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Canterbury Earthquake Recovery Act 2011 – implications  

by Mark Crosbie Janine Stewart Christine Gordon

Published: April, 2011

Submission: April, 2011

 



 The Canterbury Earthquake Recovery Act 2011 (CER Act) was passed by parliament under urgency last week. It received Royal Assent and came into force on 18 April 2011. The purpose of the CER Act is to govern the recovery in the Canterbury Region following the 22 February 2011 earthquake in Canterbury. The CERA Act replaces the Canterbury Earthquake Response and Recovery Act 2010 which was passed following the 4 September 2011 earthquake.




Most importantly the CER Act establishes the Canterbury Earthquake Recovery Authority (CERA). The purpose of CERA is to coordinate the recovery and is lead by a Chief Executive (CE). That role is currently filled by an acting CE, John Ombler (who is also the Deputy State Services Commissioner). The State Services Commission is looking to appoint a permanent CE in the near future.



 



The National State of Emergency (specific to the Canterbury region) has been extended until 24 April 2011 to allow time for the National Controller of Civil Defence to hand over to CERA.[1]  However, if there is another civil defence emergency, the Civil Defence and Emergency Management Act 2002 (CDA) will apply to that immediate response (in priority to, but together with, the CER Act).



 



Powers of CERA


                       



The CE has wide-ranging powers which include[2]:



 



·         By notice to council, specify the types of council contracts for which his or her consent must be obtained before the contract is entered into;



·         the ability to “break-into” any premises or place within greater Christchurch if the CE believes on reasonable grounds that the action is necessary to inspect, permit or facilitate the carrying out of work or perform any function under the CER Act;



·         enter into premises without a warrant (except a dwellinghouse or marae, unless not reasonably practicable to get a warrant);  



·         direct a landowner to act for the benefit of adjoining or adjacent owners;



·         give notice to building owners to carry out works or remove fixtures or fittings. If building owner fails to carry out the works, CE can carry out the works and recover the cost (which becomes a change on the land if not paid).  This is consistent with a Territorial Authority’s powers under the Building Act 2004;



·         carry out compulsory acquisition of land;



·         restrict access to certain buildings;



·         sub-divide land, use temporary buildings, prohibit access to buildings and close roads.



 



What about consultation?



 



The Canterbury Earthquake Recovery Minister, Gerry Brownlee (the Minister) is required to arrange for an independent review panel to be convened. Former High Court Judge, Sir John Hansen has been appointed as chairperson.



 



The purpose of the Panel is to review draft Orders in Council and make recommendations to the Minister on legislation and regulatory changes. Other Members of the Panel are Dame Jenny Shipley (former Prime Minister), Mr Anake Goodall (former chief executive of Te Runanga O Ngai Tahu) and Mr Murray Sherwin (chair of the disestablished Canterbury Earthquake Recovery Commission).



 



In addition, the Minister must arrange for at least 20 people to join a Community Forum to be held to provide information or advice on the operation of the CER Act.



 



The CE must develop a Recovery Strategy which is an over-arching, long-term strategy for the ‘reconstruction, rebuilding and recovery of greater Christchurch’.[3] The CER Act states that Resource Management Documents[4] including any amendments cannot be interpreted or applied in any way that is inconsistent with a Recovery Strategy.



 



The Minister may direct one or more entitles to develop a Recovery Plan which can provide for any social, economic, cultural or environmental matter or any particular infrastructure, cultural or environmental matter. The CER Act determines how a Recovery Plans is to be developed, a draft of which must be publically notified. In terms of consultation, the Minister must consult with affected communities but following consultation, can make any changes he or she wishes.



 



Resource Documents subordinate to CER Act



                            



If there is any inconsistency, the CER Act prevails over Resource Management Documents (RM Document). The Minister has the power by public notice to suspend, amend or revoke any RM Document, or plan or policy which is in place under the Local Government Act 2002.



 



The Minister has the power to determine how recovery plans are to be developed (nothing in s 31 or schedule 1 of the Resource Management Act 1991 (RMA) applies). Despite anything in part 5 of the RMA (standards, policy statements and plans) a council must amend an RM Document if a recovery plan directs so. Section 88A (1A) of the RMA does not apply. Section 11 or Part 10 of the RMA does not apply to the subdividing of land.



 



                        Powers of CERA regarding land



                       



The CE can approve Cadestral Surveys and direct the Registrar General of Land to seek the consent of the adjoining landowners to the new survey definition.



 



The CE can acquire or dispose of land and personal property in the name of the Crown. In accordance with the CER Act, the Minister can compulsorily take land after publishing two times in the Gazette. If compulsorily taken, the CE must offer to sell the land back to the original owner. The CER Act provides that the landowner is entitled to compensation from the crown.



 



The Governor-General can, by proclamation, declare that land is to be taken by the Crown. The proclamation must be lodged with the Registrar- General of Land. If the owner fails to give vacant possession, within 1 month, the Minister can seek an order for vacant possession from the High Court.



 



Powers relating to buildings



 



The CE has similar powers to a territorial authority under the Building Act 2004 (BA) as modified by the Canterbury Earthquake (Building Act) Order 2010[5]. Under the CER Act, the CE may direct the building owner (with 10 days written notice) to carry out works to remove dangerous fixtures or fittings. If the building owner fails to comply with that notice, the CE can recover the cost of the works from the building owner.



 



The CE has the power to restrict or prohibit access by any person to any building in greater Christchurch. The CE can put up a hoarding, fence, attach a notice on the building or give written notice to the owner or occupier not to enter the building. A person who fails to comply with these directions commits an offence under the CRA Act and is liable on summary conviction to a fine not exceeding $200,000.[6]



 



If practicable the CE must give notice that demolition work is to be carried out. The owner must, within 5 days, give notice that the owner intends to carry out the works. However, the CE can undertake works without the consent of the owner or occupier.



 



Compensation



 



If the CE demolishes a dangerous building, the Crown is not liable to compensate the owner or occupier, and can recover the costs of the demolition from the owner.



 



However, if the CE demolishes a non-dangerous building in order to demolish a dangerous building, the Crown is liable to compensate the owner of the non-dangerous building for a loss resulting from the demolition of that building, irrespective of whether or not it was insured. If the CE demolishes a non-dangerous building for any other reason the Crown is liable to pay compensation.[7]



 



The Crown is liable for physical loss or damage caused to property resulting directly from the demolition of a building by the CE caused by negligence.[8]



                       



Where to from here?



                         



It remains to be seen how the CER Act will operate in practice and how it will work alongside the BA.  Certainly the CERA has wide ranging powers in respect of buildings which will directly affect building owners and tenants.  The Act also has significant implications on the RMA and RM Documents (including resource consents) obtained prior to the February Earthquake.









[1] Media Statement, Honourable John Carter, Minister of Civil Defence, 18 April 2011. 




[2] The Chief Executive can generally or particularly delegate to any employee or person seconded to CERA any of the functions of the CE under the CER Act 2011.




[3] Section 11(3) of the CER Act 1.




[4] Defined in section 4 of the CER Act as a regional policy statement, proposed regional policy statement, proposed plan and plan (including a change or variation to those documents).




[5] See Minter Ellison Rudd Watts Property Update, March 2011 at http://www.minterellison.co.nz/publications/PropertyUpdate-March2011.pdf




[6] Section 42(3) provides that it is a defence, if the defendant can prove he or she took all reasonable steps to ensure the defendant complied with the relevant section of the CER Act, or in the circumstances of the particular case the defendant could not have reasonably complied with that provision or notice.




[7] For the loss resulting from the demolition of the non-dangerous building, irrespective of whether or not it is insured.




[8] Except for damage to property that is in or on or under part of a dangerous building.


 


 

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