Moving day at Matatā - the end of one family's fight against managed retreat

Thursday, 29 October 2020

Where the removal truck should be, two ambulances stand instead.

It’s their second visit this week. Last time, Marilyn Pearce was wheezing so hard they took her to hospital.

Today, 15 years of stress and rage coil her airways like a boa constrictor, squeezing with every ragged breath.

This Bay of Plenty beach front has been the 67-year-old’s home for 22 years. But the sticky sand has tickled the toes of six generations of her family.

**READ MORE:

* We'll need to retreat from rising seas. A new law could set the path

* Time for Government to step up on sea level rise - new research

* Mismanaged retreat? The life-limiting limbo of Matatā's red zone

* Matata existing use rights cull one step closer after Bay of Plenty Regional Council decision

**

The Matatā property was part of the runoff to her grandfather Bernie Magee’s farm. As a kid, she’d ride down on horseback from Manawahe, chasing cows.

Now she’s being chased off her own land, in a managed retreat being watched nationwide by councils grappling with the risks of climate change and natural disasters.

“I’m still a bit like a stunned mullet,” Marilyn says. “Because I really didn’t think it would get this far … If this is going to be a test case, this is not how to do it.”

It’s the history that’s irreplaceable. Her parents moved in in 1989, after Magee subdivided and divvied up the sections. They put up a toilet block and portacom for family holidays.

Marilyn and Rob married here, as did her brother Brett. He came back from Aussie to build her the 12-year-old house that’s about to be surrendered to a demolition crew.

The front plot where her sister Lesley’s house once stood is now a weedy paddock. Watching that come down broke Marilyn’s spirit. Next door are her brother Lyall’s two rentals – he’s refusing to budge.

Great-grandson Zavier rolls up the driveway on his trike. He’s the sixth generation to live on this sunny seafront. This is the only home both he and his dad, Wayde Bird, have known.

“I’m lost for words,” Wayde says, as he loads an old laundry tub on to a trailer.

The Pearces were among the staunch stayers, who vowed to fight for their homes all the way to the Environment Court. Marilyn and Pam Whalley next door joked they’d oil up and stand in front of the bulldozers before they’d sign away their family’s inheritance.

But now, Marilyn is all out of fight. Rob has parked her on a chair and instructed her not to move or get worked up. “We just want to get it out of the way,” he says.

Marilyn was in her parents’ house when heavy rain swelled the puny Awatarariki Stream behind into a torrent, scouring out the debris in its path and dumping 120 Olympic swimming pools worth of silt, logs and car-sized boulders on to the area.

That was 2005. Everyone agrees they should have left then. It would have hurt, but so much less than the 15 years of stress and limbo that have carved 10kg off Marilyn’s slight frame.

But instead Whakatāne District Council allowed them to build again. The council promised an engineering solution to hold back any future debris flows. But by the time the council abandoned that idea as unworkable, in 2012, it was too late.

In 2008, the Pearces reinvested their insurance money, took out a mortgage and spent $425,000 to build a new 303sqm beachfront house. Marilyn's sister Lesley built in 2009. Lyall built in 2010.

And then the district council decided the area was too dangerous to live in, so began a process to clear residents out.

The council called it voluntary managed retreat, but residents arch in anger at every mention of the word voluntary. There’s nothing voluntary about a process that ends with a legal change making you a squatter on your own land.

The process dragged on – the small provincial council left to write the rules for a nationally unprecedented process, to perform convoluted legal gymnastics, to beg for money from the regional council and central government to fund the $15 million buyout.

And now it’s finally over, at least for the Pearces and the 24 other property owners who have signed up. Today is the last day for residents to accept the council’s offers to buy the properties at a value undiminished by the debris flow risk.

On March 31, in what’s believed to be a New Zealand first, a Bay of Plenty Regional Council plan change under the Resource Management Act will snuff out the existing use rights of any remaining residents, effectively evicting them.

An Awatarariki residents’ group is challenging the law change in the Environment Court in December, but homeowners had to sign their homes away before then.

“It’s bloody shocking,” Marilyn says. “People’s homes are gone and we don’t even know if it’s legal.”

The day before moving day, Marilyn sat at her makeshift kitchen table, her back to the million-dollar sea view she’s given up for less than $1 million, and cried.

“I'm being an old sook,” she scolded.

She’d kept out one mug for every one of the 13 family members staying for a final farewell. They had her daughter Stacey’s secret sticky chicken for dinner, followed by banoffee pie – one last memory to leave on the land.

Marilyn doesn’t believe the area is that dangerous, and thinks the council should have been able to protect it.

But in the end, the Pearces weren’t prepared to waste any more money and healthy years fighting. Even if the Environment Court appeal succeeded, they could be left with an unsaleable house. They still had $250,000 on their mortgage. Rob – a valve technician – could see himself still working at 80. The cost was just too high.

But the decision cut Marilyn deep. “I felt absolutely broken.

“They have put us between a rock and a hard place. Even if you win at court you are not winning at all.

“It’s wrong. None of us are willing sellers, really. You were forced under bloody severe stress/duress, being told you might get nothing. Most hard-working, middle-class bloody Kiwis, their biggest asset is in their home. And just to have that bloody taken.”

A ute rolls past towing Tawai Thatcher and Ian Lockett’s windows. They only moved out a day earlier but a demolition crew is already stripping the two-storey home of anything salvageable.

A pink rose at the front door is still in bloom, and a solitary peg hangs off the rotary washing line. They’ve moved to Kawerau but they’re done talking. They just want to move on.

Across the main road at Pioneer Place three houses have already gone, wisps of cordon tape and the odd garden plant the only reminder of their former life.

One of those belonged to terminal cancer patient Puti Rowe, who wasted some of her last months fretting about how to sell her limbo-locked home to buy a smaller place for her husband, who had a brain injury.

Of the 34 properties deemed high risk, 25 have signed up to the managed retreat deal. That leaves Marilyn’s neighbours the Whalleys, her brother Lyall’s two houses, two guys living in containers, and several empty sections.

As one resident put it, to save a community, the authorities have destroyed it.

There are ghost letterboxes and driveways to nowhere. Their former owners have dispersed from Edgecumbe to Tauranga, but in many cases, anger has travelled with them.

Victoria Humphries-Irwin and Wayne Irwin were among the first to move out. They were so bitter about the process, they fled 2600km.

Having lived in Australia for 35 years, they had returned to their Matatā property in 2015, before the talk of managed retreat, planning to retire and live a happy life by the beach.

Now, they regret ever immigrating – the move cost money, anxiety and marital discord.

The first managed retreat offer in 2016 was “pathetic” – they’d spent $150,000 on renovations and the valuation was about $90,000 less than they originally paid.

The second offer process – which began last July, when the government and regional council agreed to contribute funding – involved the council getting a valuation, with homeowners able to counter with their own valuation.

A gagging clause prevents residents disclosing their buyout payment, but Wayne says the whole move has cost more than $50,000. They’ve had to start again in the rural New South Wales town of Culcairn.

At 73, he resents the upheaval, and the loss of what was supposed to be home for the rest of their lives.

“I’m a Kiwi by birth but I’d never return. Whakatāne has left a very sour taste in my mouth, with the way the whole thing was handled.”

The area’s longest resident, Mark, thought the managed retreat process itself was fair, even if he’s also lost money. He and his wife have built a new house on a nearby section.

But the long path to get there was “unsettling”. His kids were 10 and 12 when the debris flow hit. Now, they’ve left home.

“It has caused a heck of a lot of trauma and drama for a lot of people.”

Authorities were not prepared, he says. The district council was “too nice” in trying to find a way to let residents stay and needed more help from the regional council and central government. The regional council – which left the district council to lead the process – “kept their head in the sand” until pushed to contribute.

All of that must change, Mark says.

“Everyone who is involved needs to have a process in place. This is real. This is happening. It’s going to happen more often. Everyone needs to take that on board and get used to the idea. That means coastal homeowners, city councils, regional councils, local government, need to really focus on this.”

As Marilyn and Rob shoehorn themselves, grandson Wayde, his partner and Zavier into their new, half-size house at the other end of town, it’s not over for some.

On the main road at Arawa St, Greg Fahey hangs over his protest sign, which reads “Whakatāne District Council leave our homes alone. Watch out the rest of NZ, you’re next”.

There have been many tears shed as neighbours disappeared, Fahey says. But this 67-year-old is going nowhere.

“I will not move from here, without 15 years of compensation. We’re not talking peanuts here either. Because I am not a willing seller … I will not concede that I cannot use this property.”

He has all the trappings of a home – lemons the size of grapefruit and kumara grown in sand dredged from the Awatarariki Stream.

But he’s been reduced to living in a shipping container now that he’s unable to build the two-storey, three-bedroom house that was consented before the 2005 event.

When his wife Pauline developed dementia and could no longer work as an ambulance officer, they could no longer afford to rent, so moved into the shipping container. Pauline struggled with the confinement, and the portaloo.

Now she’s in a care home an hour’s drive away in Rotorua and Fahey visits three times a week.

This section is his children’s inheritance and he won’t let it go for the $225,000 they valued it at.

“If you wanted to get rid of me, give me the equal somewhere else. And give me compensation for how I've been treated.

“By the time I’ve paid the bank back $60,000, do I buy a mobile home and live in that for the rest of my life and my children have got nothing? If I’m the only section left here, I’ll fight these people right till the blimmin’ end.

‘’If they get away with doing all this stuff down here, this is how everyone around the coast of New Zealand will be treated. We’re just the guinea pigs.”

Around the corner, Greig Thorby is mowing his driveway. In the past year, he’s built a 3m lean-to on to his shipping container, complete with wooden floors and ranch sliders.

The building is therapy, he says with an anarchic laugh. “It keeps me from wanting to punch someone.”

He’s not altogether joking – he’s already been trespassed from Whakatāne District Council for allegedly threatening council officers.

Chunky letters above his second-hand bar spell out “dream” but Thorby is stuck in a nightmare. He says the council’s first valuation offer was an “offensive” $145,000. The final offer was $210,000, after an independent valuer suggested $220,000.

“Even at $210,000, I can’t buy anything. I’m unemployed. I’m never going to get a mortgage. I can’t afford to build. I can buy half a house in Kawerau. I’m stuck. It’s financial suicide…

“It just does my head in. I’m prepared to fight them. It’s the only thing I’ve got left – nothing else. And I have a right to live somewhere.”

But if the Environment Court endorses the plan change process as fair – as an independent panel already has – on March 31, 2021, that right will cease.

What happens then is uncharted territory. The district council plans to compulsorily acquire the properties under the Public Works Act, to create a reserve.

Because it’s a Bay of Plenty Regional Council plan change that extinguishes homeowners’ rights, it will be up to them to enforce the ruling. But they would not comment on how that might happen until after the Environment Court appeal. Thorby has promised any move to evict him will be “a licence to war”.

Marilyn and Rob are due to hand the house keys to Whakatāne District Council strategic project manager Jeff Farrell. As councillors have come and gone, he’s been the one constant.

He’s anxious to emphasise that what’s happened at Matatā is not directly applicable to councils facing distant threats from slowly rising seas. Because the risk was to life, not just property, they did not have the luxury of time, Farrell says.

But there are lessons for other planners, and the government. The first is that they should have pulled out immediately after the 2005 disaster.

But even having missed that opportunity, navigating the convoluted plan change process and negotiating an ad-hoc funding package all caused further delay, prolonging homeowners’ stress. The whole process, from investigating solutions, to risk assessment, to the managed retreat, has cost the district council more than $10 million.

Farrell agrees with the recent RMA review, which found councils need more national direction, a central fund for risk protection work and a dedicated managed retreat law.

Any process must be transparent, quick and easy for homeowners to opt into, he says.

He wants national guidance on how risky is too risky, whether buyouts should apply to both residential and commercial properties, and a pathway to managed retreat that doesn’t involve legal gymnastics between district and regional councils.

As Thorby puts it, “These are national issues. These decisions shouldn't be made by back country hicks.”

Farrell says there should also be a clear valuation method, a funding pool councils can apply to, an appeals process, and a way to prevent speculators making money buying risky properties, in the knowledge they’ll be paid out.

Any decisions about how risky is too risky must also line up with insurance company expectations, he says. Otherwise homeowners could be caught without insurance, unable to sell and unable to borrow, but without a public buyout option.

“What you’d hate to see is sections of New Zealand that people can’t get insurance for, because the policy framework has a higher level of risk than what insurance companies are prepared to support.”

All the Matatā homeowners were insured before leaving, but it’s understood one insurer has threatened to pull out after the March 31 plan change deadline.

Insurance Council boss Tim Grafton says insurers are likely to continue to cover existing homeowners in climate-change or natural hazard-threatened areas, but premiums and excesses will increase. That might mean a floodplain property will have a $500 excess for fire damage but a $10,000 excess for flood damage.

But some companies might choose not to take on new customers in risky places.

While planners said individualised risk assessments were impractical for Matatā, Grafton says that might be possible for insurers as the science of prediction becomes more detailed and accurate.

He also supports the RMA review’s call for a new law to provide a “coherent and consistent” approach to climate change adaptation and retreat.

Councils need more funding and technical support for adaptations that manage the risk, to stave off managed retreat.

However, he would not support an EQC-style scheme for climate change-related damage, as that would send a message that any damage would be covered, however frequent or dire.

“Sea level is rising. It’s certain. And it would be nuts to be thinking you could somehow draw money into keeping people in risky areas. Where that money needs to be put, clearly, is into managing and reducing the risk for people and their property.”

Back at the Pearces’, the moving truck has finally arrived. In a week or two, their forever home will disappear and 80 years of family history will be scrubbed from the sand.

The only solace is they can finally settle into a quiet enjoyment of life that’s been missing since 2012.

“Whatever time we’ve got left on this planet, we’re not going to be fighting and carrying on like we have for the last 15 years,” Rob says.

WHAT THE RESOURCE MANAGEMENT ACT REVIEW FOUND

The Resource Management Review panel, headed by Tony Randerson QC, found New Zealand's councils and laws were not equipped to deal with the complexities of climate change adaptation and managed retreat.

Problems included:

• Insufficient focus on adapting to climate change and natural hazard risks.

• Confusion between overlapping laws.

• Capacity, capability and funding barriers.

• No clear risk management framework.

• Lack of clarity about which agencies are responsible.

The review recommended:

• Establishing a Managed Retreat and Climate Change Adaptation Act.

• Address issues of liability and compensation for managed retreat.

• Establishing an adaptation fund for climate change risk reduction.

• Giving district and city councils powers to snuff out existing land use rights where necessary to adapt to climate change or natural hazard risks. (Only regional councils can currently do that).

• Allowing land use conditions such as relocatable housing or limited tenure.

A TORTUROUS TIMELINE

May 2005 – After heavy rain, the Awatarariki Stream dumps 120 olympic swimming pools worth of silt, logs and car-sized boulders on to Matatā.

2005-2012 Whakatāne District Council investigates engineering barriers to protect the community from another debris flow.

2012 – The council decides no engineering protection is feasible.

2015 – A risk assessment finds high risk to life and property in the debris flow path, forcing the council to act. The resulting Awatarariki Debris Flow Risk Management Programme includes 10 work streams to reduce risk, ranging from early warning systems to plan changes to prohibit new buildings. Managed voluntary retreat is work stream number 7.

2016 – The district begins property valuations and making managed retreat offers to residents (despite no funding being available). The process is “voluntary” but with the threat of future eviction by plan changes.

2017 – The process is started to enact a district plan change which prohibits new builds by rezoning the land from residential to coastal protection, and a regional plan change which effectively evicts residents by snuffing out their existing use rights.

July 2019 – Central government, Bay of Plenty Regional Council and the district council agree to a three-way split to fund the $15 million estimated cost of managed retreat. The council restarts the managed retreat offer process.

31 October 2020 – Managed retreat buyout offers expire.

31 March 2021 – Property owners’ existing use rights will be extinguished, making residents squatters on their own land.