24 May 2011
CERA Powers to Enable Canterbury’s Recovery
Before becoming Spiderman, Peter Parker’s Uncle Ben told him: “With great power comes great responsibility.” The recently enacted Canterbury Earthquake Recovery Act 2011 (Act) contains a number of significant and potentially far-reaching powers. The responsibilities on the Minister and the chief executive of the Canterbury Earthquake Recovery Authority (CERA) are therefore considerable.
Recovery Strategy and Plans
The Act tasks the Minister and chief executive with developing an overarching Recovery Strategy, and directing the development of Recovery Plans for certain matters or activities (with the exception of the CBD Recovery Plan, which the Christchurch City Council is required to lead). Recovery Plans will provide the 'flesh' to the Strategy's 'bones'.
Together, the Strategy and Plans will provide the blueprint for Christchurch's recovery. Activities and decision-making by the Councils (being Christchurch City Council, Waimakariri District Council and Selwyn District Council) and other relevant entities need to be consistent with the Strategy and any relevant Plans (although the Councils' rating decisions are exempt). For example, the Councils' RMA documents and RMA decisions will need to be consistent with the Strategy and Plans.
The Strategy and Plans will also prevail over a raft of other documents, including annual plans, long-term plans, land transport strategies and programmes, public transport plans, and conservation plans. And if that is not sufficient to ensure their pre-eminence, the Minister can suspend, amend or revoke any of these types of documents. Significantly, the Minister can suspend or cancel any resource consent, certificate of compliance or existing use rights, and no compensation is payable.
Dealing with dangerous buildings
The chief executive of CERA has extensive powers when dealing with earthquake-affected buildings. For example, he can give notice to a building owner to do any necessary building work (including demolition). If the owner chooses not to do the work, CERA can step in and carry out the work itself and then charge the owner for it.
The chief executive has also been given an important power to deal with buildings that received green cards during the states of emergency. Where he has concerns that a building may have experienced structural change from the earthquakes, the chief executive can require the owner to carry out a full structural survey before the building can be re-occupied.
One of the more significant powers given to the chief executive is the power to carry out any building work on public or private land (eg building infrastructure across private land). He is not required to get the owner's consent for the work, although he must provide written notice where practicable. Owners have no entitlement to compensation.
Other powers in the Act allow CERA's chief executive to:
- direct any property owner to act for the benefit of his or her neighbour,
- authorise any temporary buildings on any public reserve, private land or road,
- restrict access to any building or specified area,
- close and stop roads,
- subdivide land,
- direct the approval of a cadastral survey dataset for greater Christchurch, and
- compulsorily acquire land, on behalf of the Crown.
Compensation will be paid to affected landowners when land is compulsorily acquired. However, there will be no right of objection where land is taken and the usual offer-back provisions in the Public Works Act do not apply to non-residential land in the CBD.
Directing Councils and Council organisations
The power with the greatest potential for affecting the Councils is the Minister's power to direct any Council or Council organisation to take or stop taking any action, or to make or not make a decision. If the Council or Council organisation fails to comply with a written direction within the time specified by the Minister, the Minister can call-in the matter, effectively stepping into the Council's or Council organisation's shoes to perform its role. Such a power will presumably be used only as a last resort, although its very existence will no doubt influence the parties' relationships.
In a similar vein, the chief executive can require the Councils to get his consent for certain types of contracts. Presumably the chief executive will include demolition and rebuilding contracts amongst these types of contracts. Failure to get the chief executive's consent to enter into such a contract will mean that it is unenforceable.
In the event that someone fails to comply with a lawful direction given under the Act, the chief executive can issue a compliance order. The order can require compliance on whatever terms and conditions the chief executive thinks are approriate. This could include requiring the person to provide security or the entry into a bond for performance.
Few checks and balances on use of powers
There will be few legal checks and balances on the chief executive and Minister's exercise of powers.
The Act provides that affected people can appeal decisions made by the Minister and chief executive in only very limited circumstances. Some of the decisions that can be appealed to the High Court are:
- a decision by the Minister that an action or decision is inconsistent with a Recovery Plan,
- a decision by the Minister to call-in a matter, and
- a decision by the chief executive to issue a compliance order.
Judicial review may be an option for people who are unhappy with a decision. However, it has its limitations:
- there must be something unlawful or unfair with the way the decision has been made for a challenge to succeed,
- judicial review will be of no use if the damage has already been done (a successful judicial review can overturn a decision, but cannot of itself lead to compensation), and
- the person wanting to challenge the decision usually needs reasonable financial resources to fund the action.
The task of rebuilding Christchurch is enormous. With this in mind, the Minister and chief executive have been well armed with legislative powers. Even though the scope for appeal is limited, the exercise of these powers will no doubt be scrutinised and, at times, criticised in the court of public opinion. The Minister and chief executive will have to live up to Spiderman's ethos and show great responsibility in the exercise of their powers.