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AN OPEN LETTER TO THE MINISTER OF JUSTICE

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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

THE GREAT RESILIENCE SHAM

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 RESILIENT GREATER CHRISTCHURCH PLAN: 

Are you sick of hearing the word “resilience”? Has the word lost all meaning for you?
In June 2014, as part of the 100 Resilient Cities Network, a Chief Resilience Officer was appointed at council. For the following two years, the salary for the position was paid by the Rockefeller Foundation and almost nothing was heard of the activities the CRO was engaged in behind the scenes, despite the fact that the scheme purportedly “places people at the heart of a Resilient Greater Christchurch”. A further role of the position was to “address the needs of all city residents, and especially low-income and vulnerable populations, who were often hit hardest by shocks like natural disasters and chronic economic downturns.” Three years on, these groups are arguably in a worse position than they were in 2011 after the biggest natural disaster in New Zealand history, and council has repeatedly ignored pleas to help them (see below).

When interviewed on the subject of resilience in September 2016, for example, Mayor Dalziel was unable to give any concrete examples of what the CRO had actually achieved over the previous two years. Then, in September 2016, the mayor pledged 10% of funding in the 2017/2018 financial year for resilience projects, including the salary for the CRO. It is not clear what projects have been earmarked.
The following “Resilience Plan” from the Christchurch City Council has now become available, although, like the activities of the CRO, it has not been widely published. We believe it is an astonishing example of the total disconnect between theory, as trumpeted by the plan, and the actions and policies of the council in practice. 

Alternative facts are on the march, so beware of the following terms as used in the document: resilience, vision, stakeholder, and engagement. These terms appear to be euphemisms for what the city council is actually planning, which, in many cases, is the exact opposite of the accepted meaning of the term (resilience = residents taking on and paying for risks; vision = plan to rid ourselves (councils) of liability; stakeholders/we/us = the authorities, not the ratepayers; engagement = spin and propaganda to convince people of alternative facts).

Click on the picture to read some of the key statements and statistics from the document, which has not been widely shared or publicised among the city’s worst affected communities. Empowered Christchurch comments are in italics following the excerpts.

 

“Resilience is a word we have heard a lot in Greater Christchurch over the past five years. No matter what extent to which [sic] we are familiar with this word in our day-to-day lives, it is important that we collectively understand the concept of resilience.

We know that we will encounter future challenges. This is not simply about preparing our infrastructure or our built environment and it’s not about bouncing back to the way things used to be. For us, resilience will be about understanding the risks and challenges we face and developing ways to adapt and co-create a new normal. The strength of our resilience lies in us, not just as individuals, but as communities and whānau.

The   [PDF 8.8MB] enables us as city and district leaders to work together to enable and empower our communities to face the future with confidence. As a group of leaders we were already working together before the earthquakes struck.

The Urban Development Strategy (UDS) has as its vision:

By the year 2041, Greater Christchurch has a vibrant inner city, and suburban centres surrounded by thriving rural communities and towns connected by efficient and sustainable infrastructure. There are a wealth of public spaces ranging from bustling inner city streets to expansive open spaces and parks, which embrace natural systems, landscape and heritage.
Innovative businesses are welcome and can thrive supported by a wide range of attractive facilities and opportunities.

Prosperous communities can enjoy a variety of lifestyles in good health and safety, enriched by the diversity of cultures and the beautiful environment of Greater Christchurch.

The vision has not only survived our experience; it has been enhanced. We see this resilience plan as enabling the review of the strategy to occur with a resilience lens and an ongoing commitment from each of us to visible collaborative leadership.

As we shift from recovery to regeneration, we can restate the importance of collaboration; between the city, the districts and the region, Central Government, the Canterbury District Health Board and most importantly with the many and varied communities that make up this special part of New Zealand.”

 

“Our plan places people at the heart of a Resilient Greater Christchurch.” (Presumably, that is why this document has not been publicised among the affected communities or the general public.)

 

“Being resilient relies on understanding, preparing, coping and adapting to the threats we face.”
(For example, by ignoring the threat from climate change for decades; by circumventing legislation after the earthquakes to increase the risks for residents; how did the Council understand, prepare, cope and adapt to create the chaos that followed the November 2016 tsunami alert? It did not have, and in all likelihood still does not have, an efficient communication system or tsunami evacuation plan in place; warnings and notifications about the various threats from community groups have been ignored.)

 

“Chronic stresses for Greater Christchurch include climate change, affordable quality housing, psychosocial well-being and an aging population.”

(According to the plan’s statistics, 43% of housing in the eastern suburbs is in an “as is” condition following the earthquakes. This situation is largely the responsibility of the EQC, the Christchurch City Council and private insurers. Canterbury had a record 83 suicides in the last year, almost certainly due in part to the chronic stresses mentioned, which have been actively added to by the City Council. Many of the most vulnerable victims to chronic stresses are members of our elderly population.)

 

Brighton beach and the Brighton Peninsula are featured on the cover pages of the Resilience Plan.

These are the areas that have been most shamefully neglected by the Council, where 80% of the most socially deprived in Christchurch live, and where, as mentioned above, “as is” properties now comprise 43% of the housing stock. Complaints, arguments and notifications from the residents of these areas have been consistently ignored, even while the Christchurch City Council was developing this ‘resilience’ plan.)

 

Resilience is the capacity of individuals, communities, businesses and systems to survive, adapt and grow, no matter what chronic stresses and acute shocks they experience.

 

(Most of the chronic stresses and acute shocks that Christchurch residents have experienced stem from the incompetence of its elected representatives and their response to the earthquakes.)

 

Hutia te rito o te harakeke, kei hea to komko e ko?Whakatairangatia, rere ki uta, rere ki tai.

Ki mai ki ahau, he aha te mea nui o tea o,

Maku e ki atu:

He tangata, he tangata, he tangata.

 

 If we were to pull out the centre shoot of the flax plant, where would the bell bird sing from?It will fly aimlessly inland and out to sea.Ask me what is the most important thing in our world?

I will reply:

It is people, it is people, it is people.

 
Sir James Henare, Ngati Whatua, Nga Puhi nui tonu

 

 

 

P10: “Embracing participatory planning and collaborative decision-making.

 

Statistics
8000 households permanently displaced by land damage, 90% of residential properties damaged in some way, and 80% of buildings in the CBD have had to be demolished.

1,628,429 m² of roadwork damaged

659 km of sewer pipes

69 km of water mains damaged

Approx. 168,000 dwellings with an insurance claim

1100 buildings in the CBD had to be demolished

 

Recovery work

Waste water
583 km of pipe (88%) repaired/replaced

73 pump stations (90%) repaired/replaced

98% of total design work is complete

 

Storm water

59 km of pipe (83%) repaired/replaced

For pump stations (74%) repaired/replaced

93% of total construction is complete

 

Fresh water

96 km of pipe (98%) repaired/replaced

22 pump stations and reservoirs (81%) repaired/replaced

97% of central city work is complete

 

Roading

1,300,000 m² of road (94%) repaired/replaced

142 bridges/culverts (99%) repaired/replaced

158 retaining walls (87%) repaired/replaced

94% of the whole SCIRT programme is complete”

 

(Figures from July 2016)

 

P16 “Black Map” (An early map showing the many areas of swamp in the city in 1850. This is often used as an argument to ignore the effect of land settlement after the earthquakes?)

P18 “Ground subsidence caused by the recent earthquakes has elevated the severity and frequency of flooding events.” (And nothing has been done to remediate the subsidence or compensate residents pursuant to the Earthquake Commission Act.)

“… in the future it is likely to be coastal flooding, storm surges and inundation that are the greatest threat.” (Threats that Empowered Christchurch has repeatedly pointed out to the council over recent years without any response and action being taken.)

 

“Housing and social equity

Loss and damage to homes as a result of the 2011 earthquakes drove up rental prices, left people sleeping in garages and cars and contributed to an exodus of people from the region. It took major releases of land and rapid investment in housing over four years to resolve these effects.”
(This ignores the chronic condition of “as is” properties, and the slumification of the eastern suburbs that has been actively promoted by the council. Infrastructure has been removed and not replaced; homes have been built below the Building Act requirement; existing use rights have been granted for insurance rebuilds; council has failed to allocate donations to their specified recipients.)

P36 “Residents want to be involved in the decisions that affect their neighbourhoods and communities….

the shift in focus to regeneration offers an opportunity for a more deliberate and collaborative approach to decision-making.”

(There has been little sign of this happening.)

 P49 “What outcomes do we expect to see?

Vulnerable people are well supported and participate in the community, which helps to decrease feelings of isolation and loneliness.”

(Up to now, it is the primarily the vulnerable members of society who have been targeted in the recovery: those with low incomes, older residents and the socially deprived.)

 

P51 “What outcomes do we expect to see?

Successful current examples other Activities include:

  • Build Back Smarter

(Unfortunately, this initiative was not launched until February 2015 when most rebuilds/repairs had been completed. A total of 1400 homes received an assessment under the scheme, but only 53% made changes.)

“Ko te kai a te Rangatira he korero

Conversation is the food of chiefs”

 

(This clearly does not apply for the Mayor of Christchurch. Despite an assurance that we would receive a response, Empowered Christchurch is still waiting for a reply to our letter of 14 February 2017.)

P60 ” The challenge is to build more trusting relationships between communities and decision-makers in Greater Christchurch. Central to this is changing the way in which governance engages with people, as all too often their processes rely on rigid and formulaic methods that are set up to be adversarial… Transparent and participatory governance empowers the community.”

(Once again, we have seen no sea change in attitude in this regard. Council has adopted an adversarial attitude towards ratepayers.)

P66 Eastern Vision and its website EVO SPACE

(This is one example of the many pseudo-community consultation schemes that have sprung up since the earthquakes.

When it began in 2014, it was run by a former city councillor and funded by the Canterbury Earthquake Recovery Authority – CERA. The website is extremely basic, with just two pages, one entitled HOME, and one entitled RESOURCES. The Resources page consists of a video, a “doodle map” – a map of eastern Christchurch – for visitors (or perhaps their pre-school children) to draw on (!), and a link to request a workshop, with absolutely no information on what expertise the group possesses or can offer.)

 

LinC Project
A further example of stage-managed community engagement: this programme has provided training for two batches of 40 and 45 so-called “community leaders”. It is heavily influenced and directed by government and the authorities – 10 of the second batch of 45 candidates “selected” came from government organisations and one of its “facilitators” is now employed by Regenerate Christchurch, the successor to CERA. It appears as if these candidates are being groomed for positions in further pseudo-community organizations with the task of countering the current criticism from community representatives.)

 

P85 “What outcomes do we expect to see?

Open and transparent engagement with people using understandable information to help them make decisions and balance the consequences of action or inaction in relation to risk management.

(It is inaction in relation to risk management on the part of the authorities, and the city council in particular, that has exacerbated the said risks of flooding, inadequate housing, psychosocial stresses, etc.)

Successful current examples of activities include:

Dudley Creek and Flockton Basin Flood Mitigation Schemes

(Despite implementation of a $48 million drainage project, the Flockton area flooded in the recent rain following Cyclone Cook.)

P88: Risk Transfer
“The New Zealand Earthquake Commission (EQC) scheme underpins the availability of affordable insurance for residential property and assets in New Zealand. … 70% of losses from the major earthquake events of the Canterbury Earthquake Sequence were covered.”

(The EQC is currently depending 199 earthquake litigation cases in the Christchurch High Court. It has been a signal failure in terms of its raison d’être – to protect the people of New Zealand against the effects of natural disasters and cover their losses.)

Risk acceptance is a state of being that influences the level of risk reduction and risk transfer, and ultimately the level of tiredness we are willing to investing and it can change as we use other responses.

(So are residents to be prepared to enter a “state of being” where they accept risks that the authorities have created and actually exacerbated?)

 P89 Securing our future in the eastern parts of Christchurch

6.3 km2 red zoned and 7,300 homes purchased by government.

 

“Securing our future in the eastern parts of Christchurch will require a multi-party collaboration to resolve a range of different issues that include social and economic problems, future risk from climate change, particularly sea level rise, and the reuse of earthquake damaged land, and water management. Our response needs to consider the cost as well as the potential benefits for the community.

(There is no mention of the obligations to deal with the earthquake damage, provide flood protection and to try to undo the mistakes of the past, such as allowing brand new homes to be built 50cm below the Building Act minimum, failing to designate high flood hazard management areas until 97% of insurance claims had been setteled.)

“The future of Eastern Christchurch will be founded upon a clear understanding of the risks that the area faces and from there a participative process can best determine how hazards are managed, new prosperity is built and how existing and new communities are connected.”

(A participative process has been missing over the last six years. The process of endless discussions and engagement with communities purely for PR purposes has not been accompanied by any action on the said issues on the part of the authorities.)

East (as defined on map) Christchurch City
Area population 62,500 (20%)
% Maori and Pacific populations 29%/34% 8%/3%
Number of most socially deprived people 23,500 29,375
Average house price NZ$ 335,000 NZ$ 445,000
Households earning under NZ$ 100,000 84% 73%
Households earning under NZ$ 50,000 48% 38%
% Households renting their home 43% 35%
% Households drawing state financial support 28.5% 17%
Qualifications
% without qualifications		 29% 20%
% with university qualifications 12% 21%
% Households with Internet access 70% 79%

 

P90 Land elevation map – Eastern Christchurch

(The red line indicates the statistical area of the quoted data. If this refers to the above statistics (and not just those following), the suburbs of South Brighton and Southshore have been excluded!)

Chief Resilience Officer statement
“Specific issues raised during the development of this plan recognized the need to build a more trusting relationship between communities and decision-makers, nurture existing community networks and support systems …

… underpinned by the need for strong and effective leadership.”

 

(Once again, all of the Council’s actions belie any serious interest in achieving this goal.)

***END

Christchurch High Court Earthquake Litigation List

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Christchurch High Court Earthquake Litigation List 
As of 30 September 2016

Click for interaction

Click for interaction

Figure 1: Breakdown of insurers, claims amounts and areas
 (Interactive version can be viewed by clicking on the image above)

Here is a graphical analysis of the Christchurch High Court earthquake list as at 30 September 2016. Mouse over the insurers in the left-hand section to see how many High Court cases each one is involved in. Clicking on each rectangle activates the pie chart and map information for one insurer.

If you move the mouse over the pie chart in the centre, you can see the total dollar values for residential and commercial claims against the particular insurer. The “highlighted” figure shown is for the area of the chart the mouse is currently in.

In the block diagram showing active and inactive cases at the bottom right, you can grey out either category by clicking on the circle beside the other category (e.g. click on “active” to highlight these cases only, or click on “inactive” to highlight inactive cases). You can see that almost no cases are inactive for the months of 2016.

The map shows the number of High Court cases by location by insurer. So you can immediately see where the main geographic concentrations for the respective insurers are. For example, claimants against Lloyd’s of London (which will be predominantly commercial claims) are almost exclusively in the city centre. For the large rectangles like EQC and IAG, with heavy concentrations throughout the city, if you mouse slowly over each suburb, you can see the number of people in each who have sued the insurer in question in the High Court.

cumulative-hc-sept-2016
Figure 2: Dollar value of High Court earthquake claims

This graph shows the gradual accumulation of High Court earthquake insurance claims expressed in dollars, starting from the first earthquake in September 2010. The blue columns represent High Court cases that are inactive (i.e. have been discontinued, cash settled, withdrawn, etc., or where a decision has been delivered by the court). The green columns represent active cases that are still to be heard. The red line shows the accumulation of costs for active cases, while the black line shows the accumulation of active and completed cases combined. Note the spikes in the number in July and December 2013, and in August/September 2016 (end of the period of limitation). 25% of claims do not specify a dollar value for the claim. This means that the combined total of $752,685,873 is well short of the full amount that is being claimed. In all probability, the complete figure is over $1,000,000,000. It should also be remembered that these are only claimants who have decided to sue their insurer or EQC. We should not forget low-income and vulnerable claimants, people with mental and physical health problems, the elderly, and those who accepted cash settlements. These are the real victims of the recovery.
While every care has been taken in compiling the statistics, Empowered Christchurch assumes no responsibility for the accuracy of the information.

 

The EQC leads the field with a total of 107 cases, while 79 of the Southern Response cases have been concluded. This means that government-controlled entities make up 186 (55%) of the total. Almost all of these will be under cap and “repair” cases – an unknown number of land cases are still to come.
Lumley is an IAG subsidiary, which means that the IAG Group accounts for close to one third (105) of the 336 concluded cases. Concluded cases do not actually go to court for one reason or another. They are frequently (cash) settled shortly before High Court proceedings commence, which is when serious legal costs accrue for the insurance companies.

Figure 3: Concluded cases by insurance company and solicitor/barrister – 30 September 2016

Here are the figures for the most proactive solicitors and barristers in High Court litigation. Grant Shand has the lion’s share in both categories, with no competitor in sight for concluded cases. In the active cases category, Jai Moss has a respectable 90, and Andrew Hooker, of Shine Lawyers, 38 cases. The former appears to be the only Christchurch lawyer* with any substantial number of cases, the other two being Auckland-based. It has been suggested that this is because local law firms rely heavily on banks and insurance companies for their bread-and-butter work. [*One Christchurch omission is S P Rennie, of Rhodes & Co., with 26 cases, but we will be updating the statistics as we receive more information.]

 

Figure 4:  Active cases by insurance company and solicitor/barrister – 30 September 2016

This figure shows the current High Court list of active cases.
Since our focus is on residential claims, companies writing mainly commercial business, such as QBE Insurance (13 cases), have been excluded. As with the statistics for concluded cases, the EQC is the clear leader, with 37% of the total of 402 active cases. The IAG Group (IAG + Lumley) account for 28%. IAG has still to settle approximately 60% of its total court cases (concluded and active), as does its subsidiary, Lumley. Vero, the number 2 in the private insurance market in New Zealand, has slightly more than 60% of its defence cases still to be heard (or cash settled). The EQC’s combined total of 310 High Court cases (to date) leaves it with roughly two thirds of the way to go. Most of the future claims for EQC land damage may be handled by the District Court (<$250,000) rather than the High Court. The smaller players (Tower and AA) have still to defend between 50% and 60% of their respective cases. Overall, therefore, the spread of remaining cases from best to worst is quite narrow, between 53% (Tower) and 66% (EQC).

Are you paying too much for your insurance premiums? This could be one reason.

The New Zealand insurance industry is dominated by two Australian groups, Sydney-based IAG (Insurance Australia Group) and Suncorp Group Limited, a Brisbane-based finance, banking and insurance corporation. IAG bought the AMI business in 2011 after the latter became insolvent, leaving the outstanding earthquake claims to be handled by the government through the new entity, Southern Response.

In December 2013, the IAG Group announced a A$1.845 billion deal to buy the underwriting businesses of Australia’s Wesfarmers, which included Lumley in New Zealand. At this point, IAG already owned NZI (its broker arm), State and AMI (non-quake related business), and was also behind cover provided by ASB, BNZ, and Cooperative Bank, and Warehouse Travel. The Lumley deal increased the group’s share of the overall New Zealand insurance market from 41.5% to around 50.5% and the new acquisition reportedly increased its share of the New Zealand home and motor insurance market from 60% to as much as 66%. In Germany and the USA, the market leader controls only around 10% of the overall market. In addition, since it owned three of the main four banking relationships, IAG was now in a position to ensure that price increases could occur across the majority of the bank channels.

market-sharesFigure 5: Market shares of IAG plus Suncorp

This section looks at the market share of the second-biggest player.

The Suncorp Group owns Vero Insurance, (known until 2003 as Royal & SunAlliance), which is New Zealand’s second-largest insurer, as well as SIS Insurance, AMP General Insurance, Axiom Insurance and Asteron Life. Vero operates through a large stable of different companies, covering most classes of insurance (commercial, marine, liability, travel and motor, as well as specialist risks) and sells exclusively to the broker market. Vero also holds a 68% share in AA Insurance. After IAG’s purchase of Lumley, however, Suncorp’s total market share of 23.5% of the general insurance market paled into insignificance in comparison with its rival. When taken together, these two groups control just under 75% of the general insurance market in New Zealand. As pointed out earlier, this contrasts dramatically with other insurance markets such as Germany and the USA, where the market leader controls only around 10% of the overall market.

In a submission to the New Zealand Commerce Commission in 2014, Suncorp objected to IAG’s acquisition of Lumley on the grounds that it would seriously decrease competition, particularly in the home and contents market, and also in the motor insurance segment. It pointed out that, at the end of 2013, IAG had settled 51% of its earthquake claims, compared to Lumley’s 70%. Purchasing a better performing rival, it argued, would “decrease the competitive tension on IAG to improve its claims handling record”.

However, despite the virtual cartel situation that resulted, the Commerce Commission gave the OK for the Lumley purchase by IAG without demur. A press article on the subject led with a picture of a small dog representing the Commerce Commission, the presumed metaphor being the Commission as poodle, with the government’s firm hand on the leash.

market-share-hc-cases

Figure 6: IAG share of total

The EQC is, of course, the elephant in the room. With 203 cases before the High Court, and 10,492 remedial claims as at the end of June 2016, the Earthquake Commission, whose stated function when set up in 1993 was “to reduce distress, both in those immediately affected by the disaster, and in the New Zealand economy and society”, appears determined to reduce the distress to the New Zealand economy only. Adopting a similar strategy to IAG, the EQC has given homeowners until the end of October 2016 to decide to either take a cash settlement, or to remain in the organisation’s managed repair queue. The Commission’s series of 6 community information meetings on DoV (diminution of value) payments for “increased liquefaction vulnerability” was abruptly terminated without explanation in mid-October. There are indications that many homeowners will also be suing EQC for its volte face on land remediation, since it paid the full pre-earthquake land value to homeowners affected by the September 2010 earthquake and many homeowners now face much more serious land damage, for which they are scarcely being compensated.

Southern Response’s efforts to reduce its claims payments also seem likely to be the subject of litigation for quite some time. Southern Response is the defendant in roughly 88 active High Court cases, half of which are with EQC as its co-defendant. So far, it has received two Crown pledges of $500 million, with an additional $250 million dollars approved. Its figure for payouts and operating costs is $2.28bn, with the gross cost of claims estimated at $2.904bn. This contrasts sharply with the forecast Crown support figure of $1.132bn.

Of the smaller insurance companies involved in the High Court litigation, the most noteworthy is Tower, a New Zealand insurer that claimed to have 10.5% of the house insurance market at the end of 2013. However, the company had a disproportionately large share of over cap claims transferred to it by the EQC (11,070 claims or approx. 35%). And with 45 or so active High Court cases, it accounts for roughly 11% of the total. Tower’s share price has been falling for much of this year and according to press reports, it is expected to face a $75m bill, as its reinsurance cover for the February 2011 event has already run out.

 

Source and more information: https://www.lawsociety.org.nz/law-library/news-archive/high-court-earthquake-list-case-summaries

Disclaimer: This information here has been compiled to the best of our knowledge for informational purposes only from publicly available sources, including the lists published by the Courts. Empowered Christchurch assumes no responsibility for the use of, or the accuracy of, the information.

 

 

 

 

Existing Use Rights – Sustainability or a hazardous future

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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

Empowered Christchurch Inc.

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Incorporated

Incorporated

Empowered Christchurch has been extremely active since the protest rally on 21 February 2016. Following on from the submission made to the Local Government and Environment Committee on the Regenerate Christchurch Bill back in December 2015, further submissions were made on the Replacement Christchurch District Plan at the end of February this year. A hearing panel of judges listened to submissions from community groups and individuals. One of the chapters covered was on coastal environment and the other on natural hazards. On 3 March, based on the evidence provided, the independent hearings panel asked the council to provide supplementary information on 1) sea level rise, 2) flood ponding management areas, and 3) permitted activities in rural areas. Most of this was duly submitted on 21 March 2016. However, on 20 April 2016, Council requested an extension for providing evidence on further high flood hazard modeling to Friday, 20 May 2016. The extension was granted the next day.

At the Seismics in the City meeting on 18 March 2016, we asked the Mayor, Lianne Dalziel, why she had not followed up on her offer to meet with us after the protest rally. A meeting was subsequently arranged for the morning of 6 April 2016. Here, the discussions centred on existing use rights (EURs), flood protection, ground water and building in high risk flood management areas (HRFMAs). The Mayor stated that Council lacked a statutory legal basis to prevent EUR rebuilds at the low floor levels we described (and illustrated with pictures). On existing use rights (EURs), Council agreed to seek a legal opinion from its solicitor, Brent Pizzey, as to whether EURs ceased to exist after a building platform has settled or removed laterally following an earthquake (a query made by Adrian Cowie). Council also undertook to follow the example of the MBIE and post a statement on its website reminding residents that Council regulations were not necessarily the same as insurance policy entitlements. We were told a working group would be set up to define the problems and determine the areas where Council could do something. A written response was promised by 20 April 2016, while the public would be kept informed on the Council website. No update has been forthcoming, but we did have a further meeting with Council on 26 April and will report on that in the near future..