The test case: MBIE waves a white flag?


MBIE’s determination on the earthquake prone building test case has finally been released. MBIE found nothing wrong with anything the Council did or did not do.  No surprises there.

The applicants had three issues:

  • The Council did not apply the legal test to designate the buildings as earthquake prone
  • The Council’s approach of designating buildings on the basis of their initial evaluation procedure (IEP) did not meet the legal test
  • Flaws in the Council IEP assessment of one of the buildings

We will be commenting on what the determination had to say on each of these in subsequent updates.

What was a surprise was what was said about the methodology that MBIE will develop under the new Act. In section 12, Upcoming changes, the document states:

“I note for the benefit of the applicant and other interested parties that there is current policy work underway to further clarify the legislation (see the Building (Earthquake-prone Buildings) Amendment Bill 2013) (“the EPB Bill”). ….

I consider that, for territorial authorities making assessments as to the earthquake-proneness of a building, the following broad principles might be considered in the future, in particular when assessing the ‘likely to collapse’ limb….

Placing reliance on statements by suitably experienced CPEng engineers if, in their professional opinion, the building is not likely to collapse despite being less than 34% NBS.”

What seems to being signaled here is a retreat from the hardline trigger 33NBS% earthquake prone building trigger point. There could be thousands, if not tens of thousands, of buildings that would otherwise be designated as earthquake prone that could be affected.

This seems to be a cunning plan. The Minister gets to hold fast to his 33% trigger point, while in practice it won’t apply to most sound buildings that would otherwise be captured. Not the greatest regime in the world, but a good political compromise.

We are not quite sure what to make of the statement and why it has appeared it this document. Perhaps it is a peace feeler. Don’t proceed with your litigation when you will get what you want with the new regime.

The problem is that we don’t know whether the plan will come to fruition and what conditions will be set. The ‘broad principles’ just might be considered and there is no mention of what sized earthquake the likely to collapse test will be calibrated to.

We will proceed with the litigation. If more certainty is provided we will reconsider our position.

However, the announcement, if that is what it is, potentially has enormous significance for local authorities and building owners. Local authorities should pause their earthquake prone building designation programmes, and owners should not strengthen their buildings, until the new methodology comes into effect.