RMA REPLACEMENT: The good, the bad, and the cattle

Chris Bishop has finally announced his chosen groups' recommendations to replace the RMA.

There's a lot to think through, so here are my first thoughts on their recommendations ...

The good (or not-so bad)

• Property rights gets precisely zero mentions in the RMA, and even less recognition. Here in this report however its gets exactly 25 mentions — a decent number — the first appearing almost as point one, after talking about how the two new Acts would be split up, and even before a section on Te Tiriti [Contents]

• That same hierarchy appears to be reflected in the "Goals." Remembering in law that earlier stated paragraphs/sections/clauses take priority over those stated later, the hierarchy given here is: property rights > separation of incompatible land uses > well-functioning urban and rural areas .> development capacity > infrastructure > natural hazards and the effects of climate change > public access > Māori cultural matters. So if property rights were well-defined and well-protected, that might be sufficient. But see below for the devil ...
• The two replacement Acts (one for environment, one for central planning) are said to "both ... be based on the enjoyment of property rights" [emphasis in the original]. This is stated as "the guiding principle." Good.
• "Both Acts," says the recommendations, "will include starting presumptions that a land use is enabled, unless there are minor or more than minor effects on either the ability of others to use their own land." Good. The devil, of course, is in the detail of how those "effects" are defined, and by whom.
• The RMA was said to be "effects-based," and so are these two replacements. So prepare to be underwhelmed. Yet whereas the RMA looked at ill-defined and undefinable "effects" like "amenity values," "natural character" and "such as the architectural style or colour of a neighbour’s house," this seems to be somewhat more objective. Somewhat. (The problem here being these "externalities" that they talk about, about which see more below. And the all-but certain prospect of regulatory creep to protect "heritage" suburbs and areas of particular "character.")
• "Better recognising property rights," says the recommendations, "requires a more certain regulatory environment so people can know as far as possible what they can and can’t do with their land." The intention is good. 
• It looks like long-existing activities to which new neighbours chose to come (such as speedway at Western Springs, for example) will now be protected. "That is, those that come to the nuisance should not be able to complain about it." Great news, if that's properly done.
• Providing a low-cost tribunal to whom to object to a council's decision is good. (But may not stay low-cost.) And providing "for rapid, low-cost resolution of disputes between neighbours" also sounds good. And that's all that we do need. Maybe a kind of "Disputes Tribunal" or "Small-Consents Tribunal" staffed by experienced part-timers to adjudicate simple no-bullshit disputes about rights to light, to air, to support and so forth based on earlier precedent. In other words, much like an early common-law court ...

The bad (or not-so good)

• The so-called "Expert Advisory Group" delivering these recommendations was established only in September 2024, and given only three months until Christmas to do their job — giving, as they themselves say, only a "short time ... for what is a very substantial task." Given that National in both government and opposition have been talking about "reform" for decades, it seems almost impossible to believe that's when this work first began. And yet, there's no hint from either Bishop or Simon Court (his ACT associate) of any earlier thinking around this. Which would be incredible, right?
• So no wonder "Further detailed policy work will [still] be needed to fully develop our proposals and address outstanding issues and areas of detail." In other words, don't get excited yet. Details .. devil ... etc.
• The Planning Act's purpose is not "protection of property rights" (i.e., part of the very purpose of government); nor yet is it "allowing property owners to exercise the peaceful enjoyment of their property while recognising that same right in others" (i..e, a recognition of where right-based boundaries lie, rather than some subjective "balancing" of rights). So whatever the press releases say, it's not a bottom-up law based on property rights. Instead, the stated purpose is: "To establish a framework for planning and regulating the use, development and enjoyment of land." In other words, it's top-down planning. As will be the related Natural Environment Act.
• The RMA was said to be "effects-based," yet we see how well that turned out! These replacement Acts are also said to be effects-based, with the effects this time "regulated ... on the economic concept of externalities." [Executive Summary, Recommendations, 5b]
• externalities, however, are essentially an anti-concept, i.e., an unnecessary, approximate, and and rationally unusable term designed to replace and obliterate some legitimate concept (much like "stakeholders" or "opportunity cost" are also); in this case it's an economists' way to avoid talking about property rights. And the real cause of many “externalities” is generally that private property rights have not been adequately defined, nor sufficiently well protected! (For example, if property rights are well-defined and well-protected, a downstream landowner could sue in a court of law for an upstream farmer’s action in dirtying the waters.)
• the presumption of the proposed Planning Act
• While both replacement Acts are said to "be based on the enjoyment of property rights," these rights appear to come as  gifts from the state, subject to "approaches to regulation standardised at the national level" and requiring a "justification report" if the"approach" has any departure from that. [Executive Summary, Recommendations, 5c]. And the refusal to recognise or allow ownership of Crown "resources," but only a license, give little motivation to protect that resource, while limiting the ability of these limited license-holders to sue in common law if the resource is damaged by others.
• In a sense this whole thing is irrelevant, since the whole country will still be zoned anyway — zoned according to town planners' predilections, with their own additional "overlays," "areas" and "precincts."  So fewer zones, to be sure: but does it really matter how many principalities it takes to make up a whole kingdom — the fact is that you still have to make obeisance to a prince. (Note here that town planning (with its zones) has only been around here since 1928, and you'll notice that most of those in that alleged profession prefer to live in places built before then. Ever asked yourself why that is?)
• Whatever the headlines might say, the recommendations here still favour inclusion of a Treaty Clause. Less ill-defined than before, to be sure, listing what is said to be "relevant aspects of the statute enacted in light of Treaty obligations." But still there, poisoning all objective law. 
• One of the worst part of the present RMA is the scope given to objectors from anywhere to "submit" on a resource consent application to oppose/delay/kill it off. It's not only unjust, it's illegitimate — only those with standing, in a common-law sense, have the right to object to any "effects" on their property rights (hence the importance of well-defined and well-protected rights.)  That focus on proper standing would, on its own, limit objections to those with a right to mount one, and also kill off the potential for illegitimate objections by trade competitors. But I see nothing here to substantially change this situation. And they still explicitly allow for "public notification" of activities or effects along the lines of the existing Act.
• Providing "for rapid, low-cost resolution of disputes between neighbours" sounds good. So why involve councils at all in disputes between neighbours? (And you can complete the thought by realising that's the only common-sense part of any "planning application.")   Since these Acts still call for council, however, their halfway-house proposal of a "Planning Tribunal" to site between council and Environment Court might at least save some applicants some money. (Unless of course it becomes just another layer in an already lengthy process, or so popular and so necessary — and staffing of these "expert" bodies so difficult — that the delay in being heard becomes unconscionable.)
• Finally, one of the many uncertainties under the present RMA regime is the uncertainty faced by land-owners when "ancestral lands, water, sites, waahi tapu, and other taonga" no longer owned by iwi or hapu, but foisted on present land-owners on the basis of often non-objective oral histories or other unsubstantiated accounts. See for example Auckland's "Taniwha Tax," and other councils' "SASMs." The report nonetheless recommends "that future legislation should retain the existing RMA mechanisms for Māori participation and make further provision for Māori engagement." (The only improvement might be a recommendation for better record-keeping of the decision-making processes around these impositions.

The cattle

So they weren't given much time, and arguably in that short time came up with something better than decades of earlier meddlers and "taskforce" writers did. But who exactly wrote this report? 

We have, to list them all with their chosen "professions":

• an "environmental planner,"  
• an economist "with expertise in natural resource and environmental economics"
• a "resource management practitioner"
• the general manager of Tauranga City Council (infamous for their ill-named "Smart Growth" strategy that made the small city one of the least affordable in the country)
• and a "professional director" who chairs the kingitanga.

Nice. All folk who've made piles of money out of this ill-defined and poorly-written pile of excrement.

Chairing the group is a barrister, who's also made her career from that ever-giving trough labelled "resource management law." ( I was reminded again of Mencken's famous saying that All the extravagance and incompetence of our present Government is due, in the main, to lawyers, and, in part at least, to good ones. They are responsible for nine-tenths of the useless and vicious laws that now clutter the statute-books, and for all the evils that go with the vain attempt to enforce them. Every Federal judge is a lawyer. So are most Congressmen. Every invasion of the plain rights of the citizens has a lawyer behind it.")  

I looked in vain for someone in that list, anyone at all, who might be a business owner or developer who's had their balls in the planner's vice, or a land-owner begging for permission from these grey ones to use their own land. Not a hint of it. Just folk who've been making a killing over many years from their snouts being in that same trough. (There is one bureaucrat who's a policy chap from Federated Farmers — not a farmer although he grew up on one' —who's issued his own minority report essentially arguing for better definition and clarity, to limit the possibility of regulatory creep. )

So what to expect from that group?

To be fair, it's better than I'd expected.

But given how many decades it's taken to start turning this ship around, and this will be the one chance in all that time, it's not as good as it could be.

And there's still plenty of work to do (which is to say too much) for the various species these authors represent.

Furthermore, with the legislation not to be passed before the next election, I'd expect it only to get worse rather than any better. This, you'll realise, is the high point.

Here's the group's own table summarising their main recommendations:

NB: For a more mainstream view (some might say a "less-jaundiced" one) here are the initial reaction from planner Stu Donovan, who is focussed on affordable housing. And some short common-sense thoughts from Matt Prasad.