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Dimery, Angela --- "Heritage regulation and property rights" [2013] NZJlEnvLaw 7; (2013) 17 NZJEL 195

Last Updated: 21 January 2023


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.


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.


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

  1. Nicole Graham “The Mythology of Environmental Markets” in David Grinlinton and Prue Taylor (eds) Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff, Leiden, 2011) 149 at 165 [Property Rights and Sustainability].
  2. Daniel R Coquillette “Mosses from an Old Manse: Another Look at Some Historic Property Cases About the Environment” (1979) 64 Cornell L Rev 761 at 763.
  3. Jeremy Waldron The Right to Private Property (Clarendon, Oxford, 1988) at 31–32, 37, 39. 5 Eric T Freyfogle “Taking Property Seriously” in David Grinlinton and Prue Taylor (eds) Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological

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.

  1. Jeremy Bentham “Of Property” in CK Ogden (ed) The Theory of Legislation (1789) (Harcourt Brace, New York, 1931) chapter VIII at 111–112.
    1. Adam Smith The Wealth of Nations (1776) Edwin Cannan (ed) (5th ed, Bantam, New York, 1904) Book V at 907.
  2. Horsley, above n 6, at 89.
  3. Samuel Alexander “Property beyond Growth: Toward a Politics of Voluntary Simplicity” in David Grinlinton and Prue Taylor (eds) Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff, Leiden, 2011) 117 at 123–124.
  4. Waldron, above n 4, at 38–40.

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.

  1. Freyfogle “Property”, above n 5, at 47.
  2. Waldron, above n 4, at 40.

17 At 41.

  1. Coquillette, above n 3, at 800–801.
  2. Waldron, above n 4, at 44.
  3. Joseph L Sax “Is Anyone Minding Stonehenge? The Origins of Cultural Property Protection in England” [1990] 78 Cal L Rev 1543 at 1554 [“Stonehenge”].


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.

  1. See, for example, Harold Demsetz “Toward a Theory of Property Rights” (1967) 57(2) The American Economic Review 347.
  2. Waldron, above n 4, at 32.

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


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.

  1. Richard A Posner Wealth Maximisation Revisited” in Richard Posner and Parisi Francesco (eds) Economic Foundations of Private Law (Edward Elgar, Northampton, 2002) 41 at 48–49.
  2. Richard A Posner “The Value of Wealth: A Comment on Dworkin and Kronman” (1980) 9 JLS 243 at 243.
  3. Ronald M Dworkin “Is Wealth a Value?” (1980) 9 JLS 191at 191.

32 At 244.

  1. Alexander, above n 13, at 120.
  2. Eric T Freyfogle “Property and Liberty” (2010) 34 Harv Envtl L Rev 75 at 96; see Bollard, below n 88, at 24.
  3. J Peter Byrne “Historic Preservation and its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development” (2012) 19(3) Geo Mason L Rev 665 at 676.
  4. Graham, above n 2, at 156.

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.


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,

  1. Donald J Kochan “National Historic Preservation Act Initiatives Affecting the Natural Resources Industry” (2002) 22(12) Energy & Mineral Law Institute, chapter 12 at 423–425.
  2. Jerry Mashaw “Public Law and Public Choice: A Critique and Rapprochment” (2009) John M Olin Center for Studies in Law, Economics, and Public Policy Research Paper No 366 at 12.
  3. Byrne, above n 35, at 675, citing Hanoch Dagan “Takings and Distributive Justice” 85 Va L Rev 1999 741.
  4. Dworkin, above n 31, at 207.

“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.


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

  1. Waldron, above n 4, at 443–445.

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

  1. But note that some resources remained “unpropertised” because they were “non­ excludable”: Kevin Gray “Property in Thin Air” (1991) 50(2) CLJ 252 at 268–281.
  2. Craig Anthony Arnold “Sustainable Webs of Interests: Property in an Interconnected Environment” in David Grinlinton and Prue Taylor (eds) Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff, Leiden, 2011) 167 at 175 [“Sustainable”].
  3. Gregory S Alexander “History as Ideology in the Basic Property Course” (1986) 36 J Leg Ed 381 at 385.
  4. JE Penner “The ‘Bundle of Rights’ Picture of Property” (1996) 43 UCLA Law Review 711 at 712, 731.

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.


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.

  1. For example, a building’s settings; see Christchurch City Council Issues and Options Paper: City Plan Heritage Provisions (December 2005) at 14; but note, this paper was archived in light of Christchurch’s recovery plans.
  2. Arnold “Reconstitution”, above n 53, at 290.

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.


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

  1. David Grinlinton and Prue Taylor “Property Rights and Sustainability: Toward a New Vision of Property” in David Grinlinton and Prue Taylor (eds) Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff, Leiden, 2011) 1 at 16.
  2. Waldron, above n 4, at 33.
  3. Grinlinton and Taylor, above n 66, at 1–2.
  4. Fincham, above n 65, at 670.
  5. Freyfogle “Property”, above n 5, at 56.

71 At 56.

  1. William Aldred’s Case (1572–[1572] EngR 478; 1616) 9 Co Rep 57b (KB) at 58a[B]–59a; 77 ER 821. In William Aldred’s Case Coke LJ stated the rule: Sic utere tuo ut alienum non laedas / So use your own property as not to injure your neighbours.
  2. Coquillette, above n 3, at 776.

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.

  1. Heritage New Zealand Pouhere Taonga Bill (327­2), cl 6 [HNZPTB (327­2)].
  2. Resource Management Act 1991 [RMA], s 3.
  3. See Graeme Burgess (Architect) “Heritage Assessment — Plan Change 267 2 Hepburn Street” at [4] (Obtained under Local Government Official Information and Meetings Act 1987 Request to Public Information Office, Democracy Services, Auckland Council).
  4. New Zealand Historic Places Trust v Manawatu District Council [2004] NZEnvC W 081, [2005] NZRMA 538 at [3], [5], [14]–[15], [20], [21], [25], [27], [30]–[33].
  5. Congreve v Big River Paradise Ltd HC Auckland CIV­2005­404­6809, 4 August 2006 at [25]–[26][2007] NZHC 122; , (2007) 7 NZCPR 911; Schofield v Auckland Council [2012] NZEnvC 68 at [9].

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.

  1. St John’s College Trust Board v Auckland Council [2011] NZEnvC 70 at [20]–[21]. But note proposals to reform the RMA, below n 203.
  2. Eric T Freyfogle “The Tragedy of Fragmentation” (2002) 36 Val U L Rev 307 at 309 [“Fragmentation”].
  3. Garrett Hardin “The Tragedy of the Commons” (1968) 162(3859) Science (NS) 1243 at 1244.

83 At 1247.

  1. Freyfogle, “Fragmentation”, above n 81, at 330.
  2. Grinlinton and Taylor, above n 66, at 16, citing Kevin Gray and Susan Gray Elements of Land Law (3rd ed, Butterworths, London, 2001) at 1132; consider also, environmental citizenship, a recently emerging discourse with participatory ideals: see Ken Palmer and Benjamin J Richardson “The Emerging ‘Citizenship’ Discourse in Environmental Law: A New Zealand Perspective” (2000) 17(2) Environmental and Planning Law Journal 99 at 100, 102, 112.
  3. William Blackstone Commentaries on the Laws of England (8th ed, 1778), edited for American lawyers by William G Hammond (Bancroft Whitney Company, San Francisco, 1890) at 307–308.

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


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.

  1. Arnold “Sustainable”, above n 46, at 172–173; RJ Bollard “The Resource Management Regime and Private Property Rights and Interests” (2010) 14 NZJEL 1 at 2.
  2. For example: monuments, heritage, historic heritage, preservation and historic preservation. 90 Fincham, above n 65, at 642–643.
  3. Sara Donaghey “Valuing our Place: A critical exploration of frameworks for assessing the significance of New Zealand’s historic heritage” (2006, unpublished doctoral thesis) at 16.
  4. Blake, above n 1, at 69.
  5. Alexander Trapeznik and Gavin McLean “Public History, Heritage and Place” in Alexander Trapeznik (ed) Common Ground? Heritage and Public Places in New Zealand (University of Otago Press, Dunedin, 2000) 13 at 15, citing historian David Lowenthal.
  6. Robert McClean “Historic Heritage Research Paper No 3 Identification of Historic Heritage: Theoretical and Legislative Framework” (June 2009) at 4 [“Paper No 3”].

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

  1. Harry Allen Protecting Historic Places in New Zealand (Department of Anthropology, University of Auckland, 1998) at 1.
  2. Fincham, above n 65, at 643.
  3. Jonathan Prangnell, Anne Ross and Brian Coghill “Power relations and community involvement in landscape­based cultural heritage management practice: An Australian case study” (2010) 16(1–2) International Journal of Heritage Studies 140 at 141.
  4. WHC, below n 152, art 2.
  5. Blake, above n 1, at 73–74.
  6. Carol M Rose “Preservation and the Community: New Directions in the Law of Historic Preservation” (1981) 33 Stan L Rev 473 at 475–476.

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.

  1. Blake, above n 1, at 63–64.
  2. In the RMA the terms “culture” or “cultural” are not defined but appear in ss 2 and 6(e) for various definitions, qualities and conditions.
  3. Blake, above n 1, at 68 citing Edward Tylor’s classic definition; but see Clifford Geertz “Thick Description: Toward an Interpretive Theory of Culture” in Henrietta L Moore and Todd Sanders (eds) Anthropology in Theory (Blackwell, Oxford, 2006) at 236, who criticises Tylorean over­inclusiveness.
  4. See Janelle Warren­Findley “Human Heritage Management in New Zealand in the Year 2000 and Beyond” (January 2001) at chapter 3 <­content/ uploads/2011/12/axford2000_warren-findley.pdf >.
  5. Blake, above n 1, at 68.

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


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.

  1. Personal communication with Adina Brown, Auckland Council Heritage Unit, 13 December 2011.
  2. Sax “Stonehenge”, above n 20, at 1547.

116 At 1550.

  1. Sax “Public Duty”, above n 109, at 1552–1554.
  2. Housing, Town Planning, Act 1909 (UK), Part II (ss 54–67); Laws of New Zealand Resource Management (online ed) at [1] [LONZ].
  3. For example, RMA, s 7(a)–(aa).

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

  1. Parliamentary Commissioner for the Environment Historic and Cultural Heritage Management in New Zealand (June 1996) at 4 [PCE].
  2. New Zealand Historic Places Trust Historic Buildings of Northland and Auckland (GP Books, Wellington, 1989) at 3 [NZHPT Buildings].
  3. David Grinlinton “Evolution, Adaptation, and Invention: Property Rights in Natural Resources in a Changing World” in David Grinlinton and Prue Taylor (eds) Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff, Leiden, 2011) 275 at 284.
  4. Town­planning Act 1926 17 Geo V, ss 13 and 24.
  5. Emphasis added.
  6. Warren­Findley, above n 106, at chapter 2.
  7. Historic Places Act 1954, s 4.
  8. LONZ, above n 118, at [6].
  9. Allen, above n 95, at 50.
  10. Town and Country Planning Act 1977, ss 3 and 4.

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

  1. At second schedule.
  2. Historic Places Act 1980, s 4.
  3. At ss 35 and 36.
  4. At s 53.
  5. PCE, above n 120, at Appendix 3 A24.
  6. Antony Hearn “Review of the Town and Country Planning Act 1977” (Department of Trade and Industry, Wellington, 1987).

136 At 165–166.

137 PCE, above n 120, at Appendix 3 A23–A24 citing the Coad Report. 138 Resource Management Bill (224­1).

  1. Greg Vossler “Sense or Nonsense? Heritage Legislation in Perspective” in Alexander Trapeznik (ed) Common Ground? Heritage and Public Places in New Zealand (University of Otago Press, Dunedin, 2000) 57 at 69.
  2. PCE, above n 120, at Appendix 2 A7.
  3. RMA, s 2; the definition of historic heritage was inserted by s 3(7) of the Resource Management Amendment Act 2003 [RMAA 2003].

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


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.

  1. Historic Places Act 1993, ss 4, 23 [HPA 1993].
  2. At s 2.
  3. At s 2.
  4. Conservation Act 1987, s 2.
  5. Yahaya Ahmad “The Scope and Definitions of Heritage: From Tangible to Intangible” (2006) 12(3) International Journal of Heritage Studies 292 at 293.
  6. International Charter for the Conservation and Restoration of Monuments and Sites, Decisions and Resolutions of the Second International Congress of Architects and Technicians of Historic Monuments (25–31 May 1964, Venice), art 1.
  7. International Charter for the Conservation and Restoration of Monuments and Sites, Decisions and Resolutions of the Second International Congress of Architects and Technicians of Historic Monuments (25–31 May 1964, Venice), Document 2, Resolution Concerning the Creation of an International Non­Governmental Organisation for Monuments and Sites; see < >.
  8. <>.
  9. Kenneth Palmer “Heritage” in Derek Nolan (ed) Environmental and Resource Management Law (4th ed, LexisNexis, Wellington, 2011) at [15.4].
  10. Blake, above n 1, at 62.

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

  1. UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage 1972 (opened for signature 16 November 1972, entered into force 17 December

1975), art 6(1) [WHC].

  1. Blake, above n 1, at 71.
    1. WHC, above n 152, arts 11 and 15.
    2. Sax “Stonehenge”, above n 20, at 1544. 156 Preamble to the WHC, above n 152.
    3. Blake, above n 1.
    4. UNESCO “The World Heritage Convention” <> .
    5. Independent funds include the World Monument Fund which granted $1 million toward the Canterbury Provincial Government buildings in Christchurch; see <>.
    6. < ­ 38 ­ 2.pdf> as at July 2012. 161 See, for example, NZHPT Buildings, above n 121, at 3; describing its shift from 19th­

century buildings to include pre­1940 buildings.

  1. Personal communication with Megan Patrick, Auckland Council Heritage Unit, 13 December 2011.
  2. The international working party for the Documentation and Conservation of Buildings, Sites and Neighbourhoods of the Modern Movement <>. For a definition of the Modern Movement, see James Steven Curl Oxford Dictionary of Architecture and Landscape Architecture (2nd ed, Oxford University Press, Oxford, 2006) at 495.
  3. <>. But it has only captured around one­tenth of important modern buildings, sites and neighbourhoods. See Julia Gatley (ed) Long Live

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


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.

  1. For example, Auckland City Council District Plan, Isthmus Section (Operative 1999) at [7.6]. 166 For example, Plan modification 163, Auckland Council District Plan Operative Auckland

City — Isthmus Section 1999.

  1. Proposed Auckland Unitary Plan, part 2 [3.2] (pre­1944 demolition policies), part 3 [3.6] (demolition assessment rules).
  2. See Local Government (Auckland Transitional Provisions) Act 2010, part 4 (as inserted 2013). The proposed Auckland Unitary Plan was notified on 30 September 2013. The rules relating to historic heritage have legal effect from that date: RMA, s 86B(3).
  3. Unless otherwise specified, RMA, s 85(1). Previously, in Goldfinch v Ohakune Borough Council (1986) 11 NZTPA 272 at 276 the Planning Tribunal remarked: “The Tribunal again comes to this grey area where the desires of the community may prevent a landowner from making use of a property for his own purposes.”
  4. Waitakere City Council v Estate Homes Ltd [2006] NZSC 112, [2007] 2 NZLR 149 at [45] [Estate Homes].
  5. Alan Dormer Report of the Minister for the Environment’s Technical Advisory Group

(February 2009) at 62.

  1. David Kirkpatrick “Property Rights — Do You Have Any?” (1997) 1 NZJEL 267 at 297–298.
  2. LONZ, above n 118, at [363].
  3. Falkner v Gisborne District Council [1995] 3 NZLR 622; HC Gisborne AP1/95, 26 July 1995 at [15], holding that the common law applies unless affected by statute.
  4. Wheeler Forrest Associates Ltd v Farquhar [2001] 2 NZLR 417 (HC) at [18].

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.

  1. Coleman v Kingston HC Auckland AP 103­SW00, 3 April 2001 at [28].
  2. Fincham, above n 65, at 646.
  3. Grinlinton, above n 122, at 301–302.

179 At 303.

180 At 303.

  1. Legislation Advisory Committee Guidelines: Guidelines on Process and Content of Legislation 2001 edition and amendments (May 2001) at 51 [LAC].
  2. Imperial Laws Application Act 1988, ss 3–5; LAC, above n 181, at 45.
  3. Waitakere City Council v Brunel HC Auckland CIV­2006­404­4504, 5 September 2008 at [19].
  4. R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33; [2000] 2 AC 115 (HL) at 131.

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

  1. Cooper v Attorney-General [1996] 3 NZLR 480 (HC) at 483, 495; Estate Homes, above

n 170, at [45].

  1. LAC, above n 181, at 53–54.
  2. For example, Public Works Act 1981, ss 16, 17, 23; for exceptional circumstances see Canterbury Earthquake Recovery Act 2011, s 54 and sch 1: there is no right of objection but compensation is payable.
  3. LAC, above n 181, at 53–54.
  4. At 46; in New Zealand Historic Places Trust v Wellington City Council (1979) 6 NZTPA 538 at 540–541 the Planning Tribunal was reluctant to restrict an owner’s development rights, as HPT offered only half of the requisite restoration costs. It held that the community must pay for rights it wishes to restrict.
  5. North Shore City Council v Body Corporate 188529 [Sunset Terraces] [2010] NZCA 64; [2010] 3 NZLR 486

(CA) at 495.

  1. White v Chandler [2001] 1 NZLR 28 (HC) at [67], emphasis added.
  2. But see Te Kupenga o Ngati Hako v Hauraki District Council EnvC Auckland A10/2001, 23 January 2001; Minhinnick v Watercare Services Ltd [1997] NZEnvC 122; [1997] NZRMA 289, EnvC A55/97, 28 April 1997 at 12–15 whether the destruction of heritage sites is offensive to Maori.
  3. Donnelly v Gisborne District Council [1999] NZEnvC 49; (1999) 5 ELRNZ 138; EnvC A013/99, 12 February

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]

  1. See, for example, Save Our St Heliers Inc v Ancona Properties Ltd [2011] NZEnvC 19, [2012] NZRMA 481. This case ran the offensiveness argument unsuccessfully relying on Donnelly, above n 193. The applicants failed to adduce expert evidence of heritage value within the s 2 meaning of historic heritage.
  2. Report of the Minister for the Environment’s Resource Management Act 1991 Principles Technical Advisory Group (Ministry for the Environment, CR 125, February 2012) at 58–60.

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.


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.

  1. Improving our resource management system. A discussion document (Ministry for the Environment, ME 1103, February 2013) at 34–38 as modified by Resource Management Summary of Reform Proposals 2013 (Ministry for the Environment ME1119, August 2013) at 11–14. Accessible <>.
  2. LONZ Culture and Heritage, above n 118, at [39].

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

  1. But see below n 319, on proposals to rename it as a Record.
  2. David Derby, Jim Saunders and Gavin McLean “Sustainable Management of our Heritage” (June 1997) PQ 17 at 19.

209 HPA 1993, s 32D.

  1. Resource Management (Forms, Fees, and Procedure) Regulations 2003, reg 10(2)(g).
  2. New Zealand Historic Places Trust Pouhere Taonga “Sustainable Management of Historic Heritage Guidance Sheet 4” (3 August 2007).
  3. Neil Carrie “Assessment Methodologies of Comparative Heritage Significance” (June 2010) PQ 32 at 34.
  4. But see below n 319.
  5. Local Government Act 2002, ss 3, 10.
  6. Helen R Hughes “Preface” to PCE, above n 120, at 92. 216 RMA, s 6(f ).
  7. Joanne Price and Nicola Arnesen “Heritage Matters” (June 2005) PQ 15 at 16: s 7(e) was often given a loose interpretation.
  8. At 17; see also, for example, Sam Price “Small But Perfectly Formed” (June 2010) PQ 26 at 27.

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.


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.

  1. (7 May 2003) 608 NZPD 5516, Members questioned proposed use of the terms spiritual and cultural.
  2. Neil Carrie “NZ Local Government Heritage Planners Forum” (June 2004) at [2].
  3. Resource Management Amendment Bill (313­2); see (20 March 2003) 607 NZPD 4293.
  4. Resource Management Amendment Bill (No 2) (39­1) [RMAB No 2]. 224 At cl 3(7)(a)(vi).

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).

  1. HPA 1993, s 23(2)(k); clause 64(2)(k) of the Heritage New Zealand Pouhere Taonga Bill (327­1) [HNZPTB (327­1)] proposed to carry over the concept of cultural landscape; however, Select Committee has replaced that term with the term cultural area: see HNZPTB (327­2), cl 64(3)(k).
  2. <­topics/historic­heritage.php>.
  3. Department of Conservation “Historic Heritage Management Review: A Discussion Paper for Public Comment” (January 1998) at 43; and Department of Conservation “Historic Heritage Management Review: Summary of Analysis of Public Submissions” (October 1998) at 22 [DOC “Summary”].
  4. Ministry for Culture and Heritage [MCH] “Heritage Forum” (11 April 2012) <www.mch.­events/news/heritage­forum>.

list.232 The recommendation that a portfolio be established for historic and cultural heritage was addressed.233


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 <­ministry/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.

  1. Robert McClean and Doug Bray “New Zealand Historic Places Trust Pouhere Taonga: Draft Identification of Historic Place Guidance” (20 October 2010) at 6, 11–20 [“Draft Guidance”].
  2. At 16; for a detailed explanation of these values, see pages 17–20.

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

  1. McClean “Paper No 3”, above n 94, at 47; also Price and Arnesen, above n 217, at 29, citing Porirua DC’s assessment according to: civic and services; early European settlement; early Maori; Ngati Toa; farming; hospital; industry; military; railways; religion; state housing; transportation; World War II.
  2. See Diana Morrow and Jenny Carlyon Urban Village: The Story of Ponsonby, Freemans Bay and St Mary’s Bay (Random House, Auckland, 2008) at 5: for example, public utilities, sporting clubs, churches, trade unionism, gay rights, slum clearance and gentrification, music and restaurants.
  3. Personal communication with Peter Hall, Associate Director and Planner Boffa Miskell, 22 November 2011.
  4. McClean and Bray “Draft Guidance”, above n 239, at 12–13. 245 HPA 1993, s 23.

246 HPA 1993, s 24(3).

  1. McClean “Paper No 3”, above n 94, at 43.
  2. HPA 1993, s 37A provides for the removal of registration in the case of destruction or demolition which is itself regulated under the RMA.
  3. Personal communication with Patrick, above n 162.
  4. Paul Blaschke “Sustainable Heritage Management” (December 1996) PQ 13 at 13, 14.

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

  1. Robert McClean “Saving the world by saving the old” (June 2010) PQ 23 at 24.
  2. Ministry for the Environment “The Value of Urban Design: the economic, environmental and social benefits of urban design” (June 2005) at 23 [MfE “Urban Design”].
  3. Ahmad, above n 146, at 297–298 citing The Australia ICOMOS Guidelines for the Conservation of Places of Cultural Significance [the Burra Charter] (1979), art 1.
  4. McClean “Paper No 3”, above n 94, at 12.
  5. Jeremy Salmond “From Dead Ducks to Historic Buildings: Heritage Terminology and Conservation Planning” in Alexander Trapeznik (ed) Common Ground? Heritage and Public Places in New Zealand (University of Otago Press, Dunedin, 2000) 45 at 54; Oxford English Dictionary (3rd ed, 2005, online ed) defines patina as “... usually as a result of an extended period of weathering or burial; a gloss or sheen; spec that on wooden furniture produced by age and polishing; an acquired accretion of an abstract quality”.
  6. Blaschke, above n 250, at 14.
  7. David W Morgan, Nancy IM Morgan and Brenda Barrett “Finding a Place for the Commonplace: Hurricane Katrina, Communities, and Preservation Law” American Anthropologist (2006) 108(4) 706 at 714–715.

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


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

  1. Byrne, above n 35, at 678.
  2. Robert Baldwin “Regulation: After ‘Command and Control’” in Keith Hawkins (ed) The Human Face of Law: Essays in Honour of Donald Harris (Oxford University Press, Oxford, 1997) 65 at 65: governments have capabilities to command, deploy wealth, harness markets, inform, and act directly.
  3. Robert Howse “Retrenchment, Reform or Revolution? The Shift to Incentives and the Future of the Regulatory State” (1993) 31(3) Alta L Rev 455 at 459; The Allen Consulting Group “Thoughts on the ‘When’ and ‘How’ of Government Historic Heritage Protection: Research Report 1, Heritage Chairs and Officials of Australia and New Zealand” (October 2005) at [5.1].
  4. Howse, above n 262, at 459.
  5. At 456; see also Michael Taggart “From ‘Parliamentary Powers’ to Privatization: The Chequered History of Delegated Legislation in the Twentieth Century” (2005) 55 UTLJ 575 at 615–616.
  6. Taggart, above n 264, at 616–617.
  7. At 615; see also Terence Daintith and Alan Page The Executive in the Constitution (Oxford University Press, Oxford, 1999) at 2.
  8. Taggart, above n 264, at 627.

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

  1. Smith, above n 11, Book I at 23–24: “He will be more likely to prevail if he can interest their self­love in his favour, and shew them that it is for their own advantage to do for him what he requires of them. Whoever offers to another a bargain of any kind, proposes to do this. ... We ... never talk to them of our own necessities but of their advantages.”
  2. Howse, above n 262, at 460–461.

270 At 462.

  1. Allen Consulting, above n 262, at 3–5, 9.
  2. Blaschke, above n 250, at 14.
  3. Allen Consulting, above n 262, at 3.
  4. Byrne, above n 35, at 675.
  5. Kirkpatrick, above n 172, at 273.
  6. George Farrant, Chief Heritage Advisor, Auckland Council, in Robert McClean and Susan Thomson “Incentives for Historic Heritage Toolkit” (13 August 2010) at 5 [“Incentives”].

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.

  1. RMA, s 108(2)(a); so long as they are connected to the plan: Estate Homes, above n 170, at [66].
  2. McClean and Thomson “Incentives”, above n 276, at 33. 282 At 17–18.
    1. Auckland City Council District Plan, Central Area Section (Operative 2004), rule []; see also proposed Plan Modification 42.
  3. McClean and Thomson “Incentives”, above n 276, at 30. 285 At 14–15, protected in perpetuity by way of covenant.
    1. For a recent example see Memorandum from Stephen Curham (Conservation Architect, Auckland Council) to Jonathan Blackmore (Planner, Auckland Council) regarding R/ LUC/2011/1974 (14 June 2011) at 6 (Obtained under Local Government Official Information and Meetings Act 1987 Request to Public Information Office, Democracy Services, Auckland Council) [LGOIMA]; Dave Pearson Architects Ltd “18 Paget Street, Ponsonby: Assessment of Environmental Effects” (May 2011) (LGOIMA).
    2. New Zealand Historic Places Trust/Pouhere Taonga v Manawatu District Council [2004] NZEnvC 380; [2005] NZRMA 431 at [19], [33].
    3. The RMA safeguards property rights under s 85(2); a provision may be challenged if it

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


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).

  1. Graham, above n 2, at 160.
  2. Personal communication with Hall, above n 243. 291 MfE “Urban Design”, above n 252, at 22–23.

292 Ministry for the Environment “New Zealand Urban Design Protocol” (March 2005) at 4. 293 <­protocol/signatories.html>.

  1. Byrne, above n 35, at 665.
  2. Neil A Silberman “Heritage interpretation and human rights: documenting diversity, expressing identity, or establishing universal principles?” (2012) 18(3) International Journal of Heritage Studies 245 at 246.
  3. MfE “Urban Design”, above n 252, at 22–24.
  4. David Harvey “From Managerialism to Entrepreneurialism: The Transformation in Urban

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.

  1. McClean and Thomson “Incentives”, above n 276, at 42.
  2. Edward L Glaeser “Preservation Follies: Excessive landmarking threatens to make Manhattan a refuge for the rich” (2010) 20(2) City Journal at <­journal. org/2010/20_2_preservation­follies.html>.
  3. Nicolai Ouroussoff “An Architect’s Fear That Preservation Distorts” The New York Times

(New York, 24 May 2011).

  1. Ouroussoff, above n 300.
  2. Byrne, above n 35, at 670–671.
  3. See, for example, Auckland City Council District Plan, Isthmus Section (Operative 1999), Part 5C — Heritage at [5C.7.1.3 A­C]; see also Auckland City Council District Plan, Central Area Section (Operative 2005), Part 10 at [10.9.11].
  4. Byrne, above n 35, at 677–678.


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.

  1. See, for example, MCH “Briefing for the Incoming Minister for Arts, Culture and Heritage” (December 2011) at 3, which identified structural performance of built heritage outside of Christchurch as a significant policy issue [MCH “Briefing Paper”]. See also Bernard Osman The New Zealand Herald “Auckland Safety Shock: 400 Quake Risk Buildings” (5 March 2011); Brian Rudman The New Zealand Herald “Relax, it’s only volcanoes we have to worry about” (25 November 2011); Fran O’Sullivan The New Zealand Herald “Gang of 20 Needs a Shake” (26 November 2011).
  2. Ministry of Business, Innovation and Employment [MBIE]: Building Seismic Performance Consultation Q & A (from issues raised at public meetings in February 2013).
  3. New Zealand Historic Places Trust Pouhere Taonga “Submission to the Canterbury Earthquakes Royal Commission” at [75] [NZHPT “Submission”].
  4. Christchurch City Council “Central City Plan: Draft Central City Recovery Plan for Ministerial Approval” (December 2011) at 13 [CCC “Draft Recovery Plan”], made in accordance with the Canterbury Earthquake Recovery Act 2011, ss 16–27. Hampton v Canterbury Earthquake Recovery Authority [2011] NZHC 797; [2012] NZRMA 139 (HC), HC Christchurch CIV­2011­409­1368, 20 July 2011 at [5], [10], [39], [45]–[47]; in this case the Court declined relief against a decision to demolish a Category 2 heritage building. It found that CERA acted within its broad powers to issue a demolition notice due to safety risks and that mitigation was not a realistic alternative.
  5. MCH Draft for Consultation “Recovery Programme for Heritage Buildings and Cultural Heritage Places: Scope of Work” (May 2012).
  6. <> from the period starting 30 August 2011; see also


  1. Canterbury Earthquake Recovery Authority “Draft Recovery Strategy for Greater Christ­ church: A Summary Document” (2011) at 5–6.
  2. CCC “Draft Recovery Plan”, above n 308, at 34.

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.


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

  1. Cabinet Office Circular “Earthquake-prone building policy review: Terms of reference” CAB 100/2008/1 (8 March 2012) at 2.
  2. Maurice Williamson “Govt Responds to Earthquakes Royal Commission” (15 April 2013)


  1. <­policy­review>; Canterbury Earthquakes Royal Commission Te Komihana Rūwhenua o Waitaha at [6.5.2], [7.4.2], [7.8.1], [7.7].
  2. <­we­do/our­projects/current/review­historic­places­act­1993>;

HNZPTB (327­2).

  1. MCH Regulatory Impact Statement September 2012 < NZ%20RIS%20Sep%202012%20%28D­0450588%29.PDF>.
  2. Supplementary Order Paper (135) HNZPTB (327­1), cls 18, 63 [SOP]; 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.

  1. SOP (explanatory note) at 19.

320 HNZPTB (327­2), cls 81B–81D.

  1. At cl 6; carrying over HPA 1993, s 2.
  2. At cl 6.

323 At cl 12(1A).

324 At cl 12(1)(a).

325 HPA 1993, s 32C.

326 HPA 1993, s 42(1).

  1. Advance Copy NZPD (online ed) (8 May 2012) <­NZ/PB/Debates/ Debates/8/1/1/50HansD_20120508_00000020­Heritage­New­Zealand­Pouhere­Taonga­ Bill.htm>. The Bill commenced a second reading in September 2013.
  2. McClean “Paper No 3”, above n 94, at 37.
  3. MCH “Briefing Paper”, above n 305, at 5.
  4. NZHPTB (327­2) (commentary) at 1.


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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