Compliance Schedules and Accessibility

In July, the Department of Building and Housing responded to the legal opinion the Trust obtained from Auckland law firm Simpson Grierson. The effect of the 2005 Building Amendment Act is that since 31 March 2008, any building that is not used wholly as a single household unit, has to have a compliance schedule, if it has a specified system or a cable car.

In the view of Simpson Grierson it is arguable that the correct interpretation of the Act is: “If a compliance schedule is required for a building, then in addition to the ‘specified systems’ in the building, the compliance schedule must also list the building’s components that are relevant to the matters listed in s103(1)(d) of the Act.  That includes any ‘means of access, and facilities for use, by persons with disabilities that meet the requirements of s118’.”

Just to refresh, apart from a cable car a ‘specified system’ is a system or feature in a building that contributes to the proper functioning of the building. These systems are listed in the Building (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005.
 
The DBH has responded to the Simpson Grierson advice by stating that there are insufficient grounds to justify a departure from the definition of the term ‘specified system’ as set out in the Building Act 2004.

According to the DBH:

-     The natural and ordinary meaning of the words in s103 (1)(d) is clear and there is no basis for departing from the meaning of ‘specified system’.

-     The purpose of s103 (1)(d) is to highlight the specified systems that relate to the features listed in this section.

-     The purpose is achieved by requiring those specified systems on the compliance schedule that relate to access and facilities for use by persons with disabilities, to be repeated as a further list in addition to the list of specified systems required by the Act.

The DBH also said that a compliance schedule must highlight the specified systems which relate to each of those features listed in s103 (1)(d) (i) to (v), but those features are not required to be included on the compliance schedule in their own right.  Items listed in this section are not specified systems and are not subject to inspection, maintenance and reporting procedures under a compliance schedule.

Even if an item listed in s103 (1)(d) is not included in a compliance schedule and is not subject to building warrant of fitness reporting procedures, it must be code compliant when installed or built, and must be maintained by the building owner to ensure that the building does not become unsafe, dangerous and/or insanitary.

Needless to say, the Trust is disappointed in their approach as ongoing compliance in relation to accessibility is an issue that the Act does not adequately address. The DBH are considering options for improving guidance to the sector on these matters, which will include updating the Compliance Schedule Handbook and better informing the sector through other Department publications and communication activities. We look forward to being involved in this process.

If you are new to our newsletter list, you can find articles on this matter in our May and June 2008 Barrier Free Newsletters.