Hurunui/Kaikōura Earthquakes Recovery (Unreinforced Masonry Buildings) Order 2017

Order

1 Title

This order is the Hurunui/Kaikōura Earthquakes Recovery (Unreinforced Masonry Buildings) Order 2017.

2 Commencement

This order comes into force on 28 February 2017.

Part 1 Preliminary provisions

3 Interpretation

In this order, unless the context otherwise requires,—

dangerous street-facing unreinforced masonry building means a building that is defined as dangerous by clause 7(2)

listed street means any public road, footpath, or other thoroughfare that is listed in the Schedule

strengthened or secured to an acceptable standard, in relation to a parapet or facade, means strengthened or secured to a standard that the territorial authority considers is acceptable so as to reduce or remove the danger posed by those parts

territorial authority means any of the following:

(a)

the Hurunui District Council:

(b)

the Hutt City Council:

(c)

the Marlborough District Council:

(d)

the Wellington City Council.

4 Revocation

This order is revoked on the close of 31 March 2018.

5 Relationship to Civil Defence Emergency Management Act 2002

To avoid doubt, this order does not limit the Civil Defence Emergency Management Act 2002.

Part 2 Modifications to Building Act 2004

6 This Part modifies provisions of Building Act 2004

This Part modifies provisions of the Building Act 2004 (the Building Act).

7 Classification of dangerous street-facing unreinforced masonry buildings

(1)

This clause modifies sections 121, 122, and 133AB of the Building Act.

(2)

A building is also dangerous for the purposes of the Building Act if—

(a)

the building is an unreinforced masonry building; and

(b)

the building has 1 or more unreinforced masonry parapets or facades that have not been secured or strengthened to an acceptable standard and that, in an earthquake, may fall from the building onto any part of a listed street.

(3)

References in the Building Act to a “dangerous building” (or to a “dangerous building as defined in section 121” or similar terms) include references to buildings that are defined as dangerous by subclause (2).

(4)

A dangerous street-facing unreinforced masonry building is not earthquake prone for the purposes of the Building Act only as a result of this order.

8 Work to secure dangerous street-facing unreinforced masonry buildings must be done within 1 year

(1)

This clause modifies section 124 of the Building Act.

(2)

Section 124 applies if a territorial authority is satisfied that a building in its district is a dangerous street-facing unreinforced masonry building.

(3)

In a case to which this clause applies, a notice issued by the territorial authority under section 124(2)(c) of the Building Act must—

(a)

be issued no later than 29 March 2017; and

(b)

require work to be carried out on the building, within 1 year of the date on which the notice is issued, to secure the building and keep it secure, so as to reduce or remove the danger posed by the unreinforced masonry parapets or facades that, in an earthquake, may fall from the building onto any part of a listed street.

(4)

This clause does not limit the discretionary powers of a territorial authority under section 124(2)(a) to (d) of the Building Act (which, to avoid doubt, also apply to the building as a result of clause 7).

(5)

References in the Building Act to a “notice issued under section 124” (or similar terms) include references to notices referred to in this clause.

9 Requirements for notice requiring work

(1)

This clause modifies section 125 of the Building Act.

(2)

A notice issued under section 124(2)(c) of the Building Act (as modified by clause 8) in respect of a dangerous street-facing unreinforced masonry building—

(a)

must be in writing; and

(b)

does not need to be fixed to the building in question; and

(c)

must be given in the form of a copy to the persons listed in subclause (3), but need not be given to any other person listed in section 125(2) of the Building Act; and

(d)

must state the time within which the building work must be carried out (as determined under clause 8(3) instead of section 125(1)(d) of the Building Act); and

(e)

must state whether the owner of the building must obtain a building consent (as determined under clause 13) in order to carry out the work required by the notice.

(3)

A copy of the notice must be given to—

(a)

the owner of the building; and

(b)

an occupier of the building; and

(c)

Heritage New Zealand Pouhere Taonga, if the building is a heritage building.

(4)

However, the notice, if given to the owner of the building, is not invalid because a copy of it has not been given to any of the persons referred to in subclause (3).

10 Offences in relation to dangerous street-facing unreinforced masonry buildings

(1)

This clause modifies section 128A of the Building Act.

(2)

Section 128A applies to a person who fails to comply with a notice issued in respect of a dangerous street-facing unreinforced masonry building that is given to that person under section 125(2) of the Building Act (as modified by clause 9).

11 Measures to avoid immediate danger

(1)

This clause modifies section 129(1) of the Building Act.

(2)

Section 129 applies to a dangerous street-facing unreinforced masonry building if, because of the state of the building, immediate danger to the safety of people is likely.

12 No need for territorial authority to adopt or review policy

(1)

This clause modifies sections 131 to 132A of the Building Act.

(2)

A territorial authority is not required to review or amend its dangerous building policy, in respect of dangerous street-facing unreinforced masonry buildings that become dangerous buildings for the purposes of the Building Act, only as a result of this order.

13 Building consent not required for certain work under this order

(1)

This clause modifies Part 3 of Schedule 1 of the Building Act.

(2)

This clause applies to building work that is carried out—

(a)

to a dangerous street-facing unreinforced masonry building to secure the building and keep it secure, so as to reduce or remove the danger posed by the unreinforced masonry parapets or facades that, in an earthquake, may fall from the building onto any part of a listed street; and

(b)

in accordance with a notice under section 125(2) of the Building Act (as modified by clause 9).

(3)

A building consent is not required if—

(a)

the design of the building work is carried out or reviewed by a chartered professional engineer; and

(b)

the design has regard to any applicable heritage values of the building or area in which the building is located to the extent that is reasonably practicable in the circumstances; and

(c)

the work is carried out in accordance with that design; and

(d)

the relevant territorial authority is advised of the intention to carry out any building work not less than 3 working days before any building work is carried out.

(4)

However,—

(a)

if the work involves demolition of the whole building, subclause (3) does not apply:

(b)

if the work involves demolition of a part of the building, a building consent is required unless the work is within the exception in clause 31 of Schedule 1 of the Building Act.

Part 3 Modifications to Resource Management Act 1991

14 Resource consent not required for certain work under this order

(1)

This clause modifies the Resource Management Act 1991 (the RMA).

(2)

This clause applies to work—

(a)

that is carried out—

(i)

on a dangerous street-facing unreinforced masonry building to secure the building and keep it secure, so as to reduce or remove the danger posed by the unreinforced masonry parapets or facades that, in an earthquake, may fall from the building onto any part of a listed street; and

(ii)

in accordance with a notice under section 125(2) of the Building Act (as modified by clause 9); and

(b)

that does not involve demolition of the whole or a part of the building.

(3)

The work is a permitted activity for the purposes of the relevant district plan.

(4)

A resource consent is not required for the work.

(5)

A term defined in the RMA that is used, but not defined, in this clause has the same meaning as in the RMA.

Schedule List of streets to which this order applies

cl 3

Hurunui District

Markham Street, Amberley

Mountainview Road, Culverden

Hutt City

Cuba Street, Lower Hutt

High Street, Lower Hutt

Hillary Court (being the area formed within Hillary Court, Vogel Street, and Treadwell Street), Naenae, Lower Hutt

That part of Jackson Street between Cuba Street and Petone Avenue, Petone, Lower Hutt

Waiwhetu Road, Waterloo, Lower Hutt

Marlborough District

Alfred Street, Blenheim

High Street, Blenheim

Wellington City

Adelaide Road, Berhampore/Mt Cook/Newtown, Wellington

Bond Street, Wellington Central, Wellington

Courtenay Place, Te Aro, Wellington

Coutts Street, Kilbirnie, Wellington

Cuba Street, Te Aro, Wellington

Dixon Street, Te Aro, Wellington

Dundas Street, Seatoun, Wellington

Egmont Street, Te Aro, Wellington

Eva Street, Te Aro, Wellington

Ganges Road, Khandallah, Wellington

Ghuznee Street, Te Aro, Wellington

Hobart Street, Miramar, Wellington

Holland Street, Te Aro, Wellington

Hutt Road, Pipitea, Wellington

Kilbirnie Crescent, Kilbirnie, Wellington

Lambton Quay, Wellington Central, Wellington

Manners Street, Te Aro, Wellington

Miramar Avenue, Miramar, Wellington

Riddiford Street, Newtown, Wellington

Rintoul Street, Newtown, Wellington

Taranaki Street, Te Aro, Wellington

The Parade, Island Bay, Wellington

Tinakori Road, Thorndon, Wellington

Tory Street, Te Aro, Wellington

Victoria Street, Te Aro, Wellington

Vivian Street, Te Aro, Wellington

Wakefield Street, Wellington Central, Wellington

Willis Street, Wellington Central, Wellington

Woodward Street, Wellington Central, Wellington

Michael Webster,
Clerk of the Executive Council.

Statement of reasons

This note is not part of the order, but is intended to indicate its general effect.

This order is made under the Hurunui/Kaikōura Earthquakes Recovery Act 2016 (the Recovery Act) and its effect is temporary. It comes into effect on 28 February 2017 and is revoked on 31 March 2018. The Recovery Act enables orders to be made that grant exemptions from, modify, or extend the provisions of certain enactments. (For simplicity, a reference, in this statement of reasons, to the modification of provisions of an enactment includes the granting of an exemption from, and the extension of, the provisions of the enactment.)

The order relates to certain street-facing unreinforced masonry buildings that have 1 or more unreinforced masonry parapets or facades that have not been secured or strengthened to an acceptable standard, and that may fall from the buildings, in an earthquake, onto any part of a public road, footpath, or other thoroughfare that is listed in the Schedule. The order applies to Hurunui, Hutt City, Marlborough, and Wellington City.

In summary, the effect of the order is that the 4 territorial authorities are empowered to issue notices under the Building Act 2004 (the Building Act) to require work to be done to secure the parapets or facades referred to above, and building owners must carry out the work within 12 months of the date of the notice.

Unreinforced masonry buildings perform poorly in earthquakes. Thirty-nine people lost their lives because of the failure of unreinforced masonry buildings in the Christchurch earthquake of 22 February 2011. Following the Hurunui/Kaikōura earthquakes of 14 November 2016, certain areas of New Zealand now have an increased probability of a damaging earthquake occurring.

The securing requirements under the order will therefore improve the performance of unreinforced masonry buildings during an earthquake and provide an immediate benefit by saving lives and preventing injury. This safety enhancement to these buildings in turn will contribute to the overall public confidence in the performance of these buildings in the 4 territorial authority districts. The requirements align with the Government’s wider focus on improving regional resilience by enhancing the likely ability of the 4 districts to cope with and respond effectively to a significant earthquake.

The order has, in relation to the street-facing unreinforced masonry buildings, the effect of modifying certain provisions of the following enactments:

An order under section 7 of the Recovery Act may be made only on the recommendation of the relevant Minister.

Section 8(1) of the Recovery Act provides that a relevant Minister must not recommend the making of an order unless the relevant Minister is satisfied that (among other things)—

  • the order is necessary or desirable for the purpose of the Recovery Act; and

  • the extent of the order is not broader than is reasonably necessary to address the matters that gave rise to the order.

The relevant Minister is the Minister responsible for the administration of an enactment that this order modifies. Where there is more than 1 responsible Minister, the relevant Minister is each of those responsible Ministers acting together. For this order, the relevant Minister is the following Ministers acting together:

  • the Minister for Building and Construction (as the Minister responsible for the administration of the Building Act):

  • the Minister for the Environment (as the Minister responsible for the administration of the RMA).

The effects of this order are set out below, together with a statement of the reasons, in each case, why the relevant Minister is satisfied of the matters in section 8(1) of the Recovery Act and considers it appropriate to recommend the making of this order.

Because part of the order relates to the RMA, the relevant Minister also has to consider—

  • the effects on the environment of any controls provided for in the order; and

  • whether those controls avoid, remedy, or mitigate any adverse effects.

The Minister for the Environment, as the relevant Minister for the RMA, has considered the controls and this assessment is included in the reasons below.

Modifications to Building Act

This order makes the following modifications to the Building Act.

Clause 7 defines dangerous street-facing unreinforced masonry buildings and declares these buildings to be dangerous buildings for the purposes of the Building Act. This means, for example, that the relevant territorial authority may exercise any of the powers in the Building Act that it may exercise in respect of dangerous buildings under that Act (see below).

Clause 7(4) also clarifies that this order does not declare the buildings to which the order applies to be earthquake prone for the purposes of the Building Act. A different regime will apply to earthquake-prone buildings once the Building (Earthquake-prone Buildings) Amendment Act 2016 comes into force. The buildings affected by this order may also come within that regime, but this order itself does not bring them into that regime.

Clause 8 provides that notices issued by territorial authorities under section 124(2)(c) of the Building Act in respect of dangerous street-facing unreinforced masonry buildings must be issued no later than 29 March 2017 and must require work to be done within 12 months to secure those parapets or facades that may fall in an earthquake.

The order does not require work to be done to strengthen the rest of the building, but territorial authorities will have existing discretionary powers under the Building Act in respect of the rest of the building.

Some of the other effects of clauses 7 and 8 are that territorial authorities will have, in respect of unreinforced masonry buildings, the following powers that they have currently in respect of other dangerous buildings:

  • the power in section 124(2)(a) of the Building Act to put up fences to prevent people from approaching the building nearer than is safe:

  • the power in section 124(2)(b) of the Building Act to attach a notice to the building that warns people not to approach the building:

  • the power in section 124(2)(d) of the Building Act to issue a notice restricting entry to the building:

  • the powers in the Building Act in respect of buildings that are adjacent to, adjoining, or nearby dangerous buildings:

  • the powers in section 126 of the Building Act to apply to a District Court for an order authorising the territorial authority to carry out building work if any work required under a notice issued by the territorial authority is not completed or is not proceeding with reasonable speed:

  • the powers in section 127 of the Building Act.

Clause 9 relates to the contents of the notices that the order empowers territorial authorities to issue, and the persons to whom the notices must be given. The modifications have regard to the limited scope and time frame of the order.

Clause 10 provides that the offence provision in section 128A of the Building Act will apply if a person fails to comply with a notice that requires work to be done. The penalty in section 128A of the Building Act is a fine not exceeding $200,000.

Clause 11 modifies section 129 of the Building Act to ensure that that section and section 130 apply to unreinforced masonry buildings if, because of the state of the building, immediate danger to the safety of people is likely. This means, for example, that the territorial authority can take action to remove the danger under warrant and then apply to the District Court for confirmation of the warrant.

Clause 12 modifies sections 131 to 132A of the Building Act so that a territorial authority is not required to review or amend its dangerous building policy in respect of buildings affected by this order. This will enable building owners to be notified promptly of the securing requirements without requiring a territorial authority to have to first consult with its community on an amendment to the dangerous building policy.

Clause 13 provides that a building consent is not needed for work required under this order except as stated in that clause. Work to demolish all or a part of a building affected by this order will require a building consent unless the work to remove a building element falls within existing exemptions in Schedule 1 of the Building Act.

Relevant Minister’s reasons

The relevant Minister considers that these modifications to the Building Act are necessary or desirable for the purpose of the Recovery Act, and the extent of this aspect of the order is no broader than is reasonably necessary.

In relation to clause 7,—

  • unreinforced masonry buildings perform poorly during earthquakes:

  • falling unreinforced masonry parapets and facades present significant risks to life safety during earthquakes:

  • the requirement to secure unreinforced masonry parapets and unreinforced masonry facades will only apply to 4 districts identified by GNS Science as having a higher probability of a damaging earthquake occurring in the next 12 months. Within those 4 districts, only buildings on those streets specified in the Schedule will be covered by the order. These parameters will limit the scope of the order only to those buildings that pose the greatest life safety risk during earthquakes.

In relation to clause 8,—

  • following the 14 November 2016 Hurunui/Kaikōura earthquakes, in certain areas of New Zealand there is currently a heightened risk of an earthquake occurring that could damage unreinforced masonry buildings and pose risks to life safety. The affected area extends from Amberley and Culverden in the south to Lower Hutt in the north:

  • in the Wellington region immediately after the earthquakes, the risk of a further damaging earthquake was approximately 8 times what it was before the Hurunui/Kaikōura earthquakes. This risk decreases over time. The risk decreased to about 3 times the relative risk 3 months after the earthquakes, and will decrease to approximately 2 times the relative risk 12 months after the earthquakes. Further aftershock activity could change this risk level:

  • to achieve the objective of improving life safety outcomes, it is necessary to align the time frame for the required securing work with the time frame of heightened earthquake risk:

  • the territorial authorities of the 4 districts already have the power to issue a notice under section 124 of the Building Act to require work to be carried out if they identify that a particular building is dangerous. This order modifies that existing power to enable these specific buildings to be targeted to reduce or remove the risk that they pose in an earthquake.

In relation to clause 9,—

  • section 124 notices are normally required to be given to certain people with an interest in the building. Because of the need for this work to be undertaken quickly, the territorial authority should have to provide copies of the notice only to those directly affected by the requirement in the order:

  • it is also proposed that notices will not need to be attached to the building. This is because the building does not pose a life safety threat unless there is a damaging earthquake. Also, many of the buildings affected by this order are likely to have already been identified as being earthquake prone. Requiring those buildings to display a second section 124 notice in relation to this securing work, which must be completed within a much shorter time frame, may create unnecessary confusion:

  • to minimise the cost impact on building owners affected by the order, many of whom have stated that cost is a key barrier to improving the seismic performance of their buildings, the Government has established a fund to meet up to half of the securing costs an owner would face as a result of the order.

In relation to clauses 10, 11, and 12,—

  • it is important that territorial authorities retain existing enforcement powers under the Building Act if building owners do not comply with the new securing requirements under a section 124 notice issued to them. This will ensure that owners of all buildings that are issued with notices under section 124 are treated consistently:

  • owners of buildings who receive a section 124 notice will have access to the existing determinations processes under the Building Act. This means they can seek a review of a territorial authority’s decision to issue them with a section 124 notice under this order:

  • territorial authorities should not have to undertake the required processes to amend their dangerous buildings policies as a result of this order. The order is in force only for a defined period, and requiring territorial authorities to amend their policies via the statutory consultation processes would be unduly onerous.

In relation to clause 13,—

  • requiring building owners to obtain a building consent will impact on their ability to complete this securing work within the specified 12-month time frame:

  • requiring the work to be designed or reviewed by a chartered professional engineer before it can be undertaken without a building consent will provide protections to ensure that the work is done to a sufficient standard so as to reduce or remove the danger that those parts of the building pose:

  • requiring the territorial authority to be advised of the intention to carry out the work before it is started will provide necessary oversight consistent with the aims of this order:

  • building work to secure an unreinforced masonry facade or unreinforced masonry parapet must comply with the Building Code and be done in accordance with the engineer’s design. A territorial authority will determine whether the securing work undertaken reduces or removes the danger that the building poses before confirming compliance with the notice:

  • the Ministry of Business, Innovation, and Employment will issue guidance setting out possible design solutions for securing unreinforced masonry parapets and facades.

Modifications to RMA

This order makes the following modifications to the RMA.

Clause 14 provides that work required under this order is a permitted activity for the purposes of the relevant district plan, and that resource consent is not needed for work required under this order, except as provided in that clause.

Relevant Minister’s reasons

The relevant Minister considers that these modifications to the RMA are necessary or desirable for the purposes of the Recovery Act, and the extent of this aspect of the order is no broader than is reasonably necessary—

  • the deemed permitted statuses are necessary because requiring building owners to obtain resource consents for securing work using the normal RMA processes would significantly delay their ability to complete the work within the required time frame and would involve an unacceptable risk that some consent applications may be declined or otherwise appealed against (with resulting delays):

  • it is not intended that the exemption from obtaining a resource consent will allow owners of buildings to demolish their building or undertake work that is outside the scope of the securing work required by the order without obtaining any necessary consents:

  • the exemption from the requirement to obtain a resource consent is temporary and applies only to securing work required under this order that is undertaken within 12 months from the date of the building owner’s notice.

Consideration of effects on environment

Section 8(1)(e) of the Recovery Act requires the relevant Minister, if the order relates to the RMA, to consider the effects on the environment of any controls provided for in the order, and whether those controls avoid, remedy, or mitigate any adverse effects.

There are potential heritage impacts if heritage buildings are modified without a resource consent. These effects on the environment are justified because of the limited type of securing work within the scope of this order. I consider that the significant life safety gains that will be achieved through taking action as soon as possible and the controls on these effects in the order are sufficient to mitigate the effects on the environment in this regard.

The controls are—

  • the requirement in clause 9 that territorial authorities are required to provide a copy of any notice issued to owners of heritage buildings to Heritage New Zealand Pouhere Taonga:

  • the requirement in clause 13 for the design of the building work to have regard to any applicable heritage values of the building or area in which the building is located to the extent that is reasonably practicable in the circumstances:

  • the fact that owners of heritage buildings will not be able to demolish a parapet or facade without a resource consent. Current district plan provisions for heritage protection will continue to apply in the case of demolition:

  • the guidance material issued by the Ministry of Business, Innovation, and Employment setting out possible design solutions for securing unreinforced masonry parapets and facades will include designs that give consideration to heritage requirements and will be developed in consultation with the Ministry for Culture and Heritage, Heritage New Zealand Pouhere Taonga, and territorial authority heritage planners:

  • the Ministry of Business, Innovation, and Employment will provide information on how owners of heritage buildings can consider heritage values when managing their considerations more widely:

  • Heritage New Zealand Pouhere Taonga has been consulted on the proposals in this order in accordance with section 9 of the Recovery Act.

Regulatory impact statement

The regulatory impact analysis requirements apply to this proposal but have not been met, due to the time frame for consideration. The order will be subject to a post-implementation review.

Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 27 February 2017.

This order is administered by the Ministry of Business, Innovation, and Employment.