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.
Talk to one of our experts
Related Articles
Councils challenge to transfer of water services rejected in High Court
Thursday 30 March, 2023
When the rubber hits the road - All aboard Aotearoa's challenge
Tuesday 11 October, 2022
Operative plans and proposed plans: what to do when there is a significant policy shift?
Wednesday 30 March, 2022
Notices of requirement are relevant for resource consent applications
Wednesday 30 March, 2022
Avoidance policies reign in the wake of King Salmon, but what do they require?
Wednesday 30 March, 2022
Court gives guidance on consultation and decision-making process
Wednesday 30 March, 2022
Cultural evidence and the continued draw of the overall judgment
Tuesday 21 December, 2021
Will new housing density rules increase contributions for developers?
Thursday 28 October, 2021
Lease of Wanaka Airport set aside due to insufficient consultation
Tuesday 15 June, 2021
What if an abatement notice requires you to breach the Resource Management Act?
Tuesday 15 June, 2021
“No ‘wine-ing’ covenants” declined for a subdivision consent in Gibbston Valley
Tuesday 15 June, 2021
From car parking fine to judicial review of a council’s code of conduct
Tuesday 15 June, 2021
Councils remain liable for compliance of contractors with the RMA
Thursday 18 March, 2021
Randerson Report released: New Direction for Resource Management
Wednesday 5 August, 2020
Could companies be liable to the public for the harm caused by their emissions?
Tuesday 10 March, 2020
Avoiding double penalties when sentencing a company and director
Thursday 23 April, 2020
Can an easement be granted over an esplanade reserve for a commercial activity?
Thursday 12 December, 2019
Draft National Policy Statement for Freshwater Management 2019 for consultation
Thursday 3 October, 2019
Local authority requiring monetary contributions on designations
Thursday 20 June, 2019
Bella Vista: MBIE Report highlights failure to perform statutory functions
Tuesday 9 April, 2019
Recent decision on "affected persons" highlights the importance of context
Wednesday 28 November, 2018
Must Councils accept an assertion that a person is ‘suitably qualified'?
Friday 9 March, 2018
