An interesting approach to urban land use property rights

Last week I put out a post on possible mechanisms to enable groups of neighbours to protect their interests in their own and each others’ properties, while allowing the flexibility for them, rather than councils, to determine what, if any, and when changes in the land use rules affecting that group of properties would be put in place.  It was prompted by a combination of the Productivity Commission’s recent discussion of the private covenants that reportedly apply to most new developments, and  the conflict in various Wellington suburbs around the council’s desire to determine which suburbs should be more intensively built and which should not.  Neither the Commission’s apparent distaste for private covenants, nor the situation where councils can somewhat arbitrarily –  and without any compensation for the regulatory taking –  alter private property rights, seemed very appealing.

This afternoon, I stumbled on this post from the Not PC blog.  It is several years old, but still seems very relevant.    The gist of his proposal is as follows:

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 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.

No doubt there are pitfalls in this scheme that I don’t see. But I thought it was worth drawing attention to.  Finding mechanisms that allow both greater flexibility and protection of property rights, but on a basis that puts more weight on mutual consent, and rather less on rather arbitrary administrative or political fiat, should have considerable appeal.

9 thoughts on “An interesting approach to urban land use property rights

  1. Surely in most district plans, the building of a carport (provided it meets the criteria for height to boundary, etc. i.e., the “no bullshit” provisions referred to above) is a permitted activity (no need to talk to a planner, as no resource consent under the RMA required). That is certainly the case in most plans I’ve seen. A carport is also a Sch 1 type of building work under the Building Act (no building permit required either – again, provided it meets certain criteria).

    So, for that example anyway, the proposal adds bureaucracy, rather than subtracts from it.


    • Auckland Council should remove all carparks from the Mixed Housing – Apartments/Terrace housing zone so that developers can maximise the building site. If we want more people using mass transportation then we must remove parking from this particular zoning completely.


    • If only. I am doing a minor extension on my house that meets all the height to boundary rules etc but because it is a heritage zone I have forked out over $3k for a resource consent. This is a house that’s built in the 1970s and is 50m back from the street. And exactly the same rule applies for a building consent.


      • Yes, few folks realise when they buy into these types of special zones that such additional expense comes with the protection of those heritage values. That is the kind of information that should be included in a LIM report. But then perhaps it wasn’t a heritage zone when you purchased?


      • Yes I wonder if NZ could simulate this process by allowing neighbourhoods under certain conditions the autonomy to bypass existing planning rules and put in place their own ‘good neighbourhood’ rules. Would neighbourhoods take advantage of this process to get more economic opportunities from their properties? Would this be a better tactic to promote cities developing ‘up’ rather than the kind of top-down process Wellington is trying to impose on neighbourhoods? Would this stimulate experimentation and innovation of planning rules on a small scale that over time can provide lessons for larger areas?


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