Relying on Expert Certification

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Environmental / Resource Management

Local authorities are heavily reliant on expert certification when determining consent applications and compliance with conditions of consent, but which experts should they trust?

This question has recently been explored by the Environment Court in David Mulholland Consulting Engineer Ltd v Whanganui District Council [2018] NZEnvC 10.

The applicant sought a declaration from the Court that its principal, David Mulholland, was a “suitably qualified and experienced Geotechnical Engineer” for the purposes of a performance standard in the Whanganui District Plan, and that in relying solely on the IPENZ (now Engineering New Zealand) register of Geotechnical Engineers the Council failed in its duty to assess whether he met that criteria.

The case arose because the Council had refused to accept that a report submitted by Mr Mulholland, on behalf of the applicants, for resource consent for building works on a site subject to slippage, was from a suitably qualified and experienced Geotechnical Engineer. With such a report that application would have fallen into the category of a controlled activity but without it the proposal was a non-complying activity.

The approach taken by the Court is of interest because, as Judge Thompson noted:

…neighbouring owners and occupiers, the public generally, and Council face the separate risk and potentially serious consequences of effectively passing over its decision-making function on safety and activity status to that engineer.

The applicant, who was registered with IPENZ as a chartered professional engineer, maintained that the fact that he had no notation on that register as having a practice field as a geotechnical engineer, did not preclude him from being assessed as such. He maintained that his qualifications and experience (55 years as an engineer) meant that he was entitled to decide that he had the relevant qualifications, and to present himself as a suitably qualified and experienced geotechnical engineer. In support he provided a letter of advice by IPENZ that stated the lack of such a recognised practice field would not:

…preclude someone assessed as being competent in Civil engineering to undertake elements of geotechnical design work.

The letter went on to say:

Engineers are always obligated to recognise their limits of competence and ensure the work they are undertaking is within their areas of expertise..

The problem from the Council’s point of view was not that the applicant may not have been a competent geotechnical engineer, but that it had no independent means to assess that qualification, and nor were its staff qualified to make that assessment. This is a recurring problem for local authorities when asked to accept expert certification of this nature, and the Council planner gave evidence that there were four reasons why it should rely on the specialist records maintained by IPENZ.

First, she points out that such reliance means that the assessment process is simple and consistent. Secondly, she notes that Council staff themselves do not have the knowledge to make their own assessments of engineering competence – there are, for example, no accredited geotechnical engineers on the Council’s staff. Thirdly, she emphasises the importance of the issues – the risk to life and property of landslips and the like. Fourth, she points out the advantage that an applicant providing an acceptable engineering certificate will have in terms of the activity status of a proposal.

In the event the Court preferred the position taken by the Council. It found the Council was entitled to rely upon the expertise and processes of the Engineers’ professional body to guide the decision as to whether any individual met the required criteria, and that it need not accept at face value an assertion from any individual that he or she is suitably qualified and experienced. In fact, Judge Thompson concluded that being guided by the views of the relevant professional body to determine whether any given person had the knowledge and experience for a particular task was entirely appropriate.

The application was dismissed.

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