The political ramifications could be
interesting. Some of the groups are small, but others have previously organised
demonstrations of thousands of people in their own areas. They have a range of
issues, but as a coalition they are calling for three things.
1. Fair compensation when government
legislation, such as rezoning or native vegetation law, reduces the value of
private property.
2. An end to developer donations to
political parties.
3. Restoration of the planning powers of
local councils, possibly by entrenching councils in the constitution of NSW.
Most members of the coalition are in one of
three broad categories. The first opposes the way the State Government has
taken planning powers away from councils to enforce urban consolidation on
municipalities that, as the Herald’s front page showed on Tuesday, are unsuited
to it and don’t want it. This category includes the Coalition Against Private
Overdevelopment, which is fighting the replacement of the Royal Rehabilitation
Centre at Putney with 795 flats.
The second category of groups is located in
western Sydney,
often representing people with blocks of land from two to 10 hectares, of whom
there are many thousands, who are protesting not against urban consolidation
but the way government is going about releasing more land on the fringe. One
common complaint is that the process is being done to assist big developers and
disadvantage smaller ones. Here, too, the State Government has crushed
obstructions from councils. This category includes Hands Off Private Property
in the north-west, formed last year when the Government proposed to turn
properties zoned as awaiting urban development into green zones. The group
managed to stop what would effectively have been the state theft of a big
proportion of landowners’ assets.
The third group involved in the rally are
farmers, many of whom have seen their livelihoods and assets devastated by the
State Government. The biggest cause of this is native vegetation legislation,
which prevents farmers clearing even woody weeds. Farmers are, naturally, upset
and this year have been blockading properties in western NSW to prevent
officials from the Department of Natural Resources from entering to investigate
suspected illegal clearing of woody weeds. (Officials have the right to enter
properties at will.) Another big rural issue at the moment, as reported by
Daniel Lewis in the Herald on December 16, is the Government’s theft of water
that irrigators have been promised and have paid for.
The legal situation regarding compensation
for the state theft of property rights was considered in a 2003 paper by Bryan
Pape, a senior lecturer at the University
of New England’s law
school. The State Government is legally obliged to pay just compensation if it
takes property, but has no obligation at all if it only goes halfway, as it
were, and reduces a property’s economic value by taking away some of the usage
rights previously attached to it. These might be the right to remove scrub on a
farm, or in the case of a heritage listing, the right to build another storey
on a house (subject to council approval). Pape wrote that “there appears
grounds for characterising an uncompensated taking as an unchallengeable tax.
Such an implicit tax may be regarded as invalid.”
One farmer who will be at the rally is
Peter Spencer, who lost the use of about 90 per cent of his property because of
native vegetation law. Backed by a new group called the Constitutional Property
Rights Association, he is pursuing legal action against his council, because
the rates it charges him are still based on the assumption his land is
economically productive. He also hopes to take on the Federal Government in the
High Court. Although native vegetation law is a state matter, Canberra contributed a great deal of the
money used to implement it and now takes credit internationally because
affected farms such as Spencer’s are carbon sinks. The Federal Government is
possibly more vulnerable to legal action than the states for uncompensated
“regulatory takings”, the term used for the modern version of what
was once called the nationalisation of private property.
Regulatory takings have been the subject of
successful counterattacks by the community in parts of the US, starting in Oregon, the home of urban consolidation,
when landowners found the value of their properties under attack from
restrictive rezoning by a state government in pursuit of the urban
environmental vote. Some other countries, such as Britain, have long taken a much
fairer approach: farmers are paid “stewardship fees” as compensation
if they suffer financially in order to achieve an environmental outcome desired
by the wider community.
It is the way of democracy that governments
can get away with a hell of a lot, but eventually they go too far and the
people turn on them. The big question is how far is too far. Turnout at the
February 11 rally could provide an indication.
Here are the groups supporting the rally so
far: the Aboriginal Housing Company, Alex Avenue Residents Action Group,
Anti-Transmission Tower Action Group, Coalition Against Private
Overdevelopment, Hands Off Private Property, Friends of Ku-ring-gai
Environment, Keep Our Property Private, Land and Asset Protection Group,
Marsden Park Schedule Lands, North-Western Railway Alignment Injustice Lobby, Property
Rights Association (NSW), Rally Ku-ring-gai, Riverstone Release Area Scheduled
Lands, Rouse Hill Heights Action Group, and Save Our Suburbs.
mduffy@smh.com.au