The order is rapidly fadin’. Responding to the impact of climate change on property with reference to the Aotearoa New Zealand context
| Pages | 19-34 |
| DOI | https://doi.org/10.1108/JPPEL-03-2019-0007 |
| Published date | 13 August 2019 |
| Date | 13 August 2019 |
| Author | Mick Strack |
| Subject Matter | Property management & built environment |
The order is rapidly fadin’
Responding to the impact of climate change on
property with reference to the Aotearoa
New Zealand context
Mick Strack
School of Surveying, University of Otago, Dunedin, New Zealand
Abstract
Purpose –This paper reviews the relationshipbetween property and the changing coastal environment. It
looks at issues aroundthe mismatch between the protection of private property rights implicitin our property
law, which assumes stability and permanence,and the protection of public rights and environmental values
expected of coastalland, which is increasingly vulnerable to climatechange hazard. Issues of retreat from the
coast, perhapswith compensation and incentives, will need to be dealt with.
Design/methodology/approach –New Zealand situations and examples are used to illustrate the
conflictsbetween secure property rights and changingcoastal land.
Findings –The effects of climate change on coastal land will be significant. This era of environmental
degradationand climate change will require a significantre-ordering of property law. Changes in coastal land
will require propertyowners to adapt their use and occupation of the coastal zone, if necessaryby retreating.
Similarly,local authorities will need to be proactivein planning for coastal land changes.
Social implications –Property will need to be re-imaginedto support public and environmental goals for
the coast.
Originality/value –This paper extends other discussionsabout how property law and the protection of
propertyrights is a barrier to implementing climate changeresponses.
Keywords Planning law, Property law, Compensation, Climate change, Coast, Managed retreat
Paper type Conceptual paper
Introduction
There is a growing international literature connecting property law and climate change[1][2].
As coastal erosion and sea level rise relentlessly eat into coastal property, coastal users,
proprietors and local authorities will be required to negotiate conflicts. Along with most
other coastal nations, Aotearoa New Zealand is facing the adverse effects of climate change
and sea level rise. Its property laws seek a similarly high level of certainty, stability and
security as other western developed nations. This paper looks to Aotearoa New Zealand
situations and cases to continue the dialogue about the evolution of property law to address
climate change impacts.
Climate changewill have wide-rangingeffects on how we inhabit thisplanet. Life on earth
is not going tobe like it was before. It will requireserious adaptation. Industrial development
and energy use throughout the past few centuries have been the main drivers of climate
change, and at leastin developed nations, this same periodhas seen the evolution of property
law on a trajectory towards more secure private property rights and away from communal,
public and environmental responsibilities. In western countries, strong private propertylaw
has supported development and investment in land and resources fuellingeconomic growth,
but it has alsocontributed to detrimentaland exploitative landuse decisions.
Impact of
climate change
on property
19
Received12 March 2019
Revised24 June 2019
Accepted9 July 2019
Journalof Property, Planning and
EnvironmentalLaw
Vol.12 No. 1, 2020
pp. 19-34
© Emerald Publishing Limited
2514-9407
DOI 10.1108/JPPEL-03-2019-0007
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/2514-9407.htm
Access to land is essential to accommodatepublic and individual life: we all need land on
which to live, work and play. The right to land can be providedfor in many different ways:
by allocating private freehold title; by providing lease and rental arrangements; or by
assigning public land for designated uses for occupation, production, trade and
conservation. Land as property[3] is always likely to be one of our major investments, and
the right to property is often claimed as being a fundamental human right[4]. There is an
expectation of security of title such that investment in land is seen as a secure investment.
Central governmentsprovide security in the guarantee of title, support of a land register and
economic support of the land market. But like any other “investment,”property cannot
always be one-way profit-producing. Sometimes, land values drop significantly, for
example, when local resources are depleted (production from a mine stops), when major
employment opportunities collapse (a factory closes down), when the social environment
deteriorates (a gang moves in next door), when a natural disaster strikes (an earthquake
makes the land too unstable for construction) or when landis lost by inundation or washed
away by the sea. In all these situations, land value drops, and there may be requests for
compensation. In some situations,compensation can be offered for natural disaster impacts.
For example, subsequent to the Christchurch earthquakes and the instability caused by
liquefaction, state compensation packages were arranged to allow for the re-settlement of
affected residents[5]. However, compensation is not usually available for socially or
economically inducedland value losses[6]. Furthermore, private insurancecompensation for
natural hazards (floods, land slips, sea level rise) may be increasingly doubtful as land
becomes increasingly vulnerableto certain hazards. As an insurance industry spokesperson
has warned: “As these things become more certain,our appetite to offer insurance reduces.
We insure people against risks –not certainties”(Davies[7] as cited by Cann, 2017).
Despite many denials[8], we are well into an era of climate change. The evidence for
change includes major ice mass loss in the Arctic; the increased incidence of storm events;
some regions becoming wetter,some dryer; and an increasingly dynamic coastline resulting
in coastal land being eroded by the sea. Land is increasingly at risk of big changes in
character, such as being washed into the sea, being flooded, or being denuded. Land is
inherently unstable, which is why we have suchremarkable and diverse landscapes. In the
past, the changes to the land happened by slow geological processes of uplift and erosion.
Changes now are morerapid and certainly observable.
In spite of some expectation that we understand our history, we tend to be remarkably
short-term thinkers. We are confident with the statusquo, we expect things to stay as they
are. Similarly, property law is intendedto provide stability and security.But coastal land is
not stable. The common law doctrine of accretion and erosion provided a satisfactory
response to dynamic water boundaries in the past. Coastal boundary movement is now
usually a one-way processof erosion. The old laws are not as appropriate now. The evidence
is clear and plain: coastal land is vulnerable to loss and inundation, and purchase, use and
occupation shouldbe at the buyer’s risk.
Evolving property law
Property law is primarily focused on providing security and certainty and protecting the
rights of proprietors to assert their freedoms to use, develop and occupy their land as they
wish. Because of this focus on rights, property ownership encourages a sense of
entitlement [9]. Significantly, proprietors expect that property values will continue to rise.
The old market analysis maxims of supply and demand are regularly recalled –“they are
not making any more of it”and “the population is always growing”–to persuade them to
expect that their “investment”in land is secure, and anyway, the government will always
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