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Owen McShane

Owen McShane is Director of the Centre for Resource Management Studies and Chair of the Policy Panel of the NZ Climate Science Coalition.

Centre for Resource Management

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Let's "Dis" the DURT
Owen McShane
16 October 2011

The publication of the Auckland Plan has stimulated some vigorous and timely debate about the impact of excessive restraints of supply on the price of land in our urban areas. (Go to Interest.co.nz here and scan the 290 comments.)

Make no mistake, regulations, that constrain the land supply are a key ingredient in the DURT that seizes up the wheels of the urban economy – where DURT stands for Delay, Uncertainty, Regulation and Taxes (including fees and charges.)

While many people are aware of the need to reform the RMA itself, the real causes of most of the DURT go largely unnoticed. The recent release of Auckland’s highly regulatory and restrictive Plans are generating vigorous debate about specific planning tools, such as MULs and RUBs, and fad-driven policies such as Compact Cities and Train Sets.

However, they should also be drawing attention to the biggest problem of all, which is the plethora of planning documents, and their size and complexity. They impose massive costs on every activity of Local Government and on those who have to find their way through and around them.

One of the main benefits of the RMA, when first introduced in 1991 was that it replaced a number of Acts and regulations with a “One stop shop”. While the Act was thick it meant that if an applicant dealt with this one piece of legislation and followed a single process, they would end up with a positive or negative decision. This was a major step forward.

However, the same Act carried its own seeds of destruction.

I have frequently quoted Political Science Professor Aaron Wildavsky’s shrewd observation (of 1968) that if New Zealand had appointed a Minister for the Environment, then eventually he would be a Minister for Everything.

And while the original RMA had a focus on the adverse effects on soil water and air, the definition of environment was so broad, or vague, that it did not take long for the new “RMA industry” participants to seize the opportunity to “broaden their horizons” and line their wallets.

While the early District Plans and Policy Statements may have complied with Wildavsky’s “Original Rule of Thumb” – that a plan that was thicker than his thumb had no relationship to the real world – the size of plans soon began to double or quadruple with every review.

Once plan writers used their imagination there was no end to the issues and adverse effects that needed regulation to ensure we all behaved as we should. The “threat” of anthropogenic Global Warming added a whole new “dimension” to this regulatory sprawl.

Once the internet enabled the Plans to be routinely published on-line, the early restraint of weight and cost disappeared.

Here is list of “relevant documents” from a Proposed Planning Document for the Biodiversity section of the Rural Chapter, for quite a small regional centre:

National Level – six Acts and documents
Regional level – five documents
District Level – six documents
Current Issues – one document
Biodiversity Legislation – eight acts
Sustainable Management – three acts
Other Laws and Regulations – five acts

The Planning documents that finally emerge will obviously be enormous.

These “relevant documents” for the regional City were only for the Biodiversity section of the Chapter dealing with the Rural Zone. There are thirteen such Chapters. I have no idea how many zones and other issues will have to be addressed.

However, the greatest boost to regulatory sprawl was the Labour Government’s Local Government Act of 2002.

This radical piece of legislation granted the Territorial Local Authorities the general and wide ranging powers of General Incompetence, so unleashing them from the constraints of the existing LGA, which had limited them to specific activities which were well within their capabilities – activities such as planning a party on the Auckland Waterfront.

Now these Territorial Local Authorities have the power to plan every aspect of their economy, including matters previously in the hands of Central Government such as Education, Health and Housing.

It’s every Central Planner’s dream.

The Discussion Document called “Auckland Unleashed” has generated a collection of four plans totaling about 800 pages. But I suspect no one has printed them all out to gauge the enormity of the contents.

Consequently, the Auckland Council has produced a whole group of New Planning documents under Part 6 of its own Local Government (Auckland) Act

The Auckland Plan web page explains:

The Draft Auckland Plan - read more>>(250 pages)
The Draft Economic Development Strategy - read more>>(107 pages)
The Draft City Centre Masterplan - read more>>(202 pages)
The Draft Waterfront Plan - read more>>(estimate 300 pages)

The Draft Long-Term Plan and the Draft Unitary Plan come next.

The Unitary Plan is supposed to unify all the existing plans into a simpler single document. The Wairarapa Combined District Plan merged the Masterton, Carterton and South Wairarapa District Plans. Sadly, the resulting Unitary Plan was thicker than the original Plans stacked one on top of the other.

Then there will be Urban Design strategies and plans for all the centres, and Waste Management Plans, and new plans for whatever activities the Auckland Council decides are deserving of its meddling.

No one can give me any indication of the relative status of these Auckland Plans. When the “One Plan” is produced, will it be subservient or superior to the Auckland Plan? Or, as is more likely, will these relationships and interactions be established “on the hoof”?

I have to hand a recent application for a resource consent that is more voluminous, by any measure, than the first round of Operative District Plans such as the Kaipara District and Taupo District Plans. When a single application is as thick as an old Plan we are in trouble. No wonder developers routinely spend hundreds of thousands of dollars on comparatively minor applications and Plan changes.

No wonder activity in Auckland is stalled.

And as the new generation of Super Plans, based on the extensive powers of General Incompetence, spread through New Zealand do not be surprised if activity grinds to a halt everywhere.

Truly, this regulatory sprawl kills economic activity if only because the best brains spend far too much time digging through the piles and piles of DURT.

This can be remedied but it takes a total unwinding of our regulatory framework.

In particular we have to move from rule-based decision making to skill-based decision making.

The world is too complex, varied, and changing, for activities to be regulated by ever expanding books of complex rules.

We have to learn to trust our land and building professionals, just as we trust our doctors and surgeons. But those professionals will have to be prepared to guarantee their work and be suitably insured.

Then we can focus on outcomes like the Mesopotamian Code of Hammurabi, written around 1790 BC, that contains excellent examples of simple rules for a complex world. For example, Law 229 says:

If a builder build a house for some one, and does not construct it properly, and the house which he built fall in and kill its owner, then that builder shall be put to death.

Which is why they had no need for building codes, structural design codes and building inspectors.

And law 233 says:

If a builder build a house for some one, even though he has not yet completed it; if then the walls seem toppling, the builder must make the walls solid from his own means.

Imagine if those people with leaky homes had to argue their case with reference only to these few laws, and without all the diversions about councils, codes and building inspectors.

It seems highly probable that everything would have been sorted out ages ago, or more likely, the buildings would never have leaked in the first place.