Someone asked me the other day about 'the right to a view' (see, I do come back and answer questions). The man who asked me is a property owner denied use of his own land because his various neighbours want their existing waterfront views protected, and his planned house would remove their view. These neighbours have political pull, you see. Their 'right' to that view takes away his right to use his own property.
A related issue is the 'arboreal killing' around Lake Manapouri, reported in this week's Listener (but sadly off-line). Seemingly, beech trees are being poisoned because some people would like their sites to get a better view of the lake. Says Jack Murrell, whose family have been there for 116 years and owner of a block of sites, "We had a valuer in...We've got a block worth $60,000 now, but if we could see through the trees, we'd have the best view in Fiordland. It would be worth$1.25m."
His 'right' to a view would add enormous value to the sites and the people who buy them, but that right can't be secured.
Does that mean property rights are a nonsense, and need at best to 'balanced'? No, because under the present regime those with political pull are the ones doing the balancing.
Does it mean that removing the present legislative regime would cause widespread damage to the environment as anarchy and chainsaws run riot? No. Enter, common law.
The protection of common law was once the guardian of both property owners and the environment, and could be once again if the present legislative regime was removed. Voluntary agreements and the use of easements and covenants is the key.
If, for example, I want to protect my existing view over your land, then I can negotiate with you to buy an easement over it for that purpose, and that easement would be registered on the title, and legally protected. It might be that my neighbour doesn't want money; it might be that he values very highly the stand of trees on my property. How highly? Highly enough perhaps to ask for a restrictive covenant over those trees to be registered on my title, in his favour. We shake hands. We have agreement. We each have want we want, we each have security over what we want, trees and view are both protected, and not a bureaucrat or resource consent was needed to do it--just common sense, the tools of common law, and respect for each other's property rights.
Sounds pretty good, doesn't it.