How Fettered Is An Unfettered Discretion?

Abstract

Compulsory acquisition is a process whereby the Crown, or local government, can take land for public works or other specified purposes. Section 186 of the Resource Management Act 1991 grants the Minister for Land Information the discretion to allow privately owned utilities to exercise powers of compulsory acquisition. This paper argues that the Minister for Land’s discretion under s186 is not sufficiently constrained. Private property rights must be more of a fetter on the Minister’s decision. This paper analyses the legal jurisprudence which informed the early takings legislation and explains its impact on judicial decisions in modern times. Despite an extensive common law history of protecting property rights stemming from our legal ancestors, early takings legislation favoured economic progression. The ability to compulsorily acquire land was a necessary tool in this sense, and this mindset still hampers the current legislation. An analysis of Minister for Land Information v Dromgool highlights the little fetters existing on the Minister’s decision-making ability under s186 of the RMA and its perilous consequences for private property rights. Compulsory acquisition is asensitive topic. The coercive power of the Crown to take land can result in the sale of a principal place of residence with no acknowledgment of the involuntary nature of that sale. In order to acknowledge the violation of property rights inherent in compulsory acquisition, this paper argues that changes beyond increasing monetary compensation are necessary. The legislature and judiciary alike must identify a mechanism to recognise and compensate landowners for involuntarily selling their land.