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Shaky fixer uppers

Shaky fixer uppers

Shaky fixer uppers

Wednesday 30 March, 2022

The High Court has considered the circumstances in which a territorial authority can undertake seismic work on an earthquake prone building (EPB) under s 133AS of the Building Act 2004 if the building owner won’t.

Statutory framework

Part 2, Subpart 6A of the Building Act 2004 sets out the process for TAs and building owners to follow to identify and fix earthquake prone buildings. Subpart 6A introduced three geographic areas of seismic risk (low, medium and high) with different timeframes in each area for fixing buildings that have a National Building Standards (NBS) rating of less than 34% and are regarded as earthquake-prone. For example, Wellington is in the high-risk area.

Once a TA has determined, in accordance with the EPB methodology that a building is earthquake-prone, then the TA must issue a EPB notice in the prescribed form which specifies amongst other things (s 133AL(2):

(a)    whether the building is a priority building;

(b)     the earthquake rating;

(c)     advice that the owner of the building is required to carry out seismic work;

(d)    when that work must be completed by (as specified by the statute).

When can TA take over seismic work

Section 133AS provides that if the seismic work is not completed by the deadline or is not proceeding with “reasonable speed” in light of that deadline, then the TA may apply to the District Court for an order that the TA carry out the seismic work on the building or part of the building.

Wellington City Council applied to the District Court for orders that it could assume responsibility for the work. The Council did not specify the works it intended to undertake or the cost of those works. The District Court declined the Council’s application.

The High Court has overturned that decision and confirmed that a TA does not have to specify the seismic works it is going to undertake or provide a cost/benefit analysis of the works. Provided that the statutory conditions of non-compliance with an EPB notice or failure to progress with reasonable speed are met, the order is effectively mandatory. The Court will have no role in assessing the reasonableness or cost-effectiveness of the proposed seismic work.

Who pays for the repairs?

If a TA carries out the works, the owner is liable for the costs which may be recovered from the owner and these will become a charge on the land (s 133AS(4)). The works can include demolition of a building (s 133AS(5) and no compensation will be payable to the owner.

The TA should only bring the building up to the minimum NBS and cannot claim the costs of strengthening to a higher standard.

Does this change anything for dangerous or insanity buildings?

No. Unlike for earthquake-prone buildings, there is no statutory time limit for repairs which will depend on the work required. The designation of the building as dangerous or insanitary and what work is required to remediate or remove the danger are also contestable items.

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