Building (Earthquake-Prone Buildings) Amendment Bill - Submission to the Local Government and Environment Committee [2015] NZHRCSub 3 (16 July 2015)

Last Updated: 3 December 2015

16 July 2015

Committee Secretariat

Local Government and Environment Committee

Parliament Buildings

Private Bag 18041

_WELLINGTON

BUILDING (EARTHQUAKE – PRONE BUILDINGS) AMENDMENT BILL Introduction

1. The Human Rights Commission (“Commission”) previously made a submission on the Buildings (Earthquake-prone Buildings) Amendment Bill (“Bill”).

2. In its submission the Commission raised concerns about clause 133AX. While acknowledging the need to ensure New Zealanders are not at undue risk or harm from earthquake prone buildings, it considered that the correct balance was not achieved. Specifically, in the Commission’s view clause 133AX could be considered inconsistent with New Zealand’s international and domestic human rights obligations.

3. The Local Government and Environment Committee has subsequently released its interim report in which it proposes a range of changes to the Bill, including to clause 133AX. The Commission welcomes the opportunity to make supplementary comments on these changes.

Clause 133AX

4. The interim report proposes amending clause 133AX to inter alia clarify that Territorial Authorities are able to not require upgrades to either the means of escape from fire or access and facilities.

5. As the interim report notes “the cost of some fire upgrades are expected to cost more than upgrades to access and facilities for persons with disabilities.” In such cases it may be reasonable to exempt buildings from the fire upgrades but still require accessibility standards to be met. The Commission welcomes this amendment and considers that it will go some way to achieving a better balance between accessibility rights, safety and costs.

6. Nevertheless the Commission remains concerned about the test in clause

133AX(3)(b)(ii) and how this might be implemented in practice. In order to grant an exemption, a Territorial Authority must be satisfied that the benefit of ensuring the building is no longer earthquake prone outweighs any detriment from non compliance with the building code.

7. Article 9 of the Convention on the Rights of People with Disabilities – to which New Zealand is a party – requires States to take appropriate measures to ensure that disabled people have access, on an equal basis with others, to the physical environment including facilities and services open or provided to the public. The principles of Article 9 are incorporated into the Human Rights Act

1993 which requires a service provider or building owner to accommodate a person with a disability to the extent that it is reasonable to do so.

8. While rights can be restricted in some circumstances, human rights law clearly prescribes the parameters within which this can occur. As a general principle, permissible limitations and restrictions must constitute an exception to the rule and must be kept to the minimum necessary to pursue the legitimate aim of safeguarding other human rights. Necessary means that any proposed restriction is pursuant to a legitimate aim, proportionate to that aim and no more restrictive than is required for the achievement of the desired purpose. This same test is codified in section 5 of the New Zealand Bill of Rights Act

1990.

9. The Commission considers that, for the avoidance of doubt, the test in clause

133AX(3)(b)(ii) should be clarified to ensure it is applied in accordance with New Zealand’s human rights legal obligations. Accordingly, the Commission recommends that clause 133 AX(3)(b)(ii) be amended to:

a) clarify that any limitation on accessibility rights – in other words any exemption from the Building Act requirements in this regard – must be no more than is required to achieve the purpose of ensuring the building is no longer earthquake prone. This will require a degree of flexibility – in some cases an exemption may be required from some aspects of the Building Act requirements but not all; and

b) ensure that a proportionately test is adopted – in other words more than mere detriment is required. What is required is that the exemption must not have a disproportionately severe effect on the rights of disabled people to access buildings and facilities.

Section 124

10. The Commission would also like to take this opportunity to raise some broader concerns about section 124 of the Building Act which have come to light through the Canterbury earthquake recovery.

11. In the wake of the earthquakes the definition of dangerous buildings for the purpose of section 124 was extended “to ensure people are protected from earthquake related hazards”.¹

12. On this basis the Canterbury City Council (“CCC”) issued notices to properties that were deemed to be dangerous due in many cases to the risk of rockfalls in the Port Hills ( ie a risk to their property due to a hazard originating from

/associated with another property).

13. Owners of properties affected by these notices can lack any practical ability to address the risk arising from the adjacent land and because the hazard is in the nature of a future risk of damage rather than actual damage they can also lack recourse to insurance coverage. These notices can remain in place for many years until hazards are removed and/or the risk of damage to property or life decreases to a deemed acceptable level. Practically, this has meant that many homeowners remain in a state of limbo – insurance assessments are unable to be completed, repairs progressed or payouts made to enable them to purchase a new property. In many cases, we understand that homeowners are willing to mitigate the risk and/or assume it in order to be able to go home.

14. The Commission considers that this Bill presents a suitable opportunity to reconsider the operation of section 124 of the Building Act. In particular the Commission would welcome the Committee considering how section 124 can more appropriately balance the property rights² and interests of individual property owners with the Council’s safety objectives.

15. The Commission remains available to answer any further questions from the

Committee.

HRC Contacts

Michael J V White Janet Anderson-Bidois

_{Senior Legal and Policy Analyst Legal, Research and Monitoring Manager}

¹ _{Canterbury Earthquake (Building Act) Order 2011 and 2013.}

² _{Universal Declaration on Human Rights, Article 17}