Council backs down on floor policy after legal threat from builders

Thursday, 16 December 2021

Stuff visited various members of the Westport community to see how the recovery is going. (Video first published in September 2021)

The Buller District Council has reversed a decision to require a minimum floor height for new and rebuilt homes after threats of legal action by a group of builders.

Almost 500 homes were flooded when the Buller River reached a record 12.8 metres in July. The flood did $97.2m worth of damage, causing 71 homes to be red-stickered and 393 yellow-stickered, according to provisional Insurance Council figures.

After the flood, at a September committee meeting, the district council brought in a new building policy requiring minimum floor heights above the level of a one in 100-year flood based on modelling by experts.

Councillors rescinded the policy at its meeting on Wednesday.

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The policy required homes to have a minimum floor height of 50 centimetres above the flood model and 30cm for commercial and industrial buildings.

Major community facilities related to supply of electricity, telecommunications, water supply or wastewater disposal needed to be built 60cm above the flood level.

Buller Builders & Associates group spokesman Frank Dooley said the policy had been adopted without any consultation.

“The policy was unlawful and in breach of the building code and the Building Act,” he said.

“It would have forced substantial additional cost onto any new build. The builders just wanted to make sure that whatever was put in place makes sense and is best for our community.”

Buller District mayor Jamie Cleine says he’s confident the Building Act will still allow council to require houses be built above flood risk.

The Building Act already made provisions for protecting assets from natural hazards, he said.

Mayor Jamie Cleine said the councillors scrapped the policy after engaging with the group and obtaining legal advice. He said he was confident the Building Act would still allow the council to require houses to be built above the flood risk.

The council had adopted the policy after being approached by builders and homeowners asking for guidance on how to mitigate future flood risk when rebuilding their flood damaged homes, Cleine said.

It was designed to give clear guidance about how residents could protect their homes from anything less than a one-in-100 year flood – but he acknowledged subsequent legal advice confirmed the Building Act would do the same thing by allowing the council to make decisions about building consents with flood risk in mind.

“The solution we have come to will provide the same outcomes as our policy…we shouldn’t be seeing any houses built without risk management for each section. The policy was far more clear to the average person about what was required.”

A report by council deputy chief executive Rachel Townrow said a group of builders and tradies in Buller enlisted lawyers to object to the policy.

Townrow’s report said lawyers for the Buller Builders & Associates group formally wrote to council in October outlining their objections and offering to meet to find a resolution.

A kayaker makes his way down Menzies Street during the July floods.

They also indicated if a resolution could not be found the group would be prepared to take the council to the High Court.

She said council staff met the group in November and a number of possible legal and practical alternatives were discussed.

Townrow recommended the council rescind the policy and instead rely on provisions in the Building Act to assess building consent applications on land subject to natural hazards on a case-by-case basis.

She said the Act included a requirement on the council to be “satisfied that adequate provision has been or will be made to protect the land, building work and other properties from natural hazards”.

Therefore, the council retained the power to manage flood hazards in accordance with its statutory obligations without the policy.

She also recommended the council develop guidelines for applications, but consult interested parties early next year first.

She said the policy had been intended to address climate change resilience and safety considerations for buildings in areas susceptible to flooding, to provide the certainty and transparency being sought by building consent applicants and landowners on how decisions would be made, and to mitigate risk to council and the community.

She warned councillors that if they did not rescind the policy, it could lead to litigation with the group, which could lead to consequences, including legal and court costs, reputational risk, diversion of staff resources and elevated community interest.

The policy stated council must ensure new buildings or buildings undergoing major alterations are protected from the effects of the natural hazard and had input from a suitably qualified engineer.