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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
Relieving Inequality by Reconceiving Property
Addressing Aotearoa/New Zealand’s Housing Problems through a Legal Geography Approach
Roman Leo Dunford
A dissertation submitted in partial fulfilment of the requirements of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Ōtākou.
October 2022
ACKNOWLEDGMENTS
To Professor Nicola Wheen, for your guidance, generosity, and willingness to have conversations about anything and everything – from the black-backed gull to Covid isolation arrangements and everything in between (including this dissertation!).
To the academics who have lent their ear to this dissertation, including Alex Latu for your thoughtful comments at my seminar, and Sophie Bond for your help with my initial understanding of legal geography.
To the extended flat group at 868 George for the shared experiences throughout university, including cocktail nights, Worms, many (many) episodes of Love Island, and for walking the dissertation journey together this year.
And finally, to Mum, Dad, and Eliana, for always being there for me – love you lots.
LIST OF ABBREVIATIONS
MDRS = Medium Density Residential Standards
NPS-UD = National Policy Statement for Urban Development RMA = Resource Management Act
RM(EH)AA = Resource Management (Enabling Housing Supply and Other Matters) Amendment Act TCPA = Town and Country Planning Act
LIST OF FIGURES
Figure 1: Geographical Distribution of “Special Character Areas” in Auckland’s Inner-City Figure 2: Interrelationship of Legal Mechanisms for Addressing Housing Inequalities Figure 3: Legal Mechanisms for Addressing Housing Inequalities: the ‘Urban Public Trust’
TABLE OF CONTENTS
This dissertation comprises 14,971 words, excluding references.
INTRODUCTION
Private property is powerful. It supports individuals to generate wealth and provide for their social and economic wellbeing.1 It enables autonomy and independence from the State, strengthening democracy.2 It vests with individuals legal powers of exclusive possession, use, and exclusion.3 However, these powers are not absolute; they are limited by their interactions with other property rights.4 For instance, the tort of nuisance reflects that an individual may use their property to the extent it does not prevent another individual from exercising their property rights.5 Likewise, the Torrens system of property recognises indefeasibility of title, but an individual’s use of that property is still subject to statutory and equitable exceptions that serve to defeat those property rights.6
In situations of competing property rights, it is law, therefore, that ultimately determines which property interests prevail at the expense of others. Crucially, does this mean law has the potential to unevenly prioritise and distribute property rights? Given the importance of property to an individual’s wellbeing, there is surprisingly little literature that questions exactly how, and on what basis, this distribution occurs. Perhaps this is because in many situations it is trite: law allows some property rights to defeat others because Parliament has legislated so, such as the statutory exceptions to indefeasibility.7 But what of situations where the arbiter of conflicting property rights is not Parliament, nor equity, but instead the opinions of a select few in the community?
This dissertation argues that planning laws in Aotearoa/New Zealand (hereby “Aotearoa”) reflect this latter category. Due to the participatory planning model adopted by the Resource Management Act 1991 (“RMA”), planning laws embed power relations that ensure law’s distribution and protection of property rights is not neutral. This is particularly evident in one type of property that inarguably is unevenly distributed in Aotearoa: housing.
Aotearoa is beset by deep-seated housing problems. Unaffordable housing, homelessness, gentrification, and other inequalities are prevalent, particularly in urban centres. Aotearoa’s problems were recently described by the United Nations Special Rapporteur on the Right to Housing as “not just a housing crisis,
1 Jeremy Waldron The Right to Private Property (Oxford University Press, Oxford, 1988) at 329.
2 Cass Sunstein Free Markets and Social Justice (Oxford University Press, New York, 1997) at 208.
3 Tony Honoré “Ownership” in A.G. Guest (ed.) Oxford Essays in Jurisprudence (Oxford University Press, London, 1961) 107 at 112.
4 Joseph Singer “Property and Social Relations: From Title to Entitlement” in Charles Geisler and Gail Daneker
(eds.) Property and Values: Alternatives to Public and Private Ownership (Island Press, Washington, 2000) 69 at 70.
5 See, for example, Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536 (HC) at [22]-[27].
6 Statutory exceptions include fraud and “manifest injustice”: Land Transfer Act 2017, s 52(1)(a) and s 55 – see, for example, Dollars & Sense Finance Ltd v Nathan [2008] NZSC 20. Equitable exceptions include constructive trusts over land: see, for example, Stratulatos v Stratulatos [1988] NZHC 467; [1988] 2 NZLR 424 (HC).
7 Other examples include compulsory acquisition of land by the Crown under the Public Works Act 1981, ss 15A- 39; and restrictions on alienation of Māori land under Te Ture Whenua Māori Act 1993, ss 145-146.
[but] a human rights crisis” that “demands a human rights response”.8 The legal protection of housing in Aotearoa is weak; although the right to adequate housing is contained in international mechanisms like the United Nations’ Universal Declaration of Human Rights,9 the broad framing of such rights means domestic government policy is likely to comply, to the extent that it cannot be successfully challenged in the Courts.10Therefore, the overall aim of this dissertation is to ask how housing inequalities in Aotearoa can be addressed and mitigated, but with a specific focus on the role of planning law and its regulation of property.
Much ink has already been spilled attempting to address such inequalities and provide solutions, but the role of law has largely been overlooked, probably on the presumption that law is neutral compared with social or economic factors relating to housing policy. Of the limited discourse positing legal solutions, discussion has largely centred on reforming the RMA.11
However, this dissertation suggests that such debate fails to recognise that as long as power relations are embedded in the legal regulation of housing, inequalities are likely to always be present: for it is planning law that unequally prioritises different property rights. Until this is addressed, social, economic, or legal solutions are likely to only address housing inequalities at a surface level. This insight is possible by virtue of “critical legal geography” theory, which suggests law distributes property unevenly as a manifestation of “social ordering”.12
Therefore to address housing inequalities, this dissertation’s first task is refuting the premise that planning law is neutral in its distribution of property, by confronting the power relations present in law’s regulation of housing in Aotearoa. To start, Chapter 1 provides a brief overview of the problem of housing inequalities in Aotearoa, and why such inequalities matter. Chapter 2 then examines Aotearoa’s planning laws, considering how law unevenly prioritises property rights that contribute to housing inequalities, before Chapter 3 introduces legal geography to examine the power relations behind why planning law enables this to occur.
Having critiqued the lack of neutrality in Aotearoa’s regulation of housing, this dissertation moves beyond critique towards exploring tentative solutions that address the power relations behind law’s uneven distribution of property. However, as will be demonstrated, to address these power relations may require going beyond legislative tinkering. Instead, this dissertation advocates for reconceiving property itself. Three re-conceptions are presented. Chapter 4 assesses the idea of progressive property, a theory which conceives of private property as containing a “social obligation norm” to others. Chapter 5 examines
8 Anna Whyte “New Zealand's housing woes labelled a 'human rights crisis of significant proportions' by UN”
1News (online ed., 19 February 2020).
9 Universal Declaration of Human Rights GA Res 217A (1948), art 25.
10 Lawson v Housing New Zealand [1996] NZHC 1528; [1997] 2 NZLR 474 (HC) at 479.
11 See, for example, Michelle Tustin "Legal Interventions to Meaningfully Increase Housing Supply in New Zealand Cities with Housing Shortages" (2017) 48 Victoria University of Wellington Law Review 133 at 142-143.
12 Nicholas Blomley “Law, Property, and the Geography of Violence: The Frontier, the Survey, and the Grid”
(2003) 93(1) Annals of the Association of American Geographers 121 at 121.
property as redistributive, through philosopher Henri Lefebvre’s “right to the city”. Finally, Chapter 6 fashions a mechanism called the “urban public trust”, which conceives of property as containing public duties owed by the State to ensure property is equitable distributed, thereby avoiding the power relations embedded within participatory planning.Ultimately, housing is distributed unevenly in Aotearoa. Uneven power relations in law’s regulation of property mean that inequalities are likely to persist unless more radical changes are adopted. Therefore, to relieve this inequality, it may be necessary to reconceive of property.
CHAPTER 1: The Problem of Housing Inequalities in Aotearoa
A Introduction
To begin, it is necessary to provide a brief overview of the housing inequalities in Aotearoa this dissertation seeks to address. In particular, this Chapter presents justifications for why it is necessary to address housing inequalities, through three examples: housing unaffordability, homelessness, and gentrification.
B Housing Unaffordability and its Consequences
Aotearoa was recently found to be the second-least affordable country in the world to buy a house.13 In Auckland specifically, a 2021 survey found its house price to income ratio was 11.2, up from 8.6 in 2019.14 Housing affordability is therefore inextricably linked with wealth inequality; for instance, the proportion of income spent on housing by low-income New Zealanders doubled between 1982 and 2017.15 As housing is the largest source of wealth in Aotearoa, inequalities are often intergenerational.16 Those who own homes already are more likely to accumulate wealth over their lifetime, which in turn makes it more difficult for people not already on the "wealth ladder” to purchase a home, compared with those who already have wealth concentrated in property.17One consequence of this inequality is the precarity experienced by people unable to own their home, due to the benefits and legal protections of home ownership in Aotearoa. Aotearoa has comparatively weak residential tenancy laws compared to countries with a stronger culture of renting, leaving tenants vulnerable.18 For instance, countries such as Germany have a private landlord-tenant system where rent increases are limited by the general market rent of a property’s area, and termination grounds are limited by law.19 In Aotearoa, by contrast, landlords may increase rent every 12 months,20 and despite recent changes outlawing “no-cause” terminations, the list of prescribed termination grounds is extensive: it includes the landlord wanting to live in the property,21 using the property for their employees,22 or putting the property
13 Greg Severinsen Reform of the Resource Management System: The Urban Context (Environmental Defence Society, Auckland, 2020) at 51.
14 Wendell Cox Demographia International Housing Affordability: 2021 Edition (Urban Reform Institute, Houston, 2022) at 8.
15 Resource Management Review Panel Transforming the Resource Management System: Opportunities for Change – Issues and Options Paper (November 2019) at 12.
16 Luke Symes “House Prices and Wealth Inequality in New Zealand” (2022) 18(3) Policy Quarterly 31 at 33.
17 At 36.
18 Chris Martin, Kath Hulse, and Hal Pawson The Changing Institutions of Private Rental Housing: an International Review
(Australian Housing and Urban Research Institute, Melbourne, 2018) at 5.
19 At 68.
20 Residential Tenancies Act 1986, s 24.
21 Section 51(1)(a).
22 Section 51(1)(b).
up for sale.23 Consequently, non-homeowners in Aotearoa tend to move house almost three times as frequently as homeowners.24Housing unaffordability also implicates people’s wellbeing. Since a higher proportion of income is spent on housing, this reduces people’s disposable income, creating stress in areas like food and utility bills.25 Finally, housing unaffordability is also linked to health inequalities consequent of poor living conditions or homelessness.
C Homelessness and its Consequences
Homelessness is defined by government agencies widely, rather than only referring to those who are “literally homelessness” in that they have no shelter whatsoever.26 The wider definition encompasses those in temporary and emergency accommodation, and those living temporarily in severely overcrowded dwellings.27 Under this definition, around 42,000 people in the most recent Census were assessed as homeless.28 However, this number is likely to be a conservative estimate, as data may not account for those who conceal their living situations for fear of being stigmatised, or those who are difficult to contact.29 Even without accounting for this, the proportion of Aotearoa’s population that is homeless is the second- highest in the world.30 Within this inequality, Pacific, Māori, Asian, and migrant populations are more likely to be homeless; Pacific people are ten times as likely to be homeless compared with Pākehā.31There are many social consequences of homelessness itself that compound housing inequalities, because housing is a determinant of social health.32 Without housing, a person’s material wellbeing, life satisfaction, and physical health suffers.33 One example is that people without adequate housing are more likely to spend time in prison, as housing instability often encourages coping mechanisms like substance abuse, or
23 Section 51(2)(a).
24 On average, renters in Aotearoa move 1.9 times every 5 years, compared with 0.7 times every 5 years for homeowners: Statistics New Zealand The State of Housing in Aotearoa New Zealand (December 2020) at 2.
25 Severinsen, above n 13, at 51.
26 Damian Collins “Homelessness in Canada and New Zealand: A Comparative Perspective on Numbers and Policy Responses” (2010) 31(7) Urban Geography 932 at 935.
27 Ministry of Housing and Urban Development Aotearoa/New Zealand Homelessness Action Plan (February 2020) at 3; and Statistics New Zealand New Zealand Definition of Homelessness: Update (October 2015) at 5. For the genesis of this wider, ‘cultural’ definition in an Antipodean context, see the model developed in Chris Chamberlain and David MacKenzie “Understanding Contemporary Homelessness: Issues of Definition and Meaning” (1992) 27 Australian Journal of Social Issues 274 at 291.
28 Statistics New Zealand, above n 24, at 4.
29 Beverley Lorraine James, Laura Bates, Tara Michelle Coleman, Robin Kearns, and Fiona Cram “Tenure Insecurity, Precarious Housing and Hidden Homelessness Among Older Renters in New Zealand” (2022) 37(3) Housing Studies 483 at 484-485.
30 Organisation for Economic Co-operation and Development Social Policy Division HC 3.1 Homeless Population
(OECD, Washington, 2021) at 5.
31 Kate Amore Severe Housing Deprivation in Aotearoa New Zealand 2001-2013 (He Kainga Oranga/Housing & Health Research Programme, Wellington, 2016) at 3.
32 Nevil Pierse, Jenny Ombler, Maddie White, Clare Aspinall, Carole McMinn, Polly Atatoa-Carr, Julie Nelson, Kerry Hawkes, Brodie Fraser, Hera Cook, and Philippa Howden-Chapman “Service Usage by a New Zealand Housing First Cohort Prior to being Housed” (2019) 8 Social Science and Medicine – Population Health 1 at 8.
33 Statistics New Zealand Living in a Crowded House: Exploring the Ethnicity and Wellbeing of People in Crowded Households
(May 2018) at 26-32.
exacerbates mental health issues that require treatment.34 This compounds the consequences of homelessness because prison sentences, however short, can lead to leases being discontinued, periods spent in unsuitable temporary accommodation, and discrimination when applying for new accommodation.35Similar health consequences arise even for those with some form of shelter. In Aotearoa, recent data estimated there are 500 hospitalisations each year due to household crowding.36 This is because infectious diseases spread easily in overcrowded housing, particularly as people in such housing situations often live in already damp and cold housing due to affordability constraints.37 Finally, residents of overcrowded housing have less material wealth compared with others, meaning they are more vulnerable to health problems. For instance, they may not be able to afford doctors’ visits, further compounding inequalities.38
D Gentrification and its Consequences
The final housing inequality this dissertation seeks to address is gentrification. Gentrification is the process by which less affluent areas in a city undergo changes to attract wealthier new residents.39 It most commonly occurs in inner-city areas, since these spaces were historically valued lower due to their association with working-class industries like manufacturing.40 These cheap spaces are progressively “socially upgraded”, for instance through the establishment of bars and cafes, to encourage investment in the area.41 However, original residents may no longer be able to afford to live in these spaces as a result.42
Gentrification first emerged in Aotearoa in central Auckland during the 1970s, when the government encouraged large-scale migration from the Pacific Islands to fill jobs in the booming primary sector in the inner-city. By the 1970s and 1980s, however, well-educated Pākehā were attracted to the inner-city suburbs like Ponsonby due to lower rents and the prospect of renovation projects.43 Additionally, by the 1990s Aotearoa was experiencing a neoliberal turn, culminating in the enactment of the RMA and the Building Act 1991.44 These statutes removed “unnecessary regulatory burden[s]” on building, and relaxed
34 Pierse, Ombler, White, Aspinall, McMinn, Atatoa-Carr, Nelson, Hawkes, Fraser, Cook, and Howden-Chapman, above n 32, at 2.
35 At 8.
36 Philippa Howden-Chapman, Caroline Fyfe, Kim Nathan, Michael Keall, Lynn Riggs, and Nevil Pierse “The Effects of Housing on Health and Well-Being in Aotearoa New Zealand” (2021) 47 New Zealand Population Review 16 at 24.
37 Michael Baker, Anne McNicholas, Nicholas Garrett, Nicholas Jones, Joanna Stewart, Vivien Koberstein, and Diana Lennon “Household Crowding a Major Risk Factor for Epidemic Meningococcal Disease in Auckland Children” (2000) 19(10) The Pediatric Infectious Disease Journal 983 at 988.
38 A 2016 survey found 13 per cent of people in crowded households put off trips to the doctor, including around
45 per cent of the Māori population in crowded households: see Statistics New Zealand, above n 33, at 31.
39 Peter Marcuse “Gentrification, Abandonment and displacement: Connections, Causes and Policy Responses in New York City” (1985) 28 Journal of Urban and Contemporary Law 195 at 197.
40 See, for example, Seamus O’Hanlon and Chris Hamnett “Deindustrialisation, Gentrification and the Re-invention of the Inner City: London and Melbourne, c.1960–2008” (2009) 27(3) Urban Policy and Research 211 at 215.
41 David Ley “Social Upgrading in Six Canadian Inner-Cities” (1988) 32(1) The Canadian Geographer 31 at 31.
42 Alan Latham “Urbanity, Lifestyle and Making Sense of the New Urban Cultural Economy: Notes from Auckland, New Zealand” (2003) 40(9) Urban Studies 1699 at 1706.
43 At 1704. In concert with these changes, the government’s hostile policy towards immigrant overstayers came into being, culminating in the Dawn Raids of the mid-1970s. This will be discussed in relation to power relations in housing inequalities in Chapter 3.
44 Building Act 1991.
government control over the planning system, encouraging private individuals to develop property.45 Thus, during the 1990s, inner-city Auckland became more upmarket to attract further investment, “shift[ing] from an economy founded on production to one centred on services and consumption”.46 This inflated house prices that ultimately became unaffordable for many of the inner-city’s incumbents.47 For instance, over the period between 1991 and 1998, average house prices in Ponsonby and neighbouring Freeman’s Bay rose around 150 per cent.48
The main consequence of gentrification is displacement of people from their communities and networks.49 Many residents of gentrifying areas are long-term residents and have established communities where “people are quite tight”.50 If residents can no longer afford to live in their neighbourhoods, their social wellbeing diminishes. Those who remain behind often suffer a loss of “sense of place”, as they no longer feel they fit in to their neighbourhood.51 Because of this, gentrification has disproportionately impacted indigenous communities for whom land is intertwined with cultural practices and beliefs, leading to some labelling gentrification as “neo-colonialism”.52
Finally, gentrification leads to residents’ disconnection from amenities in their original neighbourhoods, like libraries, Work and Income, and marae.53 This negatively impacts individuals, but also threatens the facilities themselves. A decline in demand for community services may embolden proponents of gentrification to replace the struggling services with more upmarket amenities.54 This, in turn, can result in public facilities being shut down, and with it their benefits as sites of community interaction and wellbeing.55
45 Laurence Murphy “Third-wave Gentrification in New Zealand: The Case of Auckland” (2008) 45(12) Urban
Studies 2521 at 2525.
46 Richard Le Heron and Philip McDermott “Rethinking Auckland: Local Response to Global Challenges” in Daniel Felsenstein and Michael Taylor (eds.) Promoting Local Growth: Process, Practice and Policy (Ashgate, Aldershot, 2001) 365 at 369.
47 Latham, above n 42, at 1705.
48 From $165,000 to $415,000: see Latham, above n 42, at 1706.
49 Mark Davidson and Loretta Lees “New-Build Gentrification: Its Histories, Trajectories, and Critical Geographies” (2010) 16 Population, Space, and Place 395 at 399.
50 Renee Gordon, Francis Collins, and Robin Kearns “’It is the people who have made Glen Innes’: State-led Gentrification and the Reconfiguration of Urban Life in Auckland” (2017) 41(5) International Journal of Urban and Regional Research 767 at 778.
51 Davidson and Lees, above n 49, at 405.
52 Rowland Atkinson and Gary Bridge Gentrification in a Global Context: The New Urban Colonisation (Routledge, Oxford, 2005) at 2.
53 Gordon, Collins, and Kearns, above n 50, at 778.
54 Chris Hamnett “Gentrification and the Middle-Class Remaking of Inner London, 1961-2001” (2003) 40(12)
Urban Studies 2401 at 2406.
55 Gordon, Collins, and Kearns, above n 50, at 778.
E Housing Inequalities as Societal Problems
Some commentators argue that while housing inequalities are negative, they are individual problems resolvable by individual solutions.56 However, housing inequalities affect society collectively as well as individually.Economically, housing inequalities cost taxpayers a significant amount of money annually. One example is that homeless people are far more likely to interact with government health services than non-homeless people.57 The total cost of healthcare as a result of housing problems in Aotearoa has recently been estimated to be between $127 million and $160 million.58
Second, uneven spatial distribution of affordable housing leads to inefficient labour allocation, because people cannot afford to live in cities like Auckland and Wellington.59 This is unproductive as inner-city urban areas tend to generate greater economic output, because the clustering of businesses and services results in greater “human capital” through the sharing of knowledge and information.60 For example, a recent study estimated that a more equitable spatial distribution of affordable housing could “increase New Zealand’s total economic output by 8.4%”.61
Socially, housing inequalities have negative social consequences due to their potential to damage social capital. Social capital refers to “features of social organization, such as trust, norms and networks, that can improve the efficiency of society”.62 Key to building social capital amongst communities is accessibility to public facilities where information is exchanged, as this encourages community members to pass on that
56 For a discussion of the ‘individuality’ of housing unaffordability, see Emma Power “Housing, Home Ownership, and the Governance of Ageing” (2017) 183 The Geographical Journal 233 at 239. For a discussion of homelessness as an individual problem, see Jane Baron “Homelessness as a Property Problem” (2004) 36(2) Urban Lawyer 273 at
279. For a discussion of gentrification as an individual problem that is necessary for “professionalisation”, see
Hamnett, above n 54, at 2406.
57 Recent data suggests 11.1 per cent required hospitalisation compared with 3.3 per cent of the general population;
95.6 per cent required mental health services compared with 7.9 per cent; and 11.6 per cent were on a government benefit compared with 2.1 per cent: see Pierse, Ombler, White, Aspinall, McMinn, Atatoa-Carr, Nelson, Hawkes, Fraser, Cook, and Howden-Chapman, above n 32, at 5. Another example is that people living in overcrowded and substandard housing have been estimated to make up 6300 hospitalisations annually, spending around 37,000 nights in hospital at a cost of around $36 million: see Howden-Chapman, Fyfe, Nathan, Keall, Riggs, and Pierse, above n 36, at 24.
58 Howden-Chapman, Fyfe, Nathan, Keall, Riggs, and Pierse, above n 36, at 24.
59 Peter Nunns “The Causes and Economic Consequences of Rising Regional Housing Prices in New Zealand” (2021) 55(1) New Zealand Economic Papers 66 at 85.
60 Rudiger Ahrend, Emily Farchy, Ioannis Kaplanis, and Alexander C. Lembcke What Makes Cities More Productive? Evidence on the Role of Urban Governance from Five OECD Countries (Organisation for Economic Co-operation and Development, Washington, 2014) at 6.
61 Nunns, above n 59, at 85. Similarly, a recent United States study found that if land-use regulations enabled more equitable house prices, GDP could have risen by up to 8.9 per cent, because rational workers would be more likely to be able to afford to live in larger cities. This would have equated to an addition $1.27 trillion being added to the country’s wage bill, with around a $9,000 salary increase per worker: see Chang-Tai Hsieh and Enrico Moretti “Housing Constraints and Spatial Misallocation” (2019) 11(2) American Economic Journal of Macroeconomics 1 at 24.
62 Robert Putnam Making Democracy Work: Civic Traditions in Modern Italy (Princeton University Press, Princeton, 1993) at 167.
information to other community members.63 This sense of reciprocation generates positive externalities, which fosters economic growth in the community.64 This is because when externalities such as trust are stronger, transaction costs are lower as people can rely on others’ knowledge to make decisions.65 Consequently, the presence of community facilities like libraries, Work and Income, or marae (as discussed earlier in this Chapter) is significant in ensuring transaction costs remain low, and externalities remain positive, because community facilities are repositories of knowledge and community spirit. If spaces become gentrified and such facilities are lost, then social capital and community networks are diminished, leading to higher transaction costs. Hence, society is collectively implicated in housing inequalities, and suffers consequences if they are not addressed.
F Conclusion
This Chapter has provided the foundations for this dissertation’s aim: using the law to address and mitigate housing inequalities. Through the three examples presented, it is evident that uneven access to housing creates significant individual and societal consequences. Therefore, interrogating the contributory factors of housing inequalities is paramount, including the law.
63 James Coleman “Social Capital in the Creation of Human Capital” (1988) 94 American Journal of Sociology 95 at
103.
64 Sriya Iyer, Michael Kitson, and Bernard Toh “Social Capital, Economic Growth and Regional Development”
(2005) 39(8) Regional Studies 1015 at 1017-1018.
65 At 1018-1019.
CHAPTER 2: Housing Inequalities and Law in Aotearoa
A Introduction
Housing inequalities in Aotearoa are influenced by a variety of factors, such as the global decline in interest rates, social perceptions of supply and demand, and legal restrictions on land-use.66 Thus, legal interventions alone will not ‘solve’ housing inequalities. However, law is pervasive in the regulation of property and housing.67 Yet, there is a relative paucity of literature discussing the role of law specifically in housing inequalities. Given the negative consequences of housing inequalities discussed in Chapter 1, this Chapter interrogates the role of law in contributing to housing inequalities. Specifically, this Chapter examines how Aotearoa’s planning laws determine which property interests prevail in situations where they conflict.
B The Law: Zoning
Previous literature on housing inequalities suggests that land-use planning is influential in the regulation of property, but precisely what it is about land-use planning that distributes property rights unevenly is curiously under-emphasised.68 The specific aspect of land-use planning that does this is zoning: as one paper confronting the issue has noted, “if policy advocates are interested in reducing housing costs, they would do well to start with zoning reform”.69Broadly, zoning is the process by which particular spaces are identified by city authorities as areas suitable for certain activities, with the aim of achieving social or environmental outcomes.70 For instance, zones in Aotearoa include residential zones; rural zones; city/metropolitan zones; and commercial and industrial zones.71 Thus, the purpose of zoning is to prescribe the limits of acceptable land use in particular spaces, to guard against nuisance; for instance, an industrial activity would not be permitted in a residential zone.72
In Aotearoa, zoning restrictions are contained in each city’s District Plan, as required by the RMA.73 However, central government influences how zoning manifests at a higher level. This is reflected in two recent government initiatives related to zoning: the National Policy Statement for Urban Development
66 The Treasury, Ministry of Housing and Urban Development, and Reserve Bank of New Zealand Assessment of the Housing System: with insights from the Hamilton-Waikato Area (August 2022) at 2. See also central government’s efforts to address housing problems in Budget 2022, such as funding towards emergency housing: The Treasury Summary of Initiatives – Wellbeing Budget 2022 – A Secure Future (May 2022) at 125-126.
67 Andreas Philippopoulos-Mihalopoulos “And For Law: Why Space Cannot be Understood Without Law” (2021)
17(3) Law, Culture and the Humanities 620 at 623.
68 See, for example, Kirdan Lees “Quantifying the Costs of Land Use Regulation: Evidence from New Zealand” (2019) 53(3) New Zealand Economic Papers 245; and Paul Conway, Reserve Bank Chief Economist “Housing (Still) Matters: The Big Picture” (speech to the National Property Conference 2022, Wellington, 30 June 2022).
69 Edward Glaeser and Joseph Gyourko “The Impact of Zoning on Housing Affordability” (2003) 9(2) Economic Policy Review 1 at 21.
70 Ministry for the Environment National Planning Standards (November 2019) at 50.
71 At 36-38.
72 Ceri Warnock and Maree Baker-Galloway Focus on Resource Management Law (LexisNexis, Wellington, 2015) at 11. 73 Resource Management Act 1991, s 75(1). Note that Regional Plans (administered by Regional Councils) also occasionally include zones under s 67(1), but only for the specific purpose of the coastal marine area. See also Ministry for the Environment, above n 70, at 49.
(“NPS-UD”) and the Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021 (“RM(EH)AA”).Aotearoa’s planning hierarchy means that all parts of District Plans, including zoning restrictions, must “give effect” to National Policy Statements created by central government.74 The NPS-UD, first implemented in 2016, has the objective of ensuring that “New Zealand has well-functioning urban environments that enable all people and communities to provide for their social, economic, and cultural wellbeing”.75 Hence, District Plans must theoretically incorporate the NPS-UD’s ideology of removing barriers to intensification, which is most commonly achieved through relaxing zoning restrictions. However, ultimately the NPS-UD has struggled to match its rhetoric of equality due to its challenging remit of both addressing housing inequalities, and simultaneously addressing the myriad other factors contained in the RMA.76
However, the potential for these inequalities to be addressed was bolstered by the government’s recent introduction of an amendment to the RMA designed to increase housing supply through intensification.77 The RM(EH)AA introduced a suite of changes designed to enable more equitable distribution of property rights by establishing Medium Density Residential Standards (“MDRS”)78 that local authorities must incorporate into their District Plans.79 Many smaller councils have enthusiastically adopted the changes; one recently brought an application to the Environment Court to iron out an inconsistency in its District Plan, to enable the new MDRS to apply.80 Similarly Rotorua, which accounted for 3.3 per cent of the applications for emergency housing in 2021 despite only having 1.5 per cent of Aotearoa’s population,81 has welcomed the changes, with local MP Tamati Coffey stating
Rotorua Lakes Council is proudly stepping up and saying ‘we want to be involved in this’ ... enabling housing through this bill and making opportunities for Māori to get on the property ladder.82
However, the RM(EH)AA contains an exception that allows territorial authorities to avoid applying the MDRS to certain areas.83 While section 77G of the RMA states that local authorities must incorporate
74 Resource Management Act 1991, s 75(3)(a).
75 Ministry for the Environment National Policy Statement on Urban Development 2020 – Updated May 2022 (May 2022) at
10. This wording mimics the purpose of the Resource Management Act: see section 5(2).
76 David Grinlinton “National Policy Statement on Urban Development Capacity 2016” (2016) 11 Butterworths
Resource Management Bulletin 205 at 208.
77 Henry Cooke “Labour, National announce sweeping housing density law, three-storey homes without consent”
Stuff (online ed., 19 October 2021).
78 Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021, s 4; Resource Management Act 1991, s 2(1).
79 Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021, s 9; Resource Management Act 1991, s 77G.
80 Re Western Bay of Plenty District Council [2022] NZEnvC 143 at [3]. The application was granted, at [24]-[26].
81 Ministry of Social Development Rotorua Emergency Housing Analysis (April 2022) at 2.
82 (14 December 2021) 756 NZPD (Resource Management (Enabling Housing Supply and Other Matters) Amendment Bill – Third Reading, Tamati Coffey).
83 For a criticism based on the then-Bill’s failure to adequately protect character houses, see Character Coalition “Submission to the Environment Committee on the Resource Management (Enabling Housing Supply and Other Matters) Amendment Bill 2021” at 3-4. For a criticism based on the Bill’s lack of adequate urban design standards,
MDRS into their District Plans, section 77I contains “qualifying matters” that allow local authorities to designate certain areas “less enabling of development” than the MDRS require.84 There follows a list of matters including, crucially, a catch-all that states “any other matter that makes higher density, as provided for by the MDRS or policy 3, inappropriate in an area”.85Councils in Aotearoa’s largest cities have used this exception to generally protect the status quo that perpetuates the unequal distribution of housing.86 For instance in September 2022, Auckland Council opened submissions on a plan change to its Unitary Plan that would confirm “qualifying matters” under s 77I as including “special character areas”, which are “older established areas and places of special architectural or other built character value ... that have collective importance, relevance and interest to a local area or to the region”.87 This approach would ensure Auckland’s zoning would essentially return to its current state, rendering the RM(EH)AA moot: much of the inner-city is currently deemed to be of “special character”, hence much of the inner-city is zoned “single house zone” to protect this.
It is important to note that the Minister for the Environment considers Auckland’s approach may be illegal, presumably on the basis that using the “any other matter” catch-all to maintain the status quo is ultra vires. Thus, Auckland Council may ultimately be forced into enabling intensification in the inner-city.88 David Parker MP recently suggested that
We believe the special character exception they [Auckland Council] assert is too broadly cast both in terms of quantity and location ... you’re going too far and you’re undermining the intent of the density requirements of the NPS-UD.89
Thus, Aotearoa’s zoning laws are currently hotly debated. The effect of the RM(EH)AA will be explored in more depth in Chapter 3.
“Amenity values” is defined in the RMA as “those natural or physical qualities and characteristics of an area
that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and
see Environmental Defence Society “Submission to the Environment Committee on the Resource Management (Enabling Housing Supply and Other Matters) Amendment Bill 2021” at [34]-[43].
84 Resource Management Act 1991, s 77I.
85 Resource Management Act 1991, s 77I(j). Note that s 77I only applies “if section 77L is satisfied”, but this is not a high threshold to reach: s 77L only mandates that if an authority wants to designate an area exempt from the MDRS, it must provide an evaluation report justifying its reasons. See Resource Management Act 1991, s 77L.
86 Auckland Council Auckland Unitary Plan, Policy 18.3 (“Special Character Areas”); and Wellington City Council
Wellington City District Plan, Policy 4.2.2.1 (“Maintain the character of Wellington’s inner city suburbs”).
87 Auckland Council Proposed Plan Change 78 Information Sheet #8: Qualifying Matters (Part 2) (August 2022) at 3-4.
88 As detailed above, District Plans must “give effect to” National Policy Statements: Resource Management Act 1991, s 75(3)(a).
89 Hayden Donnell “The Character Protection Racket” Metro (online ed., 23 June 2022) at 85.
90 The Resource Management Review Panel has recommended the term “amenity values” be excluded from the Resource Management Act’s replacement, the Natural and Built Environments Act. However, the Panel would still include “the features and characteristics that contribute to enhancing the quality of the natural and built environments”. Thus, this analysis of amenity values is still relevant to the future, albeit to slightly different
recreational attributes”.91 They are one of the “other matters” contained in the RMA that decision-makers must “have particular regard to”.92 Amenity values are often referenced in cities’ District Plans in conjunction with policies that reference intensification.93 This reflects how local authorities are cognisant that amenity values may restrict some individuals’ use of their property while simultaneously enabling other individuals’ property to be protected.94Calibrating this balancing act is key to addressing housing inequalities. However, the wide, subjective definition of “amenity values” has led to a range of matters falling within its ambit, generating uncertainty and providing a mechanism for litigants to assert their property rights by preventing changes in their neighbourhoods.95 A wide range of cases using “amenity values” have been successful in the Courts, including on the basis of offensive insignia,96 moral concerns with nudity,97 and gang presence.98 However, for the purposes of this dissertation, the following cases, which use “amenity value” to prevent intensification, are of most interest to considering how planning law prioritises particular property interests over others.
An early decision concerning “amenity values” was the 1995 case of Lee v Auckland City Council, an appeal against the Council’s decision to refuse resource consent for a proposed second dwelling on the Lees’ Epsom section.99 Judge Kenderdine was scathing in her rejection of the Lees’ proposal to exercise their right to use their property. The amenity of Epsom was “particularly gracious in its aspects, characterised as it is by many charming homes of special character on large sites with many trees”.100 If the judge were to overturn the Council’s decision and grant the resource consent, then
[t]he architectural and landscape qualities which give the area its special character will gradually be eroded and become less credible to sustain. The developments at 9A and 1A Ferryhill Road of which this proposal is not too unalike in some of its aspects, are clear reminders of this situation.101
Similar outcomes have been reached in several other decisions over time based on protecting “amenityvalues” that restrict individuals’ ability to use their property for intensification. These include applications
terminology. See Resource Management Review Panel New Directions for Resource Management in New Zealand (July 2020) at 74.
91 Resource Management Act 1991, s 2.
92 Resource Management Act 1991, s 7(c).
93 See, for example, Christchurch City Council Christchurch District Plan, Policy 14.2.8.2 (“Amenity standards”), which has the role of “prescribing minimum standards for residential development which are consistent with higher density living [to] protect amenity values for residents”.
94 See, for example, Parliamentary Commissioner for the Environment The Management of Suburban Amenity Values
(March 1997) at iv.
95 Catherine Iorns Magallanes “Reform of the Rules for the Rising Seas” (2022) 52 Victoria University of Wellington Law Review 837 at 856.
96 Zdrahal v Wellington City Council [1994] NZHC 1554; [1995] 1 NZLR 700 (HC).
97 McQueen v Waikato District Council PT Auckland A45/94, 20 June 1994. 98 AA Knight v Wairoa District Council PT Wellington W37/90, 19 July 1990. 99 Lee v Auckland City Council [1995] NZRMA 241 (PT) at 241.
100 At 248.
101 At 250.
to add extra dwellings on one section,102 to establish a subdivision that could compromise a neighbour’sviews,103 and to split up existing dwellings into multiple units.104
In light of the recent zoning reforms discussed, it could be suggested that Lee and other older decisions are limited to their specific time; in 1995, for instance, minimum lot sizes in inner-city zoning were 600 m2.105 However in a very recent case, the High Court had a rare opportunity to comment on amenity values, where its reasoning was reminiscent of Lee, 25 years on.
In Wallace v Auckland Council, van Bohemen J noted there had been recent changes in law (including the RM(EH)AA) that reflected “a strong policy impetus ... for more intensive development in residential zones”.106 Yet, when considering Auckland Council’s decision to grant resource consents for terraced housing in Remuera, he held there was an error of law as the Council “did not turn its mind to the effects of building intensity [on] neighbourhood character and residential amenity”.107 Under section 104C(1)(b) of the RMA, which relates to applications for restricted discretionary activities (which includes terraced housing), the decision-maker “must consider only those matters over which ... it has restricted the exercise of its discretion in its plan”.108 In its Unitary Plan, one of Auckland Council’s criteria to consider for restricted discretionary activities is “building intensity, scale, location, form and appearance”.109 As this had not been considered when making the resource consent application, van Bohemen J found the proposal’s failure to consider “amenity values” was inconsistent with the Auckland Unitary Plan.110
Therefore, over many years Courts have upheld claims that proposals for intensification should be prevented on the basis of “amenity values”, thereby protecting some property interests at the expense of others.
D How Zoning and Amenity Values Contribute to Housing Inequalities
Zoning and amenity values both reflect planning law’s uneven prioritisation of property rights in several ways. First, attaching special significance to particular areas tends to result in increased housing unaffordability in those spaces. For instance, between 2006 and 2016, house prices in Auckland’s “special character areas” increased 4.3 per cent more than the price increases of housing outside those areas.111 This could be because special character areas have protections against intensification in the District Plan, but simultaneously do not have the stringent restrictions on development and renovation that “heritage”
102 Chan v Auckland City Council [1995] NZRMA 263 (PT) at 278.
103 Van Brandenburg v Queenstown Lakes District Council EnvC Queenstown C121/2001, 21 November 2001 at [38].
104 Karmarkar v Auckland Council [2013] NZEnvC 270 at [108]- [114].
105 Lee, above n 99, at 241.
106 Wallace v Auckland Council [2021] NZHC 3095 at [213].
107 At [193].
108 Resource Management Act 1991, s 104C(1)(b).
109 Auckland Council, above n 86, at Policy 4.8 (“Assessment – restricted discretionary activities”) and Policy 4.8.2 (“Assessment criteria”).
110 Wallace, above n 106, at [181]-[188].
111 David Bade, Jose Gabriel Castillo, Mario Andres Fernandez, and Joseph Aguilar Bohorquez “The Price Premium of Heritage in the Housing Market: Evidence from Auckland, New Zealand” (2020) 99 Land Use Policy 105042 at 12.
classified homes do; thus their value is higher as people have more flexibility to do what they like with their property.112 This price premium associated with zoning and amenity values also contributes to gentrification, because most of the special character areas are located in the inner-city, which has historically been home to working-class, lower-income people.113 Of the land within 5km of the city centre, 41 per cent is currently protected by restrictive zoning, as depicted in red in Figure 1 below. For instance, 94 per cent of Grey Lynn Central and 91 per cent of Ponsonby East – historically working-class suburbs – are protected from intensification.114
Figure 1: Geographical Distribution of “Special Character Areas” in Auckland’s Inner-City115
Another consequence of zoning and amenity values upholding inner-city “special character areas” is that housing intensification can only occur in suburbs on the outskirts of the city. This creates downstream consequences, for instance that residents in these areas often have to drive further to get to work, taking more time and cost at an individual level, but also producing a car-dependent culture that contributes to greenhouse gas emissions.116 Even though public transport is often planned alongside areas of medium density housing on the city’s outskirts,117 feminist geographers have identified that such public transport
112 At 3. Heritage protection is dealt in the Resource Management Act 1991, Part 8. A full explanation of heritage protection is beyond the scope of this dissertation: see instead Warnock and Baker-Galloway, above n 72, at 273- 275.
113 Latham, above n 42, at 1704.
114 Donnell, above n 89, at 79.
115 Bade, Castillo, Fernandez, and Bohorquez, above n 111, at 2.
116 William Fischel "An Economic History of Zoning and a Cure for its Exclusionary Effects" (2004) 41 Urban Studies 317 at 320-321.
117 See, for example, Wellington City Council, above n 86, at Policy 4.2.6.5 (“Control greenfield subdivision to ensure that adverse effects are avoided, remedied or mitigated and that neighbourhoods are created which have a high amenity standard and which are adequately integrated with existing and planned infrastructure”).
tends to favour a commuter lifestyle. Hence, public transport into the city is often unsatisfactory at non- peak times like the middle of the day, a burden which is felt disproportionately by women who more often are required to run errands at non-peak hours.118 Thus, when zoning only permits housing intensification outside the city centre, housing inequalities are compounded.Finally, the prioritisation of particular amenity values contributes to housing inequalities because having fewer houses on larger sections leads to rising land values, since the supply of those sections is limited.119 Additionally, having the veneer of “amenity” tends to generate further price increases because people know these properties are likely to be protected by District Plans and other instruments.120 Such consequences reinforce how planning law protects inner-city property at the expense of others’ property rights.
E Conclusion
This Chapter has explained how planning law can prioritise particular property rights over others, leading to housing inequalities and their downstream social consequences. Both zoning and “amenity values” restrict the potential increase of housing supply by relegating individuals’ desire to use their property to enable intensification beneath others’ property interests. Having explained the ‘how’, Chapter 3 will examine why planning law enables greater protection of some property rights to the detriment of others.
118 For the seminal version of this argument, see Elizabeth Harman “Capitalism, Patriarchy and the City” in Cora Baldock and Bettina Cass (eds.) Women, Social Welfare, and the State in Australia (Allen and Unwin, Sydney, 1983) 103 at 104.
119 Severinsen, above n 13, at 62.
120 Michael Gunder and Clare Mouat “Symbolic Violence and Victimization in Planning Processes: A Reconnoitre
of the New Zealand Resource Management Act” (2002) 1(2) Planning Theory 124 at 128.
CHAPTER 3: Housing Inequalities and Critical Legal Geography
A Introduction
In pursuit of this dissertation’s aim of addressing housing inequalities, this Chapter explains that planning law’s uneven privileging of some property rights over others is consequent of power relations. It does so through introducing “critical legal geography” to the literature in Aotearoa. The insights of legal geography are significant in addressing housing inequalities because they demonstrate that economic, social, or legal policy solutions are likely to be futile to the extent they do not recognise that planning law embeds and upholds power.
B Legal Geography and the Construction of “Space”
Legal geography is a critical theory which seeks to challenge the notion that law applies universally, neutrally, and objectively.121 As it has not been discussed in any depth in the context of Aotearoa before, it is necessary to provide a detailed overview of its utility.122 Its key premise is that law and geography are “co- constitutive”: not only does law shape geography, but geography plays an active role in constructing the law.123 In the context of property, legal geographers might argue that zoning law shapes the geographical distribution of property rights (as discussed in Chapter 2), but crucially it also suggests this occurs because holders of privileged property rights are more likely to implore the law to continue protecting their property, by engaging in the participatory planning process under the RMA. Moreover, planning outcomes are legitimised as ‘neutral’ because law is perceived to be objective, whereby every person is equal before the law.124 In actuality, planning law outcomes reflect the power of particular individuals, who use the participatory planning process to unevenly distribute property rights by favouring their own.Legal geography argues that such a construction of the distribution of property fails to take account of other people’s perceptions on how property rights should be distributed. In particular, scholars draw on the geographical concept of “space” to demonstrate this. Early positivist geographers referred to “space” as particular locations with a fixed identity and meaning.125 For instance, a particular country may carry the
121 Nicholas Blomley Law, Space, and the Geographies of Power (Guilford Press, New York, 1994) at 5. Note the existence of academic work that informally discusses the relationship between law and space which pre-dates the formal legal geography movement: see generally David Harvey Social Justice and the City (Edward Arnold, London, 1973); and Patrick McAuslan The Ideologies of Planning Law (Pergamon Press, Oxford, 1980).
122 For passing references to legal geography in a New Zealand context, see, for example, Maria Bargh and Estair van Wagner “A Kaupapa Māori-informed Approach to Uncovering Indigenous Jurisdiction and Shifting the Research Gaze” in Tayanah O’Donnell, Daniel F. Robinson, and Josephine Gillespie (eds.) Legal Geography: Perspective and Methods (Routledge, London, 2020) 91 at 97; Richard Boast “Property Rights and Public Law Traditions in New Zealand” (2013) 11(1) New Zealand Journal of Public and International Law 161 at 163; and Damian Collins and Robin Kearns “Under Curfew and Under Siege? Legal Geographies of Young People” (2001) 32(3) Geoforum 389 at 389-390.
123 Luke Bennett and Antonia Layard “Legal Geography: Becoming Spatial Detectives” (2015) 9(7) Geography Compass 406 at 408.
124 Roger Cotterrell “Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship” (1987)
14(1) Critical Legal Studies 77 at 82.
125 Sarah Keenan Subversive Property: Law and the Production of Spaces and Belonging (Routledge, Oxford, 2015) at 40.
identity of cleanliness, or crime, and so on. However, in the 1980s and 1990s, critical geographers argued space could not be conceived of in such an essentialist, fixed manner.126One influential geographer, Doreen Massey, argued that space is a construction of interrelationships, not only in the sense of personal relations, but the relationship between a person’s political identity and a particular space.127 For instance, the space of London is characterised by global capital and finance, migration and various cultures, and workers and labour in a variety of industries.128 Consequently, it is inhabited by a variety of political identities that are constantly colliding with one another: the mercantilists reaping the fruits of higher salaries; the manufacturing businesses and public service employees driven out of the city by rising rent; the migrants in poverty lured by the prospects of a better life.129 All these groups experience London differently due to their identity, and their identity is often shaped through their relationships with others. In this way, space is “never finished; never closed ... a simultaneity of stories-so- far”.130
This dissertation argues that planning law has failed to recognise the possibility of multiple conceptions of space; to law, the notion of contested “space” is invisible.131 This contributes to housing inequalities by enabling planning law to construct one particular conception of space that protects property rights unevenly, thereby upholding power relations that disadvantage marginalised groups.132 Legal geography therefore provides important insights that help to reject the positivist argument that since planning law is neutral, its use and power is justified.133
C The Construction of Space through Participatory Planning
Applying legal geography theory, planning law in Aotearoa prioritises some property rights over others due to the RMA’s model of participatory planning. The RMA’s enactment signalled a clear departure from the centralised approach to planning contained in the Town and Country Planning Act 1977 (“TCPA”), where instead of local authorities determining what was a “wise use” of resources, local communities could determine what activities would enhance their wellbeing.134 Consequently, soon after the RMA’s enactment a full bench of the High Court affirmed that under the RMA, “a much greater consultation process is envisaged” with community members when Councils prepare plans and plan changes.135 For instance, if a
126 John Agnew “Space and Place” in John Agnew and David Livingstone (eds.) Handbook of Geographical Knowledge
(Sage, London, 2011) 316 at 318-319.
127 Doreen Massey For Space (Sage Publications, California, 2005) at 33.
128 At 308.
129 At 309-310.
130 At 32.
131 Philippopoulos-Mihalopoulos, above n 67, at 630-631.
132 Doreen Massey Space, Place, and Gender (University of Minnesota Press, Minneapolis, 1994) at 222.
133 Keenan, above n 125, at 21.
134 Town and Country Planning Act 1977, s 3(b) references the “wise use and management of New Zealand’s resources”, whereas the Resource Management Act 1991, s 5 references “managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being”.
135 Batchelor v Tauranga District Council (No 2) (1992) 2 NZRMA 137 (HC) at 139.
plan change is notified,136 that notice “shall state ... that any person may make a submission on the proposed policy statement or plan”137 and include “the process for public participation”.138The rationale behind participatory planning was that it would facilitate greater democratic values in planning, as it would represent communities’ beliefs more accurately than the TCPA’s more paternalistic approach.139 However, from a legal geography perspective, participatory planning has the potential to be problematic because its nod to democracy legitimises the uneven distribution of property that planning law creates.140 For instance, in a case on amenity values, the Planning Tribunal prevented the applicant from using their property for intensification, on the justification that while “there is therefore a subjective element in the perception of amenity ... it is tested objectively by the planning process.”141 However, legal geography suggests the planning process that gives rise to this “objectivity” instead embeds power relations that perpetuate housing inequalities.
Submissions on proposed plan changes are not reflective of all community perspectives.142 In particular, males, Europeans, and people aged 55 and over are overrepresented in council submissions. For instance, when Auckland Council opened submissions on intensification changes in 2015, 62 per cent of submissions were by men (who made up only 49 per cent of Auckland’s population); 80.2 per cent of submissions were from people of New Zealand European ethnicity (despite making up only 53.5 per cent of Auckland’s population); and 46.2 per cent of submissions were by people aged 55 or over (who made up 21.8 per cent of Auckland’s population).143 More recently, when Christchurch City Council invited submissions on its proposal to adopt the MDRS contained in the RM(EH)AA, 51 per cent of overall respondents were aged between 50 and 70, despite making up only 29 per cent of the city’s population; 6 per cent of respondents were aged 18-24, despite making up around 10 per cent of the city’s population.144 Thus, people in older age brackets were proportionally double their population while people in younger age brackets were proportionally half their population.
This imbalance then shapes how the law determines what property rights prevail over others in situations of conflict, like intensification. When Christchurch City Council recently opened submissions on plan changes relating to the MDRS, 644 of the 800 submitters (around 80 per cent) supported “increas[ing] qualifying matters”, including special character and heritage.145 This reflects legal geography’s point that law
136 Local authorities may give “limited notification” instead of public notification, but this only applies in the comparatively rare event that the authority can identify all affected persons of the plan change: see Resource Management Act 1991, sch 1, cl 5A.
137 Schedule 1, cl 5A(2)(b).
138 Schedule 1, cl 5A(2)(c).
139 Elizabeth Toomey “Public Participation in Resource Management: The New Zealand Experience” (2012) 16
New Zealand Journal of Environmental Law 117 at 127-130.
140 As outlined in Chapter 2.
141 Chan, above n 102, at 273.
142 Gunder and Mouat, above n 120, at 128.
143 Peter Nunns “The consultation problem: Who submits on the plan?” Greater Auckland (2 March 2016).
144 Christchurch City Council Housing and Business Choice PC 14 Public Engagement: Synthesis Report (June 2022) at 14.
145 At 54.
and geography are co-constitutive: those whose property rights are already protected by planning law, such as homeowners, are much more likely to make submissions on planning processes because it is economically rational for them to protect their main asset.146 The significant influence individuals and interest groups wield in the planning process was recently demonstrated when the Christchurch City Council voted not to implement the RM(EH)AA into its District Plan. Mayor Liane Dalziel noted this was because
In the past few weeks many neighbourhood groups have asked the Council not to approve the planning rules because they are very concerned about how allowing more intensive housing development will impact on their neighbourhoods.147
Thus, participatory planning enables groups with power to directly shape law, through their preferred construction of which property rights are more important to protect. Consequently, other property rights are not protected to the same extent. For instance, people who are time-poor for various reasons (such as childcare or work) may not be able to match the expertise and volume of submissions by well-resourced interest groups.148 Māori have noted that consultation methods may not be culturally appropriate, and are expensive in time and resources, as Councils often expect iwi to consult with their members about a proposal.149 Thus, the planning process means many Māori perspectives are lost. In addition, the RMA and Aotearoa’s planning regime is very complex and inaccessible to the average person, adding an extra barrier to the participation process.150This has significant implications for this dissertation because it suggests the RMA perpetuates housing inequalities behind a veneer of democratic neutrality. One author characterises this process as “symbolic violence and victimisation”, because “well-resourced stakeholders can resist and the less resourced majority cannot”, which creates particular constructions of geographic space that benefit those with power.151 For example, Auckland Council has suggested “special character areas” that prevent intensification are necessary since they “physically link Aucklanders to the past development of the city ... [and] illustrate the history of Tāmaki Makaurau”.152 However, this wilfully ignores the multiplicity of histories present in Auckland, where people have been displaced due to planning law’s prioritisation of other property rights. As foreshadowed in Chapter 1, during the 1970s and 1980s inner-city Auckland was home to a large Pacific
146 New Zealand Productivity Commission Using Land for Housing (September 2015) at 56.
147 “Christchurch Council Rejects Govt’s Housing Intensification Rules” Star News (online ed., Christchurch, 13 September 2022, no author).
148 Mark Bennett and Joel Colón-Ríos “Public Participation in New Zealand's Regulatory Processes” in Susy Frankel and Deborah Ryder (eds.) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis, Wellington, 2013) 181 at 233-234.
149 Jenny Vince “Māori Consultation under the Resource Management Act and the 2005 Amendments” (2006) 10 New Zealand Journal of Environmental Law 295 at 311. See also Janine Hayward “Local Government and Māori: Talking Treaty?” (1999) 50(2) Political Science 182 at 189.
150 Parliamentary Commission for the Environment Public Participation under The Resource Management Act 1991: The Management of Conflict (December 1996) at 57.
151 Gunder and Mouat, above n 120, at 129.
152 Auckland Council Proposed Plan Change 78 Information Sheet #9: Special Character Areas (April 2022) at 2.
Island population, who were subject to racism and hostility, most clearly in the form of the Dawn Raids.153 Likewise, the Waitangi Tribunal found the Crown’s policies in the 20th century imposed significant harm on the tangata whenua of Central Auckland, Ngāti Whātua Ōrākei.154 Thus, planning law’s uneven distribution of property rights can also erase past wrongdoings behind a façade of democracy, through enabling particular constructions of space to prevail.
D Legal Geography and the Futility of Planning Law Solutions like the RM(EH)AA
The above insights of legal geography are significant as they demonstrate that, until the power relations within participatory planning are addressed, planning law solutions are unlikely to succeed. This is evident in the backlash generated by the introduction of the RM(EH)AA: the power of interest groups in their opposition to intensification is reflected in both Auckland Council and Christchurch Council refusing to incorporate the national direction into their Plans, potentially acting illegally. By allowing local councils to create “qualifying matters” that exempt particular spaces from intensification, central government has failed to adequately mitigate the power relations in participatory planning. As van Bohemen J demonstrated in Wallace (discussed in Chapter 2), the RM(EH)AA amendments can only be effective to the extent that local authorities are supportive of them. Thus, he warned that his decision to reject the applicant’s intensification proposal because it was inconsistent with the Unitary Plan “may have more general significance [as] it bears upon the approach that the Council takes on future applications for consents for more intensive development”.155Moreover, planning law solutions like the RM(EH)AA are unlikely to address the root causes of housing inequality because planning law is “fundamentally about the allocation, distribution, and allocation of property rights”.156. As one commentator has noted, the RMA is careful not to impinge too severely on private property rights because “the state itself, for economic policy reasons, is careful not to inhibit development and economic growth”.157 By allowing local government discretion when incorporating the RM(EH)AA to exclude particular spaces from its provisions, Parliament has demonstrated that it did not want to encroach too heavily on property rights, given the potential political backlash.
In other words, even well-meaning legislative amendments are likely to be ineffective until the power relations behind the uneven distribution of housing are addressed. Thus although the RM(EH)AA has ostensibly positive intentions, its “qualifying matters” clause reflects Parliament’s failure to appreciate the power relations operating within planning law.
153 Rachel Simon-Kumar “Neoliberalism and the New Race Politics of Migration Policy: Changing Profiles of the
Desirable Migrant in New Zealand” (2015) 41(7) Journal of Ethnic and Migration Studies 1172 at 1187.
154 For a detailed overview of the Crown’s wrongdoing, see generally Waitangi Tribunal Orakei Report: Report of the Waitangi Tribunal on the Orakei claim (Wai 9, 1987).
155 Wallace, above n 106, at [5].
156 Harvey Jacobs and Kurt Paulsen “Property rights: the neglected theme of 20th-century American planning” (2009) 75 Journal of the American Planning Association 134 at 135.
157 Royden Somerville “Implications for Local Government of Proposed Changes to the RMA” (1999) 3(2)
Butterworths Resource Management Bulletin 13 at 14.
E Addressing the Critiques of Legal Geography
While this dissertation advocates using a legal geography lens to address housing inequalities, its limitations must be acknowledged. This is necessary because, when considering potential legal geography solutions in the second half of this dissertation, the critiques of legal geography must be addressed for those mechanisms to be effective.
The main criticism of legal geography is that achieving its goal of more equitable distribution of property would require planning law to do the very thing legal geography critiques: prioritising some property interests over others. While legal geography would advocate using planning law to instead protect the property rights of disadvantaged people, critics have suggested this is no more normatively persuasive than the status quo, particularly given the status quo contains at least some democratic influence via participatory planning.158 As such, legal geography contains an explicit political dimension that has the effect of suggesting “other geographical imaginations [of property] are at some level unreal or wrong”, potentially undermining democracy.159Therefore, implicit in legal geography scholarship is the idea that taking a critical approach to planning law’s prioritisation of certain property rights will always result in more equitable outcomes. This is evident in discourse used by legal geography scholars to describe how law has constructed space to be “imperialistic”160 or “violent”.161 That is not to say these characterisations are incorrect; often the examples scholars use are largely unequivocal, such as the impact of colonisation in shaping the dominant conception of a space.162 However, there is a danger that if legal geography operates under this assumption, “that argumentative form and negative representations of rival radical perspectives are used as substitutes for substantive arguments about the merits” of those arguments.163 Two short examples from Aotearoa reflect this nuance.
In the “amenity values” cases discussed in Chapter 2, a critical approach to planning law’s construction of space to preclude intensification would arguably result in more equitable outcomes, because a critical approach would encourage greater housing supply through intensification. But what of a situation where planning law is used to limit a person’s property use right to paint a swastika on their house?164 In Zdrahal v Wellington City Council, the High Court used the community’s construction of amenity values to suggest suburban Wellington would not accommodate “offensive and objectionable” insignia like swastikas.165 This construction limited Zdrahal’s right to use his property as he liked; the construction was likely consequent
158 See, for example, Vera Chouinard “Geography, law and legal struggles: which ways ahead?” (1994) 18(4) Progress in Human Geography 415 at 415.
159 Gillian Rose “For Space by Doreen Massey” (2007) 45(2) Geographical Research 203 at 206.
160 Nicholas Blomley and Gordon Clark “Law, Theory, and Geography” (1990) 11(5) Urban Geography 433 at 438.
161 Blomley, above n 12, at 121.
162 See generally Keenan, above n 125, and Blomley, above n 121.
163 Chouinard, above n 158, at 425.
164 Zdrahal, above n 96, at 700.
165 At 708.
of power relations embedded in participatory planning; yet most would likely agree with Judge Treadwell’s decision.Similarly, what of the situation where squatters who, trespassing on someone else’s property, apply for “adverse possession” of that land title?166 Property law has determined that squatters’ property interests defeat the registered owner’s interests, sometimes leading to family land being lost through an obscure legal process.167
Thus, legal geography recognises that planning law can unevenly distribute property, but many questions remain over how it normatively should distribute property: when is it acceptable to prioritise particular property interests over others? Legal geography might suggest it is acceptable to prioritise property rights that have previously been disadvantaged; but how can these disadvantaged property rights be identified with certainty? Ultimately, then, legal geography requires making explicit value judgments, which some might suggest overrides democratic decision-making through participatory planning.
To address this, this dissertation makes the case that housing inequalities are substantively negative, and therefore property should be redistributed to encourage greater equity.168 I acknowledge this is a political argument that is not normatively stronger than those who might argue housing inequalities are an inevitable consequence of economic growth under capitalism. Yet, all cases for law reform reflect the prioritising of particular values over others, so legal geography is not unusual in this respect.
Finally, a less contested critique of legal geography is that scholarship has not generally offered mechanisms or solutions for how planning law might more equitably mediate between conflicting property rights. This is probably because, like much other critical jurisprudence, legal geography simultaneously recognises the necessity to criticise the status quo to effect change, while also recognising that legal systems are premised on certainty.However, unlike other critical jurisprudence, this dissertation attempts to fill this gap by considering legal geography solutions to housing inequalities. However, given legal geography has struggled to bridge the theory/practice divide, each mechanism presented has its benefits and downsides too.
This Chapter concludes the first part of this dissertation, with the aim of refuting the premise that planning law is neutral in its distribution of property. Chapter 3 has introduced legal geography to the Aotearoa literature to demonstrate that when planning law mediates between conflicting property interests, one
166 Land Transfer Act 2017, s 155.
167 Law Commission Review of the Land Transfer Act 1952 (NZLC IP10, 2008) at 221-222. See also Will Harvie “How Bells' block was snatched away – legally” Stuff (online ed., 8 November 2014).
168 See Chapter 1 for this justification in more depth.
interest often prevails because of power relations embedded in the RMA’s participatory planning. Thus, using a legal geography lens, the uneven distribution of property in Aotearoa is a construction of law.This is significant for this dissertation’s aim of addressing housing inequalities, because constructions can be changed for the better. However, it is also significant for demonstrating that planning law solutions to housing inequalities are unlikely to be effective, because planning law will likely always transmit power relations, even in well-intentioned legislative interventions like the RM(EH)AA. Therefore, this dissertation argues that to address such power relations within housing inequalities, solutions must go one step deeper: interrogating the concept of property itself.
Hence, the dissertation now moves to its second part: exploring tentative solutions to Aotearoa’s housing problems, through a legal geography lens, by imagining how property can be reconceived to alleviate inequalities.
CHAPTER 4: Reconceiving Property: Progressive Property
A Introduction
Progressive property theory is the first of three legal geography mechanisms discussed in this dissertation that reconceptualise the notion of property. Although ultimately this Chapter concludes progressive property is unlikely to be effective in addressing housing inequalities by itself, the theory does provide a useful historical justification for suggesting property can, and should, be reconceived.
B Progressive Property and the Social Obligation Norm in Property
Progressive property theory challenges the classical conception of property, which is that property entails solely an individual’s rights over control and use of resources.169 Instead, scholars argue that private property should be conceived as containing a parallel “social obligation norm”.170 The norm entails ensuring others are furnished with the necessary preconditions for their “human flourishing”, such as housing.171 Hence, like legal geography, a key focus of progressive property is addressing power imbalances to improve the lives of marginalised people.172 This has manifested in both the environmental and urban planning fields, so is potentially very useful when considering this dissertation’s aim of addressing housing inequalities.173The social obligation norm is said to be inherent in property, reflected in modern examples like nuisance law, but has long been obscured by more individualist notions of property attributable to historical thinkers like Blackstone.174 Of course, private property is not exclusively individualistic. There exist many instances of private property rights being limited in Aotearoa’s law, as canvassed in the introduction to this dissertation. However, progressive property scholars argue this conception of property as being limited by a social obligation norm is still not adequately recognised by society; instead, individuality prevails.
Ultimately, the purpose of the social obligation norm is to adjust society’s balance between property rights and social justice.175 Thus, progressive property builds on legal geography’s recognition that the regulation
169 Gregory Alexander, Eduardo Peñalver, Joseph Singer, and Laura Underkuffler “A Statement of Progressive Property” (2009) 94(4) Cornell Law Review 743 at 743.
170 Gregory Alexander “The Social Obligation Norm in American Property Law” (2009) 94(4) Cornell Law Review 745 at 745.
171 At 762.
172 Gregory Alexander Property and Human Flourishing (Oxford University Press, Oxford, 2018) at 320.
173 For a detailed discussion of the role of progressive property in urban planning policy, see Nir Mualam and Debora Sotto “From Progressive Property to Progressive Cities: Can Socially Sustainable Interpretations of Property Contribute toward Just and Inclusive City-Planning? Global Lessons” (2020) 12 Sustainability 4472 at 4479-4496.
174 William Blackstone, considered a seminal thinker in property law, suggested during the 18th century that property is the “sole and despotic dominion ... over external things of the world, in total exclusion of the right of any other person in the universe.” For a detailed discussion of Blackstone’s views, see Brandon Weiss “Progressive Property Theory and Housing Justice Campaigns” (2019) 10(1) UC Irvine Law Review 251 at 266-267.
175 Rachael Walsh Property Rights and Social Justice (Cambridge University Press, Cambridge, 2021) at 5.
of property is a balance of “incommensurate values”, by arguing that law prioritises certain property rights over others due to our underlying conception of property as individualistic.176
C Examples of the Social Obligation Norm in Law
The social obligation norm has been identified in a wide range of laws. In Aotearoa, the main advocate of progressive property is Ben France-Hudson, who argues Aotearoa’s fish quota management system illustrates progressive property.177 This is because the system’s Total Allowable Catch implicitly places social duties on fishers to consider others’ property rights, hence “the rights inherent in [quota] property are not absolute”.178 However, progressive property is most relevant to this dissertation when its social obligation norm is present in resolving housing issues.179 Thus, two examples are presented relating to housing: one from the United States, and one from Aotearoa.
A key example of the social obligation norm in housing inequalities is the approach taken by United States courts to exclusionary zoning policies. For instance, in Southern Burlington County NAACP v. Mt. Laurel, the plaintiffs argued the Township of Mount Laurel’s zoning policies were illegal because, as the Township candidly admitted, “its land use regulation was intended to result and has resulted in economic discrimination and exclusion”.180Mount Laurel Township had introduced exclusionary zoning to curb rapid population growth. Measures included stipulating that only single-family, detached dwellings could be built;181 establishing minimum dwelling sizes;182 and restricting the number of children per dwelling.183 The Township argued such restrictions were justified because their ostensible purpose was to keep local taxes low; New Jersey’s taxation structure meant education funding was proportionally split between the government and the municipality’s residents, so “the fewer the school children, the lower the tax rate” for everybody.184 However, the exclusionary zoning also generated housing affordability issues, meaning low and moderate income families could no longer afford to live in Mount Laurel.185
176 Alexander, Peñalver, Singer, and Underkuffler, above n 169, at 743.
177 Ben France-Hudson “Surprisingly Social: Private Property and Environmental Management” (2017) 29 Journal
of Environmental Law 101 at 117.
178 New Zealand Fishing Industry Association (Inc) v Minister of Fisheries CA82/97, 22 July 1997 at 15-16.
179 Additionally, the quota management system is imposed by statute, which diverges from this dissertation because Chapter 3 has already explained why legislative solutions are unlikely to succeed in addressing housing inequalities: see France-Hudson, above n 177, at 116.
180 Southern Burlington County NAACP v. Mt. Laurel (1975) 336 A.2d 713 at [160].
181 At [163].
182 At [164].
183 At [169].
184 At [171].
185 At [167].
In weighing up these two property interests against each other, the New Jersey Supreme Court was unequivocal that the zoning restrictions were in breach of the New Jersey constitution, which stated that public power must be exercised in accordance with “substantive due process and equal protection”.186Of particular interest to progressive property is that the Court’s reasoning contained undertones of the social norm obligation. Rejecting the Township’s argument, the Court held
It is plain beyond dispute that the proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation.187
The Court further lent credence to the social conception of property by characterising the Township as “act[ing] solely in its own selfish and parochial interest”.188 Thus, Mt. Laurel is evidence of the law rejecting the classical conception of property as individualistic; the Township had failed to consider the human flourishing of others by “build[ing] a wall around itself to keep out those people or entities not adding favourably to the tax base”.189
An Aotearoa example of the social obligation norm enabling human flourishing is the decision of Lake Hayes Property Holdings Ltd v Petherbridge, which discusses the social nature of property in the context of unit titles.190 The High Court heard an application by Lake Hayes Property Holdings Ltd urging it to exercise its jurisdiction under the Unit Titles Act 2010 to cancel an existing unit plan, as it wanted to redevelop its lakefront property.191 The company argued it was “just and equitable” (as required by s 188 of the Act) to cancel the plan since Lake Hayes owned eight of the nine units in the development, whereas the respondent, Ms Petherbridge, owned just one.192 The Court agreed, and ordered the sale of Ms Petherbridge’s property to Lake Hayes so it could commence renovations.193The Court’s analysis in making this order is arguably reflective of a conception of property that recognises social obligations. The development was described as “a socially and economically sustainable community of owners”, rejecting the orthodox conception of property as an entirely individualistic mechanism.194 As such, Panckhurst J held, it was justifiable for the majority interest to defeat Ms Petherbridge’s right to use her property how she liked, because she was only a 9.15 per cent co-owner of the property, and only sporadically visited during the year.195 In contrast, Lake Hayes wanted to improve the quality of housing in
186 At [181].
187 At [179].
188 At [171].
189 At [171].
190 Lake Hayes Property Holdings Ltd v Petherbridge [2014] NZHC 1673.
191 Unit Titles Act 2010, s 188.
192 Petherbridge, above n 190, at [73].
193 The Court’s power to do this comes from the Property Law Act 2007, s 339, which gives the Court jurisdiction to require co-owners of property to purchase shares in a property from each other.
194 Petherbridge, above n 190, at [81].
195 At [88]-[89].
the region by redeveloping the “small” and “outdated” units.196 Thus, it could be suggested Ms Petherbridge had a social obligation norm to enable Lake Hayes to use her property in the interests of human flourishing, like how the Mount Laurel Township had a social obligation contained within its property to provide affordable housing.197
D Barriers to Applying Progressive Property to Housing Inequalities
On the face of it, these cases tend to suggest property can be reconceived to include a social obligation norm, both in Aotearoa and elsewhere. Significantly, both examples address the main issue that legal geography identifies as upholding housing inequalities: power relations. In Mt. Laurel, the Court’s language is grounded in social justice, suggesting the Township was “selfish and parochial” in its exclusion of those unable to afford to live in Mt. Laurel.198 Likewise in Petherbridge, Panckhurst J noted the houses on the development had “a tired feel”, so a renovation of the whole unit title development (including Ms Petherbridge’s unit) would be in the community’s greater interest.199While these examples may be promising, progressive property faces significant barriers as a practical solution to housing inequalities.
This dissertation’s overarching criticism of progressive property is that it fails to give sufficient weight to the fact that property is “performed”.200 By this, scholars mean that society’s conception of property derives from how it is constructed in a “consciously persuasive” way.201 As discussed earlier in this chapter, the most consciously persuasive conception of property is the individualistic conception of property. This is reflected by how people ‘perform’ property in reality; for instance, when people erect fences and hedges as boundary markers, this rejects the social obligation norm of progressive property.202 On this basis, the likelihood of progressive property manifesting in actions that might alleviate housing inequalities, such as forcing people to use their property to enable greater supply or quality of housing, is unlikely.Moreover, while progressive property scholars recognise the argument that property obtains its meaning based on its social construction, like legal geography it struggles to articulate how our legal system might encourage a shift from an individualistic conception to a social one.203 Instead, it relies on a passive, almost Dworkinian argument that “the beauty of social obligation ... is that it already exists”.204 Dworkin argued
196 At [2].
197 For a more comprehensive discussion of the social obligation norm in the context of unit titles, see Hannah McCay “What You See is Not What You Get: Concepts of Property in the Unit Titles Act 2010” (LLB (Hons) Dissertation, University of Otago, 2018) at 6.
198 Mt. Laurel, above n 180, at [171].
199 Petherbridge, above n 190, at [39].
200 Nicholas Blomley “Performing Property: Making the World” (2013) 26(1) Canadian Journal of Law and
Jurisprudence 26 at 32.
201 Carol Rose Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership (Westview Press, Colorado, 1994) at 296.
202 Blomley, above n 200, at 33.
203 Jane Baron “The Expressive Transparency of Property” (2002) 102(1) Columbia Law Review 208 at 232.
204 France-Hudson, above n 177, at 126.
that in “hard cases”, Courts could have recourse to principles that, while not formal legal precedents, were already embedded within law.205 This is useful for providing a legal justification for encouraging progressive property in the future, but is unlikely to mitigate housing issues that require addressing immediately. Instead, progressive property seems to rely on a mindset shift among the polity, which, as Jane Baron argues, “seems a somewhat feeble strategy to effect change”.206Finally, the examples cited by progressive property theorists have not necessarily resulted in socially beneficial outcomes, despite the ostensible presence of a social obligation norm.207 For instance, the Mt. Laurel doctrine has had only a minimal impact on fostering its intended outcomes of housing affordability and community inclusion. In the Township’s affordable housing programme (implemented following the decision in Mt. Laurel), there remains racial exclusion – people of colour represented 50 per cent of the applicants, but only 23 per cent of the actual occupants, while White people represented 37 per cent of the applicants but 40 per cent of the occupants.208 Progressive property scholars stress that the theory is not a panacea for solving property-related legal problems, yet its lack of effectiveness is difficult to reconcile with the very aim of progressive property: to help property “be deployed [to] ensure further goals such as human flourishing and environmental protection”.209 Thus, progressive property has arguably been unsuccessful in mitigating the power relations identified by legal geography that perpetuate inequalities in housing.
Second, even when property is ‘performed’ in a way that recognises social obligations, this tends to be confined to relatively rare situations. For instance in Petherbridge, Panckhurst J was very reluctant to exercise the Court’s jurisdiction to order the sale of Ms Petherbridge’s unit, stating “I accept that imposing an order which defeats the property rights of a co-owner should not be done lightly. It is a step of last resort”.210 This suggests that the individualist conception of property’s sanctity will prevail in most situations.Panckhurst J was ultimately only persuaded by the sheer volume of factors that pointed towards a sale being appropriate: the units were old and had outlived their initial purpose; the body corporate had been dysfunctional for 30 years; and Ms Petherbridge only visited her unit a handful of times each year.211 Thus, progressive property may be difficult to establish in relation to housing inequalities, as its practicality is limited to “a few carefully selected cases and vague observations”.212
205 Ronald Dworkin The Philosophy of Law (Oxford University Press, Oxford, 1977) at 39.
206 Baron, above n 203, at 233.
207 Walsh, above n 175, at 7, who argues it is necessary for progressive property theorists to “widen the doctrinal lens” in order to test progressive property’s viability.
208 Naomi Wish and Stephen Eisdorfer “The Impact of the Mount Laurel Initiatives: An Analysis of the
Characteristics of Applicants and Occupants” (1997) 27 Seton Hall Law Review 1268 at 1294.
209 France-Hudson, above n 177, at 120-126.
210 Petherbridge, above n 190, at [87].
211 At [53]-[55]; and at [88]-[89].
212 Ezra Rosser “The Ambition and Transformative Potential of Progressive Property” (2013) 101(1) California Law
Review 107 at 111.
Finally, perhaps the most entrenched barrier to reconceiving property as containing a social obligation norm is the impact of neoliberalism on Aotearoa’s property and planning laws. The RMA was enacted during a period of societal discontent towards government; the Vietnam War, the fall of the Berlin Wall, and the disintegration of the communist Soviet bloc during the 1970s and 1980s all fomented a belief that the role of the State should be reduced in favour of the free market.213 This belief laid the foundations for our current individualistic conception of property regulation under the RMA, which is more reflective of upholding “the importance of property rights in a society whose economic health is based on individual risk-taking”.214 Hence, the equilibrium shift towards individual control of property therefore makes it difficult for the social obligation norm in property to emerge.
E Conclusion
This Chapter has opened up this dissertation’s discussion of how property might be reconceived to alleviate housing inequalities. Progressive property theory is useful for revealing a legal basis for the notion that property is inherently social, which could theoretically be useful in the debate around housing inequalities. However, it does not mitigate the power relations in law recognised by legal geography, because our legal system’s current conception of property is neoliberal and individualistic. This suggests any attempts to mitigate social problems like housing inequalities will face practical barriers, as long as neoliberalism remains the dominant paradigm.Therefore, Chapter 5 considers a more radical re-conception of property that simultaneously recognises that property is social, while also squarely confronting these power relations: the right to the city.
213 Amy Sinden “The Tragedy of the Commons and the Myth of a Private Property Solution” (2007) 78 University
of Colorado Law Review 533 at 535.
214 Kathleen Ryan “Should the RMA Include a Takings Regime?” (1998) 2 New Zealand Journal of Environmental
Law 63 at 89.
CHAPTER 5: Reconceiving Property: The Right to the City
A Introduction
This Chapter introduces a second way of reconceiving property, known as the right to the city. This right aims to address the power relations that unevenly distribute property, as discussed throughout this dissertation, by identifying that property contains “an inescapable redistributive element”.215 Proponents argue that this relieves inequalities by ensuring equitable access to property and its associated benefits.
B Origins and Aims
The concept of the right to the city was first introduced by philosopher Henri Lefebvre in his seminal work Le Droit à la Ville (The Right to the City).216 Translated into English in the 1990s, the book has been heavily influential in the field of scholarship known as “spatial justice”. Although not explored by legal geographers, I argue it is useful to examine because it has broadly similar goals to legal geography: both are concerned with creating a more just society, and both view the city as a manifestation of unjust outcomes derived from uneven distribution of power.217In his book, Lefebvre sought to establish a concept that could challenge the urban inequalities of exclusion and alienation he argued were produced and reproduced by capitalism. He argued that industrial capitalism had promoted a conception of urban space that celebrated profit, consumption, and economic growth – la fête218 – at the expense of the people inhabiting these spaces.219 Employing Marxist language, industrialisation had accelerated the city’s prioritisation of “exchange values” – value that derives from a commodity’s comparison with others in a market220 – to the point where “use values” – value that satisfies human needs, derived from a commodity’s inherent qualities221 – had been superseded, leading to inequalities.222 To address the power relations that created this construction of space, and enable people to use the space for more communitarian and humanistic purposes, required “a transformed and renewed right to urban life”: hence, the right to the city was born.223
Reflecting its Marxist origins, the right to the city is inextricably linked with power. Thus, it is an immediately useful mechanism in addressing housing inequalities, as it aligns with legal geography’s position that power relations are the root cause of inequalities. In essence, the right aims to provide a mechanism by which
215 Singer, above n 4, at 78.
216 Henri Lefebvre Le Droit à la Ville (Anthropos, Paris, 1968). This was later translated into English: see Henri Lefebvre, Eleonore Kofman, and Elizabeth Lebas Writings on Cities (Blackwell, Oxford, 1996).
217 Edward Soja Seeking Spatial Justice (University of Minnesota Press, Minneapolis, 2010) at 89.
218 La fête literally translates to ‘the party’ or ‘the celebration’ – hence, the city is a ‘party’ or ‘celebration’ of
capitalism.
219 Neil Brenner, Peter Marcuse, and Margit Mayer “Cities for People, not for Profit” (2009) 13(2) City 176 at 176. 220 Karl Marx Das Kapital (Verlag von Otto Meisner, Hamburg, 1867). Quotations are taken from the English translation: see Ben Fowkes Capital: A Critique of Political Economy (Penguin Books, New York, 1990) at 126.
221 At 125-126.
222 Lefebvre, Kofman, and Lebas, above n 216, at 66.
223 At 158.
people can take back control over such power relations that reproduce inequalities in cities, such as those discussed in Chapters 2 and 3.224 Thus, property is reconceived away from the classical individualist notion towards one which requires distribution of property to a person’s community. Consequently, the right stands in contrast to more normative rights (for instance, freedom of expression) because it is a collective right, rather than an individual right.225 This is because, according to proponents, changes to the city to address housing inequalities can only occur through reconceiving property as redistributive, which requires the exercise of collective power.226 Thus, the right has come to be “the right to inhabit ... the uses of city spaces”.227This broad and somewhat vague framing has resulted in the right being deployed in a multitude of different ways. To simplify this, this Chapter will now break into a discussion of the ‘wider’ framing and of the ‘narrower’ framing, assessing each for how they might be used to address housing inequalities in Aotearoa.
C The Wider Conception of the Right to the City
The wider conception of the right to the city suggests that individualist, exclusionary concepts of property must be dismantled, as they reflect the harmful impacts of neoliberalism on the legal regulation of spaces.228 Although the right to the city movement does not clearly articulate the means through which this goal should occur, there are scholars from other disparate disciplines whose work this dissertation can draw upon to provide these necessary theoretical explanations.For instance, during the late 20th century, property lawyer Margaret Radin developed a theory of property that suggested property must be reconceived to prevent its inevitable uneven distribution, due to the emergence of the ‘market’.229 Radin argued this was necessary because liberal economics’ focus on commodification had led to the problematic conflation of “fungible” (or replaceable) property rights, and inalienable “personal” property rights, in the marketplace.230 Thus, the rights to life and liberty had over time become embedded in the marketplace, disadvantaging those without power. This was problematic, Radin suggested, because the property in the right to life is irreplaceable, such as a person’s labour, skills, and talents.231 Ultimately, therefore, Radin argued the government should step in to “guarantee citizens all entitlement for personhood” as part of the ostensibly inalienable right to life.232 In order to achieve this, it is necessary to conceive of property as contingent or relational to others’ property, because of the balance required to ensure “fungible property of some people does not overwhelm the opportunities of the rest to
224 Soja, above n 217, at 83.
225 Lefebvre, Kofman, and Lebas, above n 216, at 158.
226 David Harvey “The Right to the City” in Richard LeGates and Frederic Stout The City Reader (Routledge, Oxford, 2020) 270 at 272.
227 Don Mitchell The Right to the City: Social Justice and the Fight for Public Space (Guilford Press, New York, 2003) at 19.
228 Harvey, above n 226, at 272.
229 Margaret Radin “Market-Inalienability” (1987) 100(8) Harvard Law Review 1849 at 1851.
230 At 1851.
231 At 1855-1856.
232 Margaret Radin “Property and Personhood” (1982) 34(5) Stanford Law Review 957 at 990.
constitute themselves in [personal] property”.233 This reflects the right to the city because Radin is suggesting that others’ property can be “curtailed” as part of a more just redistribution of property to ensure people maintain their right to life.234Various other scholars from the progressive property and legal geography fields have also explored redistributive conceptions of property. Eduardo Peñalver of the progressive property movement has suggested the concept of property is dependent on “community recognition”.235 He argued that in white American neighbourhoods of the 20th century, the property rights of African-Americans were lesser because they were not recognised by the community, which sought to drive them away through Neighbourhood Associations.236 Thus, although they had normative property rights, Peñalver argued that such rights were contingent on the extent to which other people recognised them. 237 Sarah Keenan of legal geography makes a similar point in advocating for a relational conception of property that focuses on how property rights are “held up” by “networks of belonging”.238
Thus, such conceptions of property as relational and malleable are reflective of the goals of the right to the city, and by extension legal geography, in their rejection of individualistic property rights. Such a conception could have implications for addressing housing inequalities, because it suggests that property must be redistributed to prevent social issues, such as homelessness or unaffordable housing. However, there exist barriers to such conceptions being adopted in mainstream legal discourse.
I Barriers to the Wider Conception Addressing Housing Inequalities
The main criticism of the wider conception of the right is that there is a disjunct between the theory and its practical enforceability. Framing the right as a Marxist political struggle is unlikely to fit into a legal system that values some degree of certainty, because political struggles are, by their nature, spontaneous, constantly changing, and unable to be strategised.239 Furthermore, the wider conception reflects a misunderstanding of how rights interact. Rights regularly come into conflict with one another (for instance, between the right to freedom of expression and the right to freedom from discrimination), and subsequently have to be mediated by public values.240 These conflicts are likely to be heightened due to the right to the city, given its reconceptualisation of property envisages a ‘relational’ form of property, which would necessitate some compromises. However, proponents require the right to be absolute in order to achieve political resistance, thereby failing to understand that property is better understood as “the value ... left after the inconsistencies between competing owners” of property rights are resolved.241
233 At 990.
234 At 991.
235 Eduardo Peñalver “Property as Entrance” (2005) 91 Virginia Law Review 1889 at 1889.
236 At 1908.
237 At 1908.
238 Keenan, above n 125, at 72.
239 Tabor Fisher “Repositioning the Theorist in the Lower Ninth Ward” in Phil Steinberg and Rob Shields (eds.) What is a City? The Urban after Katrina (University of Georgia Press, Georgia, 2008) 159 at 163.
240 Jeremy Waldron Liberal Rights: Collected Papers (Cambridge University Press, New York, 1993) at 33.
241 Joseph Sax “Takings and the Police Power” (1964) 74(1) Yale Law Journal 36 at 61.
Second, promoting the wider conception of the right risks the concept suffering from “conceptual bloating”, whereby so many disparate rights are invoked that its ability to be taken seriously as a legal mechanism suffers.242 To some, the right encompasses a right of occupation; to others, a right of autonomy; to others, a right against police brutality.243 This widening is perceived as “strategically fuzzy” in that it may be politically expedient to link various disparate causes together, because this avoids having to consider the legal nuances of different situations the right is invoked in.244 Hence, this weakens the credibility of the right because it appears on one hand to use the language of normative rights, while on the other hand demanding much wider social justice through the dismantling of capitalist economics.245
D The Narrower Conception of the Right to the City
In response to the above criticisms, some scholars have narrowed the right to the city to “rights that impose enforceable obligations on others, and substantively re-configure the relevant fields of power [in urban spaces]”.246 Thus, the narrower conception tends to focus on rights in the more normative, individualistic sense, while still attempting to retain the legal geography insight of challenging power relations. Unlike the wider conception, the narrower conception has been enshrined into legislation.One of the earliest legislative versions of the right emerged in Brazil, known as the “City Statute”.247 This statute facilitated the integration of informal and illegal housing into the formal housing sector, providing property rights to people whose living situations had previously been viewed as illicit. 248 It also represented a fundamental reconceptualisation of property rights, as the statute stipulated that urban development must balance its economic function with social and environmental goals.249 For instance, the law introduced mechanisms designed to curb housing inequalities like compulsory subdivision for more dwellings, progressive land taxes to encourage affordability, and rights of first refusal to the municipality to enable the State to purchase people’s properties.250
However, two decades later the impact of the right on addressing housing inequalities in Brazil has been mixed. At first its influence appeared positive, such as through administrative declarations that District and Municipal plans were illegal because of inadequate participatory planning.251 However, over time the Statute became another example of how legal instruments can transmit power relations. For instance, one municipality used the Statute to establish public-private partnerships over housing, that in theory would
242 Mark Purcell “Possible Worlds: Henri Lefebvre and the Right to the City” (2013) 36(1) Journal of Urban Affairs
141 at 141.
243 Kafui Attoh “What kind of right is the right to the city?” (2011) 35(5) Progress in Human Geography 669 at 675.
244 At 678.
245 Purcell, above n 242, at 142.
246 David Delaney “Legal Geography II: Discerning Injustice” (2016) 40(2) Progress in Human Geography 267 at
271.
247 Law No. 10.257 of 2001 (Brazil).
248 Edésio Fernandes “Constructing the ‘Right to the City’ in Brazil” (2007) 16(2) Social and Legal Studies 201 at
203-204.
249 At 213.
250 At 213.
251 Clarissa Sampaio Freitas “Insurgent planning? Insights from Two Decades of the Right to the City in Fortaleza,
Brazil” (2019) 23(3) City 285 at 292.
benefit the public due to the surplus value generated by selling the housing to developers.252 However, this led to the Statute facilitating gentrification, because lower-income people living in those areas became displaced when their properties were sold to developers.253 Thus, housing inequalities still exist, and have been contributed to, by this seemingly progressive conception of property.There are various other international documents that include some variation on the right to the city, but they also face similar barriers. In Canada, the Montreal Charter of Rights and Responsibilities contains several concrete rights aimed at addressing housing inequalities like affordability provisions and rights of participation in municipal decision-making.254 If a person believes they have been wronged on the basis of these rights, they can complain to an Ombudsman.255 However, the Ombudsman cannot make enforceable recommendations; the Charter explicitly states that it “is not intended to serve as the basis for a legal action”.256
I Barriers to the Narrower Conception Addressing Urban Inequalities
The first critique of a narrower conception of the right to the city is that it “miss[es] the central point ... which, far from an isolated right to particular physical spaces, was meant to highlight the ‘strategic importance of the urban’ in social struggle”.257 This critique has emerged because Lefebvre argued the right was “not a natural right or a contractual one”, suggesting the right is more abstract than legalistic.258 The experience of Brazil reflects this argument. As the City Statute was like any other piece of planning legislation, it was susceptible to the power relations contained within. Thus, Brazil failed to achieve the broader goals of the right to the city, such as reconceiving property to include a redistributive element.Other issues would arise with the narrower conception regarding its potential enforceability in the context of Aotearoa. If the narrower conception was to be included in Aotearoa’s legislative framework, this would necessarily mean placing it in the New Zealand Bill of Rights Act 1990 (“NZBORA”).259 However, NZBORA does not contain any social and economic rights, largely because Parliament considered that, as positive obligations to do something, they would be too onerous.260 In addition Geoffrey Palmer, the Bill’s architect, viewed the potential inclusion of social and economic rights in an enforceable legal instrument as
252 At 295.
253 At 296.
254 Purcell, above n 242, at 143.
255 Montréal Charter of Rights and Responsibilities 2006 (Canada), Article 32.
256 Montréal Charter of Rights and Responsibilities 2006 (Canada), Article 32.
257 Stefan Kipfer, Parastou Saberi, and Thorben Wieditz “Henri Lefebvre: Debates and Controversies” (2012) 37(1)
Progress in Human Geography 115 at 128-129.
258 Lefebvre, Kofman, and Lebas, above n 216, at 194. See also David Harvey Rebel Cities: From the Right to the City to the Urban Revolution (Verso, London, 2012) at 12.
259 The Title to the Act states its purpose is “to affirm, protect, and promote human rights ... in New Zealand”. 260 Joss Opie “A Case for Including Economic, Social and Cultural Rights in the New Zealand Bill of Rights Act 1990” (2012) 43(3) Victoria University of Wellington Law Review 471 at 476-477.
“unmanageable” because “it would suggest such matters may be capable of judicial resolution”, usurping Parliamentary supremacy.261That is not to say that NZBORA could never provide for social and economic rights,262 but even if the right to the city were included, its effectiveness could be curtailed by the fact that NZBORA allows for rights to be limited.263 Under Aotearoa’s constitutional arrangements, rights are not supreme, despite the original NZBORA envisaging otherwise.264 Additionally, including social and economic rights within NZBORA does not address the issue raised by legal geographers and proponents of a wider conception, which is that placing the right within existing legal structures leaves the right susceptible to being used to uphold power structures. As an example, recent guidance issued by the Legislation Design and Advisory Committee states that “new legislation should respect property rights” and that “the government should not take a person’s property without good justification”.265 Thus, even the narrower conception of the right could be watered-down in Aotearoa, so its impact on mitigating housing inequalities would likely be negligible.
E Conclusion
This Chapter has considered the utility of ‘the right to the city’ as a legal mechanism for implementing the insights taken from legal geography regarding housing inequalities. The wider conception would likely be effective at confronting the root cause of housing inequalities in Aotearoa, power relations, due to its Marxist origins and focus on power. However, such a wide conception of the right, which best reflects the aims of legal geography, is unlikely to be effective in addressing housing inequalities because it would be legally unenforceable and politically improbable. On the other hand, a narrow conception of the right is unlikely to address the insights provided by legal geography because it would require placing the right within existing legal instruments that are susceptible to upholding power relations.To address this dilemma, Chapter 6 examines one final mechanism which attempts to balance addressing housing inequalities with being legally enforceable: the ‘urban public trust’.
261 Geoffrey Palmer New Zealand's Constitution in Crisis: Reforming Our Political System (John Mclndoe, Dunedin, 1992) at 57.
262 For a comprehensive discussion of this issue, see generally Opie, above n 260.
263 New Zealand Bill of Rights Act 1990, s 5.
264 Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” [1984–1985] I AJHR A6 at 5.
265 Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at [4.4].
CHAPTER 6: The Solution? Reconceiving Property: the ‘Urban Public Trust’
A Introduction
In attempting to achieve this dissertation’s overall aim of using law to address housing inequalities, Chapters 4 and 5 have identified possible reconceptualisations of property. Any conceptual changes like this are likely to face significant obstacles in terms of their private regulation and enforceability, as they rely on individuals committing to such mindset changes. Hence, this Chapter suggests that instead of reconceiving private property as a means to alleviate housing inequalities, the law should reconceive public property as imposing obligations on the State to alleviate housing inequalities. In doing so, it aims to harness and combine the positive aspects of progressive property and the right to the city, to create an effective legal mechanism for addressing housing inequalities: the ‘urban public trust’.
B The Components of an Effective Legal Mechanism to Address Housing Inequalities
First, Chapter 2 found that Aotearoa’s planning laws contribute to housing inequalities because they restrict intensification in areas close to the city, reducing supply and displacing residents. Therefore, an effective legal mechanism would encourage intensification closer to the city.Second, Chapter 3 established through a legal geography analysis that the root cause of housing inequalities in Aotearoa is power relations embedded within the participatory planning process. Further, power relations are likely to persist in legislative solutions like the RM(EH)AA. Thus, an effective legal mechanism is unlikely to be situated within existing legal structures.
Third, Chapter 4 recognised that an effective legal mechanism should reconceive property as inherently social and contingent on others’ property rights. The conceptual basis for this lies in progressive property theory.
Fourth, Chapter 5’s discussion of the right to the city demonstrated that an effective legal mechanism must be genuinely enforceable by the polity to meaningfully address housing inequalities. Thus, an effective legal mechanism is more likely to be publicly regulated than privately regulated.
The interrelationship between these components, and where the various legal mechanisms explored throughout this dissertation fit in, are depicted in Figure 2 overleaf:
Figure 2: Interrelationship of Legal Mechanisms for Addressing Housing Inequalities
This dissertation suggests that the most effective legal mechanism possible to addressing housing inequalities is likely to be situated in the orange space in Figure 2 above, the only blank internal circle in the diagram. This is because each of the other legal mechanisms contained in the other internal circles have been demonstrated, throughout this dissertation, to face significant obstacles to addressing housing inequalities in Aotearoa. The two privately regulated examples (progressive property and a wider right to the city) are only effective if citizens buy-in to what is proposed. Similarly, the examples embedded within existing legal structures are likely to inadequately confront the power relations present in those structures.
Therefore, the ideal crossover for an effective legal mechanism would be one that is publicly regulated, but also sits outside existing legal structures. This dissertation argues the idea of an ‘urban public trust’ fulfils both these aspects, as demonstrated in Figure 3 overleaf:
Figure 3: Legal Mechanisms for Addressing Housing Inequalities: the ‘Urban Public Trust’
In addition, unlike the other mechanism in Figure 3 that is situated outside the legal system (the wider right to the city), the idea of a public trust is not entirely new to the legal system. Thus, the urban public trust is less susceptible to being completely unenforceable than the wider right to the city is, but simultaneously it exists outside legal structures, given public trusts have never been considered in the urban context before.
To explain this concept, it is first necessary to explain what a public trust is, and its applicability to Aotearoa.
C The Public Trust
The emergence of the public trust doctrine in scholarship began in the 1970s, when legal theorist Joseph Sax argued that inconsistencies in how law dealt with environmental issues required the development of a legal tool that citizens could use to hold governments to account.266 Thus, the doctrine has recently been defined in Aotearoa as signifying “that natural commons should be held in trust as assets to serve the public good”.267 Consequently, the State has a fiduciary-like duty to protect resources under its control for the
266 Joseph Sax “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention” (1970) 68
Michigan Law Review 473 at 474.
267 Klaus Bosselmann “Reclaiming the Global Commons: Towards Earth Trusteeship” in Betsan Martin, Linda Te Aho and Maria Humphries-Kil (eds.) ResponsAbility, Law and Governance for Living Well with the Earth (Routledge Taylor, London, 2019) 35 at 36.
benefit of future generations.268 The duty is fiduciary-like because it does not relate to a specific beneficiary as in the case of private trusts, but instead to society more generally.269The doctrine necessarily limits individuals’ property rights, such as restricting land development.270 However, its proponents argue the impact on private property is overstated: the doctrine has been applied only to specific, tangible aspects of the environment like waterways.271 Hence, the doctrine is argued to limit only one stick in the bundle of property rights – use and development – for the benefit of the public good.272
In the last decade, recognition of the public trust doctrine in Aotearoa has significantly increased, largely due to Nicola Hulley’s scholarship, which identifies difficulties with the doctrine in Aotearoa’s specific legal context. According to Hulley, there are three features that make up the doctrine: it imposes an obligation on government; it is flexible to adjust to changing social concerns; and it is of a constitutional character, in that it has always existed in the common law, and that no-one is above it.273 This third feature is where Aotearoa diverges from other countries that have more explicitly adopted the public trust, due to Aotearoa’s constitutional arrangements.
D The Existence of the Public Trust in Aotearoa’s Laws
Aotearoa’s constitutional arrangements are relatively unique, in that unlike most other common law countries, Aotearoa does not have a supreme, entrenched constitution that constrains the actions of Parliament.274 Hence the public trust, as an instrument of a constitutional character, is somewhat less clearly established in Aotearoa compared with other jurisdictions.In the United States, where the doctrine has been embraced in various Courts, the public trust doctrine constrains the power of the sovereign by virtue of being embedded within their supreme Constitution.275 For instance, in the seminal public trust decision of Illinois Central Railroad v People of the State of Illinois, the US Supreme Court held
268 David Grinlinton “The Continuing Relevance of Common Law Property Rights and Remedies in Addressing Environmental Challenges” (2017) 62(3) McGill Law Journal 633 at 675.
269 Nicola Hulley “New Zealand’s Public Trust Doctrine” (LLM Dissertation, Victoria University of Wellington,
2018) at 14.
270 Michael Blumm “The Public Trust Doctrine and Private Property: The Accommodation Principle” (2010) 27(3) Pace Environmental Law Review 649 at 651.
271 Mary Wood “Advancing the Sovereign Trust of Government to Safeguard the Environment for Present and Future Generations (Part I): Ecological Realism and the Need for a Paradigm Shift” (2009) 39 Environmental Law 43 at 80.
272 Myrl Duncan “Reconceiving the Bundle of Sticks: Land as a Community-Based Resource” (2002) 32
Environmental Law 773 at 793.
273 Hulley, above n 269, at 12-18.
274 Philip Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 21-22.
275 Hulley, above n 269, at 17.
The sovereign power ... cannot consistently with the principles of the law of nature and the constitution of a well ordered society, make a direct and absolute grant of the waters of the state, divesting all citizens of their rights.276
However in Aotearoa, the fact that the constitution is not supreme nor entrenched means the ultimate arbiter of the public trust’s influence is Parliament, not the judiciary, because sovereignty in Aotearoa rests with Parliament.277 This is probably why much of law relating to environmental management in Aotearoa is contained in Parliamentary legislation.278 Consequently, the public trust doctrine has not been explicitly adopted because, under the Westminster system of government, the judiciary is unlikely to invoke the doctrine due to concerns over judicial intervention in Parliamentary sovereignty.279Despite this lack of explicit judicial recognition, the public trust doctrine is not necessarily completely absent from Aotearoa’s legal system.280 Many authors suggest the doctrine exists courtesy of Aotearoa’s adoption of the Imperial Laws Application Act 1988, and in particular its inclusion of the Magna Carta.281 This could be a source of the doctrine because the House of Lords, in the 1863 case of Malcomson v O’Dea, suggested the Magna Carta established a general right of access to fisheries that the State was obligated to protect, reflecting public trust principles.282 This passage was then recently cited with approval in Aotearoa’s Supreme Court in Paki v Attorney-General.283 Similarly, in Ngati Apa v Attorney-General, the Court of Appeal noted the presence of an ancient common law right to navigation in the foreshore and seabed that could not be compromised by private property interests.284
These decisions demonstrate the difficulty of establishing the public trust through the judiciary, due to sovereignty resting with Parliament. Therefore, this dissertation advances the only way to argue around this is to attempt to demonstrate the doctrine is already embedded within a sovereign power outside of Parliament. This will be argued using the Treaty of Waitangi and tikanga principles.
E Justifying the Urban Public Trust in Aotearoa
In Aotearoa, the Crown is said to have acquired sovereignty through the Treaty of Waitangi, as Article 1 states that Māori “cede ... without reservation all the rights and powers of Sovereignty”.285 By contrast,
276 Illinois Central Railroad v People of the State of Illinois [1892] USSC 229; (1892) 146 US 387 at 456.
277 Pooja Upadhyay “Climate Claimants: The Prospects of Suing the New Zealand Government for Climate Change Inaction” (2019) 23 New Zealand Journal of Environmental Law 187 at 204-207.
278 See, for example, the Marine Reserves Act 1971; Reserves Act 1977; and National Parks Act 1980. Whether this legislation is actually effective in achieving the purposes sought by the public trust doctrine is less clear: see, for example, Ceri Warnock and Nicola Wheen “Climate Change, Wildlife Movement and the Law: A Case Study from New Zealand” (2008) 34(3) Commonwealth Law Bulletin 527 at 533-537.
279 Upadhyay, above n 277, at 207. For a discussion of the Westminster constitutional separation of power, see Joseph, above n 274, at 14.
280 Nicola Hulley “The Public Trust Doctrine in New Zealand” (2015) 31 Resource Management Journal 31 at 32.
281 Imperial Laws Application Act 1988, sch 1.
282 Malcomson v O’Dea [1863] EngR 867; (1863) 10 HLC 593.
283 Paki v Attorney-General [2014] NZSC 118 at [60].
284 Ngati Apa & Anor v Attorney-General & Ors [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [50]- [51].
285 Treaty of Waitangi 1840, art 1.
Article 1 of te Tiriti states that Māori cede “te kawanatanga katoa o o ratou wenua”, which more closely translates to ceding governance of lands.286 Although a full analysis of the Treaty is beyond this dissertation’s scope, Philip Joseph suggests that “tikanga survived the Crown’s assumption of sovereignty under the common law doctrine of aboriginal rights”.287 Thus, Aotearoa’s legal system arguably contains dual streams of sovereignty, or at the least, recognises that tikanga is inherent within sovereignty.288Tikanga could be used to justify urban public trusts because it mirrors many aspects of the doctrine’s communitarian ideology, particularly regarding the ethic of kaitiakitanga, which translates to “guardianship” or “resource management”.289 This ethic conceives of property as containing duties to others based on whakapapa and kinship, so kaitiakitanga is owed to future as well as present generations, much like the urban public trust envisages.290 Additionally, it concerns not only environmental resource management (as implied by its definition in the RMA)291 but also social resource management, such as the unequal distribution of resources and land.292 Thus, kaitiakitanga arguably reflects not only the public trust doctrine but the urban public trust doctrine too. This is particularly pertinent given the increasing acceptance of tikanga Māori in Aotearoa’s Courts.
Over recent years, te Tiriti and tikanga have increasingly informed the development of the common law in Aotearoa, arguably to meet changing societal needs. Two recent decisions indicate the Crown owes fiduciary-like duties to Māori; in both Proprietors of Wakatū v Attorney-General,293 and Paki v Attorney-General,294 the Supreme Court determined the Crown owes fiduciary duties relating to contractual obligations to Māori. Alongside, Parliament has developed the concept of legal personhood to rivers and mountains.295 This simultaneously recognises the breaches of te Tiriti’s references to tino rangatiratanga, while also reflecting public trust principles over the environment.296 Finally, the Supreme Court has recently granted leave to appeal in Smith v Fonterra, a case alleging an inchoate duty on the Crown to restrain greenhouse gas
286 Te Tiriti o Waitangi, art 1.
287 Joseph, above n 274, at 106.
288 Note that critical indigenous theorists argue it is not sufficient for tikanga to be incorporated into sovereignty, because its impact will inevitably be shaped by Western legal frameworks. However, for the purposes of the urban public trust, the incorporation of tikanga into sovereignty is sufficient. See generally Carwyn Jones “Tāwhaki and Te Tiriti: A Principled Approach to the Constitutional Future of the Treaty of Waitangi” (2013) 25 New Zealand Universities Law Review 703.
289 Merata Kawharu “Kaitiakitanga: a Maori Anthropological Perspective of the Maori Socio-environmental Ethic of
Resource Management” (2000) 109(4) The Journal of Polynesian Society 349 at 349.
290 At 350.
291 Kaitiakitanga is defined only in relation to “natural and physical resources”: Resource Management Act 1991, s 2.
292 Kawharu, above n 289, at 351-352.
293 Proprietors of Wakatū v Attorney-General [2017] NZSC 17 at [401].
294 Paki, above n 283, at [148]-[162]. See also New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 664; and New Zealand Maori Council v Attorney-General [2007] NZCA 269; [2008] 1 NZLR 318 (CA) at [81].
295 See, for example, Te Urewera Act 2014, s 3(3), which states “Te Urewera has an identity in and of itself, inspiring people to commit to its care”; and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 12, which states “Te Awa Tupua is an indivisible and living whole”.
296 Katherine Sanders "Beyond Human Ownership: Property, Power and Legal Personality for Nature in Aotearoa New Zealand" (2018) 30 Journal of Environmental Law 207 at 217-221.
emissions.297 The appellant’s submissions place some emphasis on the role of tikanga in Aotearoa’s sovereignty, imploring the Supreme Court to consider that “tikanga concepts of interconnectedness ask us to think differently about harm and the restoration of that harm”.298Thus, te Tiriti and tikanga could be used to justify the public trust doctrine having a sovereign status. If this is accepted, this would enable the judiciary to establish the doctrine without compromising its comity with Parliament, because the doctrine would exist in a separate sovereign status through tikanga and te Tiriti. On this basis, it is necessary to now consider how an urban public trust might operate in practice.
F Envisaging how the Urban Public Trust Might Operate in Practice
Public trusts have not yet been examined in relation to the city. The closest example is an American paper which suggests they could be applied to zoning laws.299 Although there exist contextual and constitutional differences between Aotearoa and the United States, the paper provides useful insight for what the core of the doctrine might contain. For instance, zoning laws that prohibit intensification could be in violation of the doctrine.300 Hence, in situations where planning law balances various property interests, the doctrine could impose a bottom line whereby decision-making must not unevenly distribute housing, as currently occurs through concepts like zoning and amenity values. If the State fails to do this, it could be declared in breach of the urban public trust.301 However, this raises the issue of exactly how the Crown would be expected to discharge its duties under the urban public trust.The key practical difficulty to overcome is that the urban environment is comprised of far more private property interests compared with the natural environment, the original focus of the public trust doctrine.302 This is not necessarily a theoretical barrier, as the doctrine has evolved beyond its original intent.303 As the Supreme Court of New Jersey put it, “the public trust doctrine ... should not be considered fixed or static, but should be molded and extended to meet changing conditions and needs of the public”.304
Practically, however, urban public trusts are likely to engender libertarian backlash as public trusts inevitably involve encroaching on others’ property rights.305 For instance, the urban public trust could require States to discharge their duties by purchasing properties to become State housing, perhaps under the Public Works
297 Smith v Fonterra Co-Operative Group Ltd [2022] NZSC 35.
298 Appellants’ Synopsis of Submissions on Appeal SC 149/2021 at [54]. Accessed at https://www.courtsofnz.govt.nz/assets/cases/Submissions/2022/Hearing-date-Monday-15-Wednesday-17- August-2022-Appellant-submissions.pdf.
299 Mary Blackford “Putting the Public's Trust Back in Zoning: How the Implementation of the Public Trust
Doctrine Will Benefit Land Use Regulation” (2006) 43 Houston Law Review 1211 at 1235-1239.
300 At 1236.
301 Upadhyay, above n 277, at 203.
302 Grinlinton, above n 268, at 676.
303 Wood, above n 271, at 80.
304 Borough of Neptune v Borough of Avon-By-The-Sea 61 NJ 296 (1972) 294 A2d 47 at 309.
305 See, for example, James Huffman “Why Liberating the Public Trust Doctrine Is Bad for the Public” (2015) 45(2)
Environmental Law 337 at 363.
Act 1981, which would allow the government to intensify and increase housing supply.306 This would likely affect individuals’ property rights more than public trusts over the natural environment because it would impose positive, rather than negative, obligations on the State: protecting the natural environment often means preventing harmful actions from occurring, whereas protecting the urban environment is more about enabling equitable access, which is potentially more impactful on others.Although urban public trusts are likely to impinge upon individuals’ property rights, this dissertation has argued throughout that a new legal mechanism is required to more equitably distribute property through housing. For instance, Chapter 1 demonstrated the significant individual and societal consequences of housing inequalities. Thus, although there are likely to be objections to the practicalities of an urban public trust, this dissertation suggests its implementation would be justified.
G Conclusion
This Chapter has brought together the insights from previous Chapters to suggest that an effective legal mechanism for addressing housing inequalities would be an ‘urban public trust’. The public trust doctrine exists in Aotearoa’s law, but its establishment is constrained by being situated beneath Parliamentary sovereignty, unlike overseas jurisdictions with supreme constitutions.For the doctrine to be situated within sovereignty in Aotearoa, the country’s sources of sovereignty must be challenged. In particular, te Tiriti o Waitangi and tikanga suggest sovereignty is malleable to Aotearoa’s indigeneity. This is significant for locating the urban public trust within sovereignty because tikanga concepts, like kaitiakitanga, align with the doctrine. Assuming tikanga is part of Aotearoa’s sovereignty, this could be a basis through which the urban public trust is established in the Courts. This could alleviate housing inequalities by imposing duties on the State to provide housing to its citizens.
306 However, if the duty required the Crown to acquire land under the Act, it is likely the government would have to pay compensation: see Patrick O’Boyle “Expanding the Constitutional Protection of Property Rights to Address Regulatory Takings” (LLB (Hons) Dissertation, University of Otago, 2018) at 11.
CONCLUSION
Aotearoa’s housing problems are among the most acute in the developed world. Housing unaffordability, homelessness, and gentrification are just some of the many housing problems that belie Aotearoa’s ideals of equality. Yet despite policymakers’ efforts to avoid these consequences, housing problems have only worsened in recent years due to a complex web of social, economic, and legal factors.
Consequently, the overall aim of this dissertation was to consider how housing inequalities in Aotearoa could be addressed and mitigated through legal intervention. In particular, this dissertation sought to explain why previous social, economic, and legal policies have been ineffective in addressing housing inequalities: because of the power relations within planning law that unevenly distribute property rights. This was portrayed through the introduction of critical legal geography theory to the Aotearoa literature. By utilising the geographic concept of “space”, this dissertation argued that the RMA’s model of participatory planning has long upheld one particular conception of “space” premised on restricting intensification of housing. This perpetuates housing inequalities because it ensures that existing homeowners’ property use rights prevail at the expense of other people’s property use rights to intensify their sections. Thus, Chapters 1, 2, and 3 were devoted to revealing that planning law’s regulation of housing was not neutral, and until this was addressed, housing inequalities were likely to remain.
Chapters 4, 5, and 6 attempted to go beyond the critical theory into the realm of crafting legal mechanisms that could address housing inequalities. However, to address the power relations identified in the previous Chapters, solutions would be most effective if they were not situated within existing legal structures. Thus, each legal mechanism sought to go deeper than previous policies like the RM(EH)AA, towards reconceiving property. Chapter 4 examined progressive property theory as a legal justification for conceiving property as including social obligations to others, while Chapter 5 conceived property as containing a redistributive element through the right to the city. Ultimately, this dissertation argued the best mechanism was one that combined the insights from legal geography, progressive property, and the right to the city: the ‘urban public trust’.
The urban public trust fulfils the aim of relieving inequality by imposing duties on the State to mitigate housing inequalities, for instance through purchasing property that can then be intensified or become State housing. It reconceives public property as containing duties to the community, which, unlike reconceiving private property, does not rely on significant mindset changes that are unlikely in a neoliberal political climate. However, it also is not situated within existing legal structures, thereby making it more likely to address the power inequalities in the distribution of property rights identified in Chapters 2 and 3.
The chances of an ‘urban public trust’ becoming mainstream in Aotearoa’s laws are admittedly faint, due to the incremental nature of the common law and the doctrine’s reliance on legal arguments not fully established in Aotearoa, like tikanga and the public trust doctrine itself. This reflects how critical legal
theories, including legal geography, have generally struggled to move beyond critique into the realm of everyday practice.
However, this dissertation advances that it is important for critical jurisprudence to consider solutions to the problems it critiques; otherwise, the consequences of inequalities like Aotearoa’s housing problems will continue to perpetuate. Thus, by introducing the idea of the urban public trust, and carefully justifying it based on other theories like progressive property and the right to the city, this dissertation hopes to ignite a wider discussion of how law might be used to mitigate such consequences.
In particular, this dissertation’s argument could be useful when considering similarly “wicked problems” to issues like housing unaffordability and homelessness.307 Wicked problems refer to public policy issues that are extremely complex to solve, because, among other things, society cannot agree on a formulation of the problem; there is no immediate test of whether a solution to such problems has succeeded; and the problems tend to be inextricably linked with other contested policy issues like wealth or poverty.308
Nowadays, the term is particularly used to describe climate change.309 Like housing inequalities, climate change has arguably worsened over time, because it is a collective societal problem that society is attempting to address without recognising that our conception of property remains stubbornly individualistic. Thus, this dissertation’s suggestion of reconceiving property to include public duties owed by the State may be more broadly applicable to addressing other wicked problems, regardless of whether or not the urban public trust is the specific mechanism to achieve this.
Therefore, this dissertation has argued that deeper solutions are required to address Aotearoa’s housing problems than simply reworking existing policies and planning laws. This argument could perhaps provide the basis for further research that pivots away from asking how law can address housing inequalities, to how Aotearoa’s constitution could more equitably distribute property. This indelibly invokes wider constitutional questions, such as the relationship between tikanga and Parliamentary sovereignty, and the role of the judiciary in establishing doctrines like the public trust in spite of the Westminster separation of powers. This dissertation has only scratched the surface on these questions; but enough to recognise that relieving inequality may require reconceiving property.
307 The origin of this term is unclear, but it is generally credited as first appearing in Horst Rittel and Melvin Webber
“Dilemmas in a General Theory of Planning” (1973) 4(2) Policy Sciences 155.
308 At 161-165.
309 Some have expanded on Rittel and Webber’s definition by terming climate change a “super wicked problem”: see Kelly Levin, Benjamin Cashore, Steven Bernstein, and Graeme Auld “Overcoming the Tragedy of Super Wicked Problems: Constraining our Future Selves to Ameliorate Global Climate Change” (2012) 45 Policy Sciences 123 at 124.
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H Hansard Reports
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I Other Reports
Rudiger Ahrend, Emily Farchy, Ioannis Kaplanis, and Alexander C. Lembcke What Makes Cities More Productive? Evidence on the Role of Urban Governance from Five OECD Countries (Organisation for Economic Co-operation and Development, Washington, 2014).
Kate Amore Severe Housing Deprivation in Aotearoa New Zealand 2001-2013 (He Kainga Oranga/Housing & Health Research Programme, Wellington, 2016).
Wendell Cox Demographia International Housing Affordability: 2022 Edition (Urban Reform Institute, Houston, 2022).
Chris Martin, Kath Hulse, and Hal Pawson The Changing Institutions of Private Rental Housing: an International Review (Australian Housing and Urban Research Institute, Melbourne, 2018).
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J Dissertations
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K News Articles and Internet Material
“Christchurch Council Rejects Govt’s Housing Intensification Rules” Star News (online ed., 13 September 2022, no author).Henry Cooke “Labour, National announce sweeping housing density law, three-storey homes without
consent” Stuff (online ed., 19 October 2021).
Hayden Donnell “The Character Protection Racket” Metro (online ed., 23 June 2022).
Will Harvie “How Bells' block was snatched away – legally” Stuff (online ed., 8 November 2014).
Peter Nunns “The consultation problem: Who submits on the plan?” Greater Auckland (2 March 2016).
Anna Whyte “New Zealand's housing woes labelled a 'human rights crisis of significant proportions' by UN” 1News (online ed., 19 February 2020).
L Other Material
Appellants’ Synopsis of Submissions on Appeal SC 149/2021. Accessed at https://www.courtsofnz.govt.nz/assets/cases/Submissions/2022/Hearing-date-Monday-15-Wednesday- 17-August-2022-Appellant-submissions.pdf.
Character Coalition “Submission to the Environment Committee on the Resource Management (Enabling Housing Supply and Other Matters) Amendment Bill 2021” at 3-4.Paul Conway, Reserve Bank Chief Economist “Housing (Still) Matters: The Big Picture” (speech to the
National Property Conference 2022, Wellington, 30 June 2022).
Environmental Defence Society “Submission to the Environment Committee on the Resource Management (Enabling Housing Supply and Other Matters) Amendment Bill 2021”.
Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” [1984–1985] I AJHR A6.
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