RMA reform? Mush, without any details to give it form

That table above was released last night as part of a 65-page report accompanying Nick Smith’s speech detailing outlining his plans to gut abolish reform tinker with the Resource Management Act, the RMA.

It shows what the report writers consider to be the range of costs that hit house and apartment builders under the RMA. (Not shown, though the report’s authors tried to model them, were the costs of home and apartment builders simply giving up in the face of the overwhelming uncertainties associated with planning anything under the RMA.)

The costs are high.

On face value its suggests the RMA adds almost $200,000 to the cost of an apartment, and around $150,000 to the cost of a stand-alone house. Costs that, with all of the uncertainty involved, every would-be home or apartment builder has to factor in at the very outset of their project. Extra and unnecessary costs that kill would-be projects necessary to help reduce end-sale prices down. Costs that kill the deal in any case for most would-be first-home buyers.

Even if council’s district plans allow you to build (within the plans’ very subjective limits) a speculative house or apartment on your own land,  these added costs to every development tip the balance enormously against that project being profitable – just one reason so few developments are started compared to what the market wants – just one reason those projects that are started are usually at the upper end of the market, the better to help the project recover these costs – just another reason that the Housing Accords have failed to deliver affordable houses even though they have “released” land-owners’ land for that purpose.

A commenter last night on Nick Smith’s 10-point headline to change the RMA suggested all would be solved if Smith’s point 5, i.e., “giving greater weight to property rights,” were made the only point. He has a point. Long forgotten by virtually all other commentators is what it actually means to do something as of right. To build as of right. To plan a project as of right.  To carry out a project bearing your own costs and no others as of right.  The certainty (and speed) that comes with making and carrying out your own decisions as of right.

Long forgotten too by most commentators who’ve already leapt into print to talk about “balancing” environment and development is that properly protected property rights themselves provide the greatest protection for both the natural environment and for  the human environment – as over seven-hundred years of common law would make clear to any commentator who bothered studying the history.

And it really wouldn’t be so hard to hard to bring that back.

Is that anything like what Nick Smith is suggesting? Is that any part of his “reform agenda”?  Is objective law – by which we mean law that is clear, that protects rights, and that makes answers to all legal issues self-evident in advance – any part of his thinking?

Well, now that we have all the detail we're going to get about his “reform agenda,” the only detail that is clear is that there is not enough detail to know.  But I doubt it.

Because as another commenter noted last night, the theme of Smith’s 10-point agenda is less about recognising rights than it is about centralising control,*  making it easier for councils to change their plans; a suite of “standard planning templates” which council planners will have to follow;  a “consolidation” of rules and plans across all councils; a “strengthening” of powers for national standards and national regulations.

This makes things no easier for Joe Builder. It does offer more work for John Bureaucrat.

Yes, it’s true that Smith proposes adding to the matters to be considered by John Bureaucrat, Joan Planner and James Judge the need for infrastructure and for affordable homes – and he does propose that the RMA “properly recognise the urban environment.” If that can be done, all power to him, but of details we have few.

And it’s true he proposes “fostering a new collaborative way of resolving resource management issues” that avoids the present “litigious and adversarial approach.” I confess to having no experience with the Land and Water Forum he gives as an example, but it does sound to me that this is more about meetings between planners than a means by which land-owners avoid the Environment Court to get their project off the ropes. (Perhaps I can interest him in a Small Consents Tribunal, the ideal property-rights based transition from adversarial and expensive to streamlined and inexpensive?)

Crucially, however, for all the talk, nowhere in anything Smith says is there any proposal to prune the parasites who live off the Act – and they are legion, they exist in their thousands, making their living by sucking off the people who carry them on their backs to deliver every project, and arguing like all vested interests against anything that would reduce their ill-gotten fiefdoms. Nowhere do I see and proposal to make the Act itself any less non-objective – so land owners will still have to discuss with a pimply-faced planning school graduate whether or not their carport extension is a sustainable use of the earth’s resources, or recognises kaitiakitanga. The effects of non-objective law describing precisely the conditions under the RMA:

When men are caught in the trap of non-objective law, when their work, future and livelihood are at the mercy of a bureaucrat’s whim, when they have no way of knowing what unknown “influence” will crack down on them for which unspecified offense, fear becomes their basic motive, if they remain in the industry at all—and compromise, conformity, staleness, dullness, the dismal greyness of the middle-of-the-road are all that can be expected of them. Independent thinking does not submit to bureaucratic edicts, originality does not follow “public policies,” integrity does not petition for a license, heroism is not fostered by fear, creative genius is not summoned forth at the point of a gun.

All those who argue for more centralisation, for more control, for more edicts, licensing and planning policies … consider that every time you wonder why this Act has brought forth not creativity, but bromides set in concrete and erected around our great towns and cities.

About this outcome, Smith of course has nothing to say.

But he does, it’s true, express  a “wish” to give “more explicit recognition to property rights.” Since I’ve been arguing for twenty years for the Act to properly address property rights, I guess I should be happy. And since the Act has never mentioned property rights at all, not one word in all its 500-odd pages of excrement, it would not be possible to be any less explicit. So that’s something. But how much of a thing?

Yes, it’s great that Smith is “looking at amendments that limit the degree to which council officials can meddle in people’s lives.”  Great!  And it’s admirable that he is considering “ greater discretion for councils to waive the need for resource consents where the wider environmental effects are negligible.” But … how will anyone know in advance whether the waiver would apply? And .. isn’t this just an invitation to more of the corruption the Act positively encourages?

But, in any case: of details we not only have few, we have precisely none. And what chills me to the bone is Smith’s bland bromide as soon as the issue is raised is that “there always has to be a balance between the rights of a person to use their own land and the wider community interests.”

As Ibsen asks in his great play ‘Enemy of the People,’ when rights are got wrong, or are weighed by those in authority, then what are the interests of one outlier when weighed against what the authorities decide are “the wider community interests”?  “ “Oh yes, right—right. What is the use of having right on your side if you have not got might?” Without any lessening of might, right has very little chance of a look in.

But “there always has to be a balance between the rights of a person to use their own land and the wider community interests.” No, Nick, there does not. To say that there does suggests you know very little about rights, and much about their diminishment. Which is a worry.

If you get rights right, then there is no “balance” to be done. The right of a person to use their own land ends only where the boundary of another legitimate right exists. That’s what rights are for: to determine, to define, to sanction and to protect each individual’s legitimate boundaries of action in a social context.

That the Act sanctioning the most outrageous violations of property rights since the war has gone this long without property rights even being mentioned is a disgrace. That mention of them has finally been made is welcome. But to offer their recognition in the context Smith makes, with no detail beyond what I’ve quoted above, gives no cause for either excitement or expectation.

And what else we’re left with is just mush, without enough details to give it any form.

All we have instead is the history of this minister to guide us, which offers no real prospect of anything very much at all.

* And we know how well that’s worked out for Auckland, don’t we campers?

UPDATE: Other useful comments around the traps:

• “Some reports make you want to find a city planner and beat them with a heavy muddy stick.
  Arthur Grimes and Ian Mitchell's latest MOTU report is the latest. They demonstrate just how badly Auckland Council has wrecked housing affordability. Stupid "it was a good idea at the time" rules compound on one another to make it impossible for developers to innovate in providing affordable housing.
  Read the whole thing. But Table Two [a the top of my post] has the main effects…”
  Auckland SimCity – Eric Crampton, OFFSETTING BEHAVIOUR