Dangerous, Affected and Insanitary Buildings

The Building Act 2004 contains provisions that define the meaning of:

dangerous building (s 121),
affected building (s 121A),
insanitary building (s 123).

Note that earthquake prone buildings are no longer covered under these provisions, and instead have their own comprehensive set of sections (ss 133AA-AY).

Decisions made under this part of the Act are not taken lightly. It usually starts with a complaint for a major event. Followed up with an investigation on site and many months of communications and negotiation. Experts will be assisting council in their deliberations such as engineering consultations, plumbing, and draining specialists, public health officials and so on.

A building is deemed to be dangerous if, under normal circumstances, likely to cause injury or death.

A building is said to be affected if it is adjacent, adjoining or nearby to a dangerous building.

A building is considered insanitary if it is:

offensive or injurious to health,
damp or causes dampness in an adjoining building,
does not have adequate drinking water,
sanitary facilities for its intended use.

There is a specific process outlined in the Act which guides territorial authorities on how to designate and order remediation of these types of buildings (Sections 123B-130 of the Act).

If a TA is satisfied that a building is dangerous, affected, or insanitary they may attach a notice warning people not to approach the building and they may restrict access to the building. They may then give notice requiring work to be done to remediate the situation.

TAs have the power to apply to the District Court to authorise work if an owner does not comply with the notice and may recover these costs from the owner. This can include demolition of all or part of a building.

TAs have unique policies regarding this subject (as per s 131-132A of the Act), which can be found on their respective websites.

Estate Properties Ltd v Hastings District Council [2021] NZDC 17000

Building Act 2004 and Building Code. Please note that while this case did deal with a dangerous building notice, the point of law for this case was more around MBIE’s powers and the issuing of building consents and code compliance certificates.

Far North District Council v Rightside Properties Ltd [2013] NZHC 2

Building Act 2004. This case concerned a two-storey hotel in a state of disrepair with partial renovations, demolition work, and fire hazards present which presented safety risks to the public.
See also [2012] NZHC 2.

Cooper v Tasman District Council DC Nelson CIV-2009-042-116, 21 July 2010

Building Act 1991 and Building Act 2004. This case considered, on appeal from a Determination, a 15-year-old house in which there was some localised presence of mould due to leaks, which did not reach the threshold to be insanitary.

Thames-Coromandel District Council v Fawcett DC Hamilton CIV-2008-019-655, 16 December 2008

Building Act 2004. This case concerned a pedestrian footbridge that was issued a dangerous building notice and Notice to Fix. This case applies the legal tests around the phrase “likely to cause... injury or death.”
Note: This case followed the ruling in Hyslop v Dunedin City Council HC Dunedin AP35/93, 21 June 1993

Queenstown-Lakes District Council v The Wanaka Gym Ltd DC Christchurch CIV-2003-002-265, 18 November 2008

Building Act 2004. This case involved a dangerous building notice with Notice to Fix as well as occupancy issues. Examination of the idea that compliance with the Building Code is not necessarily sufficient to prevent a building from being deemed dangerous.

Amor v New Plymouth District Council [2001] NZRMA 221(ENC

Building Act 1991. Dealt with the issue of being deemed insanitary on the basis of a state of disrepair that made the building visually offensive.
See appeal to Court of Appeal: New Plymouth District Council v Amor, CA9/01, 15 August 2001.

Rotorua District Council v Rua Developments Ltd [1998] DCR 1097(DC)

Building Act 1991. This case involved a multiplex cinema building, steel starter bars and seismic ratings, following the ‘likely’ test to mean ‘reasonable probability’.
Upheld on appeal Rotorua DC v Rua Developments Ltd DC Rotorua NP1327/97, 17 December 1999

Auckland City Council v Weldon Properties Ltd [1996] DCR 635(DC)

Building Act 1991. Fire hazard. Further examination of the ‘likely to cause... injury or death’ test. Informed as to meaning “a reasonable consequence or [something which] could well happen”.
Upheld on appeal in Weldon Properties Ltd v Auckland City Council HC Auckland HC26/97, 21 August 1997

Marlborough District Council v Chaytor [1995] DCR 382

Building Act 1991. This case concerned a house which had been subjected to arson attacks, substantial damage, particularly to roof; legal tests of impact on neighbourhood and phrase; "likely to be injurious to health" considered.

Hyslop v Dunedin City Council HC Dunedin AP35/93, 21 June 1993

This case dealt with the presence of asbestos on a building site. The court dealt with the question of legal tests related to the phrase “likely to cause... injury or death.”

2020

2020/027: Regarding the issue of a dangerous building notice requiring repair work to be carried out to the building

Dangerous building notice for an unreinforced masonry building, discusses if installation of hoarding and fencing meant the building was no longer dangerous, Building Act requirements for notices.

2020/025: Regarding the authority's decisions to issue a dangerous and insanitary building notice and a certificate of acceptance

Dangerous and insanitary building notice, certificate of acceptance for sleepout, whether sleepout was dangerous or insanitary at time of issuing, whether the authority was correct to include 'restriction of usage', and classified use of the sleepout.

2019

2019/046: Regarding dangerous building notices issued for a building

Two dangerous building notices, six-storey building in central Auckland, retail, offices, and sleeping accommodation, dangerous building notice restricting entry to part of the building, restriction on sleeping accommodation.

2019/006: Regarding the removal of an insanitary building notice and lack of notification of a natural hazard for a relocated building

Note: This determination is subject to a clarification.
Lifting of an insanitary building notice, whether building in current state is insanitary or dangerous, whether two building consents should have been granted, non-compliance with Building Code.

2017

2017/064: Dangerous building notice for a building

Dangerous building notice, notification from New Zealand Fire Service, whether sufficient evidence to conclude that building was dangerous, examination of Fire Service Act 1975.

2017/032: Regarding the issue of an insanitary building notice in respect of a dwelling

Insanitary building notice, dwelling without potable water supplies or sanitary facilities, cladding left incomplete for 10 years.

2016

2016/037: Regarding dangerous building notices issued

Dangerous building notices, concrete block retaining wall and fence located on boundary between two properties, considers state of the wall and likelihood it will collapse; and what can be done to render the wall safe.

2016/002: Regarding the issue of a dangerous building notice in respect of a damaged shared driveway

Dangerous building notice for damaged shared driveway, several residential properties, whether a shared driveway is a building under the Building Act.

2015

2015/065: Regarding the issue of a dangerous and insanitary building notice for a building

Whether a building was dangerous with regard to the building’s structure and slope behind the building, application of sections 124 and 125, content and serving of notice.

2015/061: Regarding the issue of dangerous building notices in respect of cantilevered timber-framed decks to 3 monolithic-clad apartment buildings

Dangerous building notice, timber-framed decks of three apartment buildings, water ingress, partial repairs.

2015/041: Regarding the failure to issue a section 124 Building Act notice (relating to geotechnical hazards) on a property

Discussed meaning of ‘dangerous building’ in relation to rock fall and assessment methodology; relevance of modified definition introduced into s 121 by 2011 Order, expiry of s 124 notices relying on modified definition; and defining ‘relevant risk’.

2015/014: Regarding the issue of a dangerous building notice for a house

Three residential units in the same dwelling, fire safety, whether the building was dangerous under s 121 (1)(b) of the Act. Discussed “occupancy” and “change of use” had occurred. Also considered whether the building complied with the Building Code and the threshold at which a building may be considered “dangerous” when it does not comply.
Note: an unsuccessful appeal was lodged against this determination under the Resource Management Act 1991. See Jayashree Ltd v Auckland Council [2015] NZEnvC 59.

2015/002: Regarding the issue of a section 124 Building Act notice (relating to geotechnical hazards) on the property

Section 124 notice in areas affected by rock fall, modification of the meaning of dangerous building, expiry of orders and applying new section 124 notices using modified definition.

2014

2014/047: Regarding the issuing of a section 124 Building Act notice (relating to geotechnical hazards) on a property
2014/042: The proposed exercise of an authority's powers of decision in relation to a dangerous and insanitary building

2013

2013/074: Regarding the issuing of a section 124 Building Act Notice (relating to geotechnical hazards) on the property
2013/037: Regarding the issuing of a s124 Building Act Notice (relating to geotechnical hazards) on the property
2013/033: Regarding the issuing of a dangerous building notice under section 124 of the Building Act relating to geotechnical hazards on a property

2012

2012/043: Whether special provisions for dangerous, earthquake-prone, and insanitary buildings can also be applied to part of a building

2010

2010/001: Whether an existing shopping centre is insanitary under section 123 of the Building Act

2008

2008/098: The issuing of a notice to fix concerning dangerous and insanitary aspects of a motel unit

2006

2006/119: Dangerous building notices for houses

2002

2002/02: Alterations to an apartment building's means of escape from fire in response to a "dangerous building" notice