Brickmakers Point Landslip Bill (No 15) of 2020
Wednesday 9 December 2020
Second reading speech
Ms ARMITAGE (Launceston) - Mr President, when I read legislation like the Brickmakers Point Landslip Bill, I endeavour to put myself in the shoes of the people who are the innocent victims.
In this bill, the Government is offering to pay to the owners of the five properties 75 per cent of the value of their properties prior to the 2016 landslide occurring. The Government quite rightly accepts that the landslide has taken a substantial toll, both emotionally and financially on these landowners. One house was rendered uninhabitable, while considerable structural damage has occurred in varying degrees to the other four properties.
I ask myself how would I feel, especially when I did everything correctly when purchasing the property. Ask yourselves how you would feel. What would you do in the circumstances? Would you take three-quarters of the value of your property on 2016 values, or would you believe a fairer compensation should be paid by the Government?
The Government, it would seem, is correctly saying there is no real value in the properties now because the area is a landslip area, and it would appear to me that anyone buying it would have to have rocks in their head. Should the Government offer compensation based on today's value of the land, without any landslide having occurred?
But before answering my questions, consider the fact that property values in the near vicinity have risen by between 50 per cent and 75 per cent in the past four to five years and, therefore, these owners could not buy a similar property to that which they enjoyed prior to 2016.
What do they do? Do they join the long line of renters, or try to buy a vastly inferior property? Not only do they lose significant money on their property, but they have already had to pay stamp duties, and other government duties including department of mines' costs, council fees, solicitors' costs, mortgage and other loan costs, maybe water and power installation costs, rates and taxes, insurances - and it goes on.
This 75 per cent compensation is continuing to be worth less and less to the innocent property owners. I know how I would feel, and I think I know how anyone in this parliament would feel if it was their hard-earned money that has been frittered away before their very own eyes.
What has to be remembered in all of this is that the property owners employed solicitors to purchase the land in question. They signed a contract for sale in good faith. Their solicitors would have carried out requisite searches. These searches would have included a mines department search, and a search with the relevant council to ensure there were no impediments on the property.
These searches came back from government departments and councils. None of them highlighted any environmental instability risks that could affect the property. They had no indication that their nightmare of the last four years was going to strike. On the contrary, the searches indicated there was nothing wrong with the properties. If you look under the TAS Property Search - TPS - 'Mines & Landslip' Geohazard Searches website under the History subheading, it tells you that these searches have been undertaken for over 40 years, since the early 1970s. They were originally to obtain -
… conveyancing search information relating to Mineral Tenements and Landslide Hazard -
and I emphasise 'Landslide Hazard', but are -
… now broadened to include information about a wide range of geohazards.
It says they provide -
… comprehensive, high-quality ‘Mines & Landslip’ search property information that is frequently sought prior to purchase, during the conveyancing process.
It states that they provide additional information -
such as advisory landslide areas, flooding and coastal erosion hazard areas is also provided, as well as Municipal Planning Scheme overlay areas relating to geohazards.
It also states
At TPS we consider it important that purchasers are fully informed about political geohazards that might affect a property and require further risk assessment.
Then, specifically on landslip hazards, the Government website continues that they are assessed from the following sources -
· detailed Mineral Resources Tasmania mapping
· Department of Premier and Cabinet broad scale, statewide hazard banding
· planning scheme overlays
· specific area hazard mapping from major consultant reports.
It includes individual assessment of geology, slope and drainage features based on information for the property.
It continues -
The TPS search service is unique in that a geologist assesses background information for each property.
An interpretation aided by an exhaustive compilation of geohazard data that TPS has gathered from Government, Council and consultant report sources.
It concludes by stating that it is-
… not just the property itself that is assessed and reported on but also any important features in adjacent areas.
I asked myself: should the Government and/or the council have been aware of the problem which awaited these property owners? They obviously had plenty of information before them.
Having obtained a copy of the Pennington report from one of the home owners - which I believe has also been provided to all members - I note that report investigated the issues surrounding the landslide and the effect on property owners. On speaking with Derek Pennington, he told me the report was federally funded under the national disaster funding, commenced by Colin Mazengarb who put together a group of five, including the West Tamar Council.
The executive summary notes the report was initiated inter alia to understand the impact and the causes of the landslide. The report states that the landslide which caused the damage in 2016 was a deactivation event. The likely causes that contributed to its reactivation were -
· The geological unit known as the Launceston Group which can be a weak material that is prone to landslide
· Significant rain in August 2013 and May to June 2016
· Cliff erosion (recession) at the Tamar River edge
· Poor West Tamar Council … and private road drainage leading to locally elevated ground water
· Removal within the last 10 years of vegetation at #634, #648 and #650 Deviot to enable development.
· Water pipe leaks
· Watermain leaks due to landslide damaging underground pipes in the road corridor
· Inadequately maintained onsite sewage / stormwater disposal systems
· Onsite water management
· Increased water disposal (increased development density and household water usage)
· Concentrated surface flows associated with development (roofs and hard standings)
· Inadequate water flow management particularly on upslope neighbouring properties
· Changing demographic and wealth leading to more intensive land use.
· Increasing landscaping / landform modification
· Increased home occupancy
· Stabilizing works under Emergency Authority resulting in Driving forces that could have kept the slip moving
· The construction methodology of the stabilizing works
· Importation of road materials to repair driveways.
· Poor geotechnical advice.
I read those likely causes out verbatim because you can see that it would appear cases could be made against the council, the Government and all the developers, but certainly not against the poor landowners who have had to live through this nightmare. Cases like this drag on, they are costly and drain the emotions from people like landowners. It is just not fair on them and is not what governments are here for.
To ensure there is fairness to victims such as these landowners, there are options here and obviously ones set in accordance with this bill -
(1) For the landowners to walk away with 75 per cent of a 2016 valuation. I do not believe this is equitable considering how much money they have already foregone and how much property values in the area have gone up over the last four years.
(2) Settle on the basis the Government compensate the victims 100 per cent, on 2016 values. Even though again, this is not equitable, it stops ongoing court battle and the extra money would not be a substantial sum to the Government, considering there are only five properties and the valuation date is 2016.
(3) Settle on the basis that the Government pay the landowners the 2020 valuation without the landslip being taken into account. This is by far the fairest settlement considering all the evidence we have before us. Of course, this is still less than present real estate values
(4) The Government pays to the landowners the said 75 per cent, but does not require an indemnification for them to proceed to court and if successful take into account the sum already paid by the Government in assessing property damages.
As I said in my opening, please put yourselves in the shoes of the innocent victims here and ask yourselves honestly: what should be the fairest outcome for all parties? It is not 75 per cent of 2016 valuations when the fault does not lie with the landowners, but may well partially or fully lie with the council or the Government, as the evidence suggests.
I have today spoken with Mr Jaensch, and I appreciate that he took the time to call me with regard to the process here, should the bill get through. So, given that it is a government amendment and the lower House does not sit again until mid-March, he has advised me that should the bill proceed through the upper House, processes with interested parties could proceed. That is: calculations of amounts, individual conditions and other requirements would be instigated prior to the bill returning to the lower House. Mr Jaensch took pains to reiterate to me that the Government and council are both of the opinion that there is no obligation to compensate and this offer is purely compassionate. On this matter, we disagree.
Much has been made of the Rosetta landslip and the offer being in keeping with Rosetta. If that is the case, and I bring now the comment from the previous member for Rosevears in his second reading speech. He said -
While the minister's second reading speech goes to some length to emphasise that the bill is consistent with past precedence, in particular with the recompense provided through the Rosetta Landslip Act 1992, what is proposed in the Brickmakers Point Landslip Bill is, in fact, well short of the offer legislated in response to the landslip at Rosetta.
Under the Rosetta act, government offers to residents were calculated using valuations at the time of offer. In other words, valuations at current market value, and that was without any landslip occurring and they give 75 per cent. But with Brickmakers Point, current market valuations will not be used but valuations from four years ago.
I thank the member for Nelson for also pointing out to me that it also included a one-off payment of stamp duty for a replacement home.
I note the comments by the member for Rumney. It is a difficult one and I did ask the minister, Mr Jaensch, what would happen if we did not pass the bill or if we put an amendment in it: would it come back before them or would it not? It was certainly nothing that he could answer. As he said, this was a decision of Cabinet. I certainly appreciated the fact that he did give me the time to call and discuss it.
I would like to read some of the information from the actual affected landowners from the Pennington report and I seek leave to table this report and have it included in Hansard. I do have an electronic copy for Hansard.
Ms ARMITAGE - Thank you, Mr President. I also thank Derek Pennington for giving up his time today to brief us on this very comprehensive report.
As mentioned, the report was federally funded and it starts with -
The presence of landslide in the landscapes of the Tamar valley is not a new phenomenon but goes back millions of years as the valley has been progressively carved out by the Tamar River and its Estuary. This is indeed a natural process that is controlled by the geological materials, groundwater, streams etc.
As densification of developments occurred in the Tamar, landslide activity began to impact on the settlements, exacerbated by a wetter climatic regime in the 1950’s to mid-1970s. This reached the attention of the State Government who commissioned the then Department of Mines to undertake an extensive survey of the valley. The outcomes of this work included the production of a 5 class advisory landslide zoning map series and some site‑specific studies to better understand the soil mechanics of the landslides.
Mr PRESIDENT - Honourable member, if you wish to table the document, you need to bring it to the table.
Mrs Hiscutt - I am happy to give my copy to the member for Launceston to sign and table.
Ms ARMITAGE - I will give an electronic copy, which I think is easier for Hansard.
Ms Forrest - Are we just tabling it or having it incorporated into Hansard?
Ms ARMITAGE - Tabled and incorporated in Hansard.
Ms Forrest - I would not support that.
Ms ARMITAGE - It would have been very nice for people. You do not consider it is important?
Mr PRESIDENT - People can still get access to it, but it is a very big document to incorporate into Hansard.
Ms ARMITAGE - It was difficult to actually get access to it, you might recall.
Ms Rattray - Not now it has been tabled.
Ms ARMITAGE - It was previously -
It is considered that the principal landslide at Brickmakers Point … is an ancient feature that possibly precedes European settlement.
The Department of Mines landslide zoning, completed in 1974, did not recognise this or a number of adjacent landslide features, a notable exception to an otherwise impressive set of maps for its time that received international recognition. Mineral Resources Tasmania Tamar Valley - Advisory Landslide Zoning Rowella, produced in July 2001, similarly did not recognise this landslide. This is illustrated in Figure 2, which identifies the impacted properties as being in a 'Class II' zone. Zone II is described as 'Generally stable ground on 'soft' rocks, including very gentle slopes'. The footnote describes 'soft' rock as “Tertiary to Recent poorly consolidated sedimentary rocks and deposits'. Clearly these properties are not on 'generally stable ground'.
I would like to read a couple of letters from some of the affected landowners. I think it is really important to have some comments from them, as to how this has affected them. This is in the report.
If I go to Nick Daking: Nick's house was removed. He bought a home, did a lot of work to it, had his family there. His wife was pregnant. Not long after she had her new baby, their house started to fall to pieces and they had to move out, which was devastating for them. He says -
We purchased the property 12th September 2014 through Roberts Real estate in Launceston for $365,000. At the time of purchase there was no mention of the Deviot being a landslide area and specifically our block. There was also no indication from council when asked directly if there were any issues with the property or potential planning restrictions as we intended to renovate the property in the future.
We had moved from Launceston to live on a large waterfront block and at the time we had two boys aged 4 and 2 and were part owners in hospitality businesses located nearby. On June 21st 2016 our daughter was born and soon after we first noticed some cracks appearing in the bedrooms where the wall meets the ceiling, this along with the downstairs doors becoming hard to open and close.
This document is filled with detailed photographs of our property and house to show you the extent of the damage and just how quickly it occurred.
Prior to losing our home we had spent $9,400 with our architect with plans to completely renovate, which we planned to start in 2018, photos attached.
When the movement first occurred we engaged a builder to assist in helping rectify and prevent more damage by stabilizing the house, we also upgraded the exiting drains to assist with ground water. At this time no one seemed to know what we were dealing with and the sheer scale and seriousness of the situation. We ended up spend $12,000 with the builder and contractors attempting to save the home.
It was at this time a group of residents joined together and engaged geotechnical specialists to investigate the ground movement, drill test holes and form a potential solution to the problem at a cost of $5,500 each.
When it was clear that our house was beyond repair, breaking up and becoming a dangerous site with exposed asbestos sheets we decided to demolish it at a cost $5,200.
The financial and emotional stress this has placed on our family is extreme and very painful and as a result developed a serious health condition; we are still trying to come to terms with it. No one expects to lose their house (literally) when you are planning to turn it into your family dream home. One of the hardest things in being forced to move so quickly was uprooting our family the from the kid’s school and from our friends. We could not afford to buy another house so our family of 5 ended up living with relatives until we worked out what to do next. Throughout these struggles we continue to pay the mortgage on a house we can no longer live in.
I am more than happy to discuss this further …
I am not sure whether anyone has spoken to Nick.
Another owner is David Berry. David and Denise Berry are the owners of 654 Deviot Road, Deviot. He says -
We are the owners of 654 Deviot Road, one of several properties identified in the Report as very seriously impacted by the landslip event of 2016.
The house at 654 Deviot Road was built in 1998. We purchased the property in April 2008. At the time of purchase, we inquired with the West Tamar Council as to whether there were -
· Any outstanding building compliance issues, work orders etc specific to the property?
We were told there were none; and
· Any other wider planning issues that might affect our on-going enjoyment of the property (eg. unusual development caveats, proposed rezoning of the area and/or other issues that might cause the property to not accrue a capital gain in line with gains generally regarded as normal for the wider municipality)?
We were told there were none. Specifically, the council made no mention of landslip issues, real or anticipated.
· The first-ever evidence or acknowledgement from the WTC or Tasmanian Government agencies, written or verbal, of a landslip issue affecting our property was a letter from WTC dated 13 October 2016, which acknowledged the recent landslip event.
Similarly, we've never been advised that any government landslip calculation for our property had been introduced, existed, or upgraded.
David makes many comments with regard to the property and I will just read a couple of excerpts -
Despite the knowledge by State and local governments of an active landslip, planning and building approvals continued to be granted for properties in the affected area, without either the Tasmanian State Government or West Tamar Council issuing specific warnings of landslip risk to property owners in the Brickmakers Point area.
While it seems the studies of the 60s and 70s failed to recognise specific landslip vulnerabilities for the Brickmakers Point area, it is clear that they should have! There was ample anecdotal evidence on the public record that this was the case.
The very fact that Brickmakers Point takes its name from the brick-making factory once housed at the site - located to capitalise on the abundant clay deposits underlying the whole area - was well known to State and local governments and should have triggered due diligence questions by the authorities and government agencies who commissioned the studies.
There were no attempts by the State or local government to insert in the West Tamar Council Planning Scheme acknowledgment of specific landslip risk, nor any requirements for new developments to incorporate landslip‑amelioration measures in building/planning applications.
We regard the culpability for these admissions to be shared equally by the Tasmanian State Government, which signs off on the planning schemes of all local governments, and the West Tamar Council, which has carriage of implementing the State-approved planning scheme and, above all, is bound to act in the best interests of ratepayers.
Both parties knew of the significant landslip risk at Brickmakers Point for many decades. Neither party saw fit to forewarn affected ratepayers of this risk, either through one-on-one communication with those ratepayers who were owners of vulnerable properties or through the Council's planning scheme and associated planning and building approving processes.
In the report Pennington notes -
Extensive government-led geological studies of landslides in the Tamar Valley were carried out in the 1960s and 1970s, in response to a significant amount of landslide activity.
Despite this, government subsequently failed to implement meaningful measures for alerting property owners to the risk of landslip, nor for laying down statutory procedures for mitigating against the risks in planning and building approving processes.
Clare Freshwater and Nigel Lazenby; Clare writes -
My husband Nigel Lazenby purchased the property at 648 Deviot Road on 20/10/2010. At this time there was a tiny one-bedroom cottage on the block. Our block and 650 were previously one lot but the owner and her husband are separated and as he wished to remain here, he had built the cottage for himself. The property was sold by his estate to Nigel.
The results of a search made by the Tasmanian Property were attached to the letter below that we got from the lawyers Archer Bushby, prior to the purchase and in the letter it states -
We note that the property is affected by An Advisory Landslide Area Status, 'Class II'. If you intend to do any works at the property this may necessitate special footings or other building practices. If you have any concerns, please contact the Council or discuss with a qualified builder.
We note that the property is not affected by either of the following:
A. A proclaimed landslip area; or
B. A Water Management Plan.
Unfortunately, they have now discovered that was not correct and it should have been correctly identified as landslip 5. Clare has written a very comprehensive letter and I will not go into it all, but I think it is important that each landowner has some comment on the record. I have been to Clare's house, as has the current member for Rosevears; it is a very sad situation when you go to Clare's house.
You look out and you see undulating hills and then she told me it used to be flat. It was not always hilly or had dips. I walked into her kitchen and I think that was the thing I noticed most - walking behind her kitchen bench I was walking downhill. In her bedroom, she showed me the cracks in the shower, different cracks in the walls. She pointed out the remediation work they had done at a cost of $350 000, which was now coming apart, and areas that were starting to stick up again.
We were there for four hours, maybe even longer. I got there at 2 o'clock and left at what may have been 9 o'clock. It is the saddest situation to sit with people who are visibly upset about their dream home falling to pieces before their eyes and they do not know what they are going to do.
Their Airbnb, which was a source of income, had to be sold to put under the house to stabilise it. They were relying hopefully, certainly on compensation from the state and the council - not compassionate payment, as I certainly do not agree with that, but I do agree with the member for Rumney: we are not here to look at how much money or how much people are going to get.
Clare adds, as part of her very long letter - which is available in the report and I would suggest to people they might care to read it - comments about the huge rains -
A few weeks after this huge rain we noticed a small drop in front of our small wattle trees in front of the riverside, master bedroom. Some small wattles began to lean and fall over. This drop seemed to be coming from the block on the Launceston side, owned by the Wells family. At this time, they were living in the small cottage whilst they built their new home at the rear of the cottage. The land where the Well's new house was being built had been excavated and dumped between our two houses in a mound.
Our stair case wall crack continued to open up and it seemed that the cracks and movement worsened. The builder … was employed to lift and prop up the riverside front and southern wall of the master bedroom so that the sliding doors and the walk-in robe, en-suite and slider onto the deck could be closed properly. This was the first of so many prop ups.
The area in front of our bedroom continued to open into a gully and a crack extended from the gully across the gently sloping riverside yard in front of the septic tank. This crack eventually travelled across to #650 in front of their waste water treatment system.
The land on our block dropped slowly but dramatically on the river side of the crack, exposing a clay scarp which slowly crumbled, and collapsed. We were becoming more and more worried and noticed that our bedroom floor felt quite bouncy.
Clare goes onto say -
The ground movement seemed to slow down and things seemed to settle until in August 2016 when after a one in one hundred year rain event, the house and yard began to move and the house get damaged. The front deck moved towards the river and away from the house. The stumps under our bedroom sloped badly. The stumps under the back-yard deck were moving towards the river and taking the deck with them. They began protruding from the decking.
Approximately three to four weeks after this huge rainfall, the rear yard began to drop even further and a crack appeared across the block which came from the direction of 650, between Deviot Road and our house, traversing #650s driveway, breaking his driveway and retaining wall and breaking our driveway.
A gap appeared between the concrete pad in front of our garage. Nigel had to close his gallery because it became unsafe to have visitors on the property with their cars struggling to get up the driveway. This meant an end to that income stream.
Then we have the Wells. Mr and Mrs Wells have the house - if members remember from this morning - that had huge poles driven in front of their property to try to stabilise it. She mentions -
If our current remediation works fail, we are unable to attempt any further works … This threshold is not high enough to provide any reassurance, rather it is quite alarming. Even just last year for the month of July the Bureau of Meteorology records demonstrates up to 200 ml rain for Deviot. This is a real threat, and future weather events are only becoming more unpredictable thus we need to act on every opportunity we can.
Notes regarding the reporting of landslip activity discuss the importance in enabling appropriate management of the acute situation. However, despite the suggestion of notifying authorities being stressed throughout this report I believe the likelihood of this occurring to be rather low considering the potential outcome.
Then there is the property at 652 Deviot Road. They comment that they were not consulted -
The report in section 5.5.4, states 'This property was previously thought to be undamaged'. The first point to note is that as property owners of 652 Deviot (which is one of the properties included in the report) we were not once consulted throughout this project, so find that statement to be incorrect. So it is frustrating that our story and the emotional and financial impact this has had on us hasn't been taken into account. We currently rent out this property as we left the country in May 2018. We were therefore unable to attend community meetings and to have face to face contact with stakeholders ...
We purchased 652, as first time home buyers, … and threw our heart and soul into renovating ($60,000) as it was last touched when extensions were built in the 1970's. The 2016 Landslide saw open fissures/cracks appear on the lower part of our property which we backfilled. The annex (the only thing mentioned in the report) was undermined with the corner being a foot off its foundations which was continually underpinned on its piers whilst we were living there. Doors in the main home soon became stuck. Cosmetic cracks appeared in the plasterboard in sections of the home, particularly the newly renovated master bedroom and ensuite, which are closest to the landslide and part of the extension put on around the 1970's. We continued to patch, re-plaster and paint but soon gave up. The worst sections have been covered by cladding. We had a large gap open up between the original build and the extension on the facer as the two different foundations were being pulled apart. In April 2017 we got an emergency works permit and started underpinning the foundations of the home along our bank side, again closest to the landslide, in an attempt to prevent any further movement in the home. We also then set about building a retaining wall (two tier, 25m long) to help stop any further movement caused from the landslide but also to counteract the huge amount of erosion on the steep bank caused by the continual flow of surface water admitted from the bio-tank system and storm water. So far spending approximately $10,000 on landslip issues.
That was something mentioned this morning, if I recall, by Derek Pennington - that water goes onto the properties, but there is no avenue to take water off the properties, which was certainly an issue, obviously a council issue. I am not going to go into much more detail. I could read a lot more from the Pennington report, but I am quite sure members have copies and can read it themselves.
I felt it was appropriate to have some summary of the residents and home owners and what they are going through. When you consider there were five landowners, two rental properties at the moment, which have tenants in them, and two home owners who are actually living in their own homes, plus the Daking's home that has been demolished, there is nothing there but land with cracks through it that no-one can do anything to.
Leader, I ask you to comment on this in your response. It was actually said this morning in the briefing, but I think it would be really good to get it on the record. One landowner was concerned that, should they not accept the offer but a neighbouring property does accept the offer, the demolition of the next-door property could further destabilise their property. I think a comment was made this morning about engineers and the work that would be undertaken. On the record, could you perhaps comment on how the work would be undertaken if one neighbour accepts an offer and a neighbour does not, so that it does not undermine their property next door.
I will not go any further into the circumstances. I am sure everyone here is aware that unfortunately these properties were purchased on the understanding that it was level 2 rating for landslip, which was nothing to be concerned about, only later to find out that it should have been categorised as rating 5, which was very much something to worry about. I also believe that the overlays were then not transferred to the planning, which certainly did not indicate to them that there was a concern prior to them purchasing the property. It has been a series of errors along the way, and, unfortunately, these five innocent landowners are the ones who are suffering.
I really do not know what it would be like. All of us here go home to our homes, and we are very fortunate to have homes. We put the file down and think about it again the next day, and pick it up and look at it and feel for them. When you actually go to the homes - and, as I said, I have been on a number of occasions. When you go into Clare Lazenby's home particularly - because Nick's home is not there - and you actually see the distress and the trauma that has happened to those families, and you can really understand how difficult it is for them.
We pick up a file, and look at the photos in the Pennington report. They actually do not have to look at photos - they only have to look out their window, or from their lounge room, look up the hallway, or look up above them to the cracks and at the windows, and every time they walk. they hear cracks.
As Clare said, she worries every day that with heavy rain, all of a sudden they could end up in the river and the banks behind them could come and take them away. We tend to think it will not happen, but then we think of Thredbo and we know things like that do happen - not very often, and you think surely it will not, but it actually can.
I find this a very difficult situation as well. I understand the difficulty with amendments or if the bill does not get passed, and I certainly feel for the landowners.
I would like the Government to have another look, but from speaking to Mr Jaensch, the minister, today, my understanding is that the offer before us is the only offer they are going to get.