New Zealand: Earthquake-prone buildings: an update

Introduction

Until recently, each territorial authority in New Zealand had an earthquake-prone building policy. The policies addressed the identification of earthquake-prone buildings, and building owners' roles and responsibilities in relation to those buildings and seismic strengthening work.

On 1 July 2017, the Building (Earthquake-prone Buildings) Amendment Act 2016 came into force. It amends the Building Act 2004 to include special provisions for earthquake-prone buildings (mainly in sub-part 6A) and replaces the individual earthquake-prone building policies.

Application

Sub-part 6A does not apply to residential buildings except for hostels, boarding houses or other specialised accommodation buildings of two or more stories, or buildings containing three or more household units.

Buildings may be classified as priority buildings. Priority buildings include hospitals, emergency response buildings and educational facilities but also parts of unreinforced masonry buildings which could fall from the building onto a public thoroughfare in an earthquake.

Council responsibilities

The amended Building Act requires territorial authorities (i.e. Councils) to identify potentially earthquake-prone buildings. For priority buildings in high risk areas, including Canterbury, this must be done within two years and six months of 1 July 2017, or five years from that date for buildings that are not priority buildings.

When the territorial authority identifies a building as potentially earthquake-prone, it must request the owner provide an engineering assessment within 12 months. The owner can apply for a further 12-month extension, but no later than two months before the engineering report's original due date. If the owner does not provide an engineering assessment within the required time, the building is deemed to be earthquake-prone and the territorial authority must proceed as if it has assessed it as such.

On receiving the engineer's assessment, the territorial authority must determine whether a building is earthquake-prone. A building is earthquake-prone if it has less than 34% of the required seismic strength of a new building, and if it were to collapse, it would likely cause injury or death to people in or near the building, or damage to property.

On identifying an earthquake-prone building, the territorial authority must then "promptly" issue an earthquake-prone building notice (EPB Notice). The EPB Notice is sent to the owner, affixed to the building and sent to the mortgagee, amongst others.

Earthquake-prone Building Notices

The EPB Notice must identify that part of the building is earthquake-prone. It should state that the owner is required to carry out seismic work and the deadline for that seismic work. The deadline for performing seismic work on priority buildings in high risk areas is seven years and six months from the date the first EPB Notice is issued (and 15 years for any other buildings).

The territorial authority can grant exemptions for performing seismic work in some cases, but the exemption criteria are yet to be established by the Building (Earthquake-prone Buildings) Regulations. Owners of heritage buildings may apply to the territorial authority for an extension of up to 10 years to complete the required seismic work.

The territorial authority may assess information regarding earthquake-prone buildings at any time. It must review any engineering assessments provided by an owner and if it determines that the building is earthquake-prone, it must issue an EPB Notice.

Section 133AT replaces section 112 of the Building Act 2004 for earthquake-prone buildings. It provides that a building consent authority (i.e. a Council) must not grant building consent for a substantial alteration of a building with an EPB Notice unless the alteration includes the necessary seismic work. What is a "substantial alteration" will be revealed when the Building (Earthquake-prone Buildings) Regulations come into force.

Amendments to section 124

Before the amendments to the Building Act, territorial authorities were able to issue notices under section 124 of the Building Act requiring the owner of an earthquake-prone building to undertake work to remove or reduce the danger. Section 124 no longer applies to earthquake-prone buildings and interestingly, the safety requirements a territorial authority may now impose for earthquake-prone buildings under section 133AR is limited to erecting hoardings or fences and issuing notices containing warnings, or restricting entry to the building.

However, territorial authorities can apply to the District Court for orders under section 133AS allowing it to carry out seismic work to buildings with EPB Notices where the owner has not carried out seismic work by the date specified in the EPB Notice. The owner of the building will be liable for the cost of that work. However, as even owners of priority buildings in high risk areas have seven years and six months from issue of the EPB Notice to perform the seismic works, this provision is unlikely to have "teeth" in the foreseeable future.

Unreinforced masonry buildings

There is an exception, however. Before section 124 was amended, the territorial authorities in Wellington, the Hutt Valley, Marlborough and the Hurunui issued section 124 notices to owners of unreinforced masonry (URM) buildings requiring them to secure street facing parapets and facades within 12 months. A fund has been established to help meet the cost of this work. The consequences of non-compliance are yet to be seen, but it's likely we will see applications under section 133AS.

Comment

Given the heightened awareness of the dangers of earthquake-prone buildings since the Canterbury and Hurunui/Kaikoura quakes, the amendments to the Building Act do not convey much urgency in addressing earthquake-prone building issues.

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