Building (Earthquake-prone Buildings) Amendment Bill

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Explanatory note

General policy statement

This Bill amends the Building Act 2004 to give effect to reforms announced in August 2013 to improve the system for managing earthquake-prone buildings.

A clear view has emerged that from society’s perspective the current system for managing earthquake-prone buildings is not achieving an acceptable level of risk. Many earthquake-prone buildings are not being dealt with in a timely and cost-effective manner.

This Bill introduces a revised system for managing earthquake-prone buildings that strikes a balance between protecting people from harm in an earthquake and managing the costs of strengthening or removing buildings. The new system provides a significantly greater role for central government, particularly in relation to leadership and direction, to make better use of the capability and resources of central and local government.

This Bill is the result of a comprehensive review undertaken by Government, and is broadly in line with the recommendations in Volume 4 of the Canterbury Earthquakes Royal Commission’s Final Report.

The amendments in the Bill include—

  • requiring territorial authorities to undertake a seismic capacity assessment of existing non-residential buildings and multi-storey and multi-unit residential buildings in their districts within 5 years from commencement (with certain buildings to be prioritised for assessment) using a methodology to be specified and published by the Ministry of Business, Innovation, and Employment:

  • providing for a register of information on the seismic capacity of buildings to be held by the Ministry of Business, Innovation, and Employment:

  • clarifying the current threshold for defining an earthquake-prone building, including that it applies to parts of buildings as well as whole buildings:

  • clarifying that the level of work required for earthquake-prone buildings is only such that the building, or the affected part, is no longer earthquake-prone:

  • requiring work on existing earthquake-prone buildings to be undertaken within a single national time frame—within 20 years of the legislation taking effect (ie, assessment by territorial authorities within 5 years and work completed within 15 years of assessment):

  • providing for work on priority buildings (to be defined in regulations) to be prioritised:

  • providing for exemptions from requirements to undertake work for certain buildings:

  • providing that owners of buildings that are Category 1 historic places under the Historic Places Act 1993 may apply to the relevant territorial authority for an extension of up to 10 years to complete the work, and the owners must manage risk if an extension is granted:

  • enabling territorial authorities (that are building consent authorities) to issue building consents for required work on buildings that are earthquake prone without requiring other upgrades (for access and facilities for people with disabilities and for means of escape from fire):

  • providing for a much greater role for central government, including in relation to monitoring system performance, and providing direction and guidance.

The Bill has been drafted on the basis of the current law. However, because some aspects of the Government’s reforms relate to legislation that has not yet been passed, the Bill will need to be amended once this occurs to fully reflect the decisions made by the Government. For example, the Bill will need to be amended to enable owners of buildings on the soon-to-be established National Historic Landmarks List under the Heritage New Zealand Pouhere Taonga Bill to apply for an extension of up to 10 years to complete strengthening work.

Departmental disclosure statement

The Ministry of Business, Innovation, and Employment is required to prepare a disclosure statement to assist with the scrutiny of this Bill. It provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

A copy of the statement can be found at http://legislation.govt.nz/disclosure.aspx?type=bill&subtype=government&year=2013&no=182& .

Regulatory impact statement

The Ministry of Business, Innovation, and Employment produced a regulatory impact statement on 23 July 2013 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

A copy of this regulatory impact statement can be found at—

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is a commencement provision. Unless brought into force earlier by Order in Council, the Bill will come into force 2 years after the date of Royal assent.

Part 1
Amendments to principal Act

Clause 3 provides that Part 1 amends the Building Act 2004 (the Act).

Clause 4 consequentially amends section 4. Section 4 sets out the principles to be applied by certain persons in performing functions or duties, or exercising powers, under the Act. The section is extended so that the principles also apply in relation to a territorial authority setting a time frame for completing seismic work on priority buildings (see new section 133AZ, inserted by clause 23).

Clause 5 inserts new section 5A and a new cross-heading. The new section highlights the existence of new Schedule 1AA, which will contain application, savings, and transitional provisions relating to amendments to the Act made by future Bills as well as this Bill.

Clause 6 amends section 7, which is an interpretation provision, to insert definitions of terms used in this Bill and also a definition of heritage dam.

Clause 7 amends section 11, which describes the role of the chief executive of the Ministry of Business, Innovation, and Employment, to include the chief executive's new roles relating to earthquake-prone buildings.

Clause 8 amends section 85 to implement a consequential amendment that was intended to be made by the Criminal Procedure Act 2011. Section 85 is an offence provision. Section 413 and Schedule 3 of the Criminal Procedure Act 2011 purported to amend section 85(2) so that liable to a fine not exceeding $20,000 would read liable on conviction to a fine not exceeding $20,000. However, before the amendment came into force on 1 July 2013, section 85 was replaced by the Building Amendment Act 2012. The phrase that was to be amended moved from subsection (2) to subsection (4), so the amendment under the Criminal Procedure Act 2011 misfired. This clause makes the amendment to section 85(4) that was intended to have been made to its antecedent.

Clause 9 amends section 95, under which code compliance certificates are issued for building work, to require a territorial authority to add new buildings to the seismic capacity register, if required (see clauses 33 to 35), as soon as practicable after a code compliance certificate is issued for the construction of the building.

Clause 10 amends section 112. Section 112(1)(a) requires building consent authorities, before granting a building consent for the alteration of an existing building, to be satisfied that, after the alteration, the building will comply as nearly as is reasonably practicable with the provisions of the building code that relate to means of escape from fire and access and facilities for persons with disabilities (where required). The amendment makes section 112 subject to new section 133AX (inserted by clause 23), which creates an exemption from section 112(1) in certain circumstances.

Clauses 11 and 12 consequentially amend headings.

Clause 13 repeals section 122, which sets out the meaning of earthquake-prone building. The definition is relocated to new section 133AB, inserted by clause 23.

Clause 14 inserts new section 123A, which clarifies the application of subpart 6 of Part 2 to parts of buildings. That subpart deals with dangerous, affected, and insanitary buildings.

Clause 15 consequentially amends a cross-heading.

Clause 16 amends section 124. Subclauses (1) and (2) remove references to earthquake-prone buildings. Subclause (3) repeals section 124(3), which currently provides that the section does not limit the powers of a territorial authority. An equivalent statement was made in section 65(1) of the Building Act 1991, on which section 124 is based. However, there is nothing in section 124 to support an interpretation that it would limit the powers of a territorial authority. For that reason, section 124(3) is redundant. New section 133AV, inserted by clause 23, is based on section 124 but does not include an equivalent of section 124(3) because it is not necessary. To avoid any inference that new section 133AV is different in effect from section 124 in this respect, section 124(3) is consequentially repealed (as is section 154(2), for the same reason, by clause 24).

Clause 17 amends section 125, which sets out the requirements for a notice given under section 124, to clarify the reference to statutory authorities (for consistency with new section 133AN, inserted by clause 23).

Clauses 18 to 22 make consequential amendments to remove references to earthquake-prone buildings and to correct cross-references.

Clause 23 inserts new subpart 6A of Part 2, which sets out provisions relating to earthquake-prone buildings.

New section 133AA is an interpretation provision.

New section 133AB sets out the meaning of earthquake-prone building. The section mirrors existing section 122(1), except that the wording is adjusted to clarify that, if a building will have its ultimate capacity exceeded in a moderate earthquake (as defined in regulations), the building is earthquake prone only if there is a likelihood of injury, death, or damage being caused if the building were to collapse (rather than a likelihood that the building would collapse).

New section 133AC sets out the meaning of priority building and outlines how new subpart 6A of Part 2 applies to priority buildings. Priority buildings will be defined in regulations made under new section 401C(a), inserted by clause 37. Examples of what may be defined as priority buildings include:

  • buildings that could, if they were to collapse in an earthquake, impede a transport route of strategic importance in an emergency; and

  • buildings of particular significance in terms of public safety (for example, because of what may fall off or from them in an earthquake).

New section 133AD specifies that the new subpart does not apply to residential buildings other than multi-storey or multi-unit residential buildings. This mirrors existing section 122(2).

New section 133AE sets out how the new subpart applies to parts of buildings.

New section 133AF requires territorial authorities to complete seismic capacity assessments of existing buildings within their districts within 5 years after the section commences.

New section 133AG requires the chief executive to set a methodology for territorial authorities to use for the purpose of carrying out seismic capacity assessments under new section 133AF. The methodology must, among other things, specify how territorial authorities are to prioritise the assessment of priority buildings within their district.

New sections 133AH and 133AI set out the consultation, notification, and availability requirements relating to the methodology set under new section 133AG.

New sections 133AJ to 133AM: after completing a seismic capacity assessment of a building, a territorial authority must notify the building owner of the outcome of the assessment (new section 133AJ). Then, within the time frame set out in new section 133AM, the territorial authority must record the outcome of the assessment on the seismic capacity register (new section 133AK) and issue a seismic work notice if the building is earthquake prone (new section 133AL).

New section 133AN sets out the requirements for a seismic work notice. The requirements are the same as those for a notice given under section 124, except that a seismic work notice must state the work that is required (ie, work to ensure that the building is no longer earthquake prone) and the deadline for completing the work. New section 133AN(4) clarifies who is responsible for attaching a seismic work notice to the building. New section 133AN(5) provides for a notice to be replaced if it ceases to be attached to the building or becomes illegible.

New section 133AO specifies the deadline for completing seismic work on a building. The deadline will generally be 15 years after the date on which an outcome notice for a building is issued under new section 133AJ. However,—

  • in the case of a priority building, the deadline may be earlier than 15 years after the date of the outcome notice (depending on the time frame set for that building by the territorial authority under new section 133AZ); and

  • in the case of a building listed under Part 2 of the Historic Places Act 1993 as a Category 1 historic place (a Category 1 heritage building), the deadline may be up to 25 years after the date of an outcome notice (if an extension of time is granted under new section 133AT).

New section 133AP provides for a seismic work notice to be removed from a building when the building is no longer earthquake prone.

New section 133AQ sets out what a territorial authority must do if the meaning of moderate earthquake (as defined in regulations) changes. If the territorial authority considers that the outcome of a previous seismic capacity assessment of a building is likely to be incorrect as a result of the change, the territorial authority must reassess the seismic capacity of that building.

New section 133AR enables the owner of a building to provide alternative evidence of a building's seismic capacity. Alternative evidence must be derived from an engineering test specified in the methodology set under new section 133AG and the territorial authority must assess that evidence in accordance with the methodology.

New section 133AS enables the owner of a building to apply for an exemption from the requirement to carry out seismic work on a building. Before granting an exemption, a territorial authority must be satisfied that the building meets criteria to be specified in regulations made under new section 401C(b), inserted by clause 37. If an exemption is granted, an exemption notice is attached to the building instead of the seismic work notice.

New section 133AT enables the owner of a Category 1 heritage building to apply for an extension of time to complete seismic work on the building. If a territorial authority grants an extension, it must issue a new seismic work notice that states the extended date by which the seismic work must be completed.

New section 133AU requires territorial authorities to update the seismic capacity register as necessary.

New section 133AV authorises territorial authorities to impose, and requires people to comply with, safety requirements in relation to earthquake-prone buildings. These matters are currently provided for in existing sections 124 and 128.

New section 133AW authorises territorial authorities to carry out seismic work on a building if the work is not completed by the required deadline or is not proceeding with reasonable speed. This is currently provided for in existing section 126.

New section 133AX authorises a territorial authority to grant a building consent for the alteration of a building even if, after that alteration, the building will not comply, as nearly as is reasonably practicable, with the provisions of the building code that relate to means of escape from fire and access and facilities for persons with disabilities. However, the alteration must be for the purpose of ensuring that the building is no longer earthquake prone, and the territorial authority must be satisfied that—

  • the alteration meets criteria prescribed under new section 401C(c), inserted by clause 37; and

  • ensuring that the building is no longer earthquake prone outweighs any detriment likely to arise as a result of any non-compliance with the building code.

New section 133AY creates 4 offences relating to earthquake-prone buildings. Two of these are existing offences under the Act, as follows:

  • failing to complete seismic work on a building by the deadline (punishable by a fine of up to $200,000)—see existing section 128A(1):

  • failing to comply with safety requirements imposed by a territorial authority (punishable by a fine of up to $200,000 plus $20,000 for each day that the offence continues)—see existing section 128A(2).

The 2 new offences are as follows:

  • failing to properly attach a seismic work notice or an exemption notice to a building if required to do so (punishable by a fine of up to $20,000):

  • failing to notify a territorial authority if a seismic work notice or an exemption notice ceases to be attached to a building or becomes illegible (punishable by a fine of up to $20,000).

New section 133AZ requires territorial authorities to set a time frame for completing seismic work on priority buildings within its district, which may be less than 15 years from the date of an outcome notice given under new section 133AJ.

New sections 133AZA and 133AZB set out the consultation, notification, and availability requirements relating to the time frame set under new section 133AZ.

New section 133AZC sets out what a territorial authority must do if it amends or replaces a time frame set under new section 133AZ. If the deadline for completing seismic work on a priority building has changed as the result of the amendment or replacement, the territorial authority must issue a new seismic work notice for the building.

Clause 24 amends section 154, which sets out the powers of regional authorities in respect of dangerous dams, to remove a redundant subsection (see description of clause 16).

Clause 25 amends section 155, which sets out the requirements for a notice given under section 154 (Powers of regional authorities in respect of dangerous dams), to clarify the reference to statutory authorities. This amendment is made for consistency with new section 133AN, inserted by clause 23.

Clause 26 inserts new section 169A, which creates a monitoring role for the chief executive in respect of the application of new subpart 6A of Part 2 and its effectiveness in regulating earthquake-prone buildings.

Clause 27 amends section 175, under which the chief executive may publish information for the guidance of specified persons for specified purposes. The amendment enables the chief executive to publish information for the guidance of owners of buildings and members of the public in relation to the application of new subpart 6A of Part 2.

Clause 28 amends section 177, which provides for a party to apply to the chief executive for a determination in relation to specified matters. The amendments enable a party to seek a determination in relation to the exercise, failure or refusal to exercise, or proposed or purported exercise by a territorial authority of its powers of decision under new subpart 6A of Part 2, other than a decision under new section 133AW (Territorial authority may carry out seismic work) or any of new sections 133AZ to 133AZC (which relate to the time frame for completing seismic work on priority buildings).

Clause 29 amends section 181. That section enables the chief executive to make a determination, on his or her own initiative, on a matter referred to in section 177. The amendment aligns section 181 with the changes made to section 177 by clause 27 and extends the matters on which the chief executive may make a determination to include any power of decision of a territorial authority under new subpart 6A of Part 2.

Clause 30 amends section 216 to remove a duplicate provision. Existing section 216(2)(b)(iii) and (ivc) are identical, so the latter is repealed.

Clause 31 amends section 218, which requires territorial authorities to provide information to the chief executive, in accordance with regulations, for the purpose of facilitating the monitoring by the chief executive of current and emerging trends and building design under section 169. The section is amended to cover the monitoring role of the chief executive under new section 169A, inserted by clause 26.

Clause 32 consequentially amends section 222, which provides an inspection power for territorial authorities, to reflect that the regulation of earthquake-prone buildings has moved from subpart 6 of Part 2 to new subpart 6A of Part 2.

Clause 33 amends section 273, which requires the chief executive to keep certain registers. As amended, the section will require the chief executive to keep a seismic capacity register—ie, a register of buildings for the purposes of new subpart 6A of Part 2. The seismic capacity register will also contain information about new buildings (see section 95 as amended by clause 9). Territorial authorities, as well as the chief executive, will be able to record and update information in the register.

Clause 34 amends section 274, which sets out the purposes of the various registers kept under section 273, to add that the purpose of the seismic capacity register is to enable members of the public to know whether a building is earthquake prone, together with information about the building.

Clause 35 inserts new sections 275A and 275B.

New section 275A specifies the information that must be kept in the seismic capacity register, which includes any information prescribed under new section 401C(d), inserted by clause 37.

New section 275B provides an exception to the requirement in section 273(2) that registers be fully and freely accessible. The seismic capacity register may contain information that is prescribed by regulations made under new section 401C(d). The chief executive will be required to restrict public access to that information if required to do so by regulations made under new section 401C(e) or if the chief executive considers that it is not necessary, or it is not desirable, for that information to be publicly available. However, this does not prevent the chief executive from supplying the information to entities within the State services or, with the permission of the person to whom the information relates, to any person.

Clause 36 consequentially amends section 381, under which a District Court may grant injunctions for continuing breaches, to reflect that the regulation of earthquake-prone buildings has moved from subpart 6 of Part 2 to new subpart 6A of Part 2.

Clause 37 inserts new section 401C, which is a regulation-making power.

Clause 38 consequentially amends section 402 to update a cross-reference.

Clause 39 amends section 405, which enables material to be incorporated by reference into regulations, certain Orders in Council, acceptable solutions, and verification methods. The amendment enables material to be incorporated by reference into the methodology to be set under new section 133AG.

Clause 40 inserts new section 450A, which gives effect to application, savings, and transitional provisions in new Schedule 1AA.

Clause 41 inserts new Schedule 1AA, which contains the following clauses:

  • clause 1 is an interpretation provision:

  • clause 2 provides for a situation where a building is assessed as earthquake prone under new subpart 6A of Part 2, but the territorial authority has previously issued a notice under section 124 requiring work to be carried out on the building to reduce or remove the danger associated with the building being earthquake prone:

  • clause 3 provides that a policy adopted by a territorial authority under section 131 ceases to apply to earthquake-prone buildings from the commencement date of new subpart 6A of Part 2, and must be updated to remove references to earthquake-prone buildings:

  • clause 4 ensures that the first time frame set by a territorial authority under new section 133AZ (time frame for completing seismic work on priority buildings) can be applied to buildings that the territorial authority has already assessed under new subpart 6A of Part 2.

Part 2
Amendment to Building (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005

Clause 42 provides that Part 2 amends the Building (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005.

Clause 43 replaces regulation 7. Regulation 7 currently defines a moderate earthquake, in relation to a particular building, as an earthquake that would generate shaking at the site of the building that is one-third of the strength, but of the same duration, as the earthquake shaking that would be used to design a new building at that site. Currently, as the requirements for designing a new building change (with changes to the building code), so does the meaning of moderate earthquake in relation to a particular building. New regulation 7 mirrors existing regulation 7, except that it pins the meaning of moderate earthquake to a particular version of the building code, ie, the version in force on the day on which new subpart 6A of Part 2 of the Building Act 2004 comes into force.