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New Zealand Journal of Environmental Law |
Last Updated: 21 January 2023
195
Heritage Regulation and Property Rights
Angela Dimery*
Heritage regulation is frequently seen to occupy a polarised position in relation to property rights. Environmental regulations are often invoked against private owners and heritage losses tend to occur incrementally, through a cumulative series of small decisions by various owners. This article closely examines the property law system, the nature of property rights, the legal function of heritage within planning and environmental law, and the extent to which heritage regulations constrain property rights. The article draws on recent scholarship identifying an inherent bias in the property law system towards wealth maximisation. It argues that this bias is inconsistent with sustainability objectives in the heritage context, which instead places a premium on intergenerational equity. It supports calls by commentators to reconstruct property concepts to better accommodate sustainability objectives and reflect the ways that property rights differ from other rights.
1. INTRODUCTION
Due to their distinct theoretical bases, heritage and property principles sometimes conflict. Property principles derive from political philosophy and were infused in the legal system much earlier. By comparison, legal definitions of heritage are overlaid reflecting contemporary concerns.1
The following parts of this article examine the concept of property and property rights. They highlight the inherent bias towards individualisation and wealth maximisation and consider how environmental law was introduced to address the effects of this approach.
*BPSA/LLB (Hons). The author would like to thank Associate Professor Ken Palmer of the Law School of the University of Auckland for his comments on the draft and his invaluable help and support.
1 Janet Blake “On Defining the Cultural Heritage” (2000) 49 ICLQ 61at 73–74.
2. THE PROPERTY SYSTEM
Private rights underpin expectations associated with property. There has been a shift from property as the absolute dominion over things to property as a bundle of rights. More recently, there has been challenge to this paradigm, to reconceive property as a web of interests.
Often understood as the regulation of abstract legal relations between people,2 property law also deals with the regulation of real and particular uses of land and biota. It is central to our legal system:3
Security of property historically has been regarded as a paramount legal need, perhaps the paramount legal need. Such security meant not merely the bare right to title or possession, but also the right to free use of the property.
For such security to be realised, the concept of property encapsulates rules about the “access to and control of material resources”.4 In this way, it solves allocation problems.
2.1 Evolution of Private Property
Across lawmaking communities there is no exemplary form of private property. That is, there is “no Platonic or universal ideal”5 and there is no ideal of complete ownership. Property concepts are modified by society as needs change.6
The modern property system emerged from feudal property constructs in England, where land and labour were “embedded” in social relationships.7 From the Renaissance to the Enlightenment, land concepts were influenced by the rising mercantile class and the emergence and enlargement of the state together
Challenges (Martinus Nijhoff, Leiden, 2011) 43 at 46 [“Property”].
6 Peter Horsley “Property Rights Viewed from Emerging Relational Perspectives” in David Grinlinton and Prue Taylor (eds) Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff, Leiden, 2011) 87 at 91.
7 At 88.
with an increasingly scientific world view. This rendered land parcels inert and devoid of context.8
From the 14th to 18th centuries there was a period of “enclosures”9 of millions of acres of land. Property law theories developed reflecting social changes. According to John Locke’s natural law principles, property is a right created from mixing one’s labour with the land. Whereas positivist Jeremy Bentham proclaimed that the state creates and secures property through law, declaring: “Property and law are born together, and die together.”10 Also influential, Adam Smith considered that “civil government ... is in reality instituted for the defence of the rich against the poor, or of those with some property against those who have none at all”.11 His notions of individualism, and advantages and expectations of profit from property, provide the foundation for neoclassical economics.12
The preindustrial factor of low population contributed to an apparent abundance of natural resources. These factors justified the premium placed on economic growth to produce benefits for people. Yet industrial progress has been questioned from its beginning. For instance, John Stuart Mill apprehended a tipping point where growth no longer aids wellbeing.13
With this background in mind, private propertyrelated concepts are set out in more detail below.
2.2 Allocation
The property law concept is a social construct. Jeremy Waldron points out that both socialism and capitalism deal with a property system. However, the latter introduces an element of private ownership,14 employing the idea that objects “belong” to individuals. In theory — but not necessarily in practice — the association between an individual and each discrete object addresses the issue of allocation. Allocation is associated with ownership and that element of
8 Freyfogle “Property”, above n 5, at 57.
9 At 88–89.
property is backed up by society. For this reason, we should ask to what extent the benefits and powers conferred by ownership are justifiable.15
Since allocation of ownership is generally made to a private person (natural or corporate), that person holds the privilege of ownership over a resource, thereby trumping the claims of other citizens to a say in determining what happens to that resource. In a heritage context, the loss of individual buildings is often attributable to actions by owners legitimately exercising their decision making powers. Yet, in addition, the property system takes into account collective and common property interests which constrain use.
2.3 Collective and Common Property
Collective property means a decisionmaker (usually the state) decides allocation according to the “collective interests of society as a whole”.16 In contrast, common property means neither individuals nor the collective has a privileged relationship to a resource.17 In theory, the resource is available for all to use, an example being a scenic reserve or park. Both of these concepts emphasise use, so that while the Crown or a local authority “owns” the resource, their doing so is justified with reference to other users of the resource.
These concepts can be traced back to theories of nonexclusive ownership. In Roman law res communes18 included pies of which everybody could enjoy a slice but which could not be appropriated, such as air or running water. Also included were common rights in ports, rivers, sacred buildings and specific public buildings.
The mix of private, collective and common property at any given time reflects political decisions.19 It is when collective or common property becomes privatised, or, in contrast, when private property is expropriated or nationalised, that concerns arise about use, access to and control of property.
Where a collective property approach is inappropriate, private property is used but is curtailed by environmental regulation. Such regulation further complicates the concept of belonging. Consequently, two elements apply to privately owned and protected historic buildings. The first is the economic value belonging to the proprietor. The second is the cultural heritage value belonging to “the nation”20 alongside the economic ownership element.
17 At 41.
3. OWNERSHIP AND OTHER ELEMENTS OF PRIVATE PROPERTY
Property is a flexible concept. In addition to the private property concept of ownership as belonging outlined above, other propertyrelated concepts include: rights, wealth creation, efficiency, transferability and freedom of contract, discussed below. Although some commentators include harm in this list,21 this article adopts Jeremy Waldron’s view that harm is better seen as a general constraint operating on property.22
3.1 Ownership
In the abstract and general sense, ownership is a relationship of an object belonging or “correlating to”23 an individual, entitling the individual to decide its use. More specifically, ownership can describe the maximum interest in a thing recognised by law.24 Alternatively, ownership may feature the right to possess or have physical control of a thing. Furthermore, the economic aspect is the “right to the capital”; it is “the power to alienate the thing and the liberty to consume, waste or destroy the whole or part of it”.25 These “incidents”26 of ownership are variable and often conceived of as specific bundles of rights. Limits are by way of general constraints and constraints under derivative property rules.27
3.2 Individualism and Wealth Creation
A consequence of this conception of ownership is the ability to extract wealth from property:28
Property is nothing but a basis of expectation; the expectation of deriving certain advantages from a thing which we are said to possess, in consequence of the relation in which we stand towards it.
23 At 32.
24 AM Honore “Ownership” in AG Guest (ed) Oxford Essays in Jurisprudence (Oxford University Press, London, 1961) chapter V at 108.
25 At 118.
26 Waldron, above n 4, at 49, 60.
27 At 49–51.
28 Bentham, above n 10, at 111–112.
And it is only by protection of law that this expectation can be realised. In his wellknown law and economics analysis, Richard Posner characterises a high functioning property law system as one that facilitates “wealth maximisation”.29 Wealth maximisation from property is said to be achieved when resources are held by those who value them most backed up by a willingness to pay for that privilege.30 Ideally, the transaction costs less than the maximum the purchaser is willing to pay and its value should increase.31 According to Posner, wealth tends to bring about “happiness, freedom, selfexpression, and other uncontroversial goods”.32
4. WEALTH CREATION AND ENVIRONMENTAL CONSTRAINTS
If property primarily serves wealth maximisation then the conclusion — attributed to Richard Posner — is that ownership should be “unqualified”.33 Yet, in practice, most people accept the need for some regulations qualifying what owners may do.
Regulations are both restrictive and protective. In seeking benefits for themselves owners produce inevitable effects to be enjoyed or suffered by others. Therefore, regulations are required to protect the rights of owners to enjoy what they own by preventing neighbours engaging in unwanted land uses.34 Such restrictions operate as necessary protections.
Heritage opponents frequently argue that heritage preservation simultaneously reduces economic value by disappointing development expectations and forces up prices by reducing the supply of available space. Densely populated urban areas often tend to be historic areas.35 These owners can avoid the charge that they are anticonservation36 by arguing that preservation is simply not economically practical.
32 At 244.
4.1 Public Choice Theory
Regulation is also said to improperly impose costs on owners. Public choice theory suggests that by lobbying for stringent regulation, preservation interest groups externalise the costs of preservation.37 Put simply, they use regulation to make development more costly. They allegedly use regulation to reach preservation goals without paying market value for it. Yet this account fails to recognise the requisite commitment and cost of such participation. Moreover, it presumes that predetermined regulatory preferences will not be modified by other collectively defined public values.38
Despite assertions that heritage restrictions erode economic value and property rights, where the restriction is district-wide, each owner benefits from an “average reciprocity advantage”.39 In other words, the burden of the regulation is offset by similar restrictions on neighbouring properties.
5. RIGHTS
Because the system of wealth maximisation allocates things to people, it is said to create rights. Critics such as Ronald Dworkin object that such rights are empty of moral value. He argues that “all that can be said, in favour of the moral value of these rights, is that these are the rights that a system of wealth maximisation would recognise”.40
To evaluate property rights, it is useful to compare them with other rights. Different rights include civil, political, economic, social and cultural. Jeremy Waldron’s distinction between special rights (SR) and general rights (GR) highlights what people mean when they refer to property rights.
5.1 Special Rights
SRs derive from Locke’s political theory. SRs conceive of private property as a right that is not fundamental, but is obtained much like contractual rights,
“because of what he has done or what has happened to him”.41 However, SRs are indefensible to the extent that:42
noone can agree in advance in good faith to abide by a system of property [with the central rule that] an owner’s decision to withhold resources from the relief of desperate need must be respected.
In practice, due to unequal distribution, the state protects property rights that are SRs in the sense that only select groups hold them — albeit that potentially everybody could hold them. Thus property as a SR is distinct from GRs which are held by everyone — for example, the right to free expression.
5.2 General Rights
GRs by comparison, are connected to theories such as that of Georg WF Hegel. Private property, when conceived as a GR, is not a right by reason of acquisition. Rather, it is a birthright in a liberal democracy, like free expression. This article identifies these categories, to show that when people talk of property rights, it is the SR category they have in mind. These belong to select groups and are therefore distinct from civil and political rights that are general
in nature.
6. PROPERTY AS A BUNDLE OF RIGHTS
Ownership is often understood as a bundle of rights. This notion represented a shift away from William Blackstone’s 18thcentury conception of property as “absolute dominion over things”.43 The shift is attributable to the number of exceptions to the “physicalist and absolutist”44 aspects of Blackstone’s conception. These were required due to the 19th and early 20thcentury
42 At 443–445.
43 Kenneth J Vandevelde “The New Property of the Nineteenth Century: The Development of the Modern Concept of Property” (1980) 29 Buff L Rev 325 at 357.
44 At 329, 358.
expansion of areas such as intellectual property,45 intangibles and investments,46 and to meet the economic requirements of a market economy.47
The HohfeldHonore bundle of rights conception allows each bundle to be further broken down into sticks. Each stick represents a disaggregable48 right or entitlement held against others who have correlative duties. Thus, property is not simply about rights but is also about normative relations. JE Penner argues that while the bundle of rights conception has currency, it is less an explanatory model than a convenient image. It captures the idea that property is a flexible concept but no single right in the bundle is definitive.49 Moreover, the bundle of rights idea has itself received different treatments50 serving various functions. For example, the disaggregative bundle of rights view supports the argument that any regulation removing any valuable right is, on its face, a taking.51
Critics of the bundle of rights conception reject a definition of property for all circumstances. Instead, using Ludwig Wittgenstein’s “family resemblance analysis”,52 one can analyse the different criteria used to apply to property in different circumstances.
6.1 Criticism of the Bundle of Rights Conception
Despite its widespread acceptance by courts, policymakers and many commentators, critics consider the bundle of rights conception flawed. For instance, it pays no attention to the object of the rights, fails to define the “core”53 of property, and disassociates the object from both its characteristics and its context. It excludes factors such as: whether property can be occupied, extracted, or not because it is intangible; its volume, mobility and proximity to other objects; its destructibility, durability and scarcity or duplicability; its
49 At 714, 723–724, 734.
50 At 733–739; the treatments referred to are the substantive, disaggregative and conceptual views.
51 At 735.
52 At 798–801.
53 Craig Anthony Arnold “The Reconstitution of Property: Property as a Web of Interests” (2002) 26 Harv Envtl L Rev 281 [“Reconstitution”].
personal and cultural meanings; and its contribution to identities.54 The bundle of rights conception therefore omits emotional, cultural, social, geographic, place and space connections of people and community with property.55 It is no less “reified and anti-social” than Blackstone’s conception.56 Because it rejects property as a thing, it runs counter to environmental ethics which emphasise the value of the “thing” itself.57 Nevertheless, the aim is not to polarise things versus rights. It is to broaden the metaphor by reconstructing it as a web of interests.
7. PROPERTY AS A WEB OF INTERESTS
A new metaphor for property should reflect that property rights differ from other rights and capture person–object relationships. There are four criteria.58 The first recognises the distinctiveness of property so as to avoid conflating property rights with other types of rights. We should recognise the sufficiency of new legal areas without needing to convert them to property as a mechanism to increase their stature and maximise wealth. The second recognises the interconnectedness of human relationships that centre on a common interest in an object and person–thing relationships. The third requires that property be functional. It needs to retain the flexibility of the bundle of rights conception while addressing the “anticommons”,59 that is, inefficiencies of too much property and too many property fragments. It should include indigenous and civic virtue perspectives, rather than focusing only on the narrower wealth maximisation principle. The fourth makes context central. The aim is to strike a balance between a rigid concept and a vague manipulable one. The web of interests metaphor meets the criteria and provides a framework for inquiry into property interests.60
54 At 296.
57 At 283.
58 At 331–333.
59 At 331–333, citing Michael A Heller “The Boundaries of Private Property” (1999) 108 Yale L J 1163 at 1194.
60 At 337.
7.1 Strands of the Web
The proposed strands are a series of somewhat binary oppositions. For example: presence–absence; use–preservation; exclusion–inclusion; security–risk; input–output; expectation–uncertainty; alienability–inalienability.61 These are said to capture existing property concepts such as rights to exclude, receive income and to put property to viable use, as well as environmental stewardship. The oppositions delineate a continuum describing how people relate to land.
Examples include:62
[T]he holder of a rightofway easement over a neighboring parcel of land is likely to have a rather specific use-oriented, use–preservation relationship with the servient estate, whereas a neighbor who is the promisee of a covenant limiting the neighboring parcel to residential use has a preservationoriented use–preservation relationship with the restricted land. ... Strands are frequently interwoven with one another.
7.2 Critique of the Web of Interests
The web of interests metaphor sounds reasonable when applied to familiar examples such as covenantees, landlords and tenants. However, it is intended as a broadening concept, and has the potential to create an overly complex set of interests. Furthermore, it is unclear to what extent those interests constrain the interests of the person with the greatest capital investment in the thing. Nevertheless, it is not intended to create a “utopia of objectregarding interconnectedness”63 or to make private property public. Neither is it intended as a tool for excessive propertisation, nor to create legal interests where they should not exist, nor to overinflate context. Instead, it is a tool to highlight issues in dispute. Rather than conceiving property rights as an “abstract, fungible bundle”64 it focuses on specific interests in particular land.
Expanding property concepts in this way might benefit heritage.65 Refocusing on property’s characteristics could build some constraints on property rights into property law concepts.
61 At 338.
62 At 338.
63 At 339.
64 At 349.
65 Derek Fincham “The Distinctiveness of Property and Heritage” (2011) 115(3) Penn State Law Review 641 at 673.
8. INTERRELATIONSHIP OF PROPERTY LAW AND ENVIRONMENTAL LAW
The current lack of constraints is addressed by environmental law. By limiting people’s entitlement to use resources, environmental law “challenges the scope of rights and duties created by property law”.66 But general constraints on action operate in the background to all activities irrespective of the actor’s ownership status.67
The following part outlines concepts underpinning environmental law and the concept of harm as a general constraint. It then assesses the legislative and judicial treatment of property rights.
8.1 The “New Land Ethic”
Aldo Leopold’s seminal work, developed in the 1940s, provides a foundation for environmental scholars. Leopold considered use ought to preserve the “integrity, stability and beauty”68 of the biotic community that belongs to the land. These ideas are useful69 because heritage, like parts of the ecosystem, can be irreversibly extinguished.
8.2 Harm
Harm is a malleable concept. It is defined by law-makers and can be refined by each generation to reflect conditions and values of the day.70 In practice, it means that land may not be used in a way that harms neighbours or the immediate community.71
The tort of nuisance enshrines this principle which emerged in the late 15th century.72 The idea can be traced back to the Roman principle that it is for the public good that no one should misuse his own property.73 While the courts have long determined the enjoyment of certain property rights, this principle
71 At 56.
specifically operates in situations where land use threatens another person’s enjoyment of their property.74
8.3 Effects
The concept of harm is not used by the Historic Places Act 1993 (HPA) or the Resource Management Act 1991 (RMA). Instead, the RMA uses the concept of effects. This had potential to change in relation to the HPA. The Bill poised to replace it proposed to introduce a definition of harm for historic places and waahi tapu with particular emphasis on archaeological sites. But the Select Committee reporting back on the Bill has instead recommended deleting the definition of harm, preferring use of the terms “modify or destroy” throughout.75 At present, effects include any past, present or future, temporary, permanent, cumulative or highly probable positive or adverse effects76 on an area, rather than after the fact, tortious damage to adjoining properties. Like harm, effects can be measured relative to incidences. In isolation, or cumulatively, an area’s
capacity to carry losses is a manipulable concept.
On the one hand, a paucity of a type of heritage is not a definite factor in its favour. For example, a developer can successfully argue that remaining heritage stock is an anomaly failing to keep pace with an area’s development.77
On the other hand, a perceived abundance can justify demolition. In NZHPT v Manawatu DC 78 a Category B building that was not the sole example of an architectural style could be justifiably demolished. The Court noted that s 6 of the RMA did not elevate every building of historic significance to a matter of national importance. Absent an adaptive, residential reuse proposal, the building had reached the end of its “economic life” as a commercial building. An eroding heritage stock can be the outcome in both cases.
What is clear is that these decisions are about sustainable management. The courts have repeatedly held that a decision to grant or refuse resource consent is based on the public law purpose of sustainable management. It is not a forum in which to enforce or resolve disputed common law property rights.79 Property
74 At 776–777.
rights are only taken into account so far as to determine an issue under the RMA.80
8.4 Regulating Against the Tragedy of Fragmentation
A “tragedy of fragmentation”81 occurs where land is divided amongst many private owners. Fragmentation produces environmental degradation largely the same as that in the betterknown concept, the tragedy of the commons. The latter concept popularised by Garrett Hardin in the 1960s dates back to the mid16th century. Private ownership is thought to solve the problem that, in a free commons, we are locked into a system compelling unlimited growth “in a world that is limited”.82 The apparent solution is by “social arrangements that produce responsibility”83 by allocating private parcels to owners.
Yet this does not address the tyranny of small decisions.84 Systemic incentives that encourage development discourage preservation. Regulation is required to address that failing. As a coordinating tool, regulation equals “publicly defined responsibility”.85
8.5 Property Rights and Regulation
It has long been accepted that property rights are subject to necessary regulation. William Blackstone declared that:86
The third absolute right inherent in every Englishman, is that of property: which consists in the free use, enjoyment and disposal of all his acquisitions, without any control, or diminution, save only by the laws of the land.
83 At 1247.
However, the legislature could only compel the owner to give up the land required for a public utility in exchange for compensation at reasonable price.87 In contemporary times, with greater demands on the environment, property rights are balanced against planning controls that take into account complex and interconnected “multifaceted social systems”.88
9. WHAT IS HERITAGE?
The next part shows how heritage concepts89 have developed unevenly com pared with the more central conception of private property, but have always occupied a polarised position. The origins of English heritage law are discussed as is New Zealand planning law, international law and agebased approaches. The part also examines the interrelationship of common law rights and heritage legislation.
Broadly, heritage encompasses:90
the physical and intangible elements associated with a group of individuals which are created and passed from generation to generation. The idea of heritage carries an implicit series of choices whether heritage should be accepted from past generations, and if so whether it should be passed on to future generations.
More succinctly, it can be defined as “the things we want to keep”.91 Central is the notion of inheritance which also has a public element.92 In practice, “heritage soon becomes inherently collective”.93 A further key concept is significance. Practitioners suggest that “significance means the meaning or importance of a place for people”.94 Irrespective of whether a perceived common history is
87 At 308–309.
related to actual memories or is one mobilised by officials, “the perception of a common past represents one of the strongest unifying factors for any group”.95
9.1 Heritage Categories
There are three main categories of heritage. The first is material heritage which includes immovable and moveable objects, art, antiquities, archaeological sites and remains. The second is intangible heritage which includes aspects of human expression such as ideas, knowledge, identity and associations that may or may not be reducible to property.96 A related concept is living heritage which emphasises the connection between heritage places and “people’s actions in the present”,97 important to indigenous conceptions of heritage. The third is natural heritage which includes natural features, habitats of threatened species of animals and plants, and areas of outstanding scientific, conservation or aesthetic value.98
With a focus on built heritage, this article recognises that intangible and immaterial elements can be “mediated through”99 the physical elements of the built environment.
9.2 The Adoption of Heritage into Law
Heritage preservation100 is a flexible concept that lacks a single organising theory. Its diverse objectives can attract the charge that publicly supported preservation is arbitrary. But three discernible phases have shaped policy. These are: preservation for inspiration (19th century); preservation for architectural merit; and, more recently, preservation for community.101 Inspiration corre sponds to historical narratives that relate to persons and events and provide a chance for anecdotes about the past. Aesthetics, or merit, selects buildings as exemplars of styles, materials or techniques. Community building is the process by which communities identify important landmarks and use legal means to protect them. This cohesion serves public wellbeing.102
101 At 481–488.
102 At 534.
Heritage regulation draws on theoretical concepts from architecture, archaeology, cultural anthropology, geography and history. Commentators have criticised the selective importation of terms such as “cultural heritage” from other academic disciplines into law.103 In the RMA, the terms cultural, historic and heritage are all widely used and must be interpreted and applied by a range of actors. Yet these statutory terms comprise undefined concepts such as culture which are often stripped of their theoretical meaning.104 This is necessary given that culture, as classically defined in anthropology, is a totalising concept.105 Heritage also receives a broader treatment by historians.106 But such catchalls are problematic in a legal sense.107 Adopted into law unmodified, they would be unworkable. A function of law is to demarcate and select what is worth preserving.
9.3 The Origins of Heritage Preservation
In the West, the earliest legislation to protect cultural artefacts dates back to 15thcentury Europe.108 Commentators trace preservation efforts back to a highly influential report produced by a member of the revolutionary government during the French Revolution. It introduced terms like “common property”109 and “common heritage” as part of proposals for a public duty of preservation, for two reasons. A store of collective cultural property had been created by the expropriation of feudal and religious property. And yet an antiintellectual fervour and bouts of official iconoclasm had resulted in the vast destruction of cultural property.110 This necessitated a public policy on historic and cultural property. Historic objects, no longer the domain of private owners, gained an element of public interest.
108 At 61.
109 Joseph L Sax “Heritage Preservation as a Public Duty: The Abbé Grégoire and the Origins of an Idea” (1990) 88 Mich L Rev 1142 at 1155, 1151, 1143, 1158–1161 [“Public Duty”].
110 At 1155.
The now familiar idea of public capital and an intellectual, aesthetic and cultural commons was “novel”111 in 18thcentury France. These ideas developed in the entirely different context of 19thcentury England.
9.4 Early English Heritage Legislation
From the mid18th century in England, a spate of development threatened privately owned historic ruins. Proposed protective legislation was justified by the argument that: “As owners for only a moment in historic time, the proprietors were trustees of something that did not fully belong to them.”112 This view altered notions of property. The idea that historic property “‘belongs’ to the nation and to posterity”113 has seen greater acceptance of limits on property rights via regulation in England than in New Zealand.114
The late 19thcentury English legislation signalled that it had become acceptable for government to preserve cultural property. While controversial,115 legislation seeking to “veto the owner’s desires”116 had become justifiable not just for need, or public works, but also due to disapproval regarding the owner’s plans for the property. It also challenged the “right of destruction”.117 This aspect remains contentious today, challenging the individual autonomy associated with private property.
More generally, the English town and country planning movement led to the enactment, in 1909, of the first planning legislation comprising a zoning system and control over land activities.118 Despite early opposition, the concept of responsible stewardship was eventually adopted and continues to be a feature of environmental regulation.119
10. HERITAGE IN NEW ZEALAND
In 1996 a report on heritage by the Parliamentary Commissioner for the Environment (PCE) described widespread appreciation of historic heritage as
111 At 1157.
112 Sax “Stonehenge”, above n 20, at 1545.
113 At 1545.
116 At 1550.
a “recent phenomenon”.120 In addition, the New Zealand Historic Places Trust (HPT), established in 1955 and which began classifying buildings in the 1970s, claimed that a heightened and more vocal public interest in preservation had resulted from the 1980s demolishtodevelop boom.121
10.1 Early Legislation in New Zealand
Property rights have been limited by planning legislation as early as 1926.122 From this point, borough and county councils were required to prepare town and regional planning schemes.123 In 1953 this legislation was repealed and replaced with the Town and Country Planning Act 1953 (TCP 1953). The terms heritage and culture were not used. In the first and second schedules to the Act, which specified matters to be dealt with in regional and district planning schemes respectively, was the “Preservation of places of historical or archaeological interest or natural beauty”.124
The growing support to retain heritage125 was addressed the following year with the introduction of the Historic Places Bill in 1954 which established the HPT.126
10.2 Planning Reforms
Local government legislative reforms replacing English planning concepts were gradually introduced between 1974 and 2002.127 The notion of community was introduced with related concepts including “streetscape”, “precinct” and “neighbourhood” showing an American influence.128
The Town and Country Planning Act 1977 (TCP 1977) now included cultural welfare and wise use of resources in its purpose and matters of national importance.129 It also expanded on the TCP 1953, permitting plans to deal with
the preservation of buildings, architecture and objects of historic interest or visual appeal.130
10.3 Historic Places and RMA Reforms
The Historic Places Act 1980 (HPA 1980) carried over provisions for the existence of the HPT.131 It empowered the HPT to classify buildings and issue protection notices.132 To this end, it amended the TCP 1977133 providing that once appeals had been determined, that the existence of the protection notice should be entered into the district scheme. Subsequently, the first “dedicated local authority heritage unit” was established, within Auckland City Council.134 The 1987 Hearn Report135 recommended carefully integrating the HPA 1980 with the TCP 1977 with regard to listing in the district scheme.136 The 1989 Coad Report on heritage was impacted by uncertainties regarding town planning reform137 and in 1989 the Resource Management Bill138 was introduced. Passed
in 1991, the RMA plays a central role in relation to historic heritage.
10.4 Current Legislative Definitions
Historic heritage is governed by a large number of statutes. The effectiveness of such a “disassociated”139 legislative framework has been questioned by commentators and officials. Nevertheless, there are three key pieces of legislation.140 The RMA and HPA, as they evolved, share responsibilities for heritage management.
Heritage is not itself defined in the RMA. However, the term is used in the definition of historic heritage that was introduced in 2003.141
136 At 165–166.
137 PCE, above n 120, at Appendix 3 A23–A24 citing the Coad Report. 138 Resource Management Bill (2241).
The HPA provides guidance by identifying and describing the qualities of heritage when read with its legislative purpose and principles.142 In addition, the HPA uses the word heritage in its definition of historic areas and historic places.143 The HPA defines historic area as being comprised by interrelated groups of historic places that form part of the cultural and historic heritage of New Zealand.144
The Conservation Act 1987 refers to the HPA in its interpretation section. Accordingly, there is no heritage definition but instead the term historic resource is used incorporating the meaning of historic place from the HPA.145
11. INTERNATIONAL DEVELOPMENTS
In 1964 one of the most significant non-governmental charters declaring guiding principles for architectural conservation and restoration was promulgated146 (the Venice Charter). The Venice Charter147 helped to widen concepts of physical heritage. Subsequently, the International Council on Monuments and Sites (ICOMOS) was established to carry out the Venice Charter.148 A New Zealand chapter was created in 1987.149
11.1 United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Convention (WHC)
In 1972 possibilities for heritage widened.150 In light of the growing environ mental movement and concerns for the “common heritage of mankind”151 intergovernmental parties promulgated further international texts.
Under the WHC it is incumbent on state parties to cooperate to protect “world heritage”152 but “without prejudice to property right[s] provided by national legislation”. The effect is to avoid internationalising ownership of heritage resources.153
World heritage listings are decided at state level.154 Heritage is taken out of the private and voluntary realm. Instead, as a “duty of the modern state”, the extent of that duty becomes open to public debate.155 A categorisation as the “world heritage of mankind”156 somewhat challenges conventional notions of ownership and sovereignty.157 However, listing brings exposure and “prestige”158 for the site and access to the WHC fund.159 Most international listings predate the colonial and modernist categories.160
11.2 Age-based Criteria and Modern Heritage
Agebased criteria are one assessment tool.161 The problem with this approach is the election of an arbitrary cutoff date. Buildings that fall on the wrong side of the line, but that will in time be regarded as important, risk being excluded. An item often does not fall within definitions such as “a generation” in respect of time,162 or, assessors lack resources to broaden the category.
This issue has been addressed since the 1990s by an international non governmental organisation that focuses on modern heritage.163 In 1999 the HPT initiated a New Zealand chapter.164
1975), art 6(1) [WHC].
century buildings to include pre1940 buildings.
The Auckland Council has preferred an agebased approach,165 but in some instances this approach has been challenged.166 As initially drafted, the forthcoming Unitary Plan (the Plan) has proposed to expand the protection of pre1944 buildings.167 The criteria may be beneficial but its acceptability will be tested as the Plan is debated and refined during the submissions and hearing process.168
12. RMA AND PROPERTY RIGHTS
Parliament has made it clear that planning controls under the RMA are not a taking.169 No compensation is payable for planning controls governing property. For expropriation, the statutory practice is to fairly compensate.170 A 2009 review recommended reconsidering compensation in such cases.171 Some commentators support regulatory recognition of property rights because planning controls and private property rights are intertwined.172
Private property rights cannot be used to defeat controls under the RMA173 which overrides the common law.174 Also, legal rights to act do not remove the need for resource consent where required, to exercise that right.175 Even so, the
the Modern: New Zealand’s New Architecture, 1904–1984 (Auckland University Press, Auckland, 2008) at 78, 103 citing, for example, the Parnell Baths built 1954–1957 and the Paora flats, Orakei built 1959–1960.
City — Isthmus Section 1999.
(February 2009) at 62.
RMA “floats rather like oil on water, across ownership rights without affecting the underlying substance”.176 Its limitations on land use are simply an overlay. The classic view of property promotes individual use, the exclusion of others, and consequentially omits any obligation of “stewardship”.177 When protective regulatory avenues representing the public interest are exhausted or
inapplicable, property rights are fully enforceable.178
Property rights do not come with corresponding obligations.179 Reinforcing this liberty is s 9 of the RMA which permits any use provided it is not restricted by a national environmental standard or a district/regional plan rule. Commentators have suggested that principles of obligations to the community
— always a part of the common law — have receded since rapid industrial growth began.180 An examination of the relationship between common law principles and legislation reinforces this view.
12.1 Legislation and Common Law Principles
It is a fundamental common law principle that “property will not be expropriated without full compensation”.181 Property is considered an established right dating back to the 13th century, safeguarded by the Magna Carta preserved, along with common law, by statute.182 Any legislation cutting across common law rights must be clear. New Zealand courts have approved183 a judicial presumption that:184
In the absence of express language or necessary implication to the contrary, the courts ... presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.
179 At 303.
180 At 303.
12.2 Ability of Legislation to Remove Common Law Rights
Where Parliament clearly intends to remove a right, the courts have said that the litigants’ best remedy is political. New Zealand has no equivalent to the US Fifth Amendment which enshrines property rights.185 Therefore, the question becomes one of whether the action is a “taking”,186 and if so, whether compensation is appropriate. If not, it should be made clear.187 However, such an action can sometimes “raise issues about the acceptability of the legislation”.188
12.3 Judicial Treatment
The judiciary are mindful of the importance of property rights. The courts view parliamentary democracy as balancing “the right of the majority, through Parliament, to make laws binding on individuals, and yet a respect for individuals’ rights, whether old or new”.189 The hierarchy of interests developed by the courts “has always accorded the highest protection to the physical integrity of the person, a lower protection to property rights, and still less protection to economic interests”.190 And “next to constitutional rights, property rights are the strongest interests recognised by our law”.191 The next para graphs review case law illustrating RMA controls cutting across proposed uses.
The words “culture”, “cultural” and “heritage” have not been judicially defined.192 However, the words “heritage value” have been considered in relation to a building. In Donnelly v Gisborne District Council193 the Court thought that the key issue was heritage value.194 In this case, the applicant
n 170, at [45].
(CA) at 495.
1999 [Donnelly].
194 At [5], [14]–[16], [36], [39], [50].
sought an enforcement order under s 316 of the RMA to prevent Gisborne’s Peel Street toilets from being demolished. He argued that it would be offensive or objectionable so as to cause adverse effects under s 314 if they were demolished due to their heritage merit. Section 274 party the HPT supported its local branch’s submissions, despite having declined listing due to lack of nationallevel resourcing.195
The Court said an objective determination was required “on the evidence and representative of the community as a whole”.196 Effects on the environment required consideration of natural and physical resources “but also the people and communities”.197 It was held that destruction of a building of “significant heritage value”198 could be offensive, by irretrievably severing any heritage connection with the past.199
A number of cases show the opposite result.200 Although heritage regulation cuts across common law property rights, this is only so far as they overlap. When protective mechanisms fail, property rights remain intact. In addition, the framing of heritage, domestically, internationally and in relation to age, may limit its effectiveness as a constraint on property rights. Therefore, recent academic debate, outlined earlier, that seeks to reshape property concepts is timely.
12.4 Proposed RMA Reforms
Recent proposals indicate that property rights could soon be provided for in s 7 of the RMA. In February 2013 the Ministry for the Environment published a discussion document for consultation. It adopted earlier recommendations to recast ss 6 and 7 of the RMA that had been made in a report on RMA principles (TAG Report). In particular, it adopted the TAG Report proposal to make it mandatory to “achieve an appropriate balance between public and private interests in the use of land”.201 This wording creates a simple balancing test as compared with the wording proposed in, but ultimately removed from, the 1989 proposals for the Resource Management Bill to achieve “an appropriate balance
195 At [50].
196 At [54].
197 At [64].
198 At [66].
199 At [78]
between the public interest in achieving the purpose of this Act and any private interests in the reasonable use of private or public property”.202
The proposed s 6 combines the current ss 6 and 7 matters into an evenly weighted set of principles.203 It retains the requirement to “recognise and provide for” the matters it sets out and has reinstated the description of them as “matters of national importance”. While the words preservation and protection are proposed to be retained for natural features, the deletion of the words “protection [...] from inappropriate subdivision, use, and development” in relation to heritage is concerning. Instead, its “importance and value” must be recognised and provided for. The proposed caution against restrictions on private land in s 7, combined with proposed changes to s 6, could weaken legislative protection for heritage.
13. MANAGEMENT AND COMMODIFICATION OF HERITAGE
Wealth creation as a primary expectation of property has regulatory conse quences. The next part examines incentives supplied by regulators as the quid pro quo for public heritage benefits. It discusses implementation of heritage regulation at local and central government levels. It also highlights current coordination problems yet to be addressed.
13.1 Implementation
The functions of the HPA and the RMA partially interlock.204 Heritage functions are carried out by central government, local government, the HPT and other agencies.205 The HPT’s role is to identify and assess historic places while local authorities regulate heritage through planning rules.206
202 At 51–55 and 89–91.
205 For example, RMA 1991, ss 6(f ), 30, 31, 61, 74, 187, 189A; HPA 1993, ss 11, 22, 61; and
Conservation Act 1987, s 6(a), (b), (c), (e).
206 Phil Hughes “Local Authorities and Heritage Management” (December 1996) PQ 10 at 11; but note HPT authorises destruction of archaeological sites: HPA 1993, ss 11–12; see also Ngatiwai Trust Board v New Zealand Historic Places Trust (Pouhere Taonga) [1996] NZRMA 222 (PT), Decision A13/96 at 15.
13.2 Interrelationship of the Register and Local Authority Schedules
Both local authorities and the HPT can identify heritage. The HPT, through its register,207 and local authorities by listing heritage places on plans. The statutory criteria for historic and cultural heritage under the HPA includes more intangible elements and is therefore wider than historic heritage as defined under the RMA.
It is unclear what level of consideration local authorities should give to the HPT Register in respect of historic places.208 However, they must have particular regard to the HPT’s recommendations regarding historic areas.209 In addition, local authorities must notify HPT of resource consent applications affecting registered heritage or land that is subject to a heritage order or requirement.210
HPT supports a correlation between registered places and their HPT categorisation.211 Yet commentators point out that HPT’s heritage assessments are not subject to RMA public processes.212 This criticism has some validity as submitters are limited as specified under HPA, s 28.213 In contrast, local authorities’ decisionmaking is essentially democratic.214
13.3 2003 RMA Amendments
A shortcoming that had allowed local authorities to do little about heritage215 was addressed by the Resource Management Amendment Act 2003 (RMAA). It elevated heritage to a matter of national importance.216 In doing so, it repealed the less protective s 7(e).217 Accordingly, many local authorities revisited plan heritage listings, policies and rules.218
209 HPA 1993, s 32D.
The RMAA also introduced a definition for “historic heritage” under s 2 of the RMA.219 As the proposed amendments were controversial,220 the definition was modified. The scope was limited so as to exclude social values and cultural landscapes.221 Earlier amendments proposed in 1999 had languished.222 As introduced in 2003,223 its proposed definition of historic heritage included “spiritual”224 qualities, “cultural landscapes”225 and “ancestral landscapes”.226 As the Bill was debated, it was agreed that these terms should be deleted.227 This rendered the RMA less consistent with the HPA, as the term cultural landscape is part of the HPA’s criteria for registration.228 This difference makes it difficult for local authorities to follow the HPT’s approach indiscriminately.
14. PROGRESS ON THE PCE RECOMMENDATIONS
Sixteen recommendations were made by the PCE. The recommendation to promulgate a national strategy for historic and cultural heritage management was not addressed. A National Policy Statement on Heritage would give centralised direction, but there is no statutory requirement to do so.229 This is despite a clear indication from submitters to the subsequent 1998 heritage review that a centralised model was preferred.230 It would provide a benchmark against which to audit plan provisions. Central government has acknowledged this need.231 A more modest development is the current proposal for a national
219 RMAA 2003, s 3.
225 At cl 3(7)(b)(ii).
226 At cl 3(7)(b)(iv).
227 (7 May 2003) 608 NZPD 5571; RMAB No 2 (393), cl 3(7).
list.232 The recommendation that a portfolio be established for historic and cultural heritage was addressed.233
15. IDENTIFYING AND ASSESSING HERITAGE VALUE
Research is an essential component of assessment. Too narrow a research approach can encourage retention of “de facto masonry freak shows”,234 rather than a more dynamic crosssection. Similarly, a failure to identify, recognise and record the relationship of Maori to sites and waahi tapu when plans are prepared has resulted in preventable disputes.235 Research is used to support registration proposals,236 local authority plans and inventories, and applications and hearings for resource consent.237
According to commentators, assessments of heritage significance should exclude economic aspects of property, reuse potential, and possibilities for adaptation.238
15.1 Place-based, Values-based and Thematic Mapping Approaches
According to HPT guidelines, the three main approaches are placebased, significance and values-based, and thematic.239 The first, place-based, can comprise a site, area or precinct and group of places. From here, the spatial scale of the project is ascertained. This informs the number and range of experts engaged and level of community involvement.
The second, significance and values-based, recognises overlapping values identified in historic heritage and historic place concepts. It recognises people and their reasons for valuing a place.240
232 HNZPTB (3272), cl 81B.
233 <www.mch.govt.nz/aboutministry/overview/historygovernmentinvolvementculture>. 234 Ian Barber and Gavin McLean “Heritage and the Big Picture: Reading a Cultural
Landscape” in Alexander Trapeznik (ed) Common Ground? Heritage and Public Places in New Zealand (University of Otago Press, Dunedin, 2000) 91 at 104.
235 Ngati Maru ki Hauraki Inc v Kruithof [2005] NZRMA 1 at [57], [83]; Helmbright v
Environment Court (No 1) [2005] NZRMA 118 at [30], [35].
236 HPA 1993, s 23(2).
237 Michael Kelly “Building a Case: Assessing Significance” in Alexander Trapeznik (ed) Common Ground? Heritage and Public Places in New Zealand (University of Otago Press, Dunedin, 2000) 121 at 121.
238 At 127–128.
The third approach, thematic mapping, is more holistic. A framework of themes is selected and can include: “Maori occupation and use, earlyEuropean contact, early European settlement, conflict, transportation and development, residential development, communications”.241 Areas can be characterised by themes reflecting the people who lived there.242 For example, the city centre tells the story of commerce. Reclamation of the harbour tells of themes such as transport, trade and central business district growth.243 As such, the thematic framework is designed around the area or place of interest. The process of selecting themes, gathering and interpreting the history of a place, implicates political and social choices. This approach is weak if a predetermined thematic approach is used that does not genuinely capture the range of actual communities.244
15.2 Historic Places Trust and Local Authorities
The HPT assesses historic places or areas using HPA criteria and may assign Category 1 or 2 status.245 As noted above, the HPA statutory criteria differ from the RMA. Owners must be alerted early if their property is nominated for registration,246 and may be consulted, their comments sought and updated throughout the process.247 Since registration does not create legal consequences, property rights are not challenged by registration.248
Local authorities throughout New Zealand can use either a qualitative or quantitative assessment approach. Property rights are implicated where there is a lack of certainty around assessment.249 In assessing heritage, the basic requirements are to set clear priorities, assess consistently, use justified criteria and invite informed public participation.250
246 HPA 1993, s 24(3).
15.3 Adaptive Re-use as Sustainable Development
Since urban environments are already developed, it is efficient to conserve the built environment through adaptive reuse.251 Conserving the heritage fabric responsibly uses nonrenewable resources that societies cannot afford to discard.252 It avoids losses of embodied energy, which is the sum total energy of all components of construction. Demolition wastes embodied energy. On the other hand, operative energy inputs must also be considered, for example heating, which can be greater for heritage buildings.
15.4 Place as a Marker of Cultural and Social Value
One indicator of social value is its contribution to a community’s sense of place. The term “place” was adopted in New Zealand’s ICOMOS Charter of 1992 reflecting the influence of Australia’s 1979 Burra Charter.253 The concept of place includes monuments (historic buildings), groups of buildings (areas), and historic sites.254
Cultural value is further apparent through effects of patterns of use that create patina,255 a highly valued attribute. While cultural landscapes and social values are not part of the RMA’s historic heritage definition, nevertheless, they are implicated in ss 2 and 5, along with biophysical and economic aspects.256
A familiar landscape evoking a unique feeling gives people a “sense of place”.257 People tend to value communities recognisable at a local level,258 and are ambivalent towards places where “there is no there there”.259 With this in mind, to manage heritage sustainably, we should protect areas for the
258 At 714–715.
259 At 714–715, citing Gertrude Stein.
meaning they transmit and not simply retain “the most beautiful reminders of our past”.260
16. COMMODIFICATION: INCENTIVES AND COMPENSATION
The following part considers how property rights concerns and wealth maxi misation encourage the commodification of heritage.
This issue is grounded in a wider debate as to whether environmental goals should be obtained through regulatory command and control, via marketdriven approaches, or both.261 Commentators have characterised commandandcontrol approaches as coercive and punitive.262 In contrast, incentive approaches are typified as enabling private decision-making.263 Since the 1970s, commentators have debated these issues in relation to deregulation264 and the application of New Public Management principles. The characteristic shift was from prescriptive, rulebound regulation through Parliament (command and control) to a new “tool kit”265 of market tradable permits, exemptions, contractual bargains and subsidies (market approaches). In practice, more visible imperium techniques such as legislation through Parliament are replaced with dominium techniques that exert central and local government’s financial power.266 Rather than receding, the state simply engages with private persons differently.267
The earlier property rights debate is relevant to a discussion on how the state ought to engage with private persons. Appeals to selfinterest — in the Adam Smith sense — is regarded as the most reliable route by which to
attain cooperation.268 An incentives approach is promoted as superior to a public good approach via strong regulation — however altruistic.269 A more pragmatic approach,270 and one adopted by New Zealand regulators, combines both approaches.
16.1 Assessment of Economic Value
Within this debate, a complicating factor is that heritage “behaves differently”271 to other assets. It is therefore less conducive to economic analysis. Although it can generate economic value, the value of heritage assets is not reliably assessed by its market value. The reason is that the market often works according to a shortterm “time horizon”272 and a narrower set of values. Acquisition costs are often “totally irrelevant for today’s valuation purposes”.273 Heritage also innately lacks replacement value.
Some commentators contend that no landowner should be compensated for fulfilling the duties attendant on historic buildings, even where they diminish its economic value.274 Others consider that where public benefits overlay the exercise of property rights, incentives need to be built into the regulatory regime supporting this approach.275
Local authorities generally regard nonregulatory incentives as a “powerful complement”276 to regulation. Four examples include selected incentives, waiver of financial contribution, transferable development rights (TDR), and conservation lots.
The first comprises financial compensation to property owners by councils in lieu of central government tax relief. These include rates relief, tax refunds for preservation work, heritage grants or loans, earthquake strengthening funds or technical assistance, reduction of resource consent application costs,277 and
270 At 462.
277 RMA, s 36(5).
public–private partnerships.278 Although costly to local authorities, these are cheaper than public acquisitions which are often a last resort.279
The second occurs where financial contributions might be required as a condition attaching to grant of resource consent.280 These can be waived.281
The third is TDRs which can be linked to conservation lots. Owners of protected property may sell development interests to recipient sites in specified zones,282 or receive heritage floor space bonuses.283 A primary objection to TDRs and waivers is the effect on people in the receiving areas. Therefore, some plan provisions, such as sunlight preservation height limits, must be non negotiable.284
The final incentive is plan provision to aid reasonable use. Environmental protection lots, heritage lots or conservation lots permit more flexible subdivision to below minimum lot size. But existing heritage structures must be preserved onsite.285 Monitoring is required and demolition by neglect is a risk. Demolition by neglect can occur when small structures sit on relatively large parcels of valuable urban land. Factors such as unsympathetic modi fications to the heritage fabric, combined with neglect over time, can make restoration impracticable. Demolition becomes justifiable, freeing the land up for redevelopment.286 Part of the assessment entails whether refusing consent would result in “slow and sad deterioration”287 of a building such that it will eventually present a safety risk. That factor can be considered against the cost
to individuals or organisations of its retention.
Essentially, incentives are justifiable for two reasons. First, they raise the bar for considering land incapable of reasonable use under s 85 of the RMA.288 Second, they ease the intergenerational equity onus on private owners. But they
278 For detailed explanations, see McClean and Thomson “Incentives”, above n 276. 279 At 50–54.
are limited. They may only appeal where it is economically rational to accept them or to owners already sympathetic to heritage.
16.2 Criticism of Incentives
Environmental markets do not always deliver environmental solutions. Despite purporting to achieve environmental outcomes, they are designed for economic efficiency purposes. Therefore, they can have perverse environmental outcomes. Moreover it is “irrational for marketbased practice to make decisions based on noneconomic criteria”.289 By way of example, more economically viable accommodation bonuses for residential accommodation sometimes leads to a lower uptake of heritage floor space bonuses.290
17. DOES HERITAGE AID OR INHIBIT GROWTH IN THE URBAN ENVIRONMENT?
Highculture facilities are seen as a quality of life indicator in cities. Indeed, the Ministry for the Environment has recognised the role of heritage in stimulating “economic revitalisation”.291 A large group of signatories voluntarily support,292 but are not bound by, its principles of quality design.293
Experience of the “cultural quarter”294 by locals and visitors becomes “edutainment” in the experience economy.295 The contested concept of the cultural quarter informs planners, developers, geographers and policymakers. Built heritage is thought to inform consumer culture and exemplify character, differentiation, insights, identity, choice, uniqueness, by providing a reprieve from modernity and masscommodity production.296
“City making” is a dynamic process.297 Urban processes leave “historical and geographical circumstances” to be navigated by policymakers, developers
prevents the owner putting the land to reasonable use: see Steven v Christchurch City Council [1998] NZEnvC 91; [1998] NZRMA 289 (EnvC).
292 Ministry for the Environment “New Zealand Urban Design Protocol” (March 2005) at 4. 293 <www.mfe.govt.nz/issues/urban/designprotocol/signatories.html>.
and inhabitants. Since the 1970s, David Harvey has tracked a shift towards entrepreneurialism in urban governance and away from the mere provision of services and facilities, going well beyond civic boosterism. Central to this governance style is the public–private partnership where local authorities attract external sources of finance to develop places or precincts in the city in a speculative manner. The community identifies the heritage building as a community asset irrespective of whether title is held privately or publicly.298
17.1 Heritage Development Critiques
Heritage preservation critics use both economic and aesthetic objections. Familiar economic arguments are that preservation raises prices by restricting development.299 Aesthetic arguments include charges that “preservation lacks an organising theory”.300 In this way, architectural critics view preservationists as misguided. Their projects are criticised as inauthentic gentrification that creates an alienating “historic amnesia”.301 They do so by glossing historic buildings, sanitising signs of age rather than retaining historical layers. The overall effect is a static sense of the past. A further untested allegation is that heritage preservation stifles architectural innovation, particularly as preservationists turn their attention to the value of younger buildings, in doing so capturing great tracts of urban space.
While possible that preservation could contribute to development impedi ments and housing shortages,302 the current rules actually permit partial demolitions and additions to some listed buildings.303 In addition, heritage buildings can enhance wellbeing because they are “more human scale”304 in design.
Governance in Late Capitalism” (1989) Geografiska Annaler: Series B, Human Geography 3 at 5–9.
(New York, 24 May 2011).
18. CHRISTCHURCH
This part briefly considers safety of structures. Following the Canterbury earthquakes, the viability of heritage in New Zealand has been seriously questioned.305 The Government has acknowledged the growing, global problem of insuring older commercial buildings that deters owners from retaining them.306 For this reason, HPT has suggested that public insurance and incentives for heritage are appropriate.307
Christchurch is unique in its dramatic loss of built heritage which included many notable metropolitan buildings.308 By April 2012, around 37 per cent, or 113, of its 308 listed heritage places had been demolished.309 As at June 2013, the Canterbury Earthquake Recovery Authority (CERA) demolitions register records the demolition, or in fewer cases partial demolition, of 229 buildings it classifies as having heritage status.310
As part of the city’s recovery, the Ministry for Culture and Heritage has led a Built Heritage Recovery Plan.311 Officials have proposed retaining ruins where it is safe to do so, inspired by international examples such as Hiroshima’s peace dome.312 Alternatively, the reuse of heritage materials can also conserve aspects of the city’s heritage safely.
<www.historic.org.nz/theregister/heritagelost/lostheritagecantyearthquakes.aspx>.
Nationally, an estimated 4000 heritage buildings are earthquakeprone and officials are undertaking reviews regarding life and safety risk, and economic and heritage values.313 In response to the Royal Commission of Inquiry’s final report,314 national consultations, which closed in March 2013, advanced proposals to change how earthquakeprone buildings are dealt with.315 The Government has announced its intentions to introduce its policy on earthquake prone buildings later in 2013. The Royal Commission of Inquiry’s final report contained influential recommendations for strengthening existing buildings, for policy and legislative change, and for removing impediments to demolition notwithstanding heritage status if a building is found to be dangerous. It also recommended a requirement to make information available to the public on earthquakeprone buildings.
19. POUHERE TAONGA BILL
The Heritage New Zealand Pouhere Taonga Bill (the Bill) was introduced on 4 October 2011. It proposes to replace the HPA. After its first reading in May 2012, submissions to Select Committee were extended, following a review of HPT registrations, and the Select Committee reported back on the Bill in June 2013, incorporating a Supplementary Order Paper (SOP).316 The review considered singleagency oversight, either by HPT or local authorities, but recommended an “enhanced status quo” option.317
At Select Committee stage, a proposal by the SOP to rename the HPT Register as a Record was considered. Potential problems include confusion of the proposed Record with other site recording schemes. The Select Committee instead recommended renaming the Register as the New Zealand Heritage List/ Rāarangi Kōrero. Significantly, it also recommended incorporating the SOP’s proposed deletion of interim registration protection.318 In doing so, it “clarifies that the purpose of the Record is to provide information about New Zealand’s
<www.beehive.govt.nz/release/govtrespondsearthquakesroyalcommission>.
HNZPTB (3272).
cl 63.
historical and cultural heritage, not to exert regulatory control”.319 The Bill now also introduces a National Historic Landmarks List/Ngā Manawhenua o Aotearoa me ōna Kōrero Tūturu for places of outstanding national heritage value.320 HPT recommendations are proposed to be determined by the responsible Minister.
In relation to property interests, the Bill retains the definition of registered interest to include a mortgage or charge registered under the Land Transfer Act 1952.321 It also proposes a definition of owner that is similar to that under the RMA and that recognises ownership interest in Maori reserve land.322 Further, the Bill introduces a requirement for HPT to recognise owners’ interest when exercising its advocacy powers in a public forum or planning process.323 Its role as advocate is proposed to be restricted to those in which it has standing under an Act.324
Furthermore, the Bill proposes to change the HPT’s governance structure. Currently, the board makes decisions as to registration;325 six board members are appointed by the relevant Minister and three are elected by members of the HPT.326 The Bill proposes to replace three elected board member positions with Ministerial appointments of two board positions.327
This arguably reduces democratic participation. The concept of a “stand alone”328 board occurs internationally and is thought to provide independent expertise at arm’s length from government.329 However, the Government expects the change to encourage stronger individual Ministerial responsibility. The proposed disestablishment of local branch committees330 will reduce public input into decisionmaking. The proposed Bill further centralises the Crown entity’s heritage functions.
320 HNZPTB (3272), cls 81B–81D.
323 At cl 12(1A).
324 At cl 12(1)(a).
325 HPA 1993, s 32C.
326 HPA 1993, s 42(1).
20. CONCLUSION
Heritage regulation has frequently been perceived as interfering with private property rights. Some consider that this tension is overstated. Others consider that, from its inception, heritage protection has occupied a polarised position in relation to property rights. This is due to an inherent bias in property concepts towards wealth maximisation which environmental law has been ineffective to remedy. Through a close examination of property, this article has identified an inherent bias towards wealth maximisation — as opposed to economic well being — that is at times inconsistent with sustainability objectives. The article has considered how the bundle of rights property metaphor is central to our expectations of property and to our expectations of its interrelationship with protective heritage regulation.
In addition, it has been demonstrated that the wealth maximisation bias encourages the commodification of heritage and an incentivising approach to regulation. While such incentives can lead to positive heritage outcomes, it can also mean that heritage has to compete with other incentives, thus rendering this approach an ineffective manner with which to attain heritage preservation. The article concludes that recent scholarship challenging ideas associated with property are important and, in practice, property ought to better accom
modate sustainability objectives.
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