L19 - Property Rights
Urban Planning - Week 10 - Property Rights
RMA: Part III – Land Use & Private Property Rights Objectives
Objective 1: Understand why private property rights are so powerful in our legal system.
Objective 2: Define the concept that ‘property rights are a social and legal concept that can and do change over time’.
Objective 3: Explore some difficulties associated with the process of change in property rights.
Objective 4: Examine the impact of the Resource Management Act (RMA) on private property rights regarding land use.
Queries Related to RMA
Does the RMA create fair and reasonable processes for changing the exercise of private property rights (land) to achieve sustainable management (SM) objectives?
Alternatively, can the RMA be perceived as a form of legalized (statutory) theft of private property rights?
Urban Development Act 2020
Analyzing whether the Urban Development Act 2020 establishes fair and reasonable processes for changes in private property rights to fulfill its urban development purposes.
Key Point: The Act allows for land seizure or compulsory purchase for urban development, and compensation may be limited.
Land Use & Private Property Rights
Individual legal rights form the cornerstone of our political, legal, and economic structures.
Core Rights: The three fundamental human rights: "Life, Liberty, and Property."
Private Property Rights Definition: Ownership; in legal terms, it represents a ‘bundle of rights’—which encompasses full use, enjoyment, including the exclusion of others.
Absolute Rights Doctrine: This doctrine reached its pinnacle during the industrial revolution, characterized by
“The sole and despotic dominion that one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” – (Blackstone)
Consequences of the Absolute Rights Doctrine
This doctrine creates severe consequences for neighboring landowners, the public, and nature itself:
“Absolute private property … produced intolerable evils. Absolute owners did grave damage to their neighbors and to their descendants; they ruined the fertility of the land, they exploited destructively the minerals under the surface, they burned and cut forests, they destroyed wildlife, they polluted streams, they cornered supplies and formed monopolies, they held land and resources out of use…” – (Lippman)
Stewardship Argument: The argument arises whether landowners act as good stewards of the land since they do not wish to harm their own asset.
Evolution of Common Law Post-Industrial Revolution
Following the industrial revolution, common law developed critical qualifications to the absolute rights doctrine, paving the way for modern environmental law.
In contemporary contexts, private property rights are subject to
The law of common good (Blackstone): The content and restrictions on private property rights express social values denoting the common good.
Change in Private Property Rights
Dynamic Nature: Private property rights are not fixed and can change over time. As social values evolve, so do legal constructs regarding what is permissible.
Possible Directions for Change: Changes may lead to either more or fewer restrictions regarding private property rights.
Legal Mechanisms for Change: Such legal transformations can take place through common law and increasingly through legislative acts.
Avoidance of Absolute Rights Excesses
Common law evolved pre-RMA to mitigate risks from the absolute rights doctrine:
The “doctrine of good neighbourliness” (environmental tort) is established to restrict the exercise of private property rights.
Purpose of this Law: It aimed to protect neighboring landowners' rights (private nuisance) or protect a public interest (public nuisance).
Narrow Focus Problem: These laws historically preferred protecting private economic benefits over intangible ecological/social interests.
Results of Legal Preferences
Consequently, neighboring landowners might utilize common law to maintain their immediate environment or resource use (narrow), yet shared/common pool resources (air, water, flora, fauna) remain largely unprotected when clear private property interests are lacking.
Tragedy of the Commons: A phenomenon arises whereby collective resources lack formal protection without economic interest.
Qualified Governance Regimes: Later, governance systems based on collective benefit and trust around commons developed and now exist.
Case Study: Neighbors
Scenario:
Landowner A: Grows fruit and sprays pesticides.
Landowner B: Maintains commercial bee hives and sells honey.
Conflict: If spray crosses the fence and kills bees, Landowner B can file a nuisance claim against A.
Potential Outcomes: B can ask A to stop or reduce spraying and possibly receive compensation, but private nuisance claims lead to limited outcomes.
Government Response to Environmental Issues
In response to the industrial revolution, there was increased government regulation concerning town planning, public health, safety, and environmental protection.
In the 1960s and 1970s, government control over access to common resources increased dramatically.
Current Situation: Despite regulations, private property rights have not fundamentally changed—owners can still pollute or degrade land unless formal laws prohibit it.
Reactive Environmental Law: This results in environmental legislation becoming a reactive collage of restrictions that continually struggles to keep pace.
Mackenzie Basin Land Use Change
Pre-2007 Context: Land use in the Mackenzie Basin before 2007 was less regulated.
Post-2007 Developments:
Since 2007, significant efforts have been made to protect dry grassland ecosystems and landscape values.
2007 Plan Change 13: This plan restricts irrigation, pasture, and dairy conversions in the area.
It faced legal challenges until 2017 but was approved by the Environment Court.
An appeal filed by Federated Farmers and The Wolds Station was eventually dismissed.
Consequences for ecosystems and landscape values have been substantial.
EDS Report – Te Manahuna Mackenzie Basin & Landscape Protection 2020
This report investigates how existing legislative and policy frameworks could be effectively utilized to protect significant natural landscapes.
Ecological Stability Concerns: Remnant tussock grasslands are ecologically unstable, vulnerable to invasion by woody plants as a result of fire and grazing.
Negative Impacts: Irrigation practices have adverse effects on landscape values by altering natural patterns, introducing infrastructure, and depleting indigenous dryland biota.
Current Landscape Values and Legal Constraints
Despite pressures, the area maintains high natural landscape and ecological values.
Historical losses have led to the area nearing a tipping point, making the conservation of remaining values critical.
Since 2017, the Mackenzie District Plan has offered strong protection for the Mackenzie Basin's Outstanding Natural Landscape (ONL), but the oversight and enforcement system remains weak, raising doubts about adherence to existing rules.
Reference: For more information, see the EDS report at https://eds.org.nz/resources/documents/reports/mackenzie-basin-landscape-protection/.
Future Directions on Private Property Rights
To fundamentally change the understanding of private property rights, there is a need to expand the conceptual framework to include ecological responsibilities.
Redefining Property Rights: Shift from viewing land purely as an economic commodity to seeing it as a communal entity that we belong to.
Rights of Use: Property rights should become 'rights of use,' contingent on fulfilling ecological responsibilities first.
This perspective promotes the idea that a conscientious landowner is primarily a steward, guardian, or trustee (kaitiaki) of the land.
Expanding the Common Good: The understanding of the common good must encompass ecological responsibilities.
Achieving this transformation will require ethical, philosophical, and legal changes to current frameworks.