Digest No. 1855
Canterbury Earthquake Response and Recovery Act 2010
This Act was passed on 14 September 2010 and commenced the next day. Section 6(1) empowers the Governor-General, by Order in Council, on the recommendation of the relevant Minister, to make any provision reasonably necessary or expedient for the purpose of the Act, and in particular to “grant an exemption from, or modify, or extend any provision of any enactment” (22 Acts are listed but the powers applies to “any enactment”- although certain named Acts are exempted) (the Henry VIII clause).
This Act was passed through all stages on 14 September 2010 and the Bills Digest produced shortly afterwards describes the provision of the Act as passed: Bills Digest No 1805.
Criticism of that Act
The Act as passed has been subject to academic criticism on several grounds. The most important criticism relates to the Henry VIII clause. On commentator has said: “The Governments response to  concerns was that it was necessary to confer wide powers on the executive because it remained unclear what measures might need to be taken and in particular what legislation might need to be amended. For this reason, the 22 Acts referred to in s 6(4) were listed on an ‘including, but not limited to’ basis. While we acknowledge that many of the issues arising from the earthquake will be difficult to foresee, we do not believe that such uncertainty justifies the scope of the Act. Nor does it justify starting with the proposition that any Act may be amended, save those particularly mentioned. The power to amend primary legislation by regulation is an extraordinary power and the starting presumption, even in a situation of emergency, must be that the power is not needed unless it can be carefully justified in a particular case” There was also dissatisfaction about the list of exempted statutes which was felt to be too limited
One commentator also said: “There is no substantive restrictions on the power to grant an Order-in-Council, only the procedural requirement to take into account the Act’s purpose …”
The Bill’s purposes include:
to provide appropriate measures to ensure that greater Christchurch and the councils and their communities respond to, and recover from, the impacts of the Canterbury earthquakes;
to enable community participation in the planning of the recovery of affected communities without impeding a focused, timely, and expedited recovery;
enable a focused, timely, and expedited recovery;
to facilitate, co-ordinate, and direct the planning, rebuilding, and recovery of affected communities, including the repair and rebuilding of land, infrastructure, and other property;
to restore the social, economic, cultural, and environmental well-being of greater Christchurch communities (Part 1, Clause 3).
Minister and chief executive of the Canterbury Earthquake Recovery Authority (CERA)
The Bill sets out the particular functions of the Minister of Earthquake Recovery and the chief executive of CERA (which would itself be established under the State Sector Act 1988 by Order in Council). They must ensure that, when they exercise or claim their powers, rights, and privileges under this Bill, they do so in accordance with the purposes of the Bill (Part 2, Subpart 2, Clauses 8 - 10).
Development and implementation of planning instruments and recovery plans
The Bill requires the chief executive of CERA to prepare, for the Minister's approval, a Recovery Strategy for greater Christchurch. This document is an overarching, long-term strategy for the reconstruction, rebuilding, and recovery of greater Christchurch. The legal effect of the Recovery Strategy is that it is read into the other documents and instruments and prevails if there is any inconsistency between them. The Bill also provides for the preparation of Recovery Plans for all or part of greater Christchurch, as directed by the Minister to be developed by responsible entities. A dedicated Recovery Plan for the CBD, which must be developed within 9 months of the commencement of this Bill. It may be developed ahead of the Recovery Strategy and subsequently reviewed once the Recovery Strategy is in place. A Recovery Plan must be consistent with the Recovery Strategy. Councils must not to act inconsistently with a Recovery Plan once it is notified in the Gazette and they must amend their RMA documents if required by a Recovery Plan.
The Bill provides that Section 88A(1A) of the Resource Management Act 1991 does not apply to an application for a resource consent for an activity specified in a Recovery Plan. Section 88A(1A) applies if the type of activity for which a resource consent is sought alters after the application is lodged, and the effect of that provision is that the application must be processed, considered, and decided as an application for the type of activity that it was for at the time the application was first lodged. The Bill provides for the amendment of other planning documents if required by a Recovery Plan (Part 2, Subpart 3, Clauses 11-28).
Information and entry
The chief executive is given power to gather and disseminate information, commission reports and conduct investigations. The chief executive is given a power of entry for the purposes of this Bill and he or she may authorise others to exercise it. However, a warrant signed by a District Court Judge must be obtained if practicable before entering a marae or an occupied dwellinghouse (Part 2, Subpart 4, Clauses 29-34).
Surveys and building works
The Bill provides for the approval of cadastral survey datasets for the purposes of the Bill. The chief executive may carry out or commission works, including demolition, for the purposes of the Bill (Part 2, Subpart 4, Clauses 38-45).
Demolition of dangerous and non-dangerous buildings and compensation
The Bill defines the term “dangerous building” as a building:
that is likely to cause injury or death (whether by collapse or otherwise) to any persons in it or to persons on other property or damage to other property; or
where, in the event of fire, injury or death to any persons in the building or to persons on other property is likely because of fire hazard or the occupancy of the building
The Bill provides that if the chief executive demolishes a dangerous building, the Crown is liable to compensate the owner or any tenant or other occupier of the building and the chief executive also may recover the costs of demolition from the owner.
If the chief executive demolishes a non-dangerous building in order to demolish a dangerous building, the Bill provides that the Crown may not recover the cost of demolition from the owner or anyone else.
The Minister may, in his or her discretion, agree to compensate the owner or any tenant or other occupier of the non-dangerous building for a loss resulting from the demolition of the non-dangerous building, if:
the loss is insured or partially insured and the Minister is satisfied that the owner or tenant or other occupier has taken all reasonable steps to recover the loss under the contract of insurance within a reasonable timeframe (as determined by the Minister); and
the owner or tenant or other occupier assigns their interest under the contract of insurance, in so far as the contract allows, to the Crown in the form required by the Minister; and
If the chief executive demolishes a non-dangerous building in circumstances other than in order to demolish a dangerous building:
the Crown is liable to compensate the owner or any tenant or other occupier of the building; and
the chief executive may not recover the cost of demolition from the owner or anyone else (Part 2, Subpart 4, Clause 40).
Compensation for damage to other property caused by demolition of building
The Bill provides for compensation for damage to other property caused by the demolition of a building. The Crown is liable to pay compensation for negligent physical loss or damage caused to other property that results directly from the demolition of a building by the chief executive except for damage to property that is in or on or under or part of a dangerous building” (Part 2, Subpart 4, Clause 41).
Real or personal property
The Bill enables the chief executive to require adjoining owners to act for the benefit of other adjoining owners and sets out the chief executive's powers to acquire and dispose of land and other property. The Bill also provide for the compulsory acquisition of land for the purposes of this Bill and provide for residential land taken in the CBD or any land taken in greater Christchurch outside the CBD to be offered back to the former owners if no longer required (Part 2, Subpart 4, Clauses 51-58 and Schedule 1)
Compensation for land acquired, and demolition of buildings
The Bill provides detailed provisions for compensation where:
land is compulsorily acquired under the Bill; or
Clause 40 or 41 applies (compensation for demolition of buildings in certain circumstances and for damage to other property caused by demolition of damaged building).
Compensation is defined as actual loss, but not insured losses (Part 2, Subpart 5, 59-66).
The Bill sets out appeal rights to the High Court and the Court of Appeal and Supreme Court (the latter two on points of law) in relation, particularly, the determination of compensation and certain decisions of the Minister (Part 2, Subpart 6, Clauses 67-69)..
Delegated legislation (“the Henry VIII clause”) and creation of the Review Panel
The Bill carries over the provisions in the Canterbury Earthquake Response and Recovery Act 2010 relating to the making of Orders in Council. However, a Canterbury Earthquake Recovery Review Panel of four persons is created to review draft Orders in Council before the relevant Ministers can recommend them to Cabinet and the Executive Council. The Regulations (Disallowance) Act 1989 will apply to Orders in Council made under this Bill (i.e. they are to be subject to a procedure for disallowance by Parliament (Part 2, Clauses 70-75).
The creation of the Canterbury Earthquake Review Panel appears to be an attempt to answer the criticism of the breadth of the Henry VIII clause in the Canterbury Earthquake Response and Recovery Act 2010.
That criticism is briefly described in the background section of this digest (above). Clause 10 of this Bill also states “The Minister and the chief executive must ensure that when they each exercise or claim their powers, rights, and privileges under this Act they do so in accordance with the purposes of the Act”.
One of the criticisms of the Canterbury Earthquake Response and Recovery Act 2010 was that “there is no substantive restrictions on the power to grant an Order-in-Council, only the procedural requirement to take into account the Act’s purpose”. However, Section 5 of the Interpretation Act 1999 is clear that enactments must be read in the light of their purpose (i.e. a Bill’s purpose provision imposes a substantive interpretation requirement and not merely a “procedural” one). To avoid doubt, Clause 10 of this Bill re-emphases that aspect of the existing law enacted by Section 5 of the Interpretation Act 1999.
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