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

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F-196 Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Eliyas CJ] (2015) 1 LAW property owners which they were expected to use in determining how to proceed. They were expressed in terms that suggested rebuilding could not occur within the red zone. Against a background of legislative powers to compel the outcomes signalled (compulsory powers which were specifically mentioned in the information provided with the offers), the decisions indicated that those within the green zone could proceed to rebuild and deal with their insurers on that basis. It indicated that rehabilitation and rebuilding were not appropriate in the red zone. It strains credulity to think that Councils and insurers would not be expected to act on the message, even though no direct compulsion was adopted. [281] Although there had been no intervention to prohibit building, the rebuilding after the earthquakes was effectively stopped in fact while announcements based on the land damage and remediation findings commissioned by the Government were being awaited. In addition, the Department of Building and Housing was known to be working on new building guidelines for Christchurch. Although notionally building consents could have been granted, the Council was not in fact at the time granting such consents and did not in fact do so for the red zone after the announcements of June 2011. 290 When the Department of Building and Housing provided engineering guidelines for repair and rebuilding of houses in July 2011, they applied only to the green zones. [282] Counsel for the respondents suggested at the hearing that the building consent regime was not affected by the June 2011 offers and that “[t]he reason that insurance claims could be settled more promptly and insurance renewed in the green zone was because of the factual reassurance provided by the announcement that, 290 Counsel for the respondents confirmed as much to the Court, saying that the Council had “dragged its feet” for some time but that, in his understanding, some consents had been more recently granted and, if they had not, the Council could be compelled to grant consents through mandamus. based on the best available engineering evidence, there were no area-wide land issues”. That may be formally correct although in practice those in the red zone who wished to rebuild were left in limbo, unable to obtain building consents or insurance. [283] Again it strains credulity to think that the Government announcements made in June 2011 did not contribute to that state and were simply the provision of information which left those affected free to pursue their own ends based on it. This was formally adopted and announced Government policy which the Minister had the power to enforce if encouragement proved inadequate. Such enforcement could be through exercise of the powers conferred under s 27 to suspend, revoke or amend a range of controls under the Resource Management Act or through adoption of a Recovery Strategy or Recovery Plan. [284] That the announcements of June 2011 were not simply the provision of information but were part of an overall Government policy for Christchurch is underscored by the indication in the June 2011 Cabinet paper that territorial authorities would be expected to discuss proposals for repair and maintenance of infrastructure and the acceptance of the need for government intervention through making the offers to achieve clearance, rather than leaving recovery in the red zone to be a matter to be negotiated between property owners, insurers, and Councils on the basis of the opinions provided. 291 [285] The task of identifying where rebuilding could occur was envisaged by the Act to be the purpose of a Recovery Strategy and Plans. Section 11(3) made it clear that the Recovery Strategy would address “the areas where rebuilding or other redevelopment may or may not occur” and sequencing of rebuilding and redevelopment and location of infrastructure and 291 Memorandum for Cabinet “Land Damage from the Canterbury Earthquakes” (24 June 2011) at [50]-[52]. Law Animated World, 15-31 March 2015 138
(2015) 1 LAW Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Eliyas CJ] F-197 the possible sequencing of repairs and reconstruction. To the extent that the decisions made in June 2011 in fact accomplished the establishment of such areas and the location of infrastructure and set priorities for rebuilding and repair, the opportunity for community participation in the critical decisions was overtaken. [286] Such considerations may well be fatal to the exercise of other powers under the Act. It may be, for example, that the powers conferred on the Minister under s 27 could not be lawfully exercised without prior adoption of a Recovery Strategy or at the very least the adoption of a Recovery Plan (which could be on a directed truncated procedure, while subject to later adjustment to conform with a Recovery Strategy subsequently adopted). 292 In the case of a voluntary sale and purchase, however, I think it is open to the chief executive to adopt the criteria on which such offers are made, in compliance with s 10 but without there being in place an overarching Recovery Strategy or Recovery Plan adopted under the Act. As already indicated, compliance with s 10 may require some consideration of the consequences and the absence of opportunity to have them addressed in a Recovery Strategy and Recovery Plans. [287] The Act sets up a framework under which the effort of responding to the damage caused to property and people by the earthquakes can be coordinated. The offers of purchase might well have been made under an overarching Recovery Strategy adopted by the processes under the Act. But that sequence was not provided for explicitly in the legislation. I consider it too great a stretch to say that the use of s 53 requires prior adoption of a Recovery Strategy or Plan. Quite apart from the delay that may have been entailed, the consequences for land use and regulation of such plans would have impacted on existing use rights and may well have had consequences for insurance obligations which would have been difficult to predict with confidence. Adherence to the scheme 292 Canterbury Earthquake Recovery Act, s 18. and purpose of the Act in exercise of powers under s 53 is I think sufficiently ensured by s 10. [288] I consider that the chief executive was entitled to identify the properties in respect of which offers were to be made on the basis of the expert advice accepted by the Government as to the areas likely to be unsuitable for reinstatement within the medium term. In the absence of the adoption of a Recovery Strategy or Recovery Plans, that identification had no legal consequence for the status of the land and its use. It may well be that the purpose and scheme of the Act means that powers of the Minister or chief executive under it which alter rights and obligations cannot lawfully be used without first adopting a Recovery Strategy or Recovery Plan. But I do not consider that is the case with s 53. I would therefore decline to make the declaration sought by the appellants and would dismiss their appeal on the second ground also. * * * AN APPEAL We request all our readers, friends and wellwishers to liberally subscribe to/contribute for and advertise in this unique type of journal and also aid in increasing its circulation. Our admirers, if any – hope there are certainly some – may take this as an ULTIMATUM and enroll as many subscribers as possible since otherwise continuance of this journal would be very difficult. We also request that scholarly articles on any aspect of law and society, preferably with comparative study, be sent to us. Life subscription for this journal: Rs. 12,000/- and the annual subscription for 2015: Rs. 1200/-. Any annual subscription will count for one volume i.e. January to December of the year, and back-numbers of the year, subject to availability (but pdf copies of the same certainly), will be supplied to the subscriber. - I.M. Sharma, Editor. ADVERTISEMENT TARIFF: Full inner cover page : Rs. 12,000/- Ordinary full page : Rs. 10,000/- Cheques/DDs to be sent in favour of: LAW ANIMATED WORLD, H. No. 6-3-243/156, M.S. Makta, Opp. Raj Bhavan, HYDERABAD - 500 082. (for outstation cheques please add Rs. 75/- bank charges) 139 Law Animated World, 15-31 March 2015
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Editor: I. Mallikarjuna Sharma Volume 11: 15-31 March 2015 No. 5-6

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