In-depth View and Building Act 2004

1. Background Legal Environment:

1.1 Municipal Corporations Act 1954 & Amendment Act 1971:

Various Territorial Authorities (Borough, County and District Councils) of the Marlborough Region have for several decades, back to the 1960's, been considering the structural performance of buildings and pressing owners to either strengthen or remove at risk constructions. Under this work many old and/or dilapidated buildings were either repaired, strengthened or removed.

1.2 Building Act 2004 (The Act):

The Act required Councils to adopt an earthquake-prone building (EPB) Policy for identifying potential EPB's, obtaining engineering assessments of seismic risk and managing the mitigation of that risk. This work saw many other buildings either strengthened or removed.

1.3 Building (Earthquake-Prone Buildings) Amendment Act 2016:

This Amendment Act made numerous changes to The Act, including the creation of a new Sub-Part 6A of Part 2 of The Act to cover items specific to EPB's. It introduced extensive elaboration of the requirements for dealing with the identification, determination and removal of risk of EPB's. It also required further extensive expansion of Regulations and introduced the concept of Ministry of Business, Innovation and Employment (MBIE) developed guidelines for carrying out the requirements of The Act. The main guideline document is the EPB Methodology'.

The changes wrought to The Act by the Amendment Act had a commencement date of 1 July 2017.

2. Building Act 2004, As Amended By The Building (Earthquake-Prone Buildings) Amendment Act 2016:

The following are relevant precis of the new Sub-Part 6A of The Act to illustrate the new process, how it is implemented and what responsibilities various entities have. The reference of each section of Sub-Part 6A include all the subparts 133 of The Act.

NOTE: all time frames specified under subparts 133 of The Act have a commencement date of 1 July 2017.

2.1 133AA - Buildings to which this subpart applies:

This sub-part applies to all buildings except the following;

• (a) a building that is used wholly or mainly for residential purposes:
• (b) a farm building used primarily for farming activities or an ancillary purpose:
• (c) a stand-alone retaining wall that is not integral to the structure of a building:
• (d) a fence:
• (e) a monument (including a statue), unless the monument is capable of being entered by a person:
• (f) a wharf:
• (g) a bridge:
• (h) a tunnel:
• (i) a storage tank:
• (j) a building that is a dam:

To clarify (a) above, this subsection does apply if the building comprises two or more stories; and is either

• (i) a hostel, boarding-house, or other specialised accommodation: or
• (ii) contains three or more household units:

2.2 133AB - Meaning of earthquake-prone building:

A building or a part of a building is earthquake-prone if, having regard to the condition of the building, the ground on which the building is built and of the construction of the building or part, it will have its ultimate capacity exceeded in a moderate earthquake and it would likely cause injury or death to a person in or near the building, or damage to other property, if it were to collapse because of that exceedance.

Councils must determine whether a building or part is an EPB.

Ultimate capacity and moderate earthquake are very technical terms used by structural engineers in the design of buildings for earthquake resilience. Refer to the definitions in this webpage. To view further details of these terms you will need to review NZS1170.5.

2.3 133AC - Meaning of earthquake rating:

Earthquake rating means the degree to which a building or part performs in an earthquake in relation to a building designed and built on the same site as at 1 July 2017. This new building will be designed to the current building design Standard (NZS1170.5) which gives rise to the term New Building Standard (NBS). A building built to that standard will achieve a minimum of 100% NBS, or some other specified rating more or less.

When Council determines a building is an EPB it must;

• (a) determine its rating in accordance with the EPB Methodology, and
• (b) specify the rating on the EPB Notice (refer to section 133AL) and the EPB Register held by the MBIE, and
• (c) determine the form of the EPB Notice issued for the building or part.

2.4 133AD - Meaning of low, medium and high seismic risk:

All of NZ has been divided into three seismic risk zones (low, medium and high). Each of these zones is allotted a Z' load factor to be used by structural engineers for determining a new building's structural requirements for resisting earthquakes actions on any site. The loading factor increases in value from low, to high, matching the expected seismic load the building will need to resist.

The seismic risk of an area determines the time frame Council must apply for identifying EPB's and reporting to MBIE on its progress toward achieving that objective.

The whole of the Marlborough District is considered high risk zone, except the outer Marlborough Sounds which is medium risk zone. The line of division between the zones follows approximately centre of Queen Charlotte Sound (QCS), Mounts Cullen, Riley, Fishtail and Starveall; therefore, all the areas on the north side of QCS and all outer sounds are in the medium zone, including Anakiwa, Linkwater, Havelock, Wakamarina Valley, Rai Valley, Croiselles Harbour, D'Urville Island, Pelorus Sound, Kenepuru Sound, Tennyson Inlet.

The deadline for completing seismic work identified on an EPB Notice is set out in section 133AM.

2.5 133AE - Meaning of priority building:

Priority building means any of the following buildings;

• (a) a hospital building likely to be needed in an emergency, i.e. operating theatre, accident and emergency dept, emergency recovery facility, ancillary building for emergency medical services,
• (b) emergency shelter or emergency centre,
• (c) police, fire, ambulance or rescue service,
• (d) buildings regularly occupied by at least 20 people and used for; licensed early childhood education and care facility; registered school and integrated school; registered private training establishment; tertiary education institute,
• (e) any building or part of unreinforced masonry which could fall in an earthquake onto a public road, footpath or thoroughfare identified as a priority route by Council,
• (f) a building which could, if it collapsed, impede a route of strategic importance for emergency response.

Any such building must be so designated under a national civil defence emergency management plan; or, a civil defence emergency group management plan that covers the district in which the building is located.

If only a part of the building meets the criteria above then only that part is a priority building.

The deadline for completing seismic work identified on an EPB Notice is set out in section 133AM.

2.6 133AF - Role of Council in identifying certain priority buildings:

Only Councils in medium and high seismic risk zones are to identify priority buildings.

This section deals with the requirement for Council to identify priority buildings using a consultation process with its community; however, from subsection (3) of this section, a Council need not institute this process if there is no reasonable prospect of any priority type building existing on a thoroughfare satisfying the criteria.

Council has considered every building of the type described in section 133AE above and has concluded that there are no such buildings which meet the requirements of an EPB. Given this condition there is no route which can be identified as a priority route. The issue here being the cart and the horse. There is no point in going through a consultation process, or what may be identified as a possible priority route, only to find that there are no priority type buildings. One cannot exist without the other.

In Marlborough it has been found that there are no priority buildings and this fact has been conveyed to the MBIE, who have accepted this decision.

2.7 133AG - Council must identify potentially earthquake-prone buildings:

In Marlborough's case Council has 5 years to identify any PotentiallyEPB's, i.e. 1 July 2022.

Within this time frame Council must apply the EPB Methodology to identify buildings or parts that are potentially EPB. Council may also identify buildings or parts that are PotentiallyEPB, without reference to the EPB Methodology, if it has reason to suspect the building or part may be EPB.

Even after the 5 year time limitation Council may continue to identify buildings, or parts, that are potentially EPB, without reference to the EPB Methodology, if it has reason to suspect the building, or part, may be EPB.

During the 5 year period Council must regularly report to MBIE on its efforts to identify potential EPB's.

2.8 133AH - Council must request an engineering assessment of potential earthquake-prone buildings:

Once Council has identified a PotentiallyEPB it must ask the owner of the building to provide an engineering assessment of the building or part.

The request must be in writing and dated and include specific information as follows;

• Identify the building or part that Council has identified as PotentiallyEPB; and
• explain the basis on which Council has made the identification; and
• explain the owner's obligations; and
• state if the building is priority; and
• state the due date for the assessment, which is 12 months from date of request; and
• explain that if the owner is not reasonably able to supply the assessment by the due date, the owner may apply for an extension of time up to 12 months; and
• explain the consequences of the owner failing to provide the assessment by the due date; and
• explain what will happen if Council determines the building, or part, is EPB.

2.9 133AI - Obligation of owners on receiving a request for an engineering assessment:

When Council asks the owner to supply an assessment the owner must, by the due date, (extended if approved);

• (a) provide Council such assessment which complies with the EPB Methodology; or
• (b) provide Council evidence of a factual error in the basis of the identification as PotentiallyEPB' or
• (c) notify Council the owner does not intend to provide the assessment.

If Council is satisfied that it has incorrectly identified the building or part as PotentiallyEPB, it must cancel the request and give written notice of that fact to the owner.

If an owner fails to comply with the above, or notifies Council they are not going to supply the assessment, -

• (a) Council must proceed as if it has identified the building or part is EPB; and
• (b) the EPB Notice issued by Council must be in the prescribed form relevant for that building's NBS rating ; and
• (c) Council may obtain an assessment of the building or part and recover the cost of doing so as a debt due from the owner.

2.10 133AJ - Owners may apply for extension of time to provide an engineering assessment:

Where Council asks an owner to supply an assessment, but the owner is unable to do so by the due date the owner may apply, at least 2 months before the due date, for an extension of time up to 12 months to the due date.

Council must deal with this request promptly; by -

• (a) Granting the extension and notifying the owner in writing of the revised date of the supply of the assessment; or
• (b) Notifying the owner in writing that the extension has not been granted.

Note: Only one extension of time is permitted.

2.11 133AK - Council must determine whether a building is earthquake-prone:

When Council obtains an assessment of a building or part it must determine if it is EPB and its earthquake rating in accordance with the EPB Methodology.

If Council determines the building or part is EPB it must promptly issue an EPB Notice; and record the details of the decision in the EPB Register.

If Council determines the building or part is not EPB it must promptly notify the owner in writing of its decision.

If, after asking for an assessment, Council does not receive it by the due date or is notified that the owner does not intend to provide it, Council must proceed as if it has determined the building or part is EPB but need not determine the earthquake rating of the building or part.

2.12 133AL - Council must issue an EPB Notice for an earthquake-prone building:

If Council determines a building, or part, is;

• (a) EPB under section 133AK;
• (b) revokes an exemption under section 133AN; or
• (c) revokes an extension under section 133AO; or
• (d) determines under section 133AQ that a previous EPB Notice needs to be replaced with a new EPB Notice due to a different earthquake rating of the building or part.

Council must promptly issue an EPB Notice for the building or part which must -

• (a) be dated; and
• (b) be in the prescribed form; and
• (c) identify the building or part determined to be EPB; and
• (d) specify if the building or part is a priority building; and
• (e) specify the earthquake rating of the building or part (unless the rating has not been determined)
• (f) state the owner of the building or part is required to carry out building work to ensure it is no longer EPB; and
• (g) state the deadline for completing seismic work; and
• (h) state that the owner may apply for an exemption, under section 133AN, to carry out seismic work; and
• (i) if the building is a heritage building to which section 133AO applies the owner may apply for an extension of time to complete seismic work; and
• (j) state that under section 133AQ the owner is not required to complete the seismic work if Council determines, or is satisfied, the building or part is not EPB.

If the earthquake rating of the building or part is a percentage range that spans more than one prescribed category of earthquake rating, the EPB Notice must be in the prescribed form for the lowest percentage range.

Council must give a copy of the EPB Notice to -

the owner of the building or part including multiple owners where the building is subdivided into multiple properties; and

• (a) every person who has an interest in the land on which the building is located, under a mortgage or other encumbrance registered under the Land Transfer Act 2017; and
• (b) every person claiming an interest in the land that is protected by a caveat lodged and in force under section 138 of the Land Transfer Act 2017; and
• (c) every statutory authority that has exercised a statutory power to classify or register, for any purpose, the building or the land on which the building is located; and
• (d) Heritage NZ, if the building is a heritage building.

However, the notice is not invalid because a copy has not been given to any or all of the persons referred to above.

2.13 133AM - Deadline for completing seismic work:

The owner of a building with an EPB Notice must complete seismic work before the deadline specified on the notice, i.e. for Marlborough - 15 years from the date of the notice.

However; if the building is a heritage building and has been granted an extension of time of a further 10 years - in which case a new EPB Notice will be issued to show the new deadline.

For clarification, seismic work includes demolition of all or part of a building.

2.14 133AN - Owner may apply for exemption:

An owner may apply to Council for an exemption from the requirement to carry out seismic work on the building or part.

The application must be in writing and be accompanied by any fee imposed by Council under section 219 of The Act.

Council must deal with the application promptly by; -

• (a) If Council is satisfied the building has the prescribed characteristics of Schedule 4 of the Building (Specified Systems, Change of Use, and Earthquake-Prone Buildings) Regulations 2005;
• (b) Notifying the owner in writing that the application has not been granted.
• (c) When making the assessment required by this section Council must take into account the matters prescribed in section 401C(d) of The Act.
• (i) grant the exemption and issuing an EPB Exemption Notice; and
• (ii) recording the details of the exemption in the EPB Register and updating any other information; or

An EPB Exemption Notice must identify the building or part of the building subject to an EPB Notice; state that the owner of the building or part is exempt from the requirement to carry out seismic work on the building or part; and give the reason why Council granted the exemption.

Council may review an exemption at any time, and may revoke it if it is satisfied that the building or part no longer has the prescribed characteristics.

An exemption stays in force until Council revokes it.

As soon as practicable after revoking an exemption Council must -

• a) reissue an EPB Notice under section 133AL for the building or part that is EPB; and
• b) record the details of the revocation in the EPB Register and update any other information.

2.15 133AO - Owner of certain heritage buildings may apply for extension of time to complete the seismic work:

Where a building, or part, is subject to an EPB Notice and is listed as a Category 1 Historic Place on the NZ Heritage List, or is included on the National Historic Landmarks List, the owner may apply to Council for an extension of time to complete the seismic work.

The application must be in writing and be accompanied by any fee imposed by Council under section 219 of The Act.

Council may, by notice in writing to the owner, extend the deadline for completing the seismic work by up to 10 years and, as soon as practicable thereafter;

• (a) reissue an EPB Notice under section 133AL for the building or part that is EPB; and
• (b) record the details of the extension in the EPB Register and update any other information.

When Council grants an extension of time the owner must;

• (a) take all reasonably practicable steps to manage or reduce the risks associated with the building or part being subject to the EPB Notice; and
• (b) comply with any conditions imposed by Council for the purpose of managing or reducing the risk.

If the owner fails to comply with the steps and conditions above Council may revoke the extension.

2.16 133AP - EPB Notices and EPB Exemption Notices must be attached to an earthquake-prone building:

As soon as practicable after issuing an EPB Notice or EPB Exemption Notice by Council it must be posted in a prominent place on, or adjacent, the building by Council or require the owner to do so. Council may also authorise the owner to remove any superseded notice that is so attached.

If a notice becomes illegible or ceases to be attached, -

• (a) the owner of the building or part to which a notice has been issued must notify Council of that fact; and
• (b) the Council must issue a replacement notice and either attach it or require the owner to do so.

2.17 133AQ - Council may assess information relating to earthquake-prone building status at any time:

This section applies if at any time, -

• (a) the owner of a building, or part, supplies an assessment of the building or part; or
• (b) Council is satisfied, on the basis of evidence other than an assessment, that the building or part is not EPB.

As soon as practicable after receiving an assessment, or other information, Council must determine, in accordance with the EPB Methodology, -

• (a) whether the building or part is EPB; and
• (b) if the building is EPB, its earthquake rating.

If Council determines, or is satisfied, that the building or part is not EPB,Council must promptly, -

• (a) notify the owner in writing of its decision; and
• (b) if the building, or part, is already subject to an EPB Notice, -
• (i) remove the building from the EPR Register; and
• (ii) remove, or authorise the owner, to remove any EPB Notice or EPB Exemption Notice on, or adjacent, the building.

If Council determines the building or part is EPB, Council must promptly, -

• (a) notify the owner in writing of its decision; and
• (b) if the building is not already subject to an EPB Notice, issue an EPB Notice for the building or part under section 133AL; and
• (c) if the building is already subject to an EPB Notice, -
• (d) Record the details of the decision in the EPB Register and update other information as necessary.
• (i) if the earthquake rating has changed, reissue the BPB Notice under section 133AL for the building or part; and
• (ii) if the earthquake rating has not changed, notify the owner in writing of this fact.

2.18 133AR - Council may impose safety requirements:

If Council issues an EPB Notice for a building or part, it may;

• (a) erect a hoarding or fence to prevent people from approaching the building or part nearer than is safe;
• (b) attach in a prominent place, on or adjacent the building or part, a notice that warns people not to approach the building or part;
• (c) issue a notice restricting entry to the building or part for particular purposes or restricting entry to particular persons or groups; such notice shall be, -
• (i) in writing; and
• (ii) fixed to the building; and
• (iii) given in the form of a copy to all the persons listed in section 133AL (5); and
• (iv) issued for up to two periods of up to 30 days each.

However, such notice is not invalid because a copy has not been given to any or all of those persons.

Where Council has erected a hoarding or fence or attached a notice, no person may use or occupy the building or part or permit another person to use or occupy the building or part, other than in accordance with the terms of the notice.

2.19 133AS - Council may carry out seismic work:

If required seismic work on a building or part subject to an EPB Notice has not been completed by the specified deadline, or is not proceeding with reasonable speed, Council may apply to the District Court for an Order authorising Council to carry out the work.

However, Council must give the owner at least 10 days notice, in writing, of its intention to obtain an Order.

If Council carries out such work under an Order the owner is liable for the cost of that work, and Council may recover that cost as a charge on the land on which the work was carried out.

For clarification, seismic work includes demolition of all or part of a building.

2.20 133AT - Alterations to a building subject to an EPB Notice:

Where an application for a building consent is received by Council, for an alteration of a building subject to an EPB Notice, the consent must be dealt with under this section and not section 112 of The Act.

To grant such consent Council must be satisfied that, -

• (a) after the alteration the building will comply, as nearly as is reasonably practicable, with the provisions of the building code that relate to -
• (b) after the alteration the building will continue to comply with the other provisions of the building code to the same extent as it did before the alteration; and
• (c) in the case of a substantial alteration, the alteration includes the necessary seismic work. Substantial alteration is defined under section 11 of Building (Specified Systems, Change the Use, and Earthquake-Prone Buildings) Regulations 2005. Refer to definitions of this webpage and Section 401C of The Act.
• (i) means of escape from fire; and
• (ii) access and facilities for persons with disabilities; and

However; Council may, by written notice to the owner of the building or part, specify one or more of the provisions of the building code, in (a), (b) or (c) above, and allow the alteration without the building or part complying with the specified provisions if Council is satisfied that -

• (a) the alteration includes the necessary seismic work; and
• (b) if the building were to comply with the specified provisions, it would be unduly onerous for the owner in the circumstance; and
• (c) the permitted non-compliance is no more than is reasonably necessary in the light of the objective of ensuring the building or part is no longer EPB; and
• (d) after the alteration, the building will continue to comply with the specified provisions, and other provisions, of the building code to at least the same extent as it complied before the alteration.

2.21 133AU - Offences in relation to earthquake-prone buildings:

The owner of a building subject to an EPB Notice who fails to complete the seismic work on the building or part by the deadline specified commits an offence and is liable on conviction to a fine not exceeding $200,000.00.

If Council requires an owner of a building to attach an EPB Notice or EPB Exemption Notice to the building and the owner fails to do so the owner commits an offence and is liable on conviction to a fine not exceeding $20,000.00.

If an owner of a building fails to notify Council when an EPB Notice or EPB Exemption Notice ceases to be attached to the building the owner commits an offence and is liable on conviction to a fine not exceeding $20,000.00.

A person who fails to comply with section 133AR (safety requirements) commits an offence and is liable on conviction to a fine not exceeding $200,000.00 and if the offence continues to a further fine not exceeding $20,000.00 for every day during which the offence continues.

2.22 133AV - Chief executive must set methodology for identifying earthquake-prone buildings (EPB Methodology):

This section merely establishes the requirement of Central Government to develop and publish an EPB Methodology for Council's and engineers to follow in achieving the requirements of subpart 6A of The Act. This has been done.

2.23 133AW - Consultation requirements for setting EPB methodology:

This section merely established the need for Council's and other interested persons to be consulted before setting the EPB Methodology. This process was not necessary.

2.24 133AX - Notification and availability of EPB methodology:

This section merely says the EPBMethodology must be published and be available for general use. This has been done and it is readily available for consumption by anyone who is interested.

2.25 133AY - What council must do if definition of ultimate capacity or moderate earthquake are amended:

If the definitions of UC or ME is amended or replaced, Council must, -

• (a) consider whether any decision that it has made under subpart 6A of The Act should be reassessed in the light of the changes to the definition; and
• (b) may remake the decision.

If Council remakes the previous decision it must do so in accordance with section 133AQ of The Act.

This completes the extent of all sections 133 of the Act.