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

F-194 Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Eliyas CJ] (2015) 1 LAW
Indeed, in speaking of the need for principles
applied “on a more generic level”, the Court
acknowledged the significant impact on the lives
of those in the position of the Quake Outcasts: 286
While the recipients of the 100 per cent offers
have, for the main part, been able to apply the
proceeds of the Crown offer towards buying a
new home elsewhere, many of the respondents
are left in a very precarious position because of
the very significant shortfall between the amount
derived from the offer and the cost of acquiring a
home elsewhere. In many cases they are retired
and not in a position to take on any significant
debt. We acknowledge the significant impact this
is having on their lives.
[272] There were a number of inconsistencies in
the treatment of those who were insured,
uninsured, or unable to insure their land. In
reconsideration of the offers to be made, such
anomalies may need to be justified in accordance
with the purpose of the Act under which they are
made.
[273] Matters such as these are for consideration,
if ultimately relevant, when the chief executive
reconsiders the offer to be made. Since the Court
of Appeal considered that the offers had not been
“calibrated” by the need to consider the
community recovery principle referred to in s 3,
as they should have been, the entire
circumstances must be reassessed. 287 The Act is
concerned with the recovery of communities. It is
not necessary to characterise the appellants as
comprising a community to make their
circumstances relevant. I agree with Glazebrook J
that communities are made up of individuals. The
Act is concerned with the recovery of the people
whose communities have been shattered by the
earthquakes and by the necessary dislocation they
have entailed, and their reintegration into
communities. The area-wide solutions promoted
by the Government require all those within an
affected area to be treated as members of that
286 At [152].
287 At [137]-[138].
community and the subject of consideration in
achieving the purposes of the Act.
[274] These are some of the circumstances
relevant. No doubt there are others. The Court of
Appeal said that “the mere fact” that some
different basis of offer could be made was not
reviewable error and might be justified. 288 That
seems to me to be undoubtedly correct. To what
extent difference can be justified remains
something for assessment in the context of proper
consideration under ss 10 and 3. In that
assessment, it may still be reasonable to draw
some distinction between those who were insured
and those in respect of whom the Crown will
obtain no off-setting recovery. Dismissing the
appeal on this ground is simply to leave this
matter, as with other matters, open for
consideration if it turns out reasonably to bear on
the decision.
(2) The lawfulness of the establishment of the red zone
[275] The second question on which leave was
given concerned the lawful basis of establishment
of the red zone. This arose out of the appellants’
challenge to the June 2011 decision as substratum
to the September 2012 offer. I have considerable
sympathy with Panckhurst J’s view that, in
substance, the Government’s decisions as to the
zoning of earthquake affected areas of
Christchurch cannot be characterised simply as
the dissemination of its opinion. 289 289 I have
come to the view however that this question is
one it is unnecessary to resolve in the context of
the use of powers to purchase without
compulsion under s 53. Challenges to the validity
of use of other powers under the Act or reliance
on the red zone establishment to justify the
running down of infrastructure or essential
services could well make it necessary to decide in
another case the status of the Government
288 At [150].
289 Fowler Developments Ltd v Chief Executive of the
Canterbury Earthquake Recovery Authority [2013]
NZHC 2173, [2014] 2 NZLR 54 at [60].
Law Animated World, 15-31 March 2015 136