Investigation: How local councils score on their building warrants of fitness

Councils claim they are doing better at checking fire safety systems in buildings, and especially boarding house-type accommodation like Loafers Lodge.

Prompted by that fatal fire last month, RNZ did a quick survey of 15 councils that have not been scoring so well with the building regulator, MBIE, over building warrants of fitness - and threw in Hamilton as a 16th that scored high for comparison.

Some did poorly for on-site building audits in a new risk-based assessment of 32 councils done by the ministry last year (we have not seen the survey for the other 35, which was done later on).

Others showed few signs of using enforcement penalties - and many told RNZ that is still a last resort, despite the ministry telling them "light-handed approaches" often do not work.

Some, such as Invercargill and Timaru, are coming off a very low base.

The councils come in all different shapes and sizes, all sharing the complication of Covid lockdowns when it came to going out on-site to check fire alarms, evacuation schemes and other safety systems.

However, in general, MBIE said the majority of councils are still not doing enough such audits, so RNZ set out to test that.

Three-quarters of the 16 councils queried saw the public interest in at least providing some information, a quarter did not.

The bar is set for quality building warrants of fitness - BWOFs, -by MBIE.

It wants to see a council's own inspectors on-site at boarding houses once a year, and to get to every other building within three-to-five years (a 20-33 percent audit rate), depending on its risk. This is the council backstop to the checks that must be done by contractors every year at each commercial building.

Bear in mind, two of the country's largest councils, Wellington and Auckland, have been remiss. Wellington has not been prioritising boarding houses at all, let alone checking them annually; and Auckland was only getting to them once in three years - though at least it has a list identifying some of them (150 out of 400).

A lack of enforcement action - what are called Notices to Fix, and Infringement notices - has been another MBIE bugbear.

Here is a wrap of what the 15 - plus Dunedin, because it had scored poorly earlier - told us (it's not an apples-and-apples comparison, as they all presented varying information; for instance, some updated their audit numbers for us, others did not):

• Four did not come back to us - Gisborne; Whakatane; Western Bay and Gore district councils
• Twelve did - NB: for all but Dunedin, the 'on-site audit rate' and 'combined enforcement' below is for January 2020-April 2022, from MBIE's assessment, which can be read in full here.

Clutha District

• Audit rate = 11 percent, 290 buildings
• Combined enforcement = zero notices sent to building owners

Currently, 97 percent of its buildings have BWOFs that are up to date.

"An improvement programme has been underway for three years."

Council staff have been working with building owners around what safety systems they have and what the checklists (compliance schedules) show.

"The next stage of this programme are full audits of these buildings to ensure owners are meeting their obligations. It is expected that audits will start in August."

"If MBIE makes recommendations in relation to the recent Loafers Lodge fire, then we will look to action these."

Dunedin City

• On-site audit rate 2012-15* = zero, for 1634 buildings (*latest figures from MBIE)
• Combined enforcement (Notices to Fix [NTF] plus infringement notices) = medium

In the year to April 2023:

• Current audit rate = 22 percent, or 361
• Combined enforcement = high (almost 200 notices)

It told RNZ: "We acknowledge efforts by ... MBIE to sharpen the focus on BWOF audits, especially given the recent tragic events in Wellington."

"Our staff are working hard to increase the frequency of audits."

"We also now aim to audit high-risk accommodation annually, again in line with MBIE guidelines."

Hamilton City

• Audit rate = 51 percent, 2274 buildings
• Combined enforcement = high (200 notices)

Currently, about 100 buildings have not provided a copy of their BWOF. This could be a timing issue, it said.

RNZ specifically asked about on-site audits at boarding houses, backpackers, emergency housing, and at hospitals, where Hamilton has had BWOF problems in the past.

Auckland keeps a register of boarding houses - what about Hamilton? "It would have to manually collate a list of what buildings are used for," it said.

"Council does not keep one specific register of building use, for example commercial short-term housing operators, however it does categorise building use between high and low risk to inform its building audit schedule."

Horowhenua District

• Audit rate = 17 percent, 317 buildings
• Combined enforcement = zero

Its audit policy since 2019 set a three-to five-year on-site cycle, though more often for higher-risk buildings.

"Council .... starts with officers first contacting parties if a non-compliance is identified with the aim of working with them to achieve compliance as appropriate. It is likely that any ... non-compliances identified have either been resolved by building owners or their Independent Qualified Person (IQP) prior to a Notice to Fix and/or infringement being issued."

After Loafers, "we will review our approach to how we respond to general non-compliance with BWoF requirements, to ensure the way we apply our enforcement model is fit for purpose and does not unknowingly add to the risk a non-compliance may pose to building users and potentially the general public's safety."

Invercargill City

• Audit rate = zero, 923 buildings
• Combined enforcement = very low

"The [2022] results informed a revised approach by council to introduce additional roles to support processes in line with MBIE's recommended practices."

"We undertake BWOF audits every month."

Last year, 81 audits were done, and another 39 so far this year.

"Our priority over the last two years has been larger-occupancy buildings."

"Council considers buildings where occupants are likely to be sleeping pose some of the highest risk. We are aware of the potential for some buildings to be used for accommodation where perhaps pressure to accommodate individuals can inadvertently impact the potential safety of occupants.

"We aim to identify these as quickly as possible and work" on compliance."

"Council will consider the findings from the investigation into the cause of the Loafers Lodge fire and consider options available to us to make any changes that may be deemed necessary."

Nelson City

• Audit rate = 17 percent, 867 buildings
• Combined enforcement = zero
• Current audit rate = 19 percent

"On top of this we are currently reviewing short-term accommodation buildings in Nelson to identify any high-risk buildings" with partners FENZ and neighbouring councils.

"Should any changes be requested ... as a result of the Loafers Lodge investigation, [it would] of course implement these."

NTFs were "considered a process of last resort". Education and open dialogue reduces the number of enforcement actions "while achieving the same result".

However, MBIE is not convinced by this softly, softly approach:

"While ultimately [councils] need to exercise their discretion in each case, light-handed approaches such as warnings often do not achieve the desired results," it said in the 2022 assessment.

The notices were "an important tool" to create for both building owners and, crucially, the contractors who do the annual BWOF checks separately from council audit. But 15 of the 32 councils assessed in 2022 "do not actively use NTF provisions to encourage compliance", said the ministry.

As an example, Palmerston North City Council provides a contrast, issuing 847 notices in 2020-22. RNZ has asked Palmerston North for more information on why it issued so many NTFs but has not yet heard back.

Porirua City

• Audit rate = 2 percent, 466 buildings
• Combined enforcement = zero/unknown

"Our records show that the last audit completed on the short-term accommodation ... was throughout 2021-2022.

"We have set the frequency of one building being used as short-term accommodation to be audited yearly, with the other lower risk buildings set at every two years with some scheduled for this year." It also said short-term accommodation audits were set for "1-2 years".

"We are comfortable with the audit frequency we have set for buildings used for short-term accommodation based on the risk assessments we have undertaken. If increased risks are identified ... frequencies will be adjusted accordingly."

No NTFs have been issued since January 2021. It was taking the education approach, it said.

Stratford District

• Audit rate = zero, 100 buildings
• Combined enforcement = zero
• Currently = 31 on-site audits since 2022, plus 23 desktop audits

There is one registered provider of short-term/boarding house/backpacker, with an audit scheduled for this month.

"We are awaiting the outcome of any reviews into the Loafers Lodge incident before making changes to our BWoF processes.

"We recognise the Loafers Lodge incident as very serious and expect there to be recommendations that may require changes to our BWoF processes or other processes in the near future and are open to making changes where a need is identified."

Tauranga City

• Audit rate = 1 percent, 1646 buildings
• Combined enforcement = medium (195 NTFs)
• More recently = 352 audits in the past 12 months

Despite MBIE's guidelines, on-site audits "do tend to be afforded lesser priority than the statutory requirements".

It increased audits following the 2022 assessment.

It was rating buildings as high, medium or low risk, with corresponding audits at two, four or six-yearly intervals.

"We consider short-term accommodation to fall into that high-risk category" for two-yearly audit.

"We are clearly saddened by the Loafers Lodge fire and will work with MBIE and the other councils nationwide to address any improvements."

Timaru District

• Audit rate = 2.2 percent, 990 buildings
• Combined enforcement = zero

"Our identified risk profile is quite different [from Wellington's], for example, our largest private boarding house ... has 17 rooms."

Seven properties were in the higher risk category, four of them school boarding houses subject to additional regulation through the Ministry of Education. Three of these were last audited in 2019, and one in October last year. Of the other three high-risk sleeping-accommodation properties, two were audited last in 2020 and one last November.

"We carry out BWOF audits as required by the Building Act 2004."

It "has no plans to change its current ... auditing process unless required to do so by regulation".

As for enforcement, "around April last year we brought an additional resource specifically for that purpose onto staff, so we would expect for those numbers to be higher in future reports, however our approach is to continue to work collaboratively with owners to achieve compliance rather than taking a punitive approach".

Upper Hutt City

• Audit rate = 6 percent, 418 buildings
• Combined enforcement rate = "unknown" (It "did not have a reporting facility capable of accurately capturing the requested data at that time", it said)

It told RNZ staff are getting more training, such as in what to do about missed inspections.

It has recently adopted a new BWOF quality assurance policy, with audits based on risk.

"Annual audits are currently underway for commercial buildings with classified uses that include sleeping, care and/or detention e.g., hotels, care homes, schools, and early childhood centres."

It "has significantly altered the way building services operate" since 2020.

"We are reviewing this again to check we have appropriate settings in light of this tragic event."

"Council is also generally less tolerant of building non-compliance than historically."

Waikato District

• Audit rate = 22 percent
• Combined enforcement = zero

On-site audits are on a three-yearly cycle, and once a year for sleeping accommodation. Lockdowns made it hard but "all audits of sleeping accommodation buildings have now been carried out".

"We work with the building owners to get compliance. If compliance is not met, we would issue a Notice to Fix or an infringement, however, this has not been required."

"We do not plan to make any changes [post Loafers]. We work closely with building owners to ensure they are meeting compliance."