A two-storey building was constructed in about 1960, as a warehouse with offices. Access between levels was by stairs only. In 2001 there was a change of use of the lower level for the purposes of a youth centre.
A new owner recently wanted to convert the building back to a warehouse on the lower level and offices on the upper level. The owner applied for a building consent for the alterations and advised the territorial authority of the proposed change of use.
The territorial authority refused to grant the building consent unless the building was upgraded by installing a lift. The owner disputed that decision and applied for a determination.
The matter for determination was whether the change of use meant that, under sections 112 and 115 of the Building Act 2004, a lift was required so that the building, in its new use, would comply as nearly as is reasonably practicable with the provisions of the Building Code for access by people with disabilities.
As this was a disability issue, the Department consulted the Office for Disability Issues, in accordance with section 170(b) 'Requirements for a new building'.
There was no dispute that section 118 did apply to the building, and therefore, if it were new, it would have to include features to permit use by people with disabilities.
As to whether a lift would be required:
- Clause D1.3.4(c) of the Building Code requires a lift if the building has 'a total design occupancy of 40 or more persons on the upper floor'
- Clause 188.8.131.52 of NZS 4121 requires a lift if the gross floor area of the upper floor is 400 m2 or more.
The difference arises because section 119 provides that NZS 4121 'is to be taken as a compliance document', and section 19 provides that compliance with such a document must be accepted as establishing compliance with the Building Code.
In fact, the gross floor area of the upper level was approximately 480 m2, so a lift would be required unless the design occupancy was fewer than 40 people.
The design occupancy of any floor area is generally taken as being the number of people who can be expected to be present in that area. In practical terms, this is the same as the number used to design fire escape routes, which is usually calculated from the 'occupant densities' listed in Table 2.2 of C/AS1.
In this case, the calculation resulted in design occupancies of:
- 39 for offices or reception areas
- 79 for personal service facilities, workshops or workrooms.
Possible future changes
The owner proposed to let the upper level as offices and reception areas, and on that basis a lift would not be required.
However, as the Office for Disability Issues said: 'A common criticism made by disabled people is that, over time, the actual uses to which buildings are put render them non-compliant with the Code'
Account was taken of the fact that the owner (or a subsequent owner) could, for example, replace offices and reception areas with personal service facilities or workrooms, with no need to advise the territorial authority or to provide a lift, despite the increase in design occupancy.
That is because the Building (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005 provide that, for the purposes of sections 114 and 115 of the Act, there is a change of use only if there is a change from one to another of the uses specified in Schedule 2 to those Regulations.
In Schedule 2, use WL (spaces used for working, business, or storage - low fire load) is specified as including, among other things, 'hairdressing shops, beauty parlours, places for provision of personal or professional services business or other offices - places for small tool and appliance rental and service '
It was therefore considered that, when calculating the design occupancy from C/AS1 for the purposes of Clause D1.3.4(c), the relevant design density would be the highest that could apply to the use WL. In this case, it meant a design occupancy of 79.
It was concluded that the building would require a lift in order to comply with the Building Code.
Compliance 'as nearly as is reasonably practicable'
However, because this was an existing building, the requirement was not that it must comply with the Building Code, but that it must comply 'as nearly as is reasonably practicable'.
This question involves balancing the benefits of any particular upgrade against the costs or sacrifices of installing that item. That approach has been discussed in many previous determinations and was approved by the High Court in Auckland City Council v New Zealand Fire Service  NZLR 330.
The benefit of installing a lift would be that people with disabilities could work and visit the upper level. The sacrifices would be the cost of installing a lift and the loss of floor areas available for warehouse and office use. The only practicable position for a lift, without significant structural alteration to the main stairs, would be in a standalone lift shaft inside the building, making a significant area of the ground floor unavailable for warehouse or office use.
It was concluded that, on balance, the sacrifices of installing a lift outweighed the benefits. However, the balance was a fine one.
It was determined that it was not reasonably practicable to install a lift. Accordingly, the territorial authority's decision to refuse to grant the building consent was reversed.
Whether a compliance schedule was required for a new IHC residential home.
A new IHC residential home was a single-storey detached house with five bedrooms, a study, separate lounge and family rooms, a kitchen, two bathrooms and a garage. It had an automatic fire detection system and a domestic sprinkler system, which were 'specified systems' in terms of the Building (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005. The home was erected in accordance with a building consent, and the territorial authority issued a corresponding code compliance certificate.
However, the territorial authority also issued a compliance schedule of the inspection, maintenance and reporting procedures for the specified systems. IHC responded that a compliance schedule, and therefore annual building warrants of fitness, were not required for that or other IHC homes. The territorial authority disagreed, and the dispute was submitted to the Department for determination.
The matter for determination was the territorial authority's decision that a compliance schedule was required.
That decision hinged on whether, in terms of sections 7 and 100 of the Building Act, the home was a 'household unit' or 'specialised accommodation'.
As this was a both a fire issue and a disability issue, the New Zealand Fire Service and the Office for Disability Issues were consulted, in accordance with section 170 of the Building Act.
Comments from the Fire Service and the Office for Disability Issues illustrated the policy conflict between the need for buildings to do two things.
- Section 3(a) of the Act requires that 'people who use buildings can do so safely'. In some cases, this might require additional safety precautions for people with disabilities.
- Section 3(b) requires that buildings 'have attributes that contribute appropriately to the physical independence, and well-being of the people who use them' or in the words of the Office for Disability Issues 'live ordinary lives in ordinary households'.
However, in this case the view was taken that the relevant provisions of the Act were clear and unambiguous. Therefore, there was no need to consider such policy matters, which should be discussed in the context of a possible Order in Council declaring certain buildings to be 'specialised accommodation'.
The section 7 definition of 'household unit' excludes 'a hostel, boarding house, or other specialised accommodation'. Specialised accommodation is defined as 'a building that is declared by the Governor- General, by Order in Council, to be specialised accommodation for the purposes of this Act'. No such Order in Council had been made, and therefore it was not possible to say that anything other than a hostel or a boarding house was 'specialised accommodation' for the purposes of the Act.
It was also decided that the terms 'hostel' and 'boarding house' could not properly be applied to the IHC house.
As the building could not properly be described as specialised accom-modation, it had to be accepted as being a single household unit for the purposes of section 100 of the Act, and therefore would not require a compliance schedule.
However, although the building was not required to have a compliance schedule, it did need certain fire precautions, including certain specified systems. Regular inspection and maintenance of such systems was vital to ensure they could be relied on throughout the life of the building.
It was determined that the building did not require a compliance schedule. However, the decision must be read subject to any future Orders in Council declaring such buildings to be 'specialised accommodation'.
To read all the Determinations in summary or in full, go to: http://www.dbh.govt.nz/determinations