I talked with someone last night who argued that the National Party's disgraceful backtracking on the bipartisan housing accord (which removes, albeit imperfectly, some restrictions on what you can do on your own land) is predicated on protecting people's property rights, rather than restricting them.
The argument -- the same confused argument that the idiots at ACT Party Central have been running -- boils down to saying that a land-owner has a de facto property right in the Zoning into which the local government's planners have thrown you. And that the central government has no right to tear that asunder.
This is bollocks. As I said. It's also utterly confused.
Here's the truth: Zoning is is not a property right. "In truth, zoning is a fundamental violation of property rights":
The right to property means the freedom to produce, use, and trade material values. In regard to land use, this means that property owners has the right to use his land as he chooses, so long as he allows others to use their land as they choose.You would expect so-called advocates for the free market, as ACT and National are supposed to be, to know that.
In contrast, single-family zoning makes it illegal for a property owner to use his land for any purpose other than a single-family home. Under zoning, a land owner cannot use his property as he chooses, but only as government officials permit.
[The argument] implies that dictating how others may use their property is a property right. This is absurd, and it means the annihilation of all property rights. If one is not free to use his property as he chooses, the right to property no longer exists.
In principle, to claim that zoning is an aspect of property rights is equivalent to saying that handing one’s wallet to an armed robber is an economic trade. Both zoning and the robber use force to obtain a value. Both zoning and the robber violate property rights.
[Some who defend the argument go] on to equate zoning with what [they call] 'free-market zoning'—a contractual agreement among property owners to voluntarily limit the use of their land. Such contractual agreements exist today, and they are called deed restrictions, or covenants. However, there is a fundamental difference between zoning and deed restrictions. Zoning is mandatory and coercive. Deed restrictions are voluntary and contractual. To call deed restrictions a form of free-market zoning is intellectually dishonest.
Zoning is not an aspect of property rights. It is the exact opposite of property rights.
5 comments:
What's your response then to the observation that removal of zoning and allowing higher density would allow your neighbour to build in a way that increased the impact on your property - increased shading, more noise, etc?
Calling it a "property right" is perhaps not correct, but the fact remains you buy a property within a defined legal framework of what is and isn't allowed in the surrounding area, and how that can impact the enjoyment of your property.
I don't necessarily disagree with your conclusion, but I'm not sure this argument addresses the opposing one.
Agree with MarkT re shading etc - which is a key property right ie right to light, and enshrined in common law. In many ways zoning rules try and protect those currently - but will be altered by current govt pushed changes.
Zoning rules are often abused by central planners, and go wider than normal property rights eg height to boundary - but might be the most cost efficient/certain way to balance neighbours property rights.
Another option is a disputes type tribunal on property rights, as normal court processes are too costly to enforce property rights.
Would make people careful and considerate prior to construction, and lead to more bargains/covenants ie if a "court" could deal post construction. It would also remove all the "expert" predictions eg hours extra shade, or expected noise generation, to an actual factual result as the basis for a dispute.
Would also deal with the major RMA flaw of the creeping baseline which limits effects to be considered.
@MarkT:
Common law recognises and protects "the right to peaceful enjoyment" of your property (or used to, before it was legislated away by regressive town planning statutes). Neighbouring property owners have that same right. So there's no "right to a view," or "right to a zone," but common law does recognise rights to light, and air, and to quiet enjoyment. All in context, of course.
That said, you can trade away those rights (or, conversely) purchase them from your neighbour(s) if you or they so desire, and you (and/or they) agree.
But there is no "right to a zone." There might an *expectation* of the zone remaining. But that's to expect certainty out of politicians' whims and planners' wet dreams. And the fact remains: the zone is not a right, it's a political imposition. To promote it as a right is not principled, it's politics. And because it's a function of politics instead of right, it can be take away at any time.
And just to remind readers: the result of all that politics is the severally unaffordable housing that is the legacy of thirty years of the RMA, and now the paralysing uncertainty that is a result of the National/ACT bollocks on the bipartisan housing accord that tried to do *something* to reverse that.
@MarkD:
We're largely in agreement.
Yes, the basic "no-bullshit" zoning rules do aim to protect those basic common-law rights too light and air etc., but to paraphrase the OP, there is a fundamental difference between district-plan rules and a common-law right.
As a transition away from this, a simple model however would be to begin with these simple "no-bullshit" rules, and place them on titles as voluntary covenants in favour of particular affected neighbours -- covenants that can then be trade away voluntarily.
And as you suggest, a Small Consents Tribunal could be another transitional measure, to hear consent applications for projects under a certain dollar value (say $500k) -- and to base decisions on basic common law law rules. This rules could be codified, to give decent legal certainty.
@PC - Agree, there's no right to a zone per se. But I think you're agreeing there is a right to at least some of the things that current zoning protects, albeit poorly.
And I also agree that common law is a better way of recognising those rights.
But I was of the understanding the new rules weren't going to enshrine those common law protections, they were just going to change the rules that applied to the zoning, and the zoning would still over-ride common law. Therefore some of these rights were going to be breached with the new rules, and that's the basis of National and ACT's objection to them.
Have I misunderstood?
Post a Comment