Property Rights – Yours, Mine and Ours

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.

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“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.

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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.

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2 thoughts on “Property Rights – Yours, Mine and Ours

  1. You need to get your facts straight.

    There have been several attempts to amend Section 7 of the charter from day 1 to add property rights. It has never happened because of political nonsense – lastly I think because of a threat of a non confidence motion. Regardless, Section 26 deals with the issue and passes the responsibility over to the common law process. We all have property rights.

    “Protection of property rights – for individuals or corporations – should therefore not be part of the debating vocabulary of any city councillor.”….are you kidding. Don’t you think you should have a little more balance than that? A swimming pool benefits only the homeowner. It has nothing but negative efftects on the public good (waste of water, natural gas and hydro plus the harmful effect of chemicals. With this kind of flawed logic, the City of Guelph should never issue a permit for a pool again.

  2. Thanks John for your perspective on this issue. I appreciate you taking the time to add to the discussion and to give me the opportunity to add some clarity to my earlier post.

    I have never denied the existence of property rights — only that they are not protected by the Canadian Charter of Rights and Freedoms. A fine line, I know. Indeed, the enjoyment of property is an issue subject to common law.

    The debate as I see it — whether it is about trees, pools, noise, or property standards — is not so much whether property rights exist, but defining the point at which your property rights impinge upon my property rights and/or the collective public interest.

    Sometimes, “yours, mine and ours” are mutually beneficial. For example, if you improve and add value to your property, your neighbours get to enjoy the aesthetic, your increased assessment adds to the collective tax roll and you get a higher return on investment and greater enjoyment of your home.

    Municipal by-laws, on any issue, are an attempt to define that line. ie. a homeowner can have a pool, but it must be fenced for safety and meet public health regulations to prevent West Nile disease or other communicable illness. Also, you have the right to have pool party, but if the noise is excessive, your neighbour’s right to enjoy his/her backyard is compromised, hence, the noise by-law comes into play.

    Same with your yard. Grow anything you want. But if your hedge obstructs the sight line of pedestrians and motorists, you need to trim it to 36″. Enjoy your lawn, but don’t spray with cosmetic pesticides. You can keep a compost pile, but not an open one that attracts vermin. And so on…

    We draw these lines with municipal by-laws all the time. It’s not black and white. It’s always debatable whether the by-law is too lenient or too punitive.

    The tree by-law is no different than any other by-law the city has ever debated or enacted. Balancing the right to enjoy property and community well-being will be debated over and over again by every council on every issue. That’s our job. I bring one voice to the table. There are 12 others.

    In the end, whether the by-law passes or fails, it’s democracy at work.

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