In Mary Wollstonecraft Shelley’s 1818 classic, Victor Frankenstein claims to have created his monster for the betterment of humankind.

Of course, Frankenstein’s undertaking proved more arrogant conceit than utopian undertaking. After stitching together various existing remains, his creation was both grotesque and destructive. And, as we all know, it was eventually his undoing.

Our own monstrous amalgam, the Resource Management Act (RMA), turned 25 this month. It too had utopian ambitions. But as we now know from its cursed track record – of which the Auckland housing crisis is only the latest example – it too has proved a terrible conceit.

It is cruelly ironic that an act designed to ensure people and communities are able to provide for their well-being is causing poverty and hardship.

Though the Bolger government delivered the RMA in 1991, Environment Minister Simon Upton was little more than a midwife. It had its genesis in the 1980s, during the fourth Labour Government as the brainchild of (now Sir) Geoffrey Palmer.

It was inspired by the 1987 report of the World Commission on Environment and Development, which first came up with the “sustainability” concept that later gained an international following at the 1992 Earth Summit.

There were also domestic spurs for reform. The first came from opposition to the National Development Act, which had been responsible for fast-tracking the flawed “Think Big” projects of the early 1980s. The second was the need to simplify the hotchpotch of statutes governing the use of resources.

Finally, and most importantly, was the need to loosen the stifling constraints of the Town and Country Planning Act, which allowed local government planners to direct and control almost every new development.

In amalgamating laws covering planning, land, water, air and pollution under one statue governing the management of all resources, the RMA was the largest law reform project ever undertaken. Its enactment saw the repeal of 59 separate acts. In this it was a world first.

It promised to streamline the consenting process with a new one-stop-shop. At the same time, it heralded a new, environmental “effects-based” test. This replaced the old “needs-based” decision-making by officials on all new developments.
The RMA was almost universally regarded as an improvement on the existing laws. But while the old legislation had no defenders, there was almost no willingness to question the new law’s fundamental premises.

The promise was that all human development would be permitted as long as it did not contravene a district plan. In turn, these would be restricted to preserving environmental “bottom lines.”

Unfortunately, history would show this to be wishful-thinking. Far from heralding a permissive era of human development, the RMA proved brutishly restrictive.

Its central concept of “sustainable management” may be a laudable goal but even now no one can know what it means. As a concept it provides no help in undertaking proper public policy analysis. And by supplanting essential concepts like externalities, property rights, public goods and public welfare, it is positively unhelpful.

As a result, the RMA became a central planner’s dream. It allowed complete discretion in decision-making and required no accountability. The language proved so vague it could be used to prohibit more-or-less anything. And it has.

Added to the mix is the execrably vague wording of “principles” in s6 and s7. These are littered with the notoriously imprecise word “inappropriate.” This vagueness is then matched by the equally meaningless “intrinsic values” in s2.

The result is so unclear and uncertain that some legal commentators have said it offends the rule of law. It is little wonder it has been impossible to tame. At last count it has been amended 20 times in its 25 years.

Despite this, the tinkering persists. The latest round of improvements is set out in the 180-page Resource Legislation Amendment Bill now before a select committee. It includes no fewer than 40 individual proposals. The Ministry for the Environment claims these are “aimed at delivering substantive, system-wide improvements to the resource management system.” Indeed!

To achieve reform, the government has turned to the Maori Party for support. But this has come at a price – in the form of a proposal to grant iwi the right to be consulted on new applications for resource consent.

It is no surprise Winston Peters leads a chorus objecting to this proposal as racist. At the same time, by adding another subjective element to the consenting process, it has the potential to be a “son of Frankenstein” to the RMA itself.
It is doubly ironic that this latest attempt at reform comes when both the government and the opposition are in violent agreement that the RMA is responsible for Auckland’s housing affordability crisis.

What can be done? The answer lies in the RMA’s great conceit: that planners and politicians are better placed to decide how resources should be used than their owners. As that approach has clearly failed, we need to start afresh.

It is true that private property rights regulated by the common law will not always lead to acceptable outcomes. But that does not require a regime that places all decision-making in the hands of government.

The urban planning component of the RMA has been handed to the Productivity Commission for a reappraisal. We can only hope this will be a well-considered assessment of planning law that should have preceded the enactment of the RMA 25 years ago.

Where property is in private hands, the review should ask “what is wrong with letting private owners make their own decisions?” For centuries the law of property, contract and tort – with their focus on harm to third parties – did just that. And great cities were built on this basis.

Indeed, our own cherished Victorian suburbs with their gracious villas were built with minimal help from town planners. Contemporary planners can learn from this.

In Mary Shelley's masterpiece, though torn by remorse, Victor Frankenstein refuses to admit to anyone the horror of his creation, even as he sees it spiralling out of control.

A quarter of a century on, let's hope Sir Geoffrey's heirs can do better.