Red-tape frustration for hills residents

MARC GREENHILL
Last updated 05:00 07/06/2014

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For some Christchurch homeowners, the number 124 is a blessing. For others, it is a curse.

Port Hills residents would have known little about Section 124 of the Building Act before the Canterbury earthquakes, but it has been life-changing for those deemed to be at risk from rockfall, cliff collapse or landslip.

Seemingly-innocuous notices pinned to doors of "dangerous" buildings have swung million-dollar insurance claims, prevented families from setting foot in their homes for three-and-a-half years, and left others effectively illegally occupying theirs.

More than 350 notices remain in place on mostly red-zoned homes, but for 11 green-zoners also. About 500 red stickers were in place at their peak.

The beneficiaries of S124 notices have been those whose insurers have paid full replacement in natural hazard cases - a sum often much higher than Government's buyout offer at 2007 rateable value.

However, a recent High Court ruling could see that door slammed shut on homeowners still awaiting settlement.

Engineer Phil Elmey, who became an outspoken critic of the S124 process after vowing to leave his red-stickered, red-zoned Sumner home "in handcuffs", said property rights had been "compromised in a extreme way".

"It leaves the residents in a completely untenable position," he said.

He has challenged the fairness of S124 legislation at almost every level - lobbying the council, politicians, government departments and the Human Rights Commission, and by planning his own rockfall-protection structure.

Elmey insists his home is safe - no rocks had reached his property in any of the quake events - and he believes authorities have denied him the fair opportunity to prove it.

"If that [full replacement] insurance payout hadn't been available, there would have been a lot more people like me shouting from the rooftops than there have been. I think the situation would have been dealt with before now," he said.

The plight of S124-affected residents has attracted criticism from the Human Rights Commission, which said the policy "infringed" their property rights, and Parliament's Regulation Review Committee, which called for central government intervention.

Red stickers put in place during the civil defence emergency after the quake were replaced by S124 notices in mid-2011.

The legislation was altered because it did not cover threat to buildings from remote hazards, such as rockfall, just danger caused by a building itself.

In December 2011, the council admitted it used a private investigator to snoop on homeowners defying red stickers.

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Those who did not comply were told they faced fines of up to $200,000 or court action, but the council did not follow through.

It later agreed to help fund individual protection structures, but to date, just two consents have been approved.

Elmey defended the council's right to issue S124s on safety grounds, but said the actual risk was being tested only when homeowners challenged the decision to the Ministry of Business, Innovation and Employment (MBIE).

Twelve appeal applications have been lodged. Of the three that have been determined, two went in favour of the homeowner.

Elmey said the council's conservative approach was indefensible.

"For the first year and a half, that might have been a reasonable thing to say. Now, it's not.

"You can't leave this sort of thing for three years and not address it. They have been told to sort it out and they're just not."

The Regulation Review Committee report released last month, following complaints by Elmey and Port Hills MP Ruth Dyson, said the position affected homeowners found themselves in was "not sustainable".

The Human Rights Commission told the committee affected property owners had experienced "considerable stress" and argued they should be given "clear guidance as to their options" because there was no certainty S124 notices would be lifted.

MBIE said in its submissions the guidelines and criteria for the removal of S124 notices responsibility of local authorities, not central government.

However, the committee recommended the Government "as a matter of urgency" issue "explicit guidelines" for local authorities for the removal of S124 notices.

Council chief planning officer Mike Theelen said technical guidelines for rockfall protection structures had been in place since December 2012, but the council had asked MBIE to review them and was "currently working with MBIE on this project".

Two residential consents had been approved and "there are a number of applications in the pipeline", he said.

The S124 notice process had been peer-reviewed by "internationally recognised geoprofessionals and risk experts" and had also undergone a number of reviews, Theelen said.

The two notices reversed were "at the margin of the rockfall limit".

"The red-zone offer, the S124 determination process, the individual rockfall protection structure process, and the investigations into area-wide mitigation demonstrate that the council and Crown have thoughtfully approached this issue," he said. 

PRESENT COUNCIL WITH FAIT ACCOMPLI

Build first, get consent later.

That's the advice Heathcote Valley resident Roland Logan is offering fellow rockfall-threatened Port Hills landowners mulling protection measures to remain in their red-stickered, red-zoned homes.

He is one of just two residential landowners to successfully gain council consent for a protective structure after the February 2011 earthquake.

His Hammerton Ln property was red-zoned and had a council-issued Section 124 notice barring entry, which was later removed.

The temporary protective measures at Logan's property included weighted shipping containers, retaining walls and drains. The onus was on the landowner's engineer to devise a structure that would gain consent, he said.

"Your geotechnical engineer comes up with a case, then [you] take it to council, and you argue it. "We didn't discuss it with the city council - we just did it and told the city council, ‘We've carried out this work, here's our geotechnical report'."

There was a "bit of arguing back and forth" before it was agreed the work would be certified.

"If you wait for [the council] to give guidelines about whether you can do it or not, they'll never do it. That's what I've been telling other people in the same circumstance."

University of Canterbury senior lecturer David Bell was the engineer on the project.

Logan paid the full costs of his structure - despite red-zoned landowners being offered up 50 per cent of the Government buyout offer to fund individual mitigation work - because he believed a permanent fix was the council's responsibility.

"I understand fully that the council are fully cash-strapped and they can't afford to carry out, even if they are liable, work at the present time . . . but in the future the council are going to have to address the rock dangers that exist on their land."

A council-owned quarry behind his property was the ideal position for a permanent fix because it had a 40-metre "bench"..

"That would protect every property in our area and save the Crown millions and millions of dollars from buying out the properties," Logan said.

- The Press

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