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New Zealand Journal of Environmental Law |
Last Updated: 21 January 2023
237
The Preservation of Heritage Buildings in the Wake of the Canterbury Earthquakes
Nicola Jane Brazendale*
Heritage buildings juxtapose the familiar and the exotic. The fact that human beings are drawn to both perhaps goes some way towards explaining why so many of us wish to see heritage buildings preserved
*BA (Japanese), PG Dip (Trans), LLB (Hons). Email: brazen.nic@gmail.com. This article was submitted as a dissertation in partial fulfilment of a Bachelor of Laws Honours degree at the University of Auckland in 2013. The author is currently working towards admission as a Barrister and Solicitor of the High Court of New Zealand.
The city ... does not tell its past, but contains it like the lines of a hand, written in the corners of the streets, the gratings of the
windows, the banisters of the steps, the antennae of the lightning rods, the poles of the flags, every segment marked in turn with scratches, indentations, scrolls.
Italo Calvino, Invisible Cities1
1. INTRODUCTION
The Canterbury earthquakes of 2010–2011 caused vast devastation and destruction. Whilst the loss of life was terrible, heritage buildings were also a major casualty: 32 per cent of heritage listed buildings within the city’s “four avenues” alone were either destroyed in the actual quakes or had to be demolished due to the extensive nature of the damage inflicted.2
Two and a half years on, this “seismic shift” initiated by the Canterbury earthquakes has well and truly spread beyond the Canterbury region as the Government is proposing changes to three key pieces of legislation affecting heritage building management: the earthquakeprone buildings (EPB) policy under the Building Act 2004; the Resource Management Act 1991 (RMA); and the Historic Places Act 1993 (HPA).
The changes proposed to the EPB policy will have perhaps the greatest direct impact on heritage buildings as the setting of a mandatory timeframe for the strengthening of buildings defined as earthquake-prone, of which heritage buildings form a significant part, could ultimately result in the loss of many heritage buildings throughout New Zealand. The proposed RMA reforms aim to achieve a more appropriate balance between public and private interests than is currently the case; and the Bill to replace the HPA, if enacted in its proposed form, will also downgrade the protection afforded by heritage listing.
This is the shaky ground upon which commercial heritage buildings now stand. It is also the context within which much public debate needs to take place on the future of all commercial heritage buildings in New Zealand. This article aims to inform that policy debate. First, it aims to investigate the reasons why we should value our built heritage, if at all. Second, it will take a close look at the ramifications of the Canterbury earthquakes for heritage buildings, focusing on the potential impact of proposed reforms to the EPB policy. Third, it will survey the current legislative protections offered by the RMA and the HPA
and consider how this protection is likely to change if the proposed reforms go ahead. Finally, it will consider possible approaches for New Zealand to take towards our commercial heritage buildings by surveying academic writing, government reports and overseas examples in the hope of proposing options for the future.
It may be that the current Government’s pragmatic approach towards heritage buildings will win the day if that is what New Zealanders are feeling in the wake of the Canterbury earthquakes and in the tightened economic conditions following the Global Financial Crisis. But in order to have a proper debate New Zealanders need to be informed and that is the ultimate aim of this article.
2. WHY DO WE BOTHER TO PROTECT HERITAGE BUILDINGS?
This is an extremely important question to ask right at the outset — just why should we bother to protect heritage buildings? After all, there will be those who consider heritage buildings as nothing more than a “backward looking drain on the economy”,3 responsible for creating a downatheel and uncared for ambience in our towns and cities. Inevitably, it is difficult to formulate a simple answer, although it is common to draw analogies to the reasons why we protect our natural heritage: both natural and cultural heritage are inherited and, once destroyed, cannot be recreated.4
To really get to grips with why heritage preservation is both desirable and necessary we have to look at the wider context within which heritage preservation takes place. Since the Brundtland Report adopted the concept of sustainable development, defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”,5 this concept has infiltrated many national legislative regimes, including that of New Zealand.6 Whilst grounded in concerns about
(Oxford University Press, New York, 2008) at 115.
(1987) <www.undocuments.net> at ch 2 [the Brundtland Report]. 6 Resource Management Act 1991 [RMA], s 5.
environmental sustainability, sustainable development has also developed to consider “the interaction between environmental, economic and social values”.7 Interestingly, this ethic of stewardship of valuable resources was also evident in the language of the early heritage conservationists. When writing about buildings from the past, for instance, John Ruskin said, “[t]hey are not ours. They belong partly to ... all the generations of mankind who are to follow us.”8 Thus, sustainable development is not a new and revolutionary concept, but rather a reiteration of the longheld responsibilities of all mankind, past, present
and future, towards our natural and physical resources.
A more contemporary take on stewardship and heritage preservation has been put forward by a leading heritage advocate in the United States, Donovan Rypkema:9
Historic preservation is a responsibility movement rather than a rights movement. It is a movement that urges us toward the responsibility of stewardship, not merely the right of ownership. Stewardship of our historic built environment, certainly; but stewardship of the meaning and memory of our communities manifested in those buildings as well.
And so, it is readily apparent that the raison d’être for heritage building preservation is none other than sustainable development — that bedrock principle upon which the RMA itself rests. What more needs to be said to justify the importance of heritage preservation? Well, quite a lot, actually.
This part will discuss the way in which heritage preservation fulfils this fundamental purpose of the RMA and all three aspects of the “sustainability matrix”.10 That is, it will endeavour to show how the preservation of heritage buildings achieves environmental, economic and social wellbeing for all New Zealanders. At the same time, it will aim to achieve a balanced view, keeping in mind that preservationist values must themselves be sustainable and not create an “inexorable burden on those to whom we wish to bequeath our heritage”.11
2.1 Environmental Well-being
Heritage preservation is an integral component of environmental sustainable development.
The retention and adaptive reuse of our existing building stock is vital to our environmental well-being in two important respects: first, it drastically reduces the amount of construction waste; and second, it significantly improves energy efficiency. For Rypkema, this makes the preservation of heritage buildings “the ultimate in recycling”.12
Building construction waste constitutes around 50 per cent of all waste gen erated each year and around 20 per cent of all waste ending up in landfills.13 So although more and more people diligently recycle their household waste, this hard work is entirely negated when any building is demolished.14
In addition, the increasing expense of waste disposal means that, in order to be sustainable, society will need to develop buildings that have an expected lifespan of at least 100 to 120 years. As Rypkema points out, many heritage buildings have already been around this long, they have stood the test of time and their continued preservation should therefore be encouraged, at least where adaptive reuse is practicable.15 This is in line with the approach advocated by the European Charter of Architectural Heritage: “Our society now has to husband its resources. Far from being a luxury this heritage is an economic asset which can be used to save community resources.”16
Adaptive reuse is gaining in popularity as more developers realise the potential value in heritage buildings as a means for providing highquality modern buildings at a lower cost than new construction. Not only does it take half the time, but the cost is only 50 to 80 per cent that required for new construction, resulting in significant financial benefits for the developer.17
The preservation of a heritage building also retains that building’s embodied energy. This is defined as the total expenditure involved in the creation of a
building and its constituent materials.18 Not only does it take a lot of energy to build a new building, the demolition of a heritage building also entails the demolition of its embodied energy.19 There are also dramatically increased energy savings in buildings over 50 years old due to recurring embodied energy. Rypkema asserts that the owners of a building lasting 100 years or more can use 25 per cent more energy every year and still have less lifetime energy use than for a building that lasts just 40 years.20
Another aspect of environmental sustainable development is the physical appearance of our towns and cities. First and foremost, heritage buildings provide us with tangible evidence of our immediate past.21 Perhaps even more importantly from an environmental responsibility point of view, heritage buildings provide us with a “diversity of building forms which give character and charm to our cities”.22 Once destroyed, such diversity can never be replaced.
For some commentators, much of the new buildings replacing heritage buildings are what can only be described as “junk” or “inhuman and grotesque”.23 Robert Stipe suggests that as a society we have a right to expect that our cities and towns retain their beauty and individuality, and that heritage buildings are an important part of this:24
We should replace them only when they no longer have meaning, when other needs are more pressing, and we should do so only with great caution
— knowing how our environment creates us, as well as how we create our environment.
To conclude, the preservation of our built heritage achieves environmental sustainability by reducing waste, increasing energy efficiency, and by enhancing the appearance of our urban environment. The above quotation helps to focus our attention on one of the key debates needed: do heritage buildings still have
22 At 14.
meaning for us, or are there more pressing concerns, such as public safety, in the wake of the Canterbury earthquakes?
2.2 Economic Well-being
This section will focus on the economics of heritage preservation. First, it will analyse the deficiencies in the market forces model with respect to heritage buildings and consider what alternative models exist for valuing our built heritage. Second, it will seek to show how heritage preservation is “at the heart of the economy”25 rather than being the antithesis of it.
The primary reason why Adam Smith’s “market forces” model26 will not protect heritage buildings is not because maximum economic efficiency and heritage preservation are fundamentally at odds with one another. Rather, it is because there are certain conditions under which Smith’s model does not hold true, and heritage preservation happens to be one of them.
The market will only work efficiently to maximise welfare where the price paid for a good is an accurate representation of its value to society.27 Whilst this model generally works well for goods that are purchased and consumed by the same person or group, it does not accurately reflect the position for heritage buildings. This is because the private ownership of a heritage building also has external effects on the welfare of others due to the value society places on the retention of heritage buildings.28
It is this tension between a heritage building’s public and private good characteristics that causes market failure.29 It is also the reason why all developed countries have instituted some form of town planning or resource control around the use and development of heritage buildings — to ensure that the public value of a particular building will be taken into account when considering its future.30
28 At [2.3].
(i) Alternative economic models
(a) Public good theory
In essence, public good theory states that the correct amount of a public good is determined in accordance with a cost-benefit ratio.31 In the context of heritage buildings:32
... the total social value created [must be] equal to the cost imposed on the economy or the owner or occupier. In other words, the value put on the conservation of a building ... should be at least equal to the cost of preserving it.
In practice, however, this formula is not particularly workable. Whilst econo mists can easily calculate the cost of retaining a heritage building, including the cost of earthquakestrengthening, preservationists are not quite so easily able to illustrate, in a tangible and meaningful way, the “value” of the building, and thus the consequent loss to society if the building is demolished.
A case study that illustrates the problem of comparing the economic cost to the social benefit is the Harcourts Building on Lambton Quay in Wellington. Built in the 1920s, the eightstorey building sits on prime real estate in the heart of Wellington’s central business district. It is owned by a property developer who wishes to have it demolished so that he can replace it with a 25storey tower block, identical to the HSBC tower opposite which he also owns.33
The owner’s economic argument for demolishing the building is strong: the building is earthquakeprone and thus no longer “economically viable” given that it will cost $11 million to earthquakestrengthen.34 Without this work, the building is a public safety hazard. The owner contends that this has caused the value of the building to crash in the wake of the Canterbury earthquakes, from
$20 million to just $10 million. The building now sits largely tenantless.35 Against this is the social benefit argument: the New Zealand Historic Places
Trust (NZHPT) have sought to emphasise the heritagelisted building’s social significance. They have also provided evidence on the ability to bring older
(online ed, Wellington, 2 March 2013).
buildings up to current seismic standards and the market for strengthened heritage buildings in Wellington in an effort to counteract the economic arguments put forward by the owner.36
Although the planning commissioners (and the Environment Court) determined against the owner in this instance,37 the longterm prognosis for the building is not good given the owner’s attitude towards the building. He has responded to the decisions by stating that he may leave the building empty for 15 years, presumably in the hope that the social value of the building will decline when left in an unmaintained and derelict state.38 The Harcourts Building thus exemplifies the vulnerability of all heritage buildings: preservation is, and always will be, a matter of market economics:39
... historic preservation can rarely succeed unless both public and private sectors are operating together in a mutually supportive manner. That is because [historic buildings] must always fulfil the basic investment expectations of the owners of the property. If they do not do that, they will inevitably be lost.
The reality is that whilst some heritage building owners may place importance on the heritage value of their building, for most owners their primary concern is its ability to return current income or capital gains.40 In such a situation, mandating heritage preservation is akin to taxing owners to pay for public benefits.41 Thus, the value of a heritage building in terms of its real estate or development value will always be a disproportionately large factor in determining whether the preservation of a particular heritage building is economically sustainable. In addition, the fact that a building is protected may reduce its monetary value because of perceived restrictions on how it can be managed and developed.42
The ultimate success or failure of preservation will depend on the potential to develop the place to a new use, provided that this can be done in a way compatible with its cultural significance.43 As Robert McClean, senior heritage policy advisor for the NZHPT, has pointed out, conflict and tensions arise most
[2013] NZEnvC 238 (Environment Court decision refusing demolition consent).
— Historic Preservation in the Twenty-First Century (University of North Carolina Press, Chapel Hill, 2003) 23 at 32–33.
40 At 33.
43 At 65.
commonly where a heritage building is perceived as useless by its owner but is still valued by the public.44
(b) Methods for valuing cultural heritage goods
A model based on value measures the public perception of a particular cultural heritage good. Economists define value in cultural heritage goods as including both “use values” and “nonuse values”.45
A use value is the value that a person gets from being able to enjoy a cultural heritage good. This model does not lend itself to valuing commercial heritage buildings because of the difficulty of valuing the social benefit of their continued existence.
Nonuse values arise solely from the knowledge that a cultural heritage good, such as a heritage building, is being preserved for others, particularly future generations.46 A nonuse value is calculated by working out the largest amount a person would willingly pay to be assured that the cultural heritage good is preserved.47 Alternatively, the economic value of a heritage building could be measured by asking people how much public money they would be prepared to see spent preserving it (either in the context of higher taxes or in relation to other public services, such as healthcare).48
An economic model based on the nonuse value inherent in heritage buildings is thus a viable option for ascertaining the value society places on heritage buildings. This could be undertaken at either a national level for all heritage buildings generally, or at a local level in respect of particular heritage buildings. The act of determining the nonuse value of our built heritage would also be likely to generate muchneeded public debate and ensure that society at least has the opportunity to preserve truly significant heritage buildings.
The key to preservation is to see heritage buildings as an economic resource in themselves, rather than as a drain on the economy. An attitudinal shift is required. Rypkema points out that at the most elemental level, economy and preservation are fundamentally about the same thing — saving scarce resources. When viewed thus, heritage preservation is “an economically sound, fiscally responsible, and costeffective response to the challenges of today’s economic environment”.49
(i) Economic revitalisation
Rypkema argues that heritage preservation is a vital component of urban regeneration and city centre revitalisation. It is vital to the sustainable development of not just the environment, but also of the economy.50 The Auckland Council picked up on this aspect in The Auckland Plan: unlocking the full potential of historic heritage stimulates environmental, economic and community regeneration; the effective reuse of heritage places is a significant component of sustainable development; heritage preservation will have economic benefits such as heritage tourism, and make Auckland a more liveable city.51
The reason why heritage buildings are capable of bringing about such economic benefits is because they represent a resource that is absolutely exclusive to a particular community. In this respect, they provide a city or town with a muchneeded competitive edge that contributes to quality of life by improving the town or city’s image, which in turn attracts business and fosters tourism.52
At the same time, however, it is important not to overlook a strong economic argument against heritage preservation: it may lead to stagnation because to label a building as heritage often results in the cessation of a building’s normal existence by arresting the continuum of history and natural evolution. When this happens, heritage buildings no longer make economic and social sense.53
Another important consideration is the safety of the building for human use. If a heritage building is to continue to be used it “must achieve certain minimal standards of amenity and safety for its users and occupants”.54
(ii) Heritage tourism
Heritage tourism has had an influential role in changing attitudes towards heritage buildings — from being seen as an impediment to the economy to being seen as an economic resource. Increasingly, heritage tourism attracts significant tourist revenue for local, regional and national economies.55
The impact of heritage tourism on local economies is particularly obvious in places such as Napier and Oamaru. The heritage districts in these two areas actively draw national and international visitors. In Napier, for instance, tourism
52 Rypkema (2002), above n 15, at 27–29.
53 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 46–48.
54 At 50.
55 Worthing and Bond, above n 7, at 52.
is not only the benefit of heritage preservation and promotion; it is also the
cause of Napier’s new commitment to preservation:56
It is only because Napier people see international visitors enjoying the city’s architecture, and read about it in international publications, that they value it themselves. ... Napier has gained confidence and civic pride as it has realised that it is unique, and a place that welltravelled foreigners describe as special.
The risk of heritage tourism, however, is that it may become the defining criterion for government and the private sector. In other words, only those heritage places that are marketable and commercially viable will be retained.57 The possible mandatory requirement to strengthen heritage buildings
to above the earthquake standard proposed in the wake of the Canterbury earthquakes has brought the economics of heritage buildings to the fore. In any debate on the future for heritage buildings it will be important to point out the economic importance of heritage preservation, to emphasise what it offers to the nation, rather than simply concentrating on what it costs. We do not want to fall into the trap of knowing only the “price” of heritage buildings, whilst completely disregarding their “value”.58
2.3 Social Well-being
The values listed in the International Council on Monuments and Sites (ICOMOS) New Zealand Charter emphasise the social values inherent in heritage buildings: it provides the context for community identity; it gives us a measure against which to compare the achievements of today; and it provides visible evidence of the continuity between past, present and future.59
Heritage buildings have no inherent value in themselves however, only that which society places on them. And as a solely human artefact, significance and value will change as the values of society change.60 For this reason, public debate is needed to determine whether the Canterbury earthquakes have changed our attitude towards heritage buildings — are we still inclined to view them as significant and valuable or does the desire to live and work in a
building built to 100 per cent of the new building standard outweigh heritage considerations?
Heritage preservation is also a fundamentally political process.61 The current Government’s emphasis is undeniably economic, as evidenced by the reforms currently proposed to the RMA. In such a political climate it is more important than ever to clearly articulate the social importance of heritage buildings.
This section will thus set out the main arguments for why heritage preservation is important for social wellbeing. It will also discuss how a preoccupation with heritage has the potential to hinder our social wellbeing.
(i) Identity and a sense of place
As an “inalienable human right” identity provides a strong justification for heritage building preservation.62 Heritage buildings are imbued with a “certain magic of permanence and of keeping the past alive in the present and future” that makes them valuable markers of community identity.63 Indeed, any discussion of identity in the context of heritage preservation inevitably emphasises how a tangible link with the past “serves as a central point of reference and contributes to providing life with purpose and meaning”.64 It also serves to emphasise collective identity at both a national and local level.65 At its most simplistic, the “impulse to preserve the past is part of the impulse to preserve the self. Without knowing where we have been, it is difficult to know where we are going.”66 Consequently, the importance of heritage buildings to identity is increasing as the effects of globalisation increase — heritage buildings help to remind us who we are and thereby reaffirm our own
identity.67 Stipe makes the case stridently:68
We live in an age of ever more frightening communication and other tech nological abilities, as well as an era of increasing cultural homogeneity. In such a situation, we subconsciously reach out for every opportunity to maintain difference, individuality and personal identity.
A sense of place is an important corollary to identity. Heritage buildings are important in this regard as a “visible reminder of the past and a stable and relevant backdrop to the activities of the present”.69 The rapid loss of familiar landmarks can lead to a sense of insecurity and is considered to be a principal cause of alienation, crime and dysfunction in modern communities.70
(ii) Quality of life
Heritage preservation can serve important social purposes by enhancing the quality of life in urban environments.71 For Stipe, preservation goes beyond saving buildings; it is all about “upgrading the quality of human existence”.72 Heritage buildings create a lively and enticing environment for the public: they do not block out sunlight, and their small scale creates a less intimidating atmosphere.73
In an increasingly economically globalised world all major cities around the world are looking for a competitive edge. The quality of life provided by the built environment is thus increasingly important in creating a sustainable city with a sustainable economy.74 Heritage buildings are a key factor in achieving this:75
The influences of globalization have fostered the rise of heritage conservation as a growing need to preserve the past, both for continued economic growth and for strengthening national cultural identity.
(iii) Inheritance and educational value
A key consideration of sustainable development is managing our resources with future generations in mind. For Pearson and Sullivan the “supreme justification” for heritage preservation is the “deep feeling” of most people that their descendants have the right to at least as many options in the cultural and
70 At 15.
71 Stipe (Prologue), above n 23, at xiv–xv. 72 At xv.
73 Rypkema (2002), above n 15, at 59–60.
national environment as they have themselves.76 It is for this reason that the sustainable management of our built heritage is so important — to ensure future generations can learn from their past just as we have done, and so that they can appreciate in a physical sense the continuity of past, present and future. It is almost impossible to communicate the heritage of a place without the tangible object in existence.
At the same time, it is important to keep nostalgic tendencies in check, lest our preservation of heritage turn into an obsession with the past. Whilst the past can definitely guide us, it may also constrain us and preclude creativity and innovation.77 In addition, because heritage is subjective, there is a danger that those who hold power will seek to shape the landscape to their own end — to reinforce particular group identities, for instance.78
Nostalgia for the past may also alienate us from the present.79 Robert Hewison, for instance, argues that an obsession with the past springs from a deepseated insecurity, stating that “had we more faith in ourselves, and were more sure of our values, we would have less need to rely on the images and monuments of the past”.80
He does not suggest that the past is not worth preserving, simply that obsessive tendencies mean that we fail to critically assess the past for its future value. Such an obsession is unhealthy — not only are we creating a false impression of the past, but we are also preventing society from evolving naturally.81 As Hewison so eloquently puts it, “the true product of the heritage industry is not identity and security, but entropy”.82
In summary, the preservation of heritage buildings is important because it provides that physical link to the past so crucial to maintaining community cohesiveness and identity. This is an aspect especially important in an increasingly globalised world. When debating the value of heritage buildings, however, we must be careful to keep heritage preservation in perspective — to not just obsessively preserve buildings without some consideration of their value to society.
81 At 139.
82 At 141.
3. RAMIFICATIONS OF THE CANTERBURY EARTHQUAKES FOR HERITAGE BUILDINGS
A catastrophe such as that visited on Canterbury on 22 February 2011, with the loss of 185 lives, has the effect of bringing one thing into sharp focus over and above everything else: public safety and how to achieve it to prevent a similar catastrophe in the future. The public clamour for it and the Government is keen to be seen to be delivering it.
This is the setting in which all heritage buildings throughout New Zealand now reside. A setting as vulnerable and precarious as any the earthquakes have physically delivered thus far.
This part will first assess the earthquake-prone buildings (EPB) policy and its potential impact on commercial heritage buildings. Second, particular ramifications of the earthquakes and the EPB proposal will be discussed in sustainable management terms: what are the environmental, societal and economic impacts for heritage buildings? It will conclude by briefly analysing the impact of the Canterbury Emergency Recovery (CER) Act 2011 on heritage buildings.
3.1 Earthquake-prone Buildings Policy
Earthquakeprone buildings (EPBs) are subject to special procedures under the Building Act 2004. Section 122 defines an EPB as any non-residential building (unless two or more storeys and containing three or more household units) that will have its ultimate capacity exceeded in a moderate earthquake (having regard to its construction, condition and to the ground on which it is built) and would be likely to collapse causing injury or death, or damage to other property. Many commercial heritage buildings are likely to come within this definition.
The meaning of “moderate earthquake” is given as being an earthquake that would generate shaking at the site of the building that is of the same duration as, but that is onethird as strong as, the earthquake shaking that would be used to design a new building at that site.83 This corresponds to the Percentage of New Building Standard (%NBS) of 33 as recommended by the New Zealand Society for Earthquake Engineering (NZSEE).84 This percentage is based on a cost-benefit analysis taking into account the fact that buildings with less than
onethird the strength of new buildings have at least 10 times the risk of serious damage or collapse in an earthquake when compared with a new building.85
At present, however, 33% NBS is not mandatory. It is regarded as a guideline. Territorial authorities are also given a great deal of leeway in developing their EPB policies, the only stipulations being that they state their approach to EPBs, their priorities within that approach, and how their policy will apply to heritage buildings.86 When adopting EPB policies territorial authorities must also take account of s 4 principles. In respect of heritage buildings, this means taking account of the need to facilitate the preservation of buildings of significant cultural, historical, or heritage value.87
Another aspect of the guidance issued by central government to territorial authorities under the current system is the concept of active and passive implementation approaches.88 An active approach involves the identification and assessment of potential EPBs, followed by a requirement to retrofit or demolish identified EPBs within a relatively short time. A passive approach requires seismic strengthening only when triggered by an application for a building alteration or change of use.89 Because strengthening works are classified as being an alteration to the building requiring a building consent EPB owners are also exposed to additional costs triggered by such an application, such as the requirements under the Building Act for fire escapes and disability access for all public buildings.90
In general, the current approach to EPBs under the Building Act does not suggest a “one size fits all” approach. Instead, the legislation leaves it up to each territorial authority and their respective community to develop a policy that best suits their area’s particular seismic, economic and social conditions.91 Whilst such an approach has worked well in some areas it has also led to great variability between regions.
In Wellington (an area with both high seismicity and highvalue heritage buildings), for instance, the Council has adopted an active approach to EPBs. They also actively encourage building owners to strengthen to 67% NBS, rather than the Governmentrecommended threshold of 33% NBS, because the greater strengthening levels will limit the impact of a major earthquake event and also
89 At [2.6.2].
help to preserve the fabric of the city by ensuring the protection of heritage buildings.92
Both the Ministry of Business, Innovation and Employment (MBIE) and the Canterbury Earthquakes Royal Commission (CERC) identified a number of problems with the current policy for EPBs.93
(i) Too much variance in territorial authority practice
There is a notable range in approach adopted by territorial authorities throughout New Zealand. Some are not actively identifying or requiring owners to deal with EPBs; others are doing so but are giving timeframes that are too long; still others have taken strong action, even requiring greater strengthening than to 33% NBS. Variable approaches have also been taken as to how EPB policies deal with heritage buildings.
Prior to the Canterbury earthquakes, 33 territorial authorities had adopted active policies; 23 passive policies; and 17 combined active/passive approaches.94 MBIE has found, however, that territorial authorities have “generally been more active in dealing with EPBs since the Canterbury earthquakes”95 and that passive policies are far less predominant in second generation EPB policies.96
The variation in length of timeframe for strengthening (where specified at all) was also marked. Whilst a 30year timeframe was most typical, 50year periods for strengthening were also found. Altogether there were 26 different timeframes.97 Thirtyfour territorial authorities recommended strengthening beyond the 33% NBS threshold.98
Heritage buildings also receive variable levels of protection in district plans throughout New Zealand. Statistics included in a review for MBIE show that as at May 2011 the demolition of heritage buildings was a permitted activity in one district plan; discretionary in 32; noncomplying in 32; and prohibited
in nine.99 Such a level of variability of rules in different areas creates too much uncertainty.100
(ii) Public confusion about risk
MBIE found that there is generally a poor understanding about the risks posed by EPBs and how these risks compare with other risks commonly faced in life.101 This deficiency translates into people making decisions that are either too riskaverse, or not riskaverse enough. For instance, following the Canterbury earthquakes, there have been various examples of tenants taking the drastic step of vacating EPBs.102 In some cases this has led to an unwarranted drop in value and commercial viability for such buildings.103
(iii) Lack of good data on buildings at risk
The lack of publicly available data on which particular buildings are EPBs means that many heritage buildings will be inadvertently assessed as being earthquakeprone when they are in fact above the 33% NBS threshold. Public perception about the risk to public safety from unreinforced masonry (URM) buildings is an aspect that is particularly damaging for heritage buildings throughout New Zealand.104
The market needs to be better informed so as not to tar all heritage buildings with the same brush. It is also felt that better information will ensure continuing market pressure on building owners to either strengthen or replace old buildings.105
(iv) Lack of central government guidance to territorial authorities
The lack of central government guidance has been noted in two key areas. First, there is limited information to support good practice and decisionmaking by territorial authorities in support of stronger buildings. And second, there has been limited monitoring and oversight by central government of territorial authorities’ performance in this area.106 In particular, central government lacks
(online ed, Palmerston North, 7 December 2012); Blundell, above n 2.
106 At 16.
powers to require territorial authorities to take certain actions in identifying and requiring owners to either strengthen or demolish.107
In their consultation document, MBIE outlined their ideal improved EPB policy: a uniform acceptable level of risk for all EPBs; better information on the seismic capacity of buildings; reasonable times for owners to strengthen or remove buildings; limited exceptions to the strengthening requirement; and important heritage buildings would be preserved.108 The overall objective of EPB policy would be to reduce the risk of people dying or being injured in future earthquakes.109
MBIE also stressed that any improvements must be achievable from a cost benefit perspective: because it is not possible to eliminate the risk of people dying in building collapses the aim is to achieve an acceptable level of risk. This will enable the public to feel confident that the risk is being managed to an acceptable level, whilst also keeping costs of strengthening or removal in proportion to the reduction in risk that is achieved.110
MBIE also specifically mentioned the need to preserve heritage buildings in recognition of the fact that “many older EPBs have considerable cultural and historic importance to communities”.111 They also recognised that owners of heritage buildings may face particular difficulties under the proposed policy change because the cost of strengthening is high and may not improve their building’s economic return; the benefits of strengthening often accrue to the wider community, in both cultural and economic terms, rather than directly to the owner; and heritage buildings are often owned by poorly resourced non profit and community groups.112
MBIE was careful to note, however, that public safety is to be the first and overriding objective of any reforms to the EPB policy.113 Overall, they set a very pragmatic note in respect of heritage buildings, suggesting that this prioritising of public safety over heritage protection will simply “bring forward decisions about the future viability of some heritage buildings”.114
The consultation document made no reference to government funding to ease the burden on heritage building owners other than to suggest that a
107 At 11.
108 At 6.
109 At 17.
110 At 17.
111 At 17.
112 At 33.
113 At 17.
114 At 33.
National Historic Landmarks List be established to “promote the conservation of valued heritage sites, including their protection from natural disasters, to the greatest extent practicable”.115 It is also clear from a report commissioned by MBIE on the risk framework for EPB policy that the Government intends this list to be the focus for any government financing, with the preservation of the vast majority of heritage buildings being left to local communities.116
(i) 33% NBS threshold
First of all, neither the CERC nor MBIE reports proposed changing the recommended 33% NBS threshold for earthquakestrengthening.117 It is accepted that this is an appropriate level given the focus on saving lives and increasing safety rather than on saving buildings.118 Indeed, the Canterbury earthquakes prove that 33% NBS is sufficient for this purpose as nobody was killed inside any building strengthened to this level.119
However, seen solely from the perspective of heritage preservation, the strengthening of heritage buildings to 67% NBS or greater would be desirable. This is because more heritage buildings would survive devastating earthquake events such as occurred in Canterbury. Many buildings that did not collapse during the earthquakes were so badly damaged that they had to be demolished.120 It is also well recognised that such a level of strengthening would reduce the economic and social impact of earthquakes:121
At higher thresholds other non-life safety benefits associated with earthquake strengthening are likely to be more prominent, for example reduced social and economic impacts — in terms of scale, these benefits can be very significant as demonstrated by the Canterbury earthquakes.
However, the costs of strengthening to this higher level are not justified by the benefits.122 The quantifiable direct benefits of reduced fatalities and reduced property damage are strongly negative when compared with the direct costs of
115 At 33.
119 Taig, above n 116, at 40.
120 At 40.
121 Mills, above n 85, at 16.
122 At 16–17.
strengthening, even to 33% NBS.123 The cost impact would also be especially severe on small towns with large numbers of commercial heritage buildings.124
(ii) Mandatory timeframes
The major policy change proposed is the implementation of a nationwide, limitedexception, mandatory timeframe for the strengthening of EPBs to 33% NBS.125 The timeframe proposed by MBIE is 15 years: five years for territorial authorities to identify all EPBs in their region and a further 10 years for building owners to either undertake strengthening work or demolish.126 MBIE justifies this mandatory aspect by stating that “the government has a legitimate interest in legislation and regulation that protects public safety”.127
The potential impact for commercial heritage buildings is huge. MBIE has also made it clear that these requirements to deal with buildings under the threshold will take precedence over other legal, regulatory and planning requirements such as those designed to protect heritage buildings.128 That is, public safety will be given precedence over RMA considerations, such as heritage listing in district plans. This represents a significant change from previous recommendations that territorial authorities adopt a passive approach with regard to the strengthening of heritage buildings.129 If implemented, this will have a major effect on the ability of territorial authorities to protect heritage listed buildings:130
If the Government were to proceed down a road of removing RMA considerations in relation to earthquakeprone buildings as proposed ... the fact that such a building was on a Heritage List would mean that the Council could only take an advocacy role in attempting to see it strengthened rather than demolished.
(iii) Publicly accessible register of EPBs
One other proposal with the potential to impact on heritage buildings is the proposal to enter all identified EPBs onto a publicly accessible register to be maintained by MBIE.131 The intention is for building users to be able to quickly
123 At 17.
124 Consultation document, above n 93, at 22.
125 At 22.
126 At 25.
127 At 22.
128 At 23.
— Update and Policy Direction (Wellington City Council Strategy and Policy Committee, Report 3, 21 February 2013) at 8.
and easily access the register (such as by using a smartphone app) in order to determine whether a particular building is an EPB or not. It is felt that such an approach will add market pressure to the strengthening process as tenants, building users and the general public will put pressure on building owners to comply.132
It is possible that the image of heritage buildings may suffer if such a proposal goes ahead. According to MBIE, New Zealand has 7,160 listed heritage buildings that are also EPBs.133 Heritage buildings are already in a financially precarious position and cannot afford to be seen as unsafe in the eyes of the public. This is especially so in areas of low seismicity where the actual risk of collapse from any individual building is very low. Such a move could critically affect the market value of heritage buildings, thus making the likelihood of their demolition all the greater.
3.2 Sustainable Management
(i) The retention of heritage buildings
The earthquakes themselves have obviously had a huge environmental impact on heritage buildings in Christchurch. Thirtytwo per cent (56 buildings of a total of 173) heritage listed buildings in the “four avenues” were destroyed in the earthquakes.134 It is currently estimated that around 40 per cent of all listed heritage buildings in Christchurch will be demolished due to earthquake related damage. This will reduce the number of listed buildings from 930 to just
558.135 This is the most substantial loss of heritage buildings in New Zealand’s most recent history and has dramatically and irrevocably altered the face of Christchurch forever.136
As discussed above, the EPB policy proposals will not increase the likelihood of saving more heritage buildings in future earthquake events. This is because there is no proposal to increase the threshold from the current 33% NBS to upwards of 67% NBS as recommended by the NZSEE even though this kind of improvement to the structural performance of EPBs would better enable the protection of the interests of both the owner and the community more generally.137
132 At 21.
133 At 33.
If a 67% NBS threshold were adopted this would include most pre1976 buildings. It would be particularly important in areas of high seismicity, such as Wellington, where it would cover around 10 per cent of all building stock, many of which are also heritage listed buildings.138 Leaving aside questions of cost, which would be considerable and arguably disproportionate in terms of the reduction in liferisk, such an approach would undoubtedly save more heritage buildings from the same fate as much of Christchurch’s heritage buildings.
It is notable that the Christchurch City Council’s postearthquake attempt to adopt an EPB policy requiring strengthening to at least 67% ended in failure due to significant resistance from the Insurance Council of New Zealand.139 On judicial review, the High Court accepted that whilst strengthening to this level is “good practice, better addresses risk and is therefore commercially advantageous”,140 it would be “anomalous” if a council were able to require strengthening to a higher level than that used to define an EPB.141
However, the Canterbury earthquakes have also given impetus to a new wave of affordable lowdamage upgrading methods based on rocking systems.142 These are likely to be used in the earthquakestrengthening of many existing buildings, including commercial heritage buildings. Buildings fitted with rocking systems will sustain much less damage in the event of a serious earthquake meaning that they may be reoccupied within a few days.143 As Stefano Pampanin, President of the NZSEE, points out:144
Not only are lives saved, but the socioeconomic devastation is lessened. In contrast, existing seismic engineering techniques are designed to save lives, but not necessarily to save buildings.
The Canterbury earthquakes have shown engineers that the focus on designing buildings to prevent catastrophic collapse (capacity design) is no longer sufficient. The devastation in Canterbury has also opened the eyes of the insurance industry to the vast costs of replacing buildings on such a scale. Obviously, more needs to be done to preserve buildings, such as the implementation of rocking systems.145
138 At 33.
139 Insurance Council of NZ Inc v Christchurch City Council [2013] NZHC 51, [2013] NZRMA 113.
140 At [10].
141 At [43].
142 Ruth Laugesen “Rock steady” The New Zealand Listener (New Zealand, 6–12 April 2013) at 28.
143 At 28.
144 At 28.
145 At 29.
(ii) The loss of heritage buildings
The biggest concern regarding the EPB policy proposals is that they may amount to an “execution order” for heritage buildings.146 In particular, these proposals have the potential to “dramatically change the face of all New Zealand towns, and the economic viability of many”.147 For this reason, some commentators suggest that the proposals may be more destructive than the earthquakes themselves. Brian Rudman, for instance, suggests that if the proposals go ahead, “we risk losing more of our built heritage than from anything Mother Nature could throw at us”.148
Auckland Council’s submission to MBIE recognises this, stating that the proposals will be a “charter of destruction for any landlord wishing to bowl character buildings”.149 Auckland Council further contends that a blanket approach to strengthening, with its sole focus on safety, fails to recognise the relative seismicity of different areas of New Zealand. They suggest that such an approach risks losing the cultural fabric of our cities and towns, something that far outweighs the benefits to be gained from strengthening or demolition.150
(iii) Changes to the “look” of heritage buildings
The introduction of new seismic elements may change the look of heritage buildings that undergo strengthening work. This may be done as a deliberate strategy to reassure a nervous public that the building they are entering, although a heritage building, has been made earthquakesafe.151 For instance, cross bracings on walls may be exposed, steel beams in ceilings made visible, ply to reinforce unreinforced brick masonry made obvious, and design features made of damping systems at the tops of buildings intended to absorb earthquake energy.152
It remains to be seen what approach heritage building owners will take to the strengthening of their buildings if they elect to strengthen rather than demolish. The public also needs to consider whether they should be given free
(online ed, Auckland, 6 February 2013).
rein, or whether guidelines should be set so as to avoid strengthening work that is detrimental to the heritage character of the building.
(i) The value of heritage buildings postCanterbury
A big question that arises in the wake of the Canterbury earthquakes is whether New Zealanders value heritage buildings in the same way — are they still seen as a vital aspect of our cultural heritage or are we more aware of the specific risks to safety that they pose as EPBs?
(a) Negative views
Although not specific to heritage buildings per se, there have been a few cases around the country of tenants vacating buildings declared to be earthquake prone.153 This reaction is largely due to growing concerns that continuing to use a building that has been declared earthquakeprone will raise the spectre of employer liability under health and safety legislation should employees be killed in that building as a result of an earthquake.154
It could also be that Cantabrians, in particular, have a different attitude towards heritage buildings given their traumatic experiences during the quakes. A total of 35 people died in the streets of Christchurch as a result of the façade or walls of unreinforced masonry heritage buildings collapsing.155 The opinion of Ann Brower, the sole survivor of a bus crushed under fallen rubble, is illuminating:156
In my experience, the social cost of delaying reinforcement is far dearer than the cost of a preventive upgrade. As we learned on February 22, the cost of not reinforcing is human pain. ... We know [URMs] will fail. We just don’t know when. And we don’t know whom they will hurt. But they will hurt someone, somewhere, sometime. ... It wasn’t the earthquake that killed everyone but me on the Colombo St bus. It was the building, its lack of regulation, lack of structural support ... . It’s not okay. It wasn’t bad luck. She will not be right.
Others outside Canterbury are also citing safety concerns with regards to heritage buildings. The owner of the iconic Harcourts Building in Wellington, for instance, asked the Council for resource consent to demolish the building, citing public safety concerns as a key driver.157 Of the refusal, the owner had this to say:158
The only option [is] to leave the building as it [is] and, if we have an earthquake in the next 15 years, God help the people on the footpath ... it will be a disaster and it won’t be on my conscience because I tried.
Earthquake safety is also being cited as a reason why owners do not want their heritage buildings listed in district plans. In Gore, for instance, owners fear that a heritage listing will impede demolition should earthquakestrengthening costs exceed the value of the building.159
(b) Positive views
Despite these safety and economic concerns, however, there is still evidence that heritage buildings are valued postCanterbury. The comments of High Street Precinct Chairman, Laurie Rose, perhaps sum up the prevailing mood towards heritage buildings:160
... 160 years have gone into the building of the centre of Christchurch. We need a sense of that previous existence, that patina of age. These factors are not very tangible but without them we are all the poorer.
Far from wanting to get rid of remaining heritage, Cantabrians appear more determined than ever to recapture and retain as much as possible of what has made Christchurch special and unique. There is a citywide determination and resolve to see heritage buildings, such as the iconic Arts Centre, restored no matter the cost.161 The prevailing view appears to be that the stigma of the earthquakes will likely only be a shortterm effect that will be readdressed by the market over time.162
(online ed, Invercargill, 19 February 2013).
(i) Earthquake “aftershocks”
The Canterbury earthquakes entailed more than just physical aftershocks. In addition to a drop in market value and associated tenancy problems, the Canterbury earthquakes have also been the catalyst for largescale insurance increases. Earthquake premiums for heritage buildings have tripled postquake and in some cases heritage building owners can no longer get earthquake cover at all.163
These difficulties in relation to insurance have just as much potential to change the face of heritage as the Government’s proposals. The owners of a renovated Edwardian building in Wanganui, for instance, are no longer able to get earthquake insurance and have been quoted $1.3 million to strengthen their building. “When the earthquake came the ball game changed completely. [We’re] talking the plague.”164
The problem is that insurers are no longer prepared to provide full earthquake cover to EPBs, stating that it is not commercially prudent to sustain EPBs under such terms.165 Whilst this could be seen as an added incentive to heritage building owners to hasten strengthening work, in reality, it will likely be just one more nail in the coffin for the economic viability of commercial heritage buildings.
(ii) Strengthening and economics
The number one reason why the proposed EPB policy is regarded as an execution order for heritage buildings is because the costs of strengthening work for each individual building will far exceed the actual value of the building.166 The fear is that many heritage building owners will use this lack of economic viability, coupled with public safety concerns, as a ready excuse to demolish the building and replace it with something more profitable.167
Earthquakestrengthening is truly a cost burden with no return. Whilst there may be a limited ability for landlords to pass on strengthening costs to tenants where a lease includes an improvement rent clause, this is likely to be limited to strengthening to the minimum standard.168 There is also no guarantee
that the market will correlate the social and economic value of an earthquake strengthened building with a rent increase in the next rent review.169
The impact of the proposal is likely to be greatest in small towns throughout New Zealand where there are greater numbers of older buildings. It will be very hard to justify the costs of bringing all such buildings up to standard.170 A joint submission to MBIE by 14 southern councils summarises their major concerns. These are largely economic, with the proposals being described as “too hard hitting for our communities to absorb in any cost effective way”.171 To back up their fears, the Southern Councils conducted their own study, estimating that the proposed changes, if implemented, will cost their communities approximately
$1.8 billion over the proposed 15year timeframe.172
Overall, the Southern Councils conclude that whilst the changes may be workable in the larger centres of Auckland, Wellington and Christchurch, they will have a disproportionate impact on the local economies of smaller places, as well as on their cultural, heritage and social institutions.173 They submit that this result seems directly at odds with the purpose of the Local Government Act 2002 to meet the current and future needs of communities in a way that is most costeffective for households and businesses.174 As Dunedin’s Mayor Dave Cull points out, longer timeframes, flexibility and awareness of local variables are necessary ingredients to ensure solutions are enduring, sustainable and cost effective for communities now and in the future.175
Minister Maurice Williamson has responded to such concerns, including those relating to heritage buildings, by stressing that the proposals are not set in stone and that the Government will be guided by the public as to how narrowly timeframes are confined and whether exemptions will be extended to heritage buildings.176 Exemptions or more lenient timeframes could be considered for Category 1 heritage buildings, in particular.177 On the other hand, however, he has made it clear that too many exemptions would create an ineffectual policy,
169 At 18.
174 At 7–8.
and that the public has a right to know that the buildings in their community are safe.178
The crucial point to make, however, is that the proposals are entirely silent as to whether there will be government funding to assist heritage building owners with strengthening work. The implication of the establishment of the National Historic Landmarks List comprising the 50 heritage places of greatest significance to New Zealand is that these will be the “priority for central government involvement in [the] conservation and promotion” of heritage in the future.179
3.3 Impact of the Canterbury Emergency Recovery Act 2011
This section will briefly analyse the impact of the CER Act on heritage buildings in Canterbury with a view to evaluating how future disaster management legislation may impact on heritage buildings more broadly.180
The CER Act has been utilised to effect the destruction of badly damaged heritage buildings. The Church Property Trust (CPT), for instance, responsible for the iconic Christchurch Cathedral, initially argued that their decision to demolish the Cathedral was due to the Canterbury Earthquake Recovery Authority (CERA) having forced their hand by issuing a s 38 notice requiring them to make the site safe.181 Whilst the Cathedral decision was based primarily on whether the CPT was obliged by legislation to retain the Cathedral or just a cathedral (holding the latter),182 the decision is significant for the preservation of heritage buildings in at least two respects.
First, Chisholm J determined that the general public has standing to challenge a private property owner’s decision in relation to their heritage building, at least where that building has significant value to the community.183 Second, the case is authority for the fact that the decisions of individual building owners in response to CER Act notices will be amenable to judicial review.184 An owner may also challenge CERA’s decision to demolish their building.185
In respect of a Category 2 heritage building, for instance, the High Court held
182 At [127].
183 At [73].
184 At [167].
185 Hampton v Canterbury Earthquake Recovery Authority [2011] NZHC 797; [2012] NZRMA 139 (HC).
that, given the extreme consequences for property owners, CERA’s broad discretion under the CER Act to bring about the timely recovery of Christchurch is not entirely unconstrained.186 CERA must consider alternative methods for dealing with a property, including any mitigation techniques.187 However, the determination of whether a building is dangerous is for CERA alone. In this instance Whata J was satisfied that CERA had considered alternatives to demolition and that public safety required demolition.188
The High Court has also determined that the Minister of CERA is constrained by s 10 when exercising powers under the CER Act.189 Thus, in the context of heritage buildings, any decision to demolish must be made only in order to achieve a specific purpose of the Act and be reasonably necessary for that end, rather than simply expedient or desirable.
Additionally, the s 3(g) purpose of restoring Christchurch’s social, economic, cultural and environmental well-being shows that the scope of the CER Act goes beyond physical restoration to also encompass the rebuilding of the communities of Christchurch.190 This is potentially significant for heritage buildings as it could be forcefully argued that saving as many of Christchurch’s heritage buildings as possible is crucial to maintaining the city’s identity, its cultural heart and future economic prosperity.191
In conclusion, the changes proposed to the EPB policy is the biggest ramification of the Canterbury earthquakes. It has the potential to shake the very legislative foundations upon which heritage buildings rest. There is little doubt that, if implemented, a mandatory limitedexception strengthening requirement has the capacity to result in the loss of many heritage buildings because the cost of the work will likely exceed the economic viability of many. Over time, this will have a profound impact on the appearance of our urban environment, and may eventually impact on our sense of identity. Public debate must encapsulate and recognise the potential for such impacts so that we are all aware of just what we stand to lose. Moreover, the CER Act has shown that postdisaster legislation may also impact on the preservation of heritage buildings, particularly where public safety is at stake.
186 At [45].
187 At [45].
188 At [45].
189 Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601 at [20].
190 At [28]–[29].
191 At [39].
4. LEGISLATIVE PROTECTIONS
The two main pieces of legislation responsible for protecting heritage buildings in New Zealand, the Resource Management Act 1991 and the Historic Places Act 1993, are currently either under review or in the process of being replaced. This part aims to survey the protections currently provided by each Act, as well as the likely impact of the proposed reforms on the protection afforded to heritage buildings in New Zealand.
4.1 Protection Currently Provided by the RMA
Under the RMA, historic heritage currently receives protection as a matter of national importance. Territorial authorities must “recognise and provide for” such matters in order to achieve the sustainable management purpose of the RMA.192 In particular, s 6(f ) specifies that the protection of historic heritage from “inappropriate subdivision, use, and development” is a matter of national importance.
Territorial authorities have most commonly implemented s 6(f ) by devel oping policies and rules in their regional/district plans for heritage conservation lists, and by including a specific list of protected properties within those plans.193 Listing does not mean that building owners are not able to do anything with their properties. They are entitled to apply for resource consent for an activity unless that particular activity is classified as a prohibited activity. If so, the property owner will need to promote a private plan change to remove the building from the list.194
Section 85 of the RMA may assist a heritage building owner applying for a plan change or resource consent application. Under this section the Environ ment Court will consider whether the listing renders the heritage building incapable of reasonable use and therefore places an unfair and unreasonable burden on the building owner.195 If so, the Environment Court may provide relief by either ordering a plan change or granting resource consent to demolish the heritage building.196
A case illustrating the scope of s 85 (and thus the rather limited protection offered by the current s 6(f )) is New Zealand Historic Places Trust/Pouhere
194 At [18.9.1].
195 At [18.9.1].
196 See Steven v Christchurch City Council [1998] NZEnvC 91; [1998] NZRMA 289.
Taonga v Manawatu District Council.197 The Environment Court considered that sustainable management would not be best met by refusing resource consent for the demolition of an Edwardian building in Feilding. This was because forcing the owners to meet the considerable costs of renovation and structural strengthening work, at a cost well beyond the building’s capital value, did not provide for their economic wellbeing.198 Additionally, cultural well being was not provided by condemning the community to a slowly deteriorating building. The lack of public funding, or even any community protest against the demolition, further convinced the Court that the heritage value of the building was outweighed in this instance.199
Territorial authorities may also protect heritage buildings using heritage orders.200 These are in addition to and complement the more general resource management practice of listing buildings in plans.201 Owners may also apply to the Environment Court for orders requiring the heritage protection authority to purchase the property (or withdraw the heritage order) where the heritage order has affected the market value of the property and the owner cannot now sell it.202
4.2 Proposed Reforms to the RMA and Likely Impact on Heritage Protection
The Government proposes a second Resource Management Reform Bill before the end of 2013 to implement the changes recommended by the 2012 Technical Advisory Group (TAG) report.203 This report recommended changes to ss 6 and 7, stating that despite the fact that the RMA defines “environment” to include both natural and physical features, there is a definite bias towards the natural environment:204
197 New Zealand Historic Places Trust/Pouhere Taonga v Manawatu District Council [2004] NZEnvC 380; [2005] NZRMA 431.
198 At [32].
199 At [33].
200 RMA, s 189(1) and (2).
201 Palmer, above n 193, at [18.9.4].
202 RMA, s 198.
Our view of the current provisions of ss 6 and 7 reflects that many issues are missing. There is little or no reflection of issues specific to urban areas where the majority of us live, work and play. There is also no reference to infrastructure and surprisingly no reference to natural hazards.
In response, the Government proposes to include in the new combined “Principles” section a direction that RMA decisionmakers must recognise and provide for the effective functioning of the built environment (s 6)(1)(l)); the management of significant risks from natural hazards (s 6(1)(m)); and the efficient provision of infrastructure (s 6(1)(n)).205 It is felt that a combined ss 6 and 7 will enable more balanced decisionmaking.206
It is significant, however, that of the five current s 7 principles proposed to be deleted, four provide for the protection of heritage buildings in some way, such as by emphasising the ethic of stewardship (s 7(aa)); by providing for the maintenance and enhancement of amenity values (s 7(c)) and the quality of the environment (s 7(f )); and by ensuring consideration of any finite characteristic of natural and physical resources (s 7g)).207 The removal of such principles will inevitably downgrade the protection afforded to heritage buildings under the RMA.
Whilst it is significant that heritage is retained as one of the “sustainable management principles”, its coverage seems less fulsome, stating only that people performing functions and exercising powers under the RMA must recognise and provide for “the importance and value of historic heritage”.208 There is no mention of the types of actions against which historic heritage should be protected as in the current s 6(f ). This “directive” language has been purposively removed so as to align with the Government’s proclaimed intention of reducing the barriers to urban development, a hugely challenging issue for areas such as Auckland and Christchurch.209
Critics suggest that the proposed reforms seem set on prioritising economic development over and above other types of development, including social and cultural development. Dr Jan Wright, Commissioner for the Environment, has stated that there is a noticeable increase in the influence of economic concerns in the RMA process, and that it is beginning to look more and more like an economic development Act, rather than a resource management Act.210
206 At 13.
207 At 11.
208 See the proposed s 6(1)(i) in Discussion document, above n 205, at 13. 209 At 12.
210 Parliamentary Commissioner for the Environment “Proposed changes unbalance RMA — Environment Commissioner” ( press release, 1 March 2013).
As discussed above, heritage protection is already made precarious by the application of s 85. In the wake of the Canterbury earthquakes it is likely that applications to demolish a heritage building for either financial or safety reasons will receive an even more sympathetic reception from RMA decisionmakers than they currently do. These proposals must surely lead to greater acceptance of heritage building loss where such costs and risk factors are found. Overall, the protection afforded to heritage buildings by the proposed reforms appears to be much more amorphous and vague than that currently offered.
TAG also identified the multiplicity of plans and policy statements as a factor preventing efficiency and integrated resource management.211 There are currently 171 operative RMA documents and 78 territorial authorities.212 The Ministry for the Environment has responded by proposing that there be fewer resource management plans.213 This is to be achieved by allowing a greater role for central government to guide territorial authorities in order to achieve greater national consistency.214 Such an approach is also consistent with the proposals to set mandatory nationwide timeframes for the earthquakestrengthening of buildings.
The potential impact for heritage buildings is huge given that around 90 per cent of historic places are listed by territorial authorities in plans prepared under the RMA.215 It will all depend on the degree of intervention taken by central government with respect to urban development issues. If the current Government’s focus on easing development hurdles in Auckland and Christchurch is anything to go by it is likely that any intervention will lessen heritage building protection rather than increase it.
The reemphasis on all aspects of sustainability (including the economic wellbeing of a community), rather than simply on balancing the competing factors specified in ss 6 and 7 as has been happening in the past, may well mean that economic wellbeing will prevail over social/cultural or environmental wellbeing even more often in the future. Indeed, the Government’s proposal of a methods section stipulating that RMA decisionmakers balance public and private interests strongly suggests a trend for greater emphasis on the economy. The wording has since been modified.216
211 TAG Report, above n 204, at 102.
212 At 102.
213 Discussion document, above n 203, at 34.
214 At 38.
It is instructive to consider heritage protections included in Auckland’s recently announced draft Unitary Plan.217 The focus is on “active stewardship” to secure Auckland’s heritage buildings to pass on to future generations.218 The most significant heritage places will be included in a Historic Heritage Schedule. Buildings must fulfil rigorous criteria identical to those contained in the Heritage New Zealand Pouhere Taonga Bill 2011 in order to be considered for inclusion.219
The Council also proposes a business historic character overlay that seeks to retain and manage the historic values of 15 specified business locations with traditional town centres. The height of any new developments in these areas must be compatible with that area and respect their historic character and scale.220
In addition, any proposal to demolish a heritage building in a commercial area must be accompanied by an assessment of the effects on the historic streetscape of the area and also demonstrate that the loss of a particular heritage building will not diminish the historical value of the area; that it will not represent the loss of a building that has considerable heritage value in its own right or disrupt important links between other character-defining or -supporting places/features in the area.221
However, it remains to be seen whether these overlays are ultimately implemented given that they appear inconsistent with the Council’s clearly stated policy of increasing urban densities. For instance, it is proposed to increase the maximum height for particular town centres from the current three to fourstorey limit222 to a maximum of four, six or eight storeys.223 The central city area will have no height restriction at all.224 Such policies may indirectly impact on heritage buildings as it is likely to result in more developers seeking resource consent to demolish their older commercial buildings in order to replace them with taller buildings that maximise the possible return from the land area.225
221 At [3.3.3.1].
Property Council chief executive Connal Townsend for instance, recognises that Auckland Council’s vision comes with a “doubleedged sword”, but argues that Aucklanders must be pragmatic:226
... achieving intensification targets will result in a proportion of our built heritage being lost. We as a region must be ready for this. We need to identify important buildings which give Auckland its identity and character and protect them beyond measure, and stand back from others which may become a costly burden on the city.
But for experienced and vocal heritage campaigner Allan Matson, the draft Unitary Plan consists of nothing more than platitudes unsupported by substantive rules of any kind. He suggests that Auckland will lose a lot of its heritage under the Unitary Plan for three reasons: “ignorance, not enough carrots, not enough sticks”. Basically, it all boils down to money and the loss will result from the Council’s unwillingness to share the expenses of retaining heritage buildings.227
4.3 Protection Currently Provided by the HPA
The purpose of the HPA is to “promote the identification, protection, pres- ervation, and conservation of the historical and cultural heritage of New Zealand”.228 “Historic place” is defined to cover both land and buildings that form part of that historical and cultural heritage.229 The New Zealand Historic Places Trust is required to prepare a register of historic places and areas, as well as to foster public interest in their protection.230 Section 22(2)(c) clearly states that the purpose of the Register is to assist in the protection of historic places. The NZHPT may also negotiate with a heritage building owner for the execution of a heritage covenant to provide for its protection, conservation, and maintenance.231
It is important to note, however, that inclusion on the Register does not give the building any protection against alteration or demolition unless a heritage order is also made,232 although territorial authorities may consider listing the
heritage buildings on the Register in their regional and district plans.233 Thus, in the main, the HPA encourages heritage protection rather than enforces it.
4.4 Proposed Reforms to the HPA and Likely Impact on Heritage Protection
The intention of the Heritage New Zealand Pouhere Taonga Bill (the Bill) is to replace and modernise the HPA in order to improve the balance between heritage interests, private ownership interests and economic development objectives.234 To this end, a number of structural changes are proposed.
First, the word “Trust” will be eliminated from NZHPT as it is deemed to be “inconsistent with the organisation’s regulatory responsibilities and status as a Crown Entity”.235 Significantly, this is also given as the rationale for the second major change, the disestablishment of the branch committees and elimination of the three elected board positions — the Government does not consider heritage advocacy appropriate for a Crown entity and thus intends to separate this from its statutory role.236
For some, this move to diminish public input is concerning.237 There appears to be no basis for the removal of membership representation: no substantial problems have ever arisen under the HPA and there is every reason to believe that a positive contribution has been made by those not dependent on the Minister for their appointment.238
The most likely explanation for this change is the Government’s economic development agenda. Although heritage advocates will still be able to participate through the select committee process (as Minister Chris Finlayson was at pains to point out when introducing the Bill),239 this change seems likely to reduce the overall protection for heritage buildings.
The impetus for the third change was the Canterbury earthquakes — the introduction of a fasttrack procedure for emergency authorities where a state of national or local emergency has been declared. This change is designed to
235 (8 May 2012) 679 NZPD at 2055.
236 At 2055.
237 At 2057.
238 Peter George Watts “Submission to the Local Government and Environment Committee on the Heritage New Zealand Pouhere Taonga Bill 2011”.
239 (8 May 2012) 679 NZPD at 2055.
ensure continued recording and investigation of heritage, but without putting lives at risk or impeding reconstruction.240
This change was in response to anticipated recommendations from CERC for legislation allowing the immediate demolition (bypassing RMA consent processes) of dangerous buildings following a major natural disaster.241 This change will also decrease the level of protection available for heritage buildings. Despite this, there has been no great resistance to this proposal in submissions on the Bill. Perhaps many view such an approach as a pragmatic and necessary prioritising of public safety ahead of heritage building preservation.
Perhaps the most significant changes in respect to heritage preservation were introduced by supplementary order paper (SOP).242 This introduced changes to Part 4 of the Bill (dealing with the Register) in order to achieve consistency with legislative amendments being considered for earthquakeprone buildings and the RMA.243
First, the name of the “Register” was to be changed to “Record” but is to become the “New Zealand Heritage List”. This is to clarify that its purpose is solely to provide information about historical and cultural heritage, and not to exert regulatory control.244 In line with this, the interim protection previously afforded heritage buildings during the registration process has also been removed.245
Many submissions on the SOP oppose this change primarily on the basis that it represents a downgrading of the protection afforded to heritage buildings by its emphasising that the Record is to be regarded as simply a source of information. For instance, Napier’s Art Deco Trust is of the opinion that it weakens heritage protection mechanisms and downgrades the onus on terri torial authorities to include rules in their district plans on heritage protection.246 It is also notable that the SOP removes the explicit reference to the purpose
of “protection” currently contained in s 22(2)(c) of the HPA, replacing it with this purpose of the Record as a “source of information”. In addition, this new
240 At 2055–2056.
243 (8 May 2012) 679 NZPD at 2056.
244 Supplementary Order Paper 2012 (135) Heritage New Zealand Pouhere Taonga Bill (3271) (explanatory note) at 19 [SOP explanatory note]. See further Commentary of the Local Government and Environment Committee on Reporting back of the Bill to Parliament.
245 At 19.
246 Art Deco Trust Napier New Zealand “Submission to the Local Government and Environ ment Committee on the Heritage New Zealand Pouhere Taonga Bill 2011”.
purpose is only linked to the RMA processes relating to planmaking, and not to a more broad set of RMA processes such as resource consent applications as currently provided under the HPA.247 The NZHPT will also only be able to make recommendations to territorial authorities on the protection of historic areas, but not historic places.248 This distinction is perhaps designed to achieve the objective of the Bill to better balance public and private interests in relation to heritage buildings.
Second, the SOP introduces the concept of a National Historic Landmarks List (the List). The List aims to “promote appreciation and conservation of places of greatest heritage value to the people of New Zealand” and to encourage “highlevel prioritisation” due to the fact that only 50 places could be listed. However the select committee removed the 50place cap.249
The List can be regarded as a direct consequence of the Canterbury earthquakes as it is designed to “assist conservation if places on the List are affected by natural disasters”.250 Indeed, places will only be considered for inclusion on the List if the NZHPT is satisfied that the building is subject to appropriate legal protections and a risk management plan in the event of a natural disaster.251 Another key aspect is that a building will only be listed if the owners and all parties with an interest in the building have consented to its inclusion, again reflecting the Bill’s objective of balancing public and private interests.
This is a significant new aspect of the Bill, and one which also heralds a new pragmatic approach in terms of heritage preservation. It would seem likely that the Government will limit any publicly funded financial assistance to buildings on the List, although no specific mention is made with regard to funding in the SOP itself. At the very least, there is a risk that the List will downgrade the worth of the proposed Record in that territorial authorities may afford lower levels of planning protection to heritage buildings contained on the Record than to those on the List.252
The 50place cap was also concerning. As ICOMOS New Zealand points out, this appears to be an arbitrary threshold that is insufficient to adequately accommodate all important heritage buildings in New Zealand, nor even enough to be representative of our nation’s history of occupation and settlement.253
In summary, the proposed reforms to the RMA and HPA reflect the ambition of the current Government to reduce impediments to economic and urban development by achieving a better balance between public and private interests. They also contain proposals driven by the Christchurch earthquakes. Overall, the proposed changes are likely to reduce the level of protection available for heritage buildings. As such, these changes are yet another reason why the New Zealand public needs to confront the future of our heritage buildings headon
— we should, at the very least, be fully aware of the impact that such legislative reforms will have. The following part will analyse what options exist for ensuring better protection for heritage buildings in the future.
5. HERITAGE PRESERVATION PROPOSALS
This part aims to survey academic writing, government reports and overseas examples in order to propose sustainable options for future heritage building preservation in New Zealand. Particular attention will be paid to proposals that effectively address the cost burden of earthquakestrengthening work.
5.1 Incentives to Preserve
The strengthening of heritage buildings to the required standard will not be possible without some form of financial assistance from the community.254 If owners cannot afford to pay for upgrades we will all ultimately pay — the price will be the historic fabric of our towns and cities.255 To avoid this, the stark reality is that we must all contribute to the economic costs of heritage preservation.
In a free society we cannot force private owners of heritage buildings to bear the burden alone when we all stand to benefit from earthquake strengthening work. As Rodney Hide has forcefully pointed out, coercion as the basis for heritage preservation is entirely at odds with the laissezfaire doctrine on which our society is based, and can be entirely avoided by relying solely on private trusts and individuals to fund preservation.256 The advantage of such an approach is that society would have to squarely confront the cost of preserving each and every building, and there would be no foisting of costs on to unsuspecting taxpayers.257
257 At 245.
Whilst this is one possible option, this part will primarily focus on financial incentives that recognise the public benefit justifying the use of public funds for heritage preservation.
There are a range of possible tax incentives, targeted at either the heritage building owner personally, or at the wider community more generally.
(i) Rates relief and tax writeoffs
Heritage building owners could be given a certain percentage reduction in rates to reflect the cost of carrying out earthquake-strengthening work. Such an approach would demonstrate and give recognition to the fact that heritage buildings are a public good.258 This is also a legally defensible position in that legislation exists for adopting a rates remission policy.259
However, there are a number of cogent reasons against adopting rates relief as a mechanism for heritage preservation:260
Perhaps a better option would be for territorial authorities to develop new rating policies in tandem with EPB policies, such as by applying a differential rating to earthquake-prone commercial heritage buildings. This would ensure sufficient incentive for private owners to undertake the required strengthening work.261
Another option personal to the heritage building owner is tax writeoffs for strengthening work. To reduce costs for building owners, seismic refits
258 Rickard, Gregory and Rasmussen, above n 130, at [6.5]. 259 Local Government Act 2002, s 109.
260 Rickard, Gregory and Rasmussen, above n 130, at [6.5]. 261 McClean (2011), above n 29.
could be classified as “repairs and maintenance” for tax purposes, rather than as “capital expenditure”.262 As such, it would be an allowable deductible expense.263 Allowance could also be made for earthquakerelated tax losses to be carried back to prior years, or at the very least, building depreciation could be reinstated to cover strengthening and/or restoration work.264 Owners could also be actively encouraged to apply for a lower tax rate under the special determination provision of the Tax Administration Act 1994.265
(ii) Tax credit schemes
Lessons could be learned from the federal tax incentive operative in the United States. Since its establishment in 1976, countless communities have been revitalised by the restoration and rehabilitation of heritage buildings.266 Pre 1936 buildings receive a 10 per cent tax credit, while certified historic buildings receive a 20 per cent tax credit. Significantly, expenses incurred in improving the structural performance of a building also qualify.267
Additionally, Robert McClean of the NZHPT recommends that New Zealand adopt a safe heritage credit (SHC) scheme to recognise and pro mote safety objectives such as improving a heritage building’s structural performance.268 Not only would this improve recognition of owners of heritage buildings, but it could also provide opportunities for incentives such as tax credits, insurance discounts or rates relief.269 Such an approach could also expand upon existing tax credits available for environmental restoration simply by including the earthquakestrengthening of heritage buildings as a qualifying criterion.270
Heritage credits would work on a “beneficiary-pays” principle — owners who undertake works resulting in improved heritage outcomes would be rewarded with heritage credits. These could then be purchased by private individuals, corporations and territorial authorities. For instance, com panies might purchase heritage credits as a way to brand their company as environmentally and culturally sustainable.271 Alternatively, heritage credits
could entitle building owners to rates relief or make them eligible for grants or lowinterest loans.272
In summary, an SHC scheme for heritage buildings could be part of a “multiobjective sustainability package”, recognising other aspects that raise the overall safety and heritage status of a particular building in the public consciousness, such as signage and interpretation. This would ultimately improve the safety perception for all heritage buildings.273
(iii) Wider tax incentives
Possibilities also exist for tax incentives to be applied more generally. An increase in the deductibility ceiling for donations and special tax credits, for instance, could encourage greater private investment in heritage preservation work.274 McClean suggests that central government could offer incentive initiatives based on the model provided by the Canterbury Earthquake Heritage Building Fund — as at October 2012 this fund had raised $16 million with a dollarfordollar subsidy from central government for public donations.275
Another possibility is for specific levies by territorial authorities and/or central government to assist in the preservation of local heritage buildings. In Wanganui, for instance, the Council has implemented a 0.5 per cent levy that will net $20 million in the next 10 years to go towards the earthquake strengthening of all councilowned heritage buildings.276
A national lowinterest loan scheme is a credible option for assisting heritage building owners to carry out strengthening work. This could be restricted to Category 1 and 2 heritage buildings as a way of encouraging their listing and to ensure the preservation of the most significant and valued heritage buildings. The advantage of such a scheme (over heritage funds) is that it would be selfsustaining without the need for frequent cash injections from central or local government.277 It would probably need to be backed by a government guarantee, and in this respect it would be analogous to the Natural Disaster Fund managed by the Earthquake Commission (EQC). Accordingly, the Government’s enthusiasm to take on such a guarantee is likely to have been negatively impacted by the Canterbury earthquakes. The huge cost of the
rebuild has entirely exhausted this fund meaning that the government guarantee has been called up. Not only has this threatened New Zealand’s credit rating, but it has also threatened the creditworthiness of the EQC itself. With the Government’s deficit at an historic $18 billion high it is unlikely that the Government would countenance such a scheme at this time.278
The availability of grants (from both central and local government) is another possible way to support heritage building owners. The NZHPT’s National Heritage Preservation Incentive Fund, for instance, has an annual operating capital of $500,000. It gives priority to heritage buildings of national significance (Category 1 or 2) requiring conservation work, including earthquakestrengthening. Individual grants are currently limited to $100,000, however, falling well short of anticipated strengthening costs.279
Many territorial authorities also have heritage funds available. The Auckland Council has a Heritage Acquisition Fund to purchase atrisk heritage. This fund is intended to be selfreplenishing with the buildings being onsold once their heritage value has been secured.280 Wellington has a Built Heritage Incentives Fund with an annual operating budget of $329,000.281 A recent report on EPB policy and strategy has recommended focusing these grants on heritage buildings with the “greatest strategic need” in terms of earthquake strengthening; to take a proactive approach in terms of actively contacting heritage building owners most likely to benefit from a grant; and to increase funding levels to achieve the strengthening of at least 16 buildings every year with a maximum grant of $50,000 each.282
However, as yet the Government has not shown any enthusiasm for financial incentives such as these. Indeed, the EPB proposals make no mention of such assistance, and as discussed above, the proposed introduction of the National Historic Landmarks List also strongly suggests that the Government intends to take a pragmatic stance towards heritage buildings. Political opponents have criticised this “handsoff approach”, with Labour claiming that it implies that the Government has washed its hands of the problem, that it intends to leave the financial burden squarely in the laps of the building owners.283 If this is the case, then such a stance does not mesh with the social, economic and environmental importance of heritage buildings.
283 Anne Gibson, “Shock in store for building owners with atrisk assets” The New Zealand Herald (online ed, Auckland, 4 March 2013).
5.2 Disincentives to Demolish
Options also exist to disincentivise heritage building owners from demolishing their buildings. In addition to financial penalties, there are options that attempt to disincentivise demolition by addressing the imbalance between public and private interests, such as transferable development rights and other development controls.
Penalties are personal to the building owner and include both fines and restrictions on the development potential of a particular site. The Brisbane Plan, for example, was introduced in 1989 and contains some particularly innovative disincentives. These came about after a turbulent and controversial decade in which many heritage buildings were destroyed to make way for the property boom of the early 1980s. In addition to substantial fines for unauthorised demolition, provision was made to place development restrictions on the titles of particular sites allowing development to be halted for a maximum of 10 years.284
Arguably, the requirement of a resource consent for demolition is a better preventative step than penalties after the fact, especially given the irreplaceable nature of heritage buildings. For this reason, there is merit in the application of a blanket ban on the demolition of commercial buildings over a certain age. Whilst controversial, such a step was taken in Brisbane to protect residential heritage, particularly the old “Queenslander” style of architecture. Malcolm Middleton, Queensland Government Architect, states that this has been hugely successful and has actually increased the value of those buildings.285
The draft and Proposed Auckland Unitary Plans implement something similar in respect of all pre1944 residential buildings. However, whilst a resource consent will be required for demolition, this will be on a non-notified basis. This latter aspect represents an attempt to balance public and private interests.286
The perception that blanket bans on demolition equate to undue interference with private property rights persists however, and it is to be expected that any
attempt to introduce one in respect of commercial heritage buildings would be likely to meet with resistance. It is also at odds with the current Government reform theme of achieving a better balance between public and private interests in resource management issues, and with the overt policy of increasing urban densities in Auckland.287
Transferable development rights (TDRs) are a method for compensating heritage building owners for the loss of development rights on their site due to heritage listing. It allows heritage building owners to transfer these “unused” development rights to another site which can be developed to a greater intensity than would otherwise be the case, provided that the heritage owner enters into a binding covenant with the Council to preserve their heritage building.288 As an attempt to address the imbalance between public and private interests, TDRs represent a disincentive and incentive all rolled into one — heritage building owners eschew demolition because they receive something of value in return.
The implementation of similar schemes overseas has met with mixed results. For Catherine Arnold, the main lesson to take from the implementation of TDR schemes in both America and Australia is that they work best where they supplement, not supplant, other preservation efforts.289 In other words, planning requirements must be such as to create a viable market for TDRs, and there must be other fiscal incentives schemes in place, such as loans and grants.
TDR schemes have been implemented by New Zealand territorial authorities in the past. In fact, the existing and operative Auckland City District Plan includes a heritage floor-space bonus scheme aimed at encouraging heritage building owners to conserve their buildings.290 Wellington City also had a TDR scheme in the 1980s. It was largely unsuccessful, however, due to minimal transactions providing only limited funding for heritage building owners.291 This experience militates against the reintroduction of the scheme as a method for combating the costs of earthquakestrengthening work. Additionally, a reintroduction would require the Council to reduce the current development potential of recipient buildings in order to create a market for TDRs. This would negatively impact on private property interests by devaluing buildings bought with a certain development potential already factored into the purchase price.
289 At 143.
In essence, developers would be required to repurchase development potential. As such it would likely lead to legal challenges if implemented.292
TDRs are also vulnerable to the “vicissitudes of the property market” — no TDR scheme will work without some kind of assurance that the sale of TDRs will be profitable.293 Overall, the problems associated with implementing an effective TDR scheme means that it does not represent an attractive heritage preservation option in the earthquakestrengthening context.
There are other development controls capable of indirectly disincentivising the demolition of heritage buildings. In Melbourne, for instance, the judicious use of planning law has enabled the preservation of many heritage buildings. A building height restriction of 40 metres in the central city area, for instance, was initially implemented as a way to prevent heritage buildings becoming overshadowed. It has had the added bonus of disincentivising demolition of heritage buildings because they cannot be replaced with tower blocks. It has instead resulted in the renovation and refurbishment of existing heritage buildings.294
The draft Auckland Unitary Plan does the exact opposite. It proposes to increase the allowable height of buildings in certain town centres, many of which are currently occupied by older commercial buildings of two to three storeys. Additionally, the CBD has an unrestricted height limit. Aucklanders must face the reality that such planning decisions will inevitably place pressure on developers to demolish their buildings in order to replace them with tower blocks up to the maximum allowable height.
Furthermore, rates policies have also been utilised in Melbourne to encourage the listing of heritage buildings as these are then valued in a manner that assumes that the land they occupy has achieved its maximum development potential. This ensures that heritage buildings are “not rendered uneconomic by spiralling rate[s] rises”.295 Another policy favourable to heritage preservation is the bonus plot ratio programme which compensates owners for the loss of development rights. However, in contrast to a TDR scheme, it works to preserve heritage buildings by allowing property developers to gain development credits by agreeing to fund the restoration work of certain heritage buildings.296 Such a scheme seems like a credible option for larger centres, such as Auckland,
292 At [6.6].
293 Arnold, above n 284, at 158.
294 At 155.
295 At 155.
296 At 155.
Wellington and Christchurch, where there is always development demand. It would likely be a less successful option for smaller centres, however.
5.3 Alternative Proposals
Much of the threat to heritage buildings emerging postCanterbury has come from the proposed changes to the EPB policy and other heritage protection legislation. This section will briefly summarise some of the key alternative proposals arising out of public submissions and government reports. Such information is vital if New Zealand is to have a truly informed debate on the future of our heritage buildings.
In his risk framework report for MBIE, Tony Taig suggested the following framework for dealing with the highly contentious area of determining which buildings will be saved and who will pay:297
This proposed framework has the advantage of allowing local communities some say in what heritage they want to see preserved. It would enable public awareness and participation in the process so that we are all cognisant as to what heritage preservation costs and what we will lose should economic and safety
297 Taig, above n 116, at 46–47.
factors outweigh preservation. It also recognises private property interests and is thus in line with current legislative trends in resource management.
However, the final point fails to address the realistic options available for heritage building owners to deal with the economic risks inherent in strengthening work, and the reality that insurance policies exclude coverage for such work. At the very least, there is a role for both central and local government in working with the banking and insurance sectors to explore alternative financing solutions and risk-sharing models.298
The approach suggested in the Southern Councils’ joint submission is a viable option, and one that would enable the preservation of heritage buildings. They suggest that instead of a prescriptive approach the Crown should take a principlesbased approach on the issue of earthquakestrengthening.299 This would engender the Crown defining a set of outcomes and principles it would like to achieve, such as improved safety for pedestrians, improved public awareness of the earthquake risk of buildings, or the strengthening of high occupancy buildings and critical infrastructure. A specific timeframe could then be set for each of these outcomes. Each territorial authority or group of authorities ( perhaps organised by seismic risk) would then have the ability to define how best to meet these objectives within the set timeframe.300
The advantage of such an approach would be more targeted regional policies ensuring improvements to building safety in a manner that better corresponds to seismicity and risk, while balancing concerns around affordability. But most of all, it would provide flexibility and avoid the “one size fits all” approach likely to be so damaging to heritage buildings in the smaller urban areas of New Zealand.301
The best way to ensure the preservation of heritage buildings is to have heritage legislation that unlocks their full potential, such as by providing for their adaptive reuse and continuing economic viability. Mechanisms for ensuring this have already been addressed above, such as targeted rates policies and using heritage buildings as the driving force behind community revitalisation.302 An example illustrating how heritage buildings can be used to stimulate
environmental, economic and community regeneration is the Britomart Precinct redevelopment in Auckland.303 The Britomart area was once a thriving
298 Rickards, Gregory and Rasmussen, above n 130, at [6.2]. 299 Southern Councils, above n 171, at 8.
Edwardian business district serving the port area. By the mid20th century, however, the area had begun to decline and by the end of the century many buildings were derelict.
In 2002 the Auckland Council negotiated a public–private partnership (PPP) with Cooper and Company. The Council waived development levies in return for the restoration of heritage buildings. This approach has resulted in the preservation of 18 heritage buildings. These have been leased to longterm tenants enabling Cooper and Company to recoup their costs. Britomart is once again a thriving business district. But it is more than that, it is also a unique and distinctive area of the city that people and businesses are attracted to, largely because of the heritage character of the area.
The proposal to establish a National Historic Landmarks List under the Bill set to replace the HPA is a threat to heritage preservation because it weakens the protections available for all other heritage buildings not included on the List. Auckland Council’s alternative proposal for a “50 most atrisk” list seems a much more positive option, and one that will arguably lead to greater heritage preservation than currently available.304
The purpose of such a list is to save heritage buildings that are at risk of demolition. This could specifically cover those put at risk from the high cost of earthquakestrengthening work. Such lists are used successfully in the United Kingdom where they focus community and media attention on the kinds of threats that heritage buildings face, and raise the profile of those buildings imminently at risk of demolition.305
Once a place has been secured by the implementation of conservation plans, and perhaps with collaboration from PPPs as occurred in the Britomart redevelopment, it will be able to come off the list and be replaced by other atrisk buildings. Removal from the list would be seen as a positive action, as a signal that a heritage building had been saved. In the United Kingdom, for instance, English Heritage has specific targets to remove at-risk heritage assets from their register for positive reasons — 700 heritage places have been saved in this way since 2008.306
A key advantage of Auckland Council’s proposal is the ability of such a list to raise the profile of particular heritage buildings within the community. People can be mobilised to rally around specific buildings if they do not wish to lose them. Another advantage of such a list is that it would move heritage preservation from the abstract to the physical. It may also lead to funding from a variety of sources.307 At the very least, it will enable the public to remain
305 At [3.3].
306 At [3.3].
307 At [3.3].
informed about the future of heritage buildings in their area and provide a proper forum for debate to take place.
In conclusion, financial incentives and disincentives are required to encourage heritage building preservation. The costs of earthquakestrengthening must be borne by the community and not left to building owners alone. Additionally, the right regulatory framework needs to be created — one that encourages retention rather than demolition. At the very least, more needs to be done to raise the public’s awareness of the costs of heritage preservation for building owners, and also of the cost to society should we choose to do nothing.
6. CONCLUSION
The Canterbury earthquakes have been instrumental in raising awareness of the safety of our heritage buildings. At the same time, however, they have also stimulated public interest in heritage buildings due to both the physical loss suffered in Christchurch and the threat of losing more of our national built heritage should current legislative proposals go ahead. Finding a balance between safety and heritage building retention will be crucial to their sustainable management.
In the near future, public debates will be needed to establish just where this balance lies. The aim of this article has been to inform these debates. It has assessed the value of heritage buildings in terms of social, environmental and economic factors. It has found that heritage buildings have an important role to play in maintaining community cohesion and identity; in creating an enticing and liveable environment; but most importantly of all, it has found that heritage buildings have a central role to play in creating a sustainable economy.
The focal point of the article has been the Canterbury earthquakes and their impact on heritage buildings. For better or for worse, the earthquakes have been instrumental in instigating this muchneeded public debate on the future of heritage buildings — basically, we must turn our minds to heritage before it is too late and the discussion is no longer worth having.
The proposed changes to the EPB policy (a direct ramification of the earthquakes), combined with other legislative reforms to the RMA and HPA, make this a particularly pivotal time to discuss the sustainable future of heritage buildings. The proposed EPB policy will have the greatest direct impact on heritage buildings if enacted, as the setting of a mandatory timeframe for strengthening could ultimately result in the loss of many heritage buildings throughout New Zealand. The objectives behind the proposed RMA reforms, to achieve a more appropriate balance between public and private interests, as well as to allow for greater urban development, will also decrease heritage
protection. And the Bill to replace the HPA, if enacted in its proposed form, will further downgrade the perceived protection afforded by heritage listing.
This article has also investigated what options exist to improve heritage building protection. The focus was largely on economic incentives for heritage building owners as they desperately need help in order to commit to the strength ening work that will make their building economically viable in the future.
We need to face the fact that a decision not to fund preservation will inevitably result in the loss of many of our commercial heritage buildings. At the same time, however, we need to be realistic about how much we can save. Although pragmatism may ultimately win the day, as a nation we need to have made a conscious decision in this regard — public debate will at least ensure that we are all aware of what we are losing and why.
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