Building Act Emergency Management Proposals Proposals and Questions Feedback Form
Feedback form completed by: Insurance Council of New Zealand

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Email Address: icnz@icnz.org.nz
Date 10 July 2015
Publication of submissions, the Official Information Act and the Privacy Act MBIE intends to publish a summary of submissions on its website. MBIE will not publish the content of your submission.
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What happens next?
After the consultation period finishes, MBIE will analyse feedback and submissions and report back to the Government. The Government will then make decisions on policy proposals for a building emergency management system.

If adopted, the proposals will require legislative change to the Building Act 2004, This would provide further opportunity for public input through the select committee process. Depending on other legislative priorities, changes could be introduced in 2015 or 2016.
Contacts
For further information please email buildingactemergencymanagement@mbie.govt.nz
To help ensure your feedback is understood, when answering the questions please provide evidence and/or examples for your response where possible.

Using the Building Act emergency management powers
(Consultation document pages 14 to 16)
Proposal 1—A Civil Defence Controller may decide whether to use Building Act emergency management powers.
During a state of emergency declared under the CDEM Act, a controller appointed under
that Act may decide whether to use Building Act emergency management powers.
The controller must give consideration to the following factors:
a)	significance of the scale of the damaging events
b)	reasonably foreseeable likelihood of further related damaging events which could pose risks to life-safety
c)	distance and direction of the damaging event or hazard, or possible events or hazards, and impacts in relation to buildings in built-up areas
d)	observed scale of structural damage to buildings
e)	information available about building and ground conditions
f)	need for shelter in residential buildings
g)	likely scale of structural damage to buildings
h)	likely scale and risk to life-safety from buildings
i)	advice and information from relevant territorial authorities, suitably qualified persons, and relevant government agencies
j)	credible discoveries or disclosures about risks from buildings
k)	the territorial authority's ability to manage risks adequately without building emergency management powers.
The building emergency powers are divided into those that can be renewed for up to one year and those that are available for up to three years after the state of emergency has ended. Every 28 days after the end of the state of emergency, the territorial authority must
decide whether to continue using those powers that can be renewed for up to one year.	
To help ensure your feedback is understood, when answering the questions please provide evidence and/or examples for your response where possible.
1.	 Are the considerations that must be taken into account appropriate? Why / Why not?
The Insurance Council has no problem with this proposal.
2.	Is 1 year an adequate length of time for the powers that enable territorial authorities    to make initial building assessments and take action to reduce or remove more immediate risk? If not, what length of time would be more appropriate and why?
The Insurance Council would consider 1 year to be an adequate length of time.

3.	Is 3 years an adequate length of time for the remaining powers to stay in force? If not, what length of time would be more appropriate and why?
Depending on the nature and severity of the event and the resources available to respond, 3 years could be an adequate maximum length of time for remaining powers to stay in force.
4.	Is the requirement to review the proposed 1 year powers every 28 days appropriate? Why / Why not?
Yes, we believe it is.  The Insurance Council believes it is important that property owners and their insurers are able to make open representations to Civil Defence Controllers concerning the need for ongoing Building Act Emergency Management Powers.  Emergency management powers may affect the insurers’ ability to settle claims in a timely and reasonable manner.
5.	 Is it appropriate to link the building emergency powers to a state of emergency? Why /Why not?
Yes, we believe so.  A state of emergency signifies that a significant event has occurred that could affect life and property safety and building emergency powers maybe the cater for the specific needs of the affected community.
6. Are there situations when a state of emergency has not been declared when the building emergency management powers should be made available? Please provide examples.
Yes, a moderate earthquake not causing obvious damage to commercial buildings but there needs to be a safety inspection regime to urgently confirm that buildings are safe to enter.  

	
Powers to assess buildings and restrict access
(Consultation document pages 17 to 20)
Proposal 2: Territorial authorities have powers to do assessments and place placards.
Territorial authorities have powers to do, or authorise, assessments during a state of emergency and up to one year after the state of emergency has ended. The power is reviewed every 28 days for up to 1 year after the state of emergency has been terminated.
Territorial authorities may place placards as a result of the assessment which will state the restrictions and requirements imposed on the buildings. Placards will be valid for three years after the state of emergency has been terminated.	
Proposal 3: power to assess further and change placards.
Territorial authorities may require further assessments and change placards placed as a result of any previous assessments. Territorial authorities may undertake these assessments if necessary. The power is available for up to 3 years after the state of emergency has terminated.	
Proposal 4: Territorial authorities have powers to restrict access including placing cordons and other protective measures (up to 3 years).
Territorial authorities can restrict access based on assessments up to three years after the state of emergency has been lifted. The placards placed on the building will state the restrictions and requirements imposed.	
To help ensure your feedback is understood, when answering the questions please provide evidence and/or examples for your response where possible.
7.	Should territorial authorities have the powers to continue to assess buildings and place placards for up to one year after the state of emergency has ended? Why / Why not?
The Insurance Council believes this provision should be available, however it would be expected that within 1 year of an event occurring assessments would be completed.  However as with Canterbury, there could be successive events that need to be monitored.  
8.	  Should territorial authorities be able to restrict access to buildings on the basis of an assessment? Why / Why not?

Yes, they should so long as  the assessments are carried out by an  appropriately qualified  assessor, such as an engineer, who is supplied with reasonable information about the particular building (plans or construction details needed to adequately assess building).
9.	 Do you agree with the Royal Commission prioritization of further assessments as outlined in Figure 4 (on page 19) of the Consultation document? Do you consider an alternative model could be used, and if so what is it?
Yes we do, so long as the assessor making the call on placards, especially on buildings suffering damage from an earthquake, is appropriately qualified and experienced.

Removing immediate dangers (Consultation document pages 21 to24)
Proposal 5: Resource or building consents will not be required to remove significant or immediate dangers.
A territorial authority will not require resource consent or building consent where urgent work is required to reduce or remove significant and immediate dangers for up to one year after the state of emergency has ended.
After issuing a warrant to remove significant and immediate dangers, Territorial Authorities may begin, or require work to begin, immediately.	
Proposal 6: Heritage values will be taken into account where possible when removing significant or immediate dangers.
Territorial authorities should seek to preserve heritage values where possible.
Before issuing a warrant to undertake work to remove significant and urgent dangers, a territorial authority must:
•	Obtain the approval of the Minister for Building and Housing, in consultation with the Minister for Arts, Culture and Heritage, for any buildings listed in district plans that are National Historic Landmarks, or Category 1 Historic Places.
•	Give at least 24 hours' notice (where possible) to Heritage New Zealand Pouhere Taonga, and have particular regard to its advice in respect of heritage buildings individually listed in district plans, and buildings that are subject to a heritage order or covenant.	
To help ensure your feedback is understood, when answering the questions please provide evidence and/or examples for your response where possible.
10.	Should territorial authorities be able to do building work to remove immediate life-safety risks without the requirement for a resource or building consent? Why / Why not?
Yes, they should.  This will allow life safety risk hazards to be dealt with quicker and prevent prolonged effects to neighbouring properties in the form of cordons as was experienced in Canterbury.  Cordons in the Christchurch CBD area were prolonged, possibly due to consenting issues which resulted in greater disruption to local business.  

11.	Is it appropriate to have Ministerial approval before undertaking work on any buildings listed in district plans that are National Historic Landmarks, or Category 1 Historic Places? Why / Why not?

The Insurance Council cannot comment on this.

12.	 Is it appropriate for territorial authorities to give at least 24 hours’ notice (where possible) to heritage New Zealand Pouhere Taonga (HNZPT), and have particular regard to its advice when considering actions on heritage buildings that are listed on district plans and/or subject to a heritage order or covenant/ Why/Why not?

The Insurance Council cannot comment on this.

Removing dangers causing significant disruption (Consultation document pages 25 to 27)
Proposal 7: Resource or building consents will not be required to remove dangers causing significant economic disruption.
Territorial authorities will not require resource or building consents when reducing or removing dangers causing significant economic disruption for up to 1 year.
Before issuing a warrant to undertake or require work to remove dangers causing significant economic disruption:
•	The territorial authority must take reasonable steps to give notice to owners and tenants of the building, and owners and tenants of properties whose access is affected by the building.
•	The parties will have the right to apply to the chief executive of MBIE for a determination where they dispute the issuing of the warrant.
•	After issuing the warrant, the territorial authority must not commence the work for 48 hours (providing further opportunity for parties that dispute the warrant to seek a determination).	
Proposal 8: Heritage values will be taken into account where possible when removing danger causing significant economic disruption
Territorial authorities should seek to preserve heritage values where possible.
Before issuing a warrant to undertake work to remove significant and urgent dangers, a territorial authority must:
•	Obtain the approval of the Minister for Building and Housing, in consultation with the Minister for Arts, Culture and Heritage, for any buildings listed in district plans that are National Historic Landmarks, or Category 1 Historic Places.
•	Have particular regard to advice from Heritage New Zealand Pouhere Taonga (HNZPT) for any other heritage buildings listed in district plans, and buildings that are subject to a heritage order or covenant. HNZPT will be allowed at least two weeks to provide their advice.	
To help ensure your feedback is understood, when answering the questions please provide evidence and/or examples for your response where possible.
13.	Should territorial authorities be able to remove dangers causing significant economic disruption without requiring resource or building consents? Why /Why not?
Yes, they should.  Getting a local economy back to where it was prior to an emergency event taking place is paramount.

14.	Is it appropriate to have Ministerial approval before undertaking work to remove dangers causing significant economic disruption on any buildings listed in district plans that are National Historic Landmarks, or Category 1 Historic Places? Why / Why not?
The Insurance Council has no answer to this question.
15.	   Is it appropriate for Heritage New Zealand Pouhere Taonga (HNZPT) to have at least two weeks to provide advice to territorial authorities on removing dangers causing significant economic disruption on any other heritage buildings listed in district plans and/or subject to a heritage order or covenant Why / Why not?
The Insurance Council has no answer to this question
16.	Should territorial authorities have particular regard to the advice of HNZPT? Why / Why not?
    Insurance Council has no answer to this question.

Removing danger in other situations (Consultation document pages 28 to 29)
Proposal 9: Power to remove danger in other situations
Territorial authorities can undertake or require work to reduce or remove dangers in situations where danger to people is being managed temporarily (e.g. by cordons) and is not significantly disrupting other properties, for up to three years after the state of emergency has ended.
This power requires territorial authorities to use the normal resource and building consent processes under the Resource Management Act 1991 and the Building Act 2004.	
To help ensure your feedback is understood, when answering the questions please provide evidence and/or examples for your response where possible.
17.	Should territorial authorities be able to remove danger using building emergency management powers in situations when it is not posing an immediate life-safety risk or a significant economic disruption? Why! Why not?
Yes, territorial authorities should, so long as they comply with the Resource Management Act 1991 and Building Act 2004. 
18.	Should resource and building consent processes be followed in these situations? Why / Why not?
Yes, they should.  If required work to remove danger in situations where they are currently being managed such as by cordons, is not causing significant economic disruption, then these powers should be treated almost as business as usual for the territorial authority and they should be governed by the Resource Management Act 1991 and the Building Act 2004.
19.	Is three years after a state of emergency an appropriate timeframe for these powers? If not, what would you suggest is an appropriate timeframe?
This depends on the nature of the event and the resourcing required to recover.

Appeals
(Consultation document page 30)

Proposal 10: Appeals
Appeals to the Chief Executive of MBIE about territorial authorities' building actions or omissions will be available in most situations.
Building owners will be able to apply for a determination against territorial authorities under section 177 of the Building Act regarding the use of building emergency management powers in most situations.	
To help ensure your feedback is understood, when answering the question please provide evidence and/or examples for your response where possible.
20.	The appeal rights are intended to protect people from life-safety risks, by allowing territorial authorities to manage unusable buildings whilst not interfering with private property rights more than is absolutely necessary. Do the appeal rights have the correct balance between life-safety risks and private property rights? Why / why not?
Yes, we believe they do have the right balance.  The ability for appeals ensures that everybody affected has fair representation. 	
Liability
 (Consultation document page 31)

Proposal 11: Liability
Territorial authorities and assessors authorised by the territorial authority, will be under no liability arising from any action that they take in good faith under building emergency management powers.	
To help ensure your feedback is understood, when answering the question please provide evidence and/or examples for your response where possible.
21. Is it appropriate that territorial authorities and assessors are not liable for any action under the building emergency management powers for actions taken in good faith? Why / Why not?
	The Insurance Council does not agree with this.  Without liability, authorities and their assessors not having the accountability for their actions could see high risk decisions being made with respect to the fate of property.  If a building was needlessly damaged or demolished then there would be consequences for insurance cover.  Most insurance policies contain a normal exclusion that confirms that where damage or destruction is ordered by a civil authority then the policy would not respond to any claim.  The Insurance Council is aware that in a number of instances following the Canterbury earthquakes, some buildings that were damaged but were otherwise considered repairable were demolished which created issues for claims settling and customer relationships.
Costs 
(Consultation document page 32)

Proposal 12: Costs
Owners will be liable for most costs associated with the building emergency management powers. Territorial authorities have the power to recover costs from owners for any work done.
Territorial authorities are responsible for the costs of the initial rapid building assessments and for cordons and restrictive measures for up to three months after the state of emergency has been lifted.	
To help ensure your feedback is understood, when answering the question please provide evidence and/or examples for your response where possible.
22. Is it appropriate for building owners to be liable for costs associated with the building emergency powers? Why / Why not?
	The Insurance Council believes that building owners do need to be responsible for associated building emergency management costs, excluding the initial rapid inspection assessments and cordons for the first 3 months after the state of emergency has lifted, as if this  falls on territorial authorities then they may be reluctant to exercise their powers in the interests of the community.
It is important though that costs associated with exercising building emergency powers by the territorial authority need to be fair and reasonable and all costs need to be contestable.  The situation occurred in Christchurch during the Canterbury earthquakes where Civil Defence declaration demolitions were ordered with little control over the final costs.  Many building owners found that demolition costs ended up reducing what insurance money they had for reinstatement.  This ultimately affects the recovery.
Compensation
 (Consultation document page 33)

Proposal 13: Compensation
Owners will be liable for most costs associated with the building emergency management powers, but can seek compensation for actions where the action caused disproportionately more harm than good.	
To help ensure your feedback is understood, when answering the question please provide evidence and/or examples for your response where possible.
23. Are the compensation proposals appropriate? Why! Why not?
	Yes, we believe that they are.  As outlined in our answer to Question 21, territorial authorities need to be liable for their actions and if their actions are negligent then the building owner and their insurer should be in a position to seek fair compensation.
Offences
(Consultation document page 34)

Proposal 14: Offences
It will be an offence, with a fine of up to $5,000 for an individual and $50,000 for a body corporate, to interfere or not comply with protective measures and placards.
It will be an offence, with a fine of up to $200,000, not to comply with a notice to remove danger, or to use a building in breach of the directions on a placard.	
To help ensure your feedback is understood, when answering the question please provide evidence and/or examples for your response where possible.
24.	Where there is interference or non-compliance with protective measures and placards, is a fine of up to $5000 for an individual and up to $50,000 for a body corporate appropriate? Why / Why not?
Yes, we believe this is fair.
25.	Is a fine of up to $200,000 appropriate for not complying with a notice to remove danger, or using a building in breach of the directions on the placard? Why / Why not?
Yes, we believe it is.