BRYCE MCKENZIE: We're taking Gore District Council to court

Bryce Mckenzie, co-founder of Groundswell NZ explains clearly what is happening in Gore and why it is relevant to all of New Zealand.

We’re writing to update you on the proposed Gore District Plan, how it will affect all of New Zealand, and our latest step to take our campaign for property rights to the courts.

This isn’t just about Gore, but the ever-expanding ways interest groups use planning legislation to wedge themselves between landowners and the legitimate uses of their land. It’s Gore today, but it could be any council tomorrow.

And, before anyone gets carried away, this isn’t just having a go at Maori either. Our point is that planning laws like the RMA and its replacements, along with council plans and their decisions, are about striking a balance between the public interest and private property rights, not giving every activist crowd, busybody NGO, bureaucratic entity, and, yes, local iwi, a bite at controlling what someone does with their land.

We will always be more on the side of property rights than most. But you don’t have to take our whole view to join us in thinking these groups are having too much say and that politicians aren’t doing enough to stand up for both private landowners and the broad public interest.

The Gore District Council’s proposed district plan is one of the worst cases we’ve ever seen. The local iwi interests are given a say on anything someone might do.

The usual litany of unworkable, counterproductive, and intrusive land classifications known as the Land Grab are also still at play and are still failing to strike any kind of balance with property rights. That includes a floodplain map through the middle of Gore - affecting 79 streets -  made under RMA Section 6, that will require any new buildings or renovations to raise their foundations by 1.5 metres.

That’s why we’ve filed an appeal with the Environment Court to get the proposed plan changed.

How we got here

You may recall in October 2024 when we broke the news that the entire Gore District would be classified under the SASM (Sites and Areas of Significance to Maori) provision of Section 6 of the Resource Management Act in the Gore District's proposed district plan.

Rather than following the original intent of the RMA, which was to allow for consideration of specific locations, like a burial site or important archaeological find, the proposed text would make just about everything a SASM:

“All land, waterbodies, natural features, and marae within Gore District are recognised as sites and areas of cultural significance to mana whenua and/or tangata whenua, and are afforded appropriate considerations in relation to their management, development, and use.”

Those “appropriate considerations” mean the mana whenua (Ngai Tahu and Hokonui Runanga, in Gore’s case) get to weigh in on resource consent applications, while also being who the council asks about “cultural significance” and who an applicant would hire to consult on their application. There’s being a judge in your own case, but this is being the judge, the key witness, and the lawyer.

Now, was the earlier 2006 district plan in breach of Treaty conditions, with its narrow and definitive list of six sites classified as SASM? Of course not.

So, what changed since then? Gore District Council asked Hokonui Runanga (Ngai Tahu’s Gore component) what they considered significant and then accepted when the Runanga said “all of it”. Then, after asking no one else, the Council put that in the proposed district plan.

We don’t really blame the Runanga for pushing their luck. They were asked what they wanted and they said so. Our main point through this entire saga has been that the council does not have to do this under any sort of Treaty obligation and they should not do it due to their obligations to residents and landowners. Having just one side of a political issue, like land use management, write the rules is no way to reach a lasting settlement everyone can live with.

After we started making a fuss, the Council said in November 2024 that there wouldn’t be a SASM over the whole district, but instead a “Cultural Values” chapter that covers everything in the plan that applies to the whole district.

If you’re wondering what the practical difference is – well, not much. But, now we’re at the legal review end of the district plan process, the Council isn’t having to defend the flimsy claim that the whole district is significant to Hokonui Runanga under the SASM provisions. Instead, it’s that there are cultural values that may be affected by anything going on in the whole district and the Runanga has to be asked whether it feels that something going up for a resource consent affects a cultural value.

You might now wonder, what exactly are these cultural values?

The specifics are the very broad and vague bureaucratic speak under Maori headings that you might expect from government documents these days. But these are worded to mean that the cultural values are affected by everything.

Take the Whakapapa value – is this saying that Hokonui Runanga have a particular duty to their ancestors and so burial sites and archaeological finds are important to them? No.

In fact, they claim that “No distinction is made between the inanimate and the animate, or between abiotic and biotic. Māori relationships with the world are part of this indivisible whakapapa linkage.”

So, that’s everything, then. Whether it moves or doesn’t move, whether it’s alive or never was, it’s all whakapapa and all affecting cultural values.

And, just in case it wasn’t clear that anything to do with water use is to be run by them, they add “For Hokonui Rūnanga, water is the medium flowing through the takiwā that makes these connections.”

Then, under Mauri, which they define as “the life principle, life supporting capacity, or life force present in all things.” we get another way to make every possible activity that could occur into something that impacts the Runanga’s cultural values:

“Hokonui Rūnanga treasure the mauri of freshwater, land, and other resources, and experience cultural harm, offence, and distress when that mauri is degraded. The overuse, depletion, or destruction of natural resources leads to a diminishment of mauri. This is unacceptable to us. Any alteration of the natural environment, including impacts on flora and fauna, water, or earth will have an effect on their mauri.”

We won’t go through all ten values, but it’s much the same throughout. If you want to take a look, these are from section 2.3 of the Mana Whenua chapter on the Council’s website. (click here to download) 

The summary is that, for anything you might do, you’ll be stepping on the Runanga’s toes and they will have to be consulted.

Gore District Mayor Ben Bell, trying to calm everyone down, said that the final decisions will still rest with the council. Never fear, the Runanga doesn’t get a veto, just a chance to weigh in and tell the council what they want out of someone’s application.

But, as ever with bureaucratic processes, the process is often the punishment. The proposed district plan says in the introduction that:

“In some cases, such as where cultural issues are involved, engagement with mana whenua may be the only way in practice for the applicant to properly assess the potential adverse effects of a proposal and an applicant risk prejudicing the outcome of their application if they do not undertake consultation.”

There may not be such a specific thing as a veto, but the Council wants you to know that failing to consult with Hokonui Runanga on “cultural issues” (read: anything and everything) might see your application run into trouble.

No longer just a frustrating bureaucratic process with a council system that’s at least in theory accountable to your neighbours, a resource consent will be mediated by a non-democratic group with their own interests.

Now, the proposed district plan has been formally released and is in what's called the appeal stage, where those who submitted can ask the Environment Court to overturn decisions made.

But there’s more

It’s come to light since we’ve been campaigning about these cultural values and the RMA Section 6 problems like SNAs, that another Section 6 problem is brewing under the newer natural hazards requirement in Section 6(h).

To address the effects from a projected 1-in-200 year flood of the Gore River, the proposed district plan requires any new builds, as well as any alterations to plans like an extension, to raise its foundations by 1.5 metres. In the CBD, it’s by 1.8 metres.

This is an enormous imposition and we’re aware of developments already running into trouble with their consents because of this new requirement. For a small town like Gore, this could be the difference between any development occuring in town at all and a complete regulation-induced freeze of building.

This is a little different than the cultural values question, but the fundamental themes are similar. Rather than allow landowners to decide what to do with their own land, the council is deciding for them. What if that chance of a flood and the possible damage isn’t worth the expense and complexity the rule creates?

Individuals should be able to decide what risks and expenses they want to sign up for. At the least, that should be between them and their insurance company.

Like a farmer hit with an SNA, this approach to a common natural hazard - like the sort of flood risk towns across New Zealand have to think about - could lock a homeowner in their mortgaged property, unable to sell or develop because no one wants to take on the planning restrictions. What recourse does the property owner get?

We think councils and the entire planning system should get out of this kind of micromanagement and get back to core council business. Maybe they might like to look at managing flood risk through stop banks and river management.

The important thing to remember with every RMA Section 6 problem is that the specific rules, ridiculous as they might be, are just the symptom. The intense prescriptivism of planning law in New Zealand starts at the top with legislation and neither Labour’s nor the Coalition’s RMA replacements improved on the current RMA. Then the powers of that legislation filter through the paternalism and risk avoidance of our bureaucratic class, whether in central or local government.

The landowners and anyone who transacts with them (renters and workers suffer too) get left holding land they can’t use and still get the bill for it.

There is another way. We don’t have to have government manage what should be private risks at all. And community goods like looking after our environment are far better done by the likes of catchment groups than by layers of bureaucrats ticking off on each other’s forms.

We can stop the Land Grab by getting rid of the Section 6 approach all together and empowering landowners and their communities to get on with looking after the land they care more about than anyone else ever could.

Our appeal

After talking to Gore District Council directly and having over 10% of Gore residents sign our petition against these parts of the proposed district plan, they still won’t stop these outrageous changes and we’re now at the point where legal action is necessary.

We’ve filed a notice of appeal with the Environment Court, saying that the Council failed to properly make its decisions with regard to RMA Section 5 (the purposes of the Act) and Section 32 (analysis of whether a chosen option is the most effective, efficient, and appropriate).

We’re asking the Court to remove all the parts of the proposed plan that come from RMA Section 6 (the land classifications) and bring in an alternative approach to natural and cultural values that properly aligns with how the legislation was intended to work.

We argue that the current proposed plan fails to meet the goals of the RMA because it:

• Turns natural, cultural, and historic values into a liability rather than an asset.

• Penalises environmental endeavour, with those property owners most proactive in protecting natural and/or cultural values penalised the most.

• Impacts property values with, in some cases, substantial loss of property values for those that have most, or all their property captured under a zone(s).

• Forces councils into conflict with their communities and their most conservation minded constituents.

While we’re hopeful of a successful outcome, we know various councils and Hokonui Runanga are already trying to stop our appeal. The point here is not just the legal decision we get, but to show all councils and the bureaucratic class that the patience of their ratepayers is not infinite. There are costs to their attempts at expanding their control and the interests of their preferred groups.

We will stand up for ourselves.

Like any legal action, this will likely become an expensive endeavour. But we believe its worth it to push back and to keep the activists, bureaucrats, and rent seekers on their toes. As we say, this isn’t just about Gore, but about the way New Zealand’s entire land use regulatory system works to undermine property rights and community decision making.

We’ve been pleased to see others get on board too. Federated Farmers has also filed at the Environment Court and there are a few others suing Gore District Council over different matters in the proposed plan, as well.

We will keep you updated and let you know how you can join the fight.

Watch our submission on the RMA replacement bills

This Proposed Gore District Plan is being made under the current RMA, but the replacement RMA bills currently at select committee are an opportunity to stop these attacks on property rights and common sense regulation at the source.

The Coalition’s promises on RMA reform aren’t in the bills, though, and we’re in danger of missing that opportunity.

Worse, there’s a whole new bureaucracy coming in the form of Freshwater Farm Plans that will require every farmer in the country to file paperwork under planning laws, even those who don’t reach the environmental impact to need a resource consent under the current RMA.

Click here to watch Jamie and Bryce tell the Environment Committee what needs changing.

Groundswell NZ is a grassroots volunteer-driven advocacy group seeking a halt to, and rewrite of, unworkable regulations which unfairly impact farmers and rural communities. You can support their efforts here.