In the renovation of our small family cabin (about which I have previously written) I was faced with a moral dilemma that resulted in a dramatic change in the project scope of work. I was intending to tear the old cottage style roof off the cabin and replace it with a simpler, gable end roof that would allow me to use single sheets of steel roofing from peak to drip edge. In the end, I stayed with the original roof.
I had discussed the project scope and the available labour resources at some length with the wise and very helpful owner of the local building supply store and he offered his skeptical views on my ability to complete the project.
“He is not aware that I am a Master of the Universe,” was my unstated response to his probing questions. On the eve of starting my project, he looked me in the eye and said,
“Far be it from me to tell you how to do your project. I understand that you don’t want the hassle of dealing with building inspectors and so are not planning to take a building permit. That is your business. But you should be aware that four other projects have had stop work orders placed on them in the past year. There is enough local construction that the inspectors are visiting us twice a week and they will probably become aware of your roof project. If they see what you are doing, they will cause you to stop, and it may take you until winter to restart the project. Do you really want the cabin to sit without a roof when the snow comes?”
On this news I decided to take out a building permit and avoid such an untenable situation. When I discussed this change of heart with a friend who made his career in the construction business, he cautioned me.
“Taking a permit may open you up to a world of hurt and my advice is to change the scope of work to avoid the need for a permit. In the first place, the existence of a second cabin on the lot is a grandfathered condition and the inspections folks could suggest that you not only take off the roof but take the whole cabin down. Also, the cabin was built in 1953 and changed over the years without any building permits. What if, for example, the inspector demands a concrete sample from the foundation? It is unlikely, but are you prepared to handle a potential host of vexatious requests?”
He then regaled me with tales from his career that curled my hair. And that is how the cabin survived with its cottage style roof intact.
But it caused me to consider the role of regulatory review agencies in our complex culture. My unwillingness to deal with building inspectors is ironic because I was once a building inspector and, more recently, worked as an independent regulator to review and approve Canada’s largest energy infrastructure projects. One would think that I would embrace the need for inspection and approval. One would be wrong. Instead, I was grumpy about its intrusion into my private life.
So, has building code regulation moved from necessary but minimal control to vexatious interference and approval? A 2018 CD Howe study on housing in Canada concluded that, in some jurisdictions, new house owners paid $229,000 in added regulatory fees in 2016 versus 2007.
In Canadian cities in which the market price of new housing is more than 20 percent higher than the cost of construction, we estimate that, because of the barriers to building more single-family houses, homebuyers paid an extra $229,000 per new house between 2007 and 2016.
Through the Roof: The High Cost of Barriers to Building New Housing in Canadian Municipalities, C. D. Howe Institute, May 2018
Thomas Jefferson, author of the US Declaration of Independence and the third US president wrote, “The noblest motive is the public good.” The public good can be defined by concepts such as the Pareto optimum (allocation of resources at which the improved situation of one starts to be offset by the worsening situation of another), free riderism, and the benefit/tragedy of the commons. For example, how many roads with how many lanes should the City of Calgary provide to achieve a Pareto optimum in vehicular transportation? Should Canadians be allowed to free ride off US military protection without paying taxes to that nation? Should the owner of a fifty-year old home be forced to pay property taxes for the development of newer subdivisions (forced rider)? Regulation has arisen as an attempt to find the Pareto optimum between privacy rights on the one hand and public goods (healthy and safe environment) on the other.
But not everyone supports the same level of investment in public safety or a clean environment. To achieve the same level of public support, we would all need to have the same worldview. But this is not the case so the goal must be to satisfy the desires of the majority worldview. But what if the majority of people think that it is acceptable to enslave people of another skin colour to access cheap labour? Or what if the majority think it is okay to kill people of a certain religious persuasion to purify their race? Should everyone be forced to take a medical treatment in the absence of informed consent because otherwise their neighbour will be indignant? Does the majority worldview reliably dictate public good or are there moral fences beyond which certain views are never in the public good? How are the rights of the minority built into the definition of the public good?
John Stuart Mill gave a utilitarian definition of public good in stating that it is the greatest good for the greatest number. But is that best achieved by a free market of individuals or by collective attention to the commons? The Greek historian Thucydides favoured a commons approach when he described the Athenians.
“… they devote a very small fraction of time to the consideration of any public object, most of it to the prosecution of their own objects. Meanwhile each fancies that no harm will come to his neglect, that it is the business of somebody else to look after this or that for him; and so, by the same notion being entertained by all separately, the common cause imperceptibly decays.”
Thucydides
Whether the public good is best achieved by individual action in the market place or group action in the commons, it must be balanced against private ownership. The best historical explanation of the power of private ownership is given by Andro Linklater in his highly recommended book Owning the Earth. Linklater traces the history of private ownership of land from the Norman conquest of England to the present day and demonstrates that national wealth dramatically increased when countries followed the lead of England in ending their feudal landholding systems.
“No Freeman shall be taken or imprisoned or be disseised (removed from) of his Freehold, or liberties, or free customs or be outlawed or exiled or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgement of his peers, or by the law of the land.” Magna Carta
It took John Locke to understood and emphasize the linkage between freedom, equality and property rights. Without such protection, he argues, men would not be willing to enter society or allow themselves to become lieges of a king. Edmund Burke later stated that it is the ability of a landowner to pass his property to his children which “grafts benevolence even upon avarice”.
“Men being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent… The supreme power cannot take from any man any part of his property without his own consent: for the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires, that the people should have property…”
John Locke, Two Treatises of Government
My home, then, is my castle, and the question is, when does the regulatory power of the state intrude unnecessarily into the private interest I have in maintaining the integrity of my domains? Where is the Pareto optimum between legitimate government intervention and private interest? It was a burning issue during the covid epidemic, and it continues to haunt my desire for a new roof.
Should the local building construction authority be able to dictate the design of my cabin roof? I suppose other landowners need to be protected against the poor workmanship and inadequate designs of idiots like me.
So perhaps the government should be able to ask questions like, “Does your design carry the stamp of a professional engineer?” If I say “yes it does” should that not be the end of it? What if I don’t follow the engineering design? This suggests that an inspection might be in order. But what if they find something that is not part of the roof and is out of code? Can they require remedial work on that deficiency? What if that deficiency has been in place since 1953? Is it really a deficiency in that case?
The building inspector does his work by comparing the construction, in plan and in truth, to the National Building Code. But what is the National Building Code and who is given the right to review and propose changes to it? Can I protest that a double header is not required when the window is located under a beam? When fire spreads rapidly among homes that are built on narrow lots with five feet of clearance between them, is this a regulatory or construction issue? Where is the Pareto optimum between regulatory requirement and constructed cost? That is the $229,000 question.
I don’t have answers to these questions and I am not sure there is an answer. In the pursuit of balancing interests, sometimes things get unbalanced. I believe that the regulatory state is out of balance and am reminded of something Abraham Lincoln said to a young brigadier general sent to enforce peace in Missouri.
“Let your military measures be strong enough to repel the invader and keep the peace, and not so strong as to unnecessarily harass and persecute the people. It is a difficult role, and so much greater will be the honour if you perform it well. If both factions, or neither, shall abuse you, you will, probably, be about right. Beware of being assailed by one and praised by the other.”
I worry that our modern regulatory measures are so strong as to unnecessarily harass and persecute the people.
“They tie up heavy burdens, hard to bear, and lay them on people’s shoulders, but they themselves are not willing to move them with their finger.”
“The greatest among you shall be your servant. Whoever exalts himself will be humbled, and whoever humbles himself will be exalted.
“But woe to you, scribes and Pharisees, hypocrites! For you shut the kingdom of heaven in people’s faces. For you neither enter yourselves nor allow those who would enter to go in.
“Woe to you, scribes and Pharisees, hypocrites! For you tithe mint and dill and cumin, and have neglected the weightier matters of the law: justice and mercy and faithfulness. These you ought to have done, without neglecting the others. You blind guides, straining out a gnat and swallowing a camel!
“Woe to you, scribes and Pharisees, hypocrites! For you clean the outside of the cup and the plate, but inside they are full of greed and self-indulgence. You blind Pharisee! First clean the inside of the cup and the plate, that the outside also may be clean.
“Woe to you, scribes and Pharisees, hypocrites! For you are like whitewashed tombs, which outwardly appear beautiful, but within are full of dead people’s bones and all uncleanness. So you also outwardly appear righteous to others, but within you are full of hypocrisy and lawlessness.”
Matthew 23:4, 11-13, 23-28 ESV