Brookfields Lawyers partner Linda O’Reilly takes a look at New Zealand’s loopy rules.
It is hard to tell if the Rules Reduction Taskforce is a populist sop put together by the government to distract from more serious issues, or a genuine attempt at improving the processes affecting businesses and homeowners who run up against regulatory frustrations.
According to its recent report, The loopy rules report: New Zealanders tell their stories, the taskforce was charged “with hearing from property owners, builders, tradespeople and businesses that have experienced the effects of irrelevant or unnecessary regulations”.
Of course, the problem lies in determining what is ‘irrelevant’ or ‘unnecessary’, and it appears from the report that two thirds of this is in the realm of the Resource Management Act 1991 (RMA) and the Building Act 2004, and three quarters of issues are about the responsibilities and actions of councils. It may as well be called “The loopy rules that councils make” report.
While many local authorities and related agencies made submissions, the sector group submitters were heavily representative of the construction, development and tourism sectors. Clearly the concerns that have been expressed about the cost of building and development have been given an outlet, with the hope of resultant action.
But the problem with the report, in taking on all comers, is that it is bound to be once over lightly. Concentrating as it does on concerns with the performance of councils, and the regulatory impact of the RMA, Building Act and both Local Government Acts (1974 & 2002) – all of which have been under ongoing review now for years on end – it is hard to see what it usefully adds to the dialogue about regulatory impact on businesses and homeowners.
To be fair, the report does note that loopy rules can be as frustrating to enforcement agencies as they are to those on whom they impact. And it highlights some “myths”, where the popular understanding of rules supposedly limiting development are simply wrong.
But the problem is the report appears to accept many anecdotal instances of loopy rule making at face value, and skips lightly over the purpose of the enabling legislation.
Further, many of the suggested “fixes” are simplistic (eg, cap government building fees), overly broad (eg, review the Local Government Act 1974 and the Reserves Act 1977), self-evident (eg, all local government chief executives should have a customer focus), or re-visit well-trammelled ground (eg, review tree protection rules).
That is not to say the report does not introduce some interesting possibilities. There are some detailed observations on the RMA and Building Act that would certainly bear further investigation, and some potentially useful and thoughtful analysis has been undertaken.
For example, the suggestion that resource and building consent applications for the same development should be treated as a single application warrants consideration, notwithstanding the separate regulatory regimes applicable.
It also suggests knocking off some of the low-hanging fruit. For example, antiquated rules that do not recognise a microwave oven as an acceptable means of providing for food preparation in a dwelling without a conventional oven, and removing the need to register hairdressers each year now that they are no longer viewed as a significant health risk.
There are also comments on how rules are made, and how the making of loopy rules might be avoided, as well as the suggestion that local authorities adopt the government’s Code of Good Regulatory Practice. Further, the report acknowledges the importance of consultation with stakeholders in making regulations, although it seems to me that local government is already somewhat better and more practised at that than central government.
Hopefully some good things will flow, but it is difficult to see it as much more than a distraction.
This article was first published in the November 2015 issue of NZ Local Government Magazine.