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: Eliyas CJ] F-195
decisions of June 2011 and their lawfulness in the
absence of a Recovery Strategy or Plan.
[276] The scheme of the Act may mean that the
coercive powers under the Act, including to
modify the obligations of local authorities and
providers of essential services, can be exercised
only after prior adoption of a Recovery Strategy
or (if time does not permit) a Recovery Plan. In
addition, as already suggested, it may be that the
absence of a Recovery Strategy or Plan is a
circumstance to be taken into account under ss 10
and 3 when reconsidering the offer to be made
under s 53. But I am of the view that the scheme of the
Act does not compel the adoption of a Recovery
Strategy or Recovery Plan before exercise of the power
to purchase on behalf of the Crown under s 53. And
I consider that neither the question of the legal effect
(if any) of the red zone nor the subsequent questions as
to the source of any power to accomplish it is material to
the disposition of the present appeal. It is necessary to
explain why.
[277] The power under s 53 to purchase land
where such purchase is consistent with the
purposes of the Act is not directly linked to the
adoption of a Recovery Strategy and the
provisions for Plans, directions, and orders which
affect rights of land use. The text of the Act does
not make recourse to s 53 dependent on a
Recovery Strategy or Plan. The structure of the
Act places the sections dealing with the Recovery
Strategy and Recovery Plans within subpart 3 of
the Act which deals with “Development and
implementation of planning instruments”. That
subpart also deals with the consequences of the
Recovery Strategy and Plans for Resource
Management Act instruments and consents, and
contains s 27 which empowers the Minister to
intervene in local government and other matters
concerning land use.
[278] I do not think, however, that either the
absence of explicit reference to the Recovery
Strategy in connection with the power to
purchase land or the location of s 53 in subpart 4
(“Further provisions”) under the subheading
“Provisions relating to real or personal property”
could be determinative. The overall scheme and
purpose of the Act is to coordinate response to
the earthquakes. Section 3 emphasises at the
outset that the purposes of the Act are to ensure
community response as well as recovery. It
stresses the enabling of community participation
in the planning of the recovery. The scheme of
the Act is that the “overarching” strategy
provided by a Recovery Strategy and developed
through Recovery Plans, adopted after
community input, is central to the coordinated
and ordered response enabled by the Act. The
Strategy is the principal mechanism for ensuring
community participation.
[279] Does the scheme of the Act suggest that the
powers of purchase under s 53 can be used only
under a framework of Recovery Strategy and
Plans? An interpretation that the Crown cannot
treat for purchase of land from individual owners
except under Plans which have in themselves
significant legal impacts on property use imposes
a substantial limitation on the power under s 53,
which in its own terms is constrained only by s
10. The context is a voluntary purchase (the use
of the compulsory powers of acquisition may
well be different). None of the land use and
regulatory effects provided for as a consequence
of the adoption of a Recovery Strategy or Plan
attaches to acquisition of ownership interests.
There may be a number of reasons why waiting
for the development of a Recovery Strategy or
Plans is both unnecessary and undesirable if the
chief executive on behalf of the Crown and after
taking into account the purposes of recovery and
expedition in s 3 has the opportunity to make
purchases which further the policies of the Act –
as the offers made in June 2011 did in enabling
those who accepted them to move on.
[280] The fact the offers were made for all
properties within a particular area and under a
government policy to encourage clearance and
Crown ownership has however caused me
considerable pause. In agreement with
Glazebrook J, I think the characterisation in the
Crown submissions of the decisions of June 2011 as the
provision of information only is inadequate description.
The decisions gave signals to insurers and
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Law Animated World, 15-31 March 2015