Dangerous building work – safeguards and interventions – By Jessica Hanning
In light of the Grenfell Tower tragedy, it is timely to consider in the New Zealand context what powers a city council has to ensure the safety of buildings, and when the council can intervene if it becomes aware of safety risks.
On 14 June 2017, a fire at the Grenfell Tower, a residential apartment block in London, resulted in over 80 deaths. In the years leading up to the fire,
residents had expressed safety concerns regarding the fire systems and their maintenance. In addition to the fire safety concerns, the fire is thought
to have been accelerated by the type of exterior cladding used on the building.
The Building Act 2004 in New Zealand contains special provisions relating to dangerous, earthquake-prone or insanitary buildings.
A dangerous building is one which, in the ordinary course of events (excluding an earthquake), the building is likely to cause injury or death (whether
by collapse or otherwise) to any persons in it or to persons on other property, or cause damage to other property; or, in the event of fire, injury
or death to any persons in the building or to persons on other property is likely because of fire hazard or the occupancy of the building.
A building is insanitary if it is offensive or likely to be injurious to health because of how it is situated or constructed, or because it is in a state
of disrepair; or it has insufficient or defective provisions against moisture penetration so as to cause dampness in the building or in any adjoining
building; or it does not have a supply of potable water or sanitary facilities that are adequate for the building’s intended use.
A building is earthquake-prone if, having regard to its condition and the ground on which it is built, and because of its construction, the building will
have its ultimate capacity exceeded in a moderate earthquake, and would be likely to collapse, causing injury or death to persons in the building or
persons on any other property, or damage to any other property.
Council’s powers to intervene
The council has a wide suite of powers to intervene and require building owners to take steps to ensure safety of buildings.
If a building is dangerous or insanitary, the council can take a number of steps, including restricting entry to the building and requiring work to be
carried out, which could include demolition of a building. The overriding aim is to minimise or remove the danger where the danger or injury is a reasonable
consequence and there is a reasonable probability of danger.
The council also has a wide range of powers in respect of earthquake-prone buildings, including that it may require the owner to carry out seismic works.
A council may also issue compliance schedules, or, in circumstances of immediate danger, issue warrants to remove the danger.
Where the council issues a compliance schedule, the building owner must supply the council with a building warrant of fitness. The purpose of a building
warrant of fitness is to ensure that the specified systems, such as fire alarms, are performing to the standards set out in the relevant building consent.
Where the state of a building is likely to cause immediate danger to the safety of people, or immediate action is necessary to fix insanitary conditions,
a council may take measures to avoid danger by way of a warrant. The warrant may cause any action to be taken that is necessary in the council chief
executive’s judgment to remove the danger, or fix the insanitary conditions.
Where there is no immediate danger or risk, a council can issue a notice to fix. For example, they can issue a notice if a person is failing to comply
with the Building Act or the regulations, a building warrant of fitness is not correct, or the inspection, maintenance, or reporting procedures stated
in a compliance schedule are not being properly complied with.
A person who fails to comply with a notice to fix commits an offence and is liable to a maximum fine of $200,000, and a further $20,000 per day for a continuing
offence. The same penalties apply for failure to comply with any powers exercised by the council under the dangerous or insanitary building provisions.
It is also an offence to use a building for a use for which the building is not safe, or if it has inadequate means of escape from fire. A fine of up to
$100,000, and a further $10,000 per day if it is a continuing offence, are applicable.
New Zealand examples
Recently, there have been a number of examples of safety or health issues affecting buildings in New Zealand.
In July this year, residents of a retirement village in Auckland were asked to leave their townhouses and apartments when safety concerns arose in relation
to structure and substandard fire protection. The council had not issued a dangerous building notice, but it had been working with the property owner
regarding weathertightness issues after issuing notices to fix in 2010 in respect of the external cladding.
In August, WorkSafe New Zealand issued warnings to electricians concerning faulty electrical cable imported into New Zealand, after testing showed that
the insulation could become brittle and break within a few years. Lyon Electrical (in liquidation) had installed the cable in at least seven sites
in New Zealand. Given that the parties involved are taking steps to replace the cable, the council hasn’t taken steps to intervene. However, if the
parties involved had not done so, the council could issue a notice to fix, given that the safety concerns are not immediate.
Given the range of powers available to city councils, it is hoped that the type of tragedy that occurred in Grenfell will never be a reality for New Zealand.
It is encouraging to see building owners and parties involved in construction taking proactive steps to deal with issues as occurred in the examples
Jessica Hanning is an associate in the national litigation team of Anthony Harper, a leading New Zealand commercial law firm with offices in Auckland and Christchurch