Topic / Environmental Economics

The persons who become rich/The persons who become poor

Vernon Rive . 21/01/2012 10:40:16 a.m.

In the last couple of weeks I've been returning to some of my academic roots, wading through a bunch of readings on law, economics, ethics and philosophy.

Currently half way through Richard Posner's Utilitariansm, Economics and Legal Theory 8 J. Legal Stud. 103 1979.

This quote (p23, Posner quoting Frank Knight (Ethics of Competition and Other Essays, 1935) in turn quoting John Ruskin, Ad Valorem (1915)) jumped out as not a bad one for summer reflection...

"In a community regulated by laws of demand and supply, but protected from open violence, the persons who become rich are, generally speaking, industrious, resolute, proud, covetous, prompt, methodical, sensible, unimaginative, insensitive, and ignorant. The persons who remain poor are the entirely foolish, the entirely wise, the idle, the reckless, the humble, the thoughtful, the dull, the imaginative, the sensitive, the well-informed, the improvident, the irregularly and impulsively wicked, the clumsy knave, the open thief, and the entirely merciful, just, and godly person."

Late NY's resolutions:
1.Work on the thoughtful, imaginative, sensitive etc; less of the clumsy knave...
2. Finish this damn Posner article before we head to Urupukapuka tomorrow.

By Vernon Rive on 21/01/2012 10:40:16 a.m. | Comments (2) | Print

Testing the water: competing priorities for water takes in the Court of Appeal

Vernon Rive . 9/02/2010 6:01:09 p.m.

A Court of Appeal judgment delivered just before Christmas (Central Plains Water Trust v Synlait Ltd [2009] NZCA 609) is the latest chapter in a long saga of litigation dealing with the vexed issue of competing priorities for consent applications dealing with the same resource: in this case, South Island water.

The decision, judgment delivered by Baragwanath J, affirms the “first-in-first served” principle earlier established in the well-known Fleetwing Farms case, and the principle more recently laid down in Central Plains Water Trust v Ngai Tahu Properties Ltd [2008] NZRMA 200 (CA) that in circumstances where there are competing applications for the same resource, hearing priority is to be determined by who is “first to file a complete application”, and not according to which application is first “ready for notification”.

In Ngai Tahu, it had been left open as to whether the “first to file a complete application” test should apply to scenarios where the competing applicants were not “similar commercial competitors”.  Now, the CA has confirmed that the Ngai Tahu test applies across the board, subject to a potential – and slightly tantalising - “exceptional circumstances” rider, the limits of which will have to be drawn in subsequent cases, if not addressed by legislative reform.

At the heart of the Central Plains decision is an assessment of what the Court described as two competing “themes”: Theme 1 - “efficiency” and Theme 2 - “other policy factors”, further described as “s 5 and the broad concept of sustainable management”.

While accepting that both themes are recognised in Part 2 of the RMA, they were characterised as “each tending in different directions”: crudely summarised, the “efficiency” theme supporting a simpler, quicker, non-discretionary attaining of priority status, once an application that satisfies the basic requirements of s 88 RMA has been lodged (Central Plains’ position); and the “sustainable management” theme supporting a more nuanced, potentially discretionary route to attaining hearing priority which would allow, for example, decisions by Council officers to request further information, or defer the hearing of applications until other related consents are lodged, to influence the question of priority.

Baragwanath J and his CA colleagues reconciled the competing considerations by separating the issue of priority of hearing from the issue of priority of merits. Priority of hearing, it was held, should be determined by reference to s 88:

It is impractical to use as a measure of priority, even as to hearing, the mutable test of what a council officer, more or less cautious, more or less informed, might stipulate under s 91 (or indeed s 92). What matters as to priority of hearing is what Parliament has stipulated in ss 88 and 21, which provide the essential and unwavering architecture.

So, the first to file a complete application has priority of hearing. The second-in-time competing applicant will normally have an opportunity to submit against, and be heard in relation to the first application: this, the Court said, allows the non-priority applicant to have it say on, and for the council (or Environment Court on appeal) to assess, “the Part 2 and other (theme (2)) considerations rather than allow the theme (1) factors to deprive the community of a benefit which it considers outweighs them.”

The CA decision may not be the last word, however…as with the abandoned Supreme Court proceedings in Central Plains Water Trust v Ngai Tahu Properties Ltd, there is one more level of appeal available. Watch this space.

As the CA itself came close to acknowledging, the entire system of allocating fresh water in New Zealand is ripe for a bottom-up review, and reform. That process is winding up – slowly. In the meantime, first-in-first-served, with an application that meets the statutory requirements, but allows for gap-filling down the track, is the order of the day.

By Vernon Rive on 9/02/2010 6:01:09 p.m. | Comments (2) | Print

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I’m an Auckland based writer, researcher, lawyer and lecturer specialising in environmental, resource management and public law.  My particular interest is in the international law framework influencing domestic law and policy on climate change and biodiversity protection.  I'm the author of chapters on the International Framework, New Zealand Climate Change Regulation and Adaptation to Climate Change in the 2011 Lexis Nexis-published book Climate Change Law and Policy in New Zealand and the general editor of the Resource Management Bulletin.  I also lecture in Public, Resource Management Law and International Environmental Law at AUT Law School.