Wednesday, December 17, 2008

Keep ‘em in the dark, and feed ‘em the RMA [updated]

On the same day that National’s Nick Smith’s announced the members of his “expert group” of advisors to help him “review” the Resource Management Act, news broke that indicated why the Resource Management Act so urgently needs to be reviewed – if not axed altogether.

Meadow Mushrooms' Morrinsville plant -- a multi-million dollar business employing more than 180 people -- is being shut down.  “The closure has nothing to do with the recent economic downturn,” says plant manager Roger Young.  "It's only because of this (Environment Court) action."  In case you didn’t know, the Environment Court gains its powers under the Resource Management Act.

The problem, you see, is that they smell.  They smell worse than a dirty nappy on a wet dog.  The plant might have been pumping out bad smells for fifty years but, when you smell that bad, you pick up some enemies. 

Some of Meadow Mushrooms’ enemies are neighbours (four farmers in particular who moved in knowing the plant was there), some of them are trade competitors, but under the Resource Management Act both these groups acquire the power to bring down their foe – with the result that the farmers get to raise the value of their land at the expense of their neighbour, and the trade competitors get to increase the value of their businesses, but again its at the expense of this long-standing employer, the biggest in the Waikato-Piako business.

There’s something here that smells alright, and I don’t just mean the smell of rotting compost. 

There's a very real injustice that would have been so easy to avoid.  Let me remind you of the doctrine of coming to the nuisance which should so obviously have been invoked here – except of course that the RMA has made its application impossible.

The doctrine of coming to the nuisance is a common law principle of long standing.  Under common law you have, as Cactus Kate correctly points out, “Freedom to do what you want on your property as long as it doesn't impinge on others' right of peaceful enjoyment of their property,” but if you’re not impinging because you’ve initially either no neighbours on which to impinge or your neighbours have no problem at all with your emissions of noise, or smell or smoke (or with the money you’ve agreed to pay them so you can emit), then ipso facto you aren’t actually creating a nuisance to anyone, and this pre-existing situation acquires legal standing.

So if some new party them moves into this situation knowing that you’re creating a smell, a noise or otherwise creating a nuisance, then they have no legal right to complain.  Since they came to the nuisance by choice, then under this doctrine the law recognises the pre-existing situation and the acquired rights, and not the complaints that newbies might care to raise. They knew you were there; they presumably got their property cheaper because of it; then the doctrine of coming to the nuisance applies, or should do.

The Coming to the Nuisance Doctrine is an enormously powerful principle protecting pre-existing rights, and quickly establishing rights in situations of apparent neighbourhood conflict. Move next door to a clean and well-run chicken farm or a pig farm for example (even if the place has been ‘re-zoned’ since the farm opened), and under this doctrine you have no right to have them thrown out. Move next door to a speedway track, and you have no right to complain about excessive noise.

I assume you see the difference with how things presently work.

If the farm or the speedway track or whatever it is was there before you chose to buy next door, and if it’s well and properly run, then those pre-existing rights should and can and once were protected in law; and if they were still you and I and Meadow Mushrooms’ neighbours would then have a strong incentive to either make a more careful choice in future (whereas now the incentive is there to move in and force them out), or to buy out the farm, or buy easements or covenants over the neighbouring land to create the new rights they’re now acquiring by using the RMA’s big stick.

Either way, when the coercion is removed and bargaining is all that’s allowed, the tendency is for property to end up in its highest value use by peaceful resolution. This is not something planners can ever claim to have achieved.

And what this principle demonstrates, or would do over long use, is that zoning and ‘planning’ as district planners do it is not only coercive, but unnecessary. Coming to the nuisance is THE antidote to zoning and ‘planning’ and all the bureaucratic bullshit. Implement the coming to the nuisance doctrine – which would be as easy as introducing a codification of basic common law principles including this one, and then abolishing the RMA --  and then you don’t have all the conflicts, and nor do you need the whole expensive farrago that’s been created by the RMA.

Instead you would have clearly delineated property rights that can be peacefully traded until ‘equilibrium’ between neighbours’ desires and what they’re prepared to pay for them is reached, and life mercifully free of the diktats of the planners.

NOW, HAVING SAID ALL THAT about the iniquity of the plant being closed down, I’d normally be in sympathy with the owners. But not in this case.

One of the major shareholders in the plant is one Philip Burdon, magnate and former trade minister in Jim Bolger’s National Government – the same same government that imposed the Resource Management Act on us.

Talk about being hoist by your own petard.

Like I say, I'd normally be in sympathy with the owners, but Mr Burdon at least has brought this on himself.  For him, I feel no sympathy whatsoever.

BUT WHAT ABOUT THIS REVIEW of the RMA by the new National Government?  And what about Nick Smith’s new expert group –- what does that tell us about the likely course of the review? Is there any hope?

Frankly, the membership of the group tells you everything you’d expect from a man who was Minister of the RMA in the last National Government, who calls the RMA “far-sighted environmental legislation, and who said just recently that he intends to “review” the Resource Management Act to, quote, “look at how companies win the right to take private land.”

Alan Dormer looks to be the only decent one there, and he is undoubtedly the choice of Rodney Hide. His submission on the original RMA Bill back in 1991 was a cracker.

The others are as wet as a tidal wave.

Penny Webster is the Rodney District mayor who’s presided over enormous rate increases in the Rodney district, but even in straitened time doesn’t think “this shouldn't entail pruning.” [Scroll down here to see what I think of that.]

Guy Salmon is a blowhard ‘Blue Green’ opposed to any notion of property rights. He is a great advocate of Scandinavian style ‘consultation’ and ‘community values’ crap, and a personal friend of Nick the Dick.

Mike Foster ‘works’ for Beca Planning, who are effectively an arm of the Environmental Defence Society and are great advocates of the nonsense of so-called ‘Smart Growth’ and detailed structure plans.

Dennis Bush-King is from Tasman District which is a Smart Growth town with some of the least affordable housing in NZ (a feature shared by almost all of the world’s smart growth cities).

Mike Holm was a founder of the Environmental Defence Society, and a lawyer who makes a killing off the RMA..

Wyatt Creech is ... well, I did mention 'wet,' didn't I.

Neither Owen McShane nor myself got a phone call.  I can’t say I was surprised.

The last time all these people got together in a room, we were all left worse off.

At least with these appointments Smith is making his intentions plain: More of the same, only more so -- with the major change being an exemption for Government so they can get on with ThinkBig 2.0.

There should now be no excuse for any optimism from National voters about what to expect from this ‘review.’  It will make whitewash look the colour of creosote, and smell just as bad.

So if you’re thinking of making investments based on the expectation of positive changes to the RMA, then don’t bother.  You won’t get them.

UPDATE:  Speaking of Owen McShane, his latest newsletter has superb commentary on the RMA and the Meadows Mushroom malady. See Can we increase the Security of Rural Industry? and The High Risks of Growing Food.

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11 Comments:

Anonymous Anonymous said...

I agree with you that RMA sucks, however I'm not entirely sure that the Common Law would leave the neighbours without remedy...!
The cornerstone common law principle is that it does not matter if you have "come to the nuisance".
One has a common law right to an injunction on the grounds of nuisance provided that the activities "unreasonably interfere with use and enjoyment of land" -which a bad smell probably satisfies). This principle applies even if the particular state of affairs existed before you moved in. See Sturges v Bridgman (1879) 11 Ch D 852 (CA)-(the leading case about "coming to the nuisance".)

Courts have also held it irrelevant whether the activity is beneficial to society. Rights to sue in nuisance would still exist in respect of a profitable business, for instance.
The only consideration that may be taken into account is what a "reasonable person" might expect in the area. Thus the courts could refuse the injunction if you lived in an industrial area, for because "a reasonable person" in that area might be expected to put up with a bit of a bad smell.

12/17/2008 09:45:00 am  
Blogger PC said...

You misunderstand me, Anonymous.

And yOu confuse 'is' with 'should be.'

First of all, the cornerstone common law principle is the one cited by Cactus: the right the peaceful enjoyment of your property, with the corollary that the same principle applies to your neighbour.

That sets the 'floor' for all common law principles.

Second, yes, I'm familiar with Sturges v Bridgman. And I'm also familiar with Lord Denning's different application of the principle in the context of a cricket club who had a new neighbour whinging that they'd moved in next door and then discovered that cricket balls kept landing in their garden.

The point here is that different common law jurisdictions (and judicial officers) have given the doctrine different weight. Different interpretations can be found in Canada, UK, Australia, NZ and all the different US states.

But even so, the question is not what is, but what should be.

What I'm saying is that it's possible to avoid any ambiguity or confusion by enacting a codification of the basic 'common sense' common law doctrines, of which I suggest this one be made absolute.

Why would you want to do that?

Well, that's my third point. It should happen because this doctrine allows the clearest, simplest, most objective underpinning for property rights imaginable -- and it allows us to dispense altogether with District Planning, zoning and the whole iniquitous superstucture of the RMA.

As US writer David Wilens argues, "The Coming to the Nuisance Doctrine is the only objective means of determining who has the right to continue using his property in the event of a nuisance. If zoning is to be replaced, therefore, it must be replaced with the Coming to the Nuisance doctrine. Since it is the only objective means of determining who has the right to continue using property in the event of a nuisance, the Coming to the Nuisance doctrine must be regarded as an absolute in all nuisance cases where it is at issue, determining the rights of the parties without being watered down by less important doctrines...

This is because decisions regarding land use will no longer be in the hands of the government but rather will be handled by the owners of the property to be developed.

Instead of being forced to design projects to conform to the whims of bureaucrats, developers will be free to design their projects to conform to reality -- in this context, to the rights of other property owners who started using their properties previously, and who might be adversely affected by the developer's proposed project.

This would necessarily involve figuring out which property owners might be affected by a proposed project and what uses these owners are already making of their properties, so that the developer can design his project to be compatible with these uses [or else to buy out previously existing acquired rights to bring land into a higher value use].
"

So to summarise, my argument for codification of the doctrine is not based on its status NOW, but on what its status could be and SHOULD be.

NB: To avoid any confusion on the point, it's important to note, by the way, that (in Wilen's words), "If a nuisance results solely because a use is being improperly operated, then there is no Coming to the Nuisance issue and the doctrine doesn't apply. For example: if the feedlot caused odors only because of improper operation, and proper operation would end the odors and thus the nuisance, a court would simply order the owner of the feedlot to take measures to end the odors, and would not apply Coming to the Nuisance."

12/17/2008 10:30:00 am  
Anonymous Sus said...

PC, that's interesting.

In the early 90s there was a case in my hometown whereby a meat processing plant was set up on the western outskirts of town. It was a decent-sized operation employing from memory about 80-100 people -- really significant in a small town beset by recent factory closures in the late 80s. We knew the operators and the business was successful.

However, my hometown's on the west coast, so the prevailing westerly is a regular visitor. When the wind blew the smell was unbelievable. Just atrocious. I was back in NZ visiting and unaware of the plant's existence. So I'm pegging out Mum's washing one morning and shit, oh dear, literally. Had to run inside it was so bad.

It transpired that the local primary school up the road had to often keep the kids inside their classrooms during play & lunchtimes, the odour was so bad. Based on my brief experience, I had no trouble believing that.

The local council had (eventually) responded to the numerous complaints from local residents but the plant owners provided them with an ultimatum: put up & shut up or we'll move the operation to another town.

The local community was so desperate for jobs that the business had them over a barrel. For once, the council was rendered ineffective in the face of a real problem, instead of the many they normally fabricate.

I'm not sure what the outcome was (only being there for a week or two at the time) but this post has prompted me to find out.

It amazed me at the time that seemingly nobody could provide a relatively straightforward legal solution ...

12/17/2008 12:37:00 pm  
Blogger Crampton said...

I'm with you on coming to the nuisance, as it ought to be construed. There are one or two neighbors though that seem to have predated the mushroom farm.

I know nothing about the case except what's been reported. But I'd have thought that the mushroom farm should have been able to buy off the one or two folks with legitimate complaint - the folks who were there prior to the compost operation. Coase tells us that it shouldn't matter whether those neighbors have the right to stop the farm or whether the farm has the right to make as much stink as it likes; the efficient result obtains through side-payments so long as the rights are well defined and transactions costs aren't too high. So, if the small number of affected parties currently have the right to stop the mushroom farm, and if it's cheaper to compensate those parties for their losses than to shut down the farm, then the farm will just compensate the affected parties. Now, why didn't this happen? A few possible cases. It's possible that one of the affected parties is just intransigent. But it's also possible that the threat of shut-down is invoked trying to force a change in the allocation of property rights.

Again, I know nothing about this case other than what's in the paper. But it's puzzling why the mushroom farm wasn't able to cut a deal with its neighbors.

12/17/2008 01:35:00 pm  
Blogger Ruth said...

Hi Sus,

You make a good point here. We have a similar problem where the local landfill was supposed to close 15 years ago -instead it has expanded due to big business being in the Council's pocket. The community here (not individuals) gets some money from the landfill operators - not enough to do anything meaningful with, though.

I find the pollution thing - whether it be stench or otherwise - to be a major sticking point with those who are otherwise inclined toward lib thought.

Any intellectually honest libertarian should realise that *any* action that creates a change to someone else's property without their permission is unethical.

Also if libs are suggesting that property exists 'ab initio' (and I'm not sure that you are) then atmosphere may need to be considered property.

12/17/2008 03:37:00 pm  
Anonymous Anonymous said...

If zoning is to be replaced, therefore, it must be replaced with the Coming to the Nuisance doctrine.

Zoning must be repealed. It simply does not need to be replaced.

this doctrine allows the clearest, simplest, most objective underpinning for property rights imaginable -- and it allows us to dispense altogether with District Planning, zoning and the whole iniquitous superstucture of the RMA.

Wrong. The simplest doctrine is: I can do what I want on and with my property. End of story.

We knew the operators and the business was successful.


Precisely. then you turned into labour-voting socialist haters and wreckers.

It transpired that the local primary school up the road had to often keep the kids inside their classrooms during play & lunchtimes,

State school? Who gives a fuck!

For once, the council was rendered ineffective in the face of a real problem,

Indeed. I guess the police were unwilling to prosecute the meddlers and protestors (gee where have we heard that before). Nothing a baton charge, water cannon, rubber (or ideally real) bullets won't fix with a suitably equipt private security company for the plan though.


But I'd have thought that the mushroom farm should have been able to buy off the one or two folks with legitimate complaint

There is no legitimate complaint. And now you're promoting bribery and corruption.



Any intellectually honest libertarian should realise that *any* action that creates a change to someone else's property without their permission is unethical.


That's not a lib point of view: It's a fucking greenie point of view. I can do whatever the fuck I want, up to rendering pig carcasses over a plutonium pile, on my land. That is absolutely what it being my fucking property means!

If the pile goes critical, you can sue me. If not, you can't, so fuck off. If you don't want me doing that on MY LAND, you should have brought the land in the first place. Oh well you didn't.
I did. I won. You lost. fuck off and die.

So stop behaving like a whinging labour/greenie.
If you care about the environment, buy it.
If you care about animals or birds, buy land and make it a sancuuary.
If you care about your see view, buy the land between your house and the sea.

If you choose not to do any of these things
you have absolutely no right to demand anything of anyone

12/17/2008 06:44:00 pm  
Blogger Ruth said...

I’m glad the radical libertarians reading this think that I am being unfair. They aren’t “classical liberals”. They are tools of the Right, nothing more. History, if it remembers them at all, is going to remember them with scorn.

The premise that “pollution/global warming equals socialism”, is ridiculous, yet is accurately describes their worldview.

And, once again, who cares what they say? They argue against whatever big business is against.

12/17/2008 07:17:00 pm  
Anonymous Anonymous said...

The premise that “pollution/global warming equals socialism”, ... is accurately describes their worldview.


correct.

is ridiculous,

is fact.


And, once again, who cares what they say? They argue against whatever big business is against.

and your point is?

12/18/2008 07:48:00 am  
Anonymous LGM said...

Ruth

Global warming is employed as the justification for compulsory coercive collectivism. That has been its purpose from the outset (originally it was developed as a means of justification for huge government expropriations from citizens and existing energy suppliers for "re-direction" towards adventures in nucear reactor construction, research, experimentation and related weapons subsidies). The "scientists", pimps and shills involved are predominantly statists (most of whom are state funded as well), holding various versions of collectivism as their political philosophy.

This green stuff (including the climate change religion) is nothing more than another (yet another) variant of socialism. So far there have been all sorts of excuses for it. None have turned out to justify the expropriation of people's wealth or property. None have turned out to justify the initiation of force, violence, torture, injury, assault or the murders that have been committed in their name. All have eventually been revealded to be fraudulent at base. All have been demonstrated to be unfit for application against civilised people.

To the extent that "big business" goes along with such nonsense, those organisations are nothing more than cronies.

12/18/2008 09:15:00 am  
Blogger PC said...

Our Anonymous anarchist 'friend' above is evidence-in-chief that 'batshit crazy ' doesn't apply just to statists.

"The simplest doctrine is: I can do what I want on and with my property. End of story."

Well, no. The simplest, clearest and most objective doctrine on this comes from common law. You can read it above: the right to the peaceful enjoyment of your property, with the corollary that the same principle applies to your neighbour.

Because that same principle does apply to your neighbour just as much as it does to you, that means you CANNOT just do whatever the fuck you want on your land, up to rendering pig carcasses over a plutonium pile.

And only a dumbarse who's too dumb to even remember their name would think so.

12/18/2008 10:19:00 am  
Anonymous Sus said...

'Radical libertarians', Ruth? I think 'moron' in his case is more like it. :/

LG said it all. Re big business: capitalism and crony capitalism are not synonymous.

12/18/2008 10:26:00 am  

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