Breaches of legislation in Canterbury Christchurch 9 July 2013.
To whom it may concern, As concerned Cantabrians, we believe that it should be possible for us to obtain legal advice as to whether the government of New Zealand is breaching the constitution (Acts of Parliament). The constitution is composed of the following bodies: the Sovereign, the Governor General, the Executive, the Legislature, the Judiciary, the Treaty of Waitangi and the Bill of Rights. In relation to the rebuild of Christchurch, it would appear that aspects of cornerstone legislation in our democracy are being breached. We shall outline the relevant legislation below and state the reasons we believe that these legislative provisions have been breached:
1. Breach of Bill Of Rights Act. All new legislation should be consistent with the rights and freedoms affirmed by the Bill of Rights Act. If there are inconsistencies, then the government is required to provide a justification for the limits placed on these rights. We believe that our rights have been interfered with under section 9 of the Bill of Rights, namely the right not to be subjected to cruel treatment:
Under Legal Scrutiny Will be updated soon
"For the purposes of section 9, a form of punishment is cruel, disproportionately severe if the treatment or punishment exceeds society's expectation of what is appropriate in particular circumstances, having regard to: the nature of the act; the context in which it is delivered; and the manner of its execution. A treatment or punishment may be considered "degrading" where it humiliates or debases an individual and shows a lack of respect for, or diminishes, his or her human dignity. An assessment of whether a form of punishment or treatment is degrading or not will involve consideration of: the impact it has on the affected individual; the nature of the act; the context in which it is delivered; and the manner of its execution." In light of the IANZ assessment that 18 out of 20 Building Consents issued in Canterbury after the earthquakes did not meet the requirements of the Building Code. http://www.stuff.co.nz/the-press/business/the-rebuild/8875681/Ianz-finds-18-of-20consents-fail-code and the changes that permit unconsented repairs without the requisite inspections we consider these practices to constitute cruel and disproportionately severe treatment of Canterbury citizens. These will ultimately have an effect on the equity of their properties and the future health and safety outcome for an entire region (Christchurch is the second largest city in New Zealand). It exposes citizens to an unacceptable level of risk in that the Building Authority has not ensured compliance and accountability in meeting its obligations toward this population. 2. Breach of Consumer Guarantees Act 1993. The purpose of this legislation is to protect consumers. Under the Act, our rights are expressed as a series of "guarantees". We believe that these guarantees have been eroded in the Christchurch rebuild environment. In particular Section 6 'Guarantee as to acceptable quality'.
Since the Canterbury earthquakes, a series of minimum standard building guidelines have been introduced. The ‘guidelines’ have been revised three times, on each occasion introducing ‘looser’ standards in engineering terms. Following on from this is the practice being followed by insurers of using the guidelines to downgrade previously determined repair strategies. Each time the standard is revised is arguably a breach of the Consumer Guarantees Act. In addition, the PMO Guidelines, the DBH Guidelines and proposed changes to the Building Act, in combination with the exemption from Building consents, removes most of the guarantees surrounding the repair process for the homeowner. In the context of an insurance contract, an obvious matter to which the information relates is the standard to which the property should be restored under the terms of the policy. Usually the insurer undertakes to restore a building to a standard as close as possible to when it was new. By implication, therefore, the insurer should not use a minimum-quality repair strategy if that strategy results in a quality which is less than the original standard of construction for the dwelling. Even more concerning is the fact that proposed changes to the Consumer Guarantees Act would exempt insurance companies from the consumer protection of the Act. These changes have the potential to downgrade the integrity and value of insurance cover in New Zealand and will ultimately have significant impact on the quality of property and life for Cantabrians today and in the future. The most significant changes we have seen are the following. • In clause 26A, after new section 46L(3) (after line 22 on page 68), insert: “(4)However, in relation to insurance contracts only, for the purposes of subsection (1)(b), a term in an insurance contract may be treated as being reasonably necessary in order to protect the legitimate interests of the insurer if the term relates to the underwriting risk accepted by the insurer. (See http://www.legislation.govt.nz/sop/government/2013/0207/latest/whole.html ). The other change that significantly disempowers the people of Christchurch is the recent change of the Criminal procedure Act, passed on 1 July. This change has a big impact on consumer protection under the Building Act. 70 instances where the liability of a contractor has been changed from "liable" to "liable on conviction" In practice, the change means that no liability applies unless the consumer proceeds through the courts and wins the case. Section 369(2): insert ““on conviction”” after ““liable””. Section 369(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
3. Breach of the Fair Trading Act 1986. We believe that there are breaches of the Fair Trading Act in relation to contractor operators such as EQR, insurance companies and their preferred contractors (e.g. Arrow, Hawkins, and the like), as well as the Project Management Offices. These groups are failing to provide repairs as set out in the Building Act and Building Code in relation to aspects of safety, standards, clear provision of information, requisite guarantees of workmanship, and durability, as set
out in the 2004 Act. In many cases, a Code of Compliance is not issued. All of these factors have major consequences for the homeowner: The documentation, in the form of Amended Guidelines, is continually being modified to create standards that are lower than those in place under the Building Act and Code prior to the Canterbury earthquakes. It is clear that repairs to insured losses are intentionally being postponed by insurers and EQC so that policyholders receive diminished entitlements under their insurance policy. (See http://www.stuff.co.nz/the-press/business/8846915/Shock-for-50Southern-Response-claimants). Tens of thousands of people are in this position. Where land damage has occurred, more often than not the repair approach bypasses the requirements to checking the land bearing capacity and the suitability of foundation strength. Yet where land has subsided close to water, the ground water is now considerably higher. The result of this is that the land bearing capacity has now been reduced by up to 50%. This means that in effect the so-called existing "repairable" foundations are highly unlikely to be adequate. Properties in this category are being "repaired" using this approach, which will mean that these properties will again need substantial repairs again when the next "event" occurs. One year after the introduction of the new repair methodology, the Council used the flexibility it provided to exempt work from requiring a code of compliance or a building consent, and can now request the building to be brought up to code at the owners expense! (See http://resources.ccc.govt.nz/files/Homeliving/buildingplanning/forms/24monthletterco decompliancecertificaterefusalfaqs.pdf). Following on from this, the Ministry of Building, Innovation and Employment has asked for recommendations in regard to earthquake grading for buildings in Canterbury. (See http://sesoc.org.nz/documents/SESOC-Building-Seismic-Performance-ConsultationDocument-final.pdf and http://www.nzsee.org.nz/wp-content/uploads/2013/03/NZSEESubmission-to-MBIE-Bldg-Seismic-Performance-Consultation-20130308-V6.pdf. We also find it unacceptable that ECAN has failed to publish the Hazard Maps for Christchurch and that this information is often only available to homeowners AFTER they have settled their claim. The Land Information Report (LIR) is issued by ECAN and the Land Information Memorandum (LIM) is issued by Council. Any details present on the LIR can be issued on the LIM, thereby affecting the value of a homeowner's property. This affects all repair/rebuild situations (see http://ecan.govt.nz/services/onlineservices/property-information/Pages/why-request-a-lir.aspx). After repairs have been completed this is what is proposed: "Proposal 1: Local authorities would be required to make a seismic capacity assessment of all non-residential and multi-unit, multi-storey residential buildings in their districts within five years of the legislation taking effect, using a standard methodology developed by central government, and to provide the resulting seismic capacity rating to building owners." "A suggestion is that the local authorities pay for the initial assessment and then building owners pick up all subsequent costs for the detailed assessment and retrofit.â€? There are major consequences from this for property owners in Christchurch: â€˘
citizens' life savings and the equity held in their properties will be severely impacted, not just for this generation but for future generations as well;
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the future safety of the repaired or rebuilt structures will be in doubt, exposing homeowners and citizens to an unacceptable level of risk; reduced repair or settlement pay-outs to the benefit of the private insurer; the future housing stock in Christchurch will be downgraded; the risks relating to land damage and repairs are quietly and surreptitiously being transferred to citizens; the value and purpose of the insurance contract in place when the damage occurred is being transferred from the insurance company to the homeowner – thereby breaching the terms of the insurance contract.
Despite this, contractors such as Tonkin & Taylor maintain that the level of knowledge on land status in Christchurch is probably 'the highest in the world'. It is our belief that extensive and systematic efforts are being made to restrict and/or mislead the affected Christchurch population about the degree of land damage and the appropriate repair methodologies. This is evident when comparing ground elevation with the height of ground water in the stage 2 and stage 3 land reports issued by EQC. At first glance, it would appear that in the interval between the two reports the land has risen and groundwater is now lower than it was several thousand earthquakes earlier in this country's history. An example of this can be found in published information about South Brighton in the Stage 3 Land Report. Land subsidence "average" was recorded as being 50 mm, while LiDAR images acquired under the Official Information Act confirm that subsidence is as much as 20 times greater. Comparing the groundwater statistics in the two reports reveals the following. Stage 2 report: groundwater depth in South Brighton was observed to a range of between 1.2 m and 0.4 m below the existing ground surface. Stage 3 report: Groundwater Depth South Brighton. Typically 1.0 m to 2.0 m. Average 1.3 m This implies that the land rose and the groundwater is now lower despite the many thousands of earthquakes we have had. We are aware that the area has gone through and still is undergoing a massive 'dewatering' process. While this strengthens the land in the short term, the groundwater will eventually find its way back. I trust these issues are of concern to you and we implore you to assist us with a legal assessment of this highly alarming situation. This letter is written following a presentation by the TC3 Residents (Facebook group) for the CERA community forum 6. June 2013, followed by a meeting of Christchurch Residents Groups and CanCERN with MBIE, CERA, Tonkin & Taylor and Christchurch City Council 21 June 2013.
Best regards Hugo Kristinsson (firstname.lastname@example.org) Disclaimer: All information in this document is provided "as is", and we accept no liability for its accuracy. === www.chchsolddowntheriver.co.nz ==