Jenny Zhong cries, can't sleep and says sometimes she gets out of breath from stress. The mental toll has come after a nearly nine-year fight against the Rotorua Lakes Council to get a Code Compliance Certificate for her home she loves - a place she says has nothing wrong with it. Kelly Makiha reports.
A Rotorua woman has been fighting the local council for nearly nine years after it refused to sign off her home build despite having consented it.
But Rotorua Lakes Council says it cannot legally issue Jenny Zhong a code compliance certificate for her Eastlake subdivision home because of land issues that put it in breach of the Building Code.
Zhong's builder says the council has it wrong and should work out a solution.
A senior Rotorua lawyer describes the council's actions as "disgraceful" and says, in his opinion, it had "washed its hands of a problem it created" and left an innocent party with an unsellable house.
Council records show all other properties in the subdivision have code compliance certificates.
After the Rotorua Daily Post Weekend raised the issue, the council invited Zhong to meet staff to discuss her situation but remains adamant it cannot issue the certificate.
Zhong bought land to build her dream home at 43 Carroll Pl in 2012. Building consent was issued in January 2013 and she moved in on May 30 of that year.
Her builder, the now-retired owner of GJ Gardner Homes, Graham Griffin, allowed her to move in and told her the certificate should be received within five days.
But the council wrote to Zhong's builder on August 21, 2013, saying it had refused to issue the certificate because it had become aware of the potential presence of certain subsoil categories that might mean Building Code compliance relating to durability may not be met.
The council did six soil tests on Zhong's property and others in the subdivision over four years until 2017.
During those tests, it was found her home already had a differential settlement in one area of up to 34mm. A building is expected to have settled 25mm over its lifetime.
Zhong said a council employee told her in meetings if the ground was found to be unstable, the council would fix it. She said she was told this would be done by lifting the carpet and drilling through the concrete foundation. She said she was told the bank on the stream next to her house would also need reinforcing.
During the wait for answers, Zhong said key council staff she dealt with had retired, and Griffin sold his company and also retired.
Zhong said the council decided in June 2018 against issuing the certificate
but she claimed neither the council nor her builder told her. She said she did not know until Griffin told her in September 2019.
Zhong said this was when she started to stress.
"Sometimes it really makes me cry and tears and sometimes can't breathing (sic) ... From 2019, I stress all the time. I just thought 'oh my gosh' and I had big hope ... When I started thinking at night time, I just couldn't sleep."
Zhong said she could not understand why the council would not fix her land issues as the "right thing to do" given it had issued a building consent.
Originally from China, Zhong said English was her second language and she found it hard but tried to get answers, sent several emails and had several meetings with council staff and Griffin.
"I have tried so hard but have failed. It is so difficult for me and it has caused me so much pain and a lot of stress."
Zhong said her home was perfect, with no damage.
Griffin said his company applied for building consent and a LIM report as normal. It was approved to build with a standard slab on the site.
Griffin said the council later had engineering company Tonkin & Taylor do tests because the land was showing signs of subsidence.
The Tonkin & Taylor report said that because the home was built beside a stream, there was a chance of lateral subsidence, meaning the land could go sideways towards the stream, he said.
The report recommended the council drive large poles into the bank to stabilise it, but the council ignored that and said it was just a recommendation, not a requirement, he said.
Griffin said he understood how stressful this had been for Zhong because he had also suffered stress and financial cost.
"Council in the meantime have pushed Jenny and myself from pillar to post while ignoring the fact that the house was built on this section on the advice of council and at no time during the construction were we advised of any potential issue."
Asked why Zhong wasn't given the council's decision immediately in 2018, Griffin said: "I believe that we had pretty much kept Jenny informed all the way, with whatever information we had received."
The delay in informing Zhong was also put to the council for a response, including whether the council thought this was good enough.
Griffin said he had done everything he could to advance the matter.
"'Not their problem' they say. Wrong, if they had done their due diligence in the first place, none of us would be in this situation."
Griffin said had his company known there were issues with the land, it would have designed a suitable foundation as it had for other builds.
"They should admit they got it wrong and sit down with Jenny, and find an acceptable solution, to ease the stress that their incompetence has caused her."
Rotorua senior property lawyer Mark Copeland said, in his opinion, it was "disgraceful" that the council had still not issued Zhong a code compliance certificate.
He questioned what the council had proactively done to work with Zhong, as an innocent party and ratepayer, to ensure she got the certificate.
In his view: "It appears that council has washed its hands of a problem which it itself has created, and expects Ms Zhong to fix this problem herself, meanwhile enduring the awful emotional toll this must be causing her."
Copeland said that without code compliance, Zhong would not be able to sell her house.
Council planning and development solutions manager Jason Ward said the council acknowledged this had been a stressful situation for Zhong but it could not legally issue a code compliance certificate because settlement of the home exceeded the tolerances allowed for in the Building Code, constituting a breach.
Ward said Zhong could seek a Ministry of Business Innovation and Employment determination that could potentially override the council's decision, and this was discussed several times with her building company.
In response, Zhong said she would not pursue a determination due to the risk that losing the case may dissolve her rights.
The Rotorua Daily Post Weekend asked the council if it had done the right thing by Zhong and whether it would do anything now to help her get the certificate.
Ward said the council always tried to reach solutions in the best interests of the parties but also had to balance its legal obligations as a regulator.
"Situations like this are never easy or simple for anyone involved."
He said the council dealt with applications for building consent and code compliance certificates individually, according to legal regulations, and based on information known and provided at the time of an application.
Regarding its due diligence on the land before signing off the building consent, Ward said the council relied on information known and provided at the time including reports from experts submitted by the applicants.
"Council became aware of potential issues with settlement in some parts of the subdivision after receiving Ms Zhong's code compliance certificate application, following investigation of a site there by consultants."
In response to Griffin's claims the council ignored the Tonkin & Taylor report, Ward said "lateral spread" was not a factor in the council's decision regarding the certificate.
Griffin also said Zhong's issue happened around the same time as Western Rd property owners came to a $5 million-plus out-of-court settlement with the council over sinking homes in Ngongotahā's Oakland subdivision.
The Rotorua Daily Post Weekend asked the council if it was nervous to sign off Zhong's home given the Oakland court case and if Zhong had been a victim of bad timing.
Ward said the situation at Eastlake was separate from Oakland.
Meanwhile, Zhong said she felt no further ahead and wished the council would, in good faith, offer to fix whatever needed fixing so her home could be made legal.
"I feel so disappointed in the council."