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

F-172 Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Court Opinion] (2015) 1 LAW
zone”. 178 At the hearing in this Court, counsel for
Quake Outcasts, Mr Cooke, recognised that the
reference to urban activities being prohibited in
the red zones was a mistake. Notwithstanding
this, the sentence in the draft plan in our view is
indicative of the Crown’s thinking at the time: that
voluntary withdrawal from the red zones was to be
encouraged, reflected in the internal CERA paper that
recognised that there is a “clear benefit in clearing as
much of the red zone as possible”. 179
[137] This intention to facilitate and encourage
voluntary withdrawal reinforces the link between
the red zone decisions, the purchase offers and
recovery from the earthquake and also reinforces
the significant character of the decisions. It also
highlights the need for such measures to have
been the subject of a Recovery Plan. This would
have required at least the minimum consultation
provided for by s 20 of the Act. Indeed, given the
significance of the decisions made for all of
Christchurch and in particular for those in the red
zones, it may be that further consultation, albeit
expedited, would have been required. 180
Use of s 53 of the Act?
[138] We have held that at least the broad outlines
of the purchase decisions should have been included
in a Recovery Plan. This is because it was an integral
part of the red zoning decisions that those living in
the red zones would be encouraged to leave.
[139] Even if (contrary to our view) the Recovery
Plan did not need to refer to the purchase
decisions, those purchase decisions were so tied
to the red zoning decisions, and to government
policy in relation to voluntary clearance of the red
zones, that the s 53 powers should not have been
used unless there had been an antecedent
Recovery Plan setting up the red zones. 181
178 Environment Canterbury Regional Council, above n
102, at 62.
179 See above at [83] and n 131.
180 See Canterbury Earthquake Recovery Act, s 19(2)(a), (b)
and (e). Section 19(2)(e) explicitly recognises that in
deciding how to develop a Recovery Plan, the Minister
must have regard to the “need to act expeditiously”.
181 We are thus in disagreement with the Chief Justice and
William Young J on this point.
[140] It is true that the Crown did not use its powers
of compulsory acquisition under the Act. However, it is
unrealistic to describe the transactions that occurred as
voluntary. 182 The inhabitants of the red zones had no
realistic alternative but to leave, given the damage to
infrastructure and the clear message from the
government that new infrastructure would not be
installed and that existing infrastructure may not
be maintained and that compulsory powers of
acquisition could be used. 183
[141] Section 9 of the Act provides that the chief
executive has specified functions “for the purpose
of giving effect to this Act”. These include, under
s 9(l), “acquiring, selling or otherwise dealing
with land and property under section 53”. While
it may be possible under s 53 for the chief
executive to justify individual or small scale 184
purchases outside the scope of the Recovery
Strategy or a Recovery Plan, we do not consider
this is possible for widespread purchases on the
scale undertaken (and particularly those which
are not truly voluntary). The very scale and effect
of the purchases puts them squarely within the
structures and processes of the Act.
Funding decisions?
[142] It is convenient at this point to deal with the
Crown’s argument that the Cabinet committee’s
decisions were funding decisions and not
reviewable.
[143] We do not accept that the decisions made in
June 2011 can be characterised as funding decisions.
The red zoning decision and the related decision to
encourage voluntary withdrawal from red zones were
significant earthquake recovery measures that should
182 See discussion below at [176].
183 If it is the case that, had the government used its
compulsory powers, it would have had to operate within
the Act’s structures of the Recovery Strategy or
Recovery Plans, an issue the Chief Justice refers to but
does not determine, it would be undesirable for the
Crown to avoid the Act’s requirements by structuring its
offers as “voluntary”, while creating conditions that
effectively deprive the owners of any realistic choice.
184 And certainly purchases related to the ordinary operation
of the office could be justified.
Law Animated World, 15-31 March 2015 114