Jun 15, 2012
In 2004 the Building Act of 1991 was repealed and new legislation was enacted by the NZ Government. The purpose of the new Act is stated as being to set up a licencing regime for building practitioners and for the setting of standards for such things as safety to ensure the health of building users and to promote such things as sustainability of design and ease of access on the advent of fire and other calamities.
The interesting thing about these purposes however is that the existing act of 1991 had exactly the same purposes. They were stated in a different way but at the end of the day identical purposes were intended.
What the new Act doesn’t do that the 1991 Act did do was appoint the Building Industry Authority. The new Act appointed the Building Consent Authority (“BCA”) and the Building Territorial Authority (“BTA”) instead. The Authority under the 1991 Act was empowered to grant accreditations in respect of building processes and products. In other words any weatherproofing system or product or way of doing something in regards to those systems and products had to be approved by the BIA.
The 2004 Act has divided the various functions which were performed solely by the BIA under the 1991 Act into two areas of compliance and institution. The BCA sets the standards while the BTA ensures that those standards are carried out. Despite the fact that there are two separate areas of responsibility within the Act the tasks are the same as were carried out by the BIA under the old Act. An in depth examination of the two Acts to compare them results in the conclusion that there was little reason, if any, to change the Act.
Or was there no reason?
In 2000 problems started to appear in homes which had been constructed using monolithic cladding. While the types of cladding varied the method of construction didn’t. The BIA had approved a building system which attached the cladding directly to the framing of the house on top of building paper. The internal linings were then attached to the framing on the inside of the house. The BIA had failed to specify that a cavity should be allowed between the framing and the cladding to ensure that air flowed around the framing. This cavity was important, firstly to ensure that moisture which was already present in the framing at the time of construction evaporated off. Secondly a cavity was vital to ensure that water and moisture which later permeated the outer layer of the house evaporated off without doing damage to the wooden structure of the dwelling.
It was apparent at an early stage of the leaky homes saga that the lack of a free flowing air cavity was the issue in regards to the houses which were rotting. While water was getting into the houses by virtue of some poor finishing, particularly around windows and roofs, the underlying problem was that the lack of a cavity meant that the water wasn’t able to evaporate off which eventually rotted the framing. This would never have happened if a free flowing air cavity had been specified by the BIA. Homes which were traditionally built in New Zealand, using a weatherboard and framing construction had free flowing air cavity built into that process. The weatherboards were nailed to 2x2 timber lengths which in turn were nailed to the 4x4 timber framing. This system provided plenty of air between the framing and the weatherboard cladding. Any water which entered the space between the framing and the weatherboards was evaporated off before it had an opportunity to rot the framing.
It was realized very early on after 2000 that the houses which had been built without a free flowing air cavity were going to rot. While it was going to take sometime for some of the houses to decay due to the level of borax treatment in the wood, decay was inevitable. All of this was as a direct result of the BIA failing to do its homework on monolithic cladding. All of this was as a result of the BIA failing to specify that all homes built with monolithic cladding had to have an air cavity. For the sake of a few extra dollars and some research the BIA had effectively contingently cost New Zealand home-owners billions of dollars in repairs. All the homes which had been built using the BIA approved method of construction were going to rot.
So what did the government of the day do? Fess up and tell the New Zealand people that a mistake had been made by the government and that the government would put it right?
Admit to the New Zealand people that its government appointed body was the culprit and would take the blame? Start budgeting for the billions of dollars which it was going to have to pay pursuant to its statutory arm making an awful error?
Not on your nelly.
What the government did was a travesty and something of which we as New Zealanders should be ashamed. If any of our kids had done what the New Zealand Government did we would be ashamed of our children and deduce that we had not brought them up to know what is right from wrong.
The New Zealand government not only repealed the Building Act and disbanded the BIA in the process but it blamed shoddy builders for the issues which had occurred. It left the massive problem of fixing the problems to private industry and the Councils. It not only washed its hands of the problem but it stood by and let others take the blame for its own shortcomings. One could liken what the government did to somebody stealing money, blaming somebody else then standing by and watching that person being convicted and going to prison for a crime they didn’t commit.
Attempts by several homeowners to bring the New Zealand Government to account on what has happened have failed. The Courts simply don’t have the power to rule in regards to legislation which has been repealed and a statutory body which no longer exists. Basically the New Zealand government have gotten away with making a massive error costing billions of dollars and not having to make amends. Our legal system is in many ways fair and transparent. Our Judiciary is on the whole robust and equitable in the way it deals with the application of the law. Parliament is generally well intentioned in the way it executes its responsibilities as the elected law maker. There are however times when such is not the case. In regards to Parliament it is suggested that in regards to the Leaky Homes situation this is one of those times.