Three adjoining townhouses above the cliff collapse, as at November 14. Photo / supplied
Three adjoining townhouses above the cliff collapse, as at November 14. Photo / supplied
A specialist property lawyer is concerned about a cliff collapse on the North Shore’s Stanley Bay.
Joanna Pidgeon of boutique firm Pidgeon Judd expressed alarm at the dramatic situation beneath a three-townhouse property at 73 Stanley Point Rd.
Pidgeon said it must be “awful” for those homeowners.
“Froma legal point of view, these owners would need to contact EQC and their insurer about compensation and get engineering advice on the safety of the houses ... No doubt the council would want some oversight also, having responsibilities under the Building Act 2004 if buildings are dangerous,” she said.
Pidgeon said in New Zealand, even with a slip losing some of the front or back yard of a property, there was the concept of Cuius est solum, eius est usque ad coelum et ad inferos. That is Latin for “whoever’s is the soil, it is theirs all the way to heaven and all the way to hell”.
Cliff in front of homes at 73 Stanley Point Rd slipped during heavy rain in the winter. Photo / Michael Craig
“This is a principle of property law stating that property owners have rights not only to the plot of land itself, but also the air above and (in the broader formulation) the ground below.”
These are not absolute rights. For example, planes are able to fly in airspace, but the property owners will continue to own their lot which now may be part of the beach, or rubble at the foot of the cliff, Pidgeon said.
So there would be no need to readjust their titles, just an understanding that part of their unit or accessory unit may be at the top of the cliff and some might be at the bottom.
Some of the property may not be useable, Pidgeon said.
Pidgeon’s own original family home in Torbay had issues with land collapse.
“We had a slip, leaving our fence in mid-air and needed to have drainage put in the ground to prevent further slippage.
“I think my parents were relieved when the property was finally sold many years later. The property had great views and was great for backyard cricket. If you hit the ball over the cliff you scored a six but you were also declared out because the ball was lost,” she said.
The houses are at 2/73, 3/73 and 4/73 Stanley Point Rd. The owners did not respond to a series of questions sent to them about insurance, stability and the cliff.
A separate house at 1/73 Stanley Point Rd is some distance from the cliff and faces the road. Its owner says he has no enforcement action against him and he isn’t in the same situation as his cliff-dwelling neighbours.
Kerri Fergusson, Auckland Council compliance response and investigations manager, said in 2017, owners of the properties received enforcement action after the removal and alteration of trees at the top of the cliff.
At the time the abatement notice was issued, no further risk to the cliff was anticipated, she stressed.
“With the conclusion of the enforcement action taken at the time, no further action can be taken retrospectively in relation to the breaches. It is important to note that there is no evidence available that would indicate a causal link between the breaches which took place in 2017 and the recent slip,” she said.
Owners of the three homes did not answer questions the Herald sent about how safe their homes are.
But they did get council enforcement action this year with dangerous building notices requiring work to the decks nearest the cliffs.
Herald images show deck structures have been altered. They also show black material hanging over the edge of the cliff in what appears to be a mitigation effort.
Ross Roberts, council head of engineering resilience, said part of the cliff in front of the three places had fallen due to heavy mid-winter rain.
“The slip beneath Stanley Point Rd occurred on July 12 following an extremely intense downpour. Following an assessment by council engineers, it was deemed that the landslide was a natural occurrence caused by the period of heavy rain,” Roberts said.
A Tonkin & Taylor preliminary report for Vero indicated the middle of the three dwellings was damaged by the slip.
“Has the dwelling or appurtenant structure been damaged as a result of the natural disaster?’ was one of the questions listed in the summary of information.
The answer was no for 2/73 or Unit B, 73 Stanley Point Rd and the same for 4/74 or Unit D. But the answer was ‘yes’ for 3/73 or Unit C at 73 Stanley Point Rd.
