risk

TDC officials are claiming that property I , and many of my neighbours in Mapua and Ruby Bay , is likely to contain contaminated soil hazardous to human health – without a shred of empirical evidence, especially no soil testing. They are also trying to record (and apparently already have recorded ) their claim on a an official legal document , the LIM (Land Information Memorandum), attached to my property as well as adding our properties to a hazardous site register- HAIL- created by the Ministry for the environment (MFE). (The statements about persistent storage and use and likely presence of hazards on in category 10 – our classification – description on the HAIL register are as unscientific and non-evidence based as as the TDC claim – more on the idea of evidence , uncertainty and inference in a later post – but have a look at this other Ministry for the Environment website for “what to do” about managing environmental risks)

After writing to the TDC to protest (see my letter requesting an extension ) I started investigating how to challenge this claim. My first question is about evidence based policy. Shouldn’t a public claim about risks (or safety) to human health associated with my person or my property have to be backed by evidence? quantitative evidence? scientifically obtained evidence? evidence for and evidence against, with reasoned argument in between? based on intelligent balance of probabilities ? We ask (and often require) that claims about health/safety risks be evidenced based from our businesses and as employees. Why not from our local authorities or other government agencies?

For example we require health sector providers and technologies to have at least some evidence to even be able to market their products: Has pharmaceutical ABC or medical procedure XYZ or health provider PQR been tested/investigated for side effects as well as intended effects? Every media outlet and talk back show thrives on questions, and answers, like : Is a glass of Shiraz a day really good for my heart health? Will these vitamins or that over the counter health supplement or that food do what it claims, for my health? Brand X tyres are safe in rainy or icey conditions – are they really? Will that foundation built in 1931 – or 2014 – hold up in the next big earthquake? Exposure to microwaves is hazardous to your health – or not, or maybe? And of course witch hunting , where accusation is itself evidence of guilt still prevails (especially prevails – in the enabling legislation for LIMS – see below). ….Many a bureaucratic career is made on the back of searching for any “evidence” to prove or support a claim about a public safety or health hazard , no matter how thin, rather than via the scientific method which involves also searching for evidence to disprove the claim, then weighing, intelligently, the balance of probabilities before making a decision – including the decision to do nothing until more information is collected .

Claim and counterclaim. Argument and counter argument. Accuser, judge, jury, and executioner. How does one learn the truth, any truths, about claimed risks and risk assessments? In my (our) case, how does one correct inaccurate or misleading information held about you ( or your property/business) by a local authority? Or, from a slightly different angle, what responsibility does the TDC or any council – or the Ministry for the Environment – have to ensure that the information they provide to the media, to the public, in formal documentation is accurate and not misleading?

Let’s start with a LIM- a Land Information Memorandum. A LIM is a document local authorities create and hold – the information that shall/may be on it is specified by Section 44A of the Local Government Official Information and Meetings Act 1987. Before jumping to Section 44A , note that LIMs and the information on it are controlled by this piece of legislation – and this legislation “binds the Crown”. One of the major purposes of this act is to provide for accountability of local government. ie we, through the office of the Ombudsman, and this legislation, can hold the TDC accountable for the information recorded on LIMs . Section 4 reads (highlighting added) :

The purposes of this Act are—
(a) to provide for the availability to the public of official information held by local authorities, and to promote the open and public transaction of business at meetings of local authorities, in order—
(i) to enable more effective participation by the public in the actions and decisions of local authorities;and
(ii) to promote the accountability of local authority members and officials,
—and thereby to enhance respect for the law and to promote good local government in New Zealand:

But the Act (Section 25) also empowers each and every property owner – not through the Ombudsman – to require that a Council correct inaccurate, incomplete and misleading information as well as record the fact that such a request for correction has been made and denied on that piece of official information :

25 Correction of information (1) Every person who is given access under section 23(1) to personal information may, by letter addressed to the local authority,—
(a) request correction of the personal information where the person believes that the information— (i) is inaccurate; or (ii) is incomplete and gives a misleading impression; and
(b) require that a notation be attached to the information indicating the nature of any correction requested but not made.

Accountability? Hmm (Jan 20 2015) – I have been checking up on Ecan – they have a land use register site which ostensibly looks at haxardus activities – BUT to get to theri regiater look what you have to agree to!!

Listed Land Use Register

The information provided is derived from Environment Canterbury’s Listed Land Use Register and is made available to you under the Local Government Official Information and Meetings Act 1987 and in accordance with Environment Canterbury’s Contaminated Land Information Management Strategy (ECan 2009). Environment Canterbury has not verified the accuracy or completeness of this information.

Listed Land Use Register Statement:

The Listed Land Use Register statement summarises information held in Environment Canterbury’s records about land where hazardous activities are known to have occurred or are currently occurring in Canterbury. Environment Canterbury has not verified the accuracy or completeness of this information. If a hazardous activity is not known to be associated with a piece of land this will be indicated in the statement.

Generic and Long-term Site Management Plan documents:

Residential land owners can obtain a site management plan from the Listed Land Use Register if they know or suspect their property is contaminated. The site management plans cover small scale soil disturbances which do not require authorisation from the district council. Scenarios covered include excavations, landscaping, gardening (vegetables and ornamentals) and where children may come in direct contact with or eat soil.

Exclusion of Liability

By accessing and using any information, documents, or tools contained within this site you (the customer) acknowledge and agree that Environment Canterbury:

Makes no warranty or representation:
- a. Regarding the reliability, accuracy or completeness of the information provided or the level of contamination (if any) at the relevant site; or
- b. That the site to which the information relates is suitable or otherwise for any particular purpose;
Expressly disclaims and is not responsible to you or any other person for any and all liability for any loss, cost, damage or expense, suffered or incurred by any person as a result of use, reference to, or reliance on any information provided or any documents or tools used.
Is not liable for any falsified or inaccurate information provided by the customer or any other person for the purpose of obtaining a statement or site management plan from the Listed Land Use Register.

Back to the LIM legislation. Section44 A part 2 lists a number of things – the relevant one for me/us is 2a (emphasis added – and for further reference note the adjective “likely ” that modifies presence- ) :

The matters which shall be included in that memorandum are—
(a)information identifying each (if any) special feature or characteristic of the land concerned, including but not limited to potential erosion, avulsion, falling debris, subsidence, slippage, alluvion, or inundation, or likely presence of hazardous contaminants, being a feature or characteristic that—
(i)is known to the territorial authority; but
(ii)is not apparent from the district scheme under the Town and Country Planning Act 1977 or a district plan under the Resource Management Act 1991

That term “likely” turns out to be VERY important , as discussed on the Ministry for the Environment’s (MFE) website Crown Law Advice to the Ministry for the Environment – Potential Contamination by Horticultural Soils about putting – or not – imprecise actual soil testing information about likely risks on horticultural land onto LIMS for 5000 homes in Auckland . In my next post I’ll discuss this case, and it’s relevance for our case, in detail. Happily, the lawyers here have some great common sense , not just about the LIM issue but about the nature of communicating with the public about uncertainties – totally ignored by the TDC it seems) . For now, take heart- the sound legal advice that the Ministry of the Environment provides for Councils about NOT putting information on contamination on LIMS was based on actual soil testing , how much more so will it apply when there is no soil sampling evidence at all – only a single digital photograph ?

BUT….It is also rather disturbing to read in section 44A part 5 :

In the absence of proof to the contrary, a land information memorandum shall be sufficient evidence of the correctness, as at the date of its issue, of any information included in it pursuant to subsection (2).

I think this statement can be read two ways. On the negative side – it seems to be saying : whatever is written on the LIM is assumed to be gospel truth unless there is proof to the contrary. (There is no mention of what constitutes proof nor who actually has to provide (and pay for) this “proof to the contrary” ). On the positive side, it suggests that BEFORE something is stated on a LIM there needs to be a substantial burden of proof/evidence because others will be acting on the basis of the truthfulness and accuracy of what is on the LIM. The Privacy Act clause 7 is pretty specific here: “An agency that holds personal information shall, if so requested by the individual concerned or on its own initiative, take such steps (if any) to correct that information as are, in the circumstances, reasonable to ensure that, having regard to the purposes for which the information may lawfully be used, the information is accurate, up to date, complete, and not misleading.” There appears to be a great deal of messy case law and legal opinon applying to Councils who misrepresent factual information on LIMS. I’m reading through a lengthy piece of written legal advice to Local Government Authorities about this just now on the issue of reclassifying zonal hazards . But TDC needs to tread carefully here. As spider man Peter Parker – or originally Voltaire -says “with great power comes great responsibility” .

I don’t like the idea of having to resort to legal representation. But I also don’t like to be subjected to public claims about my property that are not evidence based.

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

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.
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.
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.
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:

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.

What’s in a LIM? Does the information need to be correct, complete, and not misleading? What if it is not?

TDC claims of (more) Contaminated Land in Mapua – rubbish!