Joint submission to the
Local Government and Environment Select
Committee
On the
Building (Earthquake-prone Buildings) Amendment Bill
17 April 2014
Endorsed by:
Endorsements continued:
BAS
1
Table of Contents
Executive summary.......................................................................................... 2
About us ........................................................................................................... 3
We strongly oppose Section 133AX................................................................. 5
The current situation ........................................................................................ 6
Discretion allowed in Law ............................................................................. 6
Concerns of building owners ........................................................................ 8
Heritage buildings....................................................................................... 10
Access Rights ................................................................................................ 12
Human Rights Act ...................................................................................... 12
Building Act ................................................................................................ 12
The Convention on the Rights of Persons with Disabilities ........................ 12
Access, civil rights and government leadership .......................................... 13
Access is for everyone ............................................................................... 14
Turning the clock back on over four decades of access rights ................... 16
Economic and social impact of access .......................................................... 19
Our aging population .................................................................................. 19
Market failure.............................................................................................. 20
The cost of access improvements .............................................................. 23
A liability for building owners and councils ................................................. 25
Conclusion - A fair solution for all................................................................... 26
Organisation profiles ...................................................................................... 28
Bibliography ................................................................................................... 33
2
Executive summary

The current Building Act already enables considerable discretion in
applying access and fire requirements to building upgrades, although
local authorities need more guidance on using this discretion.

Heritage New Zealand has said that discretion and flexibility already
exists in the current Building Act for heritage building and access
requirements.

The Ministry of Business, Innovation and Employment has not
adequately explained why the existing provisions within the Building
Act cannot address building owners’ concerns. This leaves the case for
a law change unconvincing.

If a group of people cannot access a building open to the public that
group is not part of the public. They are second-class citizens.

If people are going to stay in jobs and live in their community as they
age, buildings need to be accessible.

Many of the examples of high cost given by submitters do not seem
plausible, especially given the current “reasonably practicable” test in
the Building Act.

There is no need for the Section 133AX exemption. Section 133AX will
complicate the consenting process and undermine over four decades
of work and progress on access rights.

The best solution for everyone and for New Zealand’s economic future
is to remove section 133AX, and for the Ministry of Business,
Innovation and Employment to provide information and guidance
around the existing law.
3
About us
Full organisation profiles are available in appendix one.
This submission was drafted by CCS Disability Action and the Disabled
Persons Assembly. The following organisations have endorsed this
submission and provided valuable feedback and advice:

Arthritis New Zealand

Council of Social Services in Christchurch

Beneficiary Advisory Service

Blind Foundation

Deaf Aoteraoa New Zealand Inc., Tāngata Turi

Deaf Society of Canterbury

Motor Neurone Disease Association

NGO Health & Disability Network

IHC New Zealand

People First New Zealand Inc. - Nga Tangata Tuatahi

Regional Executive Committee of DPA Christchurch & Districts

The Northland Multiple Sclerosis Society

Tauranga Community Housing Trust

The Whanganui Disability Resources Centre

Volunteering Canterbury
The following individuals have endorsed this submission and provided
valuable feedback and advice:
Leo McIntyre PO Box 27 545, Marion Square, Wellington 6140
Alexia Pickering CNZM QSO JP 7D Herbert Gardens, 186 The Terrace,
Wellington 6011
Marilyn Baikie 51 Donnington St, Christchurch 8083
Peter Dolamore 3 B Homer St, Te Anau 9600
Lois Farrow 19 Somerville Crescent, Halswell, Christchurch 8025
Mary Rose Hamilton 37 Aynsley Terrace, Christchurch 8022
4
Arran Lyall Stewart 1 Bute Street, Dunollie, Runanga 7803
Jillian N Waldron 99 East Belt, Rangiora
Philip and Christine Haythornthwaite 160 North Parade, Shirley, Christchurch
8001
Gail Stacey 45 View Road Hikurangi
Trudel McKeown 9a Iranui Road Gisborne
Graham Gomm 35 Massey Rd Gisborne
Nona Ashton 2A/168 Rutene Rd Kaiti Gisborne
Julie Stevenson 74 Stout St Whataupoko Gisborne
Margaret Scratchley 30 Sterling Park Lytton West
Robyn Stuart-Kohn 49 Murphy Rd Gisborne
Wayne Barlow C/ 9a Iranui Road Gisborne
Patricia Beck QSM President, Friends of CCS Disability Action West Coast
Westland 24 Neilsons Road Gladstone Greymouth 7805
5
We strongly oppose Section 133AX
We strongly oppose Section 133AX of the Building (Earthquake-prone
Buildings) Amendment Bill.
Section 133AX allows local authorities to grant a building consent for
earthquake strengthening alterations, without requiring Section 112 access or
fire upgrades.
Many people do not realise that the current Law already
enables considerable discretion in applying access and
fire requirements to building upgrades, although local
authorities need more guidance on using this discretion.
The concerns of building owners about access and earthquake
strengthening seem to be driven by a lack of awareness about the reason
for access requirements. Access is not just about disabled people, it is
about everyone. Canadian research indicates that improving access has a
significant positive effect on GDP (The Martin Prosperity Institute, 2010).
There is also a lack of awareness amongst building owners and local
authorities on the existing reasonability test in Section 112, which ensures
excessive costs are not placed on building owners.
There is no need for an access exemption. Adding a new exemption
carries a very high risk of making the situation worse. Local authorities and
building owners will struggle with an even more complex legal framework.
People with access needs will see their rights further diluted.
Section 133AX needs to be removed from the
Amendment Bill and the government needs to commit
to clarifying the existing law. This is a fairer solution for
everyone.
6
The current situation
This section talks about the discretion allowed in current Law, building owner’s
concerns and the balance between access and heritage buildings.
Discretion allowed in Law
Some local authorities have wrongly assumed that because of Section 69
of the Building Act 2004, they have no discretion with access upgrades
(Department of Building and Housing , 2006, p. 6).
The Building Act does not require buildings being
upgraded to be made fully accessible. The access
requirements in the Building Code only need to be met
as near as is reasonably practicable (Ministry of
Business, Innovation and Employment, 2013, p. 7).
The “as near as is reasonably practicable” point is met when improving
access further would be grossly disproportionate to the benefit gained.
This assessment is based on a comparison of costs to the building owners
versus the benefits to wider society (Department of Building and Housing,
March/April 2007).
Department of Building and Housing March/April 2007
The purpose of the current test of what is “reasonably
practicable” is to prevent excessive costs for building
owners.
7
The “reasonably practicable” test allows local authorities considerable
discretion. For example, local authorities have the power to decide
whether it is “reasonably practicable” to require the installation of a lift
when a building is being upgraded (Department of Building and Housing ,
2006, p. 6).
For 23 years, buildings open to the public have used this “reasonably
practicable” test, when upgrading. Over this time, 196,012 building
consents have been issued for alterations to non-residential buildings
(Statistic New Zealand, 2014). There is little evidence of systemic
problems with the current law.
An engineer in the Ministry of Business, Innovation and Employment
consultation noted:
“Building Act 112(l) (a) (Fire Safety and Access Current Upgrade) is
already tempered internally by the dispensation provisions inherent within
BA112 (2) which (it seems) is in practice rarely applied. There is no reason
why this sort of provision might not be extended to seismic strengthening
in its application (Ministry of Business, Innovation and Employment, 2013,
p. 91).”
The Ministry of Business, Innovation and Employment
has not adequately explained why the existing
provisions within the Act cannot address building
owners’ concerns. This leaves the case for a law change
unconvincing.
In the Regulatory Impact Statement on this Bill, the Ministry of Business,
Innovation and Employment said that providing greater guidance on the
“reasonably practicable” test would address some of the building owners’
concerns. The Ministry, however, says that this alone may not address all
the issues identified by the Royal Commission and submitters. The
8
Ministry does not explain why they hold this view (Ministry of Business,
Innovation and Employment, 2013, p. 23).
Determinations by the Ministry of Business, Innovation and Employment
have used the “reasonably practicable” test to entirely address building
owners’ concerns (Department of Building and Housing , 2006, p. 9).
The Canterbury Earthquake Royal Commission appeared not to consider
the “reasonably practicable” test at all (Canterbury Earthquake Royal
Commission, 2012, p. 217).
As a further allowance, building owners can choose either the Building
Code or the New Zealand Standard 4121 as the documents they need to
comply as near as “reasonably practicable” with (Department of Building
and Housing , 2006, p. 7).
Concerns of building owners
A significant number of submitters were concerned
about the cost and necessity of access upgrades in
general, rather than earthquake strengthening costs.
Submitters, including local authorities, also seemed to think that full
Building Code compliance was required, which, as noted above, is not the
case.
For example, one submitter questioned the need for his neighbour to put
in an accessibility toilet, when he does not let the public have access to his
toilet (Ministry of Business, Innovation and Employment, 2013, p. 90). This
is a general concern and is not specific to earthquake strengthening.
Some submitters also indicated that they never want to upgrade access.
For example, Chorus commented that:
9
“MBIE needs to consider what has priority noting that many Chorus
buildings will never have a need for disabled access (Ministry of Business,
Innovation and Employment, 2013, p. 91).”
This is an example of an all too common misconception that disability only
affects others. As New Zealand’s largest telecommunications
infrastructure company, Chorus can count on having employees with
access needs, whether due to disability, injury, aging or otherwise,
presently and in the future.
A director of a business told us during the drafting of this submission:
“When we did our building alterations, we were required to provide mobility
access to the building and to the bathrooms. Some of the requirements
seemed excessive until I ended up in my wheelchair and realised that the
changes put in place made it possible for me to access the offices
downstairs and the bathrooms downstairs. A business never knows when
they may have an employee need mobility access (Reproduced with
permission).”
It appears many submitters want the access requirements to be removed
in their entirety. This is largely based on misconceptions and faulty
information about the requirements.
The government should address this by developing more robust and clear
information about access requirements.
If the Ministry of Business, Innovation and Employment
provided information on access requirements and
guidance on the “reasonably practicable” test, it could
address many of the concerns raised by the building
owners and local authorities.
10
Providing guidance would also serve to make the law simpler and clearer.
The Section 133AX exemption will complicate the consenting process and
make the law more ambiguous.
Heritage buildings
The Royal Commission was concerned about the impact of access
requirements on historic buildings (Canterbury Earthquake Royal
Commission, 2012, p. 217).
Heritage buildings are important to our identity and history as a nation.
A balance needs to be struck between improving access
and maintaining the heritage values of buildings. The
law currently provides for this balance.
New Zealand’s leading national historic heritage agency, Heritage New
Zealand (Formerly known as the New Zealand Historic Places Trust),
supports improving physical access to heritage places.
“The New Zealand Historic Places Trust supports creating and improving
physical access to ensure heritage places remain useful for present and
future generations. If people cannot access a place, then the result will be
neglect and decay (McClean, Providing for Physical Access to Heritage
Places, 2011, p. 4)”.
Heritage New Zealand has said that heritage buildings
should be as accessible as possible.
“The aim should be to identify the maximum accessibility that can be
achieved structurally, identify if any heritage values are adversely affected,
evaluate alternative methods and solutions. Retaining heritage values
11
does not mean that making provision for improving accessibility can be
ignored or discounted (McClean, Providing for Physical Access to Heritage
Places, 2011, p. 10).”
Heritage New Zealand has said that discretion and
flexibility already exists in the current Building Act for
heritage building and access requirements.
“In order to safeguard historic heritage values, building consent authorities
can exercise a degree of discretion and flexibility with regard to what is
reasonably practicable (New Zealand Historic Places Trust Pouhere
Taonga, 2010, p. 22).”
Heritage New Zealand has also said that most issues around heritage
buildings and access are resolved at local authority level and very few
heritage-related issues have been subject to determinations by the
Ministry of Business, Innovation and Employment (McClean, Providing for
Physical Access to Heritage Places, 2011, p. 29).
Heritage New Zealand’s submission to the Royal Commission
recommended that the Section 112 requirements should only be bypassed
in a post-disaster situation. This is because the Trust believed building
owners needed to carry out temporary shoring, repair and strengthening
with the minimum of regulatory costs (New Zealand Historic Places Trust
Pouhere Taonga, 2011, p. 11).
This advice was not intended for application long after the disaster has
occurred or in areas not affected by the particular disaster. Section 133AX
does not reflect this advice.
12
Access Rights
This section talks about the importance of access and the history of access
rights in New Zealand.
Everyone has the right to access buildings intended for use by the public.
These rights are outlined in the Human Rights Act 1993 and the Building
Act 2004.
Human Rights Act
The Human Rights Act makes it unlawful to deny a person access to a
place because the person has a disability. This is subject to a
reasonableness requirement and the Building Act.
Building Act
The principles of the current Building Act include the need:
“… to provide, both to and within buildings […] facilities that ensure that
reasonable and adequate provision is made for persons with disabilities to
enter and carry out normal activities and processes in a building (New
Zealand Parliament , 2004, p. Section 4 (2) (K)).”
The Convention on the Rights of Persons with Disabilities
Article 9 of Convention on the Rights of Persons with Disabilities states
that the government must take measures to ensure persons with
disabilities have the right to access the physical environment on an equal
basis with others.
These measures, must include the identification and elimination of
obstacles and barriers to accessibility
The Government has a clear positive obligation to ensure
buildings, intended for use by the public, are
progressively made accessible to everyone.
13
The proposed exemption would weaken the government’s current
measures to ensure this obligation.
Access, civil rights and government leadership
It is important for practical reasons that everyone can access buildings
open to the public. People need good access in order to work, shop and
effectively live in the community.
It is also equally important for political, civil and human rights reasons.
The fundamental importance of access to public buildings and the inherent
relationship to political, civil and human rights is expressed articulately in
the second main section of the United States Civil Rights Act of 1964. In
the Act, directly after voter rights, is the section on ending discrimination in
access to facilities open to the public.
The majority of representatives on the Judiciary Committee considering
the 1963 Civil Rights Act (predecessor to the 1964 Act) stated:
“It (The Civil Rights Act) would make it possible to remove the daily affront
and humiliation involved in discriminatory denials of access to facilities
ostensibly open to the general public (The Committee of the Judiciary,
1963, p. 18).”
If a group of people cannot access a building open to the
public, that group is not part of the public. They are
second-class citizens.
There are important differences in intent between the historical
segregation of African Americans in the United States and the current
situation with access in New Zealand. However, the practical effect is the
14
same. People with access needs are absent from many places open to the
public and in effect are segregated into a lesser status within society.
The practicalities of addressing discrimination are always complicated.
Change does not come overnight and the current Building Act already
recognises this.
The government needs to display leadership and remain
committed to the progressive improvement of access
currently provided for in the Building Act.
The important role of Government leadership is articulated well by the
majority of representatives on the Judiciary Committee who stated:
“No bill can or should lay claim to eliminating all of the causes and
consequences of racial and other types of discrimination against
minorities. There is reason to believe, however, that national leadership
provided by the enactment of Federal legislation dealing with the most
troublesome problems will create an atmosphere conducive to voluntary or
local resolution of other forms of discrimination (The Committee of the
Judiciary, 1963, p. 18).”
Section 25 of the New Zealand Disabled Persons Community Welfare Act
1975 is based on exactly the same principle as the second section of Civil
Rights Act. Buildings open to the public must provide reasonable and
adequate access for all.
The proposed Section 133AX exemption goes against this principle.
Access is for everyone
The 2004 Building Act refers to access for persons with disabilities. The
Royal Commission and the Ministry of Business, Innovation and
Employment referred to Section 112 as the disabled access rule
15
(Canterbury Earthquake Royal Commission, 2012) (Ministry of Business,
Innovation and Employment, 2013, p. 22).
Despite this language, access is not just about disabled people. Some
people with access needs identify as disabled people, but large numbers
do not.
We all experience different levels of mobility and agility
through our life – perhaps as a result of injury or
sickness and even pregnancy. As we age, it is
increasingly due to more permanent causes (Greater
London Authority, 2004, p. 3).
If you are pushing a baby in a buggy, you clearly have an access need.
You benefit from access improvements, such as ramps, wide doorways,
lifts and accessible toilets. Without them, your ability to get around the
community is severely impaired. Older people tend to experience reduced
agility, mobility and sensory perception, although many would not identify
as disabled.
A person with a temporary injury benefits from access improvements just
the same as someone with a permanent impairment.
Access improvements are not exclusive to disabled
people or even people with access needs.
Even if you have no current access challenges,
handrails, wide doorways, accessible information, lifts
and clear footpaths make your journey more safe and
convenient.
The Christchurch Central Recovery Plan states:
16
“A more accessible and safer built environment will benefit everyone. It will
become more accessible to not just disabled people, but also older
people, those with young children, and people with temporary mobility
issues. (Canterbury Earthquake Recovery Authority, 2012, p 5)”
The idea that access is only about disabled people is a myth.
The NZS 4121: 2001 Standard states
“Accessibility not only means access for people with disabilities, but it also
ensures efficiency, comfort and convenience for everyone else. It is a
practical matter, and not an emotional issue. “
When you design and build for people with impairments, you create a
safer and more convenient environment for everyone.
Good access benefits everyone. It future-proofs
buildings and brings considerable economic and social
benefits.
Turning the clock back on over four decades of access rights
The Cabinet Paper on Earthquake Prone Buildings stated that an access
exemption was likely to meet with significant resistance from the disability
sector.
The reason Section 133AX of the Building (Earthquake prone buildings)
Amendment Bill has been met with significant resistance and despair by
disabled people, their representative organisations and disability advocacy
organisations is that it undermines decades of fighting and progress in
implementing the civil and human right of everyone to be able to access
buildings open to the public.
17
The Royal Commission states that it was advised by the former
Department of Building and Housing that Section 112 (1) (a) (ii) of the
Building Act 2004 was only included at Select Committee stage.
(Canterbury Earthquake Royal Commission, 2012, p. 217).
This gives the impression that the need to meet access requirements
when carrying out alterations is a recent law change.
This is incorrect. Section 112 (1) (a) (ii) was not included at Select
Committee stage and has been in the Building Act 2004 since its first
reading (Government Administration Committee, 2004, p. 111). The intent
and detail of Section 112 (a) is identical to Section 38 (a) of the previous
Building Act 1991 (Department of Building and Housing, March/April
2007).
Section 38 (a) is further based on Section 25 of Disabled Persons
Community Welfare Act 1975, which covered major reconstruction as well
as new buildings.
The fight for the right to access buildings, used by the public, goes back
decades.
The history of the fight for access in New Zealand goes
back to at least the 1960s. In 1969, Standards New
Zealand released a draft access standard, NZS 4121, after
pressure from access advocates.
After further pressure, councils began to adopt NZS 4121 as a bylaw.
Even more pressure resulted in Parliament passing the 1975 Disabled
Persons Community Welfare Act. Section 25 of the Disabled Persons
Community Welfare Act requires buildings open to the public to provide
reasonable and adequate access to people with disabilities. This section
18
would form the basis for the access sections in the 1991 and 2004
Building Acts.
People have fought for over four decades for access
because access is a fundamental right and without it,
people are not truly part of their community or the
nation.
19
Economic and social impact of access
This section talks about access and the aging population, the failure of the
market to provide enough access without clear rules and the cost of access
improvements.
Our aging population
Local government is required to anticipate future circumstances when carrying
out its regulatory functions (New Zealand Parliament, 2012, pp. Subpart
1,Section 10 (2) (c)).
Our population is aging. The
Section 133AX could dilute local
over 65 age group is projected
government’s ability to anticipate and
to make up over 20% of New
respond to the aging population.
Zealand’s population from late
2031, compared with 13% in
People with physical impairments and
2011 (Statistics New Zealand,
sensory impairments are over-
2012).
represented amongst people over 65.
In 2006, 36% of people over 65 had a physical impairment and 21% had a
sensory impairment, with some people having both types of impairment.
By comparison, 14% of people aged 15 to 64 had a physical impairment
and 8.6% had a sensory impairment, with some people having both types
of impairment. (Statistics New Zealand, 2014)
In 2006, 383,500 people aged over 15 had a physical impairment, with
183,500 people being over 65 years of age. 239,000 people aged over 15
had a sensory impairment, with 108,400 people being over 65 years of
age (Statistics New Zealand, 2007, p. 6) (Statistics New Zealand, 2014).
An aging population will significantly increase the
number of people with physical and sensory
impairments.
20
The number of people who are blind or have low vision is estimated to
increase to 174,000 people by 2020, including 18,300 blind people
(Access Economics Pty, 2010, p. 1)
Access issues affect all of us, but people with physical and/or sensory
impairments are more affected than others.
If workplaces are accessible, we can turn the aging population to our
advantage. People over 65 will be our most experienced workers. If they
can remain in their jobs, thanks to improved access, society can then
benefit from their knowledge.
If people are forced by poor access into early retirement, we all suffer.
Ultimately, governments that do not take access seriously will suffer the
consequences and lose the potential of an aging population.
Our economy will benefit from the ongoing and
progressive improvement of building access. Hindering
that progress will adversely affect our economy.
Market failure
Access is a public good and as such is likely to be undersupplied without
government intervention. A lack of accessible buildings creates significant
externalities and opportunity costs for the wider economy and the
community (The Martin Prosperity Institute, 2010, p. 45).
In 2006, disabled people had an unemployment rate of 8% compared to
4% for non-disabled people. People with a disability made up 20% of all
unemployed people and only 11% of all people employed. (Statistics New
Zealand and Office for Disability Issues, 2008, pp. 8-9).
21
People who are blind, deafblind or have low vision are four and a half
times more likely to be unemployed than the national average (WilkinsonMeyers, McNeil, Inglis, & Bryan, 2008).
In a survey of employers, 38% said there were physical
barriers that stopped people with impairments from
working at their work (Woodley, Nadine, & Dylan, 2012,
pp. 23-24).
A sizable number of people on government income support are prevented
or discouraged from working because of access barriers. Disabled people
and their families make up a significant percentage of people on income
support. In 2011, 34% of people on a main benefit claimed a Disability
Allowance (Ministry of Social Development, 2011 p 30, 235).
Last financial year, the Government spent over $2 billion
dollars supporting people on disability related benefits
(Ministry of Social Development , 2013, p. 87). This is a
high price for the high unemployment rate amongst
disabled people.
People will be unemployed or retiring early because of access barriers in
the community and the workplace. Researchers from Canada have
estimated that reducing the unemployment rate amongst disabled people
could increase GDP per capita by up to $600 Canadian dollars per year
(The Martin Prosperity Institute, 2010, p. 1).
“Our study indicates that increasing the level of educational attainment
and employment of PwD (People with Disabilities) could lead to significant
improvements in Ontario’s GDP (The Martin Prosperity Institute, 2010, p.
55).”
22
A lack of accessible buildings can also cause people to go into institutional
aged care. In 2006, 93% of disabled adults living in residential facilities
had a mobility disability and 92% had an agility disability (Office for
Disability Issues and Statistics New Zealand, 2013, p. 103). By 2026, the
number of people in just aged residential care is expected to increase to
approximately 44,000-52,000 beds, from 32,000 in 2011 ( Grant Thornton,
2010, pp. 93-94).
Access upgrades generate wide benefits for society. Upgrades also
generate benefits for building owners, but usually over time.
Because the benefits of improved access only become
evident over time, building owners often fail to see those
benefits as part of the need to future-proof their
buildings.
For example, one building owner commented in the consultation:
“If work is completed (Access and fire upgrades) I not (sic) get a rental
increase or any financial benefit (Ministry of Business, Innovation and
Employment, 2013, p. 89).”
The former Department of Building and Housing also noted this trend
stating:
“Some applicants (building owners) present only the sacrifice involved in
achieving compliance, thereby creating the impression that the sacrifice is
too great. They often ignore other possible options as well (Department of
Building and Housing, March/April 2007).”
Without clear, government-enforced rules, the market
will not provide adequate access.
23
The cost of access improvements
A minority of representatives of the Judiciary Committee called the United
States Civil Rights Act 1963 (predecessor to the 1964 Act) extreme and
vicious. They argued that the Act seriously impaired the rights of
businesses to choose whom they hired and served. The Minority Report
stated that having to serve all customers could cost businesses money.
“People are in business to make money and in certain areas they have
learned, or have reason to believe, it is more profitable to serve only one
race or another…. To force him to abandon his practice, to run counter to
prevailing opinion, is to injure his business and his property (The
Committee of the Judiciary, 1963, p. 73).”
There is good reason to believe that such concerns about costs to
businesses from the Civil Rights Act were overstated. The same is true
with accessibility.
Research has shown that the cost of accessibility
improvements is often exaggerated.
A World Bank report notes:
“Concerns about the cost of accessibility are typically based on lack of
knowledge and experience and inaccurate estimates of the actual cost of
construction (The World Bank, 2005).”
The Christchurch City Council commissioned research into the cost of
earthquake strengthening. In the research, the costs of access were
included in the general architectural costs. This is because in practice,
access upgrades are closely linked to the architectural work that needs to
follow earthquake strengthening (Hare , 2009, p. 10).
The examples of high access costs given in submissions generally relied
on lifts and/or an unrealistically large number of accessible toilets being
24
needed. For example, Gisborne District Council said this in the
consultation:
“When costs are compounded by the requirement to add perhaps five
accessible toilets and a lift in a multi tenanted building at an approximate
cost of an additional $140,000 plus loss of retail space the disincentive to
comply multiplies (Ministry of Business, Innovation and Employment,
2013, p. 89).”
Lift are only required when the building footprint area is greater than
400m2 (Hare , 2009, p. 10). Even then, they are only required if it is
reasonable and practicable to install them. Under current law, the benefits
have to outweigh the costs.
The number of accessible toilets required varies between two to three for
buildings with over 300 occupants. The only situation that would require
five accessible toilets would be a building with over 300 occupants that
had five separate groups of toilets (Department of Building and Housing,
2011 2). Even then the “reasonably practicable” test applies.
Many of the examples of high cost given by submitters
do not seem plausible, especially given the “reasonably
practicable” test.
When asked, the Ministry of Business, Innovation and Employment said
they did not have any evidence that access requirements are a significant
barrier to earthquake strengthening, beyond the submissions to the
Canterbury Earthquakes Royal Commission and the Ministry of Business,
Innovation and Employment consultation (Official Information Act request
included as Appendix 1).
The requirements of Section 112 and its predecessor Section 38 have
been applied to building alterations, including earthquake strengthening,
25
since 1991. The Royal Commission notes several of these alterations in its
case studies. None of the case studies identify Section 112 as a barrier or
significant cost (Canterbury Earthquake Royal Commission, 2012,
appendix 1).
Even taking the concerns about cost into consideration, the principles
about access and the wider benefits are more important.
A liability for building owners and councils
Local authorities will struggle with the access exemption
The Section 133AX exemption complicates the consent
process and makes the Law more ambiguous.
Local authorities need to administer the Section 133AX exemption fairly,
quickly, efficiently and make sure judgements are legally robust. Local
authorities also need to deliver consistent judgements across the country.
In addition to proposed regulations under Section 401C(c), local
authorities need to ensure when granting a Section 133AX exemption that
the benefits of earthquake strengthening the building outweigh any
downside to not meeting the access and fire requirements.
This is more complicated than the existing need to measure the benefits
and costs of access in the “reasonably practicable” test. The reasonability
test is also consistent with the Human Rights Act and the Bill of Rights Act:
“The rights and freedoms contained in this Bill of Rights may be subject
only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society (New Zealand Parliament, 2013,
p. Section 5).”
26
By comparison, the idea that earthquake strengthening trumps access
rights is not an established legal concept. It is unclear if it can be
demonstrably justified as reasonable. None of the supporting information
on the Amendment Bill attempted to justify the Section 133AX exemption
as necessary in a free and democratic society.
The Ministry has said that local authorities struggle to
apply the simpler “reasonably practicable” test
consistently (Ministry of Business, Innovation and
Employment, 2013, p. 22). It is difficult to see how local
authorities will effectively and fairly administer the more
complex and untested new exemption
Little attention has been given in the analysis of the Building (Earthquakeprone Buildings) Amendment Bill, to the practicalities of how local
authorities will administer the Section 133AX exemption.
The Ministry has still not provided comprehensive guidance on the far
simpler “reasonably practicable” test in the Building Act. A point the
Ministry acknowledges (Ministry of Business, Innovation and Employment,
2013, p. 23). With guidance documents still needed to support the
implementation of the existing law, it is extremely unwise to add a more
complicated exemption.
In practice, the new exemption is likely to be applied
inconsistently by local authorities. This will create major
equity issues between building owners.
Conclusion - A fair solution for all
Everyone has the right to access buildings intended for use by the public.
People with access needs have fought for decades to realise this right.
They are still fighting for this right as many buildings are not accessible.
27
For 23 years, buildings have slowly been made more accessible because
of current legislation. Buildings being upgraded have had to meet the
access requirements as near as is “reasonably practicable”. This ensures
a balance between the benefits of improving access and the cost to
building owners.
Better information and guidance would assist implementation of the
“reasonably practicable” provision.
There is no need for the Section 133AX exemption.
Furthermore, Section 133AX will complicate the
consenting process and undermine over four decades of
work and progress on access rights.
The best solution for everyone and for New Zealand’s
economic future is to remove section 133AX, and for the
Ministry of Business, Innovation and Employment to
provide guidance around the existing Law.
We welcome opportunities to provide more information and request to appear
before the committee.
28
Organisation profiles
Arthritis New Zealand
Arthritis New Zealand is the national organisation that raises awareness of the
more than 140 forms of arthritis, advocates for those living with arthritis, funds
research, and provides support through information and advice.
Arthritis is the leading cause of disability in New Zealand. There are more than
530,000 New Zealanders living with arthritis. Including 1000 children.
We put people first, and strive for excellence, integrity and respect. And every
year, we deliver a variety of services to more than 20,000 people who are
living with arthritis and other long term conditions.
Beneficiary Advisory Service
The Beneficiary Advisory Service’s mission is to protect and promote the
interests of people receiving benefits and others on low incomes, through
information, advice, support and advocacy.
Blind Foundation
The Blind Foundation is New Zealand’s main provider of sight loss services to
people who are blind or have low vision. The Blind Foundation's vision is
empowering and supporting New Zealanders who are blind or have low vision
to ensure that they have the same opportunities and choices as everyone
else. The Blind Foundation advises government, business and the community
on inclusive standards to ensure that people who are blind or have low vision
can participate and contribute equitably. The Blind Foundation also provides
its clients with the adaptive skills they need to lead independent lives.
The Blind Foundation has more than 11,500 clients nationwide. VISION 2020,
NZ's recent Clear Focus research estimated that in 2009, almost 125,000
New Zealanders aged 40 years or over had vision loss, including around
12,000 who were blind. This is estimated to increase to 174,000 people with
vision loss by 2020, including 18,300 blind people. Globally, the World Health
Organization estimates that 285 million people have significant vision
impairment. Of these, 39 million are blind and 246 million have low vision.
29
CCS Disability Action
CCS Disability Action is a community agency, with a core focus on supporting
disabled people to be included in the life of their family and community. We do
this through community action, social policy and human rights work and the
delivery of a range of government-funded and donations-funded disability
information and service.
CCS Disability Action is governed by a National Board, all of whom are
disabled people, or parents of disabled children and adults. Board members
come from around the country, with nine members in total. Four are Maori, all
of whom are disabled.
CCS Disability Action is a federated organisation with 16 local branches, and
25 offices throughout the country. Each branch has governing committees
where the voices of local disabled people are strong. One Branch is the Bay
of Plenty, with offices in Tauranga, Rotorua and Whakatāne and significant
rural outreach.
Council of Social Services in Christchurch
The Council of Social Services in Christchurch promotes social equity, justice,
wellbeing, and collaboration by identifying, understanding and advocating on
issues that impact on the most vulnerable.
Deaf Aotearoa
Deaf Aotearoa is the voice of Deaf people in New Zealand. It works with Deaf
communities and provides information and resources on a range of services.
Deaf Aotearoa also works closely with government agencies, other not-forprofit organisations and the corporate sector to increase awareness of Deaf
people’s lives, promote New Zealand Sign Language and strengthen the
rights of Deaf people.
30
Deaf Aotearoa is a Disabled Persons Organisation and the New Zealand
representative for the World Federation of the Deaf, the international body for
Deaf people. Deaf Aotearoa owns the only national New Zealand Sign
Language interpreting service iSign, which provides interpreting services
across all fields.
Deaf Aotearoa provides a wide range of services including needs assessment
and service coordination, information and advice, employment support,
transition, adult education, and works alongside community organisations to
establish community development projects.
Deaf Society of Canterbury
Deaf Society of Canterbury provides clubroom facilities for the culturally
community in Canterbury. We aim to promote and strengthen New Zealand
Sign Language, with culture and well-being of Deaf people paramount, to
focus on the social, recreational, educational needs and sporting activities of
all members and to encourage other charitable activities for our member
groups, and families, with events, fundraising support and the sharing of
technology and other resources.
Disabled Persons Assembly
Disabled Persons Assembly New Zealand (DPA) is the national assembly
and collective voice of disabled New Zealanders. DPA is a Disabled
Person’s Organisation, which means disabled people govern it and the
organisation’s main purpose is to articulate the aspirations of its members.
DPA has some 900 individual members who have disabilities themselves or
are the parent or guardian of a disabled person, and some 200 corporate
members who represent or deliver services to disabled people.
IHC New Zealand
31
IHC New Zealand Incorporated (IHC) is a community-based organisation that
has provided advocacy and support for people with an intellectual disability
and their families for 65 years. IHC has 4,000 members and through our
service arm, IDEA Services, works with over 6,000 people with intellectual
disability.
NGO Health & Disability Network
The NGO Health & Disability Network is a membership group of 285 non-profit
health and disability providers that receive Vote Health funding from the
Ministry of Health and/or DHBs.
Members deliver government-contracted services throughout New Zealand in
the following areas:

Disability support services

Māori health

Mental health and addictions

Pacific health

Personal health

Public health
These NGOs range from small providers with one FTE employee, to large
agencies with more than 1,200 paid staff.
People First New Zealand
People First New Zealand Inc, Nga Tangata Tuatahi is here to empower and
support people with learning disability to be strong and valued individuals in
New Zealand.
People First New Zealand is a self advocacy organisation that is led and
directed by people with learning (intellectual) disability. People First became
an independent organisation in New Zealand in 2003 and is part of an
international social justice movement advocating for the rights and inclusion of
all people with learning disability
Tauranga Community Housing Trust
32
Tauranga Community Housing Trust (TCHT) is a charitable trust that provides
housing and housing related services. Historically the Trust specialised in
housing disabled single people and families with a household member with a
disability. TCHT clients included people with physical, intellectual and
sensory disability as well as people whose disability is age, accident or mental
health related. In August 2009 the Trust broadened the criteria to include
others in the community who cannot access decent affordable housing. The
priority is households on low incomes.
The Northland Multiple Sclerosis Society
The Northland Multiple Sclerosis Society provides information, education and
support for people with MS and their families, encouraging a proactive
approach to managing the disease. A home visiting service from our Field
Officer is available throughout Northland from Wellsford to the Cape.
The Whanganui Disability Resources Centre
Since 1993, the Whanganui Disability Resources Centre has offered a
comprehensive disability information service; a range of support processes
including service coordination and advocacy; supported employment and
transition from school services; short-term hire of wheelchairs and other
mobility equipment, and sales of aids and equipment.
Volunteering Canterbury
Volunteering Canterbury’s vision is “Supportive communities where voluntary
work is understood, recognised and valued”. Volunteer Canterbury promote,
support, and uphold the integrity of voluntary work with commitment to Te Tiriti
o Waitangi. Operating since September 1988, Volunteering Canterbury
supports informal and formal volunteering. Voluntary work is work done of
one's own free will, unpaid, for the common good. Aroha ki te Takata a Rohe.
33
Bibliography
Grant Thornton. (2010). Aged Residential Care Service Review .
Access Economics Pty. (2010). Clear Focus — The economic impact of vision
loss in New Zealand in 2009. Vision 2020 Australia.
Canterbury Earthquake Recovery Authority; Environment Canterbury
Regional Council; Christchurch Central Development Unit; Christchurch
City Council; Ngai Tahu; New Zealand Transport Agency. (2012).
Christchurch Central Recovery Plan: An Accessible City He Taone
Wātea. Christchurch: Canterbury Earthquake Recovery Authority.
Canterbury Earthquake Royal Commission. (2012). Final Report Volume 4
Earthquake-Prone Buildings.
Convention on the Rights of Persons with Disabilities. (n.d.).
Department of Building and Housing . (2006). Determination 2006/40.
Department of Building and Housing . (2006). Determination 2006/73 .
Department of Building and Housing. (2011 2). Compliance Document for
New Zealand Building Code Clause G1 Personal Hygiene – Second
Edition.
Department of Building and Housing. (2012). Determination 2012/047.
Department of Building and Housing. (March/April 2007, March/April). Nearly
as is reasonably practicable. Codewords, 6-7.
Government Administration Committee. (2004). Building Bill - As reported
from the Government Administration.
Greater London Authority. (2004). Accessible London: Achieving an Inclusive
Environment. Retrieved 10 05, 2011, from Greater London Authority:
www.london.gov.uk/strategy-policy/accessible-london-achievinginclusive-environment
Hare , J. (2009). Heritage earthquake prone building strengthening cost study.
Christchurch City Council.
McClean, R. (2011). Providing for Physical Access to Heritage Places. New
Zealand Historic Places Trust.
Ministry of Business, Innovation and Employment. (2012). Building Seismic
Performance: Proposals to improve the New Zealand earthquakeprone building system.
34
Ministry of Business, Innovation and Employment. (2013). Determination
2013/036.
Ministry of Business, Innovation and Employment. (2013). Improving the
system for managing earthquake-prone buildings.
Ministry of Business, Innovation and Employment. (2013). Proposals to
improve the New Zealand earthquake-prone building system - full
report on the consultation process .
Ministry of Social Development . (2013). Performance Information for
Appropriations Vote Social Development 2013/14.
New Zealand Historic Places Trust Pouhere Taonga. (2010). Earthquake
Strengthening Improving the Structural Performance of Heritage
Buildings. New Zealand Historic Places Trust Pouhere Taonga.
New Zealand Historic Places Trust Pouhere Taonga. (2011). NZHPT
Submission to the Canterbury Earthquakes Royal Commission .
New Zealand Parliament . (2004). Building Act.
New Zealand Parliament. (2012). Local Government Act 2002.
New Zealand Parliament. (2013). Bill of Rights Act 1990.
Office for Disability Issues and Statistics New Zealand. (2013). Disability and
formal supports in New Zealand in 2006: Results from the New
Zealand Disability Survey. Wellington.
Office of Disability Issues and Statistics New Zealand. (2009). Disability and
Travel and Transport in New Zealand in 2006. Wellington.
Statistic New Zealand. (2014, February 28). Infoshare. Retrieved March 20,
2014, from Statistic New Zealand:
http://www.stats.govt.nz/infoshare/ViewTable.aspx?pxID=3c9ef9340278-4731-8489-4635cd1949bc
Statistics New Zealand . (2006). Demographic Aspects of New Zealand’s
Ageing Population. Wellington.
Statistics New Zealand. (2007). 2006 Disability Survey. Wellington.
Statistics New Zealand. (2012). National Population Projections: 2011(base)–
2061.
Statistics New Zealand. (2014, April 15). Age Group by Sex, for the Census
Night Population Count, 1996, 2001 and 2006. Retrieved April 15,
35
2014, from Statistics New Zealand:
http://nzdotstat.stats.govt.nz/wbos/Index.aspx?DataSetCode=TABLEC
ODE2056#
Statistics New Zealand. (2014, March 23). Table 2: Adults with disability, by
disability type, age-group, sex and place of residence, 2006. Retrieved
March 23, 2014, from Statistics New Zealand:
http://nzdotstat.stats.govt.nz/wbos/Index.aspx?DataSetCode=TABLEC
ODE2056#
Statistics New Zealand and Office for Disability Issues. (2008). Disability and
the Labour Market in New Zealand in 2006 . Wellington: Statistics New
Zealand.
The Committee of the Judiciary. (1963). Report No. 914 Civil Rights Act of
1963. United States House of Representatives.
The Martin Prosperity Institute. (2010). Releasing Constraints: Projecting the
Economic Impacts of Increased Accessibility in Ontario.
The World Bank. (2005). Education for All: The Cost of Accessibility.
Wilkinson-Meyers, L., McNeil, R., Inglis, C., & Bryan, T. (2008). Blind
Foundation 2007 Employment Survey. Centre for Health Services
Research and Policy, The University of Auckland Faculty of Medical
and Health Sciences.
Woodley, A., Nadine , M., & Dylan, S. (2012). Employer attitudes towards
employing disabled people. Point Research.