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Navigating the legal fishhooks of flooding and storm damage

9 Feb 2023

| Author: Kate Dickson

After last week’s widespread flooding and property damage in Auckland, Northland, the Coromandel and the Bay of Plenty – and with a cyclone said to be on the way – many people are likely to be seeking help from their lawyers. While the storms have passed and floodwaters have receded, the practical and legal consequences of the damage will be felt for a long time.

As we have seen from previous natural disasters in New Zealand, many people will require legal (and other) assistance to navigate the complex and unfamiliar systems they now find themselves in. Listed below are some of the key issues lawyers may be asked to assist with.

Emergency powers

People may be wondering how and why emergency management organisations have been entering private land and directing the response to flooding. A state of emergency was declared in Northland, Auckland, the Coromandel and parts of the Waikato under the Civil Defence Emergency Management Act 2002.

This triggers a range of powers to respond to an emergency. Once a state of emergency has been declared, this allows Civil Defence Emergency Management Groups and controllers to:

  • close or restrict access to roads or public places;
  •  remove or secure dangerous structures and materials;
  • provide rescue, first aid, shelter and food;
  • conserve essential supplies and regulate traffic;
  • enter onto premises (i.e., to evacuate or rescue people); and
  • evacuate premises and places.

Council building inspections

Councils have been inspecting damaged buildings and affixing either a red, yellow or white sticker. These stickers demonstrate the outcome of a rapid building assessment:

  • red means the building is dangerous and must not be entered;
  • yellow means the building (or part of the building) is potentially dangerous and may include some restrictions on use (eg, being able to enter only for a limited time); and
  • white stickers mean the building is safe for normal use.

Both red and yellow stickers are formal notices under the Building Act 2004 and cannot be removed. It is an offence to intentionally damage, alter, remove or interfere with such stickers, punishable on conviction by a fine of up to $5,000 for an individual or $50,000 for a body corporate. It is also an offence to intentionally occupy a building in breach of a sticker, punishable on conviction by a fine of up to $200,000.

Homeowners should contact their insurance companies and work with the relevant council to undertake more detailed assessments as to the level of damage and repairs required. It can be a time-consuming process to have a red-or yellow-stickered house assessed, repaired and reclassified.

Residential tenancies

A significant number of tenants will have experienced issues with flooding, ranging from minor damage to rendering properties uninhabitable.

Some key legal points that both tenants and landlords should be mindful of are:

  •  Tenants are required to notify the landlord as soon as possible after discovery of any damage to their premises, or of the need for any repairs.
  • Landlords are responsible for the maintenance of the property. This responsibility is not subsumed by a natural disaster, so if property has been damaged then landlords have an obligation to remedy this, including by drying out the property if this is necessary.
  • Landlords are not responsible for damage to belongings within properties. Tenants will need to contact their insurer to assist with this (if they have contents insurance).
  •  If a rental property has been partially destroyed (or part of the property is uninhabitable), then the rent payable should be reduced. Alternatively, an application could be made to the Tenancy Tribunal to end the tenancy.
  • If the rental property is destroyed (or so seriously damaged as to be uninhabitable), then either the tenant or the landlord can give notice to end the tenancy.

The tenant’s notice period is two days and the landlord’s is seven days. In such cases, there may be a question about whether the damage is so serious it renders a property uninhabitable. New Zealand case law on what amounts to “uninhabitable” developed as a result of the Christchurch earthquakes. It confirms that each case must be considered on its merits, having regard to the circumstances of the tenants. What is habitable for young people occupying a flat may not be for a family with a child with bronchial problems, or an elderly couple whose mobility is affected by their age.

Landslides and liability

Liability for landslides or slips can be complex and is fact-dependent. Some general principles are provided below, but an assessment of the particular circumstances will be required in each case.

If land or a building has been damaged because of a landslide, generally it is the owner of the land’s responsibility to repair the damage. There is not an automatic obligation on the neighbour whose land slipped. However, the case is different if the slip resulted from negligence by the neighbour.

Conversely, a downhill landowner could be liable to the uphill neighbour if the landowner had done something to affect the stability of the uphill land (earthworks, for example). Landowners have a right of support for land in its natural state. This does not mean a downhill landowner has an obligation to stabilise a neighbour’s land – just a duty not to remove support that is already present.

Finally, landowners have a general duty of care to act reasonably to prevent or mitigate damage to a neighbour’s property arising from a hazard they are aware of on their land. So, if there is a risk of further slips, an uphill landowner may have an obligation to take reasonable steps to remove or reduce that risk, depending on their knowledge of the hazard and the ability to foresee the consequence of not dealing with it. ■

Kate Dickson is a local government and environmental law specialist and an associate at Wynn Williams ■

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