SPATIAL & ENVIRONMENTAL LAW IS NOT FOR THE BENEFIT OF A SELECT FEW

When the Resource Management Act (RMA) was introduced in 1991 it was lauded as groundbreaking and importantly enabling legislation — a complete departure from the highly prescriptive Town & Country Planning Act. It probably took a decade or so for everyone working with the new legislation (whether local authority planners, planning lawyers, land owners, environmentalists, academics, developers, and others with commercial interests, to fully understand the framework. In the early days, local authority planners continued to apply a prescriptive lens to the new legislation meaning that some consent applications had to take the full journey to the Environment Court for common sense to prevail. It took many Environment Court cases and decisions to fully inform what the RMA actually meant and said.

It may be helpful to briefly revisit the purpose of the RMA, which is “to promote the sustainable management of natural and physical resources.” In that context sustainable management means “…managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while—(a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and (c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.

In simple terms, theoretically under the RMA, you can do anything you want as long as any adverse effects arising from that activity are no more than minor. There are some caveats to that view of simplicity but at its core the RMA is enabling legislation. So if after expert evidence, both for and against a consent application, a project failed to satisfy the various tests imposed by the RMA there was usually very good reason. Often land owners and developers were unhappy that their commercial interests were eclipsed by environmental and community interests at the Environment Court. However, like any law, that was the exact purpose of the RMA — to weigh the interests of all members of society.

Yes the RMA was a beast of a piece of legislation. But everybody (eventually) came to understand and work with it and very importantly the principles of democracy are embedded throughout its provisions — designed to mediate the competing interests of all stakeholders. Everyone has the opportunity to have their say via district or regional planning and consent application processes with strict rules about how those are conducted. That’s all in the process of being turfed out. If the RMA was a beast, the replacement legislation, in the form of not one but two acts, might be characterised as a behemoth and something less concerned with democratic rights and more focused on the private property rights of the land owner and/or developer.

It is difficult to really understand what the proposed replacement legislation — the Planning Act and the Natural Environment Act — is intended to achieve. But it is certainly not democracy in its widest sense. The Cabinet paper foreshadowing the legislation noted it was intended to “narrow the scope of the resource management system and the effects it controls, with the enjoyment of private property rights as the guiding principle” and further that this is provide “…greater protection of and ability to use property as its owners see fit. It will set a higher bar for restrictions on a property.”

The most elegant or exhaustively debated spatial planning framework in the world is nothing more than a collection of useless words, numbers and visuals if it doesn’t result in improved and socially-diffuse urban, rural, and environmental outcomes. On that count, for the new legislative framework, only time will tell.

Sometimes we need to be careful what we wish for. Unfortunately the RMA became the proverbial ‘whipping boy’ for what politicians labelled a ‘housing crisis’. Let’s be clear — our very poor housing affordability in New Zealand is not a result of the RMA. We don’t have a ‘housing’ crisis but we do have a ‘housing affordability’ crisis which has arisen in tandem with a veritable smorgasbord of neo-liberal housing policy over the past 25 years aimed at creating development opportunities for ‘for-profit’ market actors. Greenfield land subdivision for building more and more market-priced homes has ushered in some of the worst house price inflation and affordability metrics in the OECD.

No-one should be surprised that the Sixth National Government’s ‘going for housing growth’ agenda, the stream of ministerial directives requiring certain local authorities to increase housing density, and the constant legislative changes, have achieved no improvements in housing affordability. Instead, uncertainty pervades at multiple stakeholder levels in the housing sector — territorial authorities, community and emergency housing providers, individual property owners, tenant households and environmental NGOs.

The magnitude, complexity, contingent disruption, open-ended timeframe and underlying intent of RMA reforms have not been adequately justified by those promoting a need for change. The main beneficiaries of the RMA and associated legislative reforms (to date) are the owners or promoters of the 149 projects that were scheduled for fast-tracking through the RMA consenting process and those property investors, developers and land-bankers with a for-profit interest in land and related housing development.

It feels like a neo-liberal wrecking-ball has been swung through the spatial planning and housing legislative ecosystem with no care for or understanding of the widespread consequences. Instead of a spatial planning approach that values the knowledge of all stakeholders and prioritises socially-diffuse outcomes, the Minister’s directions more closely resemble a kind of Medieval fiefdom with decisions delivered by decree and property rights allocated by fealty to extract the highest revenues.