Referenced in legislation
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• – • – • – • – • • www.standards.govt.nz • National Standards are not mandatory unless they are referenced in legislation. • Currently provides ‘best practice’ guidance only. • Judiciary is likely to consider the Standard in its assessment of whether a party to litigation involving meth testing and/or decontamination has acted reasonably. NZS 8510 • Meth Industry Lead Standard • Workshops in 2015 to gauge support • Testing industry • Decontamination industry • Support from • Local Government NZ and • Auckland Regional Meth Working Group • Facilitated by Standards NZ • Paid for by • Government via Proceeds of Crime funding • Individual committee members Why Necessary? • Strong emotional response to the issue • Public has positively engaged with the risk • Moral panic? • Belief that acceptable levels were too low
• Economic cost to clean not supported by health risk? • Lack of industry regulation • Anybody can test for meth • Anybody can clean up meth contamination
Who is on the Committee Analytica Laboratories Andy Andersons Industrial Services Auckland Council Cleaning Systems Ltd Contaminated Site Solutions Ltd Environmental Science and Research Forensic and Industrial Science Ltd Hill Laboratories Housing New Zealand Corporation Hutt City Council Independent Property Managers’ Association Insurance Council of New Zealand Insurance Council of New Zealand International Accreditation NZ (IANZ) Local Government New Zealand MethSolutions Ltd Ministry for the Environment Ministry of Health New Zealand Property Investors’ Federation NZ Decontamination Services T/A Fresh Living
NZ Remediation Services Real Estate Institute of New Zealand • – – – Key Outcomes - Levels • Goal posts have shifted • Acceptable levels will increase • 1.5 µg/100cm2 in high use areas • 3.8 µg/100cm2 in low use areas • Definition of ‘High Use Area’ An area in a property that can be easily accessed and is regularly used by adults and children • Low Use Area examples • Roof space, crawl space under house 0.5
1.5 Key Outcomes - Testing • Standards for Testing • Screening Tests – is meth present? • Lab tested field composites • Lab composites • Validated non-reference testing • Validated instant answer kits • Detailed Site Inspection – where is it and how much? • Post Decontamination Testing – was cleaning effective? Standard Screening – Yes/No? Area x Area – Where and how much? Lab Composite – Yes/No Average + Option for Area x Area Key Outcomes – ‘Testers’ • Standards for Testers • Screening Tests • Requirement for people using kits to undergo training • Includes landlords using for their own purposes • Includes non-referenced method lab tests • Includes validated instant answer kits • Detailed Site Inspection/Post Decon Testing • Accreditation at the organisational level Key Outcomes – Decontamination • Standards for Decontamination • Driven by revised levels • Some guidance on how works to be completed • Recommendations around training • Further guidance required Not a Magic Bullet • Step in the right direction? • Definitely • Greater clarity of what to expect? • Potential for different results remains • Improved quality of service offering? • Standard is voluntary • Doesn’t stop people using meth! Potential for Differences Remains – Surface Type A Double Edged Sword • Harder to exit potentially problematic tenants? • Harder to hold people accountable? • Harder to get access to service? (Short term) • Harder to sell property? • Higher costs of service • What impact on health?
Methamphetamine – Understanding your obligations An Auckland Council perspective • Council Responsibility • Legislation that council’s use • Key points of the NZ Standard • Impact of the new NZ Standard on Council Processes • Council Process once notified • Limitations under current legislation Methamphetamine – Understanding your obligations An Auckland Council perspective Council Responsibility Every local authority must improve, promote, and protect public health within its district and if satisfied that a nuisance, or condition likely to be injurious to health or offensive, exists take steps to abate the nuisance. Councils have jurisdiction for incidents that occur on properties within their territory, apart from workplaces which fall under the jurisdiction of Worksafe NZ. Auckland Council will act when we receive a valid report of contamination regardless of source or when another government agency notifies us (e.g. NZ Police, Auckland Regional Public Health Services & MBIE). We can’t take action on hearsay. There is no legal requirement for anyone (other than another government agency) to advise council that a property is contaminated, however there is probably a legal requirement to notify owners, occupants or visitors to the property under various pieces of legislation.
Methamphetamine – Understanding your obligations An Auckland Council perspective Legislation that council’s use: ➢
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Soil to Protect Human Health) Regulations 2011 Methamphetamine – Understanding your obligations An Auckland Council perspective Key points of the NZ Standard: -
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Methamphetamine – Understanding your obligations An Auckland Council perspective Impact of the new NZ Standard on Council Processes: -
it much easier for councils to know when to accept or not accept reports as there are now clear requirements that must be followed. This is especially important for those councils who may only infrequently be notified of a methamphetamine contaminated property. -
contamination and not the other chemicals often associated with it’s manufacture. -
works will be required Methamphetamine – Understanding your obligations An Auckland Council perspective Council Process once notified: -
and remediate the property (if necessary) and provide report to council within 20 working days. A warning is placed on the Property File stating that the property is likely to be contaminated with methamphetamine. -
remediate the property and provide a report to council within 20 working days. -
the property and provide a report to council. They have21 days to comply -
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Methamphetamine – Understanding your obligations An Auckland Council perspective Limitations under current legislation: -
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unlikely in the current council environment where there is a focus on reducing legislation where possible. -
Methamphetamine – Understanding your obligations An Auckland Council perspective Obligations, Liability and Insurance Considerations for Sales Agents ▪ There is no legal prohibition on selling houses which have suspected, or confirmed, methamphetamine contamination. ▪ A real estate agent is bound by legislation and rule of professional conduct to disclose issues with houses. Obligations of Sales Agents
▪ As a licensee under the Real Estate Agents Act 2008, a real estate agent cannot rely on the “buyer beware” principle like a vendor can. ▪ If you have knowledge of an issue, the only appropriate course of action is to advise prospective purchasers. Obligations: Duty of Disclosure
▪ Rule 6.4 of the REAA Code of Conduct: A licensee must not mislead a customer or client, nor provide false information, nor withhold information that should be inlaw or in fairness be provided to a customer or client ▪ Knowing that there is a level of contamination, but failing to disclose this to purchasers, would be in breach of Rule 6.4. However, agents also need to bear in mind their obligations to the vendor, as their principal, and secure their consent to disclosure FIRST. Obligations: Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012
▪ Even if tested, and if contamination levels below the new Ministry of Health guidelines, local authority guidelines and/or the new New Zealand Standard, the fact of any contamination should be disclosed. ▪ However, you can disclose information on the guidelines which demonstrates that the level of contamination is “minor”. Obligations: Extent of Disclosure ▪ Rule 10.7 of the REAA Code of Conduct: A licensee is not required to discover hidden or underlying defects in the land but must disclose known defects to a customer. Where it would appear likely to a reasonably competent licensee that land may be subject to hidden or underlying defects a licensee must either – a) Obtain confirmation from the client, supported by evidence or expert advice, that the land in question is not subject to defect; or b) Ensure that a customer is informed of any significant potential risk so that the customer can seek expert advice if the customer so chooses ▪ If you suspect that a house is contaminated you must either: ▪ get the vendor to obtain evidence to confirm; or ▪ tell the customers that you believe there is a potential risk so that they are able to arrange testing. Obligations: Extent of Disclosure ▪ Rule 10.8 of the REAA Code of Conduct: A licensee must not continue to act for a client who directs that information of the type referred to in rule 10.7 be withheld. ▪ If a vendor refuses to disclose information that indicates the house is contaminated to potential purchasers then you must walk away from that client. ▪ Unless there is a real (immediate) risk to public safety resulting form brief exposure to contaminated areas, there is no need to inform everyone who attends an open home. Obligations: Extent of Disclosure
▪ Breach of the Real Estate Agents Act 2008 or the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012 may constitute unsatisfactory conduct or misconduct under the Act. ▪ The licensee could face disciplinary action before the Complaints Assessment Committee or the Real Estate Agents Authority. ▪ Tort: Breach of duty of care to inform purchaser and possibly FTA claim. Liability
▪ Insurance companies differ from each other in what they will or will not cover, and the conditions of cover. ▪ The best thing to do is consult with your insurance company to make sure you have cover that suits you best should you find yourself in a position where you have sold a contaminated property. ▪ Notify your insurer as soon as possible of an issue. ▪ Provided you have acted in good faith and have been open and transparent then your professional indemnity insurance should step in. Insurance Considerations
▪ However, cover can be declined for dishonest behaviour, so always be open and honest. ▪ Your obligations under the Policy must be fully met for a claim to be accepted. Meeting these obligations and managing a property sale well are the best ways to protect yourself. Insurance Considerations ▪ “Text book approach” : CAC Complaint No: C08188 ▪ What about your obligations to your vendor client? : Barfoot v REAA and Giles [2016] NZREADT 049/15 Discussions • –
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