RMA 3.0

 Another go at reforming the RMA gets underway. The reforms will be based on the work of an expert advisory group (EAG), which in turn based their work on Ministerial direction. Good to know that everyone is following along in an orderly manner.

 What is in store for urban environments? A Planning Act is proposed. This will sit alongside its twin – the Natural Environment Act. The purpose of the Planning Act is regulating the use, development and enjoyment of land. The Planning Act will include goals for infrastructure provision and well-functioning urban and rural areas. Meanwhile, the Natural Environment Act will set limits on the use of natural resources.  I’m not too sure how the two Acts will tie together – spatial planning looks to be the mechanism that will seek to integrate the two Acts.

 Setting aside whether regional level spatial planning is up to the task, I want to have a closer look at what underpins the Planning Act – what is the stated rationale (or basis) for managing urban areas? Will  the new Act be fit for purpose? If we look at Auckland, then the planning act needs to provide a means by which a diverse range of urban issues can be addressed, including:

•  Managing the timing of development and redevelopment to match infrastructure upgrades
• Ensure better designed medium density development
• Rework building height limits to go ‘up’
• Retain valued resources like a soft green coastal edge, views of maunga and the inner city’s world beating collection of  ‘special character’ neighbourhoods.

To start with, there may not be much ‘urban’ in the Planning Act. Certainly not urban design, which is not mentioned once in the expert advisory group report.  The word urban appears 55 times, but mostly in the context of ‘urban development and infrastructure.’

 The built environment is referenced once in the negative – “subjective matters in relation to the quality of the built environment, such as the architectural style or colour of a neighbour’s house, will be excluded”.

 So not a great start.

 But not surprising when the main rationale of the planning act is to ‘enable the enjoyment of property rights while ensuring  land use does not unreasonably infringe on the rights of neighbouring property owners to enjoy their own land, including by separating incompatible land uses’.

 The recommended approach to effects management is apparently based on the economic concept of “externalities”. The report says that an externality is a cost or benefit resulting from one party’s activities that falls on an uninvolved third party. This means that effects that are borne solely by the party undertaking the activity will not be controlled by the new system. This includes, for example, matters associated with interior building layout or exterior aspects of buildings that have no impact on neighbouring properties (such as the size and configuration of apartments, the provision of balconies, and the configuration of outdoor open spaces for a private dwelling).

For sure, managing externalities is a relevant basis for regulating urban environments, but is far from the only one.

Before looking at the wider picture, it is worth trying to unpick the concept of externalities a bit. 

Managing externalities sound like a good  place to start, but where do externalities start and stop in an urban environment which is constantly changing? Determining which actions are considered externalities and accurately measuring their impact can be difficult. This is especially true for complex situations with multiple actors and far-reaching consequences(i.e. urban areas).   Poorly defined and externalities can easily become the war cry of NIMBYs – does a taller development next door that ‘steals’ part of my view and/or some sunshine mean that my property rights have been trampled upon with no compensation?  Externalities are not just neighbour versus neighbours. They also arise at the public – private interface, such as the street interface. Does a high blank wall along the street boundary of my section help me enjoy my property rights, but at the expense of the enjoyment by the community of the public environment?  

More broadly, the EAG report is silent on the fundamental importance of complexity, uncertainty and stakeholder disagreement to many urban problems.  The response is to seek to simplify plans, reduce uncertainty through a narrower focus and reduce stakeholder involvement  But is this the right way to go? What happened to positive outcomes like promoting well-being, quality environments  and sustainable development? If the city is to build up, then plans will need to get more complex and community engagement will need to go deeper rather than lighter. 

 Having a standard set of urban zones and one plan per region sounds OK, too. But this type of ‘simplification’ ignores the fact that plans are bulking up because of a push towards greater density and place-based responses. 

With greater density comes the need for greater scrutiny of building design, not in the sense that the building looks nice, but in terms of factors like outlook, privacy, dominance and functionality. With over 50% of building typologies in Auckland now terrace housing and apartments, the need for appropriate qualitative consenting pathways is growing.   

The trend towards place-based approaches is fuelled by digital technology and no doubt by AI in the near future. This place based (or design-led?) approach is a different but more coherent response to the complexity of urban areas than a ‘strip it back’ approach. Place-based plans enable participation by stakeholders in a hands-on way and promote a diversity of built form responses in small areas. The plans give some confidence to both developers and residents about the future shape of the environment. They facilitate investment in quality outcomes (public and private). The Auckland Unitary Plan is actually a couple of hundred little plans (Precincts).

EDS[1] have attempted to define a broader ‘scope’ for a reformed RMA. They have suggested four key principles:

·      Common pool’ resources need to be protected and allocated
·        The system needs to manage the negative impacts that people can have on each other
·        The system needs to address negative impacts on the broader ‘environment’
·        The system needs to generate positive effects

Not a bad list.

My pick as to the rationale for intervention in urban environments is that the planning act should focus on those aspects of market-based decision making which tend to be downplayed / ignored due to common biases. Things like:

·        discounting the longer term, counteracting short termism
·        Being systemic rather than siloed
·        Signalling changes to the urban environment to allow people and businesses to adapt and be less             fearful of change (i.e. in three years’ time, the zoning of this area will shift from A to B)
·        Push the positive  (quality of the public realm) while managing the negatives.

In short, setting up a planning system whose sole aim is  to better respond to  ‘shocks’ to urban areas, like immigration surges putting upward pressure on housing supply, or poorly designed tax frameworks fueling housing speculation is a narrow, short term,  objective for urban areas.

But this is not to say that any planning system can have an open-ended ambit, free to rein across urban areas.  A focus on managing externalities is too narrow, but equally a focus on everything is too broad. Where is the solid ground on which to stand?

It is easy to say that this middle ground is where the benefits of planning outweigh the costs, but there are too many costs and benefits to add up for this to be a good guide.

Perhaps the middle ground lies in some sort of guiderails for when too much planning is too much. Plans are free to develop and set frameworks that manage urban areas (including urban design and recognising infrastructure constraints) and develop placed based plans provided that:

 ·        Housing and business capacity across the city stays 3 times ahead of  expected demand
·       Areas and features can be protected, provided they do not exceed 15% of the city’s area
·        No more than 30% of dwellings  and business premises (floorspace) is authorised by resource                 consents, with the majority being permitted.

Crude? Yes, Are the metrics right?  No. But the idea is to allow for planning to be wide ranging, provided that it delivers on key outcomes. 

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[1] Exploring the fundamental questions for resource management law reform in Aotearoa New Zealand

Paper 2: The scope of the system Environmental Defence Society 2025