The Abuse of Property Rights

New Zealand Centre for Political Research

The New Zealand Centre for Political Research is a web-based think tank that takes a research-based approach to public policy matters and encourages the free and open debate of political issues. www.nzcpr.com

Last year Peter and Diana Standen of Otaki decided to trim rotten trees in a patch of bush on their new property. They and their arborist were of a view the seven or so trees were diseased and needed to be removed.  As a result of their actions, the Standens, and their arborist separately, have been charged with contravening the District Plan and face up to two years in prison or a fine of $300,000 for breaches of the Resource Management Act! Their crime was to modify indigenous vegetation more than four metres tall with a trunk circumference greater than 30cm.

Off-Trail

According to media reports a neighbour had complained to the Kapiti Coast District Council about the work.[1] The KCDC then rang the Police, who turned up with an ecologist and a search warrant!

The insanity of this situation is unimaginable. The Standens are not criminals. They are an elderly couple who give their time freely for community causes – including environmental projects.

So why are the KCDC being so heavy handed? Simple – to send a message to others.

Well I have a message for the mayor and councillors of the Kapiti Coast District Council – that’s not good enough. It’s not right to intimidate good folk and use them as a vehicle to advance the council’s PR messages. It’s the Council that should be prosecuted for threatening behaviour – not the Standens. If the Council wants to send a message to the community, it should take out advertisements in the newspaper! It should not unleash its unbridled power on individuals to create its media headlines.

The Standens were not even aware of the tree regulations, and their arborist was of the view that the rules allow for the felling of trees that are dangerous. Indeed it is perfectly understandable that residents may not be aware of council tree regulation since they vary so much from council to council. Some councils are very heavy-handed with strict controls and enforcement rules, while others leave the management of trees entirely up to property owners.

How is it that we have arrived at a situation where the trimming of a tree on private property is considered so heinous as to involve the police and potential imprisonment? Unfortunately it’s because we have allowed it to happen.

There are other instances were our silence has led to an abuse of property rights.

This second example comes from the Coromandel and involves the proposed settlement of Ngati Hei’s Treaty of Waitangi claim. The Government, in cahoots with the Thames-Coromandel District Council, has provided claimants with a literal smorgasbord of priceless treasures from the public estate to choose from. Included in the list is the esplanade reserve that surrounds the township of Pauanui – separating the homes from the waterfront – along with the world famous Hot Water Beach and Cathedral Cove. These are all owned by the Department of Conservation but managed by the Council. The full list of publicly owned land and assets on offer can be seen HERE.

According to the Pauanui Ratepayer and Residents Association, if the Pauanui beachfront reserve is privatised to the iwi, they could apply under the Reserves Act to have the reserve status revoked, turning it into private land. This could open it up for potential development.

To say that property owners are shocked by this threat to their property rights is an understatement. They want to know why there has been no consultation with affected stakeholders, nor engagement with the local community over these settlement plans. They are angry that the local council has withheld this information from them and kept them in the dark.

The Pauanui Ratepayer Association has received extremely strong feedback from property owners who have a perfectly reasonable expectation that the reserves adjoining their properties should stay in Crown hands: “We are totally opposed to private ownership of these, be it foreign, iwi or anyone. They belong to all New Zealanders”. There is talk of meetings, protests, even a class action if property values decline.

And what about Hot Water Beach and Cathedral Cove – are New Zealanders happy to see these tourist icons taken out of Crown hands and privatised to iwi?

It’s election year – if you feel strongly that the government has it wrong with regards to this planned Treaty settlement, then why not tell them so… the email addresses of all Members of Parliament can be found on the Parliament page of the NZCPR website HERE. The contact details for Thames-Coromandel District Council councillors can be found HERE.

You can also read NZCPR Research Associate Mike Butler’s background blog on the Pauanui claim HERE, in which he casts doubt on the veracity of the Ngati Hei claim. He explains that the Ngati Hei Trust Board represents an estimated 350 members and that most of the so-called ‘land loss’ they experienced was because their forebears sold the land. Mike also provides a wider perspective on the Treaty claims process in his Treaty Transparency report HERE, which includes summary details of settled and pending claims.

The third example represents a threat to the private property rights of many thousands of Aucklanders that has been created by the introduction of significant changes to Auckland’s proposed Unitary Plan after the consultation process had closed. Let me explain.

Auckland’s draft Unitary Plan had identified 61 sites of significance to Maori. While many people making a submission on the draft plan might have had concerns about the council’s intention to elevate Auckland’s 19 iwi business corporations to the status of consenting authorities – with the power to approve or deny consent applications – with only 61 sites identified on the plan, they might have regarded the impact as being relatively minor and not worthy of a mention.

However, once submissions had closed, a further 3,600 sites were added! Yes – an additional 3,600 sites of significance to Maori were recorded on the plan after the consultation process was over.[2] Aucklanders deserve to know whether this information was purposely withheld in order to minimise submissions against council plans to elevate iwi to consenting authorities.

A total of 3,661 sites identified as being of significance to Maori in the Auckland area, changes the situation entirely. Since the sites are not pin-pointed in a way that will minimise their impact on neighbourhoods, anyone living within a 50 metre radius will be affected: The rules in the Sites and Places of Significance to Mana Whenua overlay requires resource consent for physical modification within 50m of a site or place of significance or a change of use. This means that almost 3,000 hectares in Auckland – more than 7,000 acres – will be directly under the control of iwi who will be able to use their position of privilege over landowners for their own commercial advantage. And this is just a start as the council warns that more sites will be added over time. Is this what Aucklanders want?

This week’s NZCPR Guest Commentator is David Round, a Canterbury University law lecturer and Chairman of the Independent Constitutional Review, who is totally opposed to the whole concept of iwi co-governance and has this to say about the situation:

“3,600 ‘sites of value’ or ‘sites of significance to mana whenua’ are already recorded, often on the basis of minimal solid evidence. The records will often be secret, as ‘silent files’. The Proposed Auckland Unitary Plan accepts that ‘many more’ will be recorded ~ or invented? ~ in future, and thereafter, whether the sites are on public or private property, countless inconveniences, expenses and superstitious obligations will be imposed on poor long-suffering ratepayers.

“These proposals are not just for more autonomy for Maori Aucklanders ~ an autonomy few might object to if it were shared by all other Aucklanders. The proposal is that certain well-placed Maori people enjoy eternal, far-reaching, undefined, ever-expanding ~ and undoubtedly lucrative ~ influence over the future of the city and the property of citizens on the basis of racial descent, superstitious belief and unprovable assertion. Maori are, in fact, well on the way to being the new ruling race.”

The council has put together a list of exempted activities that property owners in areas affected by the presence of these sites of significance can engage in, such as gardening. Everything else must be approved by the iwi. If they aren’t approved, the homeowner will be required to apply to the council for a resource consent.

The process described in the Unitary Plan for those living in the affected areas who want to undertake non-exempted activities is onerous and represents a gross imposition on the rights of property owners:

“We recommend that applicants arrange a pre-application meeting with a representative from the Resource Consents team to confirm what information should accompany your application. If it is decided that a Cultural Impact Assessment is required the council will advise which groups you need to contact and provide advice on engaging with Mana Whenua to obtain a cultural impact assessment. All Resource Consent applications must be accompanied by an Assessment of Effects. Schedule 4 of the RMA provides a guide to what should be included in an Assessment of Effects.

“The Cultural Impact Assessment will provide you with guidance on how your proposal could effect Mana Whenua and suggest ways by which to mitigate those effects. Your Assessment of Effects should demonstrate how you have considered the effects on Mana Whenua values and identified measures to mitigate, if relevant. The level of detail required to be included in your Assessment of Effects depend on the scale of what is proposed. Council can provide advice on this at your pre-lodgement meeting.”[3]

Former All Black Marc Ellis has already had experience of dealing with an identified site of significance on his Auckland property. He paid for an archaeological dig to prove that the site was bogus. The process was very expensive and took months. To expect property owners to have to undertake such challenges if they don’t believe the designations are genuine, is totally unreasonable.

The underhand way the council has included these 3,600 new so-called sites of significance to Maori in the Unitary Plan should be challenged. The designations on the sites should be suspended while a comprehensive and independent review is undertaken to determine whether they are of national significance since most are sites that had not been deemed worthy of protection by previous councils.

An Independent Review Authority should be appointed by the government, and the definition of ‘significant’ should be clarified to cover only areas that are nationally unique and worthy of special protection by a council. Full disclosure should be provided to affected property owners, with the information available on limb reports.

Submissions on the Unitary Plan close on Friday 28 February at 5pm and can be made on-line HERE. This phase of the consultation process enables submitters to challenge any aspects of the plan and voice their concerns to an Independent Hearings Panel, led by Judge David Kirkpatrick.

As at January 30, only 973 submissions had been received. We would urge anyone concerned about the plan – including this threat to private property rights from the imposition of cultural restrictions – to put in a submission by 5pm Friday. You don’t have to live in Auckland to make a submission, and submissions do not need to be complicated. Tell your friends and family about it too – this is one of those occasions where numbers really do matter.

THIS WEEK’S POLL ASKS:

Do you agree with the Kapiti Coast District Council’s decision to prosecute Peter and Diana Standon for trimming trees on their property?

Click HERE to vote

*Read this week’s poll comments daily HERE   

 
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