Dangerous, Affected and Insanitary Buildings
What is a dangerous and/or insanitary building and what role does Council play?
The Building Act 2004 (section 131) requires all territorial authorities, including the Council, to adopt and review a policy on dangerous and insanitary buildings within its district. Earthquake-prone buildings are now covered by sections 133AA - 133AY of the Building Act. The policy indicates the Council’s general approach and its priorities in performing its functions in relation to dangerous, insanitary and affected buildings. The policy also deals with the performance of those functions in relation to buildings that are also heritage buildings.
It is the building owner’s responsibility to ensure that buildings comply with the Act’s requirements.
The Council’s responsibility is to ensure that when dangerous or insanitary conditions are found, the danger is reduced or removed, and the owner takes action to prevent the building from remaining dangerous or insanitary. Where an owner fails to take steps to address the dangerous or insanitary state of a building, the Council may exercise its powers to take those steps on the owner's behalf and to seek to recover any resulting costs from the owner.
What is a dangerous, affected or insanitary building?
A dangerous, affected or insanitary building might:
- be older and/or poorly maintained
- be currently used for something it wasn’t designed for
- have suffered a structural failure or be in a state of disrepair that means it could collapse
- sanitary facilities such as non-functioning toilets, washing and bathing facilities
- a potable (drinkable) water supply
- weather tightness - has insufficient or defective provisions against moisture penetration so as to cause dampness in the building or in any adjoining building
What the law says:
Section 121 of the Building Act defines a building as being dangerous if:
- 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 anyone in it or to people on other property, or damage to other property; or
- in the event of fire, injury or death to any persons in the building or to persons on other property is likely.
Section 121A of the Building Act defines a building as being an affected building if it is adjacent to, adjoining or nearby:
- a dangerous building as defined in section 121; or
- a dangerous dam within the meaning of section 153.
Section 123 of the Building Act defines a building as an insanitary building if the building:
- is offensive or likely to be injurious to health because of how it is situated or constructed, or it is in a state of disrepair
- has insufficient or defective provisions against moisture penetration so as to cause dampness in the building or in any adjoining building
- does not have a supply of potable water that is adequate for its intended use; or
- does not have sanitary facilities that are adequate for its intended use.
Section 123A of the Building Act specifies that:
- if a council is satisfied only part of a building is dangerous or insanitary within the meanings in the Act, it may choose to exercise its powers/functions in subpart 6 in respect of only that particular part of the building, and
- if a council is satisfied only part of a building is affected it can choose to use its powers/functions in subpart 6 for either all or part of the building.
Section 124 (2)(c )of the Building Act specifies that once a council determines that a building in its district is dangerous or insanitary, it may give written notice requiring work to be carried out to reduce or remove the danger, or prevent the building from remaining insanitary.
Section 126 of the Building Act specifies that councils may apply to the District Court seeking a court order to allow them to carry out building work if the work required in a notice issued under section 124(2)(c) is not completed, or not proceeding with reasonable speed, within-
- the time stated in the notice; or
- any further time that the council allows.
Council’s Approach to Dealing with Dangerous, Affected and/or Insanitary Buildings and Affected Buildings
When a building is brought to the Council’s attention as being possibly dangerous, affected and/ or insanitary, Council will undertake investigation to determine whether that building is dangerous, affected and/ or insanitary as defined in the Building Act 2004, before taking the actions required under Council's policy and the Act.
If investigation is done in response to a District Court Order under section 126 of the Act or through a warrant issued by Council’s Chief Executive under their signature to remove any immediate danger under section 129 of the Act, then the building owner will be liable for Council costs.
When a building is determined as being dangerous, affected, and/ or insanitary, Council will perform its responsibilities under section 124 of the Act. This may include but is not limited to:
- Putting up a hoarding or a fence to prevent people from approaching the building,
- Attaching a notice that warns people not to approach the building,
- issuing a written notice notifying the work required to be carried out on the building to reduce or remove the danger or to prevent the building from remaining insanitary,
- Placing a notice on the determined building that prevents people from using it, and
- Restricting entry to the building for particular purposes or particular persons or groups of persons.
Any building(s) determined as being dangerous, affected, and/ or insanitary will have a notification and a list of necessary remedial actions placed in the corresponding property file maintained by Council until the issues are resolved. Moreover, while a building is classified as dangerous, affected, or insanitary, specific details will be included on any Land Information Memorandum (LIM) or Project Information Memorandum (PIM) if it impacts proposed building activities. This information will consist of a declaration of the building's status, a copy of the notification detailing required remedial work and compliance deadlines, and a copy of any letters sent to owners, occupants, and affected parties regarding the building's condition, including evacuation notices if issued.
Data pertaining to such buildings will be accessible through the relevant LIM or PIM, with Council adhering to the disclosure guidelines outlined in the Local Government Official Information Act 1987 and the Local Government Act 2002.
If Council is satisfied that a building is dangerous, affected or insanitary, and determines that it is appropriate to take action, it may serve notice on the owner. There are specific requirements for the form of these notices and how they must be issued.
Where a notice confirms that remedial work is required, the council may inspect the property or take some other step to confirm the work has been carried out within the timeframes stated on the notice.
It is an offence to fail to comply with a notice, issued Council, requiring work to be carried out on a building to reduce or remove danger, or prevent the building from remaining insanitary.
Prohibit the use or occupation of buildings
Once Council has taken certain actions to restrict access or reduce or remove danger or insanitary conditions it is prohibited to use or occupy the building. It is an offence to continue to use or occupy a building, or permit another person to do so, if council has:
- put up a hoarding or fence in relation to a building
- attached a notice warning people not to approach a building
- issued a notice restricting entry to a building
The exceptions to this are:
- accessing a building to carry out the work required by a notice issued under section 124(2)(c) to reduce or remove danger or insanitary conditions
- access to a building that is specifically permitted by a notice issued under section 124(2)(d). In this situation, the notice itself may specify that entry to the building is permitted either by specific people or groups of people, or for a particular purpose
Notices issued under this subsection do allow the use or occupation of the building but only in accordance with the specific terms of the notice. There is an additional offence specified in section 116B of the Building Act that prohibits the use of a building that is dangerous or insanitary.
This section specifies that it is an offence for people to use or knowingly permit another person to use a building:
- for a use for which the building is not safe or not sanitary; or
- that has inadequate means of escape from fire.
Council will deal with an offence under this section either as an infringement offence, set out in the Building (Infringement Offences, Fees, and Forms) Regulations 2007, or as a general offence under the Building Act. Council can issue an infringement notice or bring a proceeding for an offence under section 116B without having taken any of the actions under section 124.
Finding the right balance
Decisions on what is the appropriate action to be taken about dangerous, affected or insanitary buildings will be based on the specific issues and dangers arising from the building in question, and the requirements of the Building Act.
For example, in the case of a derelict building, erecting a hoarding to prevent people from approaching or entering the building may be adequate. However, if the building has a history of use by squatters who thereby place themselves at risk, this action may be insufficient. Serving notice on the owner to remove or reduce the danger, possibly through demolition, could be a more appropriate course of action.
Similarly, a notice requiring a reduction in danger may be the best solution where removing the danger completely would have other negative impacts. In such circumstances, Council will exercise their judgement as to the most appropriate action under the Building Act.
How do I report a suspected dangerous, affected or insanitary building?
If you believe that there is a dangerous, affected or insanitary building, please let us know.
You can do this by:
- Calling Council on 03 769 8600. Our friendly customer services team will log a service request and someone from the Building Compliance team will be in contact with you and investigate. Your details will not be shared with anyone.
- You can also email us on building@greydc.govt.nz
- For more information about Dangerous Affected and Insanitary Buildings - please see MBIE’s current DAI buildings guidance webpage.