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ON SHAKY GROUND - HEALTH AND SAFETY AND EARTHQUAKE STRENGTHENING

Two new pieces of legislation will affect the way landlords and tenants view their responsibilities for strengthening buildings and for ensuring they provide a safe place of work.

The Building (Earthquake-Prone Buildings) Amendment Bill (EPB Bill) will establish timeframes within which building owners must assess and then either strengthen or demolish buildings identified as earthquake-prone.

The Health and Safety Reform Bill (H&S Bill) will impose health and safety duties on a greater number of people and companies than at present, with greater penalties for failing to comply.

The H&S Bill introduces a new concept, a Person in Control of a Business or Undertaking (PCBU), who has a duty to ensure the safety of its employees and contractors, as well as people affected by the work being performed by the PCBU.

The definition of PCBU is likely to capture landlords, as a landlord controls a business or undertaking, the work of which is leasing premises.  The Landlord will therefore owe a duty to its tenants and their employees, as people affected by the landlord's work (being the leasing of premises).

So how does this interplay with the EPB Bill? WorkSafe New Zealand, the health and safety regulator, has issued a position statement on earthquake-prone buildings.  In the statement WorkSafe says it will not take enforcement action against a building owner that is complying with its strengthening obligations under the current Building Act.  However, it also says that tenants with concerns that building components may be a hazard should involve their landlord, who in turn should be responsive to issues raised by tenants.

In practice, if tenants are concerned about the fact that the building they occupy is earthquake-prone, they should write to their landlord asking it to take steps to eliminate or minimise the hazard, by undertaking strengthening works.

For landlords, the obligation under the EPB Bill is to ensure that strengthening works are carried out to the level and within the timeframes specified.  Under the H&S Bill, a landlord is required to take reasonably practicable steps to eliminate or minimise the hazard.  Given that strengthening work will come at considerable expense and cause significant disruption, it is highly unlikely to be reasonably practicable to immediately embark on such work.  Indeed, this is the reason the government has allowed time for such work to be undertaken. Instead, landlords should plan and budget for strengthening work to be undertaken to address the hazard as soon as is reasonably practicable.

 

 

Written by Shima Grice at 11:00

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