RMA: From back when abolition wasn’t just a pipe dream… [updated]

“Every law that was ever written opened up a new way to graft.”
    - Robert Heinlein, 1949

“Landscape consultants, registered arborists, architects, environmental
consultants, iwi consultants, lawyers, planners … the number of snouts
in the trough is huge, and all with a vested interest in retaining current
practices under the [Resource Management] Act.  These parasites will
continue to proliferate and raise costs to all until the Act is abolished.”
- Peter Cresswell, 1996

Last weekend I stumbled across a few things back from the days before the Resource Management Act became a sacred cow, reminding me as I re-read them that the more things change in this world of benighted political restraint of rights and trade, the more they stay the same.

Moving my archives from one place to another, I stumbled on an old folder from the late 90s with RMA/Common Law on the spine – and when I blew the dust off, top of the pile inside was a report from 1996 titled “The Impact of the Resource Management Act on the ‘Housing and Construction’ Components of the Consumer Price Index.” It could have been written yesterday, and would have been read just as little.

Commissioned by a Reserve Bank concerned about rapidly rising house prices, especially in Auckland (stop me if you’ve heard this before), it found that the impact of National’s recently-introduced RMA was already severe:

The Principle Findings of this Report Are:

• heavy-handed regulation of the supply of residential land carries a burden of significant economic and social costs
• over-regulation affects prices, construction output and finally employment
• those same price rises make a significant contribution to the CPI, which, in turn, forces a response from the Reserve Bank, which means that these distortions impact on the competitive performance of New Zealand's trading sector
• These costs fall most heavily on those least able to deal with them… Those already comfortably settled, benefit from the increased capital value of their properties. Those struggling to become established, find themselves paying higher prices for housing, or are priced out of the market altogether.
• The RMA, as it has been, and is being, implemented, has imposed massive extra costs on the residential housing market... These costs could be greatly reduced without diluting the environmental objectives of the Act
• [Land] owners have lost any clearly defined 'right to use’
• The major cause of ongoing increases in housing costs is the [Auckland Council]’s policy that Auckland's growth should be managed by a policy of containment … Opinion surveys and Census Data indicate that [this policy] seeks outcomes which the majority of Aucklanders do not want, and are likely to resist
• Censorship of architectural design in many parts of the city has led to increases in costs and charges
  which are sometimes massive, especially in some of the poorer neighbourhoods

Nearly twenty years after the report was commissioned, and nearly twenty-five since National introduced the RMA, nothing has changed.  (Authored by the late Owen McShane, you can find it online here.)

Returning to New Zealand myself in 1995, I was horrified to find National’s Act of architectural censorship sitting athwart my clients’ property rights making housing a more expensive proposition for everyone, and quickly penned a piece I called ‘Resource Management and Environmental Fascism.’¹ In my archived folder, I found a handwritten 11—stage plan sketched out in 1996 showing all the exuberance of youth – a plan to get rid of the damned thing before the entrenched vested interests it engendered had become too powerful to remove, and too addicted to the graft it opened up.

Here’s the short version²:

• Progressively replace council administration of district planning with restrictive covenants on land title deeds. Such covenants to begin by reflecting the rules of existing district plans with their mush removed (i.e., all such restrictions to be objective, measureable and rights-based) and to allow later negotiation and registration of further agreed mutual restrictions by private land-owners. [As in “I’ll trade you my view over your parcel for your right to keep the shade from my tree.”]³
  • allows consistency with land-owners’ present expectations based on district plans, moving gradually and voluntarily to the embodiment of common law principles in titles
  • approximates the type of covenants a ‘far-sighted developer’ might have introduced
  • removes activities with which ill-equipped council planners would like to ‘participate’ in design
  • allows land-owners the freedom to renegotiate arrangements between themselves over time, and so build up a network in each neighbourhood of predictable and freely-chosen guidelines for future development
  • eventually
• Establish doctrine that all new development liable to tortious suit under civil law, on the basis of the ‘English Laws Act, 1858’ that formally brought common law to NZ.
• Abolish monopolistic legislation protecting industry groups, e.g., ‘Architects Act, 1963’
• Enact a codification of basic common law principles outlining doctrines like ‘coming to the nuisance’ and rights to light, to air, to support, to undisturbed possession etc. to which all land-owners and their neighbours will now be both bound and protected.
• Abolish Resource Management Act…
• Hang/guillotine all council planners…
• Set up a mechanism whereby title deed restrictions on individual titles (or on districts/precincts/ subdivisions) can be removed/introduced/amended by mutual agreement
  • this recognises the fact that some of the original deed restrictions will have been imperfectly done and often onerous, but properties were bought
  • such amendments may involve, e.g., a private deal involving compensation to affected parties³
  • a public vote to remove/amend deed restrictions in a clearly defined district such as a street, catchment area or specific region. Any such removal/amendment to be relevant only to the specific district[s] in question ⁴
• Maintain an ongoing process of education in the main outlines of property rights and the foundations of common law, common knowledge of which once protected folk from the incursions of the wankers who wrote the RMA, but is now all too rare, especially in places like the judiciary where it should be a prerequisite.

Would I change any of it now? Well, since they sell much easier, I guess I’d now make it a 10-point plan. 

And, since the area has become a seriously confused and confusing political football, I might have used Epsom as the obvious example where restrictive covenants based on existing mush-free parts of the district plan without much change would be welcomed by existing property-owners as a starting point whereby their property rights could begin being permanently and properly protected.

And maybe I’d now suggest shooting all the planners. Given what they and the Act that produced them have done to this country in the last quarter-century, hanging is too good for them.

And just think of how popular it would be on reality TV?

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1. And, since it was written back in the days before computers fully usurped typewriters, I have it here only in very marked-up hard copy. But if anyone is sufficiently interested, you might persuade me to retype it and post it here later. [UPDATE: See below]
2. In full, it was even more ambitious. My heading says ‘Proposed Staged Abolition of RMA, Building Act, Local Government, Department of Conservation & Ministry of Environment’  – all of which (apart from Local Government) had barely been around long enough back then to become sacred cows. And my text describes staged privatisations of national parks, state forests, beaches etc in a way and in a form that protects existing private and public interests. Since my retyping fingers are not warm after the holidays however, I’ve only posted here the parts specifically related to RMA abolition…
3. And only affected parties. One of the earliest and best results of the stepped plan will be that effects of development only need be considered on those actually affected by those actually affected. Neither planners nor distant non-neighbours need be considered.
4. Although this process is used in the non-planned city of Houston to change title deeds, it is still open to abuse, and I’m not entirely in favour.

UPDATE:  Lucky you! Further perusal of my old folder reveals a smooth typed copy of my two-page May 1996 rant against the RMA. So I scanned it for your before you even decided you wanted to read it. (A point to any sharp-eyed reader who spots the inadvertent comma abuse…)