Inquiry into Boarding Houses - Initial briefing to Social Services Committee

Inquiry into Boarding Houses - Initial briefing to Social Services Committee Table of contents Inquiry into Boarding Houses - Initial briefing to So...
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Inquiry into Boarding Houses - Initial briefing to Social Services Committee

Table of contents Inquiry into Boarding Houses - Initial briefing to Social Services Committee....................... 1 Purpose ................................................................................................................................ 3 Background .......................................................................................................................... 3 The legislative and regulatory frameworks that apply to boarding houses........................... 6 Appendix A – Auckland Council Bylaws Part 04 - Hostels 2008 .................................. …..11 Appendix B – Excerpt from Boarding House Tenancy Agreement .................................... 18 Appendix C - Auckland Council - Earthquake Prone, Dangerous and Insanitary Building Policy…………………………………………………………………...…………………………..19

Purpose 1 The purpose of this initial briefing is to provide you with advice to the ‘Inquiry into boarding houses in New Zealand’.

Background Terms of reference

2 This initial briefing provides advice based on the terms of reference set by the Social Services Committee. The terms of reference for the inquiry are to: 

consider the legislative and regulatory frameworks that apply to boarding houses



determine whether the current frameworks provide adequate protection to vulnerable tenants.

What is a boarding house?

3 Statistics New Zealand defines boarding houses as establishments providing boarding facilities, usually for multiple residents and for an extended period of time. Dwellings, which would normally be classified under the private dwelling category, that have six or more boarders or lodgers are included under the boarding house definition. According to 2006 Census, there are 177 occupied boarding houses in New Zealand.

4 The Residential Tenancies Act 1986 (RTA) defines a boarding house as residential premises that contain one or more boarding rooms and facilities for communal use, and is occupied, or intended to be occupied, by at least six tenants at any one time.

5 In late 2010, as a result of changes to the RTA, the Department of Building and Housing (the Department) started receiving bonds from people living in boarding house accommodation. At June 2011, the Department had received 282 bonds relating to 265 properties as boarding houses. Table 1 shows the regional breakdown of the 282 bonds lodged with the Department.

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Table 1: Regional breakdown of bonds lodged with Department of Building and Housing under boarding houses

Location

Total

Christchurch

101

Auckland

88

Nelson

77

Wellington

7

Taupo District

1

Selwyn District

1

New Plymouth District

1

Rangitikei District

1

Matamata-Piako District

1

Invercargill

1

Hamilton

1

Whangarei District

1

Buller District

1

Grand total

282

6 Under the Health Act 1956, the Housing Improvement Regulations 1947 defines a boarding house as a house or part of a house other than licensed premises, in which 5 or more persons other than the occupier and the members of his family are lodged, but with the right of entry by the occupier to any room in which such persons are lodged, and in which the occupier supplies any person with food to such persons. The Regulations include provisions to prevent overcrowding in boarding houses. The Auckland Council has these provisions as part of their Hostel bylaws. (refer Appendix A) The role of boarding houses

7 A range of people live in boarding houses from single student boarders to people receiving an invalids or sickness benefit. Individual boarding houses tend to cater for a specific group. For example a survey of Christchurch boarding houses commissioned by the Ministry of Housing in 2004 1 identified four main types of boarding houses: 1

‘Boarders – A survey of boarders and boarding houses – Christchurch – Otautahi’ (Tenants Protection Association Christchurch (Inc.): 2004) 4/26



Traditional: characteristic tenants were single males over 45 years of age, who may suffer from drug dependency or emotional issues.



Student: characteristic tenants were foreign nationals who were in Christchurch for their tertiary education.



Visitor: characteristic tenants were workers in Christchurch on short-term contracts.



Upmarket: characteristic tenants were people who wanted to live in a pleasant surrounding for some extended period of time without the responsibilities associated with other tenures.

8 According to the 2004 Christchurch survey, reasons given by tenants for choosing boarding house accommodation included: convenience, proximity to work, tertiary institutions and services, cost and independence.

9 In addition, boarding houses sometimes provided accommodation of last resort for people with credit and tenancy histories, limited means or where appropriate alternative housing choices are lacking.

10 The 2004 survey of boarders and boarding-houses in Christchurch found that in the traditional boarding-houses, which represented around half of the boarding-houses surveyed: 

10 percent of tenants reported having mental health issues



35 percent of tenants reported having had past dependency on drugs or alcohol



16 percent of tenants reported having a current dependency on drugs or alcohol



77 percent of tenants were in receipt of an unemployment, sickness or invalids benefit or superannuation



20 percent of boarding-house managers who suspected their tenants had mental health issues or dependency problems were aware of their tenants’ health workers.

11 In 1999, the Mental Health Commission published a report titled, ‘Housing and Mental Health: Reducing Housing Difficulties for People with Mental Illness.’ It identified a ‘lack of standards and regulations for private boarding house accommodation’ as an issue, stating that the quality of boarding houses ‘varies enormously’ and that boarding house environments can be ‘unsafe and exploitive’ for people with mental illness. The report also identified a need to identify how landlords could be assisted to support tenants with mental illness, particularly as some are doing so in the absence of any other mental health support services.

12 Consultation undertaken by the Ministry of Social Policy in 2000/2001 identified issues for boarding-house residents that appeared to fall into four inter-related categories: 

the relationships between residents and owners/managers, relating to quality, safety, quiet enjoyment and security of tenure

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the relationships between residents, which can require intervention by the owner/manager



variable quality of accommodation, including health and safety issues



the need of a significant number of residents for support in managing their tenure relationship and dealing with problems relating to their accommodation.

The legislative and regulatory frameworks that apply to boarding houses 13 The following paragraphs describe the relevant legislative and regulatory frameworks under two parts, first, legislation governing tenancy rights and obligations, secondly, legislation governing building, health and safety.

Legislation governing tenancy rights and obligations The Residential Tenancies Act 1986

14 The Residential Tenancies Act 1986 (RTA) is the principal Act regulating residential tenancies in New Zealand. It defines the rights and obligations of residential landlords and tenants, sets out dispute resolution procedures and established a fund into which tenancy bonds are paid and held in trust.

15 A landlord for a general tenancy can ask for a bond for up to 4 weeks rent, the landlord must then lodge the bond with the Department within 23 working days. A landlord of a boarding house can also ask for up to 4 weeks rent and must lodge the bond with the Department within 23 working days also, unless the bond is equivalent to one week’s rent or less.

16 Prior to the commencement (1 October 2010) of the Residential Tenancies Amendment Act 2010 (RTAA), most boarding house tenancies were excluded from the RTA’s coverage. Consequently, boarding house tenants had few tenancy specific rights and were reliant on their ability to negotiate suitable contracts with their landlords, common law remedies and some generic provisions of the Consumer Guarantees Act 1993.

17 The RTAA extended the RTA’s coverage to boarding house tenancies, with the objective of ensuring that the tenancy rights and obligations of boarding house landlords and tenants are clear, appropriately balanced and readily enforceable. Under section 66B of the RTA, a boarding house is defined as premises containing one or more boarding rooms and facilities for communal use by the tenants, and intended to be occupied by at least six tenants. A boarding house tenancy is one that is intended to, or does in fact, last for more than 28 days.

18 Some of the rights and obligations of boarding house tenants under the RTA differ from those of other tenants, because of the different dynamics created by communal leaving and the more transient nature of boarding house tenancies. These differences include:



processes and timeframes for terminating tenancies



the ability for boarding house landlords to make house rules

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the fact that boarding house landlords are not required to deposit bonds equivalent to one weeks’ rent or less with the Department of Building and Housing.

19 The RTA contains several provisions that relate specifically to the cleanliness, maintenance and quality of boarding houses (Sections 66H and 66I). For example, boarding house landlords must: 

ensure a tenant’s room is in a reasonable state of cleanliness at the start of a tenancy



ensure that the facilities of the premises are in a reasonable state of cleanliness



ensure that the premises are in a reasonable state of repair



comply with all requirements in respect of buildings, health and safety under any enactment so far as they apply to the premises



display fire evacuation procedures.

20 In addition, Section 109 of the RTA enables a tenant, or the Chief Executive of the Department acting on behalf of a tenant, to seek exemplary damages of up to $3000 through the Tenancy Tribunal against all landlords (general tenancies and boarding houses) who provides unclean, poorly maintained or substandard accommodation. Section 78 enables the Tenancy Tribunal to order repairs and section 54 provides tenants with protection against retaliatory notice.

21 A more detailed summary of the substantive rights and obligations of boarding house landlords and tenants are attached (refer Appendix B).

22 The Department of Building and Housing also provide a comprehensive suite of advice, information and dispute resolution services to landlords and tenants via its website, network of offices and a dedicated 0800 number.

Legislation that governs boarding house building, heath and safety Local Government Act 2002

23 The Local Government Act 2002 is administered by the Department of Internal Affairs. It provides territorial authorities with general bylaw making powers to protect and maintain public health and safety. Bylaws may also provide for the licensing of persons or property. Territorial authorities may develop a bylaw for boarding houses, for example Auckland Council has bylaws governing boarding houses. The Fire Service Act 1975

24 The Fire Service Act 1975 is administered by the Department of Internal Affairs. Under section 21B of the Act, it requires owners of relevant buildings accommodating more than five persons to have a fire evacuation scheme approved by the National Commander of the Fire Service, unless the building has an automatic fire sprinkler system.

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25 Under section 21G of the Act, if the owner of the building fails to comply with the requirements of section 21B, the National Commander may apply to a District Court judge for an order that the building be closed until those requirements are met. The Building Act 2004

26 The Building Act 2004 is administered by the Department of Building and Housing (the Department). Regulations made under the Act provide for the Building Code, which sets out minimum performance standards for building work on all types of buildings. These standards only apply to new building work and don’t affect existing buildings unless they are renovated, altered or undergo a change of use. The Building Act also requires territorial authorities to adopt policies regarding dangerous and insanitary buildings and enables them to take action against owners of dangerous and insanitary buildings, regardless of when they were built.

27 Section 121 of the Building Act provides that a building is dangerous for the purposes of the Act, if, (a) in the ordinary course of events (excluding the occurrence of an earthquake), the building is likely to cause – (i) injury or death (whether by collapse or otherwise) to any persons in it or to persons on other property; or (ii) damage to other property; or (b) in the event of fire, injury or death to any persons in the building or to persons on other property is likely because of hazard or the occupancy of the building.

28 Section 123 of the Building Act provides that a building is insanitary for the purposes of the Act, if the building – (a) is offensive or likely to be injurious to health because (i) of how it is situated or constructed; or (ii) it is in a state of disrepair; or (b) has insufficient or defective provisions against moisture penetration so as to cause dampness in the building or in any adjoining building; or (c) does not have a supply of potable water that is adequate for its intended use; or (d) does not have sanitary facilities that are adequate for its intended use.

29 An example of how a territorial authority implements section 123 of the Building Act, the Auckland Council’s building policy that defines its Earthquake Prone, Dangerous and Insanitary procedures is attached as appendix C. The Health Act 1956

30 The Health Act 1956 is administered by the Ministry of Health. The Health Act provides for local authorities to issue cleansing and closure orders for properties 8/26

that have become a health threat, including through overcrowding. Under the Health Amendment Act 1979, the Housing Improvement Regulations 1947 (the Regulations), continue in force as if they were made under section 120C of the Health Act. The Regulations include provisions to prevent overcrowding in boarding houses and lodging houses, including the number of occupants in relation to facilities. These provisions are used by the Auckland Council in their Hostel bylaws. The Regulations enable (but do not require) local authorities to keep a register of boarding houses and lodging houses.

31 Under section 39(1) of the Health Act, landlords are also required to provide: (a) an adequate and convenient supply of wholesome water available for the inmates of the dwelling; (b) suitable appliances for the disposal of refuse water in a sanitary manner; and (c) sufficient sanitary conveniences available for the inmates of the dwelling and generally to ensure that the premises are fit for occupation.

32 Under section 39(1) of the Health Act, a fine, not exceeding $500 can be placed on a person who fails to comply with the requirements of dwelling houses to supply water and sanitary conveniences in any building intended for use as a dwelling house.

33 Under section 41 of the Health Act, owners or occupiers of any premises may be required to cleanse the premises if any local authority believes that this is necessary for preventing danger to health or for rendering the premises fit for occupation. A person who fails to comply with any cleansing order commits an offence against the Health Act.

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Discussion Addressing issues with boarding houses Adequacy of, and compliance with legislation

34 The quality of boarding-house accommodation is variable and the legislation governing the quality of boarding-houses is multifaceted and, in some cases, dated. Currently there is no required registration or licensing regime for boarding houses.

35 Territorial authorities have powers under a range of Acts to deal with substandard boarding-houses generally in response to complaints made by the public. They can utilise their bylaw making powers to supplement existing statutory requirements. However, when deciding whether to exercise these powers territorial authorities consider a range of factors, including the cost to ratepayers and the availability of alternative accommodation.

36 It is expected that measures now contained in the Residential Tenancies Act 1986 will provide encouragement for boarding-house landlords to provide clean, well maintained accommodation and comply with their existing statutory obligations, encourage tenants to complain about substandard boarding-house accommodation and provide a fast, cost effective alternative to territorial authorities taking action to enforce compliance.

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Appendix A – Auckland Council Bylaws Part 04 - Hostels 2008 1.1.1

Explanatory note

This bylaw controls the operation of hostel type accommodation including hostels, guest houses, rooming houses, boarding houses, private hotels, motels, residential clubs and hostels, except where these are licensed by other appropriate legislation. Many of these types of accommodation are typically used as budget accommodation by visitors to Auckland, or as cheap accommodation for residents. The Hostels Bylaw sets standards for safety, ventilation, sanitary conditions and to prevent overcrowding of these premises. This bylaw also sets minimum standards for the construction, maintenance and cleanliness of such buildings so that visitors to or residents of these premises enjoy accommodation of a reasonable standard. Terms not found in this bylaw may be defined in the Bylaw Administration bylaw. Notes in italics within the bylaw, are not part of the bylaw, but are intended to explain the contents of the bylaw or give further information on matters within the bylaw.

Contents 4.1 General 4.2 Compliance with statutory obligations 4.3 Appointment of manager 4.4 Responsibilities of manager 4.5 Kitchen standards 4.6 Exemptions

1.1.2

4.1 General

4.1.1 In this bylaw unless the context requires otherwise:

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Authorised officer means an officer specifically delegated by the Council to administer and enforce aspects of this bylaw. Hostel means a building in which accommodation is provided for a single night or longer for 5 or more persons who are not part of a family with or without a common right to the use of common cooking or dining or bathroom or toilet facilities. A hostel includes but is not limited to: A boarding house; A guest house; A rooming house; A private hotel; A motel; A residential club; A hostel (including a backpackers' hostel); But does not include: Any premises in respect of which an off-licence is deemed to be in force; Any hospital as defined in Section 2 of the Hospitals Act 1957; Any home for aged persons required to be licensed under Section 120A of the Health Act 1956; Any premises used for the provision of health care services as defined in the Health and Disability Services (Safety) Act 2001; Any institution licensed under Section 9 of the Mental Health Act 1969; Any premises providing early childhood services required to be the subject of a licence by regulations made under section 317 of the Education Act 1989; Any camping ground required to be licensed under regulations made under Section 120B of the Health Act 1956. Manager means the owner of a hostel or a person appointed by the hostel owner to manage the operation of the hostel.

1.1.3

4.2 Compliance with statutory obligations

4.2.1 No person shall let for occupation any hostel which does not comply with the provisions of this bylaw and with all relevant statutory provisions regarding its occupancy.

1.1.4

4.3 Appointment of manager

4.3.1 Any person who lets for occupation any hostel shall appoint a manager for that hostel. In any case where no manager is designated the person who lets the premises for accommodation shall be deemed to be the manager for such purposes. If the manager does not permanently reside on the premises a resident manager who resides on the premises shall also be

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designated with all the powers and responsibilities of the manager. Resident Manager waiver 4.3.2 The requirement to appoint a resident manager for a hostel shall not apply in any case where an authorised officer is satisfied that this would be unreasonable or impractical having regard to the particular circumstances.

1.1.5

4.4 Responsibilities of manager

4.4.1 The manager of a hostel shall: Maintaining cleanliness Maintain all of the building and all appliances, fixtures and fittings in the building in good repair and in a clean and hygienic condition and cause all rooms, passages, stores, floors, ceilings, windows, doors and walls of the building to be kept clean and free from vermin; Courts, yards Ensure every yard or court or other open space is kept at all times in good order and thoroughly clean, and free from any accumulation of refuse, or foul matter or undesirable growth and shall as often as necessary wash all paved surfaces in such yard or court or other open space; Lighting and Ventilation Ensure that all parts of the premises are adequately lit and ventilated at all times to the requirements of the Building Act 2004 and Building Regulations 1992; Room Identification Clearly identify the rooms which are to be separately occupied by affixing a number to the outer side of the doors; Rubbish storage areas Maintain any rubbish storage areas in a clean and tidy condition. 4.4.2 The manager shall cause: Provision of clean bedding All the bed-linen, bedclothes, bedding, bedsteads and all soft furnishings provided to guests to be thoroughly cleaned as often as is necessary to maintain these items in a clean and wholesome condition and free from vermin;

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Refuse removal from rooms All refuse to be removed at least daily from every room in the hostel; Keys A duplicate set of keys to be kept on the premises to allow the inspection of hostel rooms by an authorised officer; Bedrooms Every room which is used as a bedroom to be furnished with the approved number of beds sufficient for all occupants but not exceeding the limits of Table 1. A sufficient supply of clean bed linen and bedding shall be available for every guest in each bedroom in cases where they are not required to provide their own. Every bedroom to have adequate clothes storage facilities for the number of guests, and suitable curtain or window coverings for privacy; Provision of clean towels, bed linen, bedclothes Towels to be supplied for each guest at least weekly and to every newly-arrived guest. All bed linen and bedclothes supplied to guests shall be removed as soon as convenient after a bedroom has been vacated. All such bedclothes and the bed from which the bedclothes have been removed shall be fully exposed to the air so that they may be thoroughly aired. 4.4.3 The manager or resident manager of a hostel shall ensure that at all times: Restriction of naked flames, fire prevention Except in the case of an emergency, the use of any lighted candles, or any lamp, or heater supplied with kerosene, mineral or other oil, or spirit for lighting or heating purposes is not permited to be used in any part of the premise unless such candle, lamp or heater is constructed, protected, and secured as not to involve risk of fire to the building or its contents; Storage of flammable materials Flammable or explosive materials are not stored or kept, or allowed to be stored or kept, in any cupboard or other place situated under any staircase or near any fire escape or balcony leading to a fire escape or fire exit. This includes but is not limited to kerosene, mineral or other oil, spirit, paint and matches; Obstruction of stairs There are no obstructions permitted to be placed in any flight of stairs, passage, or other means of escape. All doors in connection with such means of escape shall be maintained so that they can be readily opened in the direction of exit travel without the use of a key; Prevention of over crowding The number of persons permitted to be accommodated in any bedroom in the hostel does not exceed the number stipulated in Table 1 of this bylaw; Prohibited activities

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Any room that is not approved for use as a bedroom is not permitted to be occupied or used for that purpose; Equipment for the cooking or heating of food is not permitted to be provided or used in any room except a kitchen; Other requirements A suitable storage area, in an approved location, which is animal and vermin proof, shall be provided where rubbish bags or rubbish containers can be stored prior to their placement for collection on rubbish collection day. In any case where in the opinion of an authorised officer a nuisance is being created, the authorised officer may give directions to the manager to regularly remove, or cause to be removed, all rubbish at a frequency to be determined by an authorised officer. Artificial lighting, emergency lighting, fire alarms, fire detection devices and fire extinguishers or any other feature that may be required by the New Zealand Building Code or a Compliance Schedule under Section 44 of the Building Act 2004 for the hostel are to be provided and maintained in good repair and efficient working order.

1.1.6

4.5 Kitchen Standards

4.5.1 Every hostel shall have a kitchen and a dining room to the following minimum standards for the preparation of meals for guests or where guests can provide their own individual meals: All floors, walls and ceilings in the kitchen shall be properly constructed, kept in good repair, and finished to provide smooth, impervious, easily cleanable surfaces. All walls and ceilings shall be finished in a light colour; All parts of the kitchen and dining room shall be maintained in a clean, hygienic and tidy condition, free from foul odours and vermin; The kitchen shall be provided with a sufficient number of sinks and other sanitary fittings reasonably necessary for the cleaning of crockery, utensils and appliances used in the preparation, service and consumption of food. Every such sink shall be supplied with a piped supply of hot and cold water; A wash-hand basin supplied with piped hot and cold water shall be located within the kitchen or within close proximity to the kitchen. The wash-hand basin shall be supplied with soap, a nail brush and hand-drying equipment; All benches, shelves, tables, cupboards, appliances and equipment shall be constructed and finished so that they are capable of being easily cleaned; Adequate means of preparing food and of cooking food, both by boiling and by baking, sufficient for the numbers of guests, shall be provided in the kitchen; Refrigeration Adequate refrigerated and frozen storage shall be provided sufficient for the numbers of guests, for the storage of perishable and readily perishable foods. All refrigerated storage shall operate at 4ºC or below and frozen storage at minus 18ºC or below; Adequate space for the storage of food shall be provided, so placed, fitted and ventilated as to protect the food from flies, dust, and other contamination and from the direct rays of the sun; Adequate tables and chairs and utensils in the dining room for the consumption of food.

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1.1.7

4.6 Exemptions

4.6.1 Where an authorised officer is satisfied that compliance with the requirements of this bylaw would be unreasonable or impractical, an exemption in respect of any particular requirements may be granted in whole or in part, with such modifications and subject to such conditions including such time limitations as are desirable in the circumstances. Table 1: Number of persons permitted to sleep in a bedroom

Area of Bedroom

Number of Persons

Under 4.5 square metres

Nil

4.5 square metres or more but less

½ in an existing building but nil in a new building

than 6 square metres

6.0 square metres or more but less

1

than 8 square metres

8.0 square metres or more but less



than 10 square metres

10 square metres or more but less

2

than 12 square metres

12 square metres or more but less



than 14 square metres

14 square metres or more but less

3

than 17 square metres

17 square metres or more but less



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20 square metres or more

4 persons and 1 additional person for each additional complete 5 square metres

Notes: For the purposes of this table an existing building means a building existing prior to the 10th October 1947 and not substantially modified since that date, being the date when the Housing Improvement Regulations 1947 came into force. For the purposes of this table ½ a person means a child who has attained the age of one year and is under ten years of age.

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Appendix B: Excerpt from Boarding House Tenancy Agreement (page 4)

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Appendix C – Auckland Council – Earthquake Prone, Dangerous and Insanitary Building Policy 14.0 Dangerous Buildings 14.1 Background

By 31 May 2006, Auckland City is required to have adopted a policy on dangerous buildings [2]. The definition of a dangerous building is set out in s121 (1) of the Act: "A building is dangerous for the purposes of this Act if: a. i.

in the ordinary course of events (excluding the occurrence of an earthquake), the building is likely to cause injury or death (whether by collapse or otherwise) to any persons in it or to persons on other property; or

ii.

damage to other property; or b.

in the event of fire, injury or death to any person in the building or to persons on other property is likely because of fire hazard or the occupancy of the building."

14.2 Policy principles

Council has adopted a pragmatic approach in developing the policy. The approach addresses the following considerations: intent and provisions of the Building Act Government's broader concern with the life safety of the public in buildings. Auckland City Council is committed to ensuring that Auckland city is a safe place to live and work in. The dangerous building policy is consistent with Council's strategic priority for a safe city as outlined in the Long Term Council Community Plan (LTCCP). Auckland city is experiencing strong growth, which is placing considerable pressure on existing building stock. Conversions of existing aged buildings, lack of maintenance, overcrowding and illegal building alterations can cause serious building problems for occupants. The failure to obtain a building consent or the negligent use of a building for a purpose for which it is not suitable can result in a building no longer complying with the building code and pose a danger to the occupants. Similarly, inappropriate use, illegal alteration or conversion of a building may expose people living or congregating in these spaces to danger. Dangers could include inadequate fire protection, means of escape or danger of collapse.

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The Council is actively involved in educating the public on the need to discuss development plans with it and to obtain building consent where necessary. Where necessary, Council will initiate enforcement action under the Building Act 2004. [2]s131 Building Act 2004

1.1.8

15.0 Identifying Dangerous Buildings

The Council will: 1.

Respond to and investigate all building complaints received;

2.

identify from these investigations any buildings that are dangerous;

3.

inform the owner and occupier of the building to take action to reduce or remove the danger, as is required by s124 and s125 of the Building Act 2004;

4.

liaise with the New Zealand Fire Service when Council deems it is appropriate, in accordance with s121 (2) of the Building Act 2004 [3]. [3] s121 of the Building Act 2004 says "For the purpose of determining whether a building is dangerous in terms of s121 subsection (1) (b), a territorial authority. a) May seek advice from members of the New Zealand Fire Service who have been notified to the territorial authority by the Fire Service National Commander as being competent to give advice; and (b) If the advice is sought, must have due regard to the advice."

1.1.9

16.0 Assessment criteria

The Council will assess dangerous buildings in accordance with s121 (1) of the Building Act 2004:

1.1.10

17.0 Taking action on dangerous buildings

In accordance with s124 and s125 of the Building Act 2004 the Council will: advise and liaise with the owner(s) of buildings and may request a written report on the building from the New Zealand Fire Service; If it is found that the building is dangerous, Council will: attach a written notice to the building requiring work to be carried out on the building, within the time stated in the notice and not being less than 10 days, to reduce or remove the danger; give copies of the notice to the building owner, occupier, and every person who has an interest in the land, or is claiming an interest in the land, as well as the New Zealand Historic Places Trust, if the building is a heritage building; contact the owner at the expiry of the time period set down in the notice in order to gain access to the building to ascertain whether the notice has been complied with; where the danger is the result of non-consented building work a Notice to Fix will be issued under s124 of the Building Act 2004; if the Dangerous Building notice requirements are not met within a reasonable period of time as well as any other non-compliance matters Council will pursue enforcement action under the Building Act 2004.

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If the building is considered to be immediately dangerous the Council will: take any action necessary to remove the danger (this may include prohibiting persons using or occupying the building and demolition of all or part of the building); and take action to recover costs from the owner(s) if the Council must undertake works to remove the danger the owner(s) will also be informed that the amount recoverable by Auckland City Council will become a charge on the land on which the building is situated. Owners have the right of appeal as defined in the Building Act 2004. This can include applying to the Department of Building and Housing for a determination under s177.

1.1.11

18.0 The dangerous buildings policy and the Building Act 2004

s41: Building consent not required in certain cases

Where a building is assessed as being immediately dangerous the Council may not require that a building consent be obtained for any of the immediately necessary building work. However, prior to any action being taken Council will require from owners and discuss with them, a written scope of the work.

1.1.12

19.0 Access to dangerous building information

Where a building is identified as dangerous, Auckland City Council will have a requisition placed on the property file where the building is situated. This requisition will remain until the danger is remedied. In granting access to information concerning dangerous buildings, the Council will conform to the requirements of the Local Government Official Information and Meeting Act 1987 and the Local Government Act 2002. In addition, the following information will be placed on the LIM: the notice issued informing the owner that the building is dangerous and where necessary notice of the requirement to evacuate a copy of the letter to owner, occupier and any other person that the that the building is dangerous; a copy of the notice given under section 124(1) that identifies the work to be carried out on the building and the timeframe given to reduce or remove the danger.

1.1.13

20.0 Economic impact of policy

In any one year, Council could expect to receive 200 complaints relating to potentially dangerous buildings and as a result issue 10 Dangerous Building Notices. Consequently, Council has concluded that the economic impact of this is negligible.

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1.1.14

22.0 Priorities

Council will act on buildings deemed to be immediately dangerous as a matter or urgency. In these circumstances immediate action will be required to remove the danger and could include prohibiting any person occupying or using the building and where needed boarding the building up to prevent entry. Buildings that are determined to be dangerous, but not immediately dangerous, will be subject to the minimum timeframes for reduction or removal of the danger (i.e. not less than 10 days) as set out in s124(1) (c) of the Building Act 2004.

1.1.15

23.0 Heritage Buildings

For the the purposes of this policy, 'heritage buildings' are those structures as scheduled in the District Plan, buildings or structures forming part of a Conservation Area as identified with the District Plan, buildings or structures as registered under the Historic Places Act 1993; buildings or structures constructed prior to 1900. Heritage buildings will not be given systematic dispensation under this policy. However, where a risk is minor, and no accidents are known to have occurred in the past as a result, and where mitigation or full compliance would result in significantly negative impacts to the heritage value, then, innovative non-damaging approaches will be accepted. The alternative approaches would still need to demonstrate mitigation of the identified risks. In cases where compliance with any aspect of the Act would so damage the attributes of a place to the extent that its very role is compromised then case-by-case consideration of a dispensation or waiver may be negotiated by the appropriate Council officer acting under delegated authority. This procedure is in accordance with established practices and has been used on a number of occasions. Examples are the non-complying height of the Auckland Town Hall balcony rail (where an increase to code height would obliterate sightlines for much of the balcony, and where no accidents are known to have occurred), or non-complying stair treat/riser/handrail dimensions in the Civic Theatre and Old Central Post Office, where compliance would involve complete reconstruction and therefore destruction of the precious original element. Where a dangerous building notice is issued for a heritage building a copy of the notice will be sent to the New Zealand Historic Places Trust as required by s125 (2) (f) of the Building Act 2004.

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1.1.16

24.0 Insanitary Buildings

24.1 Background

Context By 31 May 2006, s131 of the Building Act 2004 requires Council to adopt a policy on insanitary buildings. The definition of an insanitary building is set out in s123 of the Act and it says: "A building is insanitary for the purposes of this Act if the building: a.

is offensive or likely to be injurious to health becausea. of how it is situated or constructed; or b. it is in a state of disrepair; or

b.

has insufficient or defective provisions against moisture penetration so as to cause dampness in the building or in any adjoining building; or

c.

does not have a supply of potable water that is adequate for its intended use; or

d.

does not have sanitary facilities that are adequate for its intended use." The provisions of the Act with respect to insanitary buildings reflect the Government's broader concern with the health and safety of people occupying buildings that may be considered to be insanitary. This is particularly so in the older building stock in Auckland city and potentially buildings that have been identified as having weathertightness issues.

24.2 Policy development approach

Growth in Auckland city is resulting in a reduction in the availability of affordable housing. As a result there is an increased incidence of overcrowding, occupation of garages, basements and sleepouts and an increase in numbers of apartments. Often the associated conversions, are undertaken without a building consent and do not comply with the building code. Insanitary conditions can prevail in these circumstances. Council is actively involved in encouraging people to discuss their development plans with Council and to obtain building consent prior to the work beginning, where necessary. This is particularly important to avoid creating insanitary conditions. Council has will initiate enforcement action under the Building Act, 2004 when appropriate. Auckland city also has a substantial number of buildings that are subject to weathertightness issues. In these circumstances dangers can include dampness or inadequate sanitary facilities leading to insanitary conditions.

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1.1.17

25.0 Identifying insanitary buildings

The Council will: investigate all building complaints received; identify from these investigations any buildings considered to be insanitary; inform the owner(s) of the action that is necessary to prevent the building from remaining insanitary; liaise with the Auckland Regional Public Health Service (Medical Officer of Health) where occupants may be neglected or infirm.

1.1.18

26.0 Assessment criteria

The Council will assess insanitary buildings in accordance with s123 of the Building Act 2004, established case law, the building code and advice from the Medical Officer of Health: The Council will determine: if the building is occupied; what the building is being used for, and whether the insanitary conditions pose a reasonable probability or are potentially dangerous to the health of any occupants. Where a building is occupied, considerations may include: adequacy of available sanitary facilities; adequacy and availability of drinking water; the separation of kitchen and other sanitary facilities; potential for moisture penetration taking into account construction materials and any defects in roof and walls; and the extent to which the building is offensive to adjacent and nearby properties. In accordance with the Building Code the following clauses are relevant: E2 (External Moisture) G1 (Water Supplies) G1 (Personal Hygiene)

1.1.19

27.0 Taking action on insanitary buildings

The Council will: advise and work with the owner(s) of the buildings identified as being potentially insanitary; Where the building is found to be insanitary, Council will: attach written notice to the building requiring work to be carried out on the building, with a time stated on the notice that is not less than 10 working days, to prevent the building from remaining insanitary; give copies of the notice to the building owner(s), occupier, and every person who has an interest in the land, or is claiming an interest in the land, as well as the City heritage manager and New Zealand Historic Places Trust, if the building is a scheduled and/or registered heritage building 24/26

where the insanitary conditions are the result of non-consented work a Notice to Fix will be issued contact the owner(s) at the end of the time period set down in the notice to gain access to the building and determine whether the notice has been complied with determine if enforcement action should be pursued under the Act if the requirements of the notice have not been met. Where Council considers that immediate action is required to fix insanitary conditions the Council will: take action necessary to fix those insanitary conditions; and take action to recover costs from the owner(s) if the Council has had to undertake works to address the insanitary conditions; the owner(s) will also be informed that the amount recoverable by the Council will become a charge on the land on which the building is situated. All owners have a right of appeal as defined in the Act. This can include applying to the Department of Building and Housing for a determination under s177 of the Building Act 2004.

1.1.20

28.0 The insanitary building policy and the Building Act 2004

s41: Building consent not required in certain cases Where a building is assessed as requiring immediate work to address the insanitary conditions, Council may not require that a building consent be obtained for any of the immediately necessary building work. However, prior to any action being taken Council will require from owners and discuss with them, a written scope of the work.

1.1.21

29.0 Recording of insanitary buildings

Where a building is identified as insanitary, Auckland City Council will have a requisition placed on the property file where the building is situated. This requisition will remain until the danger is remedied. In addition, the following information will be placed on the LIM: the notice issued informing the owner that the building is dangerous and where necessary notice of the requirement to evacuate a copy of the letter to owner, occupier and any other person that the that the building is dangerous; a copy of the notice given under section 124(1) that identifies the work to be carried out on the building and the timeframe given to reduce or remove the danger any report that describes work that has been undertaken to remedy the insanitary conditions.

1.1.22

30.0 Heritage Buildings

Heritage buildings will not be given systematic dispensation under this policy except that, as with earthquake risk and other dangerous aspects, where the non-compliance is minor, and where to correct the situation would involve destruction or visual compromise of high value

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items, then in such cases consideration of a dispensation or waiver may be negotiated by the appropriate Council officer acting under delegated authority. This procedure is in accordance with established practice and has been used on a number of occasions. Examples are textured wall surfaces in areas of the Civic Theatre behind food and beverage service areas, and (in the same building) non-impermeable restored mosaic floor tiling in areas leased as a café from time to time. Where an insanitary building notice is issued for a heritage building a copy of the notice will be sent to the City heritage manager and to the New Zealand Historic Places Trust as required by s125 (2) (f) of the Building Act 2004.

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