David Seymour, in Committee, to move the following amendments:
In clause 6, after the definition of earthquake-prone building (page 7, after line 10), insert:
earthquake life risk rating has the meaning given in section 133ABC
In clause 7, after new section 11(ia) (page 8, after line 24), insert:
sets a methodology for determining the earthquake life risk rating of certain earthquake-prone buildings; and
In clause 23, after new section 133ABB (page 13, after line 35), insert:
133ABC Meaning of earthquake life risk rating
In this Act, earthquake life risk rating in relation to a building or a part of a building means the probability during a 1–year period of a person being killed by the collapse of the building or part of it because of a moderate earthquake as defined for the purposes of section 133AB.
The probability shall be expressed as a fraction in which the numerator is 1 and the denominator is the year divisor.
An earthquake life risk rating of 1/100,000 means that the building has been assessed, taking account of its state, uses, and location, as offering in any year a 1 in 100,000 chance of causing the death of a person in a moderate earthquake.
The earthquake life risk rating of a building must be determined when required under section 133ASA(3) to the satisfaction of the territorial authority in whose district the building is situated in accordance with the methodology set under section 133AZAA and the requirements in section 133AS.
A building or part of a building is deemed to have a low earthquake life risk if that methodology gives a rating less than a level set for this purpose from time to time under section 132AZAA.
In clause 23, after new section 133AL(2)(c) (page 27, after line 32), insert
“; and”, and also insert:
in relation to a building in respect of which an exemption applies under section 133ASA (low earthquake life risk rating) that is withdrawn (and not replaced) 5 years from the date of that withdrawal.
In clause 23, after new section 133AS (page 29, after line 13), insert:
133ASA Owner may apply for exemption if building has low earthquake life risk rating
The owner of a building or a part of a building that is subject to an EPB notice that the owner believes qualifies for a low earthquake life risk rating may apply to a territorial authority for an exemption from the requirement to carry out seismic work on the building or part of the building.
An application must be in writing and must be accompanied by any fee imposed by the territorial authority under section 219.
The territorial authority must deal with the application promptly, by doing one of the following:
if the territorial authority is satisfied that the building or the part of the building does qualify for a low earthquake life risk rating,—
granting the exemption and issuing an EPB exemption notice; and
recording the details of the exemption in the EPB register and updating other information in the EPB register as necessary; or
notifying the owner in writing that the authority is not satisfied that the building qualifies, and that the exemption has not been granted.
An EPB exemption notice under this section must indicate that it may cease to apply if there is a material change in circumstances that would be likely to result in the building ceasing to qualify for a low earthquake life risk rating.
An owner of a building that is exempt under this section must inform the territorial authority promptly upon becoming aware of circumstances likely to mean that the building is likely to cease to qualify for a low earthquake risk rating.
In all other respects an EPB notice of exemption under this section has the effects and is subject to the conditions and consequences of an EPB notice of exemption issued under section 133AS, and that section and others that refer to it shall apply accordingly.
In clause 23, after new section 133AZ (page 38, after line 4), insert:
133AZAA Chief executive must set methodology for rating buildings for earthquake life safety risk
The chief executive must set a methodology for calculating the earthquake life risk rating of an EPB building.
The methodology must estimate the probability of injury or death referred to in section 133AB from building damage because of a moderate earthquake, taking into account:
the seismic capacity of the building; and
construction characteristics that increase and decrease the safety risk in the event of earthquake damage; and
the current and expected occupancy of the building including numbers and the frequency and duration of occupancy); and
arrangements likely in practice to limit the risk that the foregoing conditions might change to affect adversely the earthquake life risk; and
the seismic risk characteristics of the area in which the building is located; and
its location in relation to other buildings or building types; and
any other characteristics of the building or part of the building that may be relevant.
The probability shall be expressed as a fraction in which the numerator is 1 and the denominator is the appropriate divisor.
An earthquake life risk rating of 1/100,000 means that the building has been estimated to offer in any year period, taking account of its state, likely uses, and location, a 1 in 100,000 chance of causing the death of a person in a moderate earthquake.
The chief executive must also prescribe a threshold point below which the building is deemed to present a low earthquake life risk, and the fixing of that point in the rating range should be directed to—
minimise the risks that this subpart causes irrational expenditure and a focus of regulatory, social, and private investment on earthquake strengthening, disproportionate to other health and safety activities with greater health and safety benefits; and
ensuring that work on buildings to reduce earthquake life safety risks is prioritised to maximise safety improvements without wasted cost; and
avoiding the costs to communities of unnecessary abandonment or loss of heritage and other community and commercial buildings for which strengthening or replacement work is uneconomic and unlikely, if they have low earthquake life risk ratings; and
ensuring that a cost benefit analysis of the proposed methodology is carried out.
The chief executive must ensure that descriptions and explanations of the prescribed threshold point for low earthquake life risk (including in any exemption notice) assist building owners and users—
to compare the risks of using buildings with low earthquake life risk ratings with the life safety risks of other activities commonly faced and accepted in ordinary life such as and including using New Zealand roads; and
to understand that it does not affirm the safety of the building if an earthquake occurs, but instead reflects matters such as the relative likelihood of a damaging earthquake, numbers of occupants, and how much time they spend in the building.
Before the methodology and the proposed low risk threshold point are released for consultation the chief executive must ensure that—
they are assessed by a recognised expert in the field of seismic engineering risk with international recognition; and
international benchmarks for this type of risk metric are considered, including, but not limited to, the Annual Individual Fatality Risk; and
cost benefit analysis is carried out and the results are reflected in the methodology.
The chief executive must set the methodology and prescribed threshold for low earthquake life risk no later than 1 year after the commencement of this section.
The methodology may incorporate material by reference in accordance with sections 405 to 413.
The chief executive may amend or replace the methodology and the prescribed threshold at any time.
If the chief executive amends or replaces the methodology or the threshold, sections 133AZA and 133AZB apply in respect of the amendment or replacement with any necessary modifications.
Sections 133AZA to 133AZC shall apply as the context permits to the methodology and threshold required under this section as if they were included in references to the EPB methodology.
New clauses 36A and 36B
After clause 36 (page 44, after line 15), insert:
36A Section 388 amended (Strict liability and defences)
After section 388(2), insert:
In relation to a building with a low earthquake life risk rating the defence in subsection (2)(b) must not be denied because of the foreseeability of damage in an earthquake and the possibility of provision against the consequences by the defendant, and the rating shall be prima facie evidence that relying on an exemption was reasonable in the absence of extraordinary reasons to the contrary.
36B New section 392A inserted (Presumption of reasonableness in relation to buildings with low earthquake life risk rating)
After section 392, insert:
392A Presumption of reasonableness in relation to buildings with low earthquake life risk rating
In any civil proceedings against any person referred to in sections 390 to 392 inclusive, or any building owner or employee or agent of an owner, in respect of any loss or damage arising out of or in connection with injury or loss of life because of earthquake damage to a building that had at the relevant time a low earthquake life risk rating, the factors that qualified the building for that rating shall be prima facie evidence that the defendants acted reasonably in granting any exemption under section 133ASA and in relying on it at the relevant time as the case may be.