Has the Christchurch City Council made appropriate use of Existing Use Rights?

(Existing use rights is an exemption under the Section 10 of the Resource Management Act 1991, yet the CCC’s application of this "loophole" appears in direct contradiction to the stated purpose of the Act)

In its continuing policy of transparency and accountability (in a media release which it chose not to share with us), the Christchurch City Council alleges that Empowered Christchurch has conflated the requirements for the District Plan with those of the building code. This is not the case.

Christchurch City Council has still not updated its District Plan. Had it done so, all houses would have been built at a height of 12.3 m above datum, leaving residents well protected against flooding. We believe this should have been done as a matter of urgency following the 2011 earthquakes.

The key pieces of legislation in the Christchurch rebuild context are the Building Act 2004 and the Resource Management Act 1991. Put simply, the Resource Management Act has stricter requirements, since its stated purpose is

"The use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety…"

The required floor height under the Building Act is 11.8 m in tidally influenced areas, while the required floor height under the Resource Management Act is 12.3 m. The Christchurch City Council has avoided application of the Resource Management Act and also any updating of its District Plan, each of which would require the higher, safer floor level.

Instead, it has used existing use rights in a way that fails to meet the purpose of the Resource Management Act cited above, with the result that homes have been built in such a way that the health and safety of residents have been placed at risk. This flies in the face of the obligation to provide for the health and safety of people and communities and of the Council’s mandate, and contradicts the recommendations the Council received even prior to the hazards introduced by the earthquakes (cf. excerpts below). We attach documented evidence of 5 instances (although there are many more) where the CCC has ignored legal advice, MBIE guidance and its own or third party recommendations and continued to apply existing use rights in high hazard areas.

Following the discovery of the incorrect flood modelling last month and the Council’s refusal to discuss the surrounding issues, it appears that the current Council is even less deserving of trust than the one it succeeded. We call on the City Council to rectify immediately the errors described above and start working in the interests of the people who elected it.

Christchurch City Council has unilaterally issued statements that existing use rights apply for properties in the absence of any evidence and without the issue of an EUR certificate. The results of this practice were illustrated last month, when we drew attention to the plight of an elderly lady on Bridge Street, whose new home is now over one metre below the proper height for a tidally influenced area (11.27 m instead of 12.3 m).

Another resident in the same area told us: "I'm at my wit's end after nearly six years of a life in limbo; this is not a recovery!"

A public meeting on the subject of EURs is being organised by the South Brighton Residents' Association on Tuesday, 7 June at 8.10 p.m. in the Community Hall in Beatty Street in South Brighton, Christchurch.

Examples of the Christchurch City Council ignoring legal advice, MBIE guidance and its own recommendations regarding the procedure for and application of Existing Use Rights:

Example 1:

In a presentation given by a Christchurch City Council Senior Planner in February 2012 we read the following (our highlighting):

• There are two options for re-establishing a building and/or activity (particularly relevant for earthquake damaged buildings) on a site, either by demonstrating that existing use rights apply, or obtaining a resource consent. A property may also seek an existing use rights certificate from Council that states explicitly that such rights apply. The deposit fee for such an application is $1,035.00 (including G.S.T.).

• The Council cannot accept that existing use rights exist if there is not sufficient factual information. The onus is on the applicant to provide this information to Council.

In the vast majority of cases, insurance companies or their project management offices (PMOs) have applied for Existing Use Rights, often without the knowledge of the homeowner, and almost always without the homeowner being fully aware of the implications.

To our knowledge, no evidence has been required from the insurer that EURs apply, and certainly no evidence has been provided to homeowners. The Council Planner quoted above states that only "a couple" of existing use rights certificates were processed in the year following the February 2011 earthquake.

Example 2:

Simpson Grierson legal advice to Local Government New Zealand in June 2010 (even before the devastating earthquake on 22 February 2011):

"Executive summary

6. The RMA provides councils with a comprehensive mandate to prevent or restrict both new developments and the extension of existing development in hazardous areas.”

“However, it is also possible that, for example, an area where a disaster had occurred previously, as a result of the hazard, would give rise to an expectation in a community that new or further development would be prohibited there: …”

“15. The 1994 NZCPS provides a basis for councils to take an approach in their plans that encourages avoiding development in hazard prone areas as opposed to relying on mitigation measures."

The mitigation measures the Christchurch City Council is relying on are stop banks with a service life of 20 years or less. This does not meet the requirements of the Building Act (which requires Council to plan for at least 50 years), let alone the requirements of the Resource Management Act (100 years).

Example 3:

On the question of resource consents in combination with existing use rights, the council published the following in its Headsup newsletter in November 2010 (once again, before the hazards introduced by the 2011 earthquakes):

"Resource consent may also be required for filling in these (flood management) areas. These consents will enable site-specific assessments in respect of flood-related issues, the consideration of which is an important part of the rebuild because of sea level rise…"

"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."

Example 4:

"Acknowledging that the minimum floor levels for homes set at one in 50-year flood event (sic) by the Building Act were not adequate for the city’s more flood-prone areas. These levels needed to be set at one in 200-year event."

Example 5:

MBIE Guidance issued on 20 December 2010 (yet again, before the hazards introduced by the 2011 earthquakes) titled "Guidance on House Repairs and reconstruction following the Canterbury earthquake" states the following on page 54 (our highlighting):

"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."

This guidance has been consistently ignored, as exemplified by the houses we know of in high-risk areas where the Council has specified floor levels of 11.15 m, 11.27 m, 11.29 m and 11.34 m. Some of these are among the "5" houses the Council referred to in a recent media release.

ENDS

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