Wednesday, 6 July 2011

To Don Brash, regarding the RMA

Don Brash has been a disappointment.

In recent weeks he’s been talking up the problems created by the National Party’s Resource Management Act (RMA), and talking down the ability of people to do business on their own property because of it.

That’s not disappointing, by the way. That much at least is excellent.

Little Hitlers”he called the bossy-booted small-minded vermin who get to act out their delusions of power under its wing. And so they are.  “The biggest single obstacle to economic growth in New Zealand” he called the RMA. And so it is.

He could have, but didn’t, point out it represents “the greatest theft of property rights since the war”—but I’m sure he knows that.

So like ACT leaders of the past, he can talk a good game about the various iniquities of the ACT. Yet (just like ACT leaders of the past) when he comes to actually advocating anything is done to remove this piece of postmodern fascism, he turns into blancmange.

Instead of advocating removal, abolition—a stake through its heart—instead of any of these things it’s crying out for he talks about “reform.”  Just like every other ACT leader has in the past.

What a pathetic, weak-kneed, misinformed disappointment.

When I challenged Don about this backsliding the reason he gave for this softcock soft soap was:
if Parliament were simply to "remove" the RMA I think you'd be left with the Town and Country Planning Act, which hardly seems to me to be an improvement. If the RMA were to be amended so that it was made abundantly clear that property owners should be free to do on their own property whatever they please, provided it does not jeopardise the property rights of others, that would be a major step forward.
This is very disappointing. Not to mention misguided and misinformed.

It would be like saying a rejection of Vladmir Putin would require the reincarnation of Leonid Brezhnev. Or (to put it in central banking terms) the overturning of the Central Bankers' "Great Moderation" would  require the reintroduction of Arthur Burns' profligate 1970s inflation. Or to put it in terms teenagers might understand, like saying a rejection of Justin Bieber implies we must embrace Britney Spears.

This is, of course, nonsense. Nonsense on stilts. It’s nothing more than a bureaucrat's false alternative.
If that's all the advice Don is getting about replacements for the RMA, then I suggest he very quickly change his advisers.

It’s true that the virus of town planning came to NZ in the twenties, but it didn’t really begin attacking the economy’s internal organs until recently.

Introduced by the National Party, the RMA has now been with us for just eighteen years. The Town and Country Planning Act (TCPA)*, which was also introduced by National (are you seeing a pattern here?) had been with us for around two decades before that.

These are hardly historically significant time periods over which to measure the failure of these two acts to “balance” property rights and the environment.

Compare that with the signal success of Common Law over seven-hundred years to protect both. That Don and his advisers are apparently so blithely unaware of this history is worse than disappointing. For a party, and a leader, who purport to stand for strong property rights this is simply unforgivable.

The point anyway is not just to advocate AGAINST the RMA (and then to accept what you're given by the bureaucrats and your advisers as a replacement) but to advocate FOR property rights, and with that advocacy to promote the system with around 700 years of success in protecting both property rights and the environment, i.e., common law.

As ACT Party candidate Cactus Kate once pointed out, common law represents and protects the “Freedom to do what you want on your property as long as it doesn't impinge on others' right of peaceful enjoyment of their property.” So why wouldn't ACT Party leaders promote that? Your guess is as good as mine. They don't, but they should.

The return to common law would eject both the RMA and TCPA regimes, along with all the bureaucrats, consultants and other parasites and hangers-on  that go with them, and represent a long overdue return to property rights and to sanity.

There are undoubtedly many ways to effect the change, but I'd suggest the simplest would be this:
  1. have enacted a codification of basic common law principles, such as water rights, profits a prendre, rights to light, air and so on (which protect many long-standing and long-recognised property rights destroyed by the RMA) and the Coming to the Nuisance Doctrine (which on its own represents a powerful antidote to the disease of the planners);
  2. place property rights in the Bill of Rights;
  3. set up Small Consents Tribunals to begin the process by which the change can be done gradually;
  4. while all this is taking place, have property titles amended with easements and covenants and so on to reflect the basic present District Plan provisions of height, density, and height-to-boundary (i.e., the very things in place when many property owners bought their present property, and on whose protection many of them rely) and make clear that property owners are now quite able  to negotiate among themselves for mutual relaxation, restriction or furtherance of these covenants.
None of that is beyond the wit of man to either grasp or introduce—certainly not someone with the intelligence of The Don.

Set that up and then go from there.

And if anyone tells you it's "not practical," then point them to the nearly 700 years in which common law was successfully practiced.

We owe it to ourselves and our grandchildren to return to it.
_ _ _ __ _
* (And despite the protestations of planning parasites, these two acts in the way they’ve been applied are really just kissing cousins, since the RMA has essentially become the TCPA with more restrictions,less certainty, and a great deal more expense—and many, many more delays. Think of it as the postmodern TCPA—the TCPA plus kaitiakitanga.)


  1. Scott Peterson6 Jul 2011, 16:38:00

    I'm not sure I get your central thesis: isn't " owners should be free to do on their own property whatever they please, provided it does not jeopardise the property rights of others..." much the same thing as "Freedom to do what you want on your property as long as it doesn't impinge on others"?

    I agree that a return to common law would be preferable, but is that very likely, given the current and foreseeable state of Parliament?

  2. Scott, if Brash just reflects on the political landscape as it stands (with Keysel leading National) then he'll never get anywhere. He should aim for the ideal and keep advocating it until Keysel compromises his way to it.

    PC - I hope you've sent this to Lindsay.

  3. Richard McGrath7 Jul 2011, 09:33:00


    Politics is often seen as the art of the possible, but that usually involves compromise and selling out.

    A return to common law would be a far, far better situation than we have now, so why not advocate it instead of some anaemic, pissweak tiny step in that direction which the government will ignore.

    If something radical is proposed, such as burning the architects of the RMA at the stake, or reverting to common law solutions for property rights issues, the Molesworth Mafia are more likely to lift their heads out of the trough and spend a few seconds wondering what the hell a property right is.

    The time for asking the trough-dwellers nicely has long passed.

  4. Peter, how about you turn up ACT's regular meetings in the cafe/bar in New Market, where you can raise anything there with ACT's MPs? Surely you can talk to Don , Rodney or Roger there. It would be different talking to them in person rather than some Facebook message exchanges. If you're interested than I can alert you to the next one so you can come in and meet those ACT MPs.

  5. Or we could be even more radical and go for what the RMA was originally supposed to be before Palmer, Hulun & co deposed the Rogernomes and took over the RMA.

    An MP from the time told me originally the RMA was to impose property rights and decision making by the property owners & local communities, not central planners. The left of Liarbore then changed it completely. The Rogernomes that were left managed to delay it so it was left with the Nats, as 'surely they would see the light and take it back to what it was supposed to be'.

    To the shock & horror of those who delayed it, the Nats passed something even worse than the Palmer/Hulun nightmare they were trying to avoid!


  6. have enacted a codification of basic common law principles
    place property rights in the Bill of Rights

    A statutory solution is by definition the opposite of a return to common law. What you seem to want is not "common law", but a particular set of legal principles that have their origin in the common law.

  7. The RMA was preceded not solely by the Town and Country Planning Act but a raft of statutes intended to obliterate the application of the common law. (Clean Air Act, National Development Act etc..)

    The creation of these statutes was, and remains, an unnecessary act. The old tort of Private Nuisance was an adequate method of redress for environmental deleteriousness. The Esso Petroleum case of the late 1950s established the principles of environmental reddress but, importantly, limited the range of possible plaintiffs. Contrast this with the RMA which allows an almost universal class of persons to object/bring suit where there is a potential but not necessarily a recorded act of environmental degradation. This means the RMA pivots on the fear of (not even the likelihood of) actions which MAY harm the environment, while entitling a large class of persons to wail about it.

    Where fear is elevated to a legal principle and almost anyone is entitled to object, private property rights are an early casualty.

    The RMA is corrupt in its very make up. It pays to ignore the atrocities committed in its name and to focus on its core, being, everyone can become a dictator in the life of others! This Act cannot be softened it can only be removed.

    Chris R.

  8. The RMA cannot be softened, it can only be removed.

    It is wrong to see this statute as a mere replacement for the Town & Country Planning Act. It did replace the T&C along with a few other statutes, the National Development Act, Clean Air Act etc..

    But, the RMA dissolves traditional causes of action and canvasses new territory.

    In the 1950s the Esso Petroleum case comprehensively dealt with the old common law tort of private nuisance. It defined the tort as an admirable suit where one's life/property have suffered environmental degradation. Most importantly the case established that those bringing suit needed to be proximate to the cause (in this case smuts in the air) and to have SUFFERED from the alleged nuisance. If these criteria were not established there was no suit against the perpetrator and therefore the perpetrator could continue as always, on their private purpose and personal property.

    I continue to believe the tort of public nuisance to be an adequate, just and effective weapon where a party has suffered from environmental damage.

    But: The legislature in the early 1990s knew better. The RMA fails to address the criteria in the Esso case and grants a right for redress to the community itself through local authorities, not simply following ACTUAL damage but on the FEAR there MAY be damage, thereby trashing any notion that a party can operate their own ventures on their own property at anytime.
    Hence: if Joe Hippie believes a venture MIGHT harm somebody (not necessarily him!) then he can begin a suit through the objection process.

    The above paragraph does displays a transfer of ownership rights from the individual to the collective. The RMA must go, in its entirety.

    The common law remedies are all valid today, I just happen to favour private nuisance.

    It is easy to perceive how in a country where the state values our lives and limbs, think ACC, a piece of Stalinesque filth like the RMA can be conceived.

    The great big allegedly Maori word beginning with a "k" apparently defies definition. Some say it means "stewardship" without directing who is the other words it is a fluffy bit of garbage.

    The RMA is an insult to those who genuinely care about the environment as it reduces their concerns to neighbourhood squabbles and collectivised interests, while anyone who values his/her freedom has been the victim of a very large theft perpetrated by the state and is equally insulted.

    Wonderful, just wonderful!

    Chris R.

  9. Further to my post during the weekend I have been mulling the now forty years since the introduction of ACC legislation. This Act trashed common law remedies relating to personal injury by accident. It ascribed arbitrary values to injuries and loss of enjoyment of life.It created a bureaucracy which replaced the methods of private sector insurers in the name of what? In the name of the state claiming control and ownership over its citizens.

    If the RMA is pondered in this manner its advent was never a surprise nor a big leap forwards in collectivised thinking or governance.

    If we're not permitted to own our bodies and our injuries it stands to (sick) reasoning that we cannot be allowed to own our realty or our accoutrements.

    Brash won't have the courage to repeal ACC legislation let alone the RMA.

    Chris R.

  10. I have been wrestling with this problem since the mid nineties. And I grow more pessimistic by the day.
    Simon Upton correctly observed that for most NZers (now the huge majority) the ideal district plan has only two rules. 1. I can do what I like with my land. 2. You can do nothing with your land unless I say so.
    In other words we have developed a culture where everyone believes they have the right to untramelled intervention at NO cost.
    Hence. if ANY politician at this time suggests reform that threaten this collective control of land then the Green vote will immediately rise to 30% because they would be the most vigorously opposed.
    So if any of you were in a position to drive a stake through the heart of the RMA would you do it?
    And if not – how do you turn the culture round.
    I have a process but no one wants to touch it. The risks are so high.


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