13 March 2015

Christchurch Earthquake: Quake Outcasts v. Minister for Canterbury Earthquake Recovery

Uninsured residential property owners left stranded in Christchurch’s earthquake red zone have been thrown a lifeline of sorts following a Supreme Court ruling that the decision to offer fifty per cent of land value only for their properties must be reconsidered.  An increased offer is not promised but the court implied there is a strong moral imperative to make a better offer.
Extensive damage to Christchurch’s eastern suburbs followed severe earthquakes and aftershocks in 2010 and 2011.  Land subsidence over a large area and irrepairable damage to infrastructure led government to “red zone” entire suburbs.  Owners of insured residential properties were offered generous terms by government to vacate their properties: they could either be paid the 2007 rating value for their home and land (with their insurance rights assigned to the crown) or be paid the 2007 rating value for their land only and recover privately from their insurer for the value of their home.  This offer did not apply to uninsured homeowners.  Government later offered them fifty per cent of land value only.  A group of 46 uninsured homeowners banded together as the “Quake Outcasts” challenging what they considered discriminatory behaviour by government.
The Supreme Court was asked to rule whether there was a rational basis for any distinction between insured and uninsured homeowners in making offers to buy out red-zoned properties.  The court ruled government had not followed the correct procedure when imposing a red zone and making buy-out offers.  These decisions were made unilaterally by government when it should have followed procedures set out in the Canterbury Earthquake Recovery Act.  The Act provides a comprehensive regime to deal with recovery from the earthquakes.  Following this Supreme Court ruling, the Canterbury Earthquake Recovery Authority set up under the Act is required to reconsider the offer made to uninsured homeowners.  This reconsideration must take into account overall plans for rebuilding Christchurch.
The Supreme Court noted that some members of the Quake Outcasts group remain living within the red zone.  Land around them is being depopulated.  Postal services are being withdrawn.  Temporary repairs only are being carried out to water and sewer lines with no indication that they will be maintained permanently. This depopulation has resulted from government policy to buy out surrounding land.
There was criticism of the government rationale for discriminating against uninsured homeowners.  Discrimination was justified on grounds of moral hazard: these homeowners chose not to insure and should not now be on the same footing as those who did bear the cost of insurance.  This moral hazard justification cloaked government economic imperatives; buying out insured homeowners in full gave government rights of subrogation – it could recover from insurers the money insurers would otherwise have to pay to the insured homeowner.  Figures before the court indicated government was committed to paying $1.7 billion buying out insured red zone properties, but the net cost would be between $485 and $635 million after recoveries from insurers.
The court said not all members of the Quake Outcasts group made a conscious decision not to insure: one was caught in a four day gap while in the process of rearranging cover; another thought her bank was organising cover; while others had overlooked paying a premium invoice while distracted by business or family pressures.
Quake Outcasts v. Minister for Canterbury Earthquake Recovery – Supreme Court (13.3.15)
15.019