Rethinking Land Use Rights and Restrictions under the RMA
Part 3 of the Resource Management Act 1991 sets out duties and restrictions in relation to the use of resources. The starting point is that a person may use land (i.e. private property) as they see fit unless the use contravenes a regulation (s 9).
In relation to “common” resources, uses are generally restricted unless they are expressly allowed (ss 12-15). These contrasting presumptions require policymakers and plan-writers to justify constraining any land use, and to define the circumstances in which access to and use of common resources are allowed.
Despite Parliament’s intention to make land use “permissive”, in practice, this presumption has been all but reversed by councils through their plans. This is achieved using “catch-all” rules which require resource consent for activities that are not expressly allowed.
These rules contrast with the intent of s 9 and raise issues of a constitutional nature. However, their existence has largely been tolerated. This article argues that a re-writing of s 9 is needed to remedy an obvious and persistent disconnect between theory and practice.
Author: Daniel Shao