508. Under the RMA, body corporate Heritage Protection Authorities (HPAs) have the power to issue notices of requirement for heritage orders over private land. The primary issue with this empowerment is that it is an intrusive interference with the private property rights of others. This has been a constant concern since the enactment of the RMA in1991.
509. HPAs under the RMA have powers to protect places or structures with special heritage qualities. Currently, an HPA can require a heritage order over a place, or structure to protect its special historical, spiritual or cultural qualities. An HPA includes any Minister of the Crown, a local authority, Heritage New Zealand Pouhere Taonga (Heritage New Zealand), and approved bodiescorporate.
510. A high level of protection is afforded to heritage orders:
- Under section 193 of the RMA, no person may use or undertake works on a building or land that would nullify or partly nullify the effect of the heritage order without the prior written consent of the HPA. This is extended to the owners of land under which heritage orders have been put inplace.
- Under section 195 of the RMA, a heritage order can only be revoked or amended by the HPA that is responsible forit.
511. The use of heritage orders by bodies corporate may have an intrusive regulatory impact on private land. There have been long standing concerns about how heritage orders work in practice in terms of bodies corporate. In 1999, the Environment Court commented that 'the Act is curiously silent as to how an order might actually work in practice bearing in mind that the heritage protection authority would not normally be the owner of the land' 10
512. The amendments proposed may impact directly on HPAs who currently have a heritage order and on body corporate HPAs who intend to obtain a heritage order over private land in thefuture.
513. The proposal is to amend section 189 of the RMA to state that an HPA that is a body corporate may not give notice for a heritage order over private land. Therefore, HPAs that are bodies corporate will no longer be able to regulate private land through heritage orders. However, bodies corporate would still be able to seek HPA status and obtain heritage orders over publicland.
514. Transfer provisions will be included to give the Minister for the Environment the ability to transfer responsibility for a heritage order from an HPA to another HPA that is not a body corporate. The transfer provision will allow the Minister for the Environment to transfer responsibility of a heritage order without revoking the HPA's status, removing heritage orders or introducing retrospective legislation. However, although this process could remove a heritage order responsibility from an HPA to Heritage New Zealand, a local authority or Minister for the Environment, the HPA could continue to operate as a 'guardian' of a heritage place, without regulatorypowers.
515. This proposal would fulfil the objective of reducing undue interference on private property rights while retaining the ability of bodies corporate to seek HPA status, obtain heritage orders over public land and continue to act as 'guardians' of a heritage place where the responsibility for a heritage order has been transferred to another HPA. This means that the community and community groups can still participate in heritage protections. It will, however, remove the ability of the community and MÄori to participate in heritage protection on private land. There will be some remaining uncertainty around protection of buildings and sites with high heritage value on privateland.
10 Catholic Archdiocese of Wellington v Friends of Mount Street Cemetery Inc, C125/99, at[11].
516. Bodies corporate who currently have a heritage order over private land are likely to be concerned about proposed powers to transfer existing heritage orders to public agencies. This risk can be mitigated by including a requirement to consider the views of existing HPAs and any other relevant matter when exercising a decision to transfer existing HPApowers.
Amend section 198 of the RMA to give landowners the ability to seek a Court order that their land is purchased by the HPA, or the heritage order withdrawn where a change in circumstances has rendered the land incapable of reasonableuse
517. This proposal would meet the objective of limiting the intrusive regulatory interference of body corporate HPAs on private property rights by providing relief to landowners, in situations where circumstances have changed rendering the land incapable of reasonable use. However, private property rights would still be impinged upon as landowners would still require the consent of the HPA to modify the land. The proposal would also involve ongoing litigation, and uncertainty around the protection of buildings and sites with high heritage value. It would also have limited practical effect because of the small number of HPAs that exist now, and would not prevent other bodies corporate seeking HPA status in the future and giving notices of requirement for heritage orders over privateland.
Remove ability for a body corporate to become an HPA and revoke HPA status of body corporate HPAs under section 188(6) of theRMA
518. This proposal would meet the objective of eliminating regulatory interference into private property rights. Downsides of the proposal include that there would be no ability for the community groups to participate in heritage protection on both private and public land, which might also create resourcing issues for local authorities, the Minister and Heritage New Zealand. Arguments around whether a body corporate HPA is failing to meet one or both limbs of the section 188(6) tests may also not be sufficiently strong to justify revoking HPA status. Additional concerns include the risk of judicial review in the High Court, and the fact that the proposal retrospectively changes the status of existing body corporateHPAs.
Remove all heritageorders
519. This proposal meets the objective of eliminating the regulatory interference on private property rights. However, it is not a proportionate way to address the problem as it leaves no effective alternative mechanism for protecting heritage sites or buildings, as the district plan process of registering heritage orders can take a longtime.
Amend the RMA so an HPA that is a body corporate may not give notice for a heritage order over private land and include a new transfer provision in the RMA which explicitly gives the Minister the ability to transfer responsibility for a heritage order to an HPA that is not a bodycorporate
520. This option also meets the objective of reducing undue interference on private property rights. It means that bodies corporate retain the ability to seek HPA status, and to obtain heritage over public land, meaning that the community can participate in heritage protection on public land. The transfer powers included in the proposal allow HPAs to continue to operate as 'guardians' where their heritage order has been transferred to a public entity and serve to retain certainty for the protection of buildings and sites with high heritage value. Disadvantages of the proposal include that there is no ability for the community and Māori to participate in heritage protection on private land, and consequently there is some uncertainty around protection of buildings and sites with high heritage value on privateland.
521. The proposal outlined above is the preferred option for solving the problem described. The primary reasons for amending section 189 are that:
- it removes the ability of a body corporate HPA to regulate private land
- it retains the ability of a body corporate to become an HPA over public lands, this is particularly important for iwi in view of heritage resources, such as significant waterbodies or wāhi tapu in public spaces
- it will provide more certainty for the HPA application and decision-making process knowing that any potential impacts on private land will beminimised.
522. The new transfer process is recommended because itwould:
- mitigate public concerns about the removal or revocation of an existing heritageorder.
- provide flexibility to enable a transfer to the most appropriate body - Heritage New Zealand, a local authority or a Minister and therefore ensure the continued protection of buildings and sites with high heritagevalue.
- provide a clear process to give the Minister for the Environment the power to make a decision to transfer a heritage order, including a minimum number of steps, such as a formal notice to the HPA responsible for the heritage order and the HPA to whom responsibility will be transferred and consideration of the comments received inresponse.
- while not removing the possibility of judicial review, the transfer process would provide a clear process to ensure all relevant matters have been considered.
