AN OPEN LETTER TO THE MINISTER OF JUSTICE

 AN OPEN LETTER TO THE MINISTER OF JUSTICE

EC-Ministry-of-Justice

Appeal for access to justice for Canterbury earthquake claimants


“THERE ARE TWO LEGAL SYSTEMS: ONE FOR THE RICH AND POWERFUL, AND ONE FOR EVERYONE ELSE.”
(Elizabeth Warren, US Senator for Massachusetts, 2016)


Dear Minister

You recently gave a speech at the Law Foundation Awards Dinner in Wellington on improving access to justice. Your comments focused mainly on criminal law, but you also mentioned in passing that many rights are not enforced because of the cost of pursuing civil claims in the courts. As the coalition government works to find ways to resolve the remaining claims, we would like to examine some of the obstacles to justice for earthquake claimants in Canterbury, discuss how these obstacles could be removed, and consider the long-term consequences for New Zealand as a whole from the Canterbury earthquake recovery.

PART A: Obstacles for claimants:

1) The adversarial system
In March 2016, Justice Stephen Kós, who is one of the Earthquake List judges, outlined some of the shortcomings of the New Zealand legal system and the difficulty in gaining access to justice[1]. He pointed out that New Zealand was ranked in ninth place in the World Justice Project Rule of Law Index metric for civil justice, and that all of the countries above it (bar one – Singapore) were civil law countries with more inquisitorial systems of civil justice. He went on to contrast the objective of the latter systems, namely the “revelation of the truth”, with the adversarial system, which is “not necessarily concerned with the identification of truth”.

The government is now looking to establish an earthquake tribunal, but no information has yet been released about what format this might take or what legislative changes would be required. Up until now, the process of suing the Crown entity EQC, the government-owned Southern Response, or a private insurer for an earthquake claim has been a long and protracted one. Apart from legal professionals, the claimant needs to engage the services of at least four different experts: a professional surveyor, a structural engineer, a geotechnical engineer, and a quantity surveyor. The onus is also on the claimant to prove their loss. In practice, this means that the defendant is able to make extravagant claims, which must then be disproved by the plaintiff. By way of example: the Christchurch High Court heard one case where the defendant claimed that damage to a house was caused, not by an earthquake, but by wind or by a flax bush[2]. In many earthquake cases, the more serious underlying problem is land damage, which both the Earthquake Commission and private insurers have made strenuous efforts to avoid addressing. Many “as-is” properties have been sold that are on land at high risk from erosion or flooding as the result of earthquake subsidence. Empowered Christchurch has repeatedly emphasized the importance of determining the condition of land and the damage that has occurred to it before either repairing or rebuilding homes. This was rendered impossible in the rebuild because the EQC only began to compensate claimants for land damage in 2015. The full facts about how badly some areas of land have been affected are only emerging now, with the government’s focus on climate change, and the acknowledgement that parts of Christchurch experienced the equivalent of 80 years of sea level rise in terms of the risks from flooding and erosion.

The High Court Declaratory Judgement in December 2014 involved two intervenors on behalf of residents, and two amici curiae. However, there was no representation for coastal residents, who have been worst affected by the EQC approach of making diminution in value payments without either mitigating or eliminating the risks posed by flooding and liquefaction. Many claimants who have received DoV payments for increased flooding vulnerability may lose access to insurance cover in the future if their properties experience repeated flooding.

2) Hearing charges in the High Court
A substantial number of earthquake claimants cash settled with their insurers simply because they could not afford the cost of High Court litigation.

Low-income and vulnerable earthquake claimants are seriously disadvantaged in the New Zealand justice system. A private individual must meet costs for lawyers and solicitors, expert reports and filing charges, with no prospect of reimbursement of even part of these costs until a final decision is reached in court.
A further obstacle is hearing fees: these are currently $3,200 per day in the High Court, $2,700 per day in the Appeal Court, and $1,000 per day in the Supreme Court.
In 2013, the New Zealand Law Society argued against the increase to the fees at that time: “High Court fees for these proceedings should remain unchanged. It should not be forgotten that the judiciary are the third branch of government. The public is entitled to have access to the courts as a fundamental part of our constitutional structure. Fees that create barriers to access are arguably unconstitutional.”[3] The fee increase was also criticized as being revenue-driven on the part of the government, but was nevertheless implemented.

Other systems for defraying plaintiff costs, such as litigation funding and class actions, are still in the development stages in New Zealand, and subject to various rules and regulations. On this subject, the New Zealand Law Society quotes Liesle Theron, a litigation partner at Meredith Connell: “Access to justice is repeatedly identified as a critical issue for the profession. I see group litigation and litigation funding, separately and in combination, as powerful tools that can provide part of the solution”.[4] Facilitating these options would also help to redress the balance.

 

3) Court procedures
After waiting for periods of up to 2 years and more for a date in court, a number of earthquake cases have been adjourned because insufficient time was allocated to hear the evidence.

Adjournments can mean a further delay of up to 9 months. This further obstacle could be avoided if a minimum period of, say, 12-15 days, was allocated to hear each case. If cases are concluded in a shorter period, other cases can be brought forward.

Of the 45 High Court judges available, only a small number (8 since the “fast-track” system was established) have been assigned to hear earthquake list cases, and the vast majority of cases so far have been heard by just three judges.

Conflicting expert reports are often provided by the defendants and by the plaintiffs. However, many of the reports submitted by the defendants in earthquake cases contain waivers, asserting that the authors take no liability for the contents of the report. This should render the report useless as evidence, since the essential purpose of a structural engineering report or geotechnical report is to provide a foundation solution for the repair or rebuild of a particular building. If the author takes no responsibility for the content of the report, its proposals cannot be relied on for the actual building project in question.

A further obstacle for claimants is that insurance companies have recently attempted to exclude professional surveyors from joint expert meetings[5].
As mentioned above, this excludes consideration of land damage. Compliance with Building Code sections E1 and E2, Flood Management Area requirements, drainage design, secondary flow paths, and flood resistance are consequently all omitted from the evidence. These aspects are of critical importance for the proposed solutions from structural engineers and geotechnical engineers.

The principle of judicial impartiality needs to be strictly observed. To avoid any appearance of a conflict of interest, judges who serve in the High Court earthquake litigation list should have no association with the defendants (the Crown entity EQC, the government-owned Southern Response, or private insurance companies) to avoid any conflict of interest. For example, judges who have previously served as Crown prosecutors should not be hearing cases where a Crown entity or Crown-owned company is the defendant.

 

4) Limitation period and excessively long waiting periods
− “Justice delayed is justice denied”

After seven years, the Earthquake Commission is still transferring claims to private insurers. The total number of unsettled over cap claims was 2,912 as at the end of June 2017. A number of private insurers are now starting to use the limitation period to deny their liability. This is a shameful abandonment of both their responsibility to policyholders and their liability for earthquake claims. The reason for the seven-year delay in settling claims has been a process of delay on the part of the EQC and private insurers, rather than claimants. In 2016,  Empowered Christchurch appealed to the then Minister of Justice, Amy Adams, to extend the limitation period for earthquake claims. Our request was declined. In view of the fact that many of the delays stem from misinformation and/or incompetence on the part of government ministries[6], in the past, we believe there is a strong argument for extending the limitation period as we requested last year.

Even those insurance claimants who have filed proceedings have seen their resources drained over a number of years. The more protracted the waiting period, the more heavily the scales of justice are weighted in favour of insurance companies with deep pockets and massive resources. The “fast-track” approach for earthquake claims that was set up in 2012 by your predecessor, Minister Judith Collins, currently involves waiting up to 18 months on average between filing and obtaining a date in court. General proceedings take an average of 381  days to conclude.[7] One claimant reportedly has been waiting for more than 2 years since filing and has still to obtain a court date.
The substantial legal fees involved have driven some despairing claimants to represent themselves when taking their case to the High Court, a procedure that is fraught with risk for private individuals with no experience of the complexity of regulations and procedures.

5) Low income/low-education/vulnerable claimants
Many claimants are overwhelmed by the mass and range of technical detail and jargon involved, which ranges from the provisions of their insurance contract to the various expert reports and legal correspondence. Elderly people living alone are especially affected by this and are more likely to be pressured to cash settle by their insurance company. Claimants have been subjected to mental, emotional and economic pressure and this is reflected in the increased statistics from the Canterbury District Health Board and social services for family violence, divorce, mental illness and suicides (see below).

PART B Consequences for New Zealand from the obstacles to access to justice in Canterbury

1) Long-term social costs (health, mental health)
Despite the relatively small number of claimants who have litigated, more than $1 billion is currently being claimed in the Christchurch High Court. A large number of additional claims are expected in the New Year, in particular against the EQC for failed repairs and so-called “diminution of value” settlements for land damage from subsidence and liquefaction. The seven and a half years since the first earthquake have seen a steady increase in the amount of earthquake litigation and the work for judges, barristers and solicitors, but the protracted procedure involved is costing the New Zealand economy. Aside from the excessive burden it places on the justice system, and the energy and resources being devoted to earthquake litigation that could more usefully have been deployed elsewhere, there are long-term costs for society that will only become fully apparent in the years to come. These include duplicated effort and expense for failed repairs (in many cases tax payers’ money through EQC activities), short-term solutions for housing and infrastructure that will have to be revisited, the health and social services costs mentioned above, insurability issues, and missed days of employment.
We believe the impact on health is one aspect of the Canterbury earthquake recovery that has not received enough attention. In the last year reported, the region saw 76 suicides, almost twice the figure in Waitemata, an Auckland health district with a roughly similar population to Canterbury. Over the same period, there were 2,800 police callouts in Canterbury because of attempted suicides. A local health practitioner, in a submission to the Christchurch Annual Plan in 2017, described a spike in referrals in the eastern suburbs for mental health counselling. It is more than likely that there is a correlation between these figures and the poor quality of life, substandard housing and the mental, emotional and financial pressures many people have been exposed to in pursuit of a fair insurance settlement.

2) Loss of faith in government, the justice system and the insurance industry
The previous government has been responsible for many of the complexities and delays in the search for justice following the Canterbury earthquakes.

Claimants see themselves pitted against the forces of central and local government, allied to the insurance industry. Against such formidable opposition, they ask themselves if is there any chance of justice. Securing competent and effective legal representation has also been a challenge for many. A number of litigation cases have foundered on the rocks of legal incompetence and poor preparation. A very small number of modest law practices represent the bulk of earthquake claimants. Insurers and the Crown defendants, on the other hand, are represented by the biggest and most expensive law practices in the country. So the question is: can individual claimants have faith in the justice system?

Various organisations have emerged over the last five years with the purported aim of advising or advocating for earthquake insurance claimants. The most prominent example is the Residential Advisory Service (RAS), which at its launch received $325,000 from New Zealand insurers, immediately signalling that its role would be as an advocacy service for insurance companies to reduce the number of cases going to court. The fact that this organisation was heavily promoted and funded by central and local government and private insurers did not and does not inspire a great deal of trust, and a number of Canterbury earthquake claimants have stated that consulting the service proved an inordinate waste of time. The service is now controlled by a government ministry (MBIE, which also produced guidelines that have been used to circumvent the standards in the EQC Act and in private insurance contracts, thereby denying thousands of claimants repairs and rebuilds of the proper quality, and saving the government and private insurers many millions of dollars). It is therefore concerning to learn that the government recently decided to provide RAS with an additional $700,000 in funding. Since the Earthquake Commission and Southern Response, two of the leading defendants in the earthquake litigation list, are a Crown entity and a government-owned insurer respectively, this is tantamount to a judge providing assistance to the defendant in a trial. The “arms length” principle applied to business transactions is of even greater importance in a judicial context. In essence, the government is using taxpayers’ money to fund an organisation dedicated to steering claimants away from litigating against the government itself.

 

Conclusion:
We believe the most immediate steps that the government could take to resolve the outstanding earthquake claims are as follows:

  • Extend the limitation period for earthquake cases (only) to give claimants improved access to justice and the opportunity to pursue their claims in the courts
  • Assign additional judges to deal with the growing backlog of earthquake list claims
  • Apply a minimum period of 12−15 days for each claim
  • Ensure that land information and reports from professional surveyors are included as evidence, both to ensure compliance with the Building Code and to address land issues such as subsidence, erosion and increased flood risk
  • Reduce High Court hearing charges, and increase the threshold for legal aid for individual claimants
  • Withdraw funding for the Residents’ Advisory Service or establish a service that is genuinely independent of government and insurers
  • Amend current regulations to facilitate litigation funding and group/class actions

 

Kind regards
Empowered Christchurch Inc.

[1] Address to the Arbitrators’ & Mediators’ Institute of New Zealand and International Academy of Mediators Conference

[2] https://www.radionz.co.nz/news/national/255745/house-damage-blamed-on-wind,-flax.
[3] https://www.youtube.com/watch?v=3M80qVP3Lrg
[4] https://www.lawsociety.org.nz/news-and-communications/latest-news/news/seven-litigation-funding-services-in-nz

[5]https://forms.justice.govt.nz/search/Documents/pdf/jdo/32/alfresco/service/api/node/content/workspace/SpacesStore/2671ab4a-95eb-427f-b391-9ef4495ea439/2671ab4a-95eb-427f-b391-9ef4495ea439.pdf)

[6] MBIE guidelines, for example, which fall well short of insurance policy entitlement; inadequate insurance scopes based on the latter; lack of guidance from ministries on the applicable standards; delays from relying on advisory and advocacy services funded by insurers government, etc., etc.

[7] http://www.otago.ac.nz/legal-issues/research/otago642539.html

Existing Use Rights – Sustainability or a hazardous future

Invitation

Guests: Helen Beaumont, Head of Strategic Planning, Christchurch City Council

Councillor David East, Chair of the Regulation and Consents Committee, Christchurch City Council

Audience: 23 residents

Summary:

Part A: Council has been applying Existing Use Right inappropriately, without following the process set out in the Resource Management Act, ignoring its own recommended procedure, ignoring MBIE guidelines on floor levels with EURs, and ignoring legal advice about development in high hazard areas.

Summary Part B

Council has been working against ratepayers in the interests of insurance companies and very few houses have been rebuilt to the correct height or repaired to the correct standard. However, Council’s role is irrelevant in terms of the relationship between claimants and insurer and claimants and EQC. Homeowners should get expert advice and insist on their entitlement under their insurance policy and/or the EQC Act.

Summary Part C (includes presentation)

CERA promised that houses would be rebuilt to the correct, safe heights.

900 properties in Christchurch are at high risk of flooding. The tidally influenced area extends much further than Council has admitted and rising groundwater and constant erosion poses a huge problem that has not been addressed.

Part A

Séamus welcomed everyone, introduced the speakers, and began with the background to the meeting. A meeting had been held with the Mayor on Council premises on 6 April 2016 to discuss various issues, including existing use rights, stop banks, and the old and vulnerable in the community. On that occasion, the Mayor had argued that Council had no legal basis for blocking the use of existing use rights. Another meeting with a Council team followed on 26 April, following the discovery of the discrepancy in flood modelling for the area north of Bridge Street in South Brighton. The explanation given at that time was that the 50 cm difference in floor levels between the two areas was a “revised assumption”, rather than a colossal mistake. Council originally estimated that only seven or eight houses were affected, and has subsequently revised the number downwards to five. As an outcome from the meeting, Council undertook to contact the people involved, to revise the incorrect PIMs, and to notify the insurance companies.

Empowered Christchurch established that it did not contact one of the people involved for almost a week, and none of three insurance companies that were contacted a week later had heard anything on the subject, either from Council or from ICNZ (the Insurance Council New Zealand). Following the meeting, Council then reneged on its commitment to a follow-up meeting, and instead told Empowered Christchurch to direct any future enquiries to an e-mail address that was not active (and is still not active). They also said that any further enquiries would be treated as local government official information act (LGOIMA) enquiries, exhibiting signs of a cover-up in progress. (The council web page on floor levels was hurriedly edited in the same week, and now advises homeowners to build at higher levels. A video with a similar message was posted featuring Mr Peter Sparrow, Council’s GM Consenting and Compliance.)

 

The two pieces of legislation that are important in the context of EURs were explained:

The Resource Management Act and the Building Act. The minimum floor level under the latter is 11.8 m, and 12.3 m under the former. [1]

Existing use rights is only defined under the Resource Management Act (RMA). An application procedure is set out that leads to the issue of an existing use rights certificate. Certain criteria must also be met for a property to qualify for existing use rights. Over the last five years, council has unilaterally declared EUR to apply to properties, with no reference to the RMA, and with no evidence requested or provided. In all of the cases that Empowered Christchurch is aware of, no existing use rights certificate has been issued.

 

Séamus then quoted from five examples that specified the process and requirements for EUR and advised against development in high hazard areas, some of which dated from as far back as 2010:

 

1) A Council senior planner (Kent Wilson) had detailed the 2 options for re-establishing a building in February 2012 (“either by demonstrating that existing use rights apply, or obtaining a resource consent”)

 

2) Legal advice[2] advising that development in hazardous areas should be prevented or restricted

 

3) A Council newsletter advising that the higher floor level (12.3 m) be applied for filling in flood management areas (FMAs)[3]

 

4) A Council newsletter acknowledging that the higher floor level was needed in more flood prone areas and that the one-in-50 year floor height under the Building Act was “not adequate”[4]

 

5) MBIE Guidance stating that, if existing use rights were applied, levels had to be at or above the Building Act 2004 level (11.8 m).[5]

 

In the vast majority of EUR cases, Council has wilfully ignored these guidelines and advice, and allowed building at substantially lower levels that benefit insurance companies and leave homeowners with a high risk of flooding.

 

Séamus concluded with a quote from Lianne Dalziel MP, writing to Tony Marriot in 2011, and detailing the risk of leaving residents with homes that were uninsurable against flooding. This underlines the fact that all these risks were already known and were being discussed in 2011, yet the decision was then made to transfer both risks and liability to residents.

 

Part B

Adrian Cowie then discussed the relationship between policyholders and their insurer, and between policyholders and the EQC. He pointed out the difference between a homeowner voluntarily requesting the application of existing use rights, where there is personal, individual control, and the way it has been used under insurance policy relationships. He emphasised that Christchurch City Council had no role to play in these relationships, which were governed by the specific insurance policy on the one hand, and by the EQC Act on the other. Under the Building Act, no action is required for a building damaged by an earthquake. However, this is not the case pursuant to the Earthquake Commission Act. When introduced, MBIE guidelines proposed repair standards that were well below what was required under the EQC Act and most insurance contracts.

He argued that Council has nothing to do with whether a building needs to be lifted because of settlement from the earthquakes. Adrian had requested Peter Sparrow to withdraw the video mentioned above, where the Council’s General Manager, Consenting and Compliance, had claimed that only five houses were affected. This is because floor levels and building height are crucial factors in every insurance policy claim (as new/as when new). Despite multiple requests for Council to issue a statement that they have no role in setting the standard for insurance policies, it has consistently refused to do so. This, he felt, was quite a shocking approach from an elected City Council. MBIE agreed to publish a statement of this kind on its website, explaining that its guidance does not apply for insurance policies.

As regards existing use rights, insurers have been saying “we don’t need to lift your house because we have existing use rights”. They have also used MBIE guidelines as an excuse not to lift, but only to repair foundations. This is incorrect. If a building was not flood-prone when new, and has settled in height and been damaged, it must be restored to a non-flood prone status after the damage has occurred. So Adrian’s advice was to ignore anything from Council and focus on the claimant’s individual entitlement under the insurance policy or pursuant to the EQC Act. The respective standards in each are what is definitive, not what the Council says.

 

At a recent surveyors’ conference here in Christchurch, UN Margareta Wahlström, the head of the United Nations Office for Disaster Risk reduction (UNISDR) singled out urban flooding as the greatest global risk to communities over coming years. This is very relevant to the Christchurch situation, where there has been significant land settlement and areas are now exposed to extreme flood risk. Despite this, CCC, EQC and Council are claiming that everything is fine and that buildings do not need to be lifted. Adrian reminded listeners that many New Zealand insurance policies (before the earthquakes) had no limit to the cost of reinstating buildings (no limit to the sum insured). Yet in the South Brighton area, almost no buildings have been raised to the 11.8 m, never mind the 12.3 m floor level. Of the properties in the South Brighton area that have been recently surveyed, and presumably rebuilt, almost every single one now has a hazard notice. This transfers the risk of flooding and erosion from insurers and Council to the homeowner. This is happening in Christchurch, which is ironically a member of the so-called “100 resilient cities” group.

 

Council has also been holding what appear to be secret meetings with insurers and PMOs since the earthquakes. There has been absolutely no evidence of Council actively trying to help ratepayers.

 

Land claims and diminution of value:

From the declaratory judgement, it appears the High Court allowed EQC to use the Diminution of Value in the absence of any evidence to the contrary provided by the owner.

So if your land has sunk and you can prove the fact, Adrian argued that EQC was obliged to lift it to at least its pre-earthquake height. In almost every case, the cost of this would be significantly more than the DoV payment. A further complication is that, in the future, if we have another earthquake, EQC cover could be refused because you did not spend an earlier DoV settlement to remediate your land.

 

In conclusion, Adrian recommended obtaining expert advice on land settlement to oblige EQC to restore it to the original height.

Similarly with house claims, he advised getting expert advice, expensive though it may be EQC is reimbursing owners their expert fees where these have shown EQC’s assessments to be in error. Under the EQC Act, the standard of repair is extremely high, and in most cases, it has not been met or assessed to the correct standard.

Likewise, many private insurance assessments have assessed to the wrong standard, so it generally pays to obtain your own, expert advice.

In summary, existing use rights in relation to floor levels and minimum flood heights are irrelevant in terms of an insurance policy. You cannot have existing use rights to rebuild a house lower and in a flood-prone or more flood-prone condition than it was when new, since this contradicts the “as new/as when new” definition in the insurance policy. Council’s rules or exemptions have no role to play in this.

 

Part C

June Presentation EUR_Land_Page_01

In the third presentation, Hugo displayed a series of documents and maps, contrasting the original intentions with the “recovery” and what was actually implemented in practice.

June Presentation EUR_Land_Page_02

In the first brochure, CERA stated that 11.8 m as a minimum floor height was insufficient in the flood-prone areas in Christchurch and that 12.3 was more appropriate. CERA also stated that it was working with the insurance companies to ensure houses would be raised to the correct level. June Presentation EUR_Land_Page_03
A CCC newsletter stated that existing use rights might apply for a rebuild on exactly the same footprint “so long as this was at or above the Building Act height” (1-in 50-year flood event = 11.8 m).

In a tidally influenced area, the higher RMA floor height should apply (12.3 m).

June Presentation EUR_Land_Page_04
A CCC document from October 2012 showed houses before and after the earthquakes, with the new houses having been raised to a safe level. This comforting scenario did not eventuate. He reminded the audience that the current minimum floor heights are 11.8 m under the Building Act, and 12.3 m under the Resource Management Act.

 

On the subject of land:

June Presentation EUR_Land_Page_05
Maps were presented showing the area of land with groundwater at less than a metre below the surface. This covered a substantial area (including both red and green zones to the east and west of the lower Avon. Under these conditions, land has started to erode from underneath.

June Presentation EUR_Land_Page_06
An EQC map highlighted the houses that were below the high tide mark. Hugo had questioned Gerry Brownlee on this subject at the Earthquake Forum back in 2013, but the Minister had then denied that any houses were below the high tide mark and repeated this assertion later on RNZ. The map shown was published with the IFV documentation from EQC and can be found on the EQC website. 11.2 m is the elevation given for the high tide (10.8 m plus 40 cm freeboard).

June Presentation EUR_Land_Page_07
A further LiDAR map showed much the same area for houses situated below the high tide mark. The original map colours had been adjusted to show differences in elevation more clearly.

 

A member of the audience asked for an explanation of the high tide mark. Hugo explained that the term generally used was “mean high water spring”, which is the average level for successive spring tides[6]. A follow-up question asked if the property would flood if it was below that mark. Hugo explained that several different factors came into play, such as groundwater and tidal influence. While some risks were gradual and could be lived with, others were more problematical.

 

June Presentation EUR_Land_Page_08
The next map was published by Dr Jan Wright, Parliamentary Commissioner for the Environment. This identified properties at high risk of flooding, the most immediate risk that New Zealand will have to face from climate change. Once again, the same contours in the lower Avon were visible as on the previous maps. The Commissioner estimated that there were 900 properties in Christchurch at the 11.2 m level or lower, and which were therefore at risk of flooding. Such houses, especially those close to the river, will have a very short lifetime in the face of rising sea levels.

 

June Presentation EUR_Land_Page_09
A recent Council map identified the red zone area, and also the low-lying green zones, some of which have also extremely high groundwater. This map also defined the tidally influenced area, yet the City Council has asserted that only an area as far as Admiral’s Way in New Brighton, but not beyond, is tidally influenced. This is patently incorrect, since a lake appears much further into the City on Avonside Drive at high tide and disappears at low tide. This demonstrates that the tidally influenced area extends much further upriver. Even six years after the earthquakes, Council has made no plans for this fact. The latest information suggests that this situation may drag on until 2021. Most of Christchurch is tidally influenced, and not only the coastal area. Given that a large part of the city has sunk, the incoming and outgoing tide is also removing a large quantity of land each day.

 

June Presentation EUR_Land_Page_10
The next maps, a set of three, showed groundwater boreholes at 20 m, 70 m and 100+ m from the river. The closer to the river, the greater the fluctuation in groundwater between low and high tide. In the light of rising sea levels, groundwater will eventually come to the surface, and sooner rather than later in the areas closer to the river. One way to address this problem, as recommended in the coastal policy statement, is to build relocatable houses, plan to remain for a short period, and then move elsewhere.

 

June Presentation EUR_Land_Page_11
The next slide was a statement from Martin Manning, an expert on groundwater and climate change. Studies show that coastal groundwater is directly connected with sea level rise. In Florida, groundwater has now reached the surface in some low-lying areas. A rise in the water table, which we have had here because of the loss of land height, automatically increases the flood risk. According to Civil Defence, the risk of flooding is currently much higher than the risk of earthquakes. With such high groundwater, there is no additional storage available in an extreme weather event.
June Presentation EUR_Land_Page_12
A further point was that, bizarrely, EQC’s flood modelling for increased flooding vulnerability (IFV) uses a bathtub model, which makes no allowance for storm surge (freeboard) and has no margin for error. Hugo reminded listeners of the massive erosion that followed last week’s storm in Australia as an illustration of how foolish such an approach is.

 

June Presentation EUR_Land_Page_13
A conference of New Zealand planners earlier this year asked the following questions:

  • Can we plan for a change?
  • Protect, accommodate or retreat?
  • Will the poor inherit the shore?

 

Closed groups of authorities have been planning for our future, without any involvement of the communities and without any dialogue process.

 

Further manoeuvring on the part of the authorities:

The natural hazards chapter in the Replacement District Plan was removed in September 2015. According to the latest information, Hugo believed that some of the authority of the Independent Hearings Panel for the Replacement District Plan would be transferred to Christchurch City Council to pass using the Resource Management Act. There has been no information about what changes are planned or when they will take place. Six years after the natural disaster, there is absolutely no excuse for further delay.

 

The next slide was from a senior council planner, who stated the following:

“There will be a level of trust between us, as a public body, and the community that we serve that says they are trying to do the right thing. We’ve got a point where there is a problem. We haven’t nailed the social impact of what it means to take away what, at the moment, is 17,000 households’ biggest asset. And the societal impacts are pretty huge.”

So the new hazard notices on properties basically constitute a removal of assets. Hugo called on the audience to make a careful and educated decision when deciding on their future.

 

The planner concluded by saying: “So it’s easier to put a rule in the plan that says you can’t live here any more. That might help someone, if they’ve got somewhere else to live. But I don’t believe that any rule is going to take away someone’s home unless we can provide them with viable alternative options to live somewhere.”

 

June Presentation EUR_Land_Page_14
The final slide was sent to CCC by Hugo in 2012. It pointed out that inaccurate flood modelling and EUR have created this situation where housing is being made uninsurable.

 

A Q&A session then followed. A question was asked about the Empowered Christchurch template letter to Council, stating that the homeowner would not accept existing use rights requested by a third party. Hugo said that while this had been effective, promotion of the declaration on the part of Council would have been more welcome. The representatives from Council were asked if this could be done. Councillor David East stated that he was Chair of the Regulation and Consents Committee at Council, but that “we don’t get involved in the day-to-day work of building consents”. He also said that he was not aware of any houses that had been built below the 11.8 Building Act level. He added shortly afterwards that, according to the information he had been given, not more than 5 houses had been built below the correct level.

 

Helen Beaumont “freely admitted” that Council had “got it wrong” in its flood modelling for the South Brighton area. [Despite this, the 79-year-old lady in Bridge Street interviewed last month by RNZ’s Checkpoint programme has recently been told by Council that it considers her floor level of 11.27 m above the Christchurch City Datum is adequate to protect her against flooding. This follows the Mayor stating at a press conference that no compensation would be paid to the affected homeowners, followed by the Deputy Mayor claiming in an interview on Newstalk ZB that this report of what the Mayor had said was not, in fact, correct.]

 

The discussion continued for some time, but with little new information coming from the Council representatives.

Two additional slides were added to the presentation following the event, before the presentation was forwarded to elected members of Council.

June Presentation EUR_Land_Page_15
June Presentation EUR_Land_Page_16

REF: https://blog.johnrchildress.com/2014/05/04/king-canute-and-culture-change/

[1] (Séamus incorrectly stated that the 11.8 m under the Building Act applied for all of New Zealand, but of course, different areas will have different elevation and different tidal influences, so there are variations. 11.8 m is the minimum floor level in Christchurch pursuant to the Building Act. This inaccuracy was later corrected by Helen Beaumont.)

[2] Simpson Grierson legal advice to Local Government New Zealand in June 2010 (“The RMA provides councils with a comprehensive mandate to prevent or restrict both new developments and the extension of existing development in hazardous areas.”)

[4] “In most, but not all cases, it will be obvious which of these two levels [EC: 11.8 or 12.3] is the higher level, and therefore the dominant criteria (sic). These are not rules but effectively default positions.”

 

[5] “If a house is to be rebuilt on exactly the same footprint as before, existing use rights under the Resource Management Act to rebuild at the original floor level are likely to apply, so long as this is at or above the Building Act 2004 – one in 50 year flood level plus freeboard.”

 

[6] Popularly known as “king” tides, which occur every 14 days or so

A sample letter to the Building Consent Authority

MBIE has worked with two project Management Offices (Insurance Companies) and have recommended the following.

“Maximise use of Schedule 1 exemptions”  As can be seen on page 4 in this document.

We disagree that the insurance companies are allowed to advise our regulatory authority.

Their main interest after the damage has occurred will always be to reduce cost. This can allow cutting corners in the building process, cause unsustainable practices and transfers undesirable  liability onto the homeowner.

This is a sample letter that people can use to ensure risk and liability is not transferred onto them without their knowledge. This letter does not stop or hinder anything. It just makes sure you are kept informed. Following this notification you are in a position to negotiate and decide if you accept this risk or not. This is not legal advice. Feel free to copy, share and modify to suit your own circumstances.

Click here to use our online letter template 

 

Christchurch, Date: ____________

 

Attn: Christchurch Building Consent Authority.

 

Notification of restrictions to the building consent requirements for my property located at

________________________ .

As the owner of this property, which is subject to reinstatement under an insurance contract, I hereby make the following declaration:

If a consent application has been submitted for my property, please withdraw it immediately and notify the applicant of the following restrictions.

The reinstatement should be conducted by a third party without any significant involvement by myself, since I am not a qualified builder, will not oversee the project, and am in no way qualified to determine if my reinstatement will meet the Building Code requirements. If my area has suffered from lateral spreading, liquefaction or settlement, I expect the current legal boundaries to be established and a full survey carried out before any work commences.

As a ratepayer, I choose to use the services of the Building Consent Authority to ensure that the building is up to standard and that the intended life of the building is 50 years or more.

I expressly decline to permit any third party the use of exemptions from a building consent under section 14c of the Building Act without my prior written

Likewise, I refuse any variations on the building consent without my prior written approval.

I also decline to permit any third party the use of existing use rights under the Resource Management Act if this would result in any risk or liability or obligations being transferred to me as the owner of the building, or if this would result in any way in non-compliance with the current district plan. Otherwise, I would require an existing use rights certificate to be issued.

I request a full building consent, including all producer statements signed by certified, qualified personnel and full inspection records. At the conclusion of the building work, I will require a signed Code of Compliance Certificate, PIM, a clean LIM report and a building location certificate if required.

Please confirm acceptance of this notification.

Name and address of owner:

Contact phone:

Property address:

Insurance company:

Claims handler:

Claims handler email:

Claims handler phone:

E-mail to propertyfileinfo@ccc.govt.nz or bring to CCC.

Disclaimer:

Advice to applicant:

If you wish to stop your insurer/PMO using exemptions or claiming existing use rights, you should first try to ensure that it will not involve any transfer or increase in risk for yourself (e.g. a hazard notice, a repair or rebuild that does not comply with your insurance policy entitlement, or with the Building Code). If you still have had no EQC land report or information on the amount of your land settlement, this is also an argument for delaying any construction or repair work. The condition of the land and the settlement amount may determine the best option for you. Each person’s situation is different, so if you are unsure, it is best to consult a property lawyer first. If you are unwilling to wait, you can also engage a surveyor to ascertain the extent of lateral spreading and where boundary locations should be. This letter will stop consents being issued for your property, but you will still have to negotiate with your insurer.

 

CCC adds elevation changes and current elevation to the floor level maps

CCC Elevation changes

CCC Elevation changes

Christchurch City Council and CERA have by request added two new layers to the floor levels map.

First one includes elevation changes pre and post earthquakes.

The second one shows current elevation of the land.

Clicking on the right side on the tick button expands to show definition of the colors.
this map

Kia Kaha Christchurch

Instructions below.
Enter site. this map
If required install Silverlight software. Accept terms to get access to maps.

Type in your address at top right corner. Hit enter.

Enter

On the left side of the screen you will see a few listings including floor levels for the specific site you are looking for.

 

 

Click on the listing, a box will display with relevant height information.

Click on zoom to feature.

Now you have current elevation and food predicted height and planning requirements in regard to floor levels.

Now select map layers at the bottom left corner.

Elevation changes

 

Make a selection as per the images to see current elevation and elevation changes.

 

Current elevation

 

 

 

 

 

 

 

Keep in mind that the information does not substitute a proper site survey by a professional surveyor.

For example the gray area is displayed as +/- 25cm.
That equals 50cm error probability.

50 cm equals predicted sea level change for the next 50 years.
Durability requirements for a new building is 50 years.

Notification of Incorrect, misleading and potentially dangerous document used for the recovery.

Incorrect, misleading and potentially dangerous.

Incorrect, misleading and potentially dangerous.

This is our letter to Pete Sparrow, CCC General Manager Building Control and Rebuild and Mike Stannard, Chief Engineer, MBIE. We request that this document is revoked and the PMO’s and the public notified.

Christchurch 10. June 2014

I am writing to you to point out that a document which is being used as a reference for the current land status in Christchurch is incorrect, misleading and potentially dangerous.
Using this document as a main reference for current land conditions can lead to the negligent practices that have been witnessed in Christchurch.
On the EQC website where this document resides the following incorrect statement is made “Please note: The information in this report is up to date as of 29 February 2012: it does not take into account any aftershocks or earthquakes that occurred after that date.” This document is not up to date as it does not include up to date information as of 29 February 2012.
As evidence for this contention, I would point out the following:
  • All the maps published in this document are outdated and do not reflect current land conditions. The maps are dated June 2011, after which we had over 100 earthquakes of magnitude 4 and greater.
  • Significant levels of subsidence in the eastern suburbs of Christchurch and further land damage have been ignored.
  • All the statistics given for elevation and groundwater levels are misleading as they exclude most of the worst land damage. As an example I refer to the statistics published for the suburb of South Brighton.
  • Average subsidence is stated to be 50 mm. In fact, the worst affected properties have subsided by up to 1000 mm, which is 20 times the amount stated.
  • Groundwater is stated to be at 130 cm on average from the surface, whereas measurements show that groundwater is as little as 10 cm from the surface in places, and is both saline and tidal.
  • Many properties have subsided below the height of the Mean High Water Spring (MWHS) and, pursuant to the provisions of the Marine and Coastal Area Act 2011, the land has therefore been divested.
Using this document  as a reference in preparation for any repair or rebuild leads to unsustainable and even dangerous practices.
This document has an extensive disclaimer and no liability is assumed.
This has been pointed out to both Tonkin and Taylor and the EQC.
Even though Tonkin and Taylor has confirmed in writing that 140 properties in South Brighton have subsided in excess of 250 mm before this document was published and have been excluded from the statistics in this document, the document is still used as a reference for recovery.
What I have seen in practice is that high groundwater, liquefaction vulnerability and severe lateral spreading have been ignored in geotechnical reports on land that has suffered in excess of a metre (correction) of lateral spreading and significant subsidence, land that has been identified as being highly vulnerable to liquefaction . This has led to unsuitable repair methods being proposed.  There is ample evidence of such methods having been implemented.
Based on this document, it has been assumed that the land can be defined as “good ground”.
I request that this document be immediately revoked and that all Project Management Offices  and the public are notified as a matter of urgency that it no longer applies.
The consequences of using incorrect data has become obvious with current flooding in Christchurch.
While the Stage 3 report is not specifically mentioned in the MBIE guides, there are references to also outdated stage 1 and stage 2 land reports.
None of these references are reliable as a reference material for current land conditions and should be specifically be identified as unsuitable reference documents for current land conditions.
I await your confirmation, or any evidence to the contrary, showing that these reference documents used for the recovery reflect the current land conditions.
Please confirm receipt of this email.
Best regards,
Hugo Kristinsson

Founding member of the South Brighton Residents’ Association

Founder of Empowered Christchurch