‘Road map’ needed to alleviate plight

Residents in Motu St,  St Clair, move out in mid-December amid fears of a slip behind their...
Residents in Motu St, St Clair, move out in mid-December amid fears of a slip behind their properties. Photo: Peter McIntosh
Rob Hamlin examines the law behind residents being ordered out of their homes.

"Occupants ordered from homes".  That was the ODT headline on December 14. One month later the households involved remain estranged both from their homes and their property.  They have no statutory "road map" for this life-destroying situation. 

Meanwhile, those who issued this order are unable to say when they might return.  It was "up to engineers to determine when it would be safe". In a few weeks,  next month, 2020, never?  Being "ordered from your home" is a peculiarly New Zealand experience, and the phrase is becoming an alarmingly commonplace headline.

Comments from insurance personnel indicate that being "red-stickered" is even more common than the headlines would suggest. This is in contrast to jurisdictions such as Australia and the United States, where authorities are  more circumspect about exercising this power —  most likely as they recognise this is a major trespass upon the individual citizen’s rights.

They may recommend evacuation, but even in extremis the final decision remains with the householder.

Given that this New Zealand peculiarity has the potential to utterly destroy your life, it’s worth taking a closer look at this "ordering out" process.  The power  stems from sections 121 to 132 of the Building Act 2004.  More specifically, it is section 124.2 (d) that carries the payload: " ... If a territorial authority is satisfied that a building in its district is a dangerous, affected, or insanitary building ... the territorial authority may ...  issue a notice that complies with section 125 (1A) ... restricting entry to particular persons or groups of persons".

Many have said that if either they or their family were identified as such a particular person or group, then they would simply ignore such a notice.  They would be wise to consult section 128a of the same Act, which states that if you do then you are "liable on conviction to a fine not exceeding $200,000 and, in the case of a continuing offence, to a further fine not exceeding $20,000 for every day or part of a day during which the offence has continued".  The iron fist that lies behind the local bureaucrat that issues the order is thus revealed.

And it will be a local bureaucrat.  The Building Act is administered by territorial authorities.

The Dunedin City Council’s policy with regard to these sections has no concrete commitments or safeguards with respect these to massive powers.  It merely notes that your sole and binding avenue of appeal is to another bureaucrat, the chief executive of the Ministry of Business, Innovation and Employment — not the minister.  These "orderings out" can be life-destroying because  the householder  has only an ambiguous recourse to insurance.  Insurers, sensibly, do not insure anything against "political" risk, which could include the actions of the DCC. 

The confiscation/exclusion statement of the current AMI premier house insurance policy is typical: "There is no cover for any loss, damage, cost, expense, prosecution or liability connected in any way with the confiscation, nationalisation, requisition, acquisition, or destruction of or damage to property by any order of government, public or local authority or under any statute or regulation, unless such order is required to prevent or control sudden and accidental physical loss  or damage that would otherwise have been covered by this policy."

The problem lies with what this exclusion does not say.  If the DCC orders you out of your home, it has not confiscated, damaged, or destroyed it.  It has estranged it. 

Unfortunately, the majority of the estranged and thus unusable St Clair residences have no existing damage either to the buildings or the plots, which either rules out or renders highly ambiguous any recourse under the provisions of private insurances and also that provided by the Earthquake Commission. 

Four policy changes by the DCC and insurance companies might relieve this  situation: 

1) Clarify responsibility: All insurers should include the word "estranged" in their political risk exclusions for New Zealand house and contents policies.  This may not seem like a favour, but it removes any ambiguity and thus stops local authorities shuffling off the consequences of, and blame for, such "orderings out" on to insurers. This ambiguity has inflicted misery on some Christchurch residents for nearly a decade.

2) Establish political accountability:  All "orderings out" from homes to be signed off by the mayor and ratified by the full council to remain in force.

3) Establish fiscal accountability:  If the council wishes to exercise its power to "order out" an individual from  their home and the direct cause for the order cannot be associated with that individual, then the council compensates them for their loss on the basis that estrangement/destruction.  Otherwise the householder decides whether to stay or go.

4) Instil a sense of urgency: Section 125 of the Act rightly places a time limit on "orderings out": "A notice issued under section 124 (2) (d) ... may be issued for a maximum period of 30 days; and ... may be reissued once only for a further maximum period of 30 days".  Thus the residents of these St Clair properties may re-enter them in early February regardless of what the DCC’s engineers think about it.  The DCC’s policy simply does not mention this time limit, and their insouciant attitude to this point suggests that neither they nor their victims are aware of it.

- Rob Hamlin,  a senior lecturerer in marketing at the University of Otago, is commenting on a personal basis.

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