Tenancy Tribunal Developments

Since the release of the Gluckman Report we have been keeping a daily watch on Tenancy Tribunal orders to help guide clients on what level the Tribunal are ruling to.

Last week we saw the first rulings using the level of 15ug/100cm2 to determine whether a property was contaminated or not. This is still very much a developing case as we’re aware that appeals to the Tribunal are underway in a number of these cases.

With that being said, Melissa Poole recently spoke at a NZ Property Investors Federation conference in Dunedin. The article from Landlords.co.nz states:

“Tenancy Tribunal chief adjudicator Melissa Poole said it will use the 15mg level as proposed in the Gluckman report – as long as the meth test was done after the report was released on May 28 this year.”

What’s been happening behind the scenes?

There is a strong feeling from many people we have spoken to that the change in level has been done so in haste and without proper insight. One example of this is that ESR and the Ministry of Health are continuing to support a level of 1.50ug/100cm2 as stated in NZS8510:2017 and not the Gluckman report. Link to MOH comment

What we initially anticipated was that the level would be increased at the same time the RTA Amendments Bill would come in force, or a review of NZS8510:2017 would have been conducted. This review would have made the Gluckman report subject to the same peer review as the ESR report used as the basis of NZS8510. Once the review was complete the New Zealand public could be confident there would be no further changes and we could continue with the knowledge the levels wouldn’t change again in a year’s time!

In the last few weeks there has been a petition created asking for the Gluckman report to be peer reviewed. We agree that further clarifications are needed and hope that if a review is completed these will be open to public submission so we can ask, on the property management industry’s behalf, questions that will affect Tenancy Tribunal applications. We will keep you posted if this petition is successful.

Want to sign the petition? SIGN HERE

So what does this change mean for Property Managers?

There are large issues that effect the Property Management industry within the Gluckman report such us differentiating between usage and manufacture. The below extracts from the Gluckman report outline some of the issues:

• Remediation is certainly warranted if high levels of methamphetamine are present that are indicative of manufacturing activity or excessive smoking. Levels >30 μg/100 cm2 are considered by forensic experts to signify that manufacture is likely to have taken place [10]. Testing for lower levels that still suggest relatively high levels of smoking (e.g. >15 µg/100 cm2 ) could be used to identify specific areas of contamination that warrant remediation. Remediation includes removal of all potentially contaminated porous materials or items (furnishings, carpets) and cleaning of the contaminated surfaces, using the NZS 8510:2017 standard as a guide.

• Where lower levels are detected, remediation is often not justified. However, as low levels cannot definitively rule out manufacture, remediation down the 1.5 µg/100 cm2 standard may be prudent if there is also sound reason to suspect previous meth lab activities.

• More work is needed to develop guidelines around what constitutes a reasonable suspicion of the presence of a former meth lab, taking into account the changing environment of manufacturing. Similarly, a clearer definition of what constitutes ‘excessive use’, and how this is reflected in contamination levels, is warranted. ESR is currently undertaking important work in these areas.

• Guidelines are needed to support landlords in creating operational procedures and policies

ESR have advised that they are not currently undertaking work in this area and as such there is no ‘clear definition of what constitutes excessive use or what constitutes a reasonable suspicion of a former meth lab.

We had hoped these issues would have been resolved prior to the 15ug/100cm2 level adopted within the Tenancy Tribunal. As there is currently no such guidelines in existence and no work underway to clarify these points Meth Testing New Zealand will be working with our partners to provide clarification and evidence that you can use in future hearings.

Decontamination

As it is more difficult to decontaminate an area from 16ug to below 1.50ug than it is from 1.60ug to below 1.50ug we expect the cost of decontamination to increase. This being said the fact the a landlord does not have to decontaminate a property at 1.60ug is a welcome relief.

An issue that now arises is that properties requiring decontamination may not be given a Clearance Certificate from the decontamination contractor required to sign off a property as habitable. As this certificate is based on NZS8510:2017 (which has not changed) this may mean that all areas will need to be brought down below 1.50ug instead of only the areas exceeding 15ug in order to receive a full certificate. As the current standard does not align with the Gluckman report we foresee this will create an issue with the decontamination industry.

NZS8510:2017

The testing and decontamination of methamphetamine-contaminated properties Standard has not been changed. This does create difficulties for sampling companies and decontamination contractors whom use this standard as best practice. Even though this standard is voluntary authorities like the Tenancy Tribunal have used this standard to ensure testing and decontamination practices have been met to the best guidance at hand.

Here at Meth Testing New Zealand we will continue to work to any best practice guidelines to ensure we met our clients expectations of the best possible service but we will also ensure we advise you accurately of how the current rulings of the Tenancy Tribunal may impact your results. There will be challenging times ahead with the rushed adoption of the Gluckman report but it is a challenge we intend to meet.

If you would like information on anything we have covered in this newsletter please get in touch.