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.
Labels: Common Law, Property Rights, RMA, Smart Growth