Building (Earthquake-prone Buildings) Amendment Bill 2013

In a press release the Minister for Building and Construction set out the essence of the proposals in the Bill:

• “Territorial authorities will need to complete a seismic assessment of all non-residential and multi-unit, multi-storey residential buildings in their areas within five years of changes to new legislation taking effect. The assessment will include an evaluation of building plans, location and easily observable building characteristics:
• “Building owners will receive the results of assessments and this information will be entered onto a publicly accessible national register of earthquake-prone buildings established by the Ministry of Building, Innovation and Employment;
• “Following assessments, earthquake-prone buildings will have to be strengthened or demolished within 15 years (except buildings that may be eligible for exemptions and/or extensions to this timeframe);
• “Certain buildings will be prioritised for assessment and strengthening, such as buildings likely to have a significant impact on public safety (including buildings with high risk elements such as potential falling hazards) and strategically important buildings, including those on transport routes identified as critical in an emergency;
• “Owners of some buildings will be able to get exemptions from or extensions to the national timeframe for strengthening. Exemptions will be for buildings where the effects of them failing are likely to be minimal. Owners of earthquake-prone Category 1 heritage buildings (listed on the Register of Historic Places under the Historic Places Act 1993) and those on the proposed National Historic Landmarks List will be able to apply for extensions of up to 10 years to the national timeframe for strengthening.” [2]

The main provisions of the Bill include:

• requiring territorial authorities to undertake a seismic capacity assessment of existing non-residential buildings and multi-storey and multi-unit residential buildings in their districts within 5 years from commencement (with certain buildings to be prioritised for assessment) using a methodology to be specified and published by the Ministry of Business, Innovation, and Employment;

• clarifying the current threshold for defining an earthquake-prone building, including that it applies to parts of buildings as well as whole buildings;

• clarifying that the level of work required for earthquake-prone buildings is only such that the building, or the affected part, is no longer earthquake-prone;

• requiring work on existing earthquake-prone buildings to be undertaken within a single national time frame—within 20 years of the legislation taking effect (ie, assessment by territorial authorities within 5 years and work completed within 15 years of assessment):;

• providing that owners of buildings that are Category 1 historic places under the Historic Places Act 1993 may apply to the relevant territorial authority for an extension of up to 10 years to complete the work, and the owners must manage risk if an extension is granted;

• enabling territorial authorities (that are building consent authorities) to issue building consents for required work on buildings that are earthquake prone without requiring other upgrades (for access and facilities for people with disabilities and for means of escape from fire):

Main Provisions

Earthquake-prone buildings

What is an “earthquake-prone building”?

The Bill provides (in New Subpart 6A of Part 2 of the Act) that a building is “earthquake prone” if, having regard to its condition and to the ground on which it is built, and because of its construction,

• the building will have its ultimate capacity exceeded in a moderate earthquake (as defined in regulations); and
• if the building were to collapse in a moderate earthquake, the collapse would be likely to cause injury or death to persons in the building or to persons on any other property or damage to any other property.

New Subpart 6A of Part 2 relating to earthquake-prone buildings does not apply to residential buildings other than multi-storey or multi-unit residential buildings.

The Bill provides that part of a building may be declared earthquake prone and be subject to these provisions (Part 1, Clause 23, inserting New Subpart 6A of Part 2 into the Act, New Section 133AB (replacing current Section 122 which is repealed) and New Sections 133AD and 133AE).

The term “ultimate capacity” is not defined. This provision “mirrors existing section 122(1), except that the wording is adjusted to clarify that, if a building will have its ultimate capacity exceeded in a moderate earthquake (as defined in regulations), the building is earthquake prone only if there is a likelihood of injury, death, or damage being caused if the building were to collapse (rather than a likelihood that the building would collapse)”. [3]

What is a “priority building”?

The Bill provides that “priority buildings” are defined in regulations. If a building is a priority building, a territorial authority must, in accordance with a methodology set out in the Bill, prioritise its assessment of the buildings “seismic capacity” and shorten the time frame within which seismic work on the building must be completed. The Bill provides a regulation-making power for the definition of priority buildings which are stated to be “for example”:

• buildings that could, if they were to collapse in an earthquake, impede a transport route of strategic importance in an emergency; and

• buildings of particular significance in terms of public safety (for example, because of what may fall off or from them in an earthquake) (Part 1, Clause 23, inserting New Subpart 6A of Part 2 into the Act, New Section 133AC; Clause 37, inserting New Section 401C (headed “Regulations: earthquake-prone buildings”).

Seismic capacity testing required for all existing buildings

The Bill requires territorial authorities to complete seismic capacity assessments of existing buildings within their districts within five years after the commencement of New Section 133AF. A building is an “existing building” if:

• before the day on which New Section 133AF comes into force, a certificate is issued under Section 95 of the Act (“Issue of code compliance certificate”) for the construction of the building; or

• the building was constructed before 31 March 2005.

The Building requires the chief executive to set a methodology for territorial authorities to use for the purpose of carrying out seismic capacity assessments. The methodology must, among other things, specify how territorial authorities are to prioritise the assessment of priority buildings within their district. Certain consultation, notification, and availability requirements relating to the methodology are set out.

The Bill requires that the territorial authority, after notifying the building owner of the outcome of the assessment, to record the outcome of the assessment on the seismic capacity register and issue, if the building is earthquake prone, a seismic work notice which must state the work that is required (ie, work to ensure that the building is no longer earthquake prone) and the deadline for completing the work.

The Bill provides that the deadline for completing the work will generally be 15 years after the date on which an outcome notice for a building is issued with exceptions for priority buildings (may be less than 15 years) and buildings listed under Part 2 of the Historic Places Act 1993 as a Category 1 historic place (a Category 1 heritage building) (deadline may be 25 years after the date of an outcome notice.

The Bill makes other detailed provision for various particular circumstances (eg the ability of the owner to provide alternative evidence of a building’s seismic capacity and the power for the territorial authority to impose safety requirements in respect of a building)

The Bill creates four offences relating to earthquake-prone buildings. Two of these are existing offences under the Act (Section 128), as follows:

• failing to complete seismic work on a building by the deadline (punishable by a fine of up to $200,000);

• failing to comply with safety requirements imposed by a territorial authority (punishable by a fine of up to $200,000 plus $20,000 for each day that the offence continues).

The two new offences (New Section 133AY) are as follows:

• failing to properly attach a seismic work notice or an exemption notice to a building if required to do so (punishable by a fine of up to $20,000);

• failing to notify a territorial authority if a seismic work notice or an exemption notice ceases to be attached to a building or becomes illegible (punishable by a fine of up to $20,000) ((Part 1, Clause 23, inserting New Subpart 6A of Part 2 into the Act, New Sections 133AF-133AZC).

Seismic capacity register

The Bill requires the chief executive to keep a seismic capacity register—ie, a register of buildings for the purposes of New Subpart 6A of Part 2. The seismic capacity register will also contain information about new buildings. Territorial authorities, as well as the chief executive, will be able to record and update information in the register.

The Bill sets out the purpose of the seismic capacity register which is to enable members of the public to know whether a building is earthquake prone, together with information about the building. The Bill specifies the information that must be kept in the seismic capacity register, which includes any information prescribed by regulations. The seismic capacity register may contain information that is specified in regulations as information access to which the chief executive must restrict. The chief executive is also given power to restrict access to information on the register if he or she considers that it is not necessary, or it is not desirable, for that information to be publicly available. However, this does not prevent the chief executive from supplying the information to entities within the State services or, with the permission of the person to whom the information relates, to any person (Part 1, Clause 9, amending Section 95 of the Act; Clause 33, amending Section 273; Clause 34, amending Section 274 of the Act; Clause 35 inserting New Sections 275A and 275B into the Act).

Regulations

The Bill provides for the making of regulations defining priority buildings, criteria for granting an exemption from a requirement to carry out seismic work on a building, prescribing information that must be kept on the seismic capacity register and specifying information to which the chief executive must restrict public access (Part 1, Clause 37, inserting New Section 401C into the Act).

New Schedule 1AA: application, savings and transitional measures

The Bill provides for a situation where a building is assessed as earthquake prone under (see New Subpart 6A of Part 2, but the territorial authority has previously issued a notice under Section 124 of the Act requiring work to be carried out on the building to reduce or remove the danger associated with the building being earthquake prone. The Bill provides, generally, that if the time frame originally given exceeds 15 years after that notice is given, that notice is revoked on the issue of the seismic work notice for the building. If the original time frame is less than 15 years’ after the notice is given, Subpart 6 of Part 2 applies as if the work were seismic work and as if the notice were a seismic work notice issued under that subpart (Part 1, Clause 41, inserting New Schedule 1AA into the Act, clause 2).

New definition of moderate earthquake: change to the 34% rule

The Bill amends the Building (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005 to define the term “moderate earthquake” which currently is currently defined, in relation to a particular building, as an earthquake that would generate shaking at the site of the building that is one-third of the strength, but of the same duration, as the earthquake shaking that would be used to design a new building at that site (commonly known as the 34% rule).

This definition is changed to read:

“For the purposes of Section 133AB of the Act (meaning of earthquake-prone building), moderate earthquake means, in relation to a building, an earthquake that would generate shaking at the site of the building that is of the same duration as, but that is one-third as strong as, the earthquake shaking (determined by normal measures of acceleration, velocity, and displacement) that would be used to design a new building at that site if it were designed on the commencement date [of the Bill]” (Part 2, Clauses 42 and 43, amending Regulation 7 of the Building (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005).

This change “pins the meaning of “moderate earthquake” to a particular version of the building code, ie, the version in force on the day on which New Subpart 6A of Part 2 of the Building Act 2004 comes into force” [4] .

1. Buildings (Earthquake-prone Buildings) Amendment Bill, 2013 No 182-1, Explanatory note, General policy statement, p. 1. [back]
2. Media release, Hon Maurice Williamson, Minister for Building and Construction, “Earthquake buildings policy announced”, 7 August 2013. [back]
3. Ibid., p. 6. [back]
4. Ibid., p. 13. [back]