Building Act Emergency Management Proposals – The Safety vs Heritage Debate
- Created: Wednesday, 27 May 2015 00:54
On 19 May 2015 the Minister of Building and Housing (Minister), Nick Smith, announced consultation on a proposed new system under the Building Act 2004 to manage buildings following a disaster.
The proposals seek to manage unsafe buildings and life safety risks during and after a state of emergency by providing territorial authorities with new powers under the Building Act 2004 to require or undertake work on damaged buildings without resource or building consents. This is intended to smooth the transition between state of emergency powers under the Civil Defence Emergency Management Act 2002 (CDEM Act), and powers under the Building Act, where buildings have suffered significant damage and pose significant risk.
The reaction from heritage advocates was swift, with a number voicing concerns that rushed decisions would lead to the unnecessary loss of heritage buildings, questioning the lack of a formal role for Heritage New Zealand in determining the fate of Heritage 1 buildings, and the broad discretion retained by the Minister.
Below is a brief overview of the proposals. Full details are set out in the consultation document produced by the Ministry of Business, Innovation and Employment (MBIE).
Difficulties with the current system
Broad powers exist under the CDEM Act to manage buildings during a state of emergency, including powers to inspect buildings, restrict access and undertake building work. There are also existing powers under the Building Act to manage buildings which are deemed dangerous or insanitary.
However once a state of emergency is lifted, the transition between the two sets of powers has proved difficult. Building assessments made under the CDEM Act are often made under urgency and in uncertain conditions, and provide insufficient evidence to utilise the powers in the Building Act. There may also be a high risk of subsequent extraordinary events (such as earthquakes), the management of which is not included in the Building Act.
Trigger for proposed emergency powers
During a state of emergency declared under the CDEM Act, a Controller appointed under that Act would decide whether the proposed Building Act emergency management powers were necessary and should be used. When making this decision, the Controller must consider a number of prescribed matters including the likelihood of further events, the scale and nature of the damage, the risks that arise as a result of that damage and the need for shelter in residential buildings.
Proposed emergency powers
In a state of national or local emergency, and if commenced by the CDEM Controller, a range of new powers would be available to territorial authorities under the Building Act. All powers would apply during the state of emergency with some extending for up to one year after it has been lifted, and others extending for up to three years.
For up to one year after a state of emergency territorial authorities would have powers to assess and classify buildings using placards:
• Red placards to prohibit entry (but not denote demolition).
• Yellow placards to restrict entry (either to part or all of a building), or to all of a building except for short term supervised entry).
• White placards to allow unrestricted access.
Further assessments and changes to placards and restricted access may be made by territorial authorities up to three years after the state of emergency is lifted.
For up to one year after a state of emergency territorial authorities would have powers to issue warrants to undertake urgent work to reduce or remove significant and immediate dangers. No resource or building consent would be required and work can commence immediately. Approval of the Minister (in consultation with the Minister for Arts Culture and Heritage) would be required to undertake work on a National Historic Landmark or Category 1 Historic Place. Notification to Heritage New Zealand Pouhere Taonga, and consideration of their advice, would be required for work on other heritage buildings listed in district plans or buildings subject to a heritage order or covenant.
For up to one year after a state of emergency territorial authorities would have powers to issue warrants to undertake or require work to buildings to remove dangers causing significant economic disruption (which we note is not defined in the consultation document). Again, no resource consent or building consent would be required but work cannot commence until 48 hours after the warrant is issued, and reasonable steps must be taken to notify owners and tenants. Owners and tenants would be able to dispute the warrant and seek a determination from the Chief Executive of MBIE. Again, Ministerial approval would be required for works on National Historic Landmarks or Category 1 Historic Places and regard must be had to advice from Heritage New Zealand Pouhere Taonga for works on heritage buildings listed in plans and buildings subject to heritage orders or covenants.
Additional powers are proposed for territorial authorities to require work to reduce or remove dangers in situations where the danger to people is being managed temporarily (e.g. through cordons) and is not significantly disrupting other properties. This power extends up to three years after to state of emergency is lifted and normal resource and building consents processes would apply.
Other matters
Appeals to the Chief Executive of MBIE would be available in respect of most territorial authority building actions or omissions. For most situations building owners would also retain existing rights to apply for a determination against a decision by a territorial authority under section 177 of the Building Act. However no fast-tracked process is provided for this.
Territorial authorities and assessors would be protected from liability as a result of any actions taken in good faith under the proposed powers.
Territorial authorities would be responsible for the costs of the initial rapid assessment and for restrictive measures in the first three months after the state of emergency is lifted. However, in general the costs for building work undertaken would be borne by building owners with territorial authorities able to recover costs for work done. No compensation would be payable for buildings lawfully removed under the proposed emergency powers, but compensation could be sought for actions which caused disproportionately more harm than good.
Timeframes
The Government intends to introduce a Building Amendment Bill to Parliament later this year to implement the changes, with future opportunity for public input likely at the select committee stage.
Submissions on the proposals close on Friday 25 July 2015.
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