A North Canterbury woman with a crumbling and leaky earthbrick home says the past decade has been the worst ten years of her life.
“This should never have been allowed to be built,” says Nic Purdom as she walks Fair Go around her unfit building.
Nic‘s home is built from Excalibur earth blocks – a product that has featured before on Fair Go in a house that failed, flaking and falling apart just like hers has for years.
Worse, the Government’s building regulator has weighed in at her request and determined the local authority Waimakariri District Council didn’t do it’s job when it signed off the work - but that same council is now avoiding responsibility because Nic didn’t rush to court to sue them.
The house itself is standing but lets in damp, the wind and sometimes it even rains indoors.
The block maker went into liquidation nearly 20-years-ago – there were other stories then about product failure.
Despite that, Waimakariri District Council later accepted reports from the former owner and builder of Nic’s home that it could last 50 years as a house is supposed to in New Zealand.
“The council's let us down, big time“ says Nic’s partner Kerry Hammond, who is choking back tears as he talks about the stress this has caused them.
There had been a note on the LIM report that the Excalibur blocks need regular maintenance but Nic was satisfied it was not a major problem. After all, Waimakariri District Council had given the house a code compliance certificate (CCC) in 2008.
She went ahead and bought the place with her mum in 2010.
A CCC is not a warranty but it does signal the council is happy the building meets code and will last. In this case those blocks were trouble from the start, but was the CCC the clincher?
“If it had never been issued a code compliance it would never have come to market and they would never have bought it,” says builder Darin Hammond.
Yes, he’s Kerry Hammond’s brother but also a licensed building practitioner and in his level-headed opinion the house was falling down and because the blocks are structural and supposed to hold up the roof this is a huge problem.
“This house has to come down to get reconstructed. There is no way to do a repair other than taking it back to the floor,” says Darin.
Waimakariri District Council documents seen by Fair Go report that the builder and former owners had put pressure on the council to sign off and supplied expert engineering reports to support their case.
All of that though looks hollow to Nic and Kerry in light of a chief executive’s determination from the Ministry for Building Innovation and Employment.
Darin applied for that determination on their behalf and MBIE spent months commissioning expert advice, taking two rounds of submissions from Waimakariri District Council and then made the call.
MBIE determined the building failed to meet code and wasn’t built to last and the Council ought to have known that at the time.
MBIE also revoked the CCC saying Waimakariri District Council “did not correctly exercise it’s powers of decision” in granting one.
The Council disagreed but decided not to appeal that by going to court.
Nic figured it was game over – so did Darin: “That's how we perceived it from the council from the first meeting - going there and them saying ‘yeah we can see there's some liability here for us go away and establish a claim’.”
They presented the claim. Council took months to reply, then met in private weeks after the tenth anniversary of its decision to grant that CCC.
This is crucial because Nic had not filed a lawsuit against the council and there is a ten-year legal limitation on bringing one for bad building work.
The time limit had just expired and so the council was home free – councillors debated buying the house and bowling it, or even making a small compensation payment, but decided to leave it with the lawyers knowing the couple had said they could not afford to sue.
Councillors were following the advice of their chief executive Jim Palmer, who’d been in the job when the CCC was granted wrongly.
In a report obtained by Nic under an official information request, Jim Palmer went on to add his assessment of the potential blow-back for leaving this claim with the lawyers: “There is a risk the owners will go public with their claims and that they will likely gain public sympathy for their position. the council will attract negative publicity and despite giving a brief defence, it will probably not be convincing to the public.”
Fair Go has tried to engage with Jim Palmer directly - so far he has only responded through a council spokesperson.
“The Council reviewed the material submitted in support of the application for CCC and after due consideration believed it had reasonable grounds to issue the CCC.”
Jim Palmer’s statement adds, that consideration included expert opinions council was entitled to rely upon. As to the claim for losses Nic and her family have suffered: “There are many parties who have played a contributory role, and the council empathises with the current owners’ predicament.”
His statement goes on to say: “The best way of addressing this matter would have been through the courts where the liability of all the parties involved in building the house, advising the former owner and the council on code compliance, advising the current owners at the time they bought the property and subsequently, could have been considered.”
Jim Palmer points out again it is too late to go to court and the ten-year limitation statute is a solid legal defence but Auckland lawyer Adina Thorn questions the ethics of using that in this case, very robustly
“Do you want to be that council? A council that's sitting on legal rights when they got it wrong? The law says they've got it wrong and you’ve got a leaky home that's going cost huge amount of money for these poor people, huge amount of stress and you're going sit back? Most people don't want to be members of that council.”
Adina is urging Waimakariri District Council to reconsider and engage regarding an ex gratia payment - one from a sense of moral obligation rather than strict legal liability.
“There isn’t a floodgate because this case is a very rare case where the law has said inside ten years ‘you got it wrong council’.”
Since Fair Go got involved, one district councillor has indicated he is willing to meet Nic and her family and hear them out.
Councillor Paul Williams will tell anyone he works for the ratepayers - which includes Nic - not for the Council. He told Fair Go he is prepared to re-examine the matter himself and ask colleagues around the Council table to do likewise.
Nic can only hope he finds her case convincing and that there’s no time limit on doing the right thing.