Gee v Plumbers, Gasfitters and Drainlayers Board [2012] NZHC 377 (14 March 2012)

Last Updated: 19 March 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-485-002407 [2012] NZHC 377

UNDER the Plumbers, Gasfitters and Drainlayers

Act 1976

BETWEEN PAUL BRYNLEY GEE Appellant

AND PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD Respondent

Hearing: 5 March 2012

Counsel: Mr Gee, Appellant in person with W G Gordon (advocate) D A Laurenson for Respondent

Judgment: 14 March 2012

_{JUDGMENT OF THE HON JUSTICE KÓS}

An explosion – and an inquiry

[1] On 9 April 2009 the Milton Street Fish and Chip Cafe in Nelson was rocked by an explosion. A Labour Department investigation identified the cause: a gas leak at the rear of two gas fryers. The appellant, Mr Gee, had installed the gas pipework to which the fryers were connected. He had also certified the work. A complaint was lodged by the Department’s investigator with the Plumbers, Gasfitters and Drainlayers Board (the Board). He asked the Board to investigate the matter, and to explore the possibility of other substandard gasfitting installations in the region.

[2] The Board appointed Mr Tony Hammond, an engineer and consulting gas inspector, as its investigator. He inspected several other installations certified by

_{Mr Gee. Four of those installations gave Mr Hammond concern. Further audits}

GEE v PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD HC WN CIV 2011-485-002407 [14 March 2012]

were undertaken by a Mr Peter Lamborn, a consulting craftsman gasfitter. He inspected 24 installations certified by Mr Gee. That was some 10 per cent of the installations certified by Mr Gee between 2003 and 2006.

[3] Following the investigation and audit, charges were brought against Mr Gee in respect of seven installations. A total of 13 charges were laid. Two charges concerned a property belonging to a Mr and Mrs Anderson in Malvern Avenue, Nelson. Mr Gee had installed a gas water heater at that address. No problems with that appliance had been reported. But there were concerns about the location of the appliance and its certification.

Disciplinary hearing

[4] A disciplinary hearing was held in Nelson in May 2011. In July 2011 the Board found Mr Gee guilty of the two charges concerning the Malvern Avenue installation. The first was:

In or about June 2006 you did install a Bosch 25 water heater ... at 6

Malvern Avenue, Atawhai, Nelson, in contravention of clause 1.6.3(f) of

NZS 5261:2003 in that there was insufficient clearance between the Bosch

25 and an openable window to minimise the risk of harm to persons inside the house at 6 Malvern Avenue, Atawhai, Nelson.

[5] The second charge was consequent upon the first. It related to the gasfitting certification of the Malvern Avenue work. The Board dismissed all charges in relation to the other six properties, including the fish and chip shop where the explosion had occurred.

[6] The Board found that Mr Gee had installed the Malvern Avenue water heater on an exterior wall of the property, 540 mm below an openable dining room window. That location the Board found “contravened” NZS 5261:2003, Table 16. That provided for 1500 mm vertical clearance from an opening window. Or else, the Board said, the window should be “secured closed”. The Board held that there was “no basis to depart from the mandatory requirements of NZS 5261”. It found that

540 mm was insufficient clearance below the window, and noted that “no alternative

means [had been] demonstrated by which products of combustion could be diverted

away”.

[7] The Board criticised Mr Gee for relying on a Rinnai NZ “tech note” supplied to him by a former employer. The note suggested a vertical separation of 500 mm might suffice. The Board said the note was out of date. It applied to a different model and type of appliance.

[8] The Board also criticised Mr Gee for relying on the absence of any discernible smell of gas inside the property. Carbon monoxide has no distinctive odour. It can cause death of household occupants without awareness of its presence. The Board said:

In this respect the Board does not consider the absence of CO or any gas odour to be an acceptable basis for deviating from the Standard or justifying Mr Gee’s actions.

[9] The Board concluded:

[104] The Board has considered the established particulars (in relation to

6 Malvern Avenue) and finds Mr Gee guilty under section 42(1)(c)

of the Act. The established particulars were not so serious as to warrant a more serious finding under section 42(1)(b) of the Act.

[105] In considering the established particulars, the Board noted with concern Mr Gee’s apparent lack of understanding of a number of fundamental factors that the public has the right to expect of a craftsman gasfitter, in particular:

105.1 The lack of appreciation of process, objectives and accountability when signing a gas certification certificate, and therefore certifying a gas installation;

105.2 A clear misunderstanding of how the applicable standards NZS 5261:2003, is structured, its application and the absence of sound reasoning when deviating from Part 2, in this instance in respect of clearances; and

105.3 Coupled with that, a demonstrated lack of understanding about the reasons for maintaining adequate clearances between externally mounted instantaneous gas water heating appliances and openable windows and the relationship that this has to the risk that carbon monoxide presents to the health and safety of the public.

Penalty

[10] Later there was a penalty hearing. The Board said that Mr Gee’s explanations lacked apparent awareness of the Gas Regulations 1993. Likewise NZS 5261, its interpretation and its mandatory application.

[11] The Board required Mr Gee to undertake a course of instruction as a condition of relicensing as a certifying gasfitter for the 2013/14 licensing year. The course in question is Unit Standard 21893. It relates to the installing and commissioning of Type 2 gas appliances and equipment.

[12] Due to Mr Gee’s personal and financial circumstances, and the fact that the

majority of charges were dismissed, the Board made no order for costs.

Regulatory framework

[13] Regulation 12(1) of the then Gas Regulations 1993 provided:

Every person who installs a gas installation ... must install that gas installation ... in accordance with Part 1 of NZS 5261.

[14] Regulation 12(2) and (3) provided that the installation of a gas appliance with a rated input of less than 250 MJ/h1 would be deemed to comply with Part 1 if the work complies with Part 2. It follows that Part 1 is mandatory; Part 2 is optional. But if Part 2 is complied with, compliance with Part 1 is deemed to have occurred.

[15] I turn now to NZS 5261. It reflects reg 12. It starts by stating that it contains “the mandatory requirements and means of compliance” for the installation of gas appliances.2 It makes clear that Part 1 contains mandatory performance criteria, and Part 2 contains a means of compliance with (or deemed satisfaction of ) Part 1.

_{Importantly, cl 1.1.3 states:}

1 _{The water heater in this case had a rated input of 200 MJ/h.}

2 Clause 1.1.1.

Part 2 of the Standard contains means of compliance for gas installations ... generally under 250 MJ/h ... Alternative means of compliance may be used provided they can be demonstrated to meet or exceed the performance criteria of Part 1.

[16] The mandatory clause in Part 1 under which Mr Gee was charged was cl 1.6.3(f). That provides:

Gas appliances shall be located ...

(f) to minimise the risk of harm to persons.

That is a very broadly-stated obligation. The normal mechanism to ensure compliance is to meet the prescriptive terms of Part 2. But here Mr Gee was unable to rely on Part 2. Clause 2.6.13.3 provides that to satisfy Part 2 the flue terminal of a fan-assisted flue gas appliance must comply with Table 16. As we have seen, that provides for 1500 mm vertical separation between an openable window and the flue terminal of a gas appliance over 150 MJ/h. The flue terminal here was only 540 mm beneath the openable dining room window.

Burden of proof

[17] It was common ground before me that the Board’s prosecutor had the obligation to prove a breach of the required standard in cl 1.6.3(f) on the balance of probabilities.3 It was also common ground that clause 1.1.3 places an onus on a tradesman using alternative means of compliance (i.e. other than Part 2 compliance) to show that the alternative means “meets or exceeds” the Part 1 criteria. That is an important qualification. It appears to have been overlooked when Mr Gee’s case

was presented to the Board.

[18] Mr Gee could not rely on deemed compliance with Part 1 under Part 2. He was obliged to meet the standard in cl 1.6.3(f), of minimising the risk of harm to

_{persons, otherwise than via Part 2 deemed compliance.}

3 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [112] and

[118].

[19] In practical terms, in a disciplinary hearing, it would work like this: in the first instance the prosecutor would bear the burden of proving, on the balance of probabilities, that cl 1.6.3(f) had not been met. As a means of doing so, the prosecutor could point to non-compliance with Part 2. But that would not be conclusive. The prosecutor would still need to lead evidence to show at least a prima facie case that the installation did not minimise risk. That involves two elements. First, that the installation did in fact pose risk of harm to persons. Second, that there was an alternative method of installation which would have produced less risk. That might involve greater separation – as Part 2 recommends – or the use of an extended flue. Having done so, the onus would then shift to the tradesman to show that the installation nonetheless met or exceeded the Part 1 requirement of minimising risk of harm to persons. He might, for instance, lead evidence to show that his installation was perfectly safe, so that Table 16’s greater separation recommendation was excessively precautionary.

Appeal

[20] Mr Gee filed a notice of appeal on 16 November 2011. He was assisted in doing so by Mr Wal Gordon, a craftsman gasfitter. I will come back to Mr Gordon’s role in a moment. The notice of appeal is a rather discursive document. The essence of the appeal is as follows:

(a) That the investigator had not proved what the minimum distance to minimise the risk of harm to persons is, but had simply relied on Table

16 of NZS 5261. That was an optional, not mandatory, requirement. A

distance of 500 mm was safe, and supported by Australian practice.

(b) In the United Kingdom a distance of 300 millimetres is specified for similar equipment.

(c) Mr Gee had complied with performance standard NZS 5261, cl 1.5.7 because there was no evidence of gas entering the building and no actual harm to persons.

[21] As the work in question was completed in June 2006, Mr Gee’s case falls to be dealt with under the Plumbers Gasfitters and Drainlayers Act 1976, rather than its replacement, the Plumbers Gasfitters and Drainlayers Act 2006. Under s 58 of the

1976 Act an appeal lies to the High Court against the whole or any part of a decision or order of the Board.4

[22] The appeal is one by way of rehearing. That means I must reach my own view on the merits of the appeal, based on the evidence given at the original hearing. I had before me copies of the transcript and the documents considered by the Board, including whiteboard diagrams prepared at the hearing. It also means I need not defer to the original decision maker. If I think the Board was wrong, I should say so

forthrightly.5 But there are two qualifications to that. First, I must recognise that the

Board had the benefit of seeing witnesses, and hearing evidence, including cross- examination. To that extent I must heed the advantage the Board had in seeing the evidential process play out. Secondly, I must also recognise and respect the fact that the Board is a specialist tribunal.6 I should therefore hesitate in substituting my own non-specialist views for those of a specialist tribunal, particularly on questions of a technical nature.7

[23] No appeal was brought against the penalty directed by the Board. The focus

of Mr Gee’s appeal was on the finding that he was guilty of an act or omission

_{contrary to the integrity of the gasfitting trade.}8

4 _{Under the 2006 Act appeals from the Board now go to the District Court.}

5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3] and

_[16].

6 By consent evidence of the Board’s expertise was tendered. The panel who heard the charges

included members with engineering, trade and governance experience. In particular, one member was himself a certifying gasfitter.

7 Owen v Wynyard HC Auckland CIV 2009-404-005245, 25 February 2010 at [21] (an appeal under s 58 of the Plumbers Gasfitters and Drainlayers Act 1976); Z v Dental Council of New Zealand HC Wellington CIV 2010-485-2249, 2 December 2011 at [34].

8 Plumbers, Gasfitters and Drainlayers Act 1976, s 42(1)(c).

Jurisdiction

[24] After the notice of appeal was filed, various interlocutory issues were dealt with. Orders were made for the exchange of submissions. That occurred. The matter was listed for hearing before me on the morning of Monday, 5 March 2012. But when the matter was called before me, Mr Laurenson submitted there might be a jurisdiction issue. This issue had occurred to him over the course of the preceding weekend.

[25] The jurisdiction issue is as follows. As I have already said, Mr Gee’s work in

2006 falls to be considered under the 1976 Act – the predecessor Act to the present

2006 legislation. Section 181(1) of the 2006 Act provides that all investigations, inquiries and disciplinary proceedings under the 1976 Act commenced before the

2006 Act came into effect, but not completed before that point, “are to be continued and completed as if this Act had not been enacted”. Despite that, s 181(3) provides that:

... the Board’s power to discipline the person [under the 1976 Act] includes the power to make an order under s 106(1)(a) – (e) in relation to that registration, practising license, or provisional license.

[26] The effect of all that is that although Mr Gee is to be dealt with under the

1976 Act, he may be punished under the 2006 Act. That is in fact what occurred. The penalty of being required to undertake the Unit Standard 21893 course is a matter provided for under s 106(2)(b) of the 2006 Act. There is no counterpart penalty in the 1976 Act. And that is where it gets tricky.

[27] Section 58(1) of the 1976 Act, under which the present appeal has been brought, provides that a person who is dissatisfied with particular decisions or orders of the Board may appeal them. Each appealable order is stated in s 58(1). The list does not include the penalty (provided in the 2006 Act) of requiring the appellant to undertake a course of training. The net upshot is that although Mr Gee has been dealt with under the 1976 Act, and punished therefor under a provision in the 2006

Act, as permitted in the transitional provisions – no appeal would appear to lie from the order imposed on him.

[28] That outcome would plainly be unsatisfactory. Mr Laurenson accepted that. He raised the jurisdiction issue not with enthusiasm, but as a matter of duty. He accepts that the outcome – a penalty order which cannot be appealed – does not seem to have been intended. He said it appeared to be an oversight under s 181 of the

2006 Act. With all that I agree.

[29] The Courts may construe legislation with somewhat greater liberality in a clear case of drafting error. Ordinarily it is for Parliament to fix such errors or deficiencies in statutes, other than those which are obvious or minor.9 There is a presumption against Parliamentary drafting error. The Courts are reluctant to add words to a statute. However, the Courts have been prepared, in limited circumstances, to stretch the meaning of the words to accommodate clear Parliamentary intention.10 As Cooke P said in R v Salmond:11

[T]his Court has emphasised the importance of a practical and realistic interpretation of Acts of Parliament. In cases of ambiguity or hiatus they should be interpreted so as to be made to work. Gaps may be filled to cover problems not foreseen when the legislation was enacted, provided that the policy-making function is not usurped by the Courts.

[30] Section 58(1)(g) of the relevant 1976 Act provides that an appeal lies from an order of the Board “censuring” the appellant. The power to censure is contained in s 42(2)(d) of the 1976 Act. In the present case the public finding of the Board that Mr Gee had offended s 42(1)(c) of the Act, and requiring that he undertake a course of instruction, is in substance a “censure” order. On that basis, I consider that I have jurisdiction. For present purposes, that liberal construction of the wording of the

1976 Act involves the least necessary correction to the legislation. Had that option not been open to me I would have inferred an entitlement to appeal against any

_{penalty under s 106(1)(a) – (e) of the 2006 Act imposed in a 1976 Act prosecution.}

9 Air Rescue Services Ltd v Secretary for Internal Affairs HC Wellington CIV-2010-485-1919

_{3 May 2011 at [18].}

10 _{Ibid at [9] citing Inco Europe Limited v First Choice Distribution [2000] 2 All ER 109 (HL).}

11 R v Salmond [1992] 3 NZLR 8 (CA) at 13.

[31] The notice of appeal named the Board as respondent. Since then the intituled respondent has had a nomadic description: the Board, sometimes Anthony Edward Hammond (the prosecuting investigator), sometimes both. Mr Laurenson sought an order that Mr Hammond be substituted as the sole respondent in the appeal. He was the investigator appointed by the Board under s 41(4A) of the 1976 Act. Because High Court Rule 20.9(2) provides that a notice of appeal must not name a decision- maker as respondent, Mr Laurenson submits that the Board should not be the respondent.

[32] High Court Rule 20.9(2) is unclear as to what is to occur where the decision- maker is also the prosecuting body. Such arrangements are not unusual in regulatory bodies governing professions and trades. The norm is for the statutory body charged with both responsibilities to delegate the prosecutorial function to an independent prosecutor. Here Mr Hammond is that person.

[33] Where an appeal is brought from a disciplinary body which undertakes both a prosecutorial and adjudicative role, my view is that it is preferable that the body is named as respondent. That body holds the statutory, regulatory responsibility. That body, rather than the non-statutory delegate, should account for that function before the Court. The delegation is a necessary but artificial action by the body. There is no need to persist with it on appeal where there is no independent litigant to serve as respondent. General support for that approach appears to be given in the

commentary in McGechan on Procedure.12 There it is suggested that:

... where there is no other party to an appeal against the tribunal, it would appear that the tribunal has to be named as respondent. ... The situation is no different from appeals against the Securities Commission or the Registrar of Companies where the Commission or the Registrar has generally been named as the respondent. ... Rule 20.9(3) requires amendment to reflect the reality of the situation.

12 McGechan on Procedure (online looseleaf ed, Brookers) at [HR20.9.01].

[34] On 6 December 2011, Mr Gordon (advocate for Mr Gee) filed a

“memorandum for exception” under s 27 of the Lawyers and Conveyancers Act

2006. The memorandum seeks leave from the Court under s 27 of the Act to “continue as an advocate and represent the appellant”. Mr Gee is not a lawyer. He is a craftsman gasfitter. The Board neither consented to nor opposed leave being granted.

[35] Section 24 of the Lawyers and Conveyancers Act 2006 provides that a non- lawyer commits an offence if he or she gives legal advice for reward in relation to the direction or management of proceedings before a Court. So too a non-lawyer who (whether for reward or not) appears as an advocate for another person before a Court. There are some exceptions. Here the relevant potential exception is that under s 27(1)(b)(ii) of the Lawyers and Conveyancers Act 2006: where the appearance is permitted by the Court concerned.

[36] A party who wishes to have a lay advocate appear for him or her should apply at the earliest possible time. The party – not the proposed advocate – should apply. He or she should do so before the advocate takes a step before the Court. That is, before the advocate files any document with the Court. Failure to apply before that point may result in the commission of an offence under s 24, and exposure to a fine of up to $50,000. None of that, of course, prevents lay persons assisting in the preparation of a party’s case. But consent is required before they may represent a party in Court, or receive payment for the provision of legal advice regarding such proceedings.

[37] Only in rare circumstances will the Court grant consent to a lay advocate to represent a litigant under s 27(1)(b)(ii).13 Particularly where difficult issues of law may arise. And the Court will be most unlikely to approve participation of a lay advocate who is being paid for doing so. The Court is entitled to assistance from

_{remunerated representatives who are properly trained in the law.}

13 See e.g. Reid v Carterton Auto Court Limited HC Masterton, CIV-2010-435-120 15 September

2010 at [12]; Body Corporate 183059 v Sokol Limited HC Auckland CIV 2010-404-00140 20

May 2010 at [14].

[38] In the present case, Mr Gordon advised me that he is providing his assistance to Mr Gee on a voluntary basis. Had he been charging a fee for his service I certainly would not have granted his application under s 27.

[39] As I noted at the hearing, while it is a credit to Mr Gordon that he is providing assistance on a voluntary basis to his friend, Mr Gee, his lack of legal experience has resulted in two serious mistakes. The first is as follows. The Board decision says that Mr Gee had referred to himself as a “mere plumber”. That appears to have been incorrect. It is common ground that no such comment is recorded in the hearing transcript. Regrettably, however, Mr Gordon goes on to submit in his submissions:

It is presumed that the Presiding Member fabricated this statement for his report.

That observation is most improper. It should not have been made. Mr Gordon was able to offer no basis for that “presumption”. The erroneous reference is perfectly consistent with mere faulty recollection.

[40] Secondly, the handling of this matter before the Board involved a misunderstanding by Mr Gee and Mr Gordon as to the onus of proof. As I have already pointed out, cl 1.1.3 of NZS5261 requires a tradesman who has not followed the deemed compliance option in Part 2 to show that the alternative means of compliance “meets or exceeds” the requirement in clause 1.6.3(f). But Mr Gee and Mr Gordon had not appreciated that. They had no such means of proof at their disposal before the Board, beyond Mr Gee’s own evidence and whatever might be achieved in cross-examination of the prosecution witnesses.

[41] Despite those concerns, because Mr Gordon is providing his assistance on a voluntary basis and because he has relevant technical trade experience, I granted leave under s 27 of the Lawyers and Conveyancers Act 2006 for Mr Gordon to advocate for Mr Gee in the hearing before me.

[42] I turn now to the grounds of appeal outlined in [20] above.

Ground 1: Investigator not proved minimum distance to minimise risk; Table

16 optional not mandatory; Australian practice: 500 mm safe

[43] It was common ground at the hearing that Table 16 is an optional means of compliance, rather than a mandatory requirement. If 1500 mm vertical separation existed between the openable dining room window and the water heater flue vent, there would be nothing to discuss. Mr Gee would have been deemed to have complied with the requirement in Part 1 to minimise the risk to persons in installing the heater. But he had not done so.

Submissions

[44] On his behalf Mr Gordon submitted that the decision of the Board treated Table 16 as a fully mandatory obligation. He referred to paragraphs 89.2 and 89.3 of the Board’s decision, which certainly could be read that way. Mr Gordon submits that the Rinnai Australia “tech note” is also very relevant. It was sent to Mr Gee’s former employer by Rinnai New Zealand. It suggests that 500 mm is in fact adequate separation. Mr Gordon accepts that the document is for a different device. But he says it is basically identical in form, function and appearance, save that the Bosch installed at Malvern Avenue had a lower input rating than the Rinnai appliance for which the tech note was devised. Mr Gordon suggests that I can infer from the Rinnai document that a separation distance of 500 mm is adequate. The separation distance in this case was 540 mm.

[45] For the Board Mr Laurenson submits that the Board’s finding was firmly supported by the expert evidence of Mr Hammond, the prosecutor. He is a very experienced gas engineer and consulting inspector. Mr Hammond was particularly concerned that the top-hung nature of the window would draw in rising gases vented beneath it, adding to the risk. He relies also on the evidence of Mr Lamborn, the Australian expert auditor. He submits that the Board was right to reject the Rinnai tech note as justifying significant departure from the recommendations in Table 16.

Analysis

[46] The wording of paragraphs 89.2 and 89.3 of the Board’s decision is somewhat unfortunate. In particular the statement that the installation was in “contravention” of Table 16. Table 16 is a Part 2 means of compliance only. The installation did not comply with Table 16, but that does not mean that Part 1 compliance obligation has not been achieved. As cl 1.1.3 says, “alternative means of compliance14 may be used “provided they can be demonstrated to meet or exceed” the generalised Part 1 obligations.

[47] Despite that, though, the Board did not misdirect itself. For a little later in the decision we find the passage referred to at [6] above – that the Board found the

540 mm separation inadequate in the absence of alternative means demonstrated to direct away combustion products. That suggests that the Board was cognisant of the option available of proving Part 1 compliance other than by Part 2 compliance.

[48] The prosecutor had demonstrated at least a prima facie case that the installation at Malvern Avenue posed an actual risk to occupants of the house. That risk was of gases entering the dining room. A prima facie case was also shown that that risk had not been minimised. Options remained available to reduce the risk. Those options were not taken. Two are perfectly obvious: greater separation, or the use of an auxiliary flue. A third might also have been adopted: sealing the window closed. The fact that the windows were chained so as not to open more than 150 mm does not assist Mr Gee. That constraint could have been changed at any time during the 12-15 year life of the heater, if the chains were removed. As Mr Lamborn said in evidence:

... you wouldn’t risk distances like that – he needs to have proved to himself that they’re never going to get any fumes back into those rooms, so it’s a chance that you wouldn’t want to take and sign off and underperform.

[49] Thereafter the onus lay on Mr Gee to show the Board that installation minimised risk to persons. He might show there was no material risk. That is, that

14 For example to Part 2 – including Table 16.

Table 16’s greater separation recommendation was excessively precautionary. Or he might show that there was no choice as to how to mitigate that risk (which would then call in question whether the installation should proceed). But Mr Gee called no evidence, apart from his own evidence-in-chief. The cross-examination of Mr Lamborn and Mr Hammond did not establish that the installation 540 mm below the window met or exceeded the requirement in Part 1 of NZS5261 to “minimise the risk of harm to persons”. The Board was entitled to infer that there was a risk of rising flue gases entering the open dining room window from the flue. And the Board also was entitled to conclude that Mr Gee had not shown that what he had done meet or exceeded the Part 1 compliance obligation. It did not minimise the risk of gas entry. There were other steps available to reduce that risk. The three options just identified were available, but not taken. Nor did he show that Table 16’s suggested separation distance was excessively precautionary.

[50] I also agree with the Board that reliance by Mr Gee on the Rinnai tech note was not evidence of Table 16 being excessively precautionary. I accept the specialist technical expertise of the Board to reach such a conclusion. In doing so I consider that some of the points of distinction that the Board relied on are unlikely to be material – e.g. that the note concerned flush, rather than proud, mounting. But the Board was right to place little reliance on it. The note is simply an unsworn opinion by an unknown author as to what separation is appropriate for a different device in another country. It seems from Mr Lamborn’s evidence that the 1500 mm recommended separation distance in Table 16 applies in Australia as well as New Zealand. Whether the Rinnai note is reliable is entirely at large. It does not establish that Table 16’s suggested 1500 mm separation distance is excessively precautionary.

[51] All the Rinnai note shows is that Mr Gee had a good faith basis for his installation error. But it does not mean there was no error in the first place. In the absence of independent evidence to show that the 1500 mm separation distance is excessively precautionary, I could not differ from the conclusion of the Board that the requirements of cl 1.6.3(f) had not been met.

Ground 2: United Kingdom 300 mm standard

Submissions

[52] Mr Gordon submitted that building regulations in the United Kingdom permit a minimum distance of 300 mm for the same unit installed by Mr Gee at Malvern Avenue. As he put it, colourfully, the “fact that British people are not keeling over dead when their water units have been installed 300 millimetres below an opening window” suggested that Part 1 of NZS 5261 had been met in this case.

[53] Mr Laurenson submits that the United Kingdom document was not referred to during the hearing before the Board. There was no expert or other evidence before the Board relating to its relevance or applicability in New Zealand, or how it might be reconciled with NZS5261.

Analysis

[54] I am bound to agree with Mr Laurenson. I cannot take cognisance on a rehearing of new “evidence” of this kind. The document was not before me. I am quite unable (as the Board equally was unable) to assess its relevance.

Ground 3: Mr Gee complied with cl 1.5.7 because no evidence of gas entering the building and no actual harm to persons

Submissions

[55] Mr Gordon submitted that the absence of reports of combustion products entering the house, and no reports of harm to occupants during its five years installation, “is proof the installation complies with Part 1 of NZS5261”. Mr Gordon focused his submission on compliance with cl 1.5.7 of Part 1, which deals with the location of gas appliance flue terminals. These must be located to “prevent harm to persons”. Mr Gordon sought to rely on a passage from his cross-examination of Mr Hammond, which he said was an admission that non-entry of combustion products meant compliance with Part 1 must have occurred. Mr Gordon submits that these

types of water heater produce flue gases of a very distinct smell. He submits also that the effect of the fan assist is that flue gases are ejected some 3-4 metres away from the building – so beyond the range of the open window

[56] Mr Laurenson relies on the Board’s contrary conclusions in paragraph [92] of its decision. He submits that the evidence given by Mr Hammond in response to cross-examination (on which Mr Gordon sought to rely) needed to be read in its entirety. Thus construed, no admission of compliance could be found. Quite the contrary in fact.

Analysis

[57] It appears that the combustion products of a wall heater of this kind (fuelled by LPG) are a mixture of carbon dioxide, nitrogen and water vapour. However, Mr Gordon and Mr Gee both advised me that if the units were not properly looked after, they could also produce carbon monoxide. They accepted that the warm vapours from the unit would rise. They maintained it had a distinctive smell. They maintained also that the effect of the fan assist was that it was unlikely the gas would enter the window (particularly with its temporary chains). If wind blew it back, that would be likely to disperse the gas in any event.

[58] This issue was discussed by the Board. There is no credible basis available to me to differ from its conclusion. It is apparent that although the combustion products are not confined to carbon monoxide (indeed should exclude it, although that depends on the heater being properly maintained), there was still a reasonable possibility of gas products entering the house. Particularly if the chains on the windows were removed. The Board was correct to disregard the claim that there had been no reports of any smell of gas in the building. It is true that Mr Anderson, the occupant, gave such evidence. However, that does not mean that the installation has minimised risk. Nor does it mean that that event could not occur within the remaining life of the heater unit, particularly if the window configuration was modified. Certainly I can make nothing of the allegation that there had been “no harm” to people. That could be right only as a matter of reportage rather than fact. I

am satisfied, also, that Mr Hammond’s evidence (as a whole) did not admit that the

absence of reportage of gas smells meant Part 1 compliance must have occurred.

[59] Finally, the appellant’s reliance on cl 1.5.7 is misconceived. First the charge was brought under cl 1.6.3(f). Secondly, if anything the requirements of cl 1.5.7 may be more stringent: “flue terminals shall be located so as to prevent harm to persons”. A less relative requirement, perhaps, than “minimising” harm.

Standing back

[60] The fundamental difficulty faced by Mr Gee is this: to set aside the decision of a specialist tribunal of this kind, he has to point to a failure by it to take into account evidence showing that although he had not followed the 1500 mm vertical separation recommendation in Part 2, his method of installation nonetheless in fact minimised the risk of harm to persons.

[61] Clear evidence to the contrary was given by witnesses for the prosecution. I do not find their evidence to have been disturbed by cross-examination. The Board was not wrong to prefer that evidence to that of Mr Gee. His evidence was strongly reliant on the Rinnai tech note. While it is perhaps understandable that he would rely on such a document, he should have concentrated on the provisions of Table 16. He needed to show through cogent, independent evidence that for this installation the

1500 mm separation recommendation in Table 16 was excessively precautionary. His evidence simply did not meet that standard.

[62] The second charge is, as noted earlier, consequent on the first. It is accepted that if the appeal fails in relation to the first, then the second charge too must be sustained.

Disposition

[63] The appeal is dismissed.

[64] The parties may file memoranda as to costs if they cannot resolve that issue amongst themselves.

Stephen Kós J

Solicitors:

C E Miller, Wellington for Respondent