Shaking Grounds and Safety Obligations: Navigating Earthquake-Prone Buildings with Legal Insight

When considering next steps for addressing earthquake-prone buildings, building owners must be aware of the obligations they have under not only the Building Act 2004 (“the Building Act”), but also as Persons Conducting a Business or Undertaking (PCBUs) under the Health and Safety at Work Act 2015 (“the Health and Safety at Work Act”), particularly when the building is occupied.

A building is earthquake-prone when:

1.     it is rated less than 34% of the New Building Standard (NBS), which is established by an engineering assessment; and

2.     the relevant territorial authority, in reliance on that engineering assessment, determines the building is earthquake prone under the Building Act.

The Building Act and the Health and Safety at Work Act are relevant to owners of earthquake-prone (or potentially earthquake-prone) buildings, in that:

• The Building Act does not contain an outright prohibition against entry to, or occupation of, an earthquake-prone building (although, the Act does empower territorial authorities to restrict entry to a building once it is designated earthquake-prone); but

• The Health and Safety at Work Act does contain a very broad obligation on PCBUs to eliminate risks to health and safety, so far as is reasonably practicable (and where elimination is not reasonably practicable, to minimise those risks).

In other words, there may be no obligation under the Building Act to completely vacate a building if it is earthquake-prone, however, the Health and Safety at Work Act could be interpreted to require that same building being vacated to eliminate life safety risk in the event of a significant earthquake, depending on what is reasonably practicable in the circumstances.

There is no one-size-fits-all approach to this issue and that is reflected in some of the more high-profile examples such as Wellington’s central library and the Wellington railway station, where different approaches have been taken. Wellington’s library is closed for strengthening despite not officially being designated as earthquake-prone (it “hypothetically rates as low as 15% NBS”)[1]; conversely, Wellington’s railway station has officially been designated earthquake-prone and continues to be open to the public.

In our view, the practical approach to earthquake-prone buildings should involve an assessment of the level of risk and what steps it is reasonably practicable to take to eliminate (or mitigate) that risk. This may include:

• Engaging further with an engineer to assess what elements of the building are vulnerable and whether any of its existing occupants are particularly exposed to those vulnerable elements;

• Establishing how long it might take to remediate the building and whether it would be possible to remediate without vacating the entire building; and

• Assessing whether it is practical to vacate the building and relocate its occupants until remediation is completed.

It is also important to know, and act in accordance with, any seismic-related provisions in any leases for the building. Some leases permit the tenant to vacate the premises or even terminate the lease if the building falls below a certain %NBS (even if the building is not earthquake-prone); in other cases, the landlord may have the right to terminate the lease early if it wishes to seismically strengthen the building.

We appreciate there is often a tension between commercial and health & safety considerations to be worked through. If you are a building owner and are unsure about what steps to take to address an earthquake-prone, or potentially earthquake-prone, building, or want advice generally regarding your obligations as a PCBU, please do not hesitate to contact Sarah Churstain (sarah@fsl.nz) or Jordan Todd (jordan@fsl.nz).

Disclaimer

The information on this webpage provides you with general information that is true and accurate to the best of Ford Sumner’s knowledge.

Ford Sumner may change, delete, add to, or otherwise amend the information contained on this webpage without notice.

Information on this webpage is not business, tax, or legal advice. You should take specific, professional advice before taking any action based on this information.

While Ford Sumner has taken all reasonable care in placing the correct information on this webpage, it cannot be liable for any inaccuracy, error, omission, or any other kind of inadequacy, deficiency, or flaw in, or in relation to the information contained on this webpage. Ford Sumner fully excludes any and all liability of any kind to any person or entity that chooses to rely upon the information.

[1] New Zealand Herald – “$200m problem: Why is Wellington’s central library closed?” https://www.nzherald.co.nz/nz/200m-problem-why-is-wellingtons-central-library-closed/TDMLEBJV3DGMQXISYPC6NTTZKI/