Chisholm J has provided the Canterbury Earthquake Recovery Act 2011 ("CER Act") with some long-awaited certainty. Previously thought to confer almost unlimited powers to the Minister for the Canterbury Earthquake Recovery ("Minister"), the Court has clearly defined the extent of the powers granted to the Minister under the Act.
In October 2011, the Minister used his powers under the CER Act to revoke proposed Change 1 to the Canterbury Regional Policy Statement ("PC1"), which was the subject of some 50 appeals before the Environment Court, and at the same time inserted two new chapters into the Regional Policy Statement ("RPS"). The changes proposed an urban limit for the greater Christchurch Region and established when development was to occur over the next 30 years.
Various parties brought judicial review proceedings against the Minister in respect of those decisions, which were heard earlier this year.
In his decision, Chisholm J found in favour of the applicants on four of the five grounds of judicial review alleged and set aside the Minister's decisions as being beyond the scope of the CER Act. The Court found that any actions of the Minster must be for a proper purpose, must be necessary and must not restrict the right to a hearing. We consider each of these findings below.
Decisions must be made for proper purpose
It was not disputed that the Minister must act within the powers granted by the CER Act.
The judgment states that the Act is unmistakably directed at earthquake recovery. Therefore the Minister could only make a decision that related squarely and solely to earthquake recovery. Chisholm J stated that the Minister could make a decision that substantially related to earthquake recovery so long as the subsidiary purposes of that decision did not contradict the purpose of CER Act. He found that neither of the Minister's decisions related - either entirely or partly - to earthquake recovery. Instead the decisions were found to be long term planning decisions that related to policy that had been initiated prior to the Canterbury earthquakes. The amendments to the RPS were made for an improper purpose, and were therefore illegal.
Decisions must be necessary
In order to stay within the delegated powers of the CER Act, the Minister's exercise of power must be "necessary", and the Minister's view that it is so "necessary" must be able to be objectively seen as reasonable.
Whilst Chisholm J considered that the first requirement was satisfied in relation to the RPS amendments and the revocation of PC1, neither decision was reasonable. Accordingly, the decisions relating to the RPS and PC1 were ruled to be illegal on this ground also.
Decisions must not restrict access to the courts
By removing PC1 from consideration in the Environment Court, the Minister had effectively restricted the original parties' right to a hearing. The right to a hearing is a fundamental private right. Accordingly, in order for the CER Act to enable such an action by the Minister, it must use clear language. No such clear language exists in the CER Act. Because his actions were not authorised by the CER Act, the Minister acted illegally by removing PC1 from Environment Court consideration.
Environment Canterbury, together with the NZ Transport Agency and the Christchurch City, Waimakariri and Selwyn District Councils, have appealed the decision, as has the Minister. The Court of Appeal is likely to hear the appeals in October or November.