CCS Disability Action submission on Building Seismic
Performance Consultation
8 March 2013
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Table of Contents
Introduction ...................................................................................................... 2
Response to consultation questions ................................................................ 2
Ministry of Business, Innovation and Employment’s terms of reference .......... 2
The workability of an exemption....................................................................... 3
Accessibility affects everyone .......................................................................... 4
Cost ................................................................................................................. 5
Timeframes ...................................................................................................... 7
Building Act ...................................................................................................... 7
Human Rights .................................................................................................. 8
Historic Buildings ............................................................................................. 8
Disability Action Plan ....................................................................................... 9
Conclusion ....................................................................................................... 9
Bibliography ..................................................... Error! Bookmark not defined.
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Introduction
We strongly oppose the proposal to bypass accessibility requirements when
building owners undertake earthquake strengthening work. This proposal is
outlined in the Building Seismic Performance consultation document (Ministry
of Business, Innovation and Employment, 2012, p 31).
We are deeply concerned that the Royal Commission and the Ministry of
Business, Innovation and Employment have not involved accredited
accessibility experts in the development of this proposal. The resulting
proposal is counter to the New Zealand Disability Strategy, the United Nations
Convention on the Rights of Person with Disabilities, and the Human Rights
Act.
There is a worrying lack of awareness in the proposal and consultation
questions of the wider legislative and human rights framework that governs
accessibility requirements in New Zealand. The proposal runs counter to
wider government policy and objectives, including the Disability Action Plan
and the Canterbury rebuild.
Response to consultation questions
We have chosen in our submission, to focus on the issue of the Ministry of
Business, Innovation and Employment proposing an exemption from Section
112, a, ii of the Building Act 2004 for buildings undergoing earthquake
strengthening.
Ministry of Business, Innovation and Employment’s terms of reference
We have concerns that the proposal does not match the terms of reference for
the review on improving the earthquake-prone building system.
The official terms of reference state that one of the primary aims is to ensure
that policy settings and standards adequately balance life and safety
considerations against economic, heritage and other considerations. The
Royal Commission and the Ministry of Business, Innovation and Employment,
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however, compared accessibility directly to economic and heritage factors
rather than life and safety considerations. The Royal Commission stated:
“This is because many old or historic buildings are difficult to alter to allow for
disabled access, and in some cases there can be heritage and resource
consent issues that need to be pursued (Canterbury Earthquake Royal
Commission, 2012, p 217).”
From there, it argued that by impacting economic and heritage factors,
Section 112 was a barrier to earthquake strengthening. The reference point
should have been safety.
We have seen no suggestion by the Royal Commission, building owners, or
by the Ministry of Business, Innovation and Employment that accessibility
directly impacts safety in a negative way. According to the terms of reference,
accessibility requirements should never have been considered against
economic or heritage factors.
Most accessibility improvements, actually improve safety both for people with
mobility needs and people without. Wide corridors and doorways for example,
aid evacuations. Inaccessible or poorly accessible buildings can pose
significant safety risks in the event of earthquakes or fires. In the event of a
major earthquake, people may acquire temporary or permanent mobility
impairments.
Section 112 was not assessed properly by the Royal Commission or the
Ministry against safety considerations.
The workability of an exemption
An exemption would be difficult to administer in practice. Building owners may
carry out additional work alongside earthquake strengthening. It would be
difficult for building consent authorities to separate earthquake strengthening
work from other work when issuing consents.
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An exemption would also set a dangerous precedent. It would strengthen the
belief of some building owners that accessibility is just a burdensome cost.
Some owners and councils may question why other exemptions cannot be
made.
Accessibility affects everyone
Unfortunately, the Royal Commission appears to use very outdated notions
about accessibility. The Commission also shows a lack of awareness of how
access issues affect the wider community. The Commission seems to regard
accessibility improvements as just a cost and indicates that accessibility is just
for disabled people by calling Section 112 “the disabled access rule”
(Canterbury Earthquake Royal Commission, 2012, pg 12). The Department of
Building and Housing also used the term disabled access in its submission to
the Royal Commission (Department of Building and Housing, 2011, p 1).
Accessibility issues affect everyone at some time in their life. We all
experience different levels of mobility – 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).
Accessibility has a major role in the Christchurch Central Recovery Plan. An
entire chapter of the Plan is dedicated to accessibility. This is based, in part,
on the Share an Idea campaign where a large number of people suggested
that Christchurch need to become more accessible.
The Christchurch Central Recovery Plan states:
“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 Plan also emphasised that the existing accessibility requirements would
play a key role in the rebuild:
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“The Canterbury Earthquake Recovery Authority (CERA) and Christchurch
City Council are committed to making central Christchurch a place for
everyone by ensuring that accessibility checks are incorporated into building
consent processes at both the design and implementation phases of projects
(Canterbury Earthquake Recovery Authority, 2012, p 5).”
It is concerning that the Ministry of Business, Innovation and Employment and
the Royal Commission are so out of step with the overall approach of the
Government to the Canterbury rebuild.
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. “
We note that no accredited accessibility experts appeared before the Royal
Commission (Canterbury Earthquake Royal Commission, 2012, p. 237-238).
We also note that the Ministry of Business, Innovation and Employment has a
reference group on the review that includes heritage experts, but no
accessibility experts. This is counter to Article 4 of the Convention on the
Rights of Persons with Disabilities.
Article 4 states that governments shall closely consult with and actively
involve people with disabilities in the development of policies (Convention on
the Rights of Persons with Disabilities, p 6). This has not happened to date.
Cost
The stated reason for the proposed exemption is to reduce costs (Canterbury
Earthquake Royal Commission, 2012, p 237). The Ministry of Business,
Innovation and Employment and the Royal Commission have, however, taken
a narrow view of costs and excluded any consideration of benefits.
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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).”
There are also clear benefits from improved accessibility. All buildings benefit
from being accessible to as many people as possible. This maximises the
potential users of the building.
Inaccessibility creates significant externalities and opportunity costs for the
wider economy and the community. Last financial year, the Government spent
over $2 billion supporting people on sickness and invalid benefits. A further
$9.5 Billion was spent on superannuation (New Zealand Government, 2012, p
82-83, 86).
A sizable number of people on government income support are prevented or
discouraged from working because of accessibility 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).
People will be unemployed or retiring early because of accessibility barriers in
the community and the workplace. On top of these income support payments,
there are also high opportunity costs in the form of reduced taxation. It is a
key objective of the Government to reduce the number of people dependent
on income support.
The Ministry of Business, Innovation and Employment should be seeking to
aid the Ministry of Social Development to reduce the number of people on
income support. Instead the Ministry is proposing policies that entrench the
limited employment opportunities available to people with mobility needs.
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Timeframes
The timeframe for earthquake strengthening is up to 15 years. By 2031 over
20% of our population is expected to be over 65 years-old (Statistics New
Zealand, 2006 p. 9). The number of people over the age of 65 who have an
impairment is estimated at between 54% and 45% (Statistics New Zealand,
2007).
It would be very concerning if the Government did not expect all large
buildings to be as accessible, as is reasonably possible, by 2028. This would
show a lack of commitment to Article 9 of Convention on the Rights of
Persons with Disabilities (Convention on the Rights of Persons with
Disabilities, p 9).
Building Act
The reason accessibility requirements are linked to alterations in the Building
Act is to enable a progressive roll out of accessibility. It is far easier to make
accessibility alterations when the owner is already carrying out work.
The Department of Building and Housing stated that it was not the
government’s intention that section 112 would be applied to earthquake
strengthening work (Canterbury Earthquake Royal Commission, 2012, p 217).
The current wording, however, says Section 112, a, ii applies to all alterations
that require building consent of buildings that meet the requirements of
Section 118. There is no evidence that the Select Committee or Parliament
did not intend earthquake strengthening to be included in this section. The
intent of the wording also matches the previous Section 38 of the 1991
Building Act.
The term ‘reasonably practicable’ in the Building Act already acts as a
safeguard against unreasonable costs. The term ‘reasonably practicable’ is
based on, or should be, clear analysis of costs and benefits (Department of
Building and Housing, March/April 2007). Section 112 Subsection 2 also
provides for flexibility in meeting the requirements of Section 112.
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The requirements of Section 112 and its predecessor Section 38 have been
applied to building alterations, including earthquake strengthening since 1991.
The Royal Commission notes several of these alterations in its case studies.
None of these case studies identify Section 112 as a barrier or significant cost
(Canterbury Earthquake Royal Commission, 2012, appendix 1).
Amending the Act would be a legislative challenge, particularly because of the
possible human right challenges. We see no good evidence for proposing
such a change to the legislative framework governing accessibility. There are
good reasons why Section 112 of the 2004 Building Act and its predecessor
Section 38 of the 1991 Building Act were enacted by Parliament.
Human Rights
The basis for Section 112 of the Building Act 2004 is human rights. The
section is designed to ensure that the rights of everyone to access buildings
intended for use by the public are protected.
Section 42 of the Human Rights Act states that people cannot be refused
access to any place, which members of the public are entitled or allowed to
enter or use.
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.
The Government has a positive obligation to ensure buildings, intended for
use by the public, are accessible to everyone. The proposed exemption would
weaken the government’s current measures to ensure this and could lead to a
legal challenge.
Historic Buildings
The Royal Commission states that an exemption to Section 112 should be
made because many historic buildings are difficult to alter to allow for disabled
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access. This appears to be based on the view of a select few building owners.
These views contradict the official position of the New Zealand Historic Place
Trust. Who state:
“The New Zealand Historic Place 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, 2012, p 4)”
Disability Action Plan
The Ministerial Committee on Disability Issues, which includes the Minister for
Housing, agreed to focus the implementation of the 2011 to 2012 crossgovernment Disability Action Plan on the Canterbury recovery. One of the two
priority areas in the Plan was improving the accessibility of the built
environment.
Government agencies were meant to make accessibility an integral part of
projects. They were also meant to monitor compliance against accessibility
standards. Instead the Ministry of Business, Innovation and Employment is
recommending that accessibility standards are repealed for earthquake
strengthening. It is concerning that the Ministry is out of touch with wider
initiatives and Government direction.
Conclusion
As the NZS 4121:2001 standard notes, accessibility is a practical matter, and
not an emotional issue. As a practical matter, the cost and benefits of
accessibility improvements should accurately looked at, including the costs
and benefits to wider society. The legislative and human rights framework
should be considered and accessibility experts should be consulted. The link
between accessibility and government policies and objectives should also be
acknowledged. If this is done, we believe that the wider costs of an exemption
would far outweigh any short lived savings to building owners.
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