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

(2015) 1 LAW Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Court Opinion] F-181
number of decisions on important issues,
including that a central government response was
required and decisions on the criteria for
identification of zones.
[191] As to whether the procedures under the Act
should have been used, we have concluded that the Act
provided a comprehensive regime to deal with
earthquake recovery. Significant recovery measures,
such as the zoning and purchase decisions made
in June 2011, should therefore have been made under
the Act.
[192] As to the mechanics, the zoning and related
purchase decisions came within the issues that
should have been dealt with under the Recovery
Strategy. We have, however, accepted that, given
the Cabinet committee’s objectives of acting quickly to
foster confidence, it was neither necessary nor feasible
to await the development of the Recovery Strategy.
[193] The Act does, however, allow Recovery Plans to
be developed in advance of the Recovery Strategy. If
there are important earthquake recovery measures
that should have been dealt with in the Recovery
Strategy, had there been sufficient time, the
structure and policy of the Act means that the
Recovery Plan process should have been undertaken. A
Recovery Plan was the appropriate mechanism for
implementing the Crown’s land classification decisions
and could not be circumvented.
[194] Given the close relationship between the
zoning decisions and the purchase offers and the
area-wide approach, we have concluded that at least
the broad outlines of the purchase decisions should also
have been dealt with under the Recovery Plan
processes.
[195] Even if the purchase decisions were not
required to be dealt with under a Recovery Plan,
however, we do not consider purchases could
lawfully be made under s 53, absent a Recovery
Plan dealing with the red zoning decisions. This
is because of the close link between the red
zoning decisions and the purchase offers, the
area-wide nature of those red zoning decisions
and the lack of real choice for people in the red
zones as to whether to accept the offers (given the
warnings given by the Crown about the likely
lack of infrastructure and the possible use of
compulsory powers).
[196] As to the September 2012 decisions and related
offers, we have concluded that, although insurance
was not an irrelevant consideration, other relevant
considerations weighed against this being a
determinative factor. Those factors include the fact
that the offers to the insured, not-for-profits and
to owners of buildings under construction
allowed for payment above that which was
insured or insurable. In addition, if some of the
uninsured or uninsurable individual properties
fared reasonably well and suffered little damage,
the harm to their owners has arisen, at least to a
degree, because of government policy of
facilitating voluntary withdrawal, rather than their
insurance status. These factors and the other
factors discussed above should have been taken
into account in deciding whether or not there
should have been a differential between the
insured and the uninsurable and uninsurable and,
if so, the nature and extent of any differential.
[197] We have also concluded that, in making the
decision as to any differential treatment of the
uninsured and uninsurable, the recovery purpose of the
Act which, among other things, is to restore the “social,
economic, cultural, and environmental well-being” 225 of
Christchurch’s communities, was not property
considered. The area-wide nature of the decisions
on the red zones suggests an area-wide community
approach to recovery where practical.
[198] We have also accepted the submission of
Quake Outcasts that the failure of process and
consultation in June 2011 and the delay in extending
offers to the uninsured and uninsurable were relevant to
the decisions relating to the appellants.
[199] Finally, we have concluded that, when
making the September 2012 decisions, the current very
difficult living conditions in the red zones was a relevant
factor that should have been taken into account.
225 Canterbury Earthquake Recovery Act, s 3(g).
123
Law Animated World, 15-31 March 2015