Thursday, 16 October 2014

“Avoid , remedy or mitigate”

As minister in charge of housing, building and National’s Resource Management Act, Nick Smith can now do whatever he likes to fix the housing affordability crisis.

Now he has his feet under the cabinet table again, he says that as a matter of urgency he will be amending the Resource Management Act to “address” the housing affordability issue.

Nick Smith was in charge of the Resource Management before, back in the nineties, for around three years. He did nothing.  He told me it was “a wonderful piece of legislation,” bequeathing it to a generation (upon his then departure) as the handbrake on land supply it has become.

He was in charge of it again just five years ago, when he “reformed” it a first time – delivering a chocolate-coated turd allowing an easier passage for government projects and easier theft of property rights.

He now says, again, after six years in aggregate in charge of this Act – longer than any other minister has had their hands on it – that it now needs “urgent” reform “to ease urban development.” [AUDIO]

National’s Resource Management Act (the RMA) governs the construction of everything on everyone’s land – everything from a carport extension to a new subdivision. It hands control over your hoped-for new construction to council planners.

The three buzzwords of the RMA are avoid , remedy and mitigate – three words always used together, as in the phrase above.

“Avoid , remedy or mitigate.”

The RMA is said to be “effects-based.” In practice, this  means it expressly disallows, without the express permission of the sainted members of the planning profession, any effects of any erection, reconstruction, placement, alteration, removal, demolition, excavation, drilling, tunnelling or deposit in, on or over land or water, or any disturbance of plants or animals in, on or under the land or water.

This is meant literally, with all the force of law enforced by zealots, and managed by council staff -- who must consider (between tea breaks) the effect of your proposed effects while “recognising,” “providing for,” “taking into account” and “having regard” to everything from kaitiakitanga to the Treaty of Waitangi, to the “maintenance and enhancement of amenity values” and “intrinsic values of ecosystems.”

In practice (as one fellow on Waiheke Island was once so ordered by vigilant council officers) this might mean a prohibition on mowing grass for fear it might disturb ferns mating. Or it might mean jail time (as another fellow in then-Waitakere City discovered) for cutting down a tree to get a driveway to your house.  Or it might mean (as virtually everyone has discovered who’s ever put their chequebook in this behemoth’s mouth) you face lengthy delays and consultants’ bills while all the various effects of your effects are reported on, recognised, taken into account and had regard to.

What it certainly means is avoiding in any new development any new “effects” that weren’t on your land before. If you can’t avoid them, then “remedy” them. If you can’t remedy them, then “mitigate” them. If you can’t avoid, remedy or mitigate, then think about a donation to a mayoral campaign.

This can sometimes be the simplest remedy.

If you find yourself wondering how anybody ever gets a Resource Consent to do anything under a law like that, then let me slip you a secret: so do most of the people outside government departments who get resource consents.

If you find yourself wondering what that does to your property rights – and who essentially does own that and on which you’ve been paying rates, well …


And if you now find yourself wondering how a minister who thinks this is “a wonderful piece of legislation” will be able to reform it in any way that’s worth a damn, you’re not alone.

We’re certainly not going to see the stake through the heart the RMA deserves. But perhaps he could start small – and affordablel?

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