I just sent this letter to the TDC on the basis of their informing us that they would make a statement on our LIM that we are “likely” to have contaminated properties ! We and hundreds of other people on land that apparently was orchard land. 

Tasman District Council

Dear Mr Sheldon

On 12 December, we received two letters from you regarding a proposed  inclusion of the following sites on the Tasman District Council Site Contamination Register as A10 and a proposed additional paragraph to be added to the LIMs for these sites, both being properties owned by us : 

• 53A Aranui Road, Mapua, Lot 1 DP 475830, Valuation no. 19380-3406

• 55 Aranui Road, Mapua, Lot 2 DP 475830, Valuation no. 19380-34401

There are a two specifc issues we wish to raise in response to your letters.

The first is to object to the January 16 2015 deadline  you have given  to object to your proposals, and to ask for an extension. Your letters were dated 5 December 2014 but the postmark indicated they were posted on 10 December 2014, and we actually received them on December 12, 2014. So the period in which we have to gather information to support any challenge is roughly four working weeks from the receipt date.  This period includes at least 2 to 3 weeks in which the businesses that we would need to contact to help support  a challenge will be closed for Christmas holidays. Therefore , we request a further extension of at least four weeks (to 13 February 2015) to provide us adequate time to undertake research and o seek professional and legal advice in order to make a reasoned and informed objection 

The second issue concerns your suggestion that our objection is to be limited to provide evidence that the area “was not orchard”.  Our objection will be much broader than that. We will be challenging your claim that our property should be added to the HAIL register site in any category at all . We will also be objecting to your proposed addition to the LIM on our two properties. The LIM is an important legal document that has an impact on the value of our properties, currently and in the future. It is important that information recorded there is factually correct and that only factually correct and verifiable information is recorded there. The information you propose to record against our specific properties  has no basis in fact nor in evidence based environmental science. 

We object strongly to the Council making a decision to include our and properties on a HAIL register based on :

1) the ‘evidence‘ of an aerial photograph from 1948  – evidence of what ? actual behaviours? actual chemicals? possible? likely, more likely than not? on our specific lots?. 

2) completely speculative remarks and a non-quantitative and unscientific inferences about “possible” land use activities involving either significant storage or use of hazardous chemicals in amounts leading to “likely” presence after 70 years  of hazardous substances in amounts that might be harmful to human health – on these two specific properties vs “orchards” in general whatever that might mean in relation to our specific properties, specific land uses on our properties, and specific chemistry of the soils .

3) absolutely no verifiable, site specific  quantitatively and scientifically measured information about current , historic or recent actual hazardous chemical use on our properties  – o mitigations – in relation to scientifically established thresholds about “likely” harm to human health and within margins of uncertainty that are quantitative .

It is undemocratic and ethically wrong that the Council can make unverified and speculative claims in legally binding LIM documents  but the owners of the properties are required to ‘undertake a site investigation’ (at their own cost) to have their properties removed from the register and or change an incorrect LIM ! Note especially the legal issues involved in regard to using a LIM – see links  below. Will the TDC bear the costs if your claim of significant toxicity appended to a LIM  is wrong? If not, don’t make the claim. Moreover, for the last six months we have had builders, tradesman,  surveyors , excavators and ourselves as owners building two new residential homes – have you advised them/us  of your concerns over health and safety issues prior to their beginning works or done preemptive soil testing to protect them, and our, health and safety?  Will you be accepting liability for adverse health consequences to them, to us, if your claims are correct but no measurements were undertaken?

Please in writing and by email your decision regarding the extension we have requested. The other issues need further research – by ourselves, by other affected land owners, and by yourselves.

Sincerely

John Fountain and Lynne Batty

Note 1: the aerial photograph for 55 aranui road has only 5 trees only on a narrow strip to the south west of the section itself and just east of the area you are calling an “orchard”  . Most (90%) of the property appears from that picture  to be covered by a driveway, trees,  and a turning bay and a residence – this land is not an “orchard” by any stretch of the imagination. 

note2  that the legal advice of the ministry for the environment is very sensible – TDC does not have to include anything on the LIM and there are many alternative ways to inform the public. Here is the summary:

Summary of advice

1. Section 44A(2) of the Local Government Official Information and Meetings Act (LGOIMA) provides a mandatory requirement to include information on a land information memorandum (LIM) in certain circumstances, including the likely presence of hazardous contaminants. Just because land had been used for horticulture does not mean there is a likely presence of hazardous contaminants. A council is, therefore, not required to place a notice on a LIM under s 44A(2) of LGOIMA.
2. Under s 44A(3) a territorial authority may include other information concerning the land that the territorial authority, at its discretion, considers relevant. Again this does not require the inclusion of information – it is discretionary.
3. If information has been included correctly under s 44A(2) then it cannot be removed, but if the information is included under s 44A(3) then the territorial authority could also exercise its discretion to remove that information.
4. There are other mechanisms available to provide the public with information about land. This includes the district plan, release of official information under LGOIMA and general publication. Release of information about matters affecting land is not restricted to a LIM.

and here is the second legal opinion from the mfe  , which touched on what is legally prudent as well as what is legal or not: The entire opion is worthwhile reading , but one summary point is relevant:

1. There is no “safe” option for a council that is deciding whether to include relevant information on a LIM. If the information was included but the research was found to be incorrect or inaccurate, home owners whose property values had fallen as a result might wish to sue. If the information was not included, purchasers of properties found to be contaminated might wish to sue. It is not possible to completely exclude liability in respect of LIMs. The exclusion of Part 6 from s 41 of the LGOIMA provides some support for an argument that a council is liable if it negligently includes information on a LIM, even when the information provided is wrong for reasons other than bad faith.