submissions, theseallegations led witnesses and counsel to speak of racking, twisting and the interruptionof load paths. The plaintiffs' witnesses spoke of "geometric distortion".Dislevelment of upper floors[325] Mr Weber identified the upper floors in Buildings 1 (and 4) as having"excessive floor slopes". Mr Weber referred to plans prepared by Mr Cowie showingdifferential settlements in Building 1/152 of 20 mm at first floor and second floor,together with further plans showing floor slopes steeper than 1 in 200 at both first (17per cent) and second (21 per cent) floor level. Breaking the figures down, Mr Webernoted the percentage of floor area sloping at first floor level to be 17 per cent (1 in200); 7 per cent (1 in 150); and 1 per cent (1 in 100). At second floor level, the figureswere 21 per cent (1 in 200); 5 per cent (1 in 150); and 1 per cent (1 in 100).[326] Mr Weber referred to his earlier evidence that floor slopes steeper than 1 in 200are not acceptable in terms of the NZBC and industry accepted standards.[327] Mr Weber recorded that floor slopes in older buildings may be attributed tolong-term creep in the concrete floors but opined that any such creep should berelatively small in these relatively new buildings. Mr Weber noted that the concretefloors consisted of in situ toppings which would have been poured to level as perindustry standard practice. He nevertheless recognised that some "very minordishing" of floors between the units was evident.[328] Mr Polson reviewed, as he had for the ground floor, the first and second floorlevel variations by comparing the survey figures of Mr Cowie and Mr Thomson. Heagain noted the two sets of figures to be "quite similar to one another".[329] Mr Polson recognised that there was a slope of approximately 0.9 per centrecorded on the first floor of unit 1, being the maximum slope recorded. Mr Polsonnoted, however, that that slope was near the stairwell opening and he opined that itwas not caused by the foundation settlement as the floor slope at the correspondingpoint of ground level did not demonstrate the same trend. He opined that the first floorslope at that point is more likely associated with the gravity loading deflection of eitherthe slab or the steel beam at the edge of the stair opening.[330] By reference to his earlier evidence as to accepted industry standards, MrPolson opined that the CES had not caused any discernible change to the floor levelsin Building 1. They remain substantially in their as-built or at least pre-CES condition.[331] On the basis of the evidence, the 152 plaintiff has not established that of itselfthe extent of dislevelment of the upper floors in Building 1/152 was earthquake-induced. The same conclusion applies to Building 1/160, in relation to which the 160plaintiff's allegations of dislevelment were similar. It remains to be consideredwhether, taken in conjunction with other physical evidence, it may indicateearthquake-induced damage to the structure.Verticality of walls[332] The plaintiffs' pleading in relation to the verticality of walls was that they have"measured residual leans". In relation to internal linings, there was similarly apleading of "loss of verticality".[333] As summarised by Mr Till in his opening submissions, the plaintiffs allegedthat the wall verticalities of Buildings 1 exceed the NZBC limits (being theconstruction tolerance for such walls) by two to three times.[334] The builder of the improvements at 152 and 160, Richard Batt, gave evidenceas to the care taken to accurately erect the form work for foundations and floors andthen to ensure that floors were accurately levelled. He referred also to the process ofensuring (as 160 was first built) that the walls were plumbed and levelled accuratelyusing a plumb bob and builder's level. He referred to this process at 152 whereblockwork was also laid plumb. Construction progressed with six courses laid at eachend, with a line pulled between courses to ensure the blocks were consistent andaccurately laid. The blockwork was then checked with a plumb bob and builder'slevel. After each construction was completed, the entire developments were surveyedby the registered surveyor who had drawn up the flat plan in order to progress the issueof new titles (for the unit development). Mr Batt referred to the need for great care tobe taken to stay within recession planes.[335] Mr Cowie undertook 3D scans of the north, south and west external walls ofBuildings 1 together with internal verticality measurements of walls, doors andwindows on all three levels. He produced plans and elevations. By a colour coding,Mr Cowie represented (in blue) the areas leaning outwards the most and (in red) theareas leaning inwards the most. Mr Weber described the elevations as showing thecomplex nature of permanent residual superstructure deformations with some wallstwisting out-of-plane. As correctly summarised by Mr Weber, the elevations generallyshow the block walls as leaning inwards at their tops.[336] Mr Weber also extracted from Mr Cowie's measurements the wall leans at eachfloor. He tabulated the leans with a comparison to "NZBC limits" by reference to eachof the four walls, showing for ground floor 4 mm to 11 mm over varying distances(1.8–2.3 m) as compared with the "NZBC lean limits" (1 in 500), equating to 3.6–4.6mm. Mr Weber undertook a similar analysis on the first and second floors. Eachanalysis produced wall leans of two to three times Mr Weber's stated allowable NZBClimits. (Mr Weber, in cross-examination, accepted that a more complete referencewould have been to "acceptable lean limits".)[337] In reply evidence, Mr Weber accepted the evidence given by Mr Polson thatthe more accurate assessment of structural damage is that of wall deformationsobtained from outside measurements, which are directly taken from the structure. Herecognised that the deformation and bowing of plaster walls internally may be at leastpartly due to both plasterboard and structural deformation.[338] In cross-examination, Mr Weber clarified that his assessment of wall leanmeasurements was tabulated from those taken internally, not externally. He alsoconfirmed that his reference to "NZBC lean limits" (of 1 in 500) was incorrect. Thetolerances he applied to the building's verticality were from the standard NZS 3604,which is a standard relating to a timber-framed building, rather than from NZS 4210(for masonry construction).[339] Mr Weber accepted that, when addressing external verticality (for lean limits),one should refer to NZS 4210 for these concrete block buildings whereas Mr Weberhad previously referred to NZS 3114 or 3109 to give him a 15 mm overall out-of-plumb tolerance. Mr Weber recognised that for the front and rear walls of Buildings1/152 and 160 the tolerance is 10 mm per 3 m of height with 20 mm deviation fromvertical for the total height of the building. Mr Weber accepted that the northernelevation of Building 1/152, with the range of 6–16 mm, was within the constructiontolerance under NZS 4210. He accepted that on the southern elevation, where the leanon unit 1 is 23 mm, the levels would have been barely beyond the tolerance for pre-earthquake condition.[340] In addition to their evidence in relation to external wall verticalities, MessrsCowie and Weber also gave evidence as to the state of the internal walls in Building1/152. Mr Cowie concluded from a number of observations that the structure had beengeometrically distorted due to earthquake shaking. In particular, he relied upon:(a) the internal walls of all of units 1, 2 and 3 exhibiting drumminess; and(b) damage to wall lining fixings such as popped nails, cracking andfracturing.[341] Mr Cowie opined that the wall linings had been able to move due to thedelamination of the glue and the popping of nails.[342] Mr Cowie referred to certain of the external and internal leans (in particular inunit 1's eastern wall) as "closely mimicking each other".[343] Mr Weber produced photographs of damage to the interior of units 1–3, in theform of cracking or compression and popped nails. He referred to popped nails beingevident in many places along with drummy wall linings (on almost every internalwall). Mr Weber opined that the significant cracking and separation of wall liningswas an extremely clear indicator as to the movement that had occurred in the structure.[344] Mr Polson gave evidence in relation to the internal walls both concerning theirverticality and the observed damage. For verticality results, he relied on evidencegiven by Mr Thomson in the form of a table.[345] Mr Polson noted that the plaintiffs' verticality results measured internally weretaken on plasterboard linings, which he stated should not be compared against thelimits in NZS 4210:2001 (being measurements of a finished plaster face, not astructural block masonry wall). He also noted that the internal wall measurementswhich Mr Thomson was able to obtain had the limitation that some were taken foronly a portion of a wall where obstructions were encountered. He further noted that,as the internal block walls were fully lined, the measurements taken were in fact of theplasterboard which is in turn screwed to timber batons which are in turn fixed to blockwalls. Internal measurements may pick up variations in the timber batons or packingor gaps between batons and block walls. He demonstrated this by reference to aphotograph where the timber strapping passed over the rough surface of theblockwork.[346] Mr Polson therefore viewed the external block wall measurements as the mostreliable indicator of structural tilt. Looking at both an external verticality planproduced by Envivo and the table provided by Mr Cowie, Mr Polson observedcorrectly that it is not possible to see a clear trend to the wall tilts. By reference to theEnvivo measurements, Mr Polson noted walls tilting slightly in one direction over thelower section and in the other direction over the upper section. The single trendevident in the 3D scans undertaken by Mr Cowie is a slight lean inwards of the wallsat the top of the gable end.[347] I find on the evidence that the verticality of the walls is consistent with thediffering leans being in accordance with their as-built condition and less consistentwith their having been caused to so lean through the CES. The leans have not beenshown to accurately represent structural damage, let alone structural failure. I reachthe same conclusion in regard to substantially similar evidence in relating to Building1/160. A comparison of the verticality figures of both Mr Cowie and Envivo indicatesthere is no clear trend to the wall tilts in Building 1/160. In some cases, walls on theopposite ends of the same floor tilt in opposite directions and in some cases, a singlewall tilts in opposite directions at different heights. It is to be remembered that theseare pre-cast panel slabs.[348] A specific consideration brought to bear by Mr Polson in his evidence relatedto what an engineer would expect to see at the wall-to-floor interface. Mr Polsonstated that, if the wall had been tilted by earthquake damage, he would have expectedto see considerable stretching or compression damage at the wall-to-floor interfaceand damage to the inter-panel sealant. He explained that if earthquakes had causedwalls on either side of the floor to bow out, some damage would be expected to thefloor or at the connection of the wall-to-floor. He similarly was looking for damageto the flexible sealant where adjacent pre-cast panels abut. He found no evidence ofsuch damage. The plaintiffs' witnesses did not suggest otherwise.[349] For the reasons I have referred to in relation to Building 1/152 and thisadditional evidence in relation to Building 1/160, I find that the 160 plaintiff has notestablished that any lack of verticality in the walls of Building 1/160 was caused bythe CES.[350] Turning to the plaintiffs' evidence on the drumminess of the wall linings, MrPolson distinguished these block masonry structures from timber-framed dwellingswhere the plasterboard is a structural bracing element. In such dwellings, drummywall linings may indicate movement around the fixings and a loss of strength. At 152,the plasterboard linings provide no structural purpose.[351] Mr Polson identified that the plasterboard at 152 had been fixed with screws atbetween 300–400 mm centres, supplemented with glue. He opined from his inspectionthat the drummy sound is purely a result of the "minimal fixings" between theplasterboard and the timber strapping.[352] Mr Polson accepted that damage, which he described as "minor", had occurredin the internal plasterboard linings, in the form of cracking. He considered that hadoccurred through a small deformation of the structure during the CES.[353] I here focus on the plaintiffs' allegations of damage to the interior of Building1, both in terms of the lean of the walls and the state of the linings. In relation to thewalls, the plaintiffs' case is that the blockwork was built within verticality tolerances,that it is now outside those tolerances and that that has resulted from the CES. Asidentified by Mr Polson, even after the CES the relevant tolerances were not exceededin most instances and were very marginally exceeded where they were. The evidencedoes not establish that the departure from verticality was as a result of the CES ratherthan representing the walls' as-built state.[354] I am equally not satisfied on the evidence that the state of the linings — eitherin terms of their cracking and distortion or their drumminess — is indicative of suchdistortion during the CES as to have led to a change in the verticality of the structure.What is established is that the linings suffered damage in the CES which (as Veroconcedes) requires repair to a "when new" standard.Cracking in walls[355] The 152 plaintiff's pleading is that there has been "significant step cracking instructural concrete walls" in Building 1/152.[356] In the terms of Mr Till's opening, it is alleged that the cracking continues intoblock masonry in some places but has mostly presented itself in the mortar of theblocks as a result of earthquake-induced grinding. It is also alleged that there issignificant cracking following the first floor diaphragm level, being evidence ofsignificant lateral movement. The cracking is alleged to result in a loss of stiffness ofthe structure.[357] Mr Cowie recorded (on-site) cracking maps onto elevation plans which he thendigitally transcribed onto his 3D models of Building 1. He noted that the recordedcracking was only what he was able to determine visibly, he expecting there to bevisible cracking which he had not been able to identify. He did not view the internalfaces of the block walls but opined that it was almost certain that additional crackingto the internal faces would exist. Mr Cowie concluded from the pattern and amountof cracking that the block walls and entire structure had suffered a significant amountof movement and deformation during the multiple earthquakes in the CES.[358] Mr Cowie stated that the cracking was evident in the mortar (that is betweenthe blocks) and through the blocks themselves.[359] By reference to his crack maps, Mr Cowie stated that:(a) The cracking on the northern block walls was (at the time he inspectedit) some of the most extensive cracking he had observed in modernreinforced concrete block construction. (He had since then seen muchmore extensive damage but those buildings had either been demolishedor collapsed.)(b) All northern walls had step cracking indicative of in-plane racking andmovement of the walls.(c) The crack (and lean) measurements also indicated out-of-planemovement.(d) The horizontal lines at the first floor slab and second floor heights wasindicative of lateral movement of the slab diaphragms effectivelyshunting the blockwork laterally.(e) Horizontal cracking at the first floor slab line, seen along the northernface of unit 1, extends along the entire length of the western face of unit1.(f) On the west and south walls of Building 1 cracks emanating from thecorner of the penetrations at the ground and first floor levels are evidenton all units, together with horizontal cracking in the blockwork mortaralong the diaphragm line of the first and second floors. Step crackingemanating from window and door penetrations indicates in-planeracking.(g) There is a horizontal pattern of cracking on the unit 2 east wall at thefirst floor — suspended floor height (similar to that on unit 1).[360] Mr Weber in his evidence produced photographs to show the extent of crackingin the structure on external walls. Mr Weber referred also to having seen on theinternal walls small areas where plasterboard had been removed, he recording thatcracking to the blockwork was observed "in some areas".[361] The plaintiffs' only detailed evidence relates to the external walls, for whichpurpose Mr Weber produced photographs and reproduced Mr Cowie's crack maps.[362] As in relation to the opening and closing of cracks in slabs, Mr Weber statedthat the observed cracks in the superstructure of Buildings 1 (and Buildings 4) wouldhave opened and closed during the CES. He stated that it is not possible to accuratelydetermine to what extents the cracks would have opened or how wide they would havebecome. He opined (given the extensive number of cracks and the patterns ofcracking) that it is reasonable to say that the opening and closing of the cracks wouldhave been significant and enough to yield, strain, harden and possibly fracturereinforcement steel. He continued that the level of cracking observed unequivocallyshows that the design load paths had been destroyed and the structural integrity of thebuilding significantly compromised.[363] Mr Weber identified as significant mechanisms the following:(a) horizontal cracks developed where the (stiff) floor diaphragms meet thesupporting walls, dramatically weakening the overall building strengthby preventing seismic loads being transferred into the walls and downto the ground;(b) horizontal cracking between windows as caused by in-plane shearloads, which effectively caused a slip plane between the windows (thecracks being contributed to by out-of-plane seismic action as the wallsbowed inwards and outwards), all this damaging the reinforcement; and(c) the diagonal and stepped cracking around windows and openings wouldhave been mostly caused by in-plane shear stress concentrations andsome out-of-plane action.[364] Mr Weber stated that it is practically impossible to accurately determine theoverall loss of strength and the remaining residual strength in Building 1 because thebuilding is so complex and severely damaged. Mr Weber stated that, if the issue issimplified to just shear and spalling cracking in the piles and the cracking to thediaphragm to wall ties, then the buildings have lost more than 53 per cent of theirmaterial strength due to damage in the CES.[365] Mr Weber identified the cracking in the walls around the archway in Building1 (between units 1 and 2 and below unit 3) as of particular interest. With units 1 and2 having foundations not connected at ground level but sitting on slender pre-stressedpiles, the ability of the two foundations to move large distances would have createdsignificant prying forces and stresses around the archway. Mr Weber referred tosignificant cracking visible in the concrete block walls in the archway area.[366] Mr Weber also referred to damage to the floor diaphragms to wall ties. Hestated (from his external observations) that the cracking at those junctions is all theway through the wall structures. As the ties are critical in transferring seismic loadsfrom the floors to the walls, this is a very significant element of damage significantlyaltering the load path and the strength of the building.[367] Vero, by its pleading, admitted earthquake damage to the walls of Building 1to the extent of cracking of the block walls up to 0.5 mm (but typically less, with manyonly 0.1 mm) and minor cracking through the mortar courses in Building 1.[368] The principal evidence for Vero in relation to the superstructure of Building 1was again given by Mr Polson of EDC. Mr Polson explained that EDC had undertakena detailed study of a section of the cracks on the superstructure on 6 March 2019. Heproduced a set of photographs of each elevation, including of the measuring (againsta SIKA gauge) of a crack width. Mr Polson explained that the plaster was scrapedaway in some locations to inspect the block masonry beneath. He stated that it wasnot possible to measure every crack but, based on the inspection, cracks in the plastersurface had a maximum width of approximately 0.5 mm with most cracks much lessthan that, many being only 0.1 mm. He stated that many of the cracks appeared tohave formed in the plaster finish only, with no evidence of cracks propagating into theblock masonry.[369] Mr Polson concluded that the plaster finish had cracked independently of theblock masonry because the plaster finish was very stiff and brittle in comparison tothe structural element. Mr Polson stated that because the block masonry is reinforcedit can flex and move under major loadings without cracks forming. Conversely, theplaster cracks, unable to withstand the movement. Mr Polson stated that the plastercracks in the building tended to follow the mortar lines in the masonry, which was asexpected, because the mortar is weaker than the blocks.[370] Mr Polson referred to Mr Cowie's crack maps. In certain areas whereMr Cowie identified cracks, Mr Polson by reference to photographs stated that whatis seen, with the light shining on the wall, is the outline of each of the blocks in thewall (both the vertical and horizontal lines of mortar) showing through the plasterfinish. Mr Polson opined that Mr Cowie had picked up on the edges of the blocks'masonry units as opposed to an actual crack.[371] Mr Polson referred to the pier and spandrel elements in Building 1/152.Invoking his understanding of academic studies, laboratory testing and his knowledgegained from other earthquake-damaged buildings, Mr Polson stated it is possible topredict the concrete crack pattern of a highly loaded element such as the pier andspandrel elements. He stated that bending cracking will likely consist of a series ofparallel vertical lines at either ends of the beam, or horizontal lines at the top andbottom of the pier elements. He stated that some diagonal cracking propagating offthe window can also be expected, either bending or shear cracking.[372] By reference to the crack map prepared by EDC, Mr Polson stated that theactual cracking, in part at least, had occurred where expected. He stated that the extentand width of the cracking was far less than he would have expected for elements wherethe demand had well exceeded the capacity. He observed that the crack widths arevery small and that some had occurred in plaster only.[373] Mr Polson referred to the evidence of Mr Weber as to the movement of thefoundation units 1 and 2 apart from one another, damaging the block masonry formingthe archway. Mr Polson stated that he had seen some evidence of a small amount ofpossible lateral movement of the building around the archway. He disagreed with MrWeber's interpretation that units 1 and 2 had moved apart. He explained that thereremains a gap at either side (east and west) of Building 1. He would expect any gapon the outsides to be closed if the units had moved apart.[374] Mr Polson stated that on his inspection of the wall elements either side of thedrive archway, cracks inspected did not appear to be more than 0.3 mm wide andappeared to be in the paint only. He opined that the cracking at the archway was aresult of shaking movement.[375] Mr Polson also referred to the occasion in December 2018 when it was possibleto inspect limited areas of the internal block masonry walls. Interior wall linings wereremoved (1 m x 0.6 m in unit 1 and 1 m x 1 m in unit 2). Mr Polson producedphotographs taken at that time. He identified that there was no evident cracking ofmasonry along mortar lines in the unit 1 inspection. In the unit 2 inspection, Mr Polsonnoted the poor pointing of the block masonry, which he described as typical of blockwalls that are to be hidden behind linings. He stated that there were gaps between theblock edges and the mortar in some areas but stated that this was not cracking damage.It was more likely associated with mortar shrinkage and poor mortaring. He detectedno cracks. He disagreed with Mr Weber (who inspected the walls at the same time)that cracking was evident — Mr Polson referred to photographs he took of the walls,itemising in each instance of an apparent gap how he related it to poor pointing andshrinking rather than cracking.[376] I find Mr Polson's inspection and conclusions as to the extent of cracking inthe Building 1/152 walls to be the most detailed and most reliable. I conclude thatMr Cowie's crack maps overstate the extent of cracking. The most helpful evidencein relation to the width of cracking is that of Mr Polson based on his measurements.Mr Polson's conclusion that there was no evidence of cracks propagating into theblock masonry is consistent both with the photographic record and with the limitedinspection undertaken of internal walls. I do not identify any evidence to support MrWeber's conclusion that there is cracking which extends through the width of the wall.[377] I conclude that the established cracking tends to follow the mortar lines and iscaused by and consistent with some degree of earthquake shaking rather than thenature of forces described by Mr Cowie as "effectively shunting the blockworklaterally". I do not find that the evidence is of sufficient forces to have opened andclosed cracks in such a way as to yield, strain, harden or possibly fracturereinforcement steel (or "bar") (as opined by Mr Weber). As evidence standing alone,the cracking does not unequivocally show that the design load paths had beendestroyed as asserted by Mr Weber.[378] The evidence in relation to the cracking around the archway is at least asconsistent with Mr Polson's conclusion as that of Messrs Cowie and Weber. The 152plaintiff's evidence does not establish that units 1 and 2 probably moved apart, aconclusion taken by the plaintiffs' experts to support a major failure around thearchway.Roofs[379] By their pleadings, the plaintiffs alleged that there had been overallsuperstructure deformations to the roofs and the roof-framing on Buildings 1 (andBuildings 4).[380] The plaintiffs' evidence as initially briefed in relation to roof damage wassparse. Mr Weber (attaching a sample photo of the ceiling of unit 3) dealt with theissue in a single paragraph:I have not walked over or inspected the roof. Given the level of overallbuilding residual deformation and displacements during shaking some roofdamage could be expected. The occupant of Unit 3 reported water damagefrom the roof leaking after the earthquakes.The owner of unit 3/152 was not called as a witness. The plaintiffs' building surveyor,Mr O'Brien, gave evidence of an inspection on 26 November 2018 when he notedcracking and water staining to plasterboard above the staircase from the ground floor,suggesting to him that there was "still an issue at roof level". He referred to aconversation with the home owner of unit 3 which, being hearsay, was inadmissible.He concluded, having regard to his unit 3 inspection, that the roof had been damaged.He recommended urgent repairs.[381] In cross-examination, Mr Weber confirmed that he had not employed a droneto look at the roofs. He confirmed that the roofs are steel fixed to timber and that, ifsteel moves enough in an earthquake, a sort of elongation of the fixing hole results.That is one of the indicia of there having been racking to the roof. But Mr Weberconfirmed that he had not been able to actually see whether that had happened on theroofs at 152 or 160.[382] Mr Weber's evidence in relation to the roofs was supported by Mr Cowie inthe briefest terms, when he included as one aspect of earthquake damage to Building1: "Geometric distortion to the superstructure (external walls, internal walls, first andsecond floors, roof)". In terms of the evidence adduced, Mr Cowie's reference to theroof had to depend on Mr Weber's evidence as nothing in Mr Cowie's 3D scansdisplayed roof damage. Mr O'Brien, for his part, was cross-examined as to hisconclusion that there had been CES-induced roof damage. He accepted that part ofthe roof on Building 1/152 had been formed with a rubber product, Butynol, which hedescribed as "very problematic" both in weathertightness and earthquake situations.The plaintiffs adduced no evidence as to any inspection of the Butynol roofing.[383] The plaintiffs' evidence in relation to the roofs falls far short of establishingthat they had suffered earthquake-induced damage. It is evidence based on anassumption. The single photographic example of damage (in unit 3), while related tothe time of the earthquake in the hearsay reports received by Mr Weber and MrO'Brien cannot — in the absence of evidence flowing from an inspection of the roofitself — be reliably linked causally to the CES.Holistic assessment[384] To this point, my consideration of the plaintiffs' allegations of the damage toBuildings 1 has been set out under sequential headings which relate to the damage asparticularised by the plaintiffs in their statements of claim. To that extent the aboveanalysis may be said to have proceeded on an "element by element" basis.[385] A central proposition advanced by Mr Till for the plaintiffs, and referred to bythe plaintiffs' expert engineering witnesses, was that consideration of the damage toparticular buildings needed to proceed on an holistic basis rather than on an element-by-element basis. As it was put by Mr Till in closing:The approach of Vero's engineers in this regard, to separate out damage andassess it on an element by element basis, has differed markedly from theplaintiffs', who took a holistic view to assessing the effect of land settlementon these three storey concrete structures.[386] In his evidence in chief, Mr Weber had explained the need to consider everyarea of damage in the context of the global structural system. He explained:Definition of damage and severity of damage106. When assessing earthquake damage and the severity of that damageto the building, system or element I have considered if the physicalstate of the building, system or element has been altered in a negativeway that affects its original value, functionality, usefulness, aestheticquality and amenity.107. Throughout my evidence I refer to different levels of damage severity.I do not always distinguish between the different attributes of thedamage as this is unnecessary. For example, a cracked diaphragm towall tie may only be minor damage with respect to aesthetic quality,but in terms of structural functionality and usefulness it is significantdamage. The loss of structural capacity at material and componentlevel is large and its effect on the global structural system and loadpaths is significant.108. When considering damage at materials and component and elementlevels it is critical that the investigating engineer then worksbackwards to understand the effect of the damage to the globalstructural system and the overall load path system.109. For example, if the foundations and slabs have suffered cracking anddifferential settlement this distorts and deforms the superstructure andnegatively alters the global structural system and load paths, pushingload demand around into elements which have not been designed totake those altered load demands. Another example is when a floordiaphragm to wall connection is damaged, it is imperative that theseismic load from a heavy concrete floor finds its way out through theshear walls down to the ground. Once these connections are damagedand weakened then the whole building strength and global structuralcapacity is weakened and the load path has been negatively altered.110. When discussing the damage to materials level and componentselements level of these buildings I consider what effect that damagehas on the overall load paths and the global structural system. It is notplausible to consider each area of damage in isolation withoutconsidering the global structural system.[387] The central point of the plaintiffs' urging of an holistic approach is that aspectsof damage or alteration should not be viewed in isolation because taken together theymay indicate a cause which would not otherwise be established. Counsel for Vero inthe course of this hearing did not suggest otherwise. In determining the existence andcause of damage, the Court's assessment must have regard to the overall implicationsof all established aspects of alteration or damage.[388] That said, the onus remains on the plaintiffs to establish both the physical statethat is alleged and that it is earthquake-induced. I have found it of assistance, as did anumber of the witnesses, to have regard item-by-item to the physical state alleged bythe plaintiffs. Such an approach enables proper focus on whether that particularphysical state has been established before going on to consider whether it isearthquake-induced (whether that is apparent by consideration of that element alone,or by a consideration of the effect of a combined group of elements on the building asa whole).[389] The physical state of the roofs at 152 exemplifies the value of the exercise. MrCowie viewed deformation of the roof as one of a number of matters of "geometricdistortion" which taken together indicated that the superstructure had distorted due tonon-uniform vertical and lateral movement of the foundation and shaking, racking andoscillation of the superstructure, all due to the CES. An initial focus on the roofsdemonstrates that the roofs cannot be brought into account to establish a consistentpattern of distortion — there is no evidence that the roofs have suffered any distortionat all.Finite element analysis (FEA)[390] The plaintiffs' case, particularly through the evidence of Mr Weber, is thatelements in buildings at 152 and 160 underwent plastic deformation during the courseof the CES, resulting in strain hardening and reduced capacity. Mr Weber offered anexplanation as to how an FEA provides information as to how an overall buildingperforms:118. An FEA is where you build a structural model of the building orbuilding element using computer software. This model of the building is madeup of/or is split into small elements. For example a floor slab may be cut into500mmx500mm square elements. We can then apply forces to the buildingmodel such as gravity loads and wind and earthquake loads. The software thenworks out all the stress and strain, moments and shears, tensions andcompressions, etc. in each element which allows us to design the materials forall the structural components (foundation beams, slabs, columns, walls, etc.)of the building. This analysis tells us how the overall building performs andhow the design load paths work to different loading.119. A displacement-based approach is where the engineer looks at thedisplacements of the building under earthquake loadings. The actionsgenerated in the structure such as shears and moments and axial loads, etc. areconsidered as a consequence of this deformation.[391] As similarly explained by Mr Polson, an FEA computer model will predict howa building will perform in a major earthquake, then enabling the engineers to identifyareas, if any, where damage would be likely to occur. Mr Polson continued:If we see no or minimal damage in those areas predicted by the model to bethe weakest in the structure, this will support a view that the structure has notsustained a reduction in strength due to the CES.[392] Mr Weber gave evidence of conducting an FEA on Buildings 4 at both 152 and160 and on the garages at 152. The single element which he modelled was the floor.[393] Mr Weber accepted in cross-examination that he had started his analysis with"a completely perfectly flat floor resembling a pane of glass".[394] Mr Polson had EDC conduct an FEA on all buildings, including Buildings 1.EDC utilised a three-dimensional analysis software known as ETABS. Mr Polsonexplained in detail what he referred to as the "well-accepted simplifications" whichhad been adopted for the FEA. As explained by Mr Polson, EDC's FEA identified asthe elements most likely to have been damaged in the 22 February 2011 earthquake(approximately equivalent to a 100 per cent ULS event) being the spandrel and pierelements around ground floor windows and door openings. Those would producemajor bending moment induced cracking.[395] It was at this point that Mr Polson compared the expected cracking (based onthe analysis) and the crack maps from his March 2019 inspection. His conclusion wasthat the extent and width of the cracking was far less than he would have expected forelements where the demand had well exceeded capacity. This led to Mr Polson'sconclusion that those elements had not sustained damage that had materially reducedtheir residual strength capacity.[396] Mr Polson spoke to parallel conclusions in relation to Buildings 4. Finally, MrPolson critiqued Mr Weber's adoption of a parallel FEA for the garage buildings, MrPolson distinguishing those buildings because they are single storey with lightweightroofs, a low seismic mass and dominated by the weight of their walls. Mr Polsonrejected a number of points in Mr Weber's methodology including Mr Weber havingbased his assessment of seismic capacity on a slab model, when the slab in the garagesis not part of the lateral load resisting system. The walls (piers and spandrels) are theprimary lateral load system, with ground beams beneath the walls transferring lateralloads into the ground. Mr Polson described the slabs as having negligible influenceon the performance and response of the ground beams and walls. Mr Polson alsorejected Mr Weber's elimination from his model of the garage's block walls which,Mr Polson stated, provide stiffness to the overall structure because they are attachedto the ground slabs.[397] What clearly emerged from the cross-examination of both parties' witnesses isthat the approach taken to an FEA involves significant judgement (and experience) onthe part of the engineers involved in the modelling. In the cross-examination of MrPolson, for instance, Mr Till put a number of propositions as to matters that could havebeen brought into account and were not. In each case, plausible explanations wereprovided for the decision made in relation to the FEA.[398] It is not feasible on the evidence adduced to find in relation to any particularbuilding one approach more reliable than the other.[399] That said, the only developed FEA in relation to Buildings 1 is the EDCanalysis produced by Mr Polson. I find no basis to put it to one side when consideringthe evidence as a whole. For the reasons given by Mr Polson in his evidence, it isconsistent with the conclusion that the prominent cracking around spandrels and piersoccurred where predictable.Remedy — Building 1/152[400] The 152 plaintiff pleads in relation to the remediation of Building 1/152 (andthe other buildings) that:To remediate the earthquake damage to the property using currently equivalentbuilding materials and techniques to a standard or specification no moreextensive, nor better than its condition when new and in accordance withVero's obligations under the policy requires the carrying out of thereinstatement work in schedule B annexed to this statement claim.[401] Schedule B of the statement of claim, headed "Repair scope", may besummarised as requiring the demolition of all foundations and building and a fullrebuild of the foundation and superstructure, together with civil engineering services.[402] By its statement of defence, Vero denied those allegations. It said that insteadthe work required to remediate the buildings to a standard required by the Policies wasas set out in a Scope of Works annexed to the statement of defence. That work wasidentified by Vero to include:(a) addition of perimeter thickening to the foundations of Building 1;(b) filling voids beneath the ground floor slab in Building 1 using groundinjection;(c) repairing cracks to perimeter foundations and concrete slab greater than0.3 mm using epoxy injection;(d) repairing cracks in masonry walls greater than 0.3 mm using epoxyinjection; and(e) raking out and re-pointing cracking in the block mortar lines up to 0.3mm.[403] When Mr Polson at trial read his evidence (from his brief dated 29 March2019), he referred to those five sets of repairs. In giving his evidence, he added that:"Alternatively a concrete collar could be added to the top of all perimeter piles. Thatis option A." For the remainder of the proceeding the term "option B" was used torefer to the proposed remediation involving a perimeter thickening to the foundations.[404] The options were compared thus by Mr Polson:The extent of work in option A is the introduction of what I call a concretecollar around the perimeter piles. It is of significantly reduced depth to optionB whereas option B is extending to 800 below ground, approximately 400below the bottom of the footings option B [in the context an obvious error,clearly being a reference to option A] extends only 100 millimetres below thebottom of each footing and serves the purpose only of attaching securely thetops of the piles to the underside of the slab foundation.[405] Mr Polson described option A as "very much a back to when new repairsolution". He explained that the proposed repair was to return the strength of thefoundation system to what it was in the pre-CES condition. He explained that optionB provides some additional robustness to the foundation system that will allow it toperform at a higher level %NBS.[406] Option B, as explored by Mr Polson and examined in the course of the trial,was not ultimately put forward by Vero for consideration by the Court as an alternativedeclaration — Vero indicated to the plaintiffs that it was still prepared to explore withthe plaintiffs option B but that was a matter for discussion between the parties, notrequired to be considered by the Court. Mr Polson recognised in his evidence that theoption B repair would require testing to determine whether the piles have sufficientvertical capacity. Without such testing Vero could not put option B forward as ademonstrably workable repair.[407] The following discussion therefore focuses on the two remaining, competingpositions of the parties, being the plaintiffs' proposition that a rebuild of Buildings1/152 and 160 is required for Vero to comply with the Policies' standard and Vero'sproposition that remediation in accordance with option A will restore Buildings 1 to awhen new condition.[408] As initially put forward by the plaintiffs' experts, the need for a demolition andrebuild of Buildings 1/152 and 160 was strongly linked to the plaintiffs' propositionsas to the extent of earthquake damage to the buildings. The extent of damage, as Ihave found it to exist, is much less significant than the plaintiffs assert.[409] In focusing on the foundation in particular, the following damage requiresrepair:(a) cracking to pile heads;(b) spalling at the edges of pile heads; and(c) the lateral translation of pile 9 at 152, with spalling of a section ofconcrete cover.[410] The Policies require the repair to be to a when new standard (or if the BuildingAct requirement of 34%NBS is greater, to the Building Act standard). It was commonground between the parties' expert witnesses that the Buildings 1 foundations werenot well designed for lateral load bearing capacity. I have found them to have been(pre-CES) at 38%NBS. It was again common ground between the experts that thefoundation system after the CES probably stood at less than 34%NBS.[411] The foundation is not an aesthetic element. Its function is to support therequirements of Buildings 1. As such, any methodology for the remediation of thedamage under consideration must be focused not on the subsequent appearance of thebelow-ground foundation but on its strength.[412] These considerations were reflected in the evidence of Mr Polson when hestated:Option A is very much a back to when new repair solution. It provides someenhancement in that the perimeter piles are captured around the edge of thebuilding but it doesn't add any strength to the foundation system. It justreturns the strength of the foundation system to what it was in the pre-CEScondition. The difference between option A and option B is that option Bprovides some additional robustness to the foundation system that will allowit to perform to a higher level percent NBS and it will allow the foundationsystem to survive failure of some piles in an extreme seismic event withoutcausing any life safety collapse.[413] Mr Polson proposed that the voids which had formed beneath the slab be filledwith a flowable grout poured by small openings in the slab, with DPC beneath the slabto be reinstated where damaged to make the openings. The focus of Vero's proposalwas on filling the void as such rather than achieving some structural purpose. MrMarriott described the process as a "gap filler". Mr Polson accepted that the grout willnot assist soil friction resistance as the weight of the building will be locked onto thepiles.[414] The plaintiffs' proposition is that friction served a functional purpose when thebuildings were constructed but that that function will not, by the injection of grout, bereinstated. Mr Marr, for instance, opined that before the CES there would have beensome base friction providing resistance to lateral loads. He concluded from theoriginal design that some base friction would have been relied on. But even Mr Marraccepted that base friction should not and cannot be relied on as a means for resistinglateral seismic loads in buildings such as Buildings 1. Furthermore, it was not clearlyestablished on the evidence that the ground below Buildings 1 would not, prior to theCES, have settled below the slab as part of another settlement process. As it was, MrPolson did not rely on base friction to support his calculation in relation to option A.The possibility that some base friction may still have been available immediatelybefore the CES is not a reason for demanding that some base friction be restored. Thetask of the designer of the repairs to the foundation is to restore it to a when newstructural performance. The elements relied upon to achieve that performance do nothave to be identical.[415] That then leaves for consideration what Mr Till referred to as "disadvantagesof adding grout":(a) Damage to the slab by drilling through concrete and reinforcement, anddestroying the monolithic nature of the slab — the evidence does notindicate that the drilling and filling of holes, in a careful manner, wouldnegatively affect the slab. Mr Polson noted that the holes in questionare not large, that the slab is scanned for reinforcement, and thatconcrete is replaced by concrete.(b) The addition of seismic weight — it was suggested to Mr Polson thatthe addition of grout, adding to the weight of the slab foundation, wouldmaterially add to the seismic weight of the building. Mr Polson'sexplanation of the correct position was logical and I accept it — theseismic weight is the weight above the slab, that is the weight that isexcited by the earthquake shaking. To the extent that some seismicweight of slab foundation might be brought into account (as generatinginertia or momentum from earthquake shaking), a much lower seismiccoefficient is required. Mr Polson's sensitivity check indicated that the%NBS values would have a small decrease of approximately 2 per centonly. Mr Polson further noted that as the ground settles beneath thegrout, the weight of the grout may either fall with the ground or stayattached to the foundation and/or piles.(c) Pockets of air — Mr Till questioned Mr Polson as to whether he couldbe sure that a void has been filled by the injected grout, to which MrPolson replied that the applicators use methods to establish if they arefilling the voids (Mr Polson accepted that he is not a specialist in thatarea). There is no evidence to indicate that a professionally completedinjection process would leave significant voids.(d) Reinstatement of DPM — it was suggested to Mr Polson that as groutis injected into any hole, it is likely to be injected above the DPM (uponthe basis of the plaintiffs' evidence as to sagging DPM). Mr Polson didnot accept that there was any actual evidence of sagging DPM. Byreason of the state of the evidence in relation to the DPM, I similarlyfind no basis for concluding that the efficacy of the DPM will beadversely affected in the course of grout injection.[416] I conclude in relation to Vero's proposal to inject grout into voids below thefoundation slab that it is an appropriate remedy for voids at 152.Remedy — Building 1/160[417] Vero's proposed repair designs are substantially the same for 160 as thoseproposed for 152. It is common ground that the nature of the superstructure at 160(pre-cast panels instead of concrete block walls) means that the buildings at 160 arelighter. Mr Polson's calculation, which I accept, is that Building 1/160 has a seismicload of 1,735 kilonewtons as opposed to 2,003 kilonewtons for Building 1/152. As aresult, the %NBS values for Building 1/152 are lower than for Building 1/160.Following a parallel repair, Building 1/160 will have a proportionately higher %NBSvalue.[418] I conclude that, as with Building 1/152, Vero has established that its option Arepair methodology will restore the structural soundness of Building 1/160 to its"when new" condition.The availability of natural servitude at 160 Salisbury StreetThe relevance[419] The following consideration of the doctrine of natural servitude has particularrelevance to Building 4/160. I deal with it here before turning to the plaintiffs' claimsin relation to Buildings 4/152 and 160.The factual context[420] At the time of its development in 2003/2004 (and since), 160 had a groundlevel sloping in a downhill direction away from Salisbury Street towards PeterboroughStreet (to the south). The ground level was maintained on the development of theproperty. The development of 160 incorporated a design for both a primarystormwater system and a secondary stormwater flow path. The secondary flow path(SFP) started in the southeast corner of 160 and extended towards Peterborough Streetto the south. A 2003 site plan (service levels, stormwater) approved by theChristchurch City Council (CCC) for 160 showed a stormwater pipe (following a lineof easement) crossing into 166 Salisbury Street very near the southeast point of 160'sboundary. Marked on the same path as the easement was the notation "secondary flowpath for development". The expected path of the flow onwards to the south was notshown.The legal context[421] At common law, lower land is subject to a natural servitude by which it isobliged to receive surface water which falls naturally from higher land.41 Under NewZealand's land transfer system, there is no necessity for the registration of naturalservitudes affecting land (whether by easement or otherwise).42[422] The extent and limits of the doctrine have been explored in case law but not inall respects definitively. For instance, it is settled that the water in question must flownaturally from the higher to the lower land and must arise from "the natural use of the41 FM Brookfield Laws of New Zealand Water (online ed) at [86]; FM Brookfield "Surface Waters:the Natural Rights of Drainage and Disposal" (1965) 1(3) NZULR 440; and Bailey v Vile [1930]NZLR 829 (SC) and (CA).42 Bailey v Vile (CA), above n 41, at 840.[higher] land".43 It has been recognised that the doctrine is unavailable where anartificial structure causes a concentration of rainwater onto and to the damage of thelower property.44 There is New Zealand and overseas authority that the doctrineapplies to urban and suburban land as it does to rural land,45 whereas there is alsoauthority stating the rule is inapplicable to properties situated in a closely-settled partof the city, not adapted or used for agriculture at all.46 Furthermore, the relationshipbetween planning considerations both under the Resource Management Act 1991 andthrough the requirements of territorial authorities on the one hand and the right ofnatural servitude on the other do not appear to have been fully considered by thecourts.47Position of the territorial authority[423] The CCC Infrastructure Design Standard (IDS) refers to stormwater drainageas consisting of a primary drainage system of pipes and water ways in detention areasand a secondary system consisting of open channels, controlled flood plains, naturalponding areas and flow paths.48 The discussion in the IDS concerning secondary flowpaths states: "Secondary flow paths over private land are the least desirable option andwill require protection by legal easements."49[424] The IDS also refers to having a SFP design which "does not detrimentallyaffect others".5043 Bailey v Vile (CA), above n 41, at 839.44 Spear v Newham (No 2) (1936) 36 GLR 310 (SC) at 313.45 See Dijkmans v Howick Borough [1971] NZLR 400 (SC) at 408; Gibbons v Lenfestey (1915) 84LJPC 158 (PC) at 160; Davis v Lethbridge [1976] 1 NZLR 689 (SC) at 698; and Barron v Louw[2018] NZHC 2275, [2018] NZAR 1668 at n 15.46 Spear v Newham [1926] NZLR 897 (SC) at 901; Spear v Newham (No 2), above n 44, at 313;City of Oakleigh v Brown [1956] VLR 503 (VSC) at 511. See also Henry Philip Farnham TheLaw of Waters and Water Rights (Rochester: The Lawyers' Co-operative Publishing Company,New York, 1904) vol 3 at 2607–2608, cited in Brookfield "Surface Waters: the Natural Rights ofDrainage and Disposal", above n 41, at 462.47 See GW Hinde and others Principles of Real Property Law (2nd ed, LexisNexis, Wellington, 2014)at 128.48 Christchurch City Council Infrastructure Design Standard (2018, December 2018) [IDS].49 Clause 5.6.2.50 Clause 5.6.2.Application of NZBC, cl E1[425] The NZBC, cl E1 Surface Water (NZBC E1) specifies (cl E1.2) that"[b]uildings and sitework shall be constructed in a way that protects people and otherproperty from the adverse effects of surface water". It further provides (cl E1.3.2)that "[s]urface water, resulting from an event having a 2% probability of occurringannually, shall not enter buildings".[426] The evidence establishes that the "secondary flow path for development"(around 1995) marked on the 2003 site plan for 160 was not a viable flow path at thatdate. In particular, there was (and remains) a concrete or wooden nib wall along astretch of the southern end of the 160/166 boundary (on the eastern side of unit 6/160)which would have blocked any overland flow entering 166 from 160.[427] There initially appeared to be a difference in the positions adopted by thewitnesses for the plaintiffs and Vero in relation to an SFP utilising rights of naturalservitude. Mr Weber had initially intended to state in relation to both 152 and 160 thatit is not permissible to drain overland flow paths on to neighbouring properties.Andrew Congalton, a director of EDC, was Vero's civil engineering witness. Hedesigned replacement engineering services for both 152 and 160. He took issue withMr Weber's position, stating by reference to the IDS that such use for SFPs is "not thepreferred option". When he came to give evidence, Mr Weber similarly reframed hisposition to state that "it is not usual to drain overland flow paths onto neighbouringproperties".[428] The factual issue between the witnesses then centred on a conclusion reachedby Mr Cowie from Mr Congalton's design that the right of natural servitude isunavailable to 160 because Mr Congalton's proposal increases flow, volume and run-off, while reducing the time of concentration.The evidence — the path of secondary flow[429] The evidence is that the slope at the rear of 160 (around unit 6) was originallyin two directions, namely to the east (166 Salisbury) and to the south (149Peterborough). When Mr Congalton was pressed in cross-examination upon the basisthat his design for the SFP would concentrate all the stormwater on 160 so as to flowto 149 Peterborough, he stated:So all the works inside our site does [sic] not generate more flow, it does [sic]not generate more volume on the property and it's, the flows still arrive at thatsouthern boundary in the same location and in the same nature that I expect itdid pre-earthquake.[430] The evidence of Mr Hook, a planner at Envivo, was to similar effect, indicatingthat the "natural servitude water" was flowing from 160's southern boundary to 149Peterborough before the earthquakes.[431] The evidence (including of Mr Cowie) was that the properties at 160 Salisburyand 149 Peterborough respectively had through the earthquakes settled consistently orlargely consistently and that the relative ground levels as they exist after the CES arevery similar to and not largely modified from those before the CES.[432] Mr Congalton identified a section on the boundary between 160 Salisbury and149 Peterborough, south of unit 6/160, where surface water would be able to flowfrom 160 to 149 Peterborough at Reduced Level (RL) 14.33 m. The correspondingheight on the northern side of the fence (within 160), once there has been recontouring,will be RL 14.35.[433] Mr Congalton produced a proposed resurfacing plan (revision G) for the civilengineering remedial works at 160. This included his detail for re-contouring in thecorner of 160. By reference to details of crossfall percentages in his revision G, MrCongalton provided for discharge of the secondary overland flow from the rear of 160to 149 Peterborough in the south.[434] Mr Congalton and Mr Hook, as the relevant witnesses for Vero, spoke of "re-contouring" or "re-levelling" the ground behind unit 6/160 in order to provide MrCongalton's required fall to the boundary with 149 Peterborough.[435] The builder of 160, Richard Batt, confirmed that on construction the pavers tothe south behind unit 6/160 would have been contoured away from the building,running downwards so as to meet the fence at a lower level than that which they startedfrom at the house. It is also clear from photographs produced in evidence thatlandscaping material in the form of bark chips and/or other material has been overlaidthe ground to the rear of unit 6. Mr Congalton was able to demonstrate (throughphotography) that a hand could be moved through that material to emerge under thefence line on the 149 Peterborough side of the fence.[436] I am satisfied on this evidence that the contouring proposed by Mr Congaltonin his revision G reflects a restoration of the natural slope of the land itself as itconsistently was before the earthquakes. Put another way, Mr Congalton's "re-contouring" or "re-levelling" does not constitute (in the context of natural servitude)an "unnatural" step. The rear portion of land on 160 before the earthquakes slopednaturally towards 149 Peterborough, and upon Mr Congalton's design, will continueto do so.[437] For the plaintiffs, both the witnesses and Mr Till referred to evidenceestablishing that the southern fence of 160 was in fact constructed outside theboundary of 160 (that is, inside the boundary of 149 Peterborough) leaving a narrowstrip of the land envisaged to be affected by Mr Congalton's "re-contouring" outsidethe legitimate control of the plaintiffs. The suggestion was that it would not be lawfulfor a contractor to give effect to Mr Congalton's proposed re-contouring — they wouldbe doing something on the 149 Peterborough property. I am satisfied on the evidencethat anything removed in the process of such re-contouring will be above-surfacematerial added at the rear of 160 in the process of development or by unit owners.They are equally free to remove it, thereby allowing overflow surface water tocontinue to follow a natural path through to 149 Peterborough.The evidence — the extent of secondary flow[438] Mr Cowie stated that Mr Congalton's proposal would increase flow, volumeand run-off, while reducing the time of concentration. Mr Congalton stated that, forstormwater events which exceed the primary system, his design for secondaryoverland flow will result in less ponding in the rear third of 160, a lower depth offlowing water, and less concentration of flow into 149 Peterborough.[439] Mr Cowie's criticisms of Mr Congalton's design (in his supplementaryevidence) were four-fold:(a) It significantly increases surface water around units 5 and 6 in rainevents.(b) It eliminates a sump which unit 5 had, removing some surface waterdrainage ability.(c) It proposes flat crossfalls and grades (as flat as 0.2 per cent on thesouthwest corner of unit 4 and 0.3 per cent for a large part of thenortheast sides of Buildings 4).(d) It will, through the inability to lay paving at such a flat grade as 0.3 percent without ponding occurring, cause ponding all around Buildings 4.[440] Mr Congalton was cross-examined as to the levels of natural overland flowfrom 160 before the present buildings were developed (before 2002) and since thatdevelopment. His calculations indicated that the flow generated on-site increasedfrom about 10 litres per second to 17 litres per second following development. But hestated that with the primary system picking up the flows generated from the drivewayand roof areas, by rights the flow post-development across the boundary should beequal to or less than previously.[441] While Mr Congalton had been unable to physically identify a sump in the unit5 front courtyard (as referred to in Mr Cowie's evidence), his "revision G" in any eventsituates a new sump centrally in that courtyard (as well as in the other two) as part ofa new primary system.[442] Mr Congalton explained that under his revision G the SFP in front of units 4,5 and 6/160 would be provided for by elevating planter boxes that appeared to havebeen constructed post-development. When cross-examined as to problems whichwould arise if the gaps underneath are blocked, Mr Congalton observed that eachdownhill property (by reason of natural servitude) is not allowed to block flow fromthe uphill property, observing that "you have to allow water from the property aboveto flow under when the primary system is not coping".[443] No evidence was given of any damage suffered on 149 Peterborough as a resultof flow from 160 Salisbury. Mr Congalton was cross-examined as to diagramsproduced by Mr Cowie of an area at the rear of 149 Peterborough where a drivewaycomes up to the remaining concrete slab of what used to be a garage. Mr Cowie'sdiagrams indicate that a ponding of 25 mm may occur after which the water couldflow onto the slab. It was suggested to Mr Congalton that if the garage is rebuilt (onthat slab) there will be nothing to stop the flow entering the garage. Mr Congaltonresponded that: "If they can make it flow around that building I don't think there wouldbe an issue." As it is, there is at present no building on that spot.[444] In short, Vero's case relating to any flow from 160 is that, first, there is noevidence that it has caused damage and, secondly, the surface water which may flowfrom 160 on to 147 Peterborough can do so without entering existing buildings.Conclusion — natural servitude[445] I am satisfied that 160 enjoys a right of natural servitude by which 149Peterborough Street is obliged to receive surface water which flows naturally from160. I am satisfied that that right will remain effective in the event that Mr Congalton'srevision G plan is adopted, including in relation to secondary overland flow. Theposition in relation to flow, as applying between 160 and 149 Peterborough, appliesequally as between units 4, 5 and 6 on 160.[446] As a matter of law, the owner of land with a right of natural servitude is notrequired to obtain a legal easement in order to protect and utilise its right. Thediscussion in the IDS which might appear to suggest otherwise must be read subjectto the right of natural servitude.[447] The evidence does not establish that any necessary consents in relation to MrCongalton's revision G would properly be refused on the basis of Mr Congalton'sidentified SFP.Buildings 4/152 and 160Description of Buildings 4[448] Buildings 4 at both 152 and 160 (each housing units 4, 5 and 6) are situated atthe southern end of the properties, furthest from Salisbury Street.[449] Their construction is described at [14]–[17] above. Buildings 4 are of identicallayout and (with the exception of their construction in concrete block (152) andconcrete tilt slab (160)) are similar in form.[450] There are significant structural differences between Buildings 1 and 4 on eachproperty. The piled foundations of Buildings 1, which effectively held Buildings 1 upduring the CES, were not replicated in Buildings 4. Buildings 4, each with compactedhardfill and six concrete post-holes on the west and east sides, were able to settle intothe ground in the CES. In Buildings 4, there is no unit spanning an archway as inBuildings 1 — all three units in Buildings 4 (units 4, 5 and 6) have ground floors atfoundation level.Plaintiff's pleading in relation to Building 4/152 foundation and slab[451] The 152 plaintiff particularises damage to the Building 4/152 foundation andslab as:(a) significant cracking to the top of the slab;(b) floor slopes greater than 1 in 200 across 26% of the floor;(c) localised settlement (overall building subsidence relative tosurrounding ground) of 50 mm;(d) differential settlement over the whole building foundation of 32 mm;(e) global settlement of 200 mm;(f) SFPs disrupted. The SFP approved by CCC through neighbouring siteswas based on original "when new" levels of the ground and buildings.The units have settled, and sunk into the ground (as well asdifferentially settled) causing units 4, 5 and 6 to be lower than the SFP.As a result the surface water is being directed towards the building,rather than away from the building, causing inundation into units 4, 5and 6;(g) slab tapping identifying significant areas of voids under the slab;(h) non-compliant slab to ground clearances. Due to the differential andlocal settlement of units 4, 5 and 6, the slab to ground heights havereduced. Surface water is directed towards the units, and the minimumrequired slab to ground clearances have been reduced due to theearthquake damage (settlement) to the units; and(i) building settlement (differential and local) has caused increased risk ofinundation due to reduced slab to ground levels and reduction/removalof functionality of the SFP.[452] As with the pleadings in relation to the garage slabs, the pleading as to Building4 slabs may be contrasted with the pleadings in relation to the Building 1 slabs, whichcommence with an allegation of "complete foundation failure".Plaintiff's pleading in relation to building 4/160 foundation and slab[453] The 160 plaintiff particularises damage to the Building 4/160 foundation andslab as:(a) complete foundation failure;(b) significant cracking to the top of the slab;(c) floor slopes greater than 1 in 200;(d) localised settlement (overall building subsidence relative tosurrounding ground);(e) differential settlement over the whole building;(f) SFPs disrupted. The SFP approved by CCC through neighbouring siteswas based on original "when new" levels of the ground and buildings.The units have settled, and sunk into the ground (as well asdifferentially settled) causing units 4, 5 and 6 to be lower than the SFP.As a result the surface water is being directed towards the building,rather than away from the building, causing inundation into units 4, 5and 6;(g) slab tapping identifying significant areas of voids under the slab;(h) non-compliant slab to ground clearances. Due to the differential andlocal settlement of units 4, 5 and 6, the slab to ground heights havereduced. Surface water is directed towards the units, and the minimumrequired slab to ground clearances have been reduced due to theearthquake damage (settlement) to the units; and(i) building settlement (differential and local) has caused increased risk ofinundation due to reduced slab to ground levels and reduction/removalof functionality of the SFP.[454] This pleading differs significantly from that of the pleading in relation toBuilding 4/152 in that the 160 plaintiff alleges complete foundation failure (beyondwhat are otherwise similar particulars of damage).[455] Both the 152 and 160 plaintiffs pleaded that a complete demolition and rebuildof Building 4 on each property was required, involving a rebuild at a higher point thanat present (180 mm for 152 and 730 mm for 160).Vero's pleading[456] By its general pleading in relation to all alleged damage to Buildings 4/152 and160, Vero admitted that the buildings had suffered cracking to the ground floor slabsup to 1 mm but typically less than 0.5 mm. Vero admitted cracking of block walls upto 0.5 mm (but typically less with many only 0.1 mm). It admitted minor crackingthrough the mortar courses and minor cracking to internal plasterboard linings.[457] Vero denied that demolition and rebuilding of Buildings 4 is required andasserted (in relation to the height of buildings) that contouring of ground levels isrequired.[458] Vero otherwise denied the pleadings of damage to Buildings 4.Overview of the respective cases[459] The plaintiffs' case is that demolition and rebuilding is required by reason ofthe effect of settlement of the foundations of both Buildings 4/152 and 160 which"propagated up through the building and compromised the superstructure".Additionally, the 160 plaintiff pleaded that Building 4/160 suffered a "completefoundation failure". Additionally, and alternatively, the plaintiffs say that bothBuildings 4/152 and 160 require replacement because their localised settlementincreased the risk of flood inundation, requiring a rebuilding at a higher level.[460] Consistently with the development of the plaintiffs' case, Mr Till in his closingsubmissions addressed foundation damage specifically in relation to Buildings 1,where the focus of much of the plaintiffs' structural and geotechnical engineeringevidence had been. Mr Till's other closing submissions in relation to all buildings (1,2, 3 and 4) were made under the heading of "remaining structural damage" specificallyaddressing superstructure and voids, followed by submissions (again in relation to allbuildings) on damage in respect of civil engineering works.Building 4/160 — "complete foundation failure"?[461] As I have noted, only the 160 plaintiff pleaded a "complete foundation failure"of Building 4.[462] No finding is therefore required as to the possibility of a foundation failure inBuilding 4/152. I record that had there been such a pleading I would have found thatthe evidence did not establish a failure of the foundation of Building 4/152 (completeor otherwise). This is for the same reasons as apply in my discussion (below) of thefoundation of Building 4/160.[463] I turn then to the foundation of Building 4/160.[464] As in relation to the foundations of Buildings 1 (above at [237]), the 160plaintiff's allegations of "complete foundation failure" were not an expression directlyadopted by the plaintiffs' witnesses. Mr Weber spoke at points of his evidence of a"level of foundation failure" but assessment of his evidence is complicated by hisinterchangeable use of the terms "failure" and "damage" (as discussed at [61]–[63]above). It is necessary to examine each of the areas of damage asserted by theplaintiffs' witnesses.Buildings 4/152 and 160 — voids[465] The plaintiffs' witnesses concluded that there will be voids under the slabs ofboth Buildings 4. Their reasoning is demonstrated in the following passage in MrWeber's evidence:In addition to the visual inspection, the slabs were hammer tapped to detectunder slab voids. This testing clearly picked up areas of hollow sounding slabindicating significant areas of voiding. As well as hammer testing, thepresence of voids is known because of the level of ground movement acrossthe site. You can visually see the voids under the slab of Building 1, and theland deformation is all across the site, meaning there will be voids under theslab of Building 4.[466] Mr Weber's reliance on the (viewed) existence of voids below Buildings 1 toindicate that there will be voids below Building 4 is unreliable. The evidence(including by visual inspection) establishes that the CES caused the ground belowBuildings 1 to settle more than the buildings settled. In the case of Buildings 1,significant voids then resulted when the piles acted to suspend the building above thenew ground level. The same situation does not exist at Buildings 2, 3 or 4.[467] The reliance of Mr Weber and Mr Cowie upon hammer tapping to establish theextent of voiding is not justified for the reasons explored at [132]–[136] above.[468] Vero had GPR scans conducted of the foundations of Buildings 4/152 and 160as for other buildings. As explained by Mr Polson, those scans indicated that voidsunder Buildings 4 appear to exist in small pockets and are not widespread. Mr Polsonnoted the distinct difference between Buildings 1 and 4. Buildings 4 are directlysupported on the ground and could be expected to settle with the ground. I accept MrPolson's observation that comparing the performance of Buildings 4 to that ofBuildings 1 is in this respect "comparing apples with oranges".[469] Mr Weber nevertheless concluded, with substantial reliance on what he viewedas evidence of voiding, that elemental foundation members had been structurallydamaged, as in this passage:It can be seen that elemental foundation members have been structurallydamaged due to the excessive movements they have been subjected to.Disturbed, uneven and/or inadequate foundation bearing capacity willcurrently exist and it is possible that the Building will continue to subside overtime due to the disturbed nature of the bearing ground. Very large voids arevisible under Building 1. For Buildings 2, 3 and 4, voids exist under thebuilding and their foundations.[470] As the plaintiffs have not established the premise of substantial voiding belowBuildings 4, they have similarly not established the conclusion that uneven orinadequate foundation bearing capacity has affected or will continue to affect thefoundation. The probability is that both Buildings 4 sank with the ground as theground settled through the effects of liquefaction.Building 4/152 — slab-cracking[471] Mr Cowie presented crack maps of the ground floors of units 4, 5 and 6(Building 4/152) showing what he stated to be "significant" cracking, typical ofdamage caused by seismic events and indicating "both vertical and lateral movementalong with deformation of the concrete slab foundation".[472] Mr Weber referred in May 2017 to Mr Cowie's crack maps of the ground floorand his own involvement in an inspection. He also referred to the cracks as"significant" and concluded that they were not pre-existing or "shrinkage" cracking.He observed cracks to run through plaster patches, indicating that they had occurredas a result of earthquake damage and not at the time of construction.[473] Nicholas Saunders, the owner of unit 5 in Building 4/152, gave evidence as todamage in his unit. He produced a photo of cracked tiles in the laundry (where therehad been none before the earthquakes). His evidence clearly establishes damagecaused by the earthquakes to the tiles and is supportive of the conclusion that therewill have been broadly corresponding cracking damage to the slab beneath.[474] Vero's case in relation to cracking is that there is minor cracking that may notbe CES-related, with cracking up to 1 mm wide but with most cracks less than 0.3 mmand many less than 0.1 mm. Cracks greater than 0.3 mm may be properly repaired byepoxy injection. Mr Polson spoke to these measurements based on crack map plansproduced (following the May 2017 inspection with Mr Weber) by a colleague fromEDC and also based on diagrams and photographs produced by Mr Cowie. Mr Polsonstated that he had not been able to determine if the slab cracks had been caused byearthquake shaking or slab shrinkage, accepting that it was possible that slab cracksformed because of slab shrinkage may have opened further by earthquake shaking.[475] As with the cracking (of up to 1 mm width) observed in Buildings 1 (above at[310]–[315]), the evidence does not establish that the observed cracking is reflectiveof a level of foundation failure. The 152 plaintiff (with the exception of evidence suchas that of Mr Saunders in relation to tile damage) has also not established to whatextent such cracking as exists was caused by the CES. The evidence to establish anearthquake-induced mechanism is not as strong as in relation to Buildings 1, wherethere is a relationship between areas of cracking and the location of the pile heads.That said, Mr Polson's evidence (accepting the possibility that uniformly across thesites the CES may have at the least widened cracks) supports the probability that theCES did cause some damage to the Building 4 slab. So too does the evidence of MrSaunders in relation to the tiles in unit 5. The Vero repair scope for slab-cracking(discussed above at [187]–[193] in relation to Buildings 2 and 3/152) will in any eventdeal satisfactorily with all cracks for the same reasons as there stated.Building 4/160 — slab cracking[476] The evidence in relation to the slab-cracking in Building 4/160 is materiallythe same as in relation to Building 4/152. The floor slabs there able to be inspected(units 4 and 6), while showing some cracking up to 1.2 mm wide (0.2 mm beyond thatin Building 4/152), involved similar levels and extent of cracking.[477] The conclusions in relation to the slab-cracking of Building 4/152 applyequally to that in Building 4/160.Building 4/152 — dislevelment[478] The 152 plaintiff pleaded that floor slopes in Building 4/152 are now greaterthan 1 in 200 across 26 per cent of the floors, with differential settlement over thewhole foundation of 32 mm.[479] The parties agree that the ground under Building 4/152 has sunk.[480] Mr Cowie took measurements at Building 4/152 and assessed figures forsettlement as set out in Table C.Table C (Building 4/152)Global settlement Local settlement Differential settlement Total settlement210 mm 62 mm 32 mm 304 mm[481] Mr Cowie measured the total 304 mm settlement by reference to theChristchurch City Datum.[482] Mr Cowie stated that the trend of the differential settlement was from a highestobserved floor level on the west side of Building 4 (unit 4) to a lowest observed floorlevel on the east side of the Building 4 (unit 6) with a tongue of the highest observedfloor level runners through to the middle of Building (in unit 5).[483] Mr Cowie also presented maps of the floors of Building 4/152 showing gradessteeper than:(a) on the ground floor:(i) 1 in 200 (27 per cent);(ii) 1 in 150 (6 per cent); and(iii) 1 in 100 (3 per cent);(b) on the first floor:(i) 1 in 200 (27 per cent);(ii) 1 in 150 (12 per cent); and(iii) 1 in 100 (3 per cent); and(c) on the second floor:(i) 1 in 200 (18 per cent);(ii) 1 in 160 (9 per cent); and(iii) 1 in 100 (4 per cent).[484] Mr Cowie concluded that the trend of the upper floor levels reflected the samedistorting trend of the ground floor. He described the dislevelment of the ground floorslab as neither planar nor uniform, showing deformation and distortion in an irregularmanner.[485] Mr Weber, drawing on Mr Cowie's measurements, also identified thedifferential settlement on the ground floor as 32 mm. Referring to Mr Cowie's maps,Mr Weber described the foundation settlements as "complex and non-linear".[486] Vero's case, in relation to settlement and dislevelment, as outlined in MsMeechan's opening, recognised that there had been settlement of Building 4/152 andin particular:(a) global settlement of 245 mm to 285 mm (being land damage notcovered by the Policies);(b) localised settlement (the building sinking within its own footprint) ofbetween 15 mm and 62 mm; and(c) differential settlement in the west-east direction of 31 mm over 15 m,within the tolerance for newly-constructed floor slabs and involving nomore than a minimal tilt, increasing lateral load less than 0.5 per centof current design load.[487] Vero's case in relation to the floor slopes themselves is that all slopes of 1 in200 are over distances of less than 2 m and are not indicative of settlement, withremaining variations across floor levels within each unit being within as-constructedtolerances, and not constituting a loss of amenity.[488] Mr Thomson gave the surveying evidence for Vero in relation to Building4/152. He noted as "straightforward" Mr Cowie's determination of 32 mm differentialsettlement (using the highest and lowest ground floor level (15.303 – 15.271 = 0.032)).Mr Thomson took issue with Mr Cowie's calculation of 62 mm local settlement, basedon a global settlement value (210 mm) subtracted from the floor level differencebetween design and highest post-CES floor level (272 mm).[489] Mr Thomson assessed figures for global and local settlement of units withinBuilding 4/152 as set out in Table D.Table D (Building 4/152)Unit No Global settlement Local settlement4 245 mm 17–34 mm5 245 mm 17–37 mm6 285 mm -9–8 mm[490] Mr Thomson's assessments, as for other buildings, treated what Mr Cowierefers to as "differential" settlement of the floor slab as the manifestation of variableglobal and/or local settlement.[491] The 152 plaintiff has established that there has probably occurred underBuilding 4/152 what may appropriately be referred to as a differential settlement atground floor level of about 32 mm. In reaching that conclusion it is immaterialwhether the settlement is described as "differential" (as Mr Cowie prefers) or as amanifestation of variable global and/or local settlement (as Mr Thomson prefers).What is clearly established is that there has been a dislevelment induced by the CES.[492] That said, the extent of dislevelment which has occurred (31 or 32 mm over adistance of 15 m) has not been demonstrated on the 152 plaintiff's evidence to beindicative of a foundation failure.[493] Mr Saunders, who gave detailed and careful evidence as to the condition ofunit 5 and other buildings at 152, did not refer to any impression or assessment ofdislevelment of floor levels within his unit after the CES. Had he noticed a loss ofamenity in that regard, it could be expected to have been included in his evidence. Incross-examination Mr Saunders was questioned about an engineering report whichspoke of settlement which had an impact on the opening and closing of doors. MrSaunders stated that to the best of his knowledge he had not had an issue with that. Hespoke of settlement causing water to run back towards his building but that was clearlya reference to ground levels outside the building.[494] I have considered Mr Saunders' evidence (in relation to Building 4/152)alongside that of Ms Hastings, one of the owners of unit 5/160 (discussed below at[503]–[504]). As well as referring to dislevelment of the ground outside her building,Ms Hastings identified an awareness of dislevelment in the floor in her kitchen andliving areas and the sticking of doors in the upper levels. The noticed impact onamenity in the levels in Building 4/160 therefore differs from the evidence in relationto Building 4/152.Building 4/160 — dislevelment[495] In relation to Building 4/160 (as in relation to Building 4/152), the parties agreethat the ground under the building has sunk. The 160 plaintiff pleaded that the buildingnow has floor slopes greater than 1 in 200.[496] Mr Cowie took measurements at Building 4/160 and assessed figures forsettlement as set out in Table E.Table E (Building 4/160)Global settlement Local settlement Differential settlement Total settlement183 mm 191 mm 41 mm 415 mm[497] Mr Cowie measured the total 415 mm by reference to the Christchurch CityDatum.[498] Mr Cowie stated that the trend of the differential settlement was from a highestobserved floor level at the northwest corner of the building (unit 4) to a lowestobserved floor level at the southeast corner (unit 6) (sloping similarly to Building4/152).[499] Mr Cowie also presented maps of the floors of Building 4/160 showing gradessteeper than:(a) on the ground floor:(i) 1 in 200 (29 per cent);(ii) 1 in 150 (8 per cent); and(iii) 1 in 100 (1 per cent);(b) on the first floor:(i) 1 in 200 (53 per cent);(ii) 1 in 150 (29 per cent); and(iii) 1 in 100 (17 per cent); and(c) on the second floor:(i) 1 in 200 (40 per cent);(ii) 1 in 160 (17 per cent); and(iii) 1 in 100 (10 per cent).[500] As with Building 4/152, Mr Cowie described the dislevelment of the groundfloor slab as neither planar nor uniform. Mr Cowie referred to the floors in units 4, 5and 6 being higher around the central part of the slab and lower around the north, southand east walls. He referred to the foundation as having "tilted and hogged" (the latterexpression being a reference to a concave effect). Mr Cowie described the upper floorlevels as indicating dishing or sagging of the suspended floor in each of the units.[501] Mr Weber, drawing on Mr Cowie's measurements, also identifiedthe differential settlement on the ground floor as 41 mm. As with Building 4/152,Mr Weber described the foundation settlements as "complex and non-linear", but with,in general, the building tilting to the east.[502] Mr Cowie and Mr Thomson each provided detailed explanations of theirsurvey differences. The fact that each, with their significant experience, reached whatappeared to be markedly different measurements of settlement flows from gaps in thehistorical record. The lack of as-built information, including for constructed finishedfloor level (FFL), is one such matter of significance. A related matter of significanceis whether the buildings as built achieved the designed clearance between FFL andfinished ground level (FGL).[503] Ms Hastings, with her husband the owner of unit 5 at 160 from 2004 to thepresent, gave evidence as to her experience in the February 2011 earthquake (referredto at [25] above) and as to the damage she has since observed. She referred to (as thefirst thing which she noticed) the slope which now exists down to the front door of theunit in the front courtyard. In relation to the inside of unit 5/160, she stated:In the kitchen and living area, the floor is no longer level. This is particularlyevident when we use the stove top for cooking. Oil in a pan runs toward theeastern wall. We have had to adjust hinges to make cabinets fit.[504] In cross-examination of Ms Hastings, Ms Meechan noted evidence as to therebeing a 4 mm dislevelment under the kitchen bench. When Ms Meechan suggested toMs Hastings that that would be a relatively easy matter to fix, Ms Hastings respondedthat she did not know.[505] As in relation to Building 4/152, Mr Thomson gave the surveying evidence forVero in relation to Building 4/160. Mr Thomson, referring to the Envivo report whichhe had supervised, calculated the greatest difference at ground floor level between thehighest and lowest points in Building 4/160 as 40 mm. He found, across the footprint,the differences of settlement calculations as between himself and Mr Cowie to bewithin survey accuracy.[506] Mr Thomson noted as "straightforward" Mr Cowie's determination of a 41 mmdifferential settlement (using his highest and lowest ground floor level — 14.576 –14.535 = 0.041). Mr Thomson took issue with Mr Cowie's calculation of 191 mmlocal settlement, based on a global settlement of 183 mm subtracted from the floorlevel difference between design and highest post-CES floor level (374 mm).[507] Mr Thomson assessed figures for global and local settlement of units withinBuilding 4/160 as set out in Table F.Table F (Building 4/160)Unit No Global settlement Local settlement4 267–317 mm 46–116 mm5 290–295 mm 69–89 mm6 289–360 mm 28–114 mm[508] As with his evidence in relation to Building 4/152, Mr Thomson's assessmentstreated what Mr Cowie refers to as "differential settlement" of the floor slab as themanifestation of variable global and/or local settlement.[509] Mr Polson analysed Mr Cowie's measurements of floor variation and slopes,which he presented in a table — see Table G.Table G (floor variation and slope summary for Building 4/160)Unit 4 Unit 5 Unit 6 Total2nd floor 21 mm 21 mm 21 mm 48 mm1st floor 34 mm 22 mm 14 mm 47 mmGround floor 20 mm 15 mm 15 mm 40 mm[510] Mr Polson noted the limited floor level variation in each individual unit. Theground floor level variation is therefore 20 mm or less, with slopes of less than 0.5 percent when calculated between points over 2 m apart. These are within buildingtolerances.[511] Mr Polson accepted that there may have been a minor change to floor levelslope due to the CES but stated that the floor level variation and slope do not representa loss in functionality, performance or amenity of the foundation system.[512] The evidence as to the levels of the ground and upper floors of Building 4/160after the CES does not establish earthquake-caused damage to the functionality orperformance of the ground floor slab or foundation system. What is established isdamage in the form of dislevelment which is, as demonstrated by the evidence of MsHastings, noticeable in at least parts of the building. Given the consistency within theevidence as to the degree and trend of dislevelment, the 160 plaintiff is entitled to haveincluded within the repair scope such work as will restore an even level at each floor.Packing of particular furniture or fittings would not constitute a satisfactory repairgiven the overall dislevelment.Building 4/152 — superstructure[513] By its pleading, the 152 plaintiff asserted that the Building 4/152 superstructurehad suffered a loss of verticality, with leans which indicate general racking towardsthe east in excess of the floor tilt towards the east. The 152 plaintiff asserted alsosignificant step cracking in structural concrete block walls, cracking at diaphragmlevels and loss of structural strength capacity. Additionally, it pleaded a loss ofverticality of internal linings and drumminess in plasterboard and popping fromfixings. It was further asserted that floor slopes are now greater than 1 in 200 and thatthere had been overall superstructure deformations to roofing and roof framing.[514] These pleadings were in large part identical to the 152 plaintiff's pleading inrelation to the superstructure of Building 1/152 (above at [232(a)]), although thepleading in relation to Building 1 of "large lateral movement" and "deformation of thestructure" was not asserted in relation to Building 4.[515] The 152 plaintiff's primary evidence in relation to these assertions of damagewas again that of Mr Cowie and Mr Weber respectively. The evidence in relation toBuilding 4 was on parallel lines and analysis to that given in relation to Building 1,which I have considered above from [324].[516] The step cracking observed in the walls of Building 4/152 (remembering —see [359(a)] above — that Mr Cowie had viewed the cracking on the northern blockwalls of Building 1/152 as some of the most extensive cracking he had observed inmodern reinforced concrete block construction) as represented in picture and diagramin the evidence is significantly less extensive than that at Building 1/152. Thisobservation applies to both step cracking and cracking at diaphragm levels. As withBuilding 1/152, and for the same reasons as set out at [376] above, I find Mr Polson'sinspection and conclusions as to the extent of cracking in Building 4/152 walls to bethe most detailed and most reliable.[517] Similarly, in relation to the evidence of Messrs Cowie and Weber as to wallverticalities, their conclusions in relation to Building 4 suffer from the same limitationsas those in relation to Building 1 (described at [332]–[349] above). Unreliableextrapolations are made from internal measurements to external measurements and,where building tolerances are exceeded, they are barely excessive.[518] Similarly, the 152 plaintiff's evidence as to roofs — that a geometric distortionto the roofs mirrored a geometric distortion for the superstructure as a whole — lackedany evidential foundation, Mr Weber (at [380]–[381] above) confirming that there hadnot been an inspection of the roofs. The single item of photographic evidence —which I found (at [383] above) to be of no value — was in relation to a unit in Building1/152 and not to any other building.[519] Given the state of the 152 plaintiff's evidence in relation to the particularisedaspects of damage — in each regard falling substantially short of indicating a structuralfailure — the holistic assessment advanced by the plaintiffs' experts in relation to thebuildings generally takes the 152 plaintiff's case no further in relation to Building4/152 in particular.[520] The 152 plaintiff has failed to establish that the superstructure of Building4/152 suffered geometric distortion as alleged let alone that by reason of any suchdistortion the building requires demolition and rebuilding.Building 4/160 — superstructure[521] The 160 plaintiff pleads that the Building 4/160 superstructure had suffered aloss of verticality and other damage, described in similar but not identical terms to thepleading in relation to Building 4/152 (above at [513]). The only difference betweenthe pleadings flows from the fact that Building 4/160 was constructed in pre-castpanels rather than in concrete block, as used at 152.[522] As with the pleading for Building 4/152, the pleading in relation to Building4/160 differs from that in relation to Building 1/160 in that it omits any reference to"large lateral movement" or "deformation of the structure".[523] The 160 plaintiff again relied on Mr Cowie's evidence, including photographsand crack maps, in relation to Building 4/160. As with the situation at 152, Mr Cowie'sevidence described significantly less cracking in Building 4/160 than he found to existin Building 1/160. Mr Cowie specifically referred to the difference, opining that itcould be explained because the pile foundations under Building 1 would have sufferedmore severe oscillation and therefore cracking than for Building 4 which wasconstructed on shallow-type foundations.[524] As with Building 1/160 and for the same reasons, I find Mr Polson's inspectionand conclusions as to the extent of cracking in Building 4/160 walls to be the mostdetailed and the most reliable.[525] Mr Polson referred to one crack in particular in the pre-cast wall in unit 4/160investigated in his December 2018 inspection. He found one crack, a diagonal crackwith a width of up to approximately 0.3 mm, which extended out from the corner ofthe door opening, and which was also evident externally. While there will be otherareas of cracking in Building 4 (where internal plasterboard was not removed to enableinternal inspection), the inspected evidence is not indicative of extensive cracking tothe structural walls.[526] My conclusion is the same as in relation to the wall verticalities, where I findthe plaintiffs' evidence to involve as with other buildings unreliable extrapolationsmade from internal measurements.[527] My conclusion in relation to the roofs is also as for other buildings. There isno evidence to support a conclusion that they had suffered any material damage,whether as a "geometric distortion" or otherwise.[528] As with Building 1/160, the 160 plaintiff's evidence falls well short ofindicating a structural failure in relation to any of the particularised aspects of damage,to such an extent that an holistic assessment as advanced by the plaintiffs' experts takesthe 160 plaintiff's case no further in relation to Building 4/160.[529] The 160 plaintiff has failed to establish that the superstructure of Building4/160 suffered damage as a result of geometric distortion as alleged, let alone that byreason of such distortion the building requires demolition and rebuilding.Building 4/152 — settlement[530] I have considered (above from [495]) the 152 plaintiff's allegation as todislevelment and differential settlement of Building 4/152. This discussion now hasits principal focus on settlement as a whole.[531] The 152 plaintiff pleaded that Building 4/152 had suffered settlement as set outin Table H.Table H (Building 4/160)Global settlement Local settlement Differential settlement200 mm 50 mm 32 mm[532] In his evidence at trial, Mr Cowie had revised those calculations, to arrive atsettlement figures for Building 4/152 as set out in Table C (above at [480]), which Ihere reproduce for convenience:Table C (Building 4/152)Global settlement Local settlement Differential settlement Total settlement210 mm 62 mm 32 mm 304 mm[533] The 152 plaintiff's figures of global, local and differential settlements arepleaded as stand-alone heads of damage.[534] As explained by Mr Cowie in his evidence, Building 4/152 sank 62 mm intothe ground (at the same time as tilting by up to 32 mm). Mr Cowie described therenow being an increased risk of inundation due to slab-to-ground heights being reducedand the structure effectively sitting in a bowl with surface water now being directedtoward the building rather than away from the building. Mr Cowie stated that thestructure needs to be globally lifted in height and relevelled. He stated that arelevelling in situ at its current height would not restore full functionality or durabilityto the structure. He prepared a design indicating that the structure needs to be globallylifted by up to 209 mm in height to meet current minimum FFL.[535] Consistently with this evidence, Mr Till described the impact of the settlementfor Building 4/152 in this way: "Localised settlement of this building also hasconsequences for secondary flow paths, including an increased risk of floodinundation."[536] Vero, by its pleading, focused particularly on the 152 plaintiff's pleading oflocal settlement of 50 mm. Vero denied that particular and asserted that there had beenlocalised settlements (the building sinking within its own footprint) of between 15 mmand 60 mm. Vero generally denied the 152 plaintiff's other particulars of settlementdamage save to admit that there had been a minor increase in ponding around Building4/152 due to localised settlement. In relation to the 152 plaintiff's particular of 200mm global settlement, Vero asserted that there had been global settlement of 245–285mm, pleading that such is land damage which has been compensated by EQC and isnot covered by the Policies.[537] The 152 plaintiff did not file a reply to that affirmative defence. Its case hasbeen presented upon the basis that any relevant damage is due to local and/ordifferential settlement (not global settlement). Consistently with that, and adoptingMr Cowie's revised figures, Mr Till submitted in closing that the relevant figures forBuilding 4/152 are 62 mm local settlement and 32 mm differential settlement.[538] In his evidence at trial, Mr Thomson provided his more detailed figures ofglobal settlement and local settlement for units 4, 5 and 6 (set out in Table D above, at[489]). Mr Thomson considered the total range of those (Table D) values supports anassessment he had made by reference to physical indicators of settlement that thereoccurred on the northern side of Building 4/152 a local settlement in the order of 35mm. Vero's civil engineering witness, Mr Congalton, assessed "some slight localisedsettlement" of less than 40 mm at Building 4, based on ground levels provided by MrCowie.[539] To determine whether the localised settlement of Building 4, as pleaded orproved by the 152 plaintiff, has caused damage in terms of increased risk ofinundation, it is necessary to review the evidence as to the pre-earthquake and post-earthquake levels.[540] It is common ground between the parties that Building 4/152 suffered damagecovered by the Policies through the fact that there is now less clearance between thefloor level of the units in Building 4 and the ground level than existed between theFFL and FGL.[541] It was also common ground between the parties' expert witnesses that theclearances required to deal with stormwater and moisture are governed, in terms of theNZBC, by two documents in particular:(a) NZBC E1 — governing levels of service for nuisance flooding in the10 per cent AEP and inundation of living areas in the 2 per cent AEP;and(b) NZBC E2 — governing ground to floor clearances.[542] In relation to external moisture, NZBC E1/AS1 provides that a 100 mmclearance between ground and floor level will constitute an acceptable solution for thepurposes of Code Compliance. And, similarly, E2/AS1 stipulates 150 mm as anacceptable solution for clearance between FFL and the highest point on the boundary.[543] It was common ground between Mr Congalton and Andrew Tisch, a civilengineer who gave evidence for the plaintiffs, that although greater clearancesbetween FFL and FGL were provided in the designs for 152 and 160 (150 mm and 225mm respectively) the clearances in fact constructed were only in the order of 100 mmfor each Building 4.[544] Mr Tisch and Mr Congalton had not conferred or provided a joint report beforethe trial commenced. At my direction they undertook a conferral and reported theirconclusions to the Court in June 2019. There was a large measure of agreementbetween those two witnesses on the clearances in fact provided upon the constructionof Buildings 4/152 and 160 and the amounts by which clearances needed to beincreased both at the threshold of the building and at the boundary if the acceptablesolution under E1/AS1 was to be achieved.[545] Mr Thomson, who undertook measurements of Building 4/152, found thatunits 5 and 6 have maintained a threshold clearance of 103 mm or more, while unit 4had northern, western and southern threshold clearances of 81 mm, 96 mm and 94 mmrespectively. Mr Cowie in cross-examination indicated that he had not done thecalculations of those clearances as what he was determining specifically was whetherthere was damage through a reduction in slab to paver height. He accepted themeasurements of Mr Thomson. It was common ground that an acceptable solution forthe FFL/FGL clearance under the NZBC (in relation to E2/AS1) is achievable if the(maximum) 19 mm shortfall in clearance is addressed.[546] It is at this point that the difference between the competing positions of theplaintiffs and Vero in relation to the remediation requirements for Buildings 4 becomesmost marked. Vero's position, in reliance upon Mr Congalton's design for civilengineering services, is that pre-earthquake clearances can be re-established andredesigned civil engineering will resolve all damage to the affected services. The 152plaintiff (as does the 160 plaintiff) says that Buildings 4 has to be lifted to restore pre-earthquake clearances and to ensure correct working of the stormwater system. Inshort, the 152 plaintiff's case is that even if Building 4/152 does not require demolitionand rebuilding by reason of structural damage, it needs to be demolished and rebuiltby reason of its lack of ground clearance and the new level of the ground at 152because the nature of the building precludes the lifting up of the building.[547] The achievable solutions in relation to Buildings 4 are integrally tied up withthe more general civil engineering solutions for the properties as a whole.[548] Mr Congalton's design to remediate the diminished clearance aroundBuildings 4 involves the recontouring of the ground level, that is by removal ofmaterial including existing paving or other materials, and reforming so as to becomepart of the civil engineering design referred to in the following paragraphs. At thesame time, a downward slope to the southern boundary will be created, animprovement on the flat or almost-flat back area which both Mr Congalton and MrTisch recognised had previously existed.Buildings 4/152 and 160 — localised settlement[549] The extent of local settlement, particularly at the rear of the properties, featuredsignificantly in Mr Cowie's calculations and evidence. There was a focus in MrCowie's evidence on a detailed establishing of pre-CES and post-CES FFL levels, byreference to datum points where possible.[550] As pleaded by both the 152 and 160 plaintiffs, Buildings 4 had suffered damagein the form of both localised and differential settlement. The consequences of the factof settlement were explained in the pleadings of both plaintiffs in terms of disruptionto SFP with increased risk of inundation.[551] That in turn appropriately led to extensive exploration in evidence includingthrough cross-examination of the relationship between the FFL and FGL of eachBuilding 4 in the pre-CES and post-CES circumstances. In relation to both Buildings4/152 and 160, the issue therefore became, notwithstanding the settlement of thebuildings, whether the margins between FFL and FGL at Buildings 4 can be re-established together with the fall between Buildings 4 and their southern boundary.Those are the key considerations by which to test whether the altered levels andincreased risk of inundation can be remediated.[552] Unsurprisingly, in closing submissions for both plaintiffs Mr Till identifiedvery briefly the levels of local and differential settlement of which the plaintiffs'witnesses had given evidence, before turning to explore more extensively whether therelationships between FFL and FGL could be restored. The emphasis in this lengthierpart of Mr Till's submissions was upon the proposition that Mr Congalton's designscould not restore pre-CES relativities and falls. I have found that they will.[553] For these reasons, I do not explore further or determine the extent to whicheach Building 4 has "dropped" by reference to any point able to be established as apre-CES level on Salisbury Street. The damage resulting from the local settlement ofBuilding 4/152, being significantly less than that of Building 4/160, is able to beremediated in Mr Congalton's civil engineering design for the purposes of flow toSalisbury Street. At Building 4/160, although the local settlement was significantlygreater than that at 152, the fact that the services as constructed (and as proposed tocontinue under Mr Congalton's design) will follow the natural downhill inclinationfrom Salisbury Street to the south has enabled Mr Congalton to have an effectivedesign for 160's secondary flow. These aspects are now discussed further in thecontext of civil engineering issues.Civil engineering issuesAround Building 4/152[554] In turning to the detail of a remedial solution around Building 4/152, Mr Tischand Mr Congalton agreed that a feature of 152 following its original construction wasthat there were crossfalls flatter than today's standards and in some areas there wasminimal fall away from the buildings. When it came to the asphalt areas, crossfalls aslow as 1 per cent had been specified in the design. Both witnesses agreed that the2003 design was poor in a number of respects relating to crossfalls. This has a bearingon the design of any remedial solution given that the standard under the Policies is"when new".[555] In order to create a downward slope in the short space between the rear ofBuilding 4/152 and the southern fence, Mr Congalton's design calls for somerecontouring and a replacing of existing paving behind units 4 and 6. There is noproposed change for the area behind unit 5 which has decking and a spa pool. MrCongalton's design proposes to achieve the margins set out in the following Table I.Table IUnit FFL FGL (at building) FGL (towards fence)Unit 4 15.30 15.19 15.17Unit 5 (as is) 15.302 15.19 15.15Unit 6 15.291 15.19 15.17[556] At the rear walls of unit 4 and unit 6 respectively, Mr Congalton's designinvolves a cut of 10 mm of material and a fill of 20 mm of material, respectively.There is no evident flaw in that design for flow away from the back of Building 4.[557] In the southwest and southeast corners of 152, Mr Congalton's design providesfor deeper cuts (120 mm and 150 mm respectively) but the flow into those areas isdesigned to be taken up by Mr Congalton's surface dished channel, to then flowthrough the sloping (new) primary services to exit at the north of the property.Underground /152[558] The 152 plaintiff (as with the 160 plaintiff) pleaded that there had beendifferential settlement to the asphalt driveway and concrete dished channel, which hascaused a negative change to surface water drainage. Additionally the drivewayformation (the asphalt seal and the basecourse) had been damaged by the CES.[559] Vero admits damage to the asphalt adjacent to Building 1 foundations by reasonof differential settlement, but denies that there has been damage to the dished channelor its capacity to drain surface water from the area adjacent to Buildings 2 and 3. ButVero provides a repair scope which in any event replaces and recontours the maindriveway and surface drainage.[560] The 152 plaintiff alleges that differential settlement of the garages of Buildings2, 3 and 4 has changed the slopes and gradients in the sewer and stormwater laterals,affecting the functionality and durability of both systems to the point that they aredysfunctional.[561] Vero admits that damage has occurred to the stormwater laterals (but not to themains) and to sewer lines. It says its repair scope in any event replaces stormwaterlaterals and both laterals and mains in the waste water system.[562] The starting point for consideration of civil engineering issues relating to theunderground drainage is its condition when new. The "when new" condition wasaccurately summarised by Ms Macfarlane in her closing submissions in relation toboth 152 and 160 Salisbury thus:2.1 Both properties had a limited primary stormwater network, i.e., anetwork directing water into underground piping. For stormwater, in152, this comprised downpipes, a single catchpit in the driveway areaand a main 100mmØ collector pipe running centrally through the site,which discharged to the roadside kerb via a bubble up chamber. In160, the stormwater primary network comprised downpipes, a singlecatchpit in the driveway area and separate 100mmØ collector pipesfor the northern and the southern halves of the site. A small sump wasalso present in the front courtyard of unit 5. In both properties, the as-built location of the stormwater drains differs from design.2.2 The waste water networks for both properties were similar,comprising 100mmØ pipes with a main pipe collecting two lateralsfrom each unit (soil stack and gully trap). The networks wereextremely shallow at the top end of the line with only 100-200mmcover – each sloped towards the northern boundary of the property. Aswith the stormwater pipes, the as built locations of the waste waterdrains on each property differ from design.(footnotes omitted)[563] There was a large measure of agreement between the witnesses as to thedamage to the underground drainage system.[564] It is common ground that at both 152 and 160 Salisbury, the waste water main,the lateral underground pipes and the stormwater laterals are probably damaged,.[565] It is also common ground that the stormwater main at 160 is damaged but therewas a difference of opinion as to the stormwater main. The 152 plaintiff's positionstems from CCTV footage taken of drains by Peter Diver Plumbing and Drainage Ltd(PDPD). The experts agreed that the PDPD footage shows damage to the sewer andstormwater systems. The footage also shows the ponding in pipes and a build-up ofsludge on the sides and bottoms of pipes. Mr Cowie concluded that the ponding in thepipe work has resulted from non-uniform settlement in the driveway area, causingpossibly reverse gradients and a resulting build-up of sludge. Mr Congalton disagreedon the basis that a build-up of sludge was to be expected in a submerged line whichrelied, as this does, on a bubble-up chamber to discharge water at the kerb outlet. MrCongalton noted the likelihood that the recognised ruptures in lateral connectionswould have led to soil ingress and additional silt deposition in the main line.[566] The evidence does not establish that earthquake damage has occurred at 152 tothe primary stormwater network — it is probable, as opined by Mr Congalton, that siltdeposits will be flushed out on remediation of the remainder of the system.[567] Accordingly, the required remediation is the entire replacement of the wastewater pipe systems and the stormwater laterals.Above ground/152[568] Civil engineering design distinguishes between the primary drainage system(through an underground drain system connected to the public network) and asecondary overland flow path (OFP). The "when new" primary stormwater networkat 152 was limited to the single catchpit in the driveway area which dropped waterinto a collect pipe running north towards Salisbury Street and discharging to theroadside kerb there. There was no primary network for the rear of 152.[569] There was common ground between Mr Congalton and Mr Tisch as to thefollowing matters:(a) as constructed, there was a 100 mm clearance between FFL and pavers(meeting the requirements of NZBC E2/AS1) although the designdrawings specified 150 mm clearance;(b) the design drawings allowed for crossfalls across the asphalt to thecentral dished channel as low as 1 per cent;(c) the design drawings (extrapolated) provided for grades from 0.1 percent to 1.5 per cent (with the possible exception of the east of unit 4where the grade may have been steeper); and(d) the area at the rear of the side (around Building 4) was designed to berelatively flat with only 25 mm fall available to the southern end of theasphalt driveway (a distance of 20–25 m, with a longitudinal grade of1 in 800 to 1 in 1000 (a fall recognised by Mr Tisch as "minimal").[570] It is also common ground that the driveway catchpit as designed was to belocated in the middle of the driveway immediately north of Building 1, that is close toSalisbury Street. But, as constructed, the driveway catchpit is to the immediate southof Building 1. Mr Congalton in his evidence demonstrated diagrammatically how thearea of ponding around the catchpit varied through the design and as-built scenariosand into the scenarios which currently exist and which Mr Congalton opines hisproposed design will achieve. Mr Congalton's diagram is set out as Figure 5.Figure 5 (Driveway ponding diagrams (152))[571] As indicated in Figure 5 (and recognised by Mr Tisch in his reply evidence),Mr Congalton's strategy of replacing the catchpit adjacent to the Salisbury Streetfootpath would serve to provide a continuous fall over the length of the 152 site andto remove the existing ridge.[572] Both Mr Congalton and Mr Tisch recognise that the extent of impermeablesurfacing at 152 introduced after construction (such as through additional paving) waslikely to have added to water run-off when compared to the "when new" state.[573] In summary, 152 may be viewed as having in the first place an inferior designfor surface water and OFP, some aspects of which were exacerbated throughalterations made during construction and through the subsequent addition ofimpermeable surfaces.[574] The plaintiffs allege, in relation to surface water and OFP, that there has beendamage to 152 (as well as to 160) in the following ways:(a) the asphalt seal and base course have been damaged;(b) there has been differential settlement to the asphalt driveway and to theconcrete dish channel, affecting surface water drainage;(c) the settlement of buildings (both differential and local) has causedincreased risk of inundation due to reduced slab to ground levels andreduction or removal of functionality of the SFP; and(d) there are non-compliant slab to ground clearances.[575] Nothing turns on some differences between the witnesses as to the extent ofasphalt damage. Mr Congalton's repair methodology, in order to achieve anappropriate gradient at 152 and to undertake underground drainage replacement at160, proposes removing and replacing all surfacing and base course in any event andreplacing them.[576] It is common ground that Buildings 4/152 and 160 have both suffered globalsettlement (appropriately not pleaded as damage recoverable under the Policies) andlocalised settlement. I have above (at [549]) noted the evidence and Vero's proposedrepairs in relation to the rear of Building 4/152. In relation to issues of potentialinundation from that point to the front of 152, the issue is as to whether Mr Congalton'sproposed design satisfactorily achieves an appropriate gradient and clearance from thegarages (Buildings 2 and 3/152). As recognised by Ms Macfarlane, the criticalquestion is whether any localised settlement of Buildings 2, 3 and 4 has materiallyincreased the susceptibility of those buildings to flooding compared to their "whennew" condition or rendered them non-code compliant when they were compliantbefore.[577] The plaintiffs' pleading of an increased risk of inundation (at both 152 and 160)related specifically to Buildings 4 — an understandable focus given the evidenceadduced by the plaintiffs as to the extent of localised settlement in Buildings 4 (butnot other buildings).[578] The context in which the following discussion occurs is that the original designfor surface water and OFP was significantly less than optimal; that, as constructed,changes were made which increased the risk of ponding at catchpit (as illustrated inFigure 5, above at [570]); and that there had been post-construction modifications(such as paving) increasing areas of impermeability.[579] Given the plaintiffs' pleaded reliance on the increased risk of inundation, it isnecessary before considering any repair designed to address what evidence ofincreased risk exists. In addressing that issue, it is necessary to distinguish (as theplaintiffs' own pleading does) between any inundation risk created through a globalsettlement (the responsibility of EQC) and any increased risk of ponding as a result oflocal settlements of Buildings 2, 3 and/or 4.[580] Having regard to the design drawings and the evidence of as-built conditionsidentified by the witnesses, it appears that the longitudinal fall from the rear to thefront of 152 was in parts as little as 1 in 800 to 1 in 1000 and in terms of crossfalls(falls across the asphalt down to the central dish channel) as low as 1 in 100. MrCongalton's design is based on a longitudinal fall (from the rear to the front of 152)of 1 in 500, in order to comply with the IDS of the CCC. Vero's position is that MrCongalton's design, in relation to longitudinal fall, achieves a substantial improvementover what is estimated to have been the achieved fall if the original design drawingswere strictly adhered to.[581] Mr Congalton's design for the surface grade of his proposed slot drain in thedriveway is 1 in 300, a grade which Mr Tisch recognised as best practice.[582] Mr Congalton's design for crossfalls on paving around Buildings 4 range from0.8–2.6 per cent. Mr Congalton and Mr Tisch had calculated from the original designdrawings that those falls had been between 0.1–1.5 per cent (except for the east of unit4, where the fall may have been steeper). There is no regulatory requirement (NZBCor IDS) for minimum falls in courtyard areas. Vero's case is that Mr Congalton'sdesigned crossfalls around Buildings 4 achieve better outcomes than those originallydesigned. Vero further says that when the improvements to the primary drainagesystem are taken into account (both dished and slot drains around Buildings 4 whichdid not previously exist) there is a substantially better drainage outcome than existedbefore the CES.[583] Mr Congalton's design of crossfalls on the driveway range provide for falls of2.2–2.9 per cent at the southern end and around 4 per cent at the northern end ofBuildings 2 and 3. Mr Tisch referred to a best practice on asphalt of generally not lessthan 2 per cent. In any event, a fall in the 2 per cent range is a significant improvementon the 1 per cent crossfalls originally designed.[584] Mr Congalton has built into his design beneath unit 3 (above the archway inBuilding 1/152) a crossfall of narrow width increasing to approximately 10 per cent(which may be contrasted with falls previously of up to 6 per cent north of Building1). This design aspect was incorporated to accommodate a lowered level of thedriveway at the front boundary. Mr Congalton was challenged by Mr Till in cross-examination upon the basis that such a grade (of 10 per cent or more) was "too high".Mr Congalton explained that such a design is utilised in particular situations (such asthe crossfall between a kerb and a vehicle crossing), with a 10 per cent fall in hisevidence a not-uncommon occurrence when walking down a typical street inChristchurch. Mr Congalton rejected the suggestion that in that context such acrossfall was either hazardous or unsightly. Mr Congalton referred to having himselfdesigned 8 and 9 per cent in some situations where he was free of any constraint.[585] Mr Congalton's design at the road frontage involves the lowering of the levelof the driveway by 50 mm. That design flowed from discussion had with the Designerfor the Transport Team of the CCC who had confirmed in writing that, with 300 mmfrom the existing boundary level to the roadside channel edge, lowering the boundaryby 50 mm would have no detrimental effect on channel flows and would in factimprove the crossfall of the path at the driveway. Mr Congalton was cross-examinedthat the 50 mm lowering would adversely reduce the margin previously enjoyed by152 against ingress of water from the street. Mr Congalton recognised that"theoretically" there would be a change to the level of protection which 152 enjoyedfrom flooding from the street but explained:Ah, theoretically, yes it would be but I don't know that there is a risk to waterentering the site. I haven't seen anything presented by Mr Cowie or Mr Tischto suggest it would at 152 because the street continues to fall all the way tothe property at 166, so there's no reason for water to stop and enter our site.[586] The other evidence adduced confirms the fall of the street from west to east.There is no evidence to contradict Mr Congalton's conclusion that a 50 mm loweringof the boundary would create only a theoretically increased risk of inundation.[587] Mr Congalton's design, at the perimeter of Building 1/152, involvesconstruction of a 100 mm wide nib wall, the purpose of which is to protect thefoundations and the DPM which had become exposed in the CES. Mr Cowie tookissue with reduction of the driveway (200 mm in total) as being "a restrictive featurethat will make it more difficult for vehicles entering and exiting the site". MrCongalton rejected that criticism — he observed that he doubted that a car would bedriven within 100 mm of the wall because to do so would risk damage to parts of thevehicle such as wing mirrors. Mr Congalton expressed the view that vehicles shouldnot be within 100 mm of the wall while on the driveway. Mr Congalton rejected thepossibility of "tight manoeuvres" as, on that portion of the driveway, the exerciseinvolves driving straight through.[588] I prefer Mr Congalton's evidence in relation to the implications of the nib wall.It addresses repair need without adverse effect on the needs of vehicles.[589] Mr Congalton's design also calls for the addition of (an additional) step to thefront courtyards of units 1 and 2 at Building 1/152. Mr Congalton was cross-examinedon the basis that he was including the additional step only because of the nature of theworks he was proposing. He confirmed that that was so but explained also that throughhaving the catchpit at the front of the site where it was originally designed, theadditional step avoids the risk of ponding to the courtyards in units 1 and 2.[590] Mr Congalton's design incorporates two forms of drain being a short area ofconcrete dished channel at the rear western and eastern boundaries of 152 which takeswater to slot drains which then meet at the north of unit 5 from which point a singleslot drain runs directly north to Salisbury Street. Apart from on matters of levels andfalls, the plaintiffs did not take issue with the capacity of either form of drain to drainwater. But Mr Congalton was cross-examined upon the basis that slot drains havedisadvantages over dish drains, such as being prone to blockages. Mr Congaltonanswered that there are pros and cons. He explained that slot drains and dish drains(and associated catchpits) all require maintenance. It was suggested to Mr Congaltonthat the lids of slot drains "rock around", which Mr Congalton explained did not occurif they are installed properly and the right product is chosen. Mr Congalton explainedin response to a question as to the use of "cheap and nasty" products, that the producthe would be specifying is rated to aircraft, having a proper metal slot drain over thetop, not a plastic one. Mr Congalton explained that in his view the slot drain proposedfor 152 mm is preferable in that it creates a flat transition in the centre of the driveway.[591] I found no basis in the evidence to suggest that the choice of slot drains wouldproduce a performance or amenity inferior to that of the system when new. To thecontrary, there will be significant improvements in the system as a whole whencompared to the as-built situation.Catchment fall and flow 152 and 160[592] Mr Congalton, alone of the experts, performed calculations of catchment falland flow at both 152 and 160. His calculations were explained and I accept them. Heconcluded that there is minimal overland flow to 152 from adjacent properties.Shallow sheet ponding will occur around the relatively flat southern third of the sitewhich will then spill north into the paved driveway area on the adjacent site to thewest, at a combined flow rate of approximately 7.4 litres per second. Water will thenpond around the catchpit until it spills over the crest at the front of the site and intoSalisbury Street, to run away from the site to the east. Water from the courtyards ofBuilding 1 will contribute to the driveway catchment or will flow onto adjacent easternsites by reason of the western/eastern slope.[593] Mr Congalton's opinion is that all the relevant OFP occurrences would haveoccurred before the CES and that none of the calculated flow rates or sheet flow depthswould pose a material risk to pedestrians or buildings with compliant clearances.[594] The flow paths (both primary and secondary) must comply with therequirements of cl E1 of the NZBC. Relevantly, that requires that surface water run-off shall be "disposed of in a way that avoids the likelihood of damage or nuisance toother property" in a storm with an annual exceedance probability (AEP) of 10 per cent(cl E1.3.1) and surface water resulting from a 2 per cent AEP event shall not enterbuildings (cl E1.3.2).[595] The cl E1.3.1 protection of "other property" is directed to protectingneighbouring property (which in this case includes neighbouring units within the 152and 160 properties). In other words, surface run-off from any individual unit must notcause damage or nuisance to any other unit.[596] The protection of cl E1.3.2, on the other hand, is of all buildings, that isincluding each unit itself (not just other properties).[597] The levels of protection under cls E1.3.1 and E1.3.2 are different — E1.3.1requires the avoidance of the likelihood of damage or nuisance whereas E1.3.2 forbidsthe entry of surface water.[598] Evidence was given as to CCC requirements and other guidance in relation tothe allowable falls on roads and access ways which are taken into account indetermining compliance with E1.[599] Several requirements or guidance referred to at trial were in relation to landdevelopment and subdivision. Mr Tisch, for instance, referred to NZS 4404 (LandDevelopment and Subdivision Infrastructure), for the requirement under cl 3.3.16.1that crossfalls be not less than 2 per cent on accesses. The standard states that accessesare to be constructed in accordance with the requirements of a territorial authorityunless alternative designs by the developer's professional adviser are approved by theterritorial authority.[600] Reference was also made to the CCC IDS, which specifically applies to CCCfunded assets and those which would vest on subdivision. The IDS states that it hasreplaced NZS 4404 within Christchurch City. Clause 8.12 of the IDS indicates thatthe CCC will be placing the onus of confirming both suitability of design andconstruction on the developer.[601] Through the joint conferral by Mr Congalton and Mr Tisch, it was recognisedthat the CCC is entitled to and does accept lower falls for roads and access ways thanapply under the standards and guidance in relation to subdivisions. While there werereferences in the evidence to "best practice", it was recognised by the witnesses thatapprovals may be obtained (upon the basis of appropriate professional certification)for designs which might not fall within that usually recognised as "best practice".Such was identified, for instance, in the evidence of Mr Tisch. He, while observingthat "best practice" crossfalls on asphalt called for 3 per cent, identified that the CCCwould accept 1.7 per cent. There was disagreement between Mr Congalton and MrTisch as to the ability of contractors (including major contractors such as FultonHogan) to lay asphalt at grades lower than 1.7 per cent. Mr Congalton referred toworks he had designed and supervised where Fulton Hogan had successfully laidasphalt at grades of 1–1.5 per cent on public roads. He referred also to anothercontractor who in his experience has provided high quality and consistent work andwill undertake to provide a warranty for asphalt laid at 1 per cent on both public roadsand private accessways. Mr Congalton confirmed that the equipment used by thatcontractor is sufficiently compact to pass through the accessways at 152 and 160.[602] There was a similar difference in opinion between Mr Tisch and Mr Congaltonin relation to non-access areas such as the paved courtyards. Mr Tisch, while acceptingthat it was not a CCC requirement, opined that a 2.5 per cent crossfall represents bestpractice. Mr Congalton stated that there was no minimum acceptable fall for suchareas and that the matter comes down to designer/contractor choice.[603] In relation to the performance of what may be called "less than best practice"slopes and the ability of owners/contractors to obtain territorial authority approval forsuch slopes, I prefer the evidence of Mr Congalton, based on the practical experiencesof which he was able to speak. To the extent that it might transpire that there is animpediment in relation to any required consent or authorisation from a territorialauthority in relation to Mr Congalton's or another's design, such may beaccommodated within any declaration that this Court makes.Underground/160[604] I set out above at [562] Ms Macfarlane's succinct summary of the primarystormwater networks at both 152 and 160. 160, as built, differs from both its designand from 152 — it does not have a main 100 mm diameter collect pipe runningcentrally through the site but instead has separate 100 mm diameter collect pipes forthe northern and southern halves of the site, together with provision for a small sumplocated in the front courtyard of unit 5.Above ground/160[605] The waste water networks on both properties are similar (but also differingfrom their design).[606] In terms of the parties' pleadings as to damage, the situation at 160 differs inthat both parties agree that the stormwater main at 160 (as well as the stormwaterlaterals) are probably damaged. That is in addition to their agreement that the wastewater main and lateral underground pipes are probably damaged.[607] Mr Congalton's repair design for 160 accordingly makes provision for thereplacement of the stormwater main at 160, along with the other underground drainageinfrastructure.[608] It is also common ground between the parties that the waste water pipe systemsat 162 need to be entirely replaced. The regulatory framework and guidance inrelation to surface water and overland flow paths applies at 160 as it does at 152(discussed above at [594]–[597]).[609] As constructed, the primary stormwater network for 160 was limited to acatchpit in the central driveway area which dropped into two 100 mm diameter collectpipes for the northern and southern halves of the site. There was no primary networkfor surface water collection for the southern part of the site around Building 4 otherthan a courtyard sump for the front of unit 5.[610] Both Mr Congalton and Mr Tisch agreed that with no primary system availableto units 4 and 6, nuisance flooding might occur. Planter boxes constructed in thecourtyard of unit 5 meant that the natural flow path (west to east from unit 4 to unit 6)was blocked, with the potential for inundation.[611] It is common ground that, following the CES, there is less than a 150 mmclearance between the lowest FFL in Building 4 and the lowest FGL on the southernboundary, between 160 Salisbury and 149 Peterborough.[612] As in relation to 152, it was Mr Congalton who provided the Court with flowcalculations. He calculated a moderate overland flow from adjacent properties ontothe site resulting in:(a) ponding in the western courtyard of unit 4. Affecting that courtyardwere a garden bed which had been constructed at a raised level, a step-up constructed to the driveway area to the north and a barrier formedby planter boxes in the front and back yards of unit 5;(b) water ponding in the driveway from above the catchpit until it spillsover the crest to the north of the building for courtyards;(c) water ponding in front of units 1 and 3/160, which will spill into thedriveway and flow north to the road or south to the driveway catchpit;(d) water flowing from the eastern boundary from 166 Salisbury to join theoverflow from the driveway and eventually crossing the southernboundary; and(e) the combined secondary OFP eventually discharging over the southernboundary at approximately 24 litres per second.[613] On Mr Congalton's calculations, units 4 and 5 would suffer inundation in a 2per cent AEP event.[614] Mr Congalton's opinion is that inundation from the driveway sump pondingdoes not extend to the garage FFLs, with consequently no more risk of flooding ofgarages than there was before the CES. He and Mr Tisch agree that inundation of units4 and 5 would have occurred in a 2 per cent AEP event before the CES (as after).[615] The consequence of Mr Congalton's evidence is that the CES has slightlyincreased the risk of ponding at 160 and, in particular, flooding to the units in Building4 in a 2 per cent AEP event (but with units 4 and 5 having previously been exposed tothat risk).[616] Mr Tisch recognised as poor design what the original design showed as anapparent (175 mm) step down from 14.90 m to 14.725 at the (northern) courtyardentrances to Building 4.[617] Mr Congalton's design for remediation to deal with the risk of inundationaround the northern side of Building 4 has two particular features. First, he wouldintroduce to each of the courtyards (units 4, 5 and 6) a sump connecting to theunderground system (whereas there had previously been a single sump designed forthe unit 5 courtyard). Secondly, Mr Congalton's design provided for a gap at thebottom of the timber fences dividing the courtyards and at the bottom of the plantersinstalled by the unit 5 owners. These (sumps and ground level gaps) are proposed byMr Congalton to deal with the recognised risk of ponding and flooding in a 2 per centAEP event to which, in his opinion, units 4 and 5 were exposed as they were beforethe CES.[618] For his part, Mr Tisch recognised that the sumps designed by Mr Congaltonrepresent an improvement from what existed previously, in that a primary network hasbeen added. Mr Tisch nevertheless expressed a concern that were a sump to becomeblocked or were there to be an event bigger than the design event, particularly outsideunit 5, the FFL of unit 5 (at 14.570–14.580) sits below the level of RL 14.65represented by the top level of the step up out of the unit 5 courtyard.[619] Notwithstanding Mr Tisch's objections to Mr Congalton's solution, I find it tobe an acceptable solution. Mr Congalton fairly recognises that floor clearance atBuilding 4/160 has reduced slightly as a result of the CES but such is mitigated by thesystem he proposes for allowing flow under the planter box and fences. It cannot beignored that the introduced planter boxes themselves are the flow path impediment.Mr Congalton's addition of a sump for each courtyard is a recognised improvement,diverting flow at each sump point to the primary system.Longitudinal fall[620] Mr Congalton's strategy for surface water and OFP at 160 can be consideredin three parts. Aspects have already been discussed above from [433] in relation tonatural servitude at 160. First, he proposes a degree of recontouring of the site northof Building 1 to shed onto Salisbury Street. Secondly, he proposes an uninterruptedflow from Building 1 in the north to a sump on the driveway towards the southern endof the shared driveway. With the southern part of 160 lying below the level ofSalisbury Street, its underground services were originally designed and constructed toflow through easements to the south, and will continue to follow that route under MrCongalton's design. Thirdly, he establishes the west to east uninterrupted flow toreinstate what he believes to have been the original secondary OFP, ultimately flowingover the southern boundary (utilising natural servitude, as to which see [419]–[447]above).[621] Mr Congalton's design proposes that, for collection of surface water from thedriveway, the existing concrete channel concept will be retained. Stormwater will thenbe conducted through the primary (underground drainage) system, as it is at present,to Salisbury Street.[622] The falls designed in Mr Congalton's primary and secondary systems alongand below the driveway at 160 are not materially different to those involved in hisdesign for 152, with the exception of the continued need at 160 for services to flow tothe south in keeping with the natural lie of the land. The conclusions I have reachedin relation to Mr Congalton's design for 152 apply to 160. Crossfalls on the drivewayrange from 1–1.7 per cent at the northern end of Buildings 2 and 3 and progressivelyincrease as the driveway slopes downward to the catchment point in a southerlydirection (the channel slope being 110 mm over 12.5 mm).PART IV — OUTCOMESRelief soughtDeclarations[623] The declarations sought by the plaintiffs were based on the proposition that allbuildings at 152 and 160 required demolition and rebuilding and that Mr Congalton'sdesigns for restoration of civil engineering services would not restore those servicesto the required standard.[624] By reason of the findings I have made, the plaintiffs are not entitled to thedeclarations they seek.[625] Had Vero pursued a cross-claim for alternative declarations, the Court couldhave fashioned appropriate declarations subject to certain limitations and reservations(including reservation of leave to apply further in the event of difficulties in relationto any consents required from CCC). On the pleadings, it is not appropriate to grantsuch relief.[626] As between the parties, the Court has made findings of fact which will bind theparties in relation to such further steps as either may pursue. To that extent, at least,there is a confirmed position on which the parties may proceed. This accords with theposition urged by Mr Till in closing, namely that the Court should makedeterminations of fact as necessary and as proven. I will reserve leave to the partiesto file a memorandum or memoranda if the parties would be assisted by having madein declaratory form particular findings which assist the ultimate resolution of theplaintiffs' insurance entitlements. As it stands, this judgment serves to determinefactual matters which were in issue between the parties.Professional fees[627] The plaintiffs provided evidence as to professional fees incurred in order toadvance reinstatement under the Policies (separated out from professional costs inconnection with the litigation). The requested fees largely relate to investigations andreports from investigations. The 152 plaintiff seeks $54,428.18 and the 160 plaintiffseeks $68,751.[628] Vero invokes cl 6.B of each policy, by which Vero's agreement is to pay:architects, surveyors, consultants, legal and council fees to reinstate or repairthe home, incurred with our prior consent following any loss insured by thispolicy.[629] There is no evidence of prior consultation between the plaintiffs and Vero suchas to give rise, in terms of cl 6.B, to "prior consent".[630] Mr Till submitted that, in view of "the defendants [sic] unwillingness to engagewith the plaintiffs on their claims, and plaintiff's experts [sic] involvement triggeringa substantial change in the defendant's position in respect of the claims", it isappropriate and reasonable for an order to be made.[631] A foundation for Mr Till's submission is not established on the evidence as itat present stands. That is scarcely surprising as the focus of the hearing (whichsubstantially overran the duration estimated by counsel) was on the damage to 152 and160 and the scopes of remediation.[632] The appropriate time to determine the validity of the plaintiffs' claims forreimbursement of some or all of the identified professional fees will be as and whenremediation commences and an informed determination can be made as to therelationship between the various fees and the reinstatement or repair of each item.[633] So as not to preclude the proper resolution of that matter between the parties,I will reserve leave to the plaintiffs to apply further as and when there is agreement ordirected outcome on the issue of reinstatement or repair.Loss of rent[634] The 152 and 160 plaintiffs have a prayer for loss of rent for tenanted units upto the (policy) limit of $40,000, which Vero accepts under cl 16.B of each policy inrelation to units which were tenanted before the earthquakes.[635] The parties agreed that quantification of loss of rent entitlements should bedeferred for the time being.[636] Leave will accordingly be reserved to the parties in that regard.Landlord's fixtures and fittings[637] The plaintiffs also have a prayer for recovery of up to $20,000 for loss ordamage to landlord's furnishings (in such units as were tenanted). That again was notthe subject of evidence at this trial.[638] Leave will be reserved to the parties in that regard also.Costs[639] The pivotal issue in the litigation has been whether the earthquake damage at152 and 160 was such as to require demolition and rebuilding of improvements oneach property.[640] The plaintiffs have not established an entitlement to have the buildingsdemolished and reinstated. It has been established by Vero that there is for eachproperty a set of achievable repair solutions. My tentative view is that costs mustfollow the event.[641] I will reserve costs and disbursements, with those matters to be dealt with (inthe event of disagreement between the parties) upon the basis of memoranda filed (10pages each, in addition to appended schedules setting out relevant costs calculationsand details of disbursements, together with copies of all fee notes or similar in relationto any disbursements claimed).Orders[642] I order in relation to each proceeding:(a) The declarations sought by the plaintiffs in relation to their SchedulesA and B are refused, but with leave to the parties bymemorandum/memoranda to request the Court to identify indeclaratory form such factual findings as are made in this judgment andare relevant to the ultimate resolution of the plaintiffs' insuranceentitlements.(b) Leave is reserved to the plaintiffs upon 20 working days' notice to applyfurther in relation to entitlements regarding:(i) landlords' fixtures and fittings;(ii) loss of rents; and(iii) professional fees incurred.(c) Costs and disbursements are reserved.Osborne JSolicitors:Cavell Leitch, ChristchurchHesketh Henry, Auckland