Six months on from Cyclone Gabrielle, the cost of extreme weather events and managing the risk around natural hazards continues. LawTalk looks at a new tool from Toka Tū Ake Earthquake Commission and how this can help prospective property purchasers.
Six-months on from the extreme weather events that marked the start of 2023, New Zealand is facing unprecedented costs associated with natural hazards and extreme weather events. While New Zealand’s recent experience represents only a fraction of the impacts of natural hazards on a global scale, a small economy like New Zealand’s is especially sensitive to the financial and social costs of these events.
Property law research becomes more tort focused
Since the severe weather events of early 2023, Bronwyn McGee, one of the Law Society Library’s Legal Researchers has noticed an increase in the number of property-related research requests and that the subject matter of the research has becomes more tort focused.
“Normally most of the property research we do relates to neighbour or conveyancing disputes. After the Auckland flooding and Cyclone Gabrielle this year, we had a lot of research requests focusing on negligence, nuisance, the duty of care and liabilities of territorial authorities. There is also significant research on commercial lease disputes over whether a property has become untenantable and whether the tenant can cancel the lease for that reason.
“A similar spike occurred after the Canterbury and Wellington earthquakes. We did a lot of research for South Island based firms on insurance policies, reinsurance, exclusion clauses, and the assignment of insurance claims when the property was damaged after a sale but prior to settlement”, Bronwyn says.
Reducing the cost of natural hazards
Probabilistic modelling of potential losses to built environment assets from natural hazards paints a dire reality facing the nation if the status quo continues.
Dr Jo Horrocks, Chief Resilience & Research Officer at Toka Tū Ake EQC, says that loss modelling sends a clear signal that New Zealand cannot sustain the significant costs of ongoing hazard events.
“The estimated cost of 1.2 billion, scarily enough, is just the direct costs of asset damage – repair or replacement.
“What we still need to add into the equation are the indirect and intangible costs, including the flow-on effects to the rest of the economy and the economic cost of social impact. The Canterbury earthquake sequence has proved that the figure can double or triple the direct costs. If we add in a few other cost buckets, particularly around the cost of maintaining reinsurance, we should be thinking about a much larger number as our annual cost of natural hazards in this country.”
The unintended consequences of the rapid housing development
Although natural hazards can seem unpredictable and unavoidable, it is evident that we can prevent some of the consequences of natural hazards by making risk-informed choices about our property and land.
Dr Horrocks provides an example above that shows a large expansion of a suburb subdivision in Awatoto, South Napier, from 2012 to 2020, and a flood hazard mapping from 2016 predicted where flooding might occur. Poignantly, those new buildings were flooded by Cyclone Gabrielle in February this year.
“We know that development is badly needed but unfortunately, we’ve seen some really ill-advised decisions with properties moving far too quickly from construction through to an insurance claim.”
An online platform that facilitates more equitable sharing of information
Toka Tū Ake EQC has recently launched the Natural Hazards Portal – an online, standalone, free-to-access natural hazard risk information site with geospatial functionality, that allows users to access previous, settled Toka Tū Ake EQC claims information at property and aggregated levels.
“We know that sharing of hazard risk information leads to better risk management generally. It enables better risk-based decisions, and more reliable readiness, response, and recovery mechanisms.
“The Natural Hazards Portal allows us to leverage our investment in natural hazards research and science and use the data we have to tell us more about natural hazard risk and the ways that we can reduce that risk.
“Ideally, we’d like to take people on a journey from natural hazard awareness and what that means for property and, communities through to a discussion about their risk and their tolerances to those risks.”
Another tool in the property lawyers’ toolkit
Christchurch based property law specialists, Mortlock McCormack Law partner Hamish Douch and Associate Jamie Stanton see the Natural Hazards Portal as offering a “one-stop shop” for prospective property purchasers to find out about natural hazards and possible EQC claims. The firm is already drawing their clients’ attention to the portal in their reporting notes.
Hamish, who’s also a member of the Law Society’s Property Law Section Executive Committee, sees the portal’s functionality evolving into a central repository for information on properties and locations. Likewise, climate mapping and interfaces with hazards such as overland flow paths and flood zones will assist with a more forward-looking approach to identifying and assessing property risks.
We know that sharing of hazard risk information leads to better risk management generally. It enables better riskbased decisions, and more reliable readiness, response, and recovery mechanisms
From a legal point of view, Jamie says the current LIM documentation takes precedence with respect to legal due diligence on properties. However, further information, and especially when packaged in user friendly technology such as the Natural Hazards Portal is a great tool for clients and is a welcome contribution to the overall due diligence process.
Address privacy concerns and stigma on claims
Privacy and the potential for stigmatising properties with claims were key considerations in the development of the portal. “Essentially, the information on the portal was already publicly available. We have just made the experience of finding it and making it available in one place a lot easier”, says Dr Horrocks.
“We also do not want to stigmatise claims. Claims do not need to be a bad thing, but rather a signal to investigate more. Many of the claims that Toka Tū Ake EQC receives are relatively minor.
“To prove that the information is safe and secure, we went through an extensive privacy assessment to ensure the information storage and transfer couldn’t be abused.”
Work continues to advance the portal
The long-term goal for the portal is to provide a comprehensive view of natural hazard risk that can be seen at a property level all the way through to a national level. Further development is ongoing to integrate the portal with hazard maps and modelling data.
About the Law Society Library Legal Research Centres
The Law Society operates three main libraries with research centres as well as unstaffed branch libraries in District Courts around the country. The Law Libraries provide document delivery and research services to Law Society members.
The legal research librarians conduct research on every practice area. The common research requests are criminal, and family based, and others include employment disputes, companies, ACC, civil procedure, trusts and wills. For more information, visit lawsociety.org.nz/professional-practice/law-library/
About the Natural Hazards Portal
The Natural Hazards Portal is a government initiative led by Toka Tū Ake EQC, to enable users to explore Aotearoa New Zealand’s natural hazard risk and how it may impact them. The first release, in July 2023, gives users the ability to geospatially view the Toka Tū Ake natural hazard claims data to better understand previous natural hazard events in specific areas.
The claims on the portal are all valid, settled, and closed claims from 1997 to present.
It’s possible that claims on the portal may be reopened claims but it won’t be specified.
It shows residential ‘Red Zoned’ properties or other removed properties.
Claims on the portal are those that have been satisfactorily address-matched (>95%).
If you are looking for more information about a settled EQCover claim related to a property, please contact the Toka Tū Ake team at eqc.govt.nz/contact-us/