“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].
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?
[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.