First Published in NBR: STRAIGHT THINKING – OWEN MCSHANE 

Some commentators claim the Government’s stimulus package will have little impact on the economy. That may or may not be so.

However, one thing is certain. Any such stimulus package will add nothing to the overall level of economic activity if RMA decisions keep closing off private investments.

For example, the Government proposes to build 69 new State houses and five new schools over the next year.

Sadly, a quick survey of my local newspapers showed that Councils and Judges knocked back at least 2000 houses, and commercial developments equivalent to well over twenty new schools, over just the last few weeks. You might like to read your own local newspapers and see how many projects have been stopped, withdrawn or postponed over the last few weeks.

Councils seem to be saying “Give us the tools and we’ll stop every job!”

Judge Jackson’s decision on Waitakere City’s proposed Swanson Structure Plan is an excellent example of such a ‘counter-stimulus’ toolkit.

In 2002 the original version of this Swanson Structure Plan proposed that 70 of the 170 properties in the Swanson area could be subdivided to create a further 137 lots. The landowners sought a further 198 lots. After extensive hearings Council reduced the number to 116. The Environment Court heard the consequent appeals late in 2005.

The Court then took three years to write its decisions because it examined each lot as an individual case requiring an individual decision from the Court. Consequently, decision A2/2009 is 114 pages and decision A3/2009 is 331 pages long. This detailed planning process reduced the number of extra lots to 52 – which is further reduced to 25 new lots because 27 of the lots already have a minor household unit. This truly tortuous process seems to have left everyone exhausted, and unwilling to appeal.

The Swanson Saga is not over yet. The court has instructed the Waitakere City Council to prepare a new set of planning documents incorporating these decisions to present back to the Court, hopefully by the end of the year.

The end result is that potentially 200 new dwellings in Swanson have been reduced to 25.

More importantly the Judge and Commissioners are sufficiently confident of their expertise as land use planners to rule that further development beyond this level will be a ‘prohibited activity’ for the ten-year life of the plan.

This is Soviet style central planning of a level never seen before in New Zealand. Councils throughout the country can now generate Structure Plans of this detail and use this precedent to apply “prohibited activity” status to any applications that challenge their superior wisdom.

The proposed RMA review, soon to come before Parliament, proposes to remove ‘non-complying’ activities from the ‘activity status’ list so as to simplify the preparation of Plans. However, Judge Jackson’s decision means it is now more important to remove ‘prohibited activities’ from the list so as to put a stop to this assault on individual freedoms and to continue to enable future innovation in land use. One such innovation surely deserves another.

The Court took this opportunity to develop new “Court-made” law. Recent Appeal Court decisions had restricted the central planners’ frequent use of “cumulative” effects to prevent towns (like nineteenth century Auckland) growing into cities. Consequently Judge Jackson invented a new term – “accumulative effects” – that encompasses “the bigger picture” (A3; pps 26 – 30), and which allows the threat of “the accumulation of effects” to be used to close off future growth. To be fair, the Judge started writing this decision at the height of the property boom, but the decision is taking effect at a time when Government’s real concern is that no effects are accumulating at all.

The Court also decided that ‘rural character’ took precedence over ‘natural character’ even though the term ‘rural character appears nowhere in the Act. The old saw of ‘rural production’ was given new life by the Court’s opinion that, while Swanson has not been part of our productive rural economy for years, large pastoral areas must be protected because they convey “a sense (not necessarily the reality) of productive activity”. (A2; p74)

Evidently right thinking people prefer a ‘sense’ of faux-rural life to large tended gardens which are dismissed as ‘spacious suburbia’. Presumably we should all prefer “cramped suburbia’. Pity about Monet’s three-acre garden – and most of NZ’s “Gardens of National Significance”. Monet should never have wasted all that time planting flowers and painting them – better to run a few cows. As Germaine Greer once observed, we are a nation full of humbug.

The RMA set up a process by which Councils’ Plans set out a framework of policies and rules which governed decisions on proposed activities. Land-owners then had the right to carry out permitted activities or to apply for resource consents for activities which failed to comply with one or more rules.

Judge Jackson’s Court has used the Appeal process to generate a Structure Plan which closes off all options beyond the level of development as proscribed by this Structure Plan. Anything outside this “universe” is prohibited. There is no point in applying. (Mind you there has been little or no point in applying for anything in Swanson since the plan was first published in 2002.)

This is an extraordinary restraint on our rights and freedoms. Those who wrote the RMA believed they were replacing planners’ direction and control of the use of land, with regulations that focused on the management of adverse effects.

Mrs X is a real person whose husband, four years ago, was diagnosed with degenerative brain disease. He is now totally bed-ridden, unable to communicate, and requires full time nursing care, which in turn requires special room design and equipment. Mrs X has applied to build a second dwelling set up as a special nursing unit – a discretionary activity under her District Plan. In August last year Mrs X was granted consent and is now resolving disputes about roading and reserve contributions. This is hardly speedy, but at least she was allowed to apply.

If Mrs X lived in Swanson she would be prohibited from even making an application and would have to sell up and move somewhere else. Does preserving the “sense (if not the reality) of productive activity” really justify adding such an additional burden to this family’s personal tragedy? I suppose we have to recognize that having someone lying around dying does put a damper on “the sense of productive activity”.

The supposed enabling provisions of the RMA generated a backlash from central planners that has led to more prescriptive planning than we ever dreamed of under the Town and Country Planning Act.

We can reasonably presume that the new round of proposed reforms, designed to liberate the RMA from excessive delays and compliance costs, are already generating a wave of pre-emptive structure plans to counter these proposed new ‘freedoms’.

Presumably this new wave will seize on the opportunity to make any developments outside the rules of such a structure plan ‘prohibited activities’.

The RMA Bill that goes to Parliament must:

·      Include a section that bans such structure plans, or allows anyone captured by such a structure plan to require council to purchase the property at full market value.

·      Delete the category – ‘prohibited activity’.

And while we are about it the Bill must also ban Metropolitan Urban Limits.

Then we might just get some building underway and employ a few builders, tradesmen and labourers, and even allow people to get on with their lives.