When Mr Brownlee made the announcements as to which land was deemed to be unlivable and uneconomic to repair...the purchase of the Red Zoners land was never compulsory...
Although if you look at the letter that was sent out...you would have thought it was...because there were only 2 options...and both of those meant you had to get off your land...so it was a "Veiled" compulsory buy out of your land...
you can view a copy of the offers here...so in theory you had the option to stay on your Red Zoned land...
However
Mr Brownlee said in an article to NZ Lawyers Magazine...Shortly before the
Canterbury Earthquake Recovery Act 2011 (Act) was passed, the Minister of Earthquake Recovery, Gerry Brownlee, said that the power of the Christchurch Earthquake Recovery Authority (CERA) to compulsorily acquire private property under the Act would be used sparingly.
have a read of the article from the NZ Lawyers Magazine
But he has cut all government funding for infrastructure to the Red Zones...if you did decide to stay..you maybe forced to leave due to the cut in services anyway....
So ask yourself...why wouldn't he just make the order to leave compulsory?
Previously any compulsory land purchases were covered by the Public Works Act, where as ;the Canterbury Earth Quake victims the purchases are under CERA legislation...
The differences are HUGE....and none are in favour of the land owners...those worst effected by these earthquakes
So as to make it easier to see the difference in legislation,
I have made bold the PWA legislation and Italic the CERA offers
CERA Legislation Versus Public Works Act
With CERAThe purchase price is based on the latest rating valuation of your property. For Christchurch City this is the 2007 rating valuation and
for Waimakariri the 2008 rating valuation. These were current prior to 4 September 2010.
Where as with PWA
Compensation is not limited to the value of the land acquired or taken. In addition to the value of the land taken, the Public Works Act entitles you to be fairly compensated for losses that may include:
- permanent depreciation in the value of any retained land (which the Act calls "injurious affection");
- damage to any land;
- disturbance resulting from the acquisition.
The value of land is based upon the amount the land would be expected to sell for if sold on the open market by a willing seller to a willing buyer on a specified date. There are some exceptions to this, which are set out in section 62(1)(b) of the Act. The test of value is the price that your land would fetch on the "open market". This is distinct from the personal value to you as the landowner, or value to an acquiring authority that wants to purchase your land. The intention of the legislation is that a person whose land is taken or acquired is placed in the position of receiving an amount that is neither more nor less than would have been obtained if the landowner had sold to a private person in an open market sale.
CERA....Will the Government make a contribution toward legal fees?
To help ensure you get the legal advice you need, if you accept the offer, the Crown will meet 50 percent of the costs of your legal advice, up to a maximum contribution of $750 for Option 1 and $500 for Option 2. This amount will be paid directly to your lawyer on settlement.
(b) Except as provided by the Act,
does not include compensation for:
(i) A loss by an insurer arising from a liability to indemnify;
(ii) Any part of a loss that is insured;
(iii) Any part of a loss that ought reasonably to have been insured;
(iv) A consequence of regulatory change arising from the operation of this Act causing loss;
(v) Cancellation of an existing resource consent that had already been exercised;
(vi) Cancellation of an existing use right;
(vii) Economic or consequential loss;
(viii) Loss of personal property exceeding $20,000 in value;
(ix) Business interruption;
(x) Any other loss that the Minister reasonably considers is unwarranted and unjustified.
PWA Additional compensation
Disturbance payments
In addition to being compensated for the value of land taken or acquired you may be entitled to reimbursement for "disturbance". This is payment for actual monetary loss or costs incurred of a temporary non-recurring nature. Compensation for disturbance is covered in section 66 of the Public Works Act. Any compensation under this section must be as a direct result of your land being taken or acquired by the Crown, the cost of which you could not have avoided by taking reasonable precautions. Disturbance payments are not a 'general amount' to cover possible unspecified contingencies such as 'inconvenience'.
In order to qualify for disturbance payments:
- Disturbance must be the direct result of you being required to give up possession of your land to the Crown;
- Costs must be reasonable and proven that they would not have occurred were it not for the Crown's purchase of your land, or your business.
Valuation, legal and other professional costs
If you obtain professional advice, you are entitled to reasonable costs (valuation, legal and other professional costs) incurred as a result of negotiating compensation for your land.
If you intend to seek professional advice, you should first discuss this with the accredited supplier who will outline the criteria for approving professional costs. This discussion will avoid any misunderstanding about what costs you are entitled to and who will pay.
If you engage a registered valuer you must instruct the valuer that the valuation is required for compensation purposes under the Public Works Act 1981. You should make the valuation report available to the accredited supplier, if requested, to facilitate discussions.
Any costs incurred for professional advice for the purposes of negotiating compensation for your land must be reasonable.
You are not able to claim the cost of your personal time spent in negotiations.
Removal costs
If your land is taken or acquired, you are entitled to the reasonable costs incurred in transporting your movable property to other land. This is subject to the other land being within the same general locality, or a greater distance if that is necessary to reach the nearest land that could have been reasonably acquired in substitution for your land.
Any claim is subject to the following:
- If you intend to claim for removal costs you should discuss this with the accredited supplier before engaging a removal contractor;
- You must be able to justify that the transportation costs are reasonable.
Allowances for special improvements
Where your land is taken or acquired, there is no obligation on an
acquiring authority to take over removable improvements or to pay for
these items. Removable improvements are not normally part of the land
acquired. However, if the improvements are not readily removable and are
of use to a disabled owner or a disabled member of an owner's family,
and are not reflected in the value of the land, this loss can be
recovered through compensation.
Loss on mortgage repayment
Where a loss occurs in having to transfer a mortgage as a direct
result of land being taken or acquired, you as the borrower are entitled
to compensation for the loss where you have to take a mortgage at a
higher rate which will be more expensive than the existing mortgage over
your land.
Business loss
If you have a business located on your land, you may claim compensation for business loss resulting from the relocation of the business. The loss may include loss of profits and goodwill. However, the loss of profits must relate to proven loss of "actual profits". Loss of "anticipated profits" is not provided for in the Public Works Act.
During the period of changeover from business premises that have been acquired for a public work, to alternative business premises, you may be forced to close down your business for the time being, resulting in your business not earning during that period. You may claim the net loss suffered, under the heading of "business loss". The main point to note is that it is the net loss of profit that is compensatable, not the loss of revenue.
If you intend to claim for "loss of profits" or goodwill you should ask your accountant to assist with preparation of your claim. It is important to support such claims with verifiable proof of loss by reference to the last three years' annual accounts of your business.
Solatium payment for homeowners
If the land to be acquired contains your home that you live in, and the Crown takes the initiative to purchase it and requires you to give vacant possession, you are entitled to be paid a "solatium" of $2000.
Payment of the solatium is conditional on the ownership of the land not having changed since it was made subject to a requirement or designated for a public work.
Public Works ACT...
legislation relating to compensation can be viewed here
CERA FAQ information can be viewed here
CERA Legislation details are here
I have taken just a sample to clearly show the variation in compensation offers...however
The government will have you believe that they have treated fairly those effected badly from New Zealanders largest and most devastating natural disasters.
Where as the facts tell you a very different story...Those in the Red Zones could be missing out on tens of thousands of dollars in compensation...is that fair????
To date...know one in the government (who must take a shared responsibility for the treatment of Cantabrians and this legislation) is interested in changing anything...
We have asked Kate Wilkinson to organize a meeting with John Key whilst he is here in Kaiapoi next week, for Rev Mike Coleman, Evan Smith and Shirley and I so we can discuss some of these issues....we shall see if even the Prime Minister will give us the Red Zoners the time of day...is that fair???
This government have treated the 6000 + families so badly as it relates to compensation... setting a precedent for the rest of New Zealand...god help anyone else in any other part of the country if they have a disaster..and the government use this style of legislation again.
I hope that you are able to use this information to highlight the issues.
Best regards
Brent & Shirley Cairns
65a Cass Street
Kaiapoi 7630
New Zealand
ph/fax 64 (03) 327-0066
mobile 027 2224767
