Dangerous, Affected and Insanitary Buildings

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.

A building is considered to be dangerous and insanitary when it meets the conditions of Sections 121 and 123 of the Building Act as follows: 

Dangerous Buildings (Section. 121)

A building is dangerous for the purposes of this 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. 

Affected Buildings (Section. 121A)

A building is an affected building for the purposes of this Act if it is adjacent to, adjoining, or nearby:

a.     a dangerous building as defined in s.121 (see above); or

b.     a dangerous dam within the meaning of s.153. 

Insanitary Buildings (Section. 123)

A building is insanitary for the purposes of this 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. 

Heritage Buildings (Section. 7)

Heritage building means a building that is included on:

a.     the New Zealand Heritage List / Rārangi Kōrero maintained under s.65 of the Heritage New Zealand Pouhere Taonga Act 2014; or

b.     the National Historic Landmarks / Ngā Manawhenua o Aotearoa me ōna Kōrero Tūturu list maintained under s.81 of the Heritage New Zealand Pouhere Taonga Act 2014

Note: When assessing a heritage building for dangerous or insanitary reasons Council will consult with Heritage New Zealand provided that the time required for consultation will not materially increase the physical danger to the public. 

Meaning of Dangerous Dam (Section. 153)

A dam is dangerous for the purposes of this Act if the dam:

a.     is a high potential impact dam or a medium potential impact dam; and

b.     is likely to fail

i.        in the ordinary course of events; or

ii.        in a moderate earthquake (as defined in the regulations); or

iii.        in a moderate flood (as defined in the regulations).

Building Work

Building work includes the demolition of part or all of the building.

The Territorial Authority (TA) will utilise any of the following mechanisms in order to identify whether a building is dangerous, affected, or insanitary:

• the observations of its staff or contractors
• information or complaints received from members of the public or members of professional bodies such as Engineering New Zealand, etc
• events arising following natural or manmade disasters
• notification from the Ministry of Business Innovation and Employment (MBIE)
• notification from FENZ

In determining whether a building is dangerous or affected with respect to a fire hazard, the TA may seek the advice of FENZ. Similarly, in determining whether a building is insanitary with respect to drinking water, waste disposal or weathertightness, the TA may seek the advice of appropriate sources, such as its Environmental Health Team, technical building specialists, testing laboratories, geotechnical, fire or structural engineers, etc. The TA may also be guided by relevant Bylaws and seek legal advice.

If you believe that there is a dangerous, affected or insanitary building, please let us know. You can do this by:

• Calling Council on 0800 727 059. Our friendly customer services team will log a service request and someone from our Building Compliance team will be in contact with you and investigate. Your details will not be shared with anyone.
• Emailing the Building Compliance team at: buildingcompliance@kaipara.govt.nz 

1. What we will do:

We will check:

• if there has been any unauthorised building work and/or change of use
• the standard of maintenance of any specified systems
• the state of repair of building structures and services
• the safety level of the building.

We also make sure that:

• people use buildings safely and without endangering their health
• people can escape from a building in an emergency
• buildings are unlikely to cause injury or death to persons on other property, or damage to other property.

If there’s a problem with a building, our Building Compliance team will work with the building owner to find a way to get the building back to a safe and healthy state. 

2. What you need to do:

If you are a building owner, you:

• are legally responsible for ensuring the maintenance and compliance of your building
• should employ a building surveyor if you think your building may be dangerous, affected, or insanitary
• should take immediate steps to make sure your building, and any occupants, are safe if you discover the building is dangerous, affected, or insanitary.

Interested buyers and renters can:

• ask an expert to check the building you want to buy or rent
• look for the building’s warrant of fitness certificate (BWoF) in the foyer or entrance and check this is up to date. 

For more information or if you think a building might be dangerous, affected, or insanitary, contact us.

• Email: buildingcompliance@kaipara.govt.nz 
• Phone: 0800 727 059

If you fail to comply with this notice you commit an offence under Section 124 of the Building Act 2004 and may be liable to a fine of up to $200,000.

Under Section 126 of the Building Act 2004 the Council may carry out work if the work outlined above is not carried out and the owner of the property will be liable for any costs incurred.

If a Territorial Authority has put up a hoarding or fence in relation to a building or attached a notice warning people not to approach a building under Section 124(1), no person may:

a. Use or occupy the building; or

b. Permit another person to use or occupy the building.

If you fail to comply you commit an offence under section 128 of the Building Act 2004 and may be liable for a fine of up to $200,000 and a further fine of up to $20,000 for each day or part of a day that you fail to comply with this notice.

If a TA is satisfied that a building is a dangerous, affected, or insanitary building it may do any or all of the following under Section.124:

a.     put up a hoarding or fence to prevent people from approaching the building nearer than is safe

b.     attach in a prominent place on, or adjacent to, the building a notice that warns people not to approach the building

c.     except in the case of an affected building, issue a notice that complies with s.125(1) requiring work to be carried out on the building to

i.        reduce or remove the danger; or

ii.        prevent the building from remaining insanitary

d.     issue a notice that complies with s.125(1A) restricting entry to the building for particular purposes or restricting entry to particular persons or groups of persons

Note: The erection of a hoarding or fence is an action that a TA can take to ensure the immediate safety of people and is not considered building work. 

Notice requiring building work

Under s.125, a notice issued pursuant to s.124 (2) (c) will be issued in writing and fixed to the building in question.

A copy of the notice will also be issued to the owner, occupier and any other person who has an interest in the land; this includes:

• every person who has an interest in the land on which the building is situated under a mortgage or other encumbrance registered under the Land Transfer Act 2017
• every person claiming an interest in the land that is protected by a caveat lodged and in force under section 138 of the Land Transfer Act 2017; and
• every statutory authority2 that has exercised a statutory power to classify or register, for any purpose, the building or the land on which the building is situated; and
• Heritage New Zealand Pouhere Taonga, if the building is a heritage building.

Note: If a notice is not given to one of the above parties it does not make it invalid.

The notice will state the time within which the building work must be carried out. The time must be no less than 10 days after the notice is given or a period reasonably sufficient to obtain a building consent if one is required, whichever period is longer.

The notice will also state whether the owner of the building is required to obtain a building consent in order to carry out the work required by the notice. 

Notice restricting entry

Under s.124 (2) (d) a notice restricting entry will be in writing and fixed to the building in question. A copy of the notice will be provided to the owner, occupier and any other person who has an interest in the land. The notice may also restrict entry to any part or all of a building; it may also be restricted to particular persons or groups of persons. In the case where a notice restricts entry to a building, it may be issued for a maximum period of 30 days; thereafter it may only be reissued once, for a maximum period of 30 days. 

Requirement to obtain a building consent

Under s.125 the notice will advise the applicant of the requirement to obtain a building consent (if applicable). However, under s.41 a building consent is not required in relation to building work where it is not practical to obtain a building consent in advance and the building work has to be done under urgency. If the applicant wishes to proceed under s.41 of the Act, the matter should be discussed and agreed with the Council.

In these circumstances a full, written scope of work will be required, followed by an application for Certificate of Acceptance as soon as practicable after completion of the building work.

If the TA carries out the building work, this section does not apply, and a building consent is not required. However, the TA must apply to the District Court for an order authorising it to carry out the work.

Order to the District Court (s.126)

If the owner does not carry out the building work identified in the notice or the building work is not proceeding with reasonable speed, the TA may apply to the District Court to do the work itself.

However, before applying to the Court the TA will notify the owner in writing giving them no less than 10 days of their intention to do so.

If the TA carries out building work, the owner is liable for the costs; such costs are recoverable via a charge on the land.

Where there is immediate danger or insanitary conditions present, the Chief Executive of the TA may by warrant issued under their signature take any actions necessary to remove the danger or fix the insanitary conditions. If any actions are taken under s.129 (2) the Chief Executive is required to apply to the District Court seeking confirmation of the warrant.

The District Court is required to:

• confirm the warrant
• confirm the warrant with modifications; or
• set the warrant aside.

The TA is not required to apply for confirmation of the warrant if the owner has notified the TA that they do not dispute entry onto the land.

Prior to taking this step, the TA will engage legal advice before executing a warrant.

Where a building is identified as being dangerous, affected, or insanitary, a requisition will be placed on the property file. This requisition will remain until the danger is remedied and made available if a Land Information Memorandum is sought whilst the notice is in place.