RESOURCE
MANAGEMENT ACT
September 2014
A case study in bad regulation
ACT considers the Resource Management Act
1991 to be one of the greatest obstacles to
economic development in the country. It
also has many bad environmental aspects. It
is no coincidence that it is also a debilitating
attack on the sanctity of property rights and
therefore individual liberty.
The RMA over-rides common law
mechanisms, processes and procedures for
resolving conflicts as if they do not exist. In
so doing it evades proper economic and
constitutional considerations.
Compliance with this Act is a costly
bureaucratic nightmare. The lives of decent
and productive citizens have been destroyed
emotionally and financially.
Its flaws stem from its vague purpose. The
RMA uses the fuzzy concept of sustainable
management to exercise arbitrary power
over landowners and developers. This
permits petty bureaucratic tyranny.
The RMA is a major factor in limiting the
supply of land for housing to the degree that
has caused the housing affordability crisis in
Auckland.
The RMA allows property owners to be
intimidated, held up, blackmailed and even
bankrupted by bureaucrats, competitors and
opportunistic objectors.
By politicising issues it can threaten to tear
small communities apart. The heated
resistance by objectors to the payment of
compensation for regulatory takings
illustrates the fundamentally predatory nature
of the forces unleashed.
The Soviet Union was founded on the notion
that central planners could determine
desirable patterns of land use. The lessons
from the fall of the Berlin Wall in 1989 were
not heeded before the passing of the RMA in
1991.
A fundamental problem is that the legislation
is not directed at overcoming identified
deficiencies in the common law in respect of
environmental problems. To the degree that
it turns assets into liabilities as far as property
owners are concerned it creates incentives
that work against preservation and
conservation.
To its credit, National has responded to these
problems with some worthwhile
amendments. However, its initiatives have
some problematic aspects. First, a faster
decision is not necessarily a better decision,
particularly when liability issues make local
authorities risk averse. Second, the move to
centralise directive planning power in the
hands of a future Minister for the
Environment may be handing the Green Party
one of the biggest presents it has ever had.
If greater central government prescription is
the answer, perhaps the wrong question has
been asked.
Moreover, National it has not been prepared
to address the over-riding problem that noone knows what the problem is for which
sustainable management is the solution.
Unless the purpose of the RMA is clear, no
one can be clear about whether it is the best
means of achieving that purpose.
Nor has National been willing to date to
restore the basic protections for private
property rights – the tests that a taking is
necessary in the public interest and that the
issue of compensation is addressed in a nonpredatory manner.
Finally, section 32 of the RMA will remain
useless as a test of whether the benefits to
affected members of a community of a rule
or policy in a plan exceed the costs. The
focus will remain on whether the objective
that the rule or policy is aiming to achieve is
consistent with the 'sustainable
management' purpose of the Act, and then
on whether the rule or policy is consistent
with the pursuit of that objective. The actual
wellbeing of the members of the community
can be irrelevant to this examination. It is
simply assumed that their wellbeing will be
improved by the successful pursuit of the
plan's objective.
ACT believes

The RMA's flaws are so fundamental that
no amount of tinkering can solve them.
Centrally planned development is not a
sustainable activity

There is no substitute for a detailed
category-by-category analysis of the case
for over-riding the common law and of
the nature of the optimal intervention (if
any) in each case

There should be no presumption that
over-riding 'umbrella' legislation is
desirable. The best solutions to problems
in the common law relating to non-point
source pollution, for example, might be
found only on a case-by-case basis

The RMA should not be considered in
isolation. It is 'merely' a manifestation of
a general approach
ACT's goals

To move back to common law disciplines
in terms of standing, definition of harm,
and awarding of costs and remedies

To focus environmental legislation on
specific cases in which it can clearly
achieve superior outcomes to common
law processes

To provide for compensation for the
removal of common law property rights
ACT will

Repeal the RMA. It will be replaced by
planning laws that respect private
property rights and restore the common
law that property owners are strictly liable
for any nuisance they create..

Set up an expert taskforce to draft a
transitional regime from the present RMA
to the replacement regime. Determine
exactly what specific measures relating to
public goods, such as flood control, border
protection and problems of non-point
source pollution, would need to be
introduced on the abolition of the
RMA. The taskforce would also report on
what amendments might need to be made
to the Local Government Act in order to
deal with the problem of regional and
local 10-year plans based on the RMA that
would otherwise continue to have legallybinding effect.”

Enact case-by-case regulations where
they are necessary to supplement the
common law.

As a coalition partner negotiate for the
Government to implement our policy as
outlined above. Options to negotiate if
our coalition partner will not rescind the
RMA:
 Restrict the use its scope to areas
where the common law could be
deficient
 Refocus it on achieving a balance of
benefits and costs as defined using
mainstream cost-benefit analysis,
rather than on achieving
predetermined outcomes regardless
of cost
 Remove the extremism embodied in
the presumption that there are
absolute environmental and
conservation values. Benefits, as
valued by persons, must be balanced
against costs
 Move to restore common law
disciplines that relate to standing,
definition of harm, remedies for
injunctive relief and awarding of
costs
 Move it in the direction of the Public
Works Act in respect of protections
for private property
 Strengthen the requirement in
section 32 to consider alternatives to
regulatory controls and to assess
costs and benefits in relation to
regulatory takings
 Strengthen the need to address the
issue of compensation where private
property is taken or regulated for
public good purposes
 Restore the presumption of the right
to develop one's own land, unless
there is a good public interest case to
the contrary. This is ACT's Freedom
to Build policy.
 Remove requirements for the
consultation of Maori and the
community because Maori are part of
the community and should be
consulted in the same way as the
community.
Fundemental reform of the RMA is a high
priority for the ACT Party.