Otago Daily Times

‘Road map’ needed to alleviate plight

Rob Hamlin examines the law behind residents being ordered out of their homes.

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

‘‘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 lifedestro­ying 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 ‘‘redsticker­ed’’ 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 lifedestro­ying 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 reenter 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.

 ?? PHOTO PETER MCINTOSH ?? Exodus . . . Residents in Motu St, St Clair, move out in midDecembe­r amid fears of a slip behind their properties.
PHOTO PETER MCINTOSH Exodus . . . Residents in Motu St, St Clair, move out in midDecembe­r amid fears of a slip behind their properties.

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