Saturday, 15 September 2007

What would 'Party X' do about the environment? - PART 3: Small Consents

Continuing this serialisation based on my 'Free Radical' article 'Environmental Judo' - seven environmental policies that a genuine opposition party could adopt if they were serious about rolling back the state without any new coercion

No serious environmental policy can avoid the elephant in the room that is the Resource Management Act (RMA). For all the high-profile RMA horror stories that hit the news, as Federated Farmers president Charlie Pederson says, "it's little, not large, that suffers most RMA pain."

Today, I present for your consideration a simple solution for removing RMA pain from the little guy, and a step towards making more affordable housing.

3. Small Consents Tribunals “When the productive have to ask permission from the unproductive in order to produce,” said Ayn Rand, “then you may know that your culture is doomed.”

That’s true.

Just ask anyone who has waited in line for a resource consent.

But although it’s practical to remove the RMA overnight, it’s not yet politically possible. Here’s one way to get that particular ball rolling.

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 to consider issues presently covered by the RMA.

This would mean that instead of sitting around the table with pimply-faced graduates of Bruce Hucker’s planning school discussing whether or not your new carport “promotes the sustainable management of natural and physical resources” – which is what happens now under the RMA – and instead of cluttering up the Environment Court with minor projects that only add to the already lengthy delays there, these Consents Tribunal should function in a similarly informal fashion as Small Claims Tribunals do now.

The Consents Tribunals would consider your small project on the basis of the codified common law principles and the voluntary restrictive covenants on your title. Simple really. You should be able to reach agreement in an afternoon. 

I think setting up such tribunals should be sensible, relatively simple, and politically achievable. 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–covenants that protect your neighbours’ legitimate rights, over which you may negotiate with them to add, subtract, amend or otherwise revise these covenants, making any reciprocal deals you may negotiate with people whose business it really is.

If for example you like my tree, and I like my view over that 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. Over time we should slowly see emerging a network built up of reciprocal covenants between neighbouring properties reflecting the voluntary agreements over land that neighbours have freely negotiated. In time, it is these voluntary agreements on which the Small Consents Tribunals will be adjudicating.

Now at a stroke these Small Consents Tribunals will make affordable housing more affordable, and encourage more interest in projects at this end of the market.

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.

As the success of these Small Consents Tribunals becomes more evident, as I'm confident they would be, and as their own sophistication in common law increases, then public pressure should build up to raise the financial value of projects accepted by the Tribunal first to $400k, then to $500k and beyond, and eventually there should be sufficient public pressure and political will built up to abolish the RMA altogether in favour of common law protections.

That’s the secret of good judo: using simple means to rid yourself of a large opponent.

[Tune in Monday for policy proposal number four: Iwi then Kiwi - a unique privatisation.]

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THE SERIES SO FAR: INTRO: 'What Would Party X Do?' PART 1: 'Eco Untaxes.' Part 2: 'A Nuisance and a BOR.' THE SERIES IS BASED ON THE PRINCIPLE DEVELOPED HERE: 'Transitions to Freedom: Shall We Kill Them in Their Beds?'


  1. Dear Mr. Cresswell:

    I am, in general, in complete agreement with the idea that privatization is the best idea for conservation. However, I would be grateful if you could give some answers to a question I've been thinking about since hearing a professor talk about something in my marine class...

    My professor said that one environmental problem with rivers and the lakes/sea they run to is "runoff" from a "catchment area", which may include a large area of land. For instance, if a farmer puts too much fertilizer on his land, it may "run off" and end up causing overenrichment of the river water, and of whatever it runs into. That is a problem with the Rotorua lakes today, and the Hauraki Gulf. That professor wasn't very loving of human activity in general...but I think it's a real problem. Some on the Left will no doubt use this to make the point that widespread government control is needed over the farmer. But my question is: Under a system in which the water bodies are privatized, how can someone who owns the lake come to terms with all the farmers who are causing pollution of his water? I'd be very grateful for anything you may have to say.

  2. ...a tumbleweed gently rolls by...

  3. Nancy

    If, in a Libertarian economy, I am the owner of prperty, then should another person's actions damage my property I seek from them:
    a) they cease and desist from the activity that damages my property
    b) they restore my property, repairing damage that they caused

    Turning to the case of the farm run-off and assuming I was the owner of the lake, I would need to prove their activity was damaging my lake. That requires real evidence, not mere arbitrary assertion. If their activity was at fault, then they are in the position of being required to stop their activity and restore the property. In the Libertarian system were they to continue as before they would have comitted an initiation of force. This would mean that retributive force could be employed against them by a government. Don't forget that under Libertarianism government is there to protect the rights of the individual (liberty, property, pursuit of happiness).


  4. Hi Nancy,

    Looks like LGM has already substantially answered your question?

    Elizabeth Brubaker has a good discussion of your question in her book 'Property Rights in Defence of Nature,' especially this chapter, including some Canadian case law showing how the principle should work in a common law regime in which property rights in water are clearly defined, and given legal protection.

    Her book can be read online and downloaded here: 'Property Rights in Defence of Nature.'

  5. Thank you so much LGM and Mr. Cresswell. I will download and read the material you sent me. Now if only DOC would do the same.

    As in the western movies, tumbleweed only rolls by before the real action starts! :)


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