Editorial: Moral duty to owners of leaky homes

Opinion

A recurring, and melancholy, theme of the leaky homes crisis has been the disregard shown to those unfortunate enough to own one of these houses. Their stress, suffering and shrinking bank accounts have counted for little as assorted suspects scurried to escape or play down their liability. Builders and developers wound up companies, private certifiers collapsed, local councils procrastinated, and the Government's belated response, a weathertight resolution service, proved hugely disappointing. No wonder that, as reported in the Weekend Herald, these homeowners simply want somebody to take ownership of the problem.

Overwhelmingly, the signs point to the Government being that somebody. The role played by the Building Industry Authority suggests a sizeable degree of the responsibility lies at its door. Yet, true to form, the Government seems set on dragging things out to minimise its own liability. So much so that it spent $2.3 million last year keeping the authority out of court and weathertight resolution service cases - and has earmarked almost double that sum for the same purpose next year.

Eventually, as even the Government concedes, the day will come when that liability is tested in court. Chris Carter, soon to become the minister responsible for the new Department of Building and Housing, appears confident it will not be proved. Crown lawyers reason that the authority was only a regulator and owed no private law duty of care. Houses with excessive moisture are, they say, in breach of the building code, and the buck stops with local councils.

That is fine as far as legal niceties go. It is even understandable that the Government is loath to open a can of worms, both in terms of the potential sum of leaky home repairs and the application of the negligence principle to other regulators. But government is about more than legal fine print; there are occasions when moral responsibility must be accepted. This is one of those cases. A government, after all, created building's light-handed regulatory regime, and the Building Industry Authority's lot in overseeing it.

And whatever the authority's role in precise legal terminology, it was the body that approved monolithic construction methods, including the use of untreated timber. It was also responsible for renewing private certifiers' annual licences without checking they had valid insurance. And it was the body that, despite repeated entreaties from within the building industry, failed to address warning signs. All of which makes it easy to understand the homeowners' anger over the Government's ongoing refusal to accept liability in any shape or form.

The other string to Mr Carter's bow is a review that he says may identify alternatives which make the issue of liability "not that relevant". First, however, he wants to uncover the size of the problem. It is a further indictment of the Government that such an exercise, first recommended in the 2002 Hunn Report, has not yet been done. Perhaps it also points to one certainty: that the outcome of this work will please no one.

Various ways of providing help without conceding liability have been proposed. One with potential is the offering of suspensory loans (repayable when the house is sold) to homeowners who agree not to sue. Another is a no-fault compensation scheme. It has also been suggested that the weathertight resolution service should have the muscle to pursue liable parties, thereby removing the onus of proof, and a source of considerable expense, from homeowners. The problem there, of course, is the number of those parties who have taken flight.

The Government is clearly in no hurry to seriously consider such relief. Where once there was denial, there is now dodging and desultoriness. But at some stage it will have to shoulder responsibility and fashion a fair, feasible and far-reaching solution. People who, in all innocence, have bought nothing but distress deserve that now.