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Judgment: Fowler Developments, Quake Outcasts v CERA

[Full judgment: Fowler_Developments_Ltd_v_CE_CERA_and_Quake_Outcasts_v_Min_for_CER_and_O.pdf]

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY
CIV-2013-409-000274

[2013] NZHC 2173

BETWEEN FOWLER DEVELOPMENTS LIMITED

Applicant
AND THE CHIEF EXECUTIVE OF THE CANTERBURY EARTHQUAKE RECOVERY AUTHORITY

Respondent
AND THE HUMAN RIGHTS COMMISSION

Intervener

CIV-2013-409-000843

BETWEEN QUAKE OUTCASTS

Applicant
AND THE MINISTER FOR CANTERBURY EARTHQUAKE RECOVERY

First Respondent
AND THE CHIEF EXECUTIVE OF THE CANTERBURY EARTHQUAKE RECOVERY AUTHORITY

Second Respondent
AND THE HUMAN RIGHTS COMMISSION

Intervener

Hearing: 22,23, 24 July 2013
Counsel: S P Rennie and J E Bayley for Fowler Developments

FMR Cooke QC, MSR Palmer and LJC McLoughlin-Ware for Quake Outcasts

D J Goddard QC, P A McCarthy and A J Wicks for Respondents
Judgment: 26 August 2013

JUDGMENT OF PANCKHURST J

[…]

[1] This case concerns two applications for judicial review heard together by consent. The genesis of each proceeding was the making of offers by the chief executive of the Canterbury Earthquake Recovery Authority (CERA) to purchase either vacant land, or uninsured residential properties, for 50 percent of the 2007 rating value of the land. The land or properties are situated in the Christchurch residential red zone. The zone defines land areas considered unlikely to be suitable for continued residential occupation for a prolonged period.

[2] The applicants, Fowler Developments Limited and the Quake Outcasts (an unincorporated group of land and property owners who are identified in a schedule containing individual names and addresses) are aggrieved at the level of the buy-out offer. In particular, they consider that their treatment is unequal by comparison to that accorded to insured residential property owners who received a 100 percent buy-out offer.

[3] The applications for judicial review assert various grounds of challenge. The principal ground is that the 50 percent offers are unlawful because they were not made in accordance with the requirements of the Canterbury Earthquake Recovery Act 2011 (the Act). It is also alleged that the 50 percent offers are oppressive, disproportionate, and in breach of the applicants’ human rights.

[4] The principal relief sought is that the decisions which gave rise to the 50 percent offer be set aside and that the decision-maker(s) be required to reconsider the individual situations of the applicants in terms of the purposes and principles of the Act.

[5] The Human Rights Commission (HRC) was joined as an intervener, since it considers that the case raises significant human rights concerns. The Commission filed detailed written submissions, but did not appear at the hearing.

[...]

Conclusion

[102] Accordingly I make:

(a) A declaration that the decision to offer to purchase the properties of the applicants on the terms announced by the Minister on 13 September 2012 was not made according to law and is set aside, as are the offers subsequently made to the applicants by the chief executive.

(b) A direction that the Minister and the chief executive reconsider and reach a new decision to purchase the applicants’ properties, such decision to be made in accordance with law:

(i) as required by the purposes and principles of the Canterbury Earthquake Recovery Act 2011, and

(ii) with regard paid to the reasons contained in this judgment.

Leave is reserved to the parties to revert to the Court in relation to the terms of relief in [81] and [102] if clarification is required.


[103] Costs are reserved. The applicants may file a memorandum within 15 working days, to which the respondents may reply within 10 working days.


[Full judgment: Fowler_Developments_Ltd_v_CE_CERA_and_Quake_Outcasts_v_Min_for_CER_and_O.pdf]

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