The collapse of various high profile Christchurch buildings as a result of the 2010 and 2011 earthquakes have forced the Council and local building owners to consider the consequences of such an earthquake, if one were to ever occur in Dunedin. Due to the age and nature of many Dunedin buildings, the issue of building strength and safety is especially relevant to local building owners, tenants, employees and customers.

 

 

The Building Act 2004

The Building Act requires an existing building to achieve 34% of new building strength (“NBS”). A building designed to current seismic load design standards would have 100% NBS. This requirement applies only to commercial or multi-unit residential buildings (3 stories or higher). Buildings that do not achieve 34% NBS are deemed “earthquake prone” if they would be likely to collapse in a moderate earthquake, causing injury or damage to property. Buildings that achieve 34–67% NBS are deemed to be “earthquake risk buildings”, yet no further improvements must be made to the building. The practical effect of the Act’s definition of an earthquake prone building is that buildings constructed prior to 1976 are far more likely to be earthquake prone.

 

 

Health and Safety in Employment Act 1992 (the “HSE Act”)

The structural integrity of a building can directly affect an employer’s liability. The HSE Act obliges employers to provide and maintain a safe working environment for their employees. Further, employers are required to, “take all practicable steps to ensure the safety of employees while at work”. It may be that an employer is required to ensure the workplace building exceeds the minimum Building Act requirements (34% of NBS) otherwise they risk exposure to criminal liability under the HSE Act. Unfortunately, taking practicable steps to address the structural integrity of a building may become complicated where the employer is also a tenant that leases the building.

 

 

Leases

Most leases will not address these Building Act or HSE Act issues. The tenant must keep the building in good repair, which does not require them to carry out structural repairs or strengthening. Leases will usually only require the landlord to carry out strengthening if the law or regulation stipulates the requirement. For example, where the Council issues a notice under section 124 of the Building Act requiring the landlord to reduce or remove the danger. The council may also require strengthening if the building is considered earthquake prone and the tenant makes a building consent application for significant alterations to the building. However, in many cases it will be unacceptable for a tenant to wait for such situations arise.

 

 

Where to from here?

In the landlord and tenant context, the responsibilities and expectations of each party in respect to the HSE Act and the Building Act should be clearly set out in the lease. Both parties should seek legal advice before entering into a commercial lease to help avoid exposure to future liability or unexpected expense. Legal advice on compliance with the HSE Act should be sought if it is suspected that the structural integrity of a building or any internal hazards arising from the fit out may put the safety of employees at risk.