Sunday, October 4, 2015

Frank Newman: Loopy rules

Local Government Minister, Paula Bennett, is tackling what she calls loopy rules and has set up a Rules Reduction Taskforce to look into the matter. It's appropriate that a review into loopy rules should be led by the Minister of Local Government, given it seems to be the source of many dumber than  dumb rules.

Here's a case in point, as reported by the Nelson Mail. It involves the Nelson City Council and a fence building property owner. To most people the fence looks like an ordinary fence, about 1.8 metres high with wooden palings, the sort you buy from your local DIY store.

Unfortunately the DIY property owner ran into trouble with the local council because, wait for it, the gap between the fence palings was less than 25mm. The offending fence had gaps of about 10mm (or the width of a builder's pencil).

 Council compliance staff responded to the alarm after receiving a complaint about the fence from a member of the public. They descended upon the property and proceeded to issue an abatement notice (no doubt prepared by the councils lawyer at great cost), which demanded the offending property owner correct the breach or remove the fence.

The homeowner appealed the abatement notice in the Environment Court, and in pre-hearing mediation it was decided that the owner should apply for resource consent to make his fence "legal". It seems the matter has been settled and the less than 25mm gaps will stay. 

According to the council, the point of having gaps of no less than 25mm is to create safer communities. Their logic is that having an "open" fence is so people on the street can look through to the house and those in the house can look through to the street.

How stupid is that? The whole point of a fence is to create privacy! And why does some council policy planner twiddling their thumbs between tea breaks think they know better than a homeowner about the spacing of their fence palings?

This sort of thing should just be laughed out of existence, but it's pretty much the norm from local government. Unfortunately, the very people we elect to protect us from this insanity appear to go a along with it and offer weasel words when confronted by the media.

In this case Nelson's mayor said, "From time to time council's view isn't the mayor's view...This one just makes me grumpy. My personal opinion is that I'd rather ratepayers and councils spent time and money on more important things than regulating fence paling gaps. If [the] fence had been allowed to remain as is, without modification, that might also suggest there is little value in the enforcement approach."

The mayor does not seem to appreciate that she was not elected to defend council staff and stupid council rules: She was elected to protect the public from council staff and stupid rules. It's plainly absurd that the mayor seems to think she is powerless to bring some sense to this matter. Clearly the mayor trusts the public to elect her to office, but she does not trust them to decide on what is an appropriate gap between the palings on their fence.

Herein lies the danger of bureaucrats and why we need to be protected from them. Their solution to every problem, real or imagined (usually the latter), is more regulation, and when that does not work, their solution is more regulation.

In this case council staff was responding to a complaint. While, "Don't be such an nutcase" would be an appropriate reply to most complaints made to councils (especially by recidivist complainers), council staff do tend to be more polite and they need to demonstrate that they have taken the "appropriate action". That means arriving with their clipboards looking for a resolution that first and foremost protects their own butt from accusations that they didn't do anything, and secondly provides a plausible reply to the complainant. In most cases that involves subjecting the offending landowner, like a villainous fence builder, to a great deal of form filling and box ticking, as well as thousands of dollars in council fees, and even more money on lawyers only too happy to skin the person in trouble of a few thousand dollars for exchanging long letters with the council about learned issues like a fence palings that cost a few dollars each.

Minister Bennett has a challenge on her hands if she thinks she can put an end to loopy local government rules, but she deserves every encouragement.


Wellington Haiku said...

Yes, the council staff responded to a complaint. Do you think that they should not do so? Or that they should respond by making up their minds on the spot, without going along to look, checking what the rules were, or asking the perpetrator for his side of the story?

Presumably you saw the Dominion Post fence story that transfixed Wellington last week. In that case, should council staff and the Environment Court have simply told the couple whose view was blocked by a neighbour's fence not to be nutcases?

You say it's stupid to require fences to be see-through. Imagine a street where all the houses are concealed behind solid fences so that the street itself is completely closed in. Certainly, each house benefits from privacy. But does that look, to your imagination, like a safe, friendly, welcoming environment? A street where you'd want to live and raise children?

Frank Newman said...

Of course I don't think Council should not respond to a complaint. The point is council staff should have more regard to the relevance of a complaint and less regard to protecting their butts. That was pretty clearly stated in the blog. I spend 6 years on a local council. I know very well how much time council staff waste on nutcase recidivist complainers who have nothing better to do than complain abut what other people - every neighbourhood has them.

The Wellington case has no relevance to my commentary.

I said it was stupid for council planners to think they know better than property owners regarding the gap between fence palings. It is stupid and what one would expect from North Korea, not a democracy where we fool ourselves into thinking we have freedoms. There are far too many know it alls who think they have a right to impose their views on others. If property owners want open fences then that's what they will build. As it happens, in this case the property owner had dogs and he did not want kids putting their hands through the fence. I would suggest that the property owner is better placed to make that judgement than a council office worker or busy-body dreaming about "a welcoming environment".

Wellington Haiku said...

Not seeing much if any difference between "The Council should not respond to a complaint" and "The Council should have regard to the relevance of a complaint". Your comment about time wasting suggests that you think "having regard" does seem to indicate that some complaints should be pretty summarily dismissed.

Which is great if you're the complained-against, not so great if you're the complainant. It's not self-evident that it's always the complainant who should be disappointed.

That's the relevance of the Wellington case, where people also complained about somebody else's fence building. It shows that the generalized conclusions which you purport to draw from the Nelson case are not in fact generalizable. While, undoubtedly, some complainants are "nutcase recidivist ... know it alls who think they have a right to impose their views on others" - others are not. And even those who are, may sometimes have a valid complaint.

So Council staff have to decide which is which. How do you propose they do that, other than by considering what the rules say and whether the facts of the case accord with them? Do you really think you'll get better, clearer, more consistent and predictable outcomes if Council staff are instead left to use their own judgement to make snap decisions?

M Bailey said...

Wellington Haiku, there is some conflation about fencing matters in this discussion. I am not familiar with the details of the Wellington case but that sounds like a clear nuisance issue: the complainant's private property rights (their view) has been interfered with by erection of a new structure. It is a different issue when Councils think anyone walking past a property has a right to see into that property. Frank has pointed out the absurdity of not allowing property owners to decide whether they would like appropriate fencing for their needs. Perhaps we can see how ridiculous the policies have become and the point of the article: the need for LG reform.

Our experience with City Councils has revealed some preposterous policies. For one of our set of units on a busy road the Council planner made us put in plants instead of a fence. The idea was to "facilitate interaction between the tenants and passing pedestrians". After a fortnight we had complaints from all the tenants about the lack of privacy and security as well as a loss of $500 worth of plants due to vandalism. But the Council think they know best and as usual are happy for us to pick up the tab.

Anonymous said...

The point you may have missed is that the Mayor was a member of the Rules Reduction Task Force.

Alan said...

It seems to me that Wellington Haiku misses the point. It's not whether or not the council functionaries should have followed up on the complaint but rather whether or not such a stupid law should have been made by the council in the first place. As I have stated previously, most of our elected councillors are laypeople who quite naturally look to their staff (the bureaucrats) for advice and guidance on matters of council governance and law. Unfortunately, most bureaucrats are not without bias and have a propensity to push for further trivial laws and complications thus enhancing their own importance and ultimately requiring more and more bureaucrats to administer the trivia.

paul scott said...

I am pretty sure this is a joke Frank made up just to tease us with.
No Council can be this absurd can it ?

Unknown said...

The story goes that a complaint was made.

Council staff often say this. And then go on to say they can't state who made the complaint because of privacy issues.

When in fact, it may well have been a council officer (perhaps someone involved in the drafting of this law) who drove by it and decided to take action.

But they never like to admit to this, so they often use the ruse of a 3rd party complainer.

MadFisho said...

Great article Frank, couldn't have written it better myself! I hadn't heard of this issue but all too often we seem to employ 'idiots' in such places as local councils who are sadly lacking in their fair share of 'common sense'... and it seems to be in ALL councils that I have had dealings with!

Only thing I'm left wondering, is Wellington Haiku a recidivist complainant or a council worker?