Building Amendment Bill

Hey, thank you, Madam Chair. It’s very good to be talking in this committee stage of this Building Amendment Bill. Of course, as we’ve noted before, this is a piece of legislation that was introduced by National initially, but I do acknowledge the Minister Jenny Salesa for pursuing this and taking it through the House. Of course we’re, hopefully, getting towards the closing stages of this bill.

What this bill is about is actually dealing with seismic issues and the resulting carnage that occurs after them. Obviously, unfortunately New Zealand’s been in that very troubling situation where we’ve had the Canterbury earthquakes and the Kaikōura earthquake, and, of course, that led to issues such as Statistics House, where we had the hollow-core issue, where the floor was dropping because the flooring wasn’t sufficiently buttressed to the walls; but also with the Reading Cinemas car-parking building. So this is a bill about how officials—and, in this case, I mean Ministry of Business, Innovation and Employment (MBIE) officials—have the opportunity to go in quickly at the completion of those earthquake events and be able to make buildings safe.

There are a number of issues in this bill that deal with certain powers: the power to enter a building, or a piece of land, to be able to undertake investigations; also powers to require remedial work or reduce work. It should be noted that, during the committee stage, we dealt with this. There were three scenarios—so they have a step-down clause in terms of when works are required and the timing around those—but also directions that are required of building owners.

I just note the issue around this is about protecting the rights of not only the property owners, who own the building in question in many of these cases, but also the tenants—and it could be people living in apartments under complicated unit title arrangements or similar such arrangements. There are also business occupants who may have rented out a building or have, in fact, subleased it; and, of course, just the underlying landowner, who may still have an interest—so it might have been land that is owned, particularly, for instance a lot of iwi land, leased to an owner who’s got the building on it. The reason for highlighting that is it’s very complicated in terms of the rights of those various parties, and it’s important to strike a balance, which means all those interests are protected to the extent that people working in and around those buildings can actually continue to live and work safely—and that’s what this bill is about: striking that balance.

So a couple of things: I note the Minister has introduced new Supplementary Order Paper 234, which means that, essentially, where designated land has been specified—that is land or property that is subject to the seismic event—and it is in danger of falling over or whatever the case might be, and we’ve got a building that is now no longer safe, then the Minister can designate that land—this is under proposed new section 133BH(1)(c)—or the territorial authority. And I note, Minister, that you’ve now introduced, under proposed new section 133BH(1)(c)(ii), the ability for the Minister to also have control of that territorial authority, so it would be useful to hear from you about that particular event.

I think one of the other things I just want to highlight, and this is something that deals with this complicated issue around who owns the land and who controls the land. I’m referring to clause 12, proposed new section 133BV(3)(a)(iiia). This is the issue: what it does under this clause—“Works to remove or reduce other risks”—is it requires that, in relation to a building, they be directed to a competent person, and that at least 10 days prior to deciding, they seek the views of the owner and the occupier of that building, the owners and occupiers of other buildings, and those that have interests in the land where the building is situated. The issue I’ve got—and it’s one that we traversed in the committee—is about the issue of the owners of that land. So you might have an owner, but it might be a vacant property, or part of the site may be a vacant property that has been sublet to someone who has control of that land, or there’s no building structure on it. The issue here is whether the rights of those landowners—in this case it might be someone who has access to lease out a car parking slot, and so there’s no building, as I said before—they’re in a situation where they have a very legitimate right over that piece of land. I just would be interested to hear from the Minister how this particular clause actually protects those people, because I’m not sure that we’ve actually captured all of those people; and if we have, I’d be very glad to hear that we’ve reached that situation.

I think the other thing is that there’s a number of consequential changes that need to be made as a result of this bill, and particularly with the Civil Defence Emergency Management Act (CDEM). I do acknowledge my good friend and colleague Stuart Smith, who is our spokesperson on this important area, making a fine contribution. Of course, this is very relevant, because in these situations we do have the CDEM involvement in these types of situations, and also interesting is the Search and Surveillance Act 2012. All of these are about setting out powers to improve the system for managing buildings after the emergency, as I alluded to before.

But I think the biggest thing is giving the Ministry of Business, Innovation and Employment—MBIE officials are the key group of officials required to take control after such a seismic event—the ability to be able to go into these buildings, to be able to commission engineers to check it out, to make a determination about whether they’re safe and then, as a result of that, that situation, to require, first of all, measures to make sure the area around those buildings is safe and that, ultimately, and as speedily as possible, these buildings are remedied and brought up to the code of compliance.

I think one of the issues, again, that we traversed in the committee—and this is the third question for the Minister—is about the timing around this, because officials like to take time. Often these are in quite tumultuous situations, but the requirement for officials to act as efficiently as possible is of critical concern, particularly when you’ve got owners who own buildings that are no longer getting rent, or not entitled to rent, or people who have not been able to get to their property or their businesses. The classic example of this was actually in the London bombings—with the IRA in London when the bombs went off—and there was an area that was put, about half a kilometre diameter, around the site and business owners were not allowed back into that site for quite some months; I think, from memory, about eight months. As a result, for the vast majority of businesses operating in that area—even though their buildings hadn’t been damaged by the bomb but were curtailed by officials taking an overly cautious position—it led to most of those companies going into receivership and liquidation. That is not a situation we want to see in New Zealand. So that’s the third question for the Minister: what assurance can she give to the House that this legislation puts a real binding obligation on MBIE officials to act efficiently, act promptly, but make sure that they’re still protecting the safety of New Zealanders? We all know the tendency in situations like this to be, perhaps, overly cautious, and I’d like to hear from the Minister about that third element.

But, look, I’ve got to say, in the main, we obviously support this piece of legislation. It’s important in the current environment, and I think it’s something that we shall, hopefully, see passing through the House very shortly.

I’ll do a little brief submission here because it’s been covered so well by the previous speaker, Andrew Bayly. I’d like to acknowledge the Transport and Infrastructure Committee for working on this. I took part; I’m on that select committee and it’s a great select committee.

💬 Hon Member: It’s a great committee.

Yeah, it’s a great one, a lot of good workers on there and we covered—we support the bill. We do support the bill. It’s a detailed bill; it’s our work and it’s taken 18 months to get here—25 submissions, eight oral ones. I understand it’s the Hon Jenny Salesa’s first and only bill that she’s brought to the House. I acknowledge that it’s a robust process that allows our Ministry of Business, Innovation and Employment (MBIE) officials and others to manage buildings in the case of an emergency or significant event. The law needs to be clear on buildings and how they’re managed in emergency situations, and a common sense approach is required.

This bill adds new powers to allow buildings to be inspected, evacuated, or restricted in the case of emergency, and to balance the rights between the building owner and the regulator. This bill allows work to be carried out on a building or it to be demolished, and allowing flexibility in management. I know the MBIE officials investigate situations where buildings have failed in the past and I know they’ve—poor old MBIE, they get a lot of work these MBIE guys. They’re always in select committees and they’re out all over the place; so we’d be in trouble without them. I know that they looked into the Southland Stadium, the Forsyth Barr building, the Pyne Gould Corporation building, Hotel Grand Chancellor, CTV Building, and Statistics House for this bit of work, for this bill.

💬 Kieran McAnulty: I might move closure after this.

Thank you, Kieran McAnulty. I know that the New Zealand Institute of Building Surveyors have also said that we need to learn lessons from these Christchurch earthquakes. So the Transport and Infrastructure Committee came up with some amendments—some handy amendments—tidying up the bill to make it more consistent. I notice here they changed some prescriptive criteria so that the outcomes of the work—not the work itself—need to be described, and that introduces some transparency in the decision making. I also note that a responsible person, as classified in that piece of law, also includes police constables, and it gives them immunity if acting in good faith; so I agree with that. So it’s a great bill; it’s very practical. We’ve learnt from our mistakes. Some good work’s been done by both sides of the House and we’re all in agreement; we support it. I commend the bill to the House.

Thank you, Madam Chair. Now, look, I just wanted to pick up on an area that I touched on in the second reading, here. It’s an area that Mr Bayly has referred to, as well, that I would really appreciate some clarification from the Minister on, and that’s in relation to section 133BV around “Works to remove or reduce other risks” and—

💬 Hon Nathan Guy: Very important.

You’re right there, Mr Guy; it is an important section. One of the aspects under there, in Part 1, new section 133BV(3)(a)(iiia)—so if they’re putting in place that notice enabling them to access neighbouring properties, with 10 days’ notice etc. is one of the requirements, as mentioned. The concern I have is that it doesn’t express a requirement to notify or seek to notify the owner of adjacent vacant land—so this is section 133BV(3)(a) where it talks about at least 10 working days’ notice must be given to consider the views of the following persons: the owner of the building—that’s the damaged building—the occupiers of the building, but also owners and occupiers of other buildings, and owners and occupiers of other critical infrastructure whose use is disrupted by the measures put in place. But it doesn’t require them to consult the owner of any vacant land whose use is disrupted by that section 133BR or section 133BS notice being put in place.

Section 133BV(3)(a)(iv) and (v) do refer to persons who have an interest in the land, but that’s the land on which the damaged building itself is situated, not an adjacent piece of land which could also be impacted. The example of the car park, I think, is a good example if, perhaps, you’re fencing off a safety zone for this building that requires a significant portion, or indeed all, of that car park to be sectioned off from commercial use as a car park, but yet there is no consideration to consult with their operator before inflicting that restraint upon them.

So that is one area where I really would like to see some consideration from the Minister. I did note there was a Supplementary Order Paper (SOP) that came out but it doesn’t appear to be addressed under that at all. I will reiterate it, as during the second reading, I didn’t sit through the entirety of the select committee consideration but I did catch the end part of it, and that was one aspect that was highlighted for me that I think we do need to have some clarity on. There may be a simple solution and, perhaps, I’ve missed a clause there but certainly some acknowledgment or addressing that concern would be greatly appreciated because, of course, there are issues anytime a seismic event happens. We want to make sure that safety is a key consideration but actually property use as well, and property rights within that, are actually very critical too. So, whilst we want to ensure that safety is not compromised, property rights must also be balanced appropriately. I think consideration for any owner of land and assets, whether it be buildings or critical infrastructure or indeed the land itself, should be consulted prior to any notice, such as section 133BR or section 133BS, being put in place on that particular building or adjacent building.

Of course, that can have a significant impact. Mr Bayly gave the example of numerous businesses going into receivership as a result of their inability to access and utilise that asset or property for the commercial operations in which they would have anticipated doing so. So it’s just a small area but, I think, an important one that I would like to get some clarity on from the Minister, so I invite her to give us that. Thank you.

Thank you, Madam Chair. I have a couple of questions for the Minister on the Supplementary Order Paper (SOP) later on, but I do commend the bill—it is a good one—most importantly because it makes it very clear who is in charge at the time and soon after an emergency, as we’ve had in Christchurch and Kaikōura recently. No doubt we will have other earthquakes; it’s inevitable in a country as we have.

The importance of having and knowing and understanding who is in charge is important for a number of reasons. It makes sure that actions are taken. It gives confidence to the general public. There’s no confusion as to who is in charge and who is going to say what, and what authority one party or group might have over another. I find it quite ironic saying this, because we look across to the side and we really don’t know who’s in charge. We don’t know if it’s the New Zealand First guys or the Labour guys. I find it quite ironic that we have a bill here to determine and make very clear whose instructions one should follow in an emergency.

Now, the other part of the bill, of course, is to do with the powers that the Ministry of Business, Innovation and Employment have after the event. After the event, we need to know what has been the cause of some of the collapses, for example, in the building or in the dam—that was articulated in select committee. This bill gives more power to investigate, power for information, and power to access information from designers, architects, and engineers, and that’s also a very good initiative. So all that is all good.

We have an SOP, number 234, and two of my colleagues have already mentioned a couple of points in SOP 234. I just want to question the word “relevant” that’s been inserted into 133BK(2)(c)(i) and also (d)(i). So the question is: why are we inserting the word “relevant” when, to me, reading it before the SOP, it makes perfectly clear that there is a perfectly clear direction by the director or the group, being a person acting under the authority of the director or the group. That’s my question: why the insertion of the word “relevant”? Thank you.

Talofa lava, Madam Chair, and happy Samoan Language Week. I’d like to first of all thank the chair of the Transport and Infrastructure Committee, Darroch Ball, and all the members of the select committee for all of the work that they’ve done in getting this Building Amendment Bill to this stage. I’d also like to thank the Hon Dr Nick Smith, the previous Minister, for his work, as well as the National Party’s work on this.

The history of this particular amendment bill is that it began in 2013, so there’s been a lot of work that has gone into this, and mostly by the previous Government. Cabinet, at that time, agreed in principle with the recommendations that were made by the Canterbury Earthquakes Royal Commission about the management of buildings after an emergency event. In mid-2015, the Ministry of Business, Innovation and Employment (MBIE) released a consultation document, so I’d also like to thank my MBIE officials, who have done a whole lot of work over a number of years to get us to this stage with this particular legislation. In late 2016, Cabinet made decisions on the emergency management aspect of this proposed bill, and in early 2017, Cabinet made decisions on the building investigation powers of the Building Amendment Bill. Mid last year, 2018, I introduced this bill to the House. It had its first reading, and then it was referred to the Transport and Infrastructure Committee.

The bill proposes new powers that aim to address the risks to people and to property from buildings during and after an emergency. Some of the comments from the previous speakers questioning whether or not we have the powers between property owners as well as MBIE or whoever it is that actually takes control after an emergency, for instance, like an earthquake, be it the Christchurch earthquake or the Kaikōura earthquake—what comes to mind is what happened in the CTV Building. So right now we’ve got two pieces of legislation, and after that first earthquake, what became clear was that we didn’t actually have one piece of legislation that would take control, especially if buildings are dangerous to people’s lives—and as we saw right there in the Canterbury earthquakes, some of those buildings were indeed dangerous to people, and, unfortunately, there were quite a number of fatalities.

This particular legislation that we are putting through the House tonight is really to ensure that we learn the lessons of what happened in the Canterbury earthquakes, and that we ensure that buildings are made safe. So, yes, these building owners have rights, but at the same time we also need to ensure that buildings are safe not only for people that work in those particular buildings but for people that walk around on the outside of those particular buildings.

So especially in an urgent event like that, like an earthquake, it is especially important that we ensure that a Building Amendment Bill like this one allows MBIE or the territorial authority to be able to inspect and place notices in buildings if they are deemed unsafe and unsanitary; evacuate and restrict those buildings; close the roads and cordon off streets so that the public are not walking past these particular buildings; require further information from our building owners; and demolish and carry out work to buildings that pose risk of injury or death to people, or buildings that are at risk of disruption to neighbouring buildings, critical infrastructure, as well as to public thoroughfare. We are also requiring building owners to remove or reduce the risks that are posed by the buildings on a case-by-case basis.

These powers can be used when no State emergency or transition period is in force; however, if such powers are enforced when the Civil Defence Emergency Management (CDEM) Act is in force, if it is a building, this bill actually ensures is that this particular bill is the one that applies with regards to buildings.

So one of the questions asked before was in terms of timing: can we make sure that officials say that things are going to be done really efficiently? For us, the most important thing is we ensure that the public is safe. So, yes, our officials will ensure, as well as the territorial authorities, that things are done efficiently; however, what is most important here is that we ensure that buildings are not posing injury or death risks to our people.

The other question that was posed was with regards to section 133BV in terms of balancing the risks and looking after the interests of building owners, especially when there is vacant land. That is actually one of the things that was traversed in the select committee, and I am confident that the clauses in the bill right now actually address some of those issues that were raised at the select committee. This is an amendment bill that’s been many years in the making, and, as I said earlier on, it was one that has been introduced since 2013. I have the honour of introducing it to the House and, hopefully, seeing it introduced at the third reading and becoming law, but it is one that we’ve actually worked on cross-party with the National Party. Thank you, Madam Chair.

The question was put that the amendment set out on Supplementary Order Paper 234 in the name of the Hon Jenny Salesa be agreed to.

Amendment agreed to.

Parts 1 and 2, the Schedule, and clauses 1 and 2 as amended agreed to.

Bill to be reported with amendment presently.