Earthquake Repairs – What is Exempt?
The seismic events in Christchurch and the resultant repairs required have raised significant questions for all those involved especially in regard to when a building consent is needed and if not what then needs to be code compliant.
For a start, what repairs are exempt under Schedule 1 of the Building Act 2004 (BA04)?
Exempt building work is stated in Clause 1 of Schedule 1 as:
“A building consent is not required for the following building work:
(a) any lawful repair and maintenance using comparable materials, or replacement with a comparable component or assembly ………….., except‑
(i) complete or substantial replacement of a specified system; or
(ii) complete or substantial replacement of any component or assembly contributing to the building’s structural behaviour or fire-safety properties; or
(iii) repair or replacement (other than maintenance) of any component or assembly that has failed to satisfy the provisions of the building code for durability, for example, through a failure to comply with the external moisture requirements of the building code; or …”
I have highlighted in bold above clause (a) the words “lawful repair”, because it gives rise to the question – what is meant by lawful repair?
Not surprisingly, BA04 s7 – Interpretation, does not shed any light on the meaning of either lawful or repair, but it is generally accepted that lawful means in accordance with the law, and repair means to put back something in a sound condition after being damaged.
Following on from that it follows that repairs to buildings have to comply with the law, which in this instance is the building code described in Part 2, Subpart 2 of BA04 (ss 16 – 18).
I have also highlighted sub-clauses 1(a)(ii) and (iii) above because if a structural or fire rated building element is damaged or there is a failure of a building component within a prescribed durability period, then a building consent is also required.
Clause 1(k) of Schedule 1 does allow the building consent authority to exempt (from requiring a building consent) other building work that is unlikely to be carried out otherwise than in accordance with the building code, or is unlikely to endanger people This does not seem to allow them to exempt building work from requiring a building consent that requires the replacement of structural [or fire-rated elements], or the repair or replacement of a building component that has failed within the prescribed durability period.
The Building Code
The building code is a means of prescribing functional requirements for buildings and the performance criteria to which buildings must comply in their intended use (s16 BA04).
Section 17 states that all building work must comply with the code whether a building consent is required or not. I can only conclude then that lawful repair work to buildings can only mean building work that complies with the building code, unless it is a minor work exempted by Council under Schedule 1 clause 1(k)(ii) (discussed above).
One of the most important clauses in the code is clause B2 – Durability. This is the clause that defines the performance over a prescribed period of many of the other code clauses. The objective of B2 states:
“The objective of this provision is to ensure that a building will, throughout its life, continue to satisfy the other objectives of this code.”
Carrying out building work which does not comply with the Building Code is (arguably) a breach of BA04 and may give rise to a legal claim for failure to comply with the Code.
To more fully explain, I use as an example, a house built in 1998, constructed on concrete foundations, including a concrete floor slab, timber stud walls, texture coated fibre cement sheet cladding (fixed directly to the timber framing), aluminium windows and doors, and a concrete tile roof on prefabricated timber roof trusses.
The house suffered damage during the Christchurch earthquakes. That damage was seen as cracking to the cladding and around window/door openings, a cracked and uneven floor slab and dislodged roof tiles.
The remediation of this building would primarily revolve around the requirements of the Building Code and the degree of damage, but the questions to ponder are:-
- Is the damage, visible in the concrete floor slab, sufficient to be concerned about the integrity of the damp proof membrane (DPM) beneath that slab? Can repairs and re-levelling be carried out without damaging the membrane? (Damage to the DPM could allow undue moisture into the concrete slab).
- Have the existing seismic bracing elements within walls and ceilings been compromised? That is, have those hidden elements failed and do they now require replacing in order for the building to comply?
- Have the cracks in the cladding and around windows allowed water into the wall framing causing fungal decay?
- Have the external aluminium windows been “racked”, with the seals in the mitred corners ruptured allowing water onto the wall framing?
- Have the flashings on the roof(s) moved allowing water ingress?
The above are just a few of the issues that need to be considered when considering a repair strategy for a building.
If the wall cladding has failed and resulted in damage to the wall framing then replacement would likely be required, but that replacement must comply with the building code and it is likely then that a cavity type construction would be required for code compliance.
Could the filling of cracks in a cladding be considered as being code compliant? Is that repair simply maintenance? Can anyone be sure that the structure has not been compromised?
Could it be considered that damage to a building as a consequence of an earthquake is also a breach of clause B2 – Durability of the Building Code?
The durability functional requirements of the Code say:
“Building materials, components and construction methods shall be sufficiently durable to ensure that the building, without reconstruction or major renovation, satisfies the other functional requirements of this code throughout the life of the building.”
When seismic performance is discussed the provisions of clause B1 – Structure of the code needs to be addressed.
The functional requirement as regard to structure is set out in B1.2:
“Buildings, building elements and site work shall withstand the combination of loads that they are likely to experience during construction or alteration and throughout their lives.”
A seismic event can cause significant and hidden damage to buildings which requires careful and detailed investigation and repair to ensure that the building work required for that repair complies with the building code.
Back to the Building Act
The BA04 s112 mandates the position where alterations to an existing building are to be carried out.
A building consent authority has to be satisfied that after any alteration work the building, or part of an existing building will, amongst other things, continue to comply with the code to at least the same extent as it did before the alteration.
The word alter under s7 means to rebuild, re-erect, repair, enlarge, and extend the building. Building work under s7 means work for, or in connection with the construction, alteration, demolition, or removal of a building;…
Section 112 means that the building as a part or whole assembly only needs to match the existing building construction, but s17 of the Act comes into play:
“All building work must comply with the building code to the extent required by this Act, whether or not a building consent is required in respect of that building work.”
So we seem to have a circular argument that needs to be resolved.
That argument has been debated in the litigation surrounding ‘leaky buildings’ and the conclusion drawn, is that [new] building work must comply with the building code whereas, unless dangerous or insanitary, other parts of the building (with the exception of fire escape and access and facilities for people with disabilities) can be left as it is.
So back to our damaged house example: If the cladding is cracked and even if it has leaked a little BUT this has not resulted in damage to the wall framing, or internal linings, then it is arguable that the cracks could be repaired by localised cladding replacement, as the lack of damage may well have confirmed code performance of the system. Nevertheless , that repair work must comply with the code, which leaves a difficult conundrum e.g. is the replacement of a section of monolithic cladding directly onto structural timber framing, code compliant? The answer is – ‘it depends…”!
For example what if the cladding is a monolithic plaster finish over untreated framing? Well then it is quite likely there is damage elsewhere, so careful, thorough investigation and advice is essential.
Building owners, insurers and those remediating earthquake damaged buildings need to be aware that there is significant risk in repairs not complying with the building code.
All repairs to buildings must comply with the building code (s17) and if building elements have failed structurally or as to durability, then a building consent is required (Schedule 1). Exempt building work under Schedule 1 clause 1(k) relates to work that is not structural, not likely to compromise the present structure eg weathertightness, is not fire related (including means of escape), and will not compromise the safety of people in or around the building.
Any exemptions from Council should be specific, in writing and be kept on the council record. If there is any doubt that the exemption may not be valid then discuss the matter with Council and if still uncertain then seek legal advice.
Also be aware there can be new and pre-existing damage to a building – this is best investigated and resolved prior to repair.
This article is of a general nature and for information purposes only. It is an interpretation and discussion of potential issues and does not take into account individual circumstances or facts and does not constitute legal or professional advice. You should not act or rely upon the information contained in this article.
If any of the issues raised are of concern to you, we recommend seeking specific legal and professional advice.