Editor: I. Mallikarjuna Sharma Volume 11: 15-31 March 2015 No. 5-6

F-170 Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Court Opinion] (2015) 1 LAW
infrastructure and the possible sequencing of repairs,
rebuilding and reconstruction of that infrastructure. 167
[123] The use of the word “may” in section 11
appears to have been used because, at the time of
passing the Act, it was not conclusively known
whether there would be areas where rebuilding
was not appropriate. The word “may” cannot,
however, be read as making it optional whether or not
to include the designation of such areas in the Recovery
Strategy if such designation took place in the
context of significant earthquake recovery
measures.
[124] After due consideration of available
information, the Cabinet committee in June 2011
considered that some areas were inappropriate for
rebuilding in the short-to-medium term and they were
zoned red. Given the importance of these zoning
decisions, the inevitable impact on infrastructure
maintenance and development and their relevance
to the recovery of the Christchurch region, this
comes squarely within the type of decisions the
Act contemplated would be made in the course of
developing the Recovery Strategy.
[125] We do not accept the Crown submission that,
because the red zone decisions were that rebuilding
should not occur in the short-to-medium term, they do
not come within the ambit of the Recovery Strategy,
which is concerned with a long-term strategy. A long
term strategy necessarily includes the steps to be
taken in the short-to-medium term to achieve the
long-term strategy. This is made clear by the
reference to decisions on the sequencing of
rebuilding and redevelopment and the repair and
building of infrastructure. It may also be said to
be implicit in the nine-month period for the
development of the Strategy. 168
[126] It was neither necessary nor feasible, given the
Cabinet committee’s objective of acting quickly to
restore confidence, to wait for the promulgation of the
Recovery Strategy. This situation was, however,
anticipated by the Act, which provides that Recovery
Plans may precede the Recovery Strategy. 169
167 Section 11(3)(b).
168 Section 12(2).
169 Se ction 18(2).
[127] This means that, before the Recovery Strategy
was completed, significant matters (such as the areawide
zoning decisions made by the Cabinet
committee in June 2011) that would ordinarily
have been dealt with in the Recovery Strategy,
should have been pursued through a Recovery Plan.
[128] In addition to the zoning decisions, there
were also decisions about purchase offers to be
made to insured residential property owners in
the red zone. The purchase decisions were
inextricably linked to the characterisation of the
red zones as being unfit for land remediation and
rebuilding in the short-to-medium term. In those
circumstances, we consider that at least the broad
outlines of those purchase decisions should have been
dealt with in a Recovery Plan. 170
[129] The details of any purchase offers covered
in the Recovery Plan would then have fallen to
the chief executive to be dealt with under s 53, 171
in accordance with the purposes of the Act, as
required by s 10(1). We accept Quake Outcasts’
submission that, once the June 2011 Cabinet decisions
were made, realistically the chief executive’s discretion
was restricted to the mechanics of meeting the Cabinet
decisions on purchase offers.
[130] The Court of Appeal considered that,
because there was no intention to make
alterations to the RMA regime in the June 2011
decision on the red zones, the use of the Recovery
Plan processes would have been “awkward”. 172
The Court of Appeal said that the situation would
have been complicated because, under s 23 of the
Act, any person exercising functions under the
RMA is prohibited from making a decision or
recommendation that is inconsistent with a
Recovery Plan on a number of specified matters,
170 As National MP, Nicky Wagner, said with regard to
Recovery Plans, they are “the what, the where, and the
how of the recovery”: (12 April 2011) 671 NZPD
17911.
171 One of the functions of the chief executive under s 9 of
the Act is “acquiring … land and property under section
53”.
172 See Quake Outcasts (CA), above n 6, at [121] and [122].
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