Heritage is one of the most important aspects of a country’s identity. Land, buildings, our
taonga - they all contribute to the history of the nation. They require protection, and it is
the responsibility of each generation to provide this for the next.
The protection of New Zealand’s heritage is largely provided for through two Acts. The first
is the Resource Management Act 1991 (RMA), with an amendment made on 1 August 2003
stating heritage as a “matter of national importance”. 1 The second is the more recent
Heritage New Zealand Pouhere Taonga Act 2014 (HNZPTA) which repealed the Historic
Places Act 1993, continuing and building on its primary purpose of promoting “the
identification, protection, preservation, and conservation of the historical and cultural
heritage of New Zealand”, with particular application to archaeological sites.2 This essay will
briefly outline these two Acts, exploring the powers they possess, what enforcement
options are available and the relationship between them. The effectiveness of their
protection for built heritage and archaeological heritage will be evaluated and compared
through case law. The RMA can be seen as the overarching document for the management
of all New Zealand’s resources, while the HNZPTA is a heritage specific act.
The Resource Management Act 1991 has a primary purpose to support the sustainable
management of natural and physical resources. Part of this includes the protection of
physical resources to provide for the social and cultural wellbeing of communities. It
recognises both the “relationship of Maori and their culture and traditions with their
ancestral land” and the “protection of historic heritage” as matters of national importance.3
It allows for enforcement orders to be made by the Environment Court, prohibiting actions
that contravene the Act, provides for rules in territorial plans, heritage orders and resource
consents. Committing an offence against any enforcement order offers the possibility of
the highest penalty outlined in section 339 of a maximum of two years in prison or a fine
not exceeding $300,000.
The RMA recognises Heritage New Zealand Pouhere Taonga (HNZPT) as a heritage
protection authority, enabling it to carry out its functions and powers. This supports the
Heritage New Zealand Pouhere Taonga Act 2014, which is the main legislation specifically purposed to protect heritage in New Zealand. The Act enables protection through a
number of methods. Heritage covenants can be entered into with consent from the owner
of a building to provide terms and conditions for the protection of a heritage property.
Covenants are attached to the land, and remain active during change of ownership. The Act
provides overarching protection for archaeological sites dated before 1900, requiring an
authority from HNZPT to modify or destroy these sites. However, this protection does not
extend to buildings on archaeological sites. An authority is only needed if full demolition of
a building is proposed.4 Further to blanket protection for pre-1900 sites, HNZPT has the
power to declare any post-1900 place an archaeological site if it provides “significant
evidence relating to the historical and cultural heritage of New Zealand.”5 The Pouhere
Taonga Act provides for the creation of the New Zealand Heritage List/Rārangi Kōrero for
the purpose of information gathering which may influence local authority scheduling for
protection of heritage. Offences to the Act in the cases of destruction and modification
induce fines not exceeding $150,000 and $60,000 respectively for individuals, and
$300,000/$120,000 for companies. Enforcement occurs through the Environment Court.
Overall the Pouhere Taonga Act provides extensively for heritage protection, however
through case law some weaknesses may be illustrated.
The first case that will be analysed is Lambton Quay Properties Nominee Ltd v Wellington
City Council (2014) regarding the effectiveness of the RMA. This case involves an application
by the building owner of the Harcourts Building on the corner of Lambton Quay and Grey
Street for demolition. The building was assessed by Wellington City Council in 2012 as
being earthquake prone, and options under the amended Building Act in 2017 of
strengthening or demolition were presented to the owner. The building was on the New
Zealand Heritage List/Rārangi Korero as a Category 1 Historic Place. Wellington City Council
denied the owners application to demolish “based upon its interpretation and application
of the heritage provisions of the Council’s District Plan created under the Resource
Management Act.”6 This is the reason for the owner’s appeal to the Environment Court, as it
was found that strengthening the building was a “financial disaster”.7
The Environment Court denied the owner’s appeal, finding that the building was of high
heritage value, and contributed strongly to the streetscape. The RMA was relied upon
heavily for the outcome of the case, referencing sections 6 and 7, requiring the owner to
suggest an appropriate development that would overcome the nationally important
protection of historic heritage. The District Plan provisions relevant to heritage - made
possible by the RMA - were also strongly expressed, discouraging demolition. An issue
raised by the Environment Court referred to “tension” and “inherent irony”8 between the
Building Act and RMA. Failing to comply with the Building Act may have resulted in the
owner being prosecuted and/or the Council applying for authority to demolish for public
safety issues and a lack of funding. On the other hand the Council declined the owner’s
demolition application because of the heritage provisions of the District Plan. In this case,
the building was of high enough heritage value that its protection was prioritised. The new
provisions of the Building Act introduced by the need for seismic strengthening could lead
to a loss of heritage, creating conflicts which require resolution through the courts.
The second case regarding the effectiveness of the RMA is the New Zealand Historic Places
Trust/Pouhere Taonga v Manawatu District Council (2004).9 This revolved around the
Sidnam Building in Feilding, constructed in 1902 and classed as category B in the District
Plan. Council accepted an application for demolition, which was appealed unsuccessfully by
the New Zealand Historic Places Trust (now HNZPT). As the first case following the
amendment to s6 of the RMA - recognising national significance of heritage - this played an
important role in interpreting the amendment for future cases. The court concluded the
amendment “does not mean that every building which might be said to be of significance
as historic heritage has, individually, become a building of national importance.”10 It was
held that section 6 did not override section 5, meaning the building should not be
protected at all costs, but rather protected in terms of sustainable management, which
might not be viable. The issue raised here was the meaning of “national importance”.
Heritage consultant Dr Ann McEwan addressed this issue, questioning what the law on
national importance meant without a national policy statement guiding local councils on
interpretation of the RMA.11 While it is positive to acknowledge the protection of heritage as
nationally significant, without specificity any case can be argued to have national
significance or inversely not be significant enough, so as not to warrant protection.
The Pouhere Taonga Act has been recognised as extensive in its reach, however it has also
been criticised for its shortcomings concerning cultural landscapes. This can be seen in the
case of King v Heritage New Zealand Pouhere Taonga (2018), concerning an archaeological
site near Ihumātao being redeveloped for residential purposes. This case involved an
appeal against HNZPT for granting an authority to Fletcher Residential Limited for the
destruction or modification of archaeological sites.
The property contained a number of drystone walls and drainage systems, as well as
several archaeological sites, including two shell midden relating to Māori occupation. The
site in question was considered a wāhi tapu area, relating to approximately 800 years of
Maori activity.12 For this reason an authority from HNZPT was required under the Pouhere
Taonga Act. HNZPT gave authority to Fletcher Residential Limited to develop the area,
saying the authority excluded areas of archaeological sites, and was subject to conditions
related to possible archaeological findings during development. This authority was
appealed by Betty King, a kuia with a whakapapa connection to Makaurau Marae, on the
grounds that archaeological investigation of the area was incomplete. This appeal was
denied. The Environment Court found that a degree of sensitive urban development would
better give effect to the single purpose of the Act, than a total restraint on future
development.
It is interesting to note that the application by Fletcher Residential Limited was rejected by
HNZPT twice. On its third effort, Fletcher advised HNZPT it would seek judicial review if the
application was denied again.13 HNZPT followed by granting an authority. This raises
questions over power relationships and the low capacity of HNZPT; avoiding court
proceedings with the branch of a $4.6 billion building giant.14 The court decision to deny
the appeal shows a failing in the Act’s ability to protect cultural landscapes. The court found
that “statements of general policy [within the HNZPT Act] are primarily for the purpose of
HNZPT’s internal management when considering an application for an authority, rather
than as factors against which its determination is to be assessed.”15 In other words, policy
within the Act has no “statutory teeth”16 and is unable to provide protection in an effective
manner.
The case of Taggart Earthmoving Ltd v Heritage New Zealand Pouhere Taonga (2016)
displays the effectiveness of the Pouhere Taonga Act, although points to potential issues it
does not cover. This case was based around McLean’s Mansion, a building extensively
damaged by the Canterbury earthquakes. In July 2013 the Canterbury Earthquake Recovery
Authority determined the building was dangerous. Notice was given to the owners that it
needed to be demolished or strengthened. The building was listed on the New Zealand
Heritage List/Rārangi Korero as a Category 1 Historic Place, and as it was also an
archaeological site, could not be modified or destroyed without authority from HNZPT. On
14 September 2015 Taggart Earthmoving Ltd, acting for the building owners, applied for an
emergency authority to demolish the building. On 29 September 2015 this application was
declined by Ms P J Bain - (working under the Canterbury Earthquake (Historic Places Act)
Order 2011) - finding that “despite the damage caused by the Canterbury earthquake… [the
building] has retained its outstanding historic heritage value.”17 This declined authority was
the reason for the appeal by Taggart Earthmoving Ltd.
Taggart Earthmoving argued that if demolition was approved it would be undertaken in a
controlled manner that salvaged the building’s materials for reuse. However, given the
sound condition of the building’s timber framing, and the relatively straightforward method
of strengthening to 34%NBS, (albeit expensive), it was established that salvaging materials
for reuse would “not be an appropriate form of protection.”18 It was found that taking into
account the cultural and heritage values of the building, declining the application for
demolition would involve the least possible alteration or loss (with reference to s4(2)(b)(ii)
of the Pouhere Taonga Act 2014), and would safeguard the options of present and future
generations (s 4(2)(b)(iii)). As a result the court declined the appeal and the decision of
HNZPT was confirmed. The court concluded that all the factors of the statutory framework
were considered and they weighed in favour of declining the appeal. This shows an
effective use of the Pouhere Taonga Act in protecting heritage.
However the court said if the owners left the building to deteriorate, allowing its values to
diminish “over the passage of time”19, so that it no longer had lasting value in its own right
(as stated in s 4(a)), then demolition might be revisited in a new application. This shows an
obvious problem with heritage in New Zealand. When a court acknowledges loss of
heritage by neglect as a viable option for the owners of a significant building, saying the
passage of time will diminish the buildings value, it contradicts the principles of the
Pouhere Taonga Act. This is not safeguarding the options of future generations.20
There is currently no legislation stopping demolition by neglect, and it has often been
referred to as a “loophole” in heritage legislation.21 By contrast, Historic England have made
positive steps to prevent this from happening. In England, local authorities have the power
to issue a repairs notice to owners of listed buildings that appear to be neglected.22 After
no less than two months, if the owner has not taken steps to preserve the building, the
authority may purchase it as a compulsory act necessary for preservation. Also available
under legislation are Urgent Works Notices for the preservation of listed buildings.23 If the
owner ignores the notice then law allows the local authority to carry out works necessary
for preservation. New Zealand had similar legislation provided by the Historic Places Act
1980 in section 41 titled “Repairs notice”.24 This was removed by the Historic Places Act
1993. A Historic Places Legislation Review in 1988 acknowledged “the repairs notice
procedure has very limited application and has not yet been used.”25 However, it followed
on to state that “a proper standard of conservation could be made mandatory for all
important buildings… with repairs notice procedures or their equivalent available to
enforce this.”26 It recognised that statutory protection was useless if an owner could simply
allow their building to deteriorate. The reintroduction of a repairs notice amendment to the
Pouhere Taonga Act would certainly improve issues surrounding demolition by neglect.
The 2014 Act legislates the system for listing buildings, which includes allowing applications
by the public to get their properties listed. Before HNZPT researches the property,
information is logged into HNZPT’s internal database. Currently there are more
applications for listings than can be extensively researched to the extent that is required
for listing. In other words there is a backlog of applications due to the low capacity of
HNZPT. However these applications are still introduced into a database. This raises the
possibility of having a private list comprised of ‘category 3’ buildings that are unresearched,
but have the potential to be significant to New Zealand’s heritage.
This is a point echoed by commentators Jill Gregory and Amanda Stoltz - that listed
buildings or pre-1900 sites do not cover all of New Zealand’s heritage, leading to the fact
HNZPT needs to have a larger role to collect information and maintain a national database.27
The only issue with this is the current capacity of HNZ - there is not enough money to
fund such an extensive programme without a further commitment by the government.
Either more funding is required by the Government into recognising New Zealand’s
heritage (as it is a “matter of national importance,”) or there needs to be introduced a new
way to automatically monitor sites of potential heritage value through an increase in
technological capacity. That is, creating an automatic system whereby sites of potential
heritage value are logged, and a flag is raised under various conditions. For example, if a
resource consent is submitted, or a period of five years has elapsed without inspection into
the condition of the property. Unfortunately, this would create a responsive means of
protection, parking the ambulance at the bottom of the cliff. Given HNZPT’s current
capacity however, it is a realistic option. This would increase the opportunity of more active
monitoring of a larger range of heritage properties.
This essay has outlined a number of issues concerning the protection of New Zealand’s
heritage. As shown in the case of the Sidnam building, despite the Resource Management
Act recognising heritage as a matter of national importance, it does not set up a system
that gives this statement power in regards to all heritage. The Pouhere Taonga Act - while
extensive - does not offer effective policy for referral in court matters. It has furthermore
been criticised for prioritising private property rights over protection. 28 It has provided
successful protection, seen in the case of McLean’s Mansion, however an unfortunate
precedent tending towards demolition by neglect was established by the court. There are
possible remedies for this, displayed by Historic England’s repair notices legislation,
however this has not been adopted by New Zealand for the last 28 years. The capacity of
Heritage New Zealand has come into question in a number of ways, showing it has
weakened power in court, and an inability to cover the entirety of New Zealand’s heritage.
There is a possible opportunity to increase its monitoring capacity through database
utilization, however this will not necessarily provide for active protection.
1 Resource Management Act 1991, s 6(f).
2 Heritage New Zealand Pouhere Taonga Act 2014, s 3.
3 Resource Management Act 1991, s 6(e,f).
4 Heritage New Zealand Pouhere Taonga Act 2014, s 42(3).
5 Heritage New Zealand Pouhere Taonga Act 2014, s 43(1)(b).
6 Lambton Quay Properties Nominee Ltd v Wellington City Council [2013] NZEnvC 147 at [4].
7 Julie Iles, “Newly renovated Wellington heritage building reopens as a Hilton franchise.”
8 Lambton Quay Properties Nominee Ltd v Wellington City Council [2013] NZEnvC 147 at [82].
9 New Zealand Historic Places Trust/Pouhere Taonga v Manawatu District Council [2005] NZRMA 431.
10 Lambton Quay Properties Nominee Ltd v Wellington City Council [2013] NZEnvC 147 at [14].
11 NBR Contributor, “Deciding when history begins: New Zealand’s policy on heritage protection.”
12 The Conversation, “How a bias towards built heritage threatens the protection of cultural
landscapes in New Zealand.”
13 Frances Hancock, “The cost of our nation’s cultural heritage too high?”
14 NZX, “NZX Main Board.”
15 King v Heritage New Zealand Pouhere Taonga [2018] NZEnvC 214 at [78].
16 Frances Hancock, “The cost of our nation’s cultural heritage too high?”
17 Taggart Earthmoving Ltd v Heritage New Zealand Pouhere Taonga [2016] NZEnvC 123 at [26].
18 Taggart Earthmoving Ltd v Heritage New Zealand Pouhere Taonga [2016] NZEnvC 123 at [166].
19 Taggart Earthmoving Ltd v Heritage New Zealand Pouhere Taonga [2016] NZEnvC 123 at [171].
20 Heritage New Zealand Pouhere Taonga Act 2014, s 4(b)(iii).
21 Merrill Goldwyn, “Demolition by neglect, a loophole in preservation policy.”
22 Historic England, “Compulsory Acquisition of Listed Buildings.”
23 Historic England, “Urgent Works to Listed Buildings and Conservation Areas.”
24 Historic Places 1980, s 41.
25 Historic Places Legislation Review, 1988, 16.
26 Historic Places Legislation Review, 1988, 16.
27 Jill Gregory, Amanda Stoltz, “The uneasy relationship between the RMA and the heritage New
Zealand Pouhere Taonga Act – Ideas for an integrated framework?” 11.
28 The Conversation, “How a bias towards built heritage threatens the protection of cultural
landscapes in New Zealand.”
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