Canterbury Earthquake Recovery Bill

  • enacted

Explanatory note

General policy statement

The Canterbury Earthquake Recovery Bill repeals the Canterbury Earthquake Response and Recovery Act 2010. The Bill sets out appropriate measures to enable the Minister for Canterbury Earthquake Recovery and/or the Canterbury Earthquake Recovery Authority (CERA) to facilitate and direct, if necessary, greater Christchurch and its communities to respond to, and recover from, the impacts of the Canterbury earthquakes. The Bill is founded on the need for community participation in decision-making processes while balancing this against the need for a timely and coordinated recovery process.

It is necessary to put in place stronger governance and leadership arrangements for the rebuilding and recovery of greater Christchurch from the cumulative effects of the 4 September 2010 and 22 February 2011 earthquakes. In developing the Bill to put in place new arrangements the following factors were taken on board:

  • the scale of the post-earthquake rebuilding effort recognising that the 22 February earthquake represents an incomparable natural disaster in New Zealand's history:

  • lessons learnt from international experience and from the recovery planning after the 4 September earthquake including the strong indication to have a single entity in charge of, and responsible for, the recovery efforts:

  • the need for timely and effective decision-making powers; and

  • the significant co-ordination needed between local and central government, residents of greater Christchurch, Te Runanga o Ngai Tahu, NGOs, business interests and the private sector.

The Canterbury Earthquake Response and Recovery Act 2010 expires on 1 April 2012 and so do any Orders in Council that have been made under it. The recovery effort is likely to go on for some time past this expiry date. There is therefore a need to put in place legislation that will provide for a timely and coordinated recovery effort of Christchurch and the greater Christchurch region.

This Bill recognises that current institutions simply do not have the capability to deal with a disaster of this magnitude. New institutional arrangements with specific powers and access to streamlined regulatory processes are needed to meet the challenges of recovery.

Canterbury Earthquake Recovery Authority (CERA)

A new Public Service department, CERA, has been established, which will, under the leadership of its chief executive, coordinate the recovery effort. CERA was established under section 30A(1) of the State Sector Act 1988 by way of Order in Council, made on 29 March 2011. The Order in Council adds the department to Schedule 1 of the State Sector Act. The Public Service comprises those departments listed in Schedule 1 of the State Sector Act.

A second Order in Council was made on 29 March 2011 which places CERA onto Part 1 of Schedule 1 of the Ombudsmen Act 1975 and means that CERA will be subject to Ombudsmen Act reviews and Official Information Act requests.

Purpose

The Bill sets out a series of purposes that will guide decision-making by the Minister for Canterbury Earthquake Recovery and CERA. The purposes are about ensuring that there is adequate statutory power to enable community participation in decision-making while also ensuring a focused, timely, and expedited recovery of greater Christchurch and its communities.

Input into decision-making processes

To ensure local involvement in decision making the Minister for Canterbury Earthquake Recovery and CERA will work alongside the Christchurch City Council, Environment Canterbury, Waimakariri District Council, Selwyn District Council, and Te Runanga o Ngai Tahu, business and community interests and the private sector in order that the planning processes under the Bill take into account local views. Cantabrians will also be able to provide their input via a community forum made up of representative community leaders and through a cross-party forum of Canterbury Members of Parliament that will advise the Minister for Canterbury Earthquake Recovery and CERA, as well as through public consultation processes. It is expected that, as the new planning mechanisms are developed, processes for effective community consultation will be developed. This ensures local people will have the ability to express what’s important to them in developing and carrying out the plans for rebuilding Canterbury.

Planning regime

Planning for the recovery of the greater Christchurch region will occur through the development of a Long-Term Recovery Strategy (Recovery Strategy) which will be developed by CERA in consultation with Christchurch City Council, Environment Canterbury, Selwyn District Council, Waimakariri District Council, Te Rūnanga o Ngāi Tahu, and other parties deemed necessary. The Recovery Strategy will set the overall direction for the recovery efforts. The purpose of the Recovery Strategy will be to address some of the high level questions that will need to be addressed for the recovery to occur in a timely and co-ordinated way. It will need to be produced within 9 months of the Act coming into force.

Underneath the Recovery Strategy will sit a series of more detailed Recovery Plans that will set out the detail of what needs to be done and how it will be implemented. Recovery Plans will be able to cover—

  • any social, economic, cultural, or environmental matter:

  • any particular infrastructure, work, or activity—

on a site-specific or wider geographic basis within greater Christchurch.

The Bill sets out provisions to enable the planning and implementation processes to be streamlined.

The Bill provides for the development of an overarching Long-Term Recovery Strategy by CERA in collaboration with key stakeholders. The purpose of the Recovery Strategy will be to address some of the high level questions that will need to be addressed for the recovery to occur in a timely and coordinated way.

The process for the development of the Recovery Plans will be determined by the Minister for Canterbury Earthquake Recovery. The Bill provides for the Minister for Canterbury Earthquake Recovery to require, as necessary, the preparation of Recovery Plans by CERA, relevant government agencies, councils, or other bodies, authorities, or entities. It is expected that processes for community consultation will be an integral component of the development of such plans. This participation, will however, need to be carefully balanced with the need for a timely, focused, and expedited recovery of greater Christchurch. The necessity for such Plans will be determined by the Minister for Canterbury Earthquake Recovery and set out in a schedule notified in the Gazette for the purpose of public notification. Recovery Plans must give effect to the Recovery Strategy.

The Bill provides for a mandatory Recovery Plan to be produced for the Christchurch commercial business district (CBD) within nine months of enactment. Christchurch City Council will lead development of the CBD Recovery Plan (including community engagement) with input from CERA, Te Runanga o Ngai Tahu, and Environment Canterbury. It is expected that Christchurch City Council will develop a consultation plan to engage the many views from within the Christchurch communities. The Minister for Canterbury Earthquake Recovery may identify other parties to be consulted in the development of this plan.

Once approved, the Bill provides for a Recovery Plan to be ‘read into’ statutory plans (including plans under the Resource Management, Local Government, Land Transport Management, Reserves and Wildlife Acts) and prevail to the extent it is inconsistent with those statutory plans.

Powers to be exercised in accordance with the purpose of the Bill

Other powers created under the Bill to ensure a focused, timely and coordinated recovery effort will need to be exercised for the specific purposes of the Bill, where the Minister or CERA reasonably consider them necessary.

These powers include but are not limited to—

  • the ability to obtain or require information from any source, including the commissioning of reports:

  • powers to enter onto land, remove fixtures and fittings, perform work on land, construct structures on or under that land, leave and maintain structures on or under that land and register its interest in those structures:

  • the discretionary power to close roads and divert traffic:

  • the power of entry and removal, including demolition powers for commercial and possibly residential demolition project (both in CBD and suburbs):

  • the power to require land to be temporarily vacated so work can be coordinated (which may involve buildings being demolished):

  • the power to acquire land through a process of compulsory acquisition:

  • the ability to approve certain council or organisation contracts, over a certain threshold, if necessary; and

  • the ability to suspend, amend, cancel, delay, any council plans and policies.

These are mainly reserve powers, only to be used if they are necessary. Checks will be in place to guard against the inappropriate use of the powers given to the Minister and CERA. The powers provided to the Minister and CERA will only be available for the duration of the legislation, a period of 5 years, but the need for the Act to be continued will be reviewed annually.

Significant checks and balances have been built into the Act to ensure that powers are only exercised in accordance with the purpose of the Act and only if reasonably necessary. As well as the exercise of a statutory power being subject to judicial review, the Bill also contains other significant protections, such as—

  • the power to require information can only be used where the information can be provided without unreasonable difficulty or expense:

  • before disseminating information the chief executive must consider the privacy principles under the Privacy Act 1993 and the need to protect confidential and commercially sensitive information:

  • the person exercising the power of entry must produce evidence of authorisation and where practicable must exercise it at a reasonable time and give prior notice of entry:

  • before exercising a survey power the chief executive must consult with the Surveyor-General, and a dispute mechanism has been introduced where land owners disagree with the survey decision:

  • in undertaking building works, etc a notice is required to be served on owners, occupiers and other persons with an interest in the land:

  • the powers of direction and call-in rights do not include the ability to collect rates or take any action or make any decisions affecting rates:

  • notice of an intention to acquire land is required:

  • persons who have had their land compulsorily acquired or a building demolished will be entitled to compensation:

  • any person may appeal to the High Court against a determination of compensation, against any decision in respect to which there is a right of appeal or objection under the Resource Management Act 1991 or from a dispute over a survey definition decision.

There is another, significant, control in this Bill. The Minister must prepare and present to the House a quarterly report on the operation of this Act. And each report must include a description of the powers exercised by or on behalf of the Minister or the chief executive under this Act during that period.

Delegated legislation

While the Bill is to replace the Canterbury Earthquake Response and Recovery Act 2010, it retains the statutory scheme that permits the Governor-General to make Orders in Council on the recommendation of the relevant Minister to exempt, modify or extend provisions of any enactment.

It is necessary to retain this Order in Council process as it is not possible to anticipate every power or statutory provision that may require to be amended to achieve the purposes of the Act. When the Order in Council process was first introduced it attracted some criticism. However its operation has been largely successful and proportionate. Other than one case involving an unsuccessful attempt to halt the demolition of a heritage building, the process has not been the subject of successful judicial challenge. This is due in no small part to the careful way in which the process has been managed. This is illustrated by the fact that not all requests for Orders in Council have been granted.

As with the previous Act, Orders in Council may only be used where necessary and fit within the purpose of the Act. Another significant control is the requirement under the Bill for there to be a Canterbury Earthquake Recovery Review Panel. The panel is to comprise members with relevant expertise and appropriate skills, to review draft Orders in Council, and provide to the Minister a report that includes the panel’s recommendation as to whether the Order in Council is appropriate.

Extent of Powers

CERA will not assume any role, functions, or powers specifically provided for within the Civil Defence Emergency Management Act. If another emergency occurs in greater Christchurch, the Civil Defence Emergency Management framework will prevail for the response period. The response roles and functions of agencies such as the New Zealand Police, New Zealand Fire Service, and the New Zealand Defence Force will not be altered. Any recovery from a new emergency event would fall within the new framework proposed in this Bill for the period this framework is in place.

Regulatory impact statement

The State Services Commission produced a regulatory impact statement on 25 March 2011 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

A copy of this regulatory impact statement can be found at—

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 provides that the Bill comes into force on the day after the date on which it receives the Royal assent.

Part 1
Preliminary provisions

Clause 3 sets out the purposes of the Bill. In particular, the Bill is—

  • 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:

  • to 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.

Clause 4 defines terms used in the Bill. Terms of particular importance to the application of the Bill are—

  • Canterbury earthquakes, which means any earthquake in Canterbury on or after 4 September 2010, and includes any aftershock:

  • CERA, which means the Canterbury Earthquake Recovery Authority, and chief executive, which means the chief executive of CERA:

  • greater Christchurch, which means the districts of the Christchurch City Council, the Selwyn District Council, and the Waimakariri District Council:

  • responsible entity, which means the chief executive, a council, a council organisation, a department of the Public Service, an instrument of the Crown, a Crown entity, a requiring authority, or a network utility operator:

  • RMA document, which means a regional policy statement, a proposed regional policy statement, a proposed plan, a plan, or a change or variation to any of those documents under the Resource Management Act 1991.

Clause 5 provides that the Bill binds the Crown.

Part 2
Functions and powers to assist recovery and rebuilding

Subpart 1Input into decision making by community and cross-party forums

Clause 6 provides for a community forum.

Clause 7 provides for a cross-party parliamentary forum to be held in relation to the operation of this Bill.

Subpart 2Minister and chief executive of CERA

Clause 8 sets out functions of the Minister.

Clause 9 sets out functions of the chief executive.

Clause 10 relates to the roles of the Minister for Canterbury Earthquake Recovery and the chief executive of CERA. 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.

Subpart 3Development and implementation of planning instruments

Recovery Strategy

Clause 11 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.

Clause 12 relates to the process for developing a Recovery Strategy.

Clause 13 provides for a draft Recovery Strategy to be publicly notified.

Clause 14 provides for changes to a Recovery Strategy.

Clause 15 specifies the legal effect of a Recovery Strategy on RMA documents and other planning instruments. A Recovery Strategy is read into the other documents and instruments and prevails if there is any inconsistency between them.

Recovery Plans

Clause 16 provides for the preparation of Recovery Plans for all or part of greater Christchurch, as directed by the Minister. Recovery Plans will be developed by responsible entities.

Clause 17 provides for a dedicated Recovery Plan for the CBD, which must be developed within 9 months of the commencement of this Bill.

Clause 18 provides for public notification of a draft Recovery Plan for the CBD.

Clause 19 allows a Recovery Plan to 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.

Clause 20 relates to the process for developing draft Recovery Plans.

Clause 21 provides for the approval of a draft Recovery Plan by the Minister.

Clause 22 provides for changes to a Recovery Plan.

Clause 23 requires the councils not to act inconsistently with a Recovery Plan once it is notified in the Gazette.

Clause 24 requires councils to amend their RMA documents if required by a Recovery Plan.

Clause 25 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.

Clause 26 provides for the amendment of other planning documents if required by a Recovery Plan. This clause relates to—

  • annual plans, long-term plans, and triennial agreements under the Local Government Act 2002:

  • regional land transport strategies and regional land transport programmes under the Land Transport Management Act 2003:

  • the New Zealand Transport Agency's recommendations under section 18I of the Land Transport Management Act 2003:

  • regional public transport plans adopted under section 9 of the Public Transport Management Act 2008:

  • general policies approved under section 17B of the Conservation Act 1987 or section 15A of the Reserves Act 1977, conservation management strategies approved under section 17F of the Conservation Act 1987 and section 40A of the Reserves Act 1977, conservation management plans approved under section 17G of the Conservation Act 1987 or section 40B of the Reserves Act 1977, management plans approved under section 41 of the Reserves Act 1977, conservation management plans approved under section 14E of the Wildlife Act 1953, and any other management plan for a reserve under any other enactment.

Provisions affecting councils and others

Clause 27 enables the Minister to suspend, amend, or revoke planning documents of councils and other agencies, and to suspend or cancel resource consents, use rights, and certificates of compliance for activities.

Clause 28 provides for certain council contracts to require the chief executive's consent.

Subpart 4Further provisions

Information gathering, reports, and investigations

Clause 29 enables the chief executive to gather information.

Clause 30 enables the chief executive to disseminate information.

Clause 31 enables the chief executive to commission reports.

Clause 32 enables the chief executive to conduct investigations.

Power of entry

Clause 33 gives the chief executive a power of entry for the purposes of this Bill and enables him or her to 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.

Clause 34 provides for the exercise of the power of entry under clause 33.

Surveys

Clause 35 provides for the approval of cadastral survey datasets for the purposes of this Bill.

Clause 36 provides for surveys for the purposes of this Bill.

Clause 37 provides for disputes arising out of surveys to be dealt with under clause 68.

Building works, etc

Clause 38 enables the chief executive to carry out or commission works, including demolition, for the purposes of this Bill.

Clause 39 contains provisions relating to demolition or other work.

Clause 40 provides for compensation for the demolition of buildings in certain circumstances and for the assignment of insurance rights.

Clause 41 provides for compensation for damage to other property caused by the demolition of a building.

Clause 42 prescribes an offence of failing comply with a notice given under clause 38(4)(a) or 39(1)(c). The penalty is a fine of up to $200,000.

Clause 43 provides for the subdivision of land.

Clause 44 enables the chief executive to erect temporary buildings and authorise their use.

Clause 45 enables the chief executive to restrict access to areas and buildings.

Clause 46 enables the chief executive to close roads temporarily or stop roads.

Clause 47 prescribes an offence of contravening a restriction or prohibition imposed under clause 46. The penalty is,—

  • in the case of an individual, imprisonment for a term not exceeding 3 months or a fine not exceeding $5,000, or both:

  • in the case of a body corporate, a fine not exceeding $50,000.

Directions

Clause 48 enables the chief executive to give directions for the purposes of this Bill. A direction can require that a person take a particular action or stop taking a particular action.

Clause 49 enables the Minister to require a council or council organisation to perform or exercise specified responsibilities, duties, or powers within a specified time.

Clause 50 provides for the Minister to issue a call-in notice if a council or council organisation does not comply with a notice under clause 49. This will enable the Minister to deal with the matter concerned.

Provisions relating to real or personal property

Clause 51 enables the chief executive to require adjoining owners to act for the benefit of other adjoining owners.

Clause 52 sets out the chief executive's powers to acquire and dispose of land and other property.

Clauses 53 to 58 and Schedule 1 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.

Subpart 5Compensation for land acquired, and demolition of buildings

Clause 59 provides that subpart 5 applies if—

  • land is compulsorily acquired under this 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).

Clause 60 defines compensation for the purposes of subpart 5. Compensation is for actual loss, but not insured losses.

Clause 61 provides that a person who suffers a loss resulting from the compulsory acquisition of land under this Act is entitled to compensation from the Crown.

Clause 62 relates to the procedure for claiming compensation. A claim must be lodged within 2 years after the exercise of the power in question.

Clause 63 provides that the Minister will determine whether compensation is payable and the amount to be paid.

Clause 64 requires that claims be determined within a reasonable period.

Clause 65 provides that the exercise of power under this Act is not affected by a claim for compensation.

Clause 66 provides that this Act does not confer any right to compensation except as provided in this subpart.

Subpart 6Appeal rights

Clause 67 provides that there is no appeal against a decision of the Minister or the chief executive under this Bill, except as provided for in clauses 68 and 69.

Clause 68 provides for an appeal to the High Court—

  • against a determination of compensation:

  • against a decision of a Minister under clause 23(2):

  • against a decision on an application for a resource consent or a notice of requirement for an activity or use that is specified in a Recovery Plan as being subject to this section, and in respect of which a person would otherwise have a right of appeal or objection under the Resource Management Act 1991:

  • against a decision under the Resource Management Act 1991 that has been called in by the Minister under this Act:

  • in respect of a dispute referred to in clause 37 (surveys).

Clause 69 provides a right of appeal to the Court of Appeal against a decision of the High Court under clause 68. An appeal lies as of right if the appeal is on a point of law, otherwise the appeal will be heard only with leave granted by the Court of Appeal.

In the case of an appeal referred to in clause 68(1)(a) (which relates to determinations about compensation) there is a further right of appeal to the Supreme Court on a question of law, but only with leave granted by the Supreme Court.

Subpart 7Delegated legislation

This subpart (clauses 70 to 75) largely carries over the provisions in the Canterbury Earthquake Response and Recovery Act 2010 relating to the making of Orders in Council. A new feature (in clauses 71 and 72) is the creation of a Canterbury Earthquake Recovery Review Panel of 4 persons 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.

Subpart 8Miscellaneous provisions

Clauses 76 to 80 provide for compliance orders.

Clause 81 allows courts and tribunals to extend or shorten time limits for the purposes of this Bill.

Clause 82 protects persons who carry out functions or exercise powers under the Bill.

Clause 83 validates actions taken under the Civil Defence Emergency Management Act 2002 by the National Controller, the Director, or any person acting under their authority while the state of national emergency was in force for Christchurch in 2011, except actions taken in bad faith or with gross negligence.

Clause 84 provides for the continuation of authorisations, directions, requirements, restrictions, or prohibitions made under the Civil Defence Emergency Management Act 2002 by the National Controller or the Director while the state of national emergency was in force in respect of Christchurch in 2011. The measures concerned have effect for 12 weeks after the commencement of this Bill unless brought to an end earlier by the Minister or the chief executive.

Clause 85 ensures that the emergency management framework under the Civil Defence Emergency Management Act 2002 will not be affected by this Bill if an emergency occurs in greater Christchurch while this Bill is in force.

Clause 86 enables Crown contracts and other undertakings to be transferred to a council.

Clause 87 requires the Minister to present quarterly reports on the operation of the Bill to the House of Representatives.

Clause 88 repeals the Canterbury Earthquake Response and Recovery Act 2010, validates things done under that Act or done under an Order in Council made under that Act, and continues those orders that have not expired.

Clause 89 and Schedule 2 amend the expiry dates of a number of Orders in Council made under the Canterbury Earthquake Response and Recovery Act 2010.

Clause 90 dissolves the Canterbury Earthquake Recovery Commission.

Clause 91 provides for annual reviews of the Bill.

Clause 92 provides that the Bill expires after 5 years and Orders in Council made under or continued by it will also expire then (unless they expire or are revoked sooner).

Schedule 1 prescribes a form to be used for the purposes of the compulsory acquisition of land under the Bill.

Schedule 2 sets out amendments to Orders in Council (see clause 63A).