By Rachael Dunningham, Partner, Buddle Findlay
What is CERA?
CERA is a body established by Parliament under the Canterbury Earthquake Recovery Act 2011 to lead and coordinate the recovery effort following the September and February earthquakes. CERA will exist for five years at which time it is anticipated that the recovery will be sufficiently advanced to end its role.
It has a chief executive (Roger Sutton) and a responsible Minister, (Gerry Brownlee). They each have a number of functions and powers given to them by the Act.
What is CERA meant to do?
CERA was set up for three main purposes:
To exercise powers which would enable greater Christchurch be rebuilt and otherwise recover as quickly and fully as possible;
To involve communities and the public in the decisions made about the rebuilding of their area;
To restore the wellbeing of greater Christchurch communities.
What powers does it have to do this?
Under the Act CERA can exercise very wide ranging powers. It can:
Require Councils to act as directed and to provide information on request;
Amend or revoke RMA documents (like resource consents) and city plans;
Close or otherwise restrict access to roads and other areas;
Compulsorily acquire property;
Require the repair and demolition of buildings;
Require compliance of any person with a direction made under the Act.
What is the Recovery Strategy?
The Act requires CERA to develop a Recovery Strategy and accompanying Recovery Plans.
The Recovery Strategy is to be a long term wide ranging strategy for the recovery of greater Christchurch. It will set out the areas that must be addressed through Recovery Plans.
The Recovery Plans will be more specific, and limited to the plan for recovery of particular areas or community issues.
CERA is responsible for developing the Recovery Strategy with wide consultation.
Local authorities and others will be responsible for Recovery Plans. For example the Act requires the Christchurch City Council to take the lead on the Recovery Plan for the Christchurch CBD.
The Strategy will override any existing RMA documents, such as district plans, where they are incompatible with it.
How can the community have a say in the Recovery Strategy and Plans?
The Recovery Strategy and the Recovery Plans must be publicly notified so the public can submit on them. Both the Recovery Strategy and the Recovery Plan for the CBD must have one or more public hearings at which members of the public may appear and be heard.
What happens if CERA demolishes a building?
If CERA demolishes a dangerous building no compensation is payable to the owner. In addition, the cost of demolishing dangerous buildings can be recovered from the owner of the building.
Compensation is payable if a non-dangerous building is demolished to allow the demolition of other buildings.
There is no ability to appeal decisions made by CERA in respect of demolition, although there is a right to appeal a compensation award.
When can CERA compulsorily acquire property?
CERA can compulsorily acquire property where that is thought necessary to achieve the purpose of recovery.
If land is to be acquired, there must be public notice and notice to all affected persons.
Compensation will be paid to the affected landowner, but it will only be for the value of the building and land at the time it was acquired. It will not always be clear whether landowners will be insured for the difference between the compensation payable and the pre-earthquake value of their land and buildings.
There will be no right of objection to the taking and no right to have it offered back if it is no longer needed.
There is a right to lodge an appeal against a determination of compensation.
What does the Act do to check CERA's use of its powers?
CERA has unprecedented powers, but the Act also contains some ways of influencing and overseeing how those powers are used.
The Act allows existing laws to be amended by Orders in Council made by the Governor General. Where an Order in Council is proposed, it must be reviewed by the Canterbury Earthquake Recovery Review Panel (which includes a senior Judge). The panel's recommendations must be tabled in Parliament and be "taken into account" when the Minister recommends to the Governor General that an Order in Council is made.
The Act also establishes two forums to advise the Minister. The intention of the forums is to ensure the recovery is as representative of different interests as possible. The community forum has been established and involves 38 community leaders from greater Christchurch. The cross party forum includes all MPs from greater Christchurch. The Act severely limits the range of decisions made by CERA which can be appealed. Judicial review (which challenges the lawfulness of decisions) is still possible, although that will be of little utility where the decision (e.g. demolition) has already been implemented.
Where can I find out more about CERA?
There is a useful website (www.cera.govt.nz) outlining what CERA is and what it is doing.
Who is Brownlee’s boss?
The CERA Act does not expressly provide for Gerry Brownlee to report to any particular body or person (and that is not unusual). Where he is exercising a significant statutory function it would be normal for him to brief Cabinet on that issue and discuss it with cabinet ministers before making the decision. Obviously questions can also be asked of him in the House which require him to explain and justify decisions he has made (or not made).
If he lost his seat in an election (and wasn't returned via a list seat), there would be a new appointee to that post. The legislation does not give those powers to an identified individual, but to the role of the Minister for the Earthquake Recovery. Whoever was appointed to that Ministerial role (no matter which party or parties forms the government after the election) would take over Mr Brownlee's responsibilities.
He currently has no other Ministerial responsibilities. He did have responsibilities as the Minister for Energy and Resources and for Economic Development and was Associate Minister for the Rugby World Cup but he relinquished those when he took on this Ministerial Role.
Until there is an election he can only be "fired" by the Governor–General acting on the advice of the Prime Minister (for example if there was a loss of confidence by the prime minister and his advisers in Mr Brownlee's ability to carry out this role). If he lost his seat in an election, that may also have the same result. I say "may" because of course he will be high on the party list and it would be possible for him to still be returned to Parliament and continue as Minister even though his seat is lost. However it would be extremely unlikely for this role to be given to a list MP.
