Peter Cresswell: Act of cruelty to property owner

COMMENT

Project Aqua cancelled; new prisons delayed; the Waikato upgrade of SH1 delayed by taniwha; plans by American giant Weyerhauser for a timber processing plant in Nelson shelved; a homeowner in Waitakere jailed for cutting down his own tree; marine farm applications left in limbo until at least the next decade ...

Who would want to be planning a big project today? A litany of disasters, outrages, battles, bribes and violations of sanity are either directly or indirectly a result of the Resource Management Act.

After Meridian's Project Aqua was cancelled, the company's chief executive, Keith Turner, concluded that "large hydro projects are not going to be able to be permitted through the RMA without a significant rethink to the way the RMA works". Farmers, roading engineers, developers and property owners all point to similar problems in their fields. Otherwise viable projects are being killed because of the act. How many others are stillborn, never to be heard of? We will never know exactly. Clearly, the act does not single-handedly poison every project, but it is a heavy burden for any new enterprise.

The Libertarianz Party told the last RMA review that our grandchildren would not thank us for not building the roads, dams, abattoirs, factories, canals, sewage systems, pulp and paper mills, railways and mines that will be needed in future. On a cold, grey day in that future, those grandchildren will probably turn to us and ask why we were once so stupid.

It's not just large projects that suffer either. They are just the most newsworthy. As Federated Farmers president Charlie Pederson says: "It's little, not large, that suffers most RMA pain." The strangling of smaller projects by red tape is no longer news; it has become a daily occurrence.

The problems are so obvious that they have been noticed even by the Government. The good news is that it reviewing the act. The bad news is it is not a review that is needed; it's a stake right through the act's heart.

National, Act, Labour, and the Greens all agree the RMA needs change. But not one will stand up and admit that the only possible solution for this monster is immediate euthanasia.

The real problem with the act is not that it is unclear, restrictive or has gone beyond its original intent - although all of this is true. It is that its intent is anti-property rights, and anti-human. At the heart of the act is the idea that trees, rocks and mud puddles all have rights - but humans do not.

In its 456 pages, the phrase "property rights" does not appear. Instead of the idea that made common law so successful for more than 700 years, the heart of the act has the ecobabble of "sustainable management" and "kaitiakitanga" and the lunacy of "intrinsic values".

The act also, of course, contains the obligatory treaty babble. When doing anything more aggressive than mowing your lawn, you "shall take into account the principles of the Te Tiritio Waitangi" - and to this day we have yet to find a court willing or able to explain precisely how that might be done.

So, what does all this mean for the average citizen? First, it means he can no longer rely on infrastructure being there when he might want it. But it also means his property is no longer his own; his home is not his castle.

Let's say you own a small home on an even smaller site, and you want to extend your carport to accommodate something more sizeable than your grandmother's Morris Minor.

In most instances, that means you will have to sit down in your local council offices with a person fresh out of planning school and talk seriously about whether the extension is a "sustainable use of natural and physical resources" - at which point you will begin start scratching your head.

Or, whether it will "safeguard the life-supporting capacity of air, water, soil and ecosystems" while "avoiding, remedying or mitigating any adverse effects of activities on the environment".

If you are not sure, you could assess whether or not your proposed new parking stall "pays particular regard to kaitiakitanga [or] the ethic of stewardship", to "the maintenance and enhancement of amenity values", or to "the intrinsic value of ecosystems".

At which point you either run screaming from the planner's office, or pick your jaw up from the floor and write out a cheque proportional to the amount of nonsense about to be put into a report arguing such things on your behalf.

So, you hire a consultant to write that report of meaningless phrases. Meanwhile, objectors hire other consultants to say that your proposal is not a sustainable use of resources, and won't safeguard ecosystems.

Eventually you all end up in the Environment Court, and the one with the biggest pile of nonsense in front of them wins - after which the lawyers and consultants go off to lunch at Antoine's; you go off to take out a new mortgage; and the consultants' reports go off to a landfill.

The fact is the RMA does not protect property rights. Neither does it protect the environment, as cases like the polluted Rotorua lakes and Tarawera River show.

It gives money and power to planners and consultants while destroying both property rights and the environment.

Without protecting property rights, you cannot protect your environment. That realisation has resonated through the common law. Sadly, with the introduction of the Public Works Act and the various town planning regimes, it has been largely ignored for nearly half a century.

Where we once observed the common law limit for nuisance that "one may not use one's property in such manner as to injure that of another", the RMA declares we may not use our property except with the express permission of the state.

You may do only what a council district plan considers you should be allowed to do. With that, a basic legal and constitutional protection is overturned: that people could do anything they liked unless it was illegal, whereas the government could do nothing at all unless they were empowered by law to do so.

That basic concept of jurisprudence has been turned on its head; local governments may now do anything they like (expect, of course, build infrastructure), whereas in respect of the RMA we ourselves can only do on our own property what a plan says we can do.

The last review of the Resource Management Act took nearly five years, and did nothing but waste everyone's time. This latest review is little more than an electioneering sop.

And what might another review do anyway? The same people will say the same things they said before, and nothing of consequence will be done to change anything.

The solution is simple. Don't tinker with the procedures for acquiring a resource consent. Don't tinker with the Environment Court. Don't recraft the RMA. Don't streamline it; don't fix it or reform it.

Instead, drive a stake through its heart. The RMA review team must reinstate the common law protection of property and environment - and then get out of our way.

* Peter Cresswell, an Auckland architect, is a member of the Libertarianz Party . He is responding to the view of Green Party co-leader Jeanette Fitzsimons that concern about the RMA is based on myths and fear.