Property Rights – Yours, Mine and Ours

July 26, 2010

Several years ago, when I was a Community Editorial Board columnist with the Guelph Mercury, I published a column examining the issue of property rights. The column was in the context of property owners having the right to demolish heritage buildings.   How do we define the line that is crossed when individual rights and the public good are in conflict?

The discussion is relevant again in the context of a proposed tree by-law in the City of Guelph, so I will repost some of the original column here.

*****************
“It’s no accident that private property rights are not part of the Canadian Charter of Rights and Freedoms.  Such rights were specifically rejected by the Special Joint Committee on the Constitution because the exercise of those rights could interfere with, or be found in opposition to, the public interest.

Section 7 of the Charter, gives us the “right to life, liberty and security of the person”. The Charter protects freedom of religion, free speech, freedom of movement, and many other freedoms that relate to Canadian values. We have the right to own property and the right to enjoyment of that property.  But when it comes to  rights related to property ownership – there is no “right to profit” or “right to do anything I want”.

Let’s be fair, as a property owner, I do want some rights. But so does my neighbour.  He has a right to enjoyment of his property – he can build a fence, create a garden, sit on his deck, build a pool and a whole lot of other things that I may or may not like. The limitations of those rights are set out very clearly in established zoning and property standards by-laws. I have those same rights, as does every property owner in the city.

If my neighbours property rights infringe on my property rights, we have a problem. If my neighbours pursuit of enjoyment of his property is a risk to public safety or health , we also have a problem. That’s where community standards and public interest come in. Public interest must always trump private benefit.

How do we judge what is in the public interest? Thankfully, we have very clear documents and by-laws about what our community values are to help us assess what is in the public interest. We have our Strategic Plan and another nifty little document called the Official Plan. It is very much like the City of Guelph Charter of Rights and Freedoms. It’s filled with really strong statements about what our community values. According to the Official Plan, we value environmental stewardship, heritage protection, high-quality architecture, cultural and social diversity and strong neighbourhood character.

Protection of private property rights is not mentioned as a community objective in the Official Plan.  Nor should it be.  It’s not in the Strategic Plan either.

Since when is it the role of a municipal councillor to advocate for private property rights? It should be the complete opposite. The purpose of municipal government is to make decisions based on community values and public interest. The Council Code of Ethics specifically states that members of Council must “recognize that the chief function of municipal government at all times is to serve the best interests of all the people.”

Protection of property rights – for individuals or corporations – should therefore not be part of the debating vocabulary of any city councillor.

**********************

The intent of the tree by-law is to preserve the urban canopy for the greater public interest — air quality, soil erosion, energy conservation, decreased urban “heat island” effect, wildlife habitat, quality of life, aesthetics, etc.  If we collectively agree there is good reason to have a healthy urban forest, then we collectively bear responsibility to preserve it.