Delta #EpicFail —Nobel Subdivision : A Neighbour responds

Comment received in reply to CD’s latest post (5.3.16):

Chutchings hut
March 5, 2016 at 9:06 am

The neighbours have a history of objecting, they are not the innocents you portray. The allegations about inadequate infrastructure are nonsense.

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A Neighbour responds
Sun, 6 Mar 2016 at 3:26 p.m.

“Chutchings hut”, your post here resembles that of C(hris) Hutching’s from NBR. Maybe you’re both?? Either way your posting here and his on NBR, respectfully, is unsubstantiated and misinformed as many have been by NIL during this sad saga. Allow me to enlighten you.

The CCC stormwater experts, an external peer review, and even NIL’s own stormwater designer Cardno have confirmed the stormwater infrastructure IS “inadequate”. Existing roads need to be dug and pipes upsized. I can send you whatever evidence you want?

Further, the road infrastructure is not only “inadequate”, it was found by the Independent Safety Audit [Dr Turner and other traffic experts] to be have “numerous serious safety issues that cause frequent serious injuries and deaths”.

This is why the Elected Council voted to quash the retrospective decision CCC staff procured non-notified to consent the unsafe roads they had already permitted to be constructed without consent.

You are right though that resident stakeholders in the subdivision (neighbours as you refer to them) have a history of objecting, that’s because they have had much to object about. Your post here that they are “not innocents”, and Chris Hutching’s information in NBR that the objections were “belated objections” … “after consents were obtained and the streetworks constructed” is not correct. Public information proves otherwise:-

• Affected residents that will have to use these roads objected from mid 2010 when the roads were being constructed without consent to grossly non-complying standards.

• NIL and CCC staff had agreed to these gross non-compliances behind-closed-doors.

• CCC staff oppressed the affected residents and denied them (and the public) their legal rights under the RMA to oppose the gross non-compliances and dangers.

• The illegally built roads were retrospectively consented 12 months after the objections, in July 2011. (This was 19 months after the variation application was made in December 2009 to make the main spine road 7.5m narrower than required. Doubling of traffic on the narrow roads due to non-notified increases in residential density and the commercial area came later).

• The Elected Council voted for the Independent Safety Audit (against CCC staff’s strong advice). It found the non-complying roads had “numerous serious safety issues that cause frequent serious injuries and deaths”. This caused the Elected Council to quash the wrong, unsafe and “unreasonable” (“RMA term”) decision that CCC staff’s oppression of affected parties and CCC staff’s false tailoring of expert reports ensured.

• Yours and Chris Hutching’s NBR misinformation on this is respectfully forgiven; many have been misinformed of facts in this sorry saga.

Other information you might like to be aware of. The adversely affected resident stakeholders publicly substantiated history of objections include:-

1. They object to NIL reneging on its obligations to them after NIL enticed them to transfer their land to them in consideration of these obligations and interests;

2. They object to NIL and CCC staff agreeing behind-closed-doors to gross non-compliances that adversely affect them and make their consented subdivisions impossible, including as to inadequate road and stormwater infrastructure provisions;

3. They objected that the roads being constructed illegally without a consent are grossly non-compliant and dangerous;

4. They objected to NIL advising the New Zealand Transport Agency (NZTA) that NIL owned the residents access Lot (they don’t), and NZTA and CCC staff failing to acknowledge or check this critical ownership issue;

5. They objected to NZTA and CCC permitting NIL to construct an intersection on the State Highway (Yaldhurst Rd) with NIL helping itself to the residents private land while NIL was in breach of its obligations to them:-
• NZTA and CCC permitted NIL to construct this intersection over the residents land without legal consents, and despite that NIL could not complete it.
• NZTA allowed the uncompleted road works to remain in a state they acknowledged was unsafe for months, and tried to use this as a justified cause for NZTA stealing the resident’s land to benefit NIL.
• NZTA simply had to paint the road lanes back to one lane each way to make it safe in lieu of the short dangerous effective passing bays they had created and relied on for months to justify the theft.

6. They are still objecting to CCC staff oppressing their legal rights under the RMA as affected parties, with ongoing variation applications that adversely affect them and that make their consented subdivisions impossible.

7. They are still objecting to the “Instant Funding” case law like constructive fraud being committed against them in the security sharing agreement by NIL/Gold Band/Delta to defeat and cheat them of their prior known interests in the land.

Respectfully, “Chutchins hut” and Chris Hutching of NBR reports: are there any “objections” in this “history” above you think are not warranted now that you have the correct and more full information? If you still think the resident stakeholders are “not innocents”, can you please substantiate why you think that?

If NIL, Apple Fields, CCC, NZTA, Gold Band, Delta, DCHL, DCC, NIL’s agent Cardno and others, and all their lawyers, were reneging on obligations to you, making your consented and obligated subdivision impossible, and trying to cheat you of your known prior interests protected by caveats, would you object to that as above? (free advice – you probably shouldn’t, because to do so is very costly and draining; these numerous entities not only have the power, including that of Local and Central Government, but also endless supplies of money including that of ratepayers and taxpayers to defeat and cheat you of your legitimate interests and of your finances trying to protect your interests).

In other matters worthy of correcting in the NBR story:
http://www.nbr.co.nz/article/court-ruling-lifts-lid-deltas-woes-ch-p-185780#.VtrPpkn7h94.mailto

It is reported that “A High Court ruling involving the parties in Dunedin City Council-owned Delta’s Christchurch development sheds new light on reasons for it stalling.”

The NBR article appears to contribute this “new light shed” to be that “Noble/Apple Fields contend the failure to surrender the caveats has stalled the entire development.” This respectfully is misleading.

Firstly, the development can not proceed as the roads built have independently been found to be “seriously unsafe” as detailed above. CCC won’t let them vest.

Secondly, CCC expert stormwater staff have confirmed that the stormwater infrastructure is inadequate and will require upsizing before they could let any part of the subdivision vest with a s224 certificate. This involves digging up existing roads and upsizing pipes etc.

What is also misleading in relation to the “new light shed” and the caveats, is the reporting that Noble Investments Ltd (NIL)/Apple Fields Ltd (AFL) in their counterclaim, claim the residents’ caveats have stalled the subdivision. The full information is that the NIL/AFL’s counterclaim, claims that NIL/AFL have not been able to raise the finance/credit required to provide the residents’ interests that the caveats protect, because of the caveats. Public records prove that to be rubbish:-

NIL raised ALL its finance/credit with the caveats in place (with Delta), and also with Gold Band prior to the residents’ transferring their land to NIL in consideration for their (now caveated) interests to come.

NIL just chose to use the finance/credit raised on the land the residents transferred to it in good faith, to design the residents OUT of the subdivision and to NOT provide their interests. NIL used the finance/credit only for its own part of the subdivision. NIL/AFL/Gold Band/Delta have likely spent more in legal and court proceedings than the residents’ interests would have cost.

Further, residents offered NIL the credit required to provide their interests through their lawyer but NIL refused it for reasons that made no sense at all. Residents also offered to remove their caveats in an MOU with both NIL and Delta, provided they assured their interests would be provided. Again NIL (and Delta) refused.

NIL/AFL personnel have a history of no common sense and offence of equity: at the Privy Council in London, Appeal No. 40 2002, in relation to another senseless mortgagee sale related claim of AFL’s, their Lordships stated … “The proposition that against that indisputable background AFL can complain that Damesh failed to satisfy its section 103A duty is a staggering one which offends both equity and common sense. Their Lordships have no hesitation in rejecting it.” Nothing has changed with their modus since as can be seen here.

It is also a bit misleading to say “in another case, the court has ordered the caveats removed”. The highest court that has heard the caveat case of the first lodged caveats has been the Appeals Court CA274/2013. Judges Ellen France P, Judge Stevens and Judge Winkelmann found the caveats should remain until the interests they protect are provided, or decided in the substantive proceedings yet to be heard. The only ruling that found the caveats could come off (and only in the event of a legitimate mortgagee sale) is that of the challenge by Gold Band that Delta forced Gold Band to take as part of their security sharing agreement with NIL.

It is not true that if the first lodged caveators succeeded in appeal against the Gold Band/Delta challenge ruling that those “actions may become null and void in the case of a mortgagee sale” as reported in NBR on 22 February 2016. As per the higher Appeals Court, the caveats would remain and protect the legitimate residents’ prior interests until they were provided or the substantive proceeding was complete.

Delta is a lower ranked security to that of the first two registered caveats. Delta advanced its credit after these caveats, and with the full knowledge and consent to the residents’ prior interests. Delta through lawyers advised the residents the credit they were advancing included that for their interests protected by the caveats.

Delta’s security sharing agreement with Gold Band and NIL allows Delta to not only “influence” the first mortgagee to use its status to defeat the resident’s prior known interests, but “requires” Gold Band to do as Delta instructs to defeat these parties prior known interests. The residents’ caveats are specifically referred to in their security sharing agreement.

Residents tried to enter into negotiations with the first mortgagee Gold Band to protect their interests and whereby the first mortgage would be repaid in full. Gold Band advised it could not do so because of the influence and control the second mortgagee Delta had over it (as a result of the security sharing securing agreement). Near identical case law (Instant Funding) found that were a third party “influenced” a first mortgagee NOT to deal with a party that has prior known interest in the property that it is a “constructive fraud”. Delta’s relationship with Gold Band goes beyond “influence” to “control”. From common man reading NIL/Gold Band/Delta’s agreement must also be a constructive fraud, and that Gold Band has therefore fettered its first mortgage position and rights.

The NBR 4 February 2016 report also appears to take concern that neighbouring landowners highlighted dangers to the Elected Council that CCC staff were trying to retrospectively consent and vest with the public ie …. “even though the development received all necessary resource consents and reviews”. One can point out the CTV building received all necessary consents etc, however we tragically know that too didn’t comply with safety standards.

The neighbouring landowners, and there were dozens of them that CCC staff oppressed along with their two expert traffic reports that warned of the serious dangers, were completely vindicated. Residents received muffled thanks from at least some Councillors for preventing the “very likely fatalities” and resulting culpability CCC would have faced. (However, predominately Councillors expressed only concern that NIL might sue CCC and how admitting to CCC’s mistakes may set a dangerous precedent).

What is also concerning for a private citizen in relation to Delta’s and NBR’s media reports about the residents’ legitimate prior known interests protected by the caveats which were sustained by the Appeals Court, is that:-
1/ Delta (CE Grady Cameron 20 Feb 2016) refers to the legitimate interests as being “the main obstacle” that “a successful conclusion of the sale by the first mortgagee [Gold Band Finance] will remove”. As it is Delta forcing the mortgagee sale, it is Delta and Gold Band and likely NIL acting together to “remove/defeat/cheat” the residents of these prior interests.
2/ NBR refers to the legitimate interests (1 March 2016) as “the major impediment” that was “resolved … last week” because “the handful of neighbours who held the caveats … appear to have GIVEN UP.” Even if the neighbours had given up, which they clearly haven’t, overpowering and outfunding them hardly equates to having “resolved” their interests, but rather having defeated/cheated them of their interests by way of stealth.

If NBR want more information I am happy to give it. I can also add to what Murray Frost has told them about his involvement: He has represented and advised ALL parties of the security sharing agreement, NIL/Gold Band/Delta at different times. Firstly NIL, and then progressively in combinations of these parties, and then now as appears in NBR, to Delta only.

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Posted by Elizabeth Kerr

Election Year. This post is offered in the public interest.