Monday, March 03, 2014

It’s time to put a stake through the heart of the RMA–and time a politician finally said that [updated]

“When the productive have to ask permission
from the unproductive in order to produce, then
you may know that your culture is doomed.”

- Ayn Rand

It’s taken twenty years for a mainstream politician to finally say this:

ACT wants to repeal the Resource Management Act, new leader Jamie Whyte told the party's annual conference in Auckland.
    Mr Whyte said if  part of the next government, ACT would try to scrap the 826-page law, which he says infringes on New Zealander's ability to use their property…
    "People have tried to fix it, fix it, fix it - but it is inherently an ill-conceived piece of legislation."
    The only justification for law of its kind would be to address a serious market failure and if there was no remedy through the common law, he said.
    Details of what regime would replace the RMA were sketchy.
    There needed to be environmental protections in the law, but they shouldn't violate property rights, Mr Whyte  said…

It’s not just details of the regime to replace the RMA that are sketchy – so too are details of Jamie Whyte’s speech delivered Saturday. (Old ACT would have had the speech up on their party website even before it was delivered; not so New ACT, who have still not got speeches posted at the time of writing [and have at the time of this update posted the wrong speeches.]

But on radio this morning, Whyte was outlining his view that the replacement for the twenty years of failed RMA law – law that has delivered property rights abuse, greater local government control of land and sky-rocketing land and housing prices – should be the several hundred years of common law laws of nuisance.

Glory be! A politician finally acknowledging that!

So if you’ll excuse me quote myself from the Free Radical of 2004:

The real problem with the Act is not that it is unclear, restrictive or has ‘gone beyond its original intent’ – although all of this is true. The real problem is that its intent is anti-property rights, and anti-human-life; at the heart of the Act is the basic idea that trees, rocks and mud puddles all have rights - but human beings don’t. In all its 456 pages the phrase ‘property rights’ does not appear at all; not even once! Instead of the idea of property rights that made common law so successful for over seven hundred years, at the heart of this Act are the ecobabble of ‘sustainable management’, ‘kaitiakitanga’ and the dangerous lunacy of so-called ‘intrinsic values.’
    The Act also, of course, contains the obligatory Tiriti-babble. You are counselled by the Act that when doing anything more aggressive than mowing your lawn you ‘shall take into account the principles of the Te Tiriti o Waitangi’ – and to this day the country has yet to find a court willing or able to explain precisely how that might be done…

To continue quoting myself, this time from the Herald:

The fact is the RMA does not protect property rights [as a multitude of cases demonstrate]. Neither does it protect the environment, as cases like the polluted Rotorua lakes and Tarawera River show.
    It gives money and power to planners and consultants while destroying both property rights and the environment.
    Without protecting property rights, you cannot protect your environment. That realisation has resonated through the common law. Sadly, with the introduction of the Public Works Act and the various town planning regimes, [culminating in the RMA], it has been largely ignored for nearly half a century.
    Where we once observed the common law limit for nuisance that "one may not use one's property in such manner as to injure that of another", the RMA declares we may not use our property except with the express permission of the state.
    You may do only what a council district plan [or new Auckland Unitary Plan] considers you should be allowed to do. With that, a basic legal and constitutional protection is overturned: that people could do anything they liked unless it was illegal, whereas the government could do nothing at all unless they were empowered by law to do so.
    That basic concept of jurisprudence has been turned on its head; local governments may now do anything they like (expect, of course, build infrastructure), whereas in respect of the RMA we ourselves can only do on our own property what a plan says we can do.

Or, again, from the Free Radical:

Property rights [are] nowhere to be found in this Act despite earlier assertions to the contrary by [supporters] like
Owen McShane and [ACT’s Ken Shirley].
PropertyRights    Sober and sane environmentalists like Canadian Elizabeth Brubaker have long known that the concept of property rights underpins any truly sustainable environmental protection and that it was the recognition of property rights that quickly put an end to the ‘tragedy of the commons’ – indeed,
she wrote a book expressing exactly that view.
           
[Her book] draws on cases from England, Canada and the United
    States, showing how the common law of property has for centuries been
    a force for environmental protection, while contemporary statutes 
    have allowed polluters to foul private lands and public resources alike. It
    argues that individuals and communities should be entrusted with the task
    of preserving the environment and that, with stronger property rights
    they would regain the power to prevent much harmful activity.
   
The common law of property has over seven hundred years of sophistication in dealing with environmental problems
[i] – something for which the RMA has barely a dozen years, and an abundance of signal failures.
    It’s time we abandoned the RMA, and began urgently drawing up transitional measures to reinvigorate the common law protections that were so precipitately buried by the various planning statutes of the last half-century.

What would these transitional measures looks like? Well, to quote myself again, from my blog (sheesh! why hasn’t someone else been saying this all these bloody years!):

For all the high-profile RMA horror stories that hit the news, as former Federated Farmers president Charlie Pederson observed, "it's little, not large, that suffers most RMA pain." So let’s start there. Let’s start by freeing up the little guy so he doesn’t have to stand around cap in hand waiting for a pimply-faced graduate of some planning school to decide if your carport extension is “a sustainable use of the earth’s resources”—which is exactly what happens now.  And let’s start in the place that will have the most impact on making new New Zealand houses affordable: by removing the delays and uncertainties involved in smaller more affordable projects.
   
Here’s how it could be done.
    First, enact a codification of
basic common law principles such as the Coming to the Nuisance Doctrine and rights to light and air and the like.
    Second, register on all land titles (as voluntary restrictive covenants) the basic “no bullshit” provisions of District Plans (stuff like height-to-boundary rules, density requirements and the like).
    Next, and this will take a little more time, insist that councils set up a ‘Small Consents Tribunals’ for projects of a value less than $300,000
[ii]  to consider issues presently covered by the RMA and by their District Plans. These Consents Tribunal should function in a similarly informal fashion as Small Claims Tribunals do now, with the power to make instant decisions.
    This would mean that instead of talking to a planner about your carport, about which he couldn’t give a rat’s fat backside, you decide for yourself.  And, if your carport would violate one of the covenants, you then talk about it to your neighbour—
with whom you and he would have plenty of negotiating room.  And once you (and your neighbour if necessary) have made your mind up, The Consents Tribunals would consider your small project on the basis of the codified common law principles, the voluntary restrictive covenants on your title, and the agreements (if necessary) you’ve negotiated with your neighbour(s). Simple really.
    You should be able to reach agreement in an afternoon, and have your title amended the next day.

But wait, there’s more…

Setting up such tribunals should be sensible, relatively simple, and politically achievable. And at a stroke you’ve made lower-cost housing easier and more attractive to build.
    And at some point it should become clear to most land owners that these restrictive covenants on their titles are not vague prescriptions coercively mandated by statute, but instead are ‘voluntary’ in the sense that (as with basic common law principles) they are covenants in favour of neighbouring landowners–i.e.,
covenants that protect your neighbours’ legitimate rights.
   
Furthermore, these are things over which you don’t need to go cap in hand to a planner to change. Instead you may negotiate with your neighbours to add to them, amend them, or remove all or any of them--making any reciprocal deals you may imagine. (And you’re negotiating with people whose business it really is.)
    Here’s how these examples could work out in practice.  If for example you like my tree, and I like my view over a particular corner of your section, then we can negotiate at our leisure and have these interests registered on our titles as a covenant and an easement respectively. That’s how the whole process starts. With simple voluntary agreements like this.
    Over time we should slowly see emerging a network of reciprocal covenants built up between neighbouring properties reflecting the voluntary agreements over land that neighbours have freely negotiated—a network reflecting not a planners’ commands, but a network of legitimate rights, interests and values.  And in time, as more of these agreements are negotiated between neighbours, the former District Plan provisions(stuff like height-to-boundary rules, density requirements and the like) would become increasingly unimportant, and it will be these voluntary agreements on which the Small Consents Tribunals will be adjudicating…
    At a stroke too it should free up the Environment Court and council offices for more important projects than these small ones, and depoliticise many neighbourhood disputes. Everyone kicks a goal.
    Who could possibly object?

Anyone? Anyone at all, apart from this fellow?

Whose_Bloody_Land_is_it_Anyway


[i] For examples, see Common Sense & Common law for the Environment by Bruce Yandle; The Common Law & the Environment ed. Roger E. Meiners & Andrew P Morriss; and The Common Law: How it Protects the Environment ed. Roger E. Meiners & Bruce Yandle. All available from www.perc.org – with the title essay for the last being a free download.

[ii] Since writing that piece the cost of building has gone through the roof, due in large part to the insidious influence of the RMA. The number might now need to be closer to $500,000.

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16 Comments:

Anonymous Angry Tory said...

Oh where to start:

There needed to be environmental protections in the law,

No. Just no. There needs to be a very simple law: It's my property, I can do what I like with it. Beginning. End.


urgenttly drawing up transitional measures

No. No. NO. How about a law that says: It's my property, I can do what I like with it. What other "transitional measures" are required? None.

First, enact a codification of basic common law principles such as the Coming to the Nuisance Doctrine and rights to light and air and the like.

No. NO. NO. . It's my property, I can do what I like with it.

Next, and this will take a little more time, insist that councils set up a ‘Small Consents Tribunals’ for

Oh wait a minute. more regulation, more special courts, I must be reading a labour party blog. Or the greens. Yeah. greens. What needs to be done with councils is simple: replace them with city corporations that operate on a purely fee-for-service basis.

Second, register on all land titles (as voluntary restrictive covenants) the basic “no bullshit” provisions of District Plans (stuff like height-to-boundary rules, density requirements and the like).

Over time we should slowly see emerging a network of reciprocal covenants


The only plan is: It's my property, I can do what I like with it. That's that definition of private property!

3/03/2014 12:00:00 pm  
Anonymous Anonymous said...

It is my understanding that the problem is the title we "enjoy". We generally have fee simple which is a perpetual lease so technically its not your land. The other title is alloidial which, I gather, really does see ownership rights apply. The latter was used in early NZ but was replaced. I suspect a few still exist.

3/03/2014 12:01:00 pm  
Blogger Sam P said...

Yarhlay-effin-loooyah! PC's been heard!


3/03/2014 02:08:00 pm  
Blogger Peter Cresswell said...

@Angry Tory said, "Oh where to start..."

Well, you could start by trying to understand the concepts of freedom and property rights. Let's start with this question: If it's my property, and I can do what I like with it, then what follows from that in respect of my neighbours' similar and equal rights?

If I might quote myself again. from my post 'Do you have an inviolable right to do whatever you want on your property?':

Let me tell you about something called 'freedom.' Freedom in this context means to be free from physical coercion; in other words, having political freedom means that you're free to do whatever you're able and whatever you damn well please as long as you don't initiate force against anyone else. My freedom ends, in other words, where your nose begins. In this respect you might call your neighbour's nose your 'side-constraint,' just as his nose is yours -- which meams some of us do get more freedom than others.

Now, under common law, which is what I would propose to repair to once the RMA is abolished, you have the secure right to peaceful enjoyment of your property. And as both you and your neighbour would enjoy that same right, his right of peaceful enjoyment is your side-constraint. Your freedom ends where your neighbour's peaceful enjoyment begins. The 'side contraints' for land use under common law require you to take account of, among other things, your neighbour's rights to light, to air, to support, and to road access and the like. These are significant side constraints, but they are both objective and reciprocal -- your neighbour is equally constrained to recognise your similar rights.

So how are neighbourly issues resolved under common law? How for instance might I ensure my view or a neighbour's tree was retained? Voluntarily, as I explained here..


Now, naturally, I don't expect you, AngryTory, to understand a word of that. I don't expect you to understand a word of that, because you are a troll.

3/03/2014 02:38:00 pm  
Blogger Peter Cresswell said...

@Anonymous: That's a legal fiction, simply an anomaly of the way property rights came under the wing of British law. Even if the concept were an issue, which it's not, it's easy enough by codification of relevant common law principles not to make it so.

3/03/2014 02:41:00 pm  
Blogger Mark said...

"It's my property, I can do what I like with it."

That's a reasonable beginning Angry Tory, but it's certainly not the end, because reality throws up complications you're ignoring. An example would be someone who sets up a gelatine factory next door to your residential house. In that example how can you do what you like with your property, when your whole outdoors and probably indoors is consumed by the smell of rotting animal carcasses? Clearly we need something to address instances like this, but as Peter explains common law does a fine job and there's no need for the complication and unfairness of the RMA.

3/03/2014 03:56:00 pm  
Anonymous Ben said...

The problem with common law is if a large corporation moves in next door and starts making gelatine, you will bankrupt yourself trying to stop it. The RMA is supposed to rectify this, but goes too far.

3/03/2014 07:45:00 pm  
Anonymous Angry Tory said...

someone who sets up a gelatine factory next door to your residential house

First - no-one is going to set up a gelatine (or gelignite) factory next to my residence. Land values preclude it (unless socialist "housing affordability" policies greatly reduce those values)

Second - say I'm the land owner. If I've owned the land for a while, yeah of course I can start a factory there or anything else I want. It's my property, I can do what I like with it.

Third - the factory moves in - so that implies the owner sold and the factory-owners bought the land. Fine.
If you really wanted to stop the factory, you could have bought the land yourself when the owner sold. Until then,
It's their property, they can do what they like with it.

Finally - you can always buy the land yourself - and which point, It's my property, you can do what you like with it.

3/04/2014 11:27:00 am  
Anonymous Anonymous said...

PC

You write about, "...rights to light, to air, to support, and to road access"

These are rights? Are you sure?

Amit

3/04/2014 06:00:00 pm  
Blogger Mark said...

@ Amit
Does a right to property mean anything if you build a house, but then someone can take away your ability to access the house or enjoy it in any meaningful way without recourse?

@Ben
Under common law there would be clear precedents that as you were there first, the gelatine factory is infringing on your property rights. They would be foolish to try, but if they did I doubt it would be a hard case to win. If they were there first however it would be another matter, as you would be 'coming to the nuisance'.

3/05/2014 04:23:00 am  
Anonymous Anonymous said...

Mark

You possess a right to mortgage another's property to your needs?

Amit

3/05/2014 06:21:00 am  
Anonymous Chaz said...

"It's my property, you can do what you like with it."

Who says it's yours?

3/05/2014 07:26:00 am  
Anonymous Angry Tory said...

Who says it's yours?

First, me.
Second, my right to bear arms, and to defend my property as I see fit.
Third, the private property registration companies I've paid to recognise my claim on the property.
Fourth, the private security companies I've contracted with to also protect my property.
Fifth, the private insurance companies I've contracted with to insure my property.

No mention of the state, of local or central government, and absolutely no reservation of "initiation of force" to governments. It's mine because I posses it - and so I can do what I like with it

3/05/2014 12:26:00 pm  
Anonymous Ben said...

Mark

You are assuming a level playing field with regard to legal representation. Under common law if an asshole with deep pockets moves in next door to you it will be an uphill battle to win any legal dispute, regardless of how clear cut it looks on paper.

3/05/2014 04:31:00 pm  
Anonymous Chaz said...

"First, me.
Second, my right to bear arms, and to defend my property as I see fit.
Third, the private property registration companies I've paid to recognise my claim on the property.
Fourth, the private security companies I've contracted with to also protect my property.
Fifth, the private insurance companies I've contracted with to insure my property."

So whoever has the biggest arsenal gets to say it's theirs. Civilised. Thanks for the clarification Angry Tory. You sound like a cunt.

3/05/2014 07:28:00 pm  
Anonymous Anonymous said...

"How for instance might I ensure my view or a neighbour's tree was retained? Voluntarily, as I explained here.."

That is easy.

You buy the property that would otherwise block 'your' view.

You should in the future spend more time defining how a view is 'yours' before coming up ridiculous straw man arguments.

4/21/2014 11:26:00 am  

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