In November last year, the Building Act 2004 (Act) was amended to extend councils’ dangerous building powers to include "affected buildings". If you own or occupy a building you need to be aware of these new powers as they could impact on your ability to use the building for a period of up to 60 days.
In December, the Building (Earthquake-prone Buildings) Amendment Bill (Bill) was introduced into Parliament. It proposes a "revised system" for the management of earthquake-prone buildings, particularly the role of councils. Whether or not the Bill remains in its current form, both building owners and councils should be aware that changes may be coming.
This FYI discusses the newly acquired powers councils have in relation to affected buildings, and the proposed changes to earthquake-prone buildings set out in the Bill.
What are affected buildings?
If a building is adjacent to, adjoining, or nearby a dangerous building (as defined in the Act) it is now an "affected building" with a council being able to:
- erect a fence or hoarding around it;
- attach a notice warning people not to approach it; and
- issue a written notice restricting entry to particular persons or groups of persons for a maximum of 30 days. A council can reissue the notice once for a further maximum period of 30 days.
This means owners of buildings adjacent to, adjoining, or nearby buildings which have been classified as dangerous (as opposed to earthquake-prone), should be aware that the council could restrict or prevent entry to their building for up to 60 days while the danger associated with the nearby building is being rectified.
The new provisions also require councils to amend their existing dangerous, earthquake-prone and insanitary buildings policy to address affected buildings. This must be done at the latest within a reasonable period "following the next review of its policy". The Act requires reviews at 5 yearly intervals from the date the original policy was adopted. The reasonable period allowed for amending an existing policy is therefore likely to commence from the date of the last 5 yearly review.
What does the Building (Earthquake-prone Buildings) Amendment Bill propose?
The Bill proposes further amendments to the Act relating to earthquake-prone buildings. Currently a building is earthquake-prone if it would be likely to collapse in a moderate earthquake causing injury or death or damage to other property. In practice an earthquake-prone building is defined as one that is less than 34% of the new building standard (NBS).
Under the current system, each council has a dangerous, earthquake-prone and insanitary buildings policy that sets out the approach it will take in performing its earthquake-prone building functions, prioritises performance of those functions and states how the policy will apply to heritage buildings.
The main change the Bill proposes is that central government will have a greater role in providing leadership and direction in relation to earthquake-prone buildings. This is achieved by replacing local council earthquake-prone policies with a new nationally consistent policy. Accordingly, under the Bill any references to earthquake-prone buildings in an existing dangerous, earthquake-prone, and insanitary building policy will cease to apply when the new legislation commences. Furthermore, councils will be required to amend or replace their policies to remove references to earthquake-prone buildings.
This proposed change means that councils will no longer have individual policies on earthquake-prone buildings. Instead, within five years of the Bill being passed all councils will have to complete seismic capacity assessments of all non-residential buildings and residential building that are multi-unit (3 household units or more) and multi-storey (2 or more storeys). Local Government New Zealand (LGNZ) has recently criticised this requirement saying "the legislation needs to allow for variation across the different areas of New Zealand instead of this ‘one-size-fits-all’ approach." LGNZ also advocates for a risk-based approach to assessment that takes into account wider social and economic impacts and not just a narrow focus on life safety.
The Bill requires seismic capacity assessments to be entered onto a publicly accessible national seismic capacity register established by the Ministry of Business, Innovation and Employment (MBIE). Written notice of the outcome of an assessment will also have to be given to the building owner together with a statement as to whether the building is earthquake-prone and, if so, that seismic work is required. An owner could respond to that notice by informing the council of their intention to provide alternative evidence of a building’s seismic capacity.
Importantly, under the Bill the level of strengthening work that can be required to be carried out remains unchanged (based on current caselaw on point). That is, a building (or its earthquake-prone part) can only be required to be strengthened so that it is no longer earthquake-prone (being 34% of the NBS, which is not proposed to be changed by the Bill).
Owners will then have 15 years from the date of the assessment to carry out the strengthening work. Owners of some buildings will be able to apply for exemptions from the 15 year timeframe, for example where the effects of the building failing are likely to be minimal (this could include farm buildings with little passing traffic). Owners of earthquake-prone Category 1 heritage buildings under the Historic Places Act 1993 will also be able to apply for extensions of up to 10 years to complete the work.
Subsequent regulations will, however, define some buildings as "priority buildings". These buildings must be prioritised by council for assessment and strengthening. This is likely to apply to buildings that might collapse and impede a major transport route in an emergency, or that are of particular significance in terms of public safety.
The Bill passed its first reading on 5 March, and has now been referred to the Local Government and Environment Select Committee, who are likely to call for public submissions to be filed in the near future. However, the Bill is unlikely to be passed before the end of this year, unless it is given priority. Given the importance of this Bill, it may be prudent for both councils and owners of earthquake-prone buildings to monitor its progress through the House and start considering whether to lodge a submission.