RMA reform - let's not forget what the real issue is

Matt Burgess
NZ Herald
10 August, 2021

A Berkeley professor once said that if you are Minister of the Environment, you are eventually Minister of Everything.

The professor’s prediction is set to become real if the government’s Natural and Built Environments Act, or “NBA,” passes in anything like its current form. The bill is the first of three Acts to replace the Resource Management Act.

RMA reform is overdue. New Zealand’s house market is the worst in the OECD. House prices after inflation have increased by more here than in any other OECD country since the RMA passed in 1991. Planning is a big part of why houses cost so much.

It is not clear how the reforms fix our broken housing market. Housing affordability is almost an afterthought in the draft NBA.

The bill says a great deal in few words. At a fleeting 20 pages, the NBA is mercifully brief compared to the RMA’s 835 pages.

Part of the bill’s brevity is because many decisions have not been made. The NBA has placeholders for, among other things, how plans will come into effect, implementation principles, and links to other Acts.

But the bill says enough to make clear the government’s overarching strategy for its reforms.

The government thinks planning should continue to be responsible for more or less everything. The bill refers to the natural environment, culture, the Treaty of Waitangi, urban and rural development, housing affordability, infrastructure, and climate change mitigation and adaptation.

The bill’s all-important purpose statement mentions current and future wellbeing, people and communities, the environment, and the “interconnectedness of all parts of the natural environment.”

The bill’s scope is so wide it will cover everything down to the bowl of fruit on your kitchen table.

The government’s strategy for delivering these various outcomes is to put unlimited power in the hands of one person, the Minister for the Environment.

Under the bill, a new mechanism called the National Planning Framework will give the Minister all-encompassing powers to direct outcomes.

The Framework will “set directions, policies, goals, rules, or methods… provide criteria, targets, or definitions.” It will set environmental bottom lines which cannot be avoided or offset. The Framework can cover any matter that is consistent with the purpose statement, which means almost anything. Rules can apply to part or all of the country. The Minister will decide what powers to delegate to regional Planning Committees, another new feature in the bill.

These sweeping powers will come into effect through regulation, without troubling Parliament. The Minister for the Environment and Cabinet will rule by decree.

The bill’s author, Environment Minister David Parker, says his bill will deliver everything promised. Yet, he is strangely silent about who his bill empowers most.

Reading this brazen bill brings to mind names like Kafka and Orwell. But the combination of self-confident, constitutionally naïve ambition, and the sheer chutzpah to table this unconscionable bill, has the unmistakable echo of Robert Muldoon.

With this bill, Parker proposes to re-establish the same powers Muldoon used to sink the New Zealand economy.

It has taken less than 40 years to unlearn the lesson that executive power creates more problems than it solves. Muldoon did not set out to ruin the economy. But that is what unbridled power tends to do.

Parker knows what he is doing. In 2017, he railed against a far more modest proposal to expand executive power by the then Environment Minister Nick Smith. At the time, Parker told Parliament:

“We should never forget in this House that those broad regulation-making powers that were given to the executive just after World War II sat on the books for decades and were not abused until Muldoon came along about three decades later and used the regulation to impose a price freeze, a wage freeze, and a rent freeze through taking executive action by regulation, not through this House… I ask again: who in their right mind would be handing those powers across to a Minister?”

Who indeed, Minister?

Unfortunately, the democratic deficit in Parker’s bill goes beyond Cabinet. The new Planning Committees will draft regional plans. These plans, all subservient to Parker’s Framework, will decide local land use priorities and set environmental bottom lines for each region. These plans will also come into effect through regulation.

And Planning Committees will be appointed, not elected, leaving committee members free to pursue their own agendas without the worry of elections.

In our submission on the bill, the New Zealand Initiative argued the planning reforms should focus on housing. Not because other objectives like climate change are unimportant, but because planning is the wrong vehicle to deliver most of the government’s other goals. Since planning broke housing, it should now fix it.

So the test of this bill is whether it makes it easier to build a house. There is nothing to suggest it will.

Ask your average developer or homeowner their biggest problem with the RMA. They will likely say it is the time it takes to get plan changes and consents through; the arbitrary conditions councils attach to consents, down to the colour of the letterbox and what plants will go in the garden; or having to go to court to fight objections from people living in London.

But tell that to Parker and his officials. You would be hard pressed to find anything resembling solutions to the problems developers face in this bill. If anything, the NBA expands the avenues for councils and busybodies to stifle urban development.

I led the drafting of our submission on the NBA. What most struck me as I pored over the bill and its notes was the lack of thinking on display.

The bill’s authors give no priority to housing affordability. Section 8 of the bill puts this defining issue at 12th place in a list of 16 outcomes, sandwiched between, and apparently equal to, “resilient urban form” and protection against “inappropriate subdivision” of rural land, whatever those things mean.

The authors do not seem to realise why it is so hard to build a house in this country. Councils can demand practically anything under the RMA’s broad scope. Almost everyone has a soft veto over developments which they can exercise at little cost or risk to themselves.

There is little sign officials are thinking about the balance between competing rights to develop and object.

A more fundamental problem is the lack of recognition of property rights. The bill’s authors barely acknowledge the existence of property, let alone show they understand its crucial role in investment and wellbeing. In the 87 pages of the bill and explanatory note, “property” is mentioned twice and only in relation to managed retreat from climate change.

Whatever form the new planning system takes, it will be overlayed on a system of private property. Outcomes for the natural environment and wellbeing and everything else will all follow from how planning interacts with property rights.

You might think this interaction would have dominated the early thinking on how a reformed planning system could work. You might have thought that security of property was front and centre of ministers’ and officials’ thinking. You would be wrong.

The government’s thinking on land use regulation is little more than a laundry list of nice-to-have outcomes and a view that these outcomes should be delivered by decree.

As public policy strategies go, that is about as dumb as it gets.

The NBA is now before Parliament’s Environment Committee. If the Committee has any sense of public duty or commitment to democracy, or any interest in an enduring reform, it will thank Minister Parker for his efforts, remind him there is a housing crisis and that one Muldoon was enough, and invite him to start again.

And it will say all of this very politely. Because a Minister of Everything is a minister who can do anything, and this government has the numbers.

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