Civil Defence Emergency Management Amendment Act 2016 Amendment Bill

I am sure my colleague David Parker will take a call in a moment. I just wanted to make reference to two specific points in the legislation. There has been a lot of discussion around the general policy objectives of the bill, and the importance that, I think, all parties in the House put on making sure that we tighten up the rules around the assessment of buildings, and that we bring into force the Civil Defence Emergency Management Amendment Act at a faster pace so that we can make that transition to recovery in the Kaikōura and Wellington areas as soon as possible.

The two specific matters I wanted to raise were around the extension of the powers and addressing the issue that was raised initially by, I think, New Zealand First during the discussions. Although we all want to make sure that, for example, a multi-storey apartment building here in Wellington is assessed, and if the building owner is not assessing that or if the council has a reason to believe that an assessment is necessary, then it should be able to do that. But, on the other hand, we do not want to create a situation of unnecessary compliance for, perhaps, a single-storey dwelling. The example that has been used throughout is the sort of voluntary trust that owns a community hall.

The discussion went backwards and forwards in the cross-party talks, and we have ended up with what appears in various places in the bill, but in particular in clause 7, which inserts new section 26A. The wording of that now reads: “(3) A person may not give a direction [for there to be an assessment] under subsection (2) unless the person has had regard to whether the structure or type of structure may, in the circumstances, pose a risk of injury or a risk to the safety of life or the safety of other property.”

I think we all feel that that actually does capture what we are trying to say here, particularly by the insertion of the phrase “type of structure”, because that allows us to break out those small halls and so on, where there actually would be an undue burden or an unnecessary examination.

My own view is that I think it is highly unlikely that any local authority would do that. I think, for the most part, local authorities know exactly the kinds of buildings they want to get here, but it is better to be absolutely clear about that as we go through this.

I am particularly pleased about the reference in there to the “safety of other property”, because that has been an issue within the Wellington area, where there is concern from people who are adjacent to buildings, as to whether or not those buildings have actually been assessed. So it is important to be able to have that within the assessment that is being made. So we are very pleased to see that included in here and we want to support that.

The other matter that I will just mention in this brief call is around emphasising again that the bringing forward of the implementation of the Act is for those areas affected by the earthquake sequence, and that it is open to other local authorities and other territorial authorities to also bring the Act into force at an earlier date, if they so choose, but it is not compulsory. I think a number of local authorities will choose to do that.

I think we have got ourselves in a position now where a lot of people around New Zealand are very seized of the need to be better prepared, to be in a position to make that transition out from the immediate emergency stage and into the recovery stage, and have the coordination that needs to take place between central government and local government. I am pleased that we have got the flexibility built into the law, and I do believe a number of others will do that. I will let Mr Parker now have his moment to discuss his proposed amendment, which I warmly endorse.

I do have a proposed amendment to this bill, and I want to explain it to the Committee and thank Minister Brownlee for his indication that the Government is going to support it. It actually arises from a contribution I made in the first reading debate, and it relates to the issue that my colleague Grant Robertson has already referred to, which is that through this bill we are conferring upon the Controller or a police constable, during a state of emergency, the power to require the owner of a property to obtain a report as to the structural integrity of the building, if that building poses a “risk of injury or a risk to the safety of life or the safety of other property.”

Then, in new subsection (6) of new section 94N inserted by the amendment Act, the bill confers a right of appeal to the District Court to the owner or the owner’s agent who is being asked to pay for the cost of one of these reports and to commission one. That is an appropriate safeguard. The intent of the legislation is that the relief that can be granted by the District Court, effectively, refunds some of the cost if the original request to get a report was unreasonable, and that imposes a degree of countervailing rights for the person who is being asked to get that report, if it is an unreasonable request. Although there will not normally be an unreasonable request, it is easy to envisage that occasionally there might be—particularly, not during the emergency stage but during the recovery phase, which is covered by clause 8, inserting new section 94N in section 27 of the Act, where there is a similar provision.

I went and read the provisions in the underlying 2002 Act, which are found at sections 77(2) and 77(3), which are said to apply in respect of these appeals. I spoke with Minister Brownlee, who said that the intention was that the only relief that someone could get if they appealed was a refund of their costs; they could not refuse to get the report. I was concerned when I read section 77(4) that we had not made it clear that that section in the underlying Act would not apply in this situation, because that section says that by virtue of the appeal, the request for the report is stayed.

The policy intention was not that we stay or put aside the request that has been made by civil defence or by the police to get a report; we were just trying to confer a remedy against an unreasonable request—i.e., refund the money. Most people, or the people who are requested to do this, will be able to afford to get a report, and they should have to do so. So it was unclear. I think it is fair to say it was ambiguous rather than clearly wrong, and the Minister, with the help of officials, agreed that he would clear this matter up. That is what my amendment does, which has been drafted by the Parliamentary Counsel Office, and I thank it for doing that.

It makes it clear that section 77(4) of the principal Act does not apply. It puts it beyond doubt that someone appealing against the demand gets a report as to the structural integrity of the building, and their appeal does not act as a stay of the request. The only remedy they can get from the court is not the ability to not get the report; they can just get a refund for its cost. So that is where—if this amendment is passed—the matter will end.

The procedure in sections 77(2) and (3) will apply, but the stay provided for in section 77(4) of the principal Act will not apply. That amendment is being made to both new clause 7, by amending section 91 of the principal Act, effectively, and also the same provision in respect of the recovery phase in clause 8. I do not think I need to explain that further. I hope the Committee will support that amendment.

This will just be a short contribution. I am wanting to get some clarification from the Minister Gerry Brownlee, actually, just so it is on the record, and so that it is clear in my head and I can be 100 percent sure that I do understand the full implications of some of the provisions in the bill. Before raising those questions I do want to say that we will be supporting the amendment in David Parker’s name, which clarifies the policy intent that appeals to the District Court will not stay the process of assessment until that is resolved. That is absolutely clarifying the intent as we understood it.

I am just wanting to—and it kind of actually goes to the heart of it, really. We have had explained to us that the provision to enable councils to request an assessment, put a time frame on it, and get the report back—that they do not have that power at the moment and that they need it, and that at the moment the only provision we really have covering properties is residential tenancies and health and safety. I guess it was just that I wanted to be clear in terms of the original Act and in Christchurch, and was wondering why we would not have had this come up as being identified as a problem in Canterbury.

I understand that in the amended legislation that we are bringing forward there is a power to require information and the ability to have entry to premises and places, and I wanted to know whether this bill is about putting the requirement on the building owner, and for them to be covering the costs of those assessments, as I would support as a running cost of having a structure or a business—that we could have that reasonable expectation of them providing that assurance of safety.

But I do just want to be clear—if my understanding is right—that there is an ability with this bill for a council, in either a state of an emergency or in a formal recovery stage, to be able to do its own assessment, and this will add the ability to require somebody to do it themselves. That is my question. Thank you, Minister Brownlee.

Thank you, Mr Chair, for indulging me. I do have a question for the Minister in the chair, Gerry Brownlee. I saw him jump to his feet and I was just hoping to get to him before he does answer, as I know he would. I did speak in my first reading speech with regard to a question to the Minister, which I am sure he will address in a moment, and the question is around what would happen in the event where an absent landlord or an overseas landlord who has a property (1) was not in a position to be able to pay for that assessment to be done, or (2) defied the ruling for that assessment and did not implement it.

There are a number of options. Obviously, if the assessment has not been done and the building may or may not be fit for purpose and may need to be removed or altered in some way, what happens with the cost of that? Does the assessment go ahead regardless, and a hold is then put over that building using the Local Government (Rating) Act? Is it potentially demolished? Is it just red-stickered and not to be used because it is not fit for purpose?

There are some questions with regard to the notice requirements. I think the notice requirements are very, very good, requiring the best endeavours of the agent to ensure that the neighbouring properties and tenants are aware that the building is undergoing an assessment—obviously, a seismic assessment. But the legislation does not address the fact that once that assessment has been done—what are the requirements of either the territorial authority or of the constable to ensure that the tenants are aware of the outcome of the assessment that has been undertaken?

If it happened on a Friday afternoon, for example, and the assessment came through and was given the green stamp—the rubber stamp of approval—but the council had not had the opportunity to pass that on to the tenants, then they might be still out in the community, staying on other people’s beds, couches, and floors or in hotel accommodation. Could it not potentially be put in the legislation? Does he see that there could be a requirement for it to actually be facilitated in there that the tenants, also, would get to see the outcome of those assessments as soon as practicably possible—that is, as do the landlords and, of course, the neighbouring properties, which has been clearly articulated in this legislation.

New sections 26A and 26B in clause 7, with regard to the assessment of the structure, will be inserted into the principal Act. They concern the power to give direction by “a Controller or a constable,”—as I have just been saying—“or any person acting under the authority of a Controller or constable,” to direct or order “the owner of a structure (or the owner’s agent) to obtain an assessment of the effect of the [event] on that structure:”. We in New Zealand First outlined, during the cross-party meeting, that should criteria be handed down by an overzealous worker, we should have the criteria that would enable them to work that into it. I see that that has been put in, and we are very pleased to see that there.

We are supporting this bill through all its stages. We do support the amendment from David Parker going through the Committee, and if we could just have some clarity from the Minister, that would be much appreciated. Thank you.

Can I first acknowledge David Parker and thank him for bringing that matter to our attention. There are some who would say it is probably more belt and braces than anything else. I personally think you have found a problem that could have occurred. So it is appropriate that it is fixed, and I acknowledge the vigilance of the member in finding that.

💬 Grant Robertson: Ha, ha! There are other words.

Well, I am not in that caucus, so I do not know those words.

But can I just answer the questions raised by Jan Logie. Firstly, in Christchurch we had the Canterbury Earthquake Recovery Act, and that Act gave not only the Minister but also the chief executive of the Canterbury Earthquake Recovery Authority very extensive powers inside a defined geographical area. So you also had a very large number of very obviously dangerous buildings, and that is why the CBD was put into a cordon as a whole and then gradually that cordon was let out as buildings were demolished or remediated.

The point here is that you also have the Building Act, which makes it very clear what happens in the event of a dangerous building being evidently so. The gap we are trying to fill here is perhaps that there may not be an outward physical manifestation of something that does make it dangerous. So we are trying to ensure that there is a way of finding that out, in this particular bill, and I think it is not unreasonable to give people that level of comfort.

The other point was this. Clayton Mitchell raised the issue about the absent landlord and therefore defying it. Well, there should be an address for service in New Zealand for every building, and that presumably would be the agent who has some authority in this case and who would certainly have an ability to receive the demand. Defiance could well lead to the council also reverting to the Building Act and slapping a section 124 notice on the building, in which case every tenant would be notified that it cannot be entered. What we are trying to do is put in a halfway house. Mr Mitchell spoke also about the overly zealous person who gets the clipboard, etc. You could take care of that latter problem, in which case you would be a little more lenient on the person who might be in the defying position. So we are really trying to get a bit of a middle ground here.

But, once again, if that building was—if they just said “Well no, we’re not doing it.” and the council believed that there was a problem, and it would be asking, remember, under the terms of this bill only if it believed there was a problem, then it could put that section 124 notice on, all tenants would be notified and automatically evacuated, and the cash flow on the building ceases at that point. So there is quite a bit of incentive on landlords to play ball.

I want to say again that I think landlords will. It is just where you get the one or two who might not be willing to face the reality of what they are dealing with. I think the gentleman who is the owner of 61 Molesworth Street has set the pace by being very, very cooperative with the council, absent of all this provision, simply because he could see that there was a greater need and he presumably had arrangements with his insurers, which recognised that as well.

The other point was post-inspection: what if the inspection is done on a Friday or is completed—because it would be a long assessment, several days—on a Friday and the tenants are not notified until the Monday. Well, if the building was found to be, on the Friday afternoon, in a bad state, once again it would be red-stickered and evacuated. So those are the provisions that exist in current law. Just remember, that this little bit that we are putting in here fixes a little gap in the whole thing. I think it goes far enough to prevent the overzealous approach, but makes it very clear that there is a high level of expectation that those who have big buildings where human life could be at stake if there was some sort of catastrophic event should play ball.

There was also a question raised about the tenants’ rights to receive the information. [Bell rung] I will not be much longer. I think it would be interesting to know what the provisions are in each lease deed on any building, but I would expect that there will be responsibilities outlined in that lease around the maintenance and care of that building, and the delineation between what a tenant will do in that building and what the expectations for the landlord will be. In any event, there is the wraparound of the health and safety legislation, which means that if you own a building—and you may be a body corporate doing this, which I think will challenge a lot of bodies corporate throughout the country on this. We may even discover, as we did in Christchurch, that many buildings should have had bodies corporate but did not, and I hope that that will get remedied in a relatively short period of time. But what you then have is the duty of care to all those who are occupants of that building, under the health and safety legislation.

So, to repeat, we have got a lot of Acts that sort of go around the edges of this. What this bill tries to do is pull it all in so that there is that strong expectation, that strong requirement, that legal requirement, that if you are asked to deliver something, you have to. We now have these amendments coming in from David Parker, which mean that once you are asked you have got to comply. You can go off and appeal if you like and look at your costs, and you might be awarded costs because it may have been unreasonable, but you must comply, and I think that is the strength of where we have got to today.

I want to rise to thank the Minister for that, and, now that the Minister is able to hear, I just want to congratulate him on behalf of New Zealand First on the manner in which he has shepherded through this legislation and the cross-party discussions, because it was very constructive. New Zealand First is very pleased and very happy with the changes that we have sought and the manner in which the Minister has accepted those changes.

There has already been some discussion—and my colleague Clayton Mitchell MP has discussed new section 26A, “Section 91 amended (Power to give directions)”. I just want to clarify, because there has been some discussion from colleagues from this side of the Chamber—from Grant Robertson, who said we would not expect councils to behave in an overly zealous manner. Well, I do have to say to the Committee that in parts of rural New Zealand we are already seeing it. I can say that in parts of rural New Zealand there are already people who own old wooden buildings, and I guess for some of our whanaunga who own marae that might be very old and might have had a bit of a jolt in the 7.8 quake there were some worries.

It was pleasing to be able to have this conversation with the Minister and the staff at the cross-party discussions about the consequences for these people—whether it was relating to the Belvedere Hall on upper Belvedere Road in Carterton, which is 140-odd years old, I think, and suddenly is now being required to have an assessment done on it, despite the fact that it is on piles, it is wooden, and it has withstood every quake since, I think, 1855 or whenever it was. It certainly withstood the 1942 quake with no damage and it certainly came through the 7.8 quake—which shook our house pretty severely—without one piece of damage. But what we are seeing in some parts of New Zealand are people who have purchased wooden buildings—two-storey, or single-storey—in rural provincial New Zealand being told they have to get an earthquake assessment done on them, despite the fact there is absolutely no evidence that these buildings actually present a risk.

We talked about places like Pongaroa, which has a wooden façade and has withstood. A zealous controller or constable might have determined that that building posed a risk, although you could walk down a street in Pongaroa at 2 o’clock in the morning and the front could fall off the building and no one would even know, other than the people who are living in the building at the time. Buildings built of wood would pose very little risk to them. But the question of just covering that off was one that we felt very strongly about, and we thank the Minister for making some concession in the legislation and recognising it and covering it off.

We also endorse the Minister’s focus on ensuring compliance in metropolitan New Zealand. We are seeing it here in Wellington, and I do not think anybody in this Chamber would have actually imagined that a quake—and we have had quite a few, post-Christchurch, in and around Seddon over the last 6 years—in Culverden or in Seddon would damage Wellington so severely, but, now, here we have it. The consequential risk to life of innocent people who might be living in those buildings or living in adjoining or neighbouring buildings or who happen to be walking down the footpath at the wrong time—the risk to those people is just thoroughly unacceptable. The fact that councils did not have the power to order an assessment was a gap that is now being closed—rightly so—and we just hope that in exercising that power, they will do so with due cognisance and attention to new section 26A(3).

The question was put that the following amendments in the name of the Hon David Parker be agreed to:

insert in new section 91(7) in section 26A in clause 7 “, and section 77(4) does not apply” after “modifications”; and

insert in new section 94N(7) in section 27 in clause 8(1) “, and section 77(4) does not apply” after “modifications”.

Amendments agreed to.

Clauses 1 to 11 as amended agreed to.

House resumed.

Bill reported with amendment.

Report adopted.

Third Reading