03 December 2013

Insurance: CERA v. Fowler & Quake Outcasts



The 46 self-styled Quake Outcasts received little comfort from the Court of Appeal as owners of uninsured property in the Christchurch “red zone” following their challenge to offers of a government buyout of their land alone at fifty per cent below rating valuation.  The court did not rule that this offer breached their human rights or order that the offer be increased.  The Court of Appeal simply ruled that government should review the process of making “red zone” offers to uninsured owners and follow the proper statutory procedure.
Government response to unprecedented earthquake damage in Christchurch’s eastern suburbs following the 2010 and 2011 earthquakes created novel legal issues about the correct procedure to authorise payment of taxpayers’ money in respect of damage to local authority infrastructure and privately-owned property.
A June 2011 Cabinet meeting resolved to “red zone” those suburbs where rebuilding in the short to medium term was not practicable because of severe infrastructure damage.  The Court of Appeal ruled this decision could not be challenged: in general any government has a residual power to do unilaterally anything which is not otherwise prohibited by law.
It said that while a “red zone” designation has significant practical impact on affected landowners, this alone does not discriminate against their rights or liberties.
Evidence was given that Cabinet decided in June 2011 to offer insured residential property owners in the red zone a government buyout at full 2007 rating valuation.  Those taking up the offer were obliged to sign their insurance rights over to government.  It was estimated that this buyout would cost up to $1.7 billion, with a net cost of between $485 million and $635 million after insurance recoveries.  Any decision of compensation for uninsured property owners was deferred.
It was not until fifteen months later, in September 2012, that Cabinet reached a decision regarding uninsured properties, resolving they be offered fifty per cent of rateable land value only with the right to salvage what they wanted from the building.  Evidence was given of Cabinet’s reasons against a 100 per cent offer:  full compensation would be unfair on those red zone property owners who had been paying insurance premiums and created a moral hazard in that there would be a reduced incentive for people in future to insure privately if they considered there would be a government bailout following any natural disaster.
The Canterbury Earthquake Response and Recovery Act was passed in April 2011 providing a legal mechanism for pushing through the Christchurch rebuild.  CERA has wide powers to cut through existing red tape in implementing a recovery plan.  These shortcuts are valid, so long as the procedure in the Act is correctly followed.  In particular, the focus must be on implementing the recovery and rebuild.
The Court of Appeal ruled that CERA’s 100 per cent offer based on the June 2011 Cabinet decision was valid: it was described as being in furtherance of the recovery.  But CERA’s fifty per cent offer on land value alone to uninsured property owners was not: it was based on the September 2012 Cabinet decision which focussed instead on issues of equity and moral hazard as between those insured and those uninsured.
The Court ruled the fifty per cent offer to be unlawful; not for the amount of the offer but for the manner in which it was made.  There was evidence at an earlier court hearing that market values for land in the red zone would fall by far more than fifty per cent.
The Court of Appeal also ruled against Quake Outcasts’ claim of discrimination.   The Court said government had a rational basis for discriminating between insured and uninsured residential property owners.  With the 100 per cent offers, government has a right of recovery against their insurers.  There was no equivalent recovery when buying out uninsured property.
CERA v. Fowler & Quake Outcasts – Court of Appeal (3.12.13)
13.034