Those RMA Replacements: "not a sort of RMA 3.0, but a TCPA 4.0 plus a separate environment thing."

Yesterday I was looking at the announcements. Today I'm looking more at the two replacement Bills themselves, mostly the Planning Bill. [ONLINE HERE.] (Although I can't help noting, of those announcements, that anybody who can seriously assess these sort of changes to produce 46% fewer consent applications, not 45% or 47% but 46%, has a problem only assuaged by a large consultancy cheque).

Still, if the needle were shifted to that extent it would be a start. Would the replacements do that? We have a nation who hopes so, and a Minister who seems to intend so.  But then they all told us back then that the RMA was permissive ....

So, thoughts upon reflection:

** Iignore the major hype. Property rights are still not explicitly mentioned, except as a reference to matrimonial disputes.

** Where they are mentioned implicitly, it's in terms of compensation (see below), and of effects. (Again, this follows the RMA in being allegedly "effects-based." So prepare to be underwhelmed.) Yet whereas the RMA looked at ill-defined and undefinable "effects" like "amenity values," "natural character" and "the architectural style or colour of a neighbour’s house," this seems to be somewhat more objective. A big emphasis is on which effects should be ignored, about which it is quite explicit, and which areas it insists councils meddle (equally explicit, see subsection (2)).

** Contrast all this with a common-law system – something commentators still don't understand. (Here's one ignoramus who thinks the RMA's subjectivism is an example of common law, FFS!). Common Law protections have the unique beauty that they protect both property rights AND the environment—the stronger the property-rights protection, the more the law sets up "mirrors" reflecting back to us our own actions, especially long-term ones. (As Aristotle already knew, when people need to heed their own stuff, they are more careful than when they deal with commonly-owned resources.) Here’s how it could be done. 

FIRST, ENACT A CODIFICATION of basic common law principles such as the Coming to the Nuisance Doctrine (the ideal antidote to zoning) and rights to light and air and the like. 
“Second, register on all land titles (as voluntary restrictive covenants) the basic 'no bullshit' provisions of existing District Plans (stuff like height-to-boundary rules, density requirements and the like).
“Next, and this will take a little more time, insist that councils set up ‘Small Consents Tribunals'…” 

** Anyway, I put that paragraph there to show the distance from that idea. So what do we have here? Much of the format, plans, rules, standards and zones of the RMA are still with us. Councils will still write Plans. The Plans will still have Zones. Zones will have Rules and Standards. A council planner will assess your Consent application. And then you, your planner, their planner, your lawyer and theirs will work hard at it until your bank says "That's enough." Much of that will still be with us, even if terms are changed. 

There will be fewer zones, and fewer plans, but so what? It doesn't matter whether you have 17 rules saying "no" or one-hundred and 17 ... if the rules are still telling you "no." (So ignore the headlines about that announcement as well.) It does mean that much of the law built up in courtrooms over the last thirty years is still applicable. But when much of that law should be shovelled out, that's not altogether a bonus.

** If there is a "balance" required from the law here, it's simply between the rights of land-owners to build and the effect of that choice to build on others' land, and on themselves. Note that each owner has equal rights: the right to peaceful enjoyment of their property—the boundary between land and actions being defined by that right (my rights to do whatever the hell I like, including enjoying my spread peacefully, ending where your equal right begins). That's what good law should (and common law did) recognise. it should recognise it, not restrict it. 

** The RMA had a Purposes heading, Part 2 (sections 5 to 8), around which all parts revolved. What it contained was mostly mush, the residue of the nineties non-sequitur of so-called "sustainable management." It was this wherein judges had to adjudicate on what "sustainable management" might mean for your carport extension, or whether that boundary retaining wall might avoid, remedy, or mitigate any adverse effects of activities on the environment. Or not. (This, for Henry Cooke's benefit, is the source of much of that 'judge-made law' he talks about, not the common law with which he has it confused.)

Instead, the replacement Planning Bill replaces Purposes with Goals. You can see that terms like "well-functioning" and "incompatible" will get lawyers' invoices juiced, but for the most part an effort has been made to keep things moderately objective. Except for section (i), which allows for virtually everything here to be outsourced....

** Compensation: Early opponents and the Property Council have both signalled that compensation from taxpayers for regulatory takings is a big part of both replacement Bills—which is not by any means the same thing as protecting property rights, despite what some people still think.

In the replacement Planning Bill at least, they take this form...

** Standing: I'd understood that to object to an Application one needed to have standing, e.g.., to be a neighbour on whom the effects of an application might have objective and measurable harm. Naturally, section 11(1)(i) above vitiates that, but we'd been told that, for instance, someone from Bluff couldn't object to a project in Kaikohe.

That doesn't appear to be the case (but happy to be corrected).

Sections 123 to 125 lay out the decision-making process around public notification of an Application. But I don't see that "Standing" (i.e., having a sufficient connection to and harm from the action or decision) is explicitly laid out.

** As a halfway house between a council decision and the Environment Court—a sort of limbo-land it might take months/years and several hundred thousand dollars to cross—the Planning Tribunal looks to be useful. Not game-changing, but useful.

** Remember, this replacement is resolutely top-down. Instruction comes from above. Zone are determined. Zones will be prepared with their various Rules and Standards. So a lot still rests for each property owner on what will be included as Rules or Standards with which to comply. For all the talk of "effects," when it comes to the home-owner the rubber hits the road in terms of a Rule or a Standard in a Plan. The more restrictive those Rules, the less one can do without a formal Planning Application. 

The argument of the RMA's authors' was that the RMA was more permissive than the more prescriptive Town & Country Planning Act it replaced because Application would be straightforward, with only 'effects' being assessed by council. But in reality, most home-owners did all they could to avoid an Application's perils. So the Zone's particular Rules and Standards became a sort of lockdown.

The irony is that while the  Town and Country Planning Act gave less scope to go outside those Rules and Standards, it's more prescriptive Rules and Standards themselves were often more permissive than those applied under the RMA. It was more prescriptive, but within that prescription at least one could act. 

There's a sneaking suspicion that with the replacement Environment Bill being separated, and this replacement Planning Bill being based on top-down prescription, that any sense of permissiveness will be similar. That (as one wag put it) what we have in these two Bills is not a sort of RMA 3.0, but "a TCPA 4.0 plus a separate environment thing."