The uneasy relationship between the RMA and the heritage New Zealand
Pouhere Taonga Act – Ideas for an integrated framework?
Jill Gregory
Senior Solicitor, Chapman Tripp
Amanda Stoltz
Solicitor, Chapman Tripp
Wednesday 15th April – 1.30-3.15pm
Keywords: historic heritage, legislation, conditions, authorities
Introduction
The cultural identity of many New Zealanders is distinctively “kiwi” and is influenced by our
unique architectural, historical and cultural heritage. This heritage informs our sense of
identity by helping us understand who we are and where we come from. This paper briefly
outlines how the current legal framework operates to protect New Zealand’s heritage and
explores the relationship between the Resource Management Act 1991 (RMA) and the
Heritage New Zealand Pouhere Taonga Act 2014 (HNZ Act). Although “heritage” is a broad
term that encompasses a range of different activities, landscapes and places, this paper
focuses on the protection of historic buildings, cultural heritage, archaeological sites and
artefacts and does not consider natural or intangible heritage.
The importance of protecting heritage is well recognised, both on a national and
international stage. Yet, we remain concerned that parts of New Zealand’s historic heritage
are falling through the gaps.
This paper considers whether a new national framework is needed, in the consenting space,
to ensure a complete picture of our historic heritage is captured and taken into account
when planning for our communities.
Overview of current legislation
Statutory recognition of the importance of protecting New Zealand’s heritage dates back to
1840, when national parks and historic structures were protected through their ownership
by public bodies. In 1954, the Historic Places Act was enacted. This Act established the New
Zealand Historic Places Trust, which, in combination with the Town and Country Planning
Act 1953, was the genesis for today’s current legal framework, which protects heritage
primarily through the regulation of private property rights (rather than through public
ownership).
Today, there are a number of different bodies responsible for heritage protection in New
Zealand and a myriad of different pieces of legislation, most notably, the RMA and the HNZ
Act. The Department of Conservation, the Ministry for Culture and Heritage, the Ministry
for the Environment, Heritage New Zealand Pouhere Taonga (Heritage New Zealand or
HNZ), local authorities, iwi and hapū, and community groups all play a role in identifying,
recording and protecting New Zealand’s heritage.
Resource Management Act 1991
What “heritage” is covered?
The definition of historic heritage in the RMA means “those natural and physical resources
that contribute to an understanding and appreciation of New Zealand's history and
cultures…”, and includes:
1

historic sites, structures, places, and areas;

archaeological sites;

sites of significance to Maori, including wāhi tapu; and

surroundings associated with the natural and physical resources.1
RMA 1991, s2.
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Mechanisms for identification and protection: Plan making and consenting
All persons exercising functions and powers under the RMA are required to “recognise and
provide for” matters of national importance in policy statements and plans and in the
assessment of resource consent applications.2 The protection of historic heritage from
inappropriate subdivision, use, and development is listed as a matter of national importance
in section 6 of the RMA. Councils are also required to have regard to any relevant entry on
the New Zealand Heritage List when preparing or changing a regional policy statement,
regional plan or district plan3 and rules that protect historic heritage in proposed plans take
immediate legal effect.4
The RMA recognises the particular relationship between Maori and their cultural heritage.
The relationship of Maori and their culture and traditions with their ancestral lands, water,
sites, wāhi tapu, and other taonga is identified as a matter of national importance. 5
Moreover, the definition of historic heritage specially includes sites of significance to Maori
and section 8 of the RMA requires decision makers to take into account the principles of the
Treaty of Waitangi.
The purpose of the Act in section 5 of the RMA also brings consideration of historic heritage
into play insofar as it is relevant to the social and cultural wellbeing of people and
communities. Most commonly, district plans will identify heritage sites, structures, places
and / or areas and provide policies and rules regulating their use and development.
In practice, the level of protection afforded to historic heritage will depend on the
classification of that site, structure, area or place in the relevant Plan (subject to the
overriding requirements in Part 2 of the RMA). In many cases, the plan making stage is
where the debate about what should be protected and to what extent is played out. This
debate is evident in the current Proposed Auckland Unitary Plan process, and the Council’s
policies for demolition controls and special character overlays.
Where consent is required for works that affect historic heritage included on the HNZ List,
Councils are required, in certain circumstances, to notify Heritage New Zealand as an
affected party. In our experience, HNZ (and its predecessor the Historic Places Trust) is
actively involved in plan reviews, plan changes and resource consent applications.
Mechanisms for identification and protection: Heritage Orders
The RMA empowers heritage protection authorities to lodge Notices of Requirement for
heritage orders. When confirmed, a heritage order is included in the District Plan and
operates much like a designation. However, heritage orders are not often used, we assume
2
RMA, sections 74(1)(b), 66(1)(b), s61(1)(b) and 104.
3
RMA 1991, ss 61(2), 66(2) and 74(2).
4
RMA 1991, s86B(3)(d).
5
RMA 1991, s6(e).
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in large part because they give the owner the right to apply to the Environment Court for an
order requiring the heritage protection authority to remove the heritage order or to acquire
the land under the Public Works Act 1981.6
Mechanisms for identification and protection: Enforcement
The RMA also contains a number of enforcement provisions. Abatement notices and
enforcement orders are typically issued in relation to the breach of rules in a plan or the
terms of a resource consent but they could also potentially be relevant where necessary to
avoid, remedy or mitigate any actual or likely adverse effects on the environment.7
Heritage New Zealand Pouhere Taonga Act 2014
The HNZ Act came into force in May 2014 and was designed to rectify various weaknesses in
the previous legislative regime - the Historic Places Trust Act 1993 (HPA). The purpose of
the HNZ Act is identical to that of the HPA and is to promote the identification, protection,
preservation, and conservation of the historical and cultural heritage of New Zealand.8
The HNZ Act established the HNZ Board and retained the Maori Heritage Council. These
bodies are responsible for supplying and maintaining the New Zealand Heritage List. The
List identifies and records places or areas of historical significance, wāhi tapu and wāhi
tupuna. Any person can apply to have a site / place included on the List. An application
then goes through a notification and submission process prior to its inclusion on the List.
However, the List does not carry any statutory muscle (with the exception of relevance to
applications to the Overseas Investment Office).
Registration is merely an
acknowledgement that the site is worth protecting. As discussed above, local authorities
are required to have regard to the List when preparing their plans and / or policy
statements; however, there is no obligation for them to give effect to the List, nor for the
provisions or rules in those documents to prevent a property or site being modified,
damaged, neglected, sold, or even destroyed.
The HNZ Board can also make
recommendations to local authorities regarding how best to conserve or protect heritage in
the area. Local authorities are only required to “have particular regard to” these
recommendations.9 Ultimately, the protection of historic places, areas, wāhi tapu and wāhi
tupuna depends entirely on the provisions of each district plan.
However, the Trust also has the status of a heritage protection authority under the
Resource Management Act 1991, and can issue a requirement for a Heritage Order (see
above) if necessary.
6
RMA 1991, s198. There are currently only 18 Heritage Orders included in the Heritage List.
7
RMA 1991, ss 314, 322.
8
HNZ Act 2014, s3.
9
HNZ Act 2014, s74.
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Archaeological sites
Heritage New Zealand has greater powers in relation to the protection of archaeological
sites. An archaeological site is defined in the HNZ Act as any place in New Zealand (including
buildings, structures or shipwrecks) that was associated with pre-1900 human activity,
which provides or may provide evidence relating to the history of New Zealand that can be
investigated using archaeological methods.10
The HNZ Act makes it unlawful for any person to modify or destroy, or cause to be modified
or destroyed, the whole or any part of an archaeological site without the prior authority of
Heritage New Zealand. If you wish to do any work that may affect an archaeological site you
must obtain an authority from Heritage New Zealand before you begin.
This is the case regardless of whether the land on which the site is located is designated, or
the activity is permitted under the District or Regional Plan or a resource or building consent
has been granted. The HNZ Act provides for substantial penalties for unauthorised
destruction or modification of an archaeological site.
A declaration can be made to identify a place associated with post-1900 human activity as
an “archaeological site”, and afford the site the same protections as pre-1900 sites by
requiring an authority to be obtained before modification or destruction is authorised.
However, no authority is required from HNZ to modify, or destroy any other post-1900 sites.
National Historic Landmarks/Ngā Manawhenua o Aotearoa me ōna Kōrero Tūturu
The HNZ Act also established a new list, the purpose of which is to promote an appreciation
of the places of greatest heritage value to the people of New Zealand. Heritage New
Zealand is currently developing a draft general policy for administration of this List.
Other national legislative regimes
The Local Government Act 2002 empowers local authorities to develop provisions that
address local issues; including, heritage planning, funding and management.
The Conservation Act 1987 guides the Department of Conservation and promotes the
conservation of New Zealand's natural and historic resources. The Reserves Act 1977
protects reserves that are classified as historic reserves.
The Building Act 2004 includes a range of provisions relevant to historic heritage, including
the principle of the need to facilitate the preservation of buildings of significant cultural,
historical, or heritage value. It also contains a number of provisions relating to health and
safety, especially for earthquake prone, dangerous and insanitary buildings, which can
sometimes create tensions with heritage protection.
10
HNZ Act 2014, s6.
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The Protected Objects Act 1975 came into force on 1 November 2006, superseding the
Antiquities Act 1975. Under the Act, there are nine categories of protected New Zealand
objects. The Act imposes regulations regarding import / export of these protected New
Zealand objects and the sale of ngā taonga tūturu (objects made by Maori and more than 50
years old) within New Zealand.
International Guidance
New Zealand Committee of the International Council on Monuments and Sites (ICOMOS)
Established in 1987, ICOMOS exists to encourage best practice in the protection and
management of historic heritage. A New Zealand Charter has been developed to provide a
set of guidelines on cultural heritage conservation and to guide the quality of conservation
work.11 It is used by central government ministries and departments, by local bodies in
district plans and heritage management, and by practitioners as guiding principles.
UNESCO and UNIDROIT Conventions
New Zealand's access to the UNESCO and UNIDROIT Conventions came into force in May
2007. It allows New Zealand to recover illegally exported objects and other signatory
countries to recover protected objects illegally exported into New Zealand.
Summary
It is evident that the identification, advocacy and management of heritage in New Zealand
have the potential to be complicated. The second part of this paper will look specifically at
the consenting regimes for modification and destruction of heritage and how, in our view,
the regimes could be integrated and improved to ensure a better relationship between the
RMA and the HNZ Act.
What is “falling through the gaps”?
In our experience, when seeking resource consent, an issue commonly confronted by
parties is how heritage matters should be addressed in conditions (if consent is granted).
There is often an assumption by applicants, HNZ and councils that conditions relating to
heritage can be left to the archaeological authorities stage. The risk with this approach is
that the scope of an authority is limited by the HNZ Act, as discussed above.
While consistency between the RMA and HNZ Act is desirable, simply referring to
archaeological authorities as a method of managing modification and destruction is arguably
insufficient and fails to “recognise and provide for” the protection of historic heritage as
required by the RMA.
11
ICOMOS New Zealand Charter 2010.
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Why is there a problem?
An application under the RMA requires a full assessment of effects on historic heritage (not
limited by any date), yet the authorisation process is limited to archaeological sites (being
pre-1900 sites).
If reliance is placed solely on the HNZ authorisations, as is often the case, then the
modification or destruction of post-1900 historic heritage (not identified in a district plan)
can occur unmanaged, and potentially result in a loss of heritage that would otherwise have
contributed to our cultural identity. Heritage New Zealand has limited statutory jurisdiction
to require investigation or preservation of post-1900 heritage and while there is a myriad of
heritage regulation, it is unclear how this heritage should be preserved for the wellbeing of
the community.
The problems stem from the overlapping but not identical jurisdiction of the RMA and the
HNZ Act. The tendency to rely on the HNZ Act is, in our view, heightened by the duplication
between the Acts in terms of information requirements and approval timeframes. An
uneasy relationship has resulted.
A good example of this problem is WWII sites that need to be modified or destroyed to
provide for development. Unless specifically listed, HNZ is not involved in how these sites
are recorded or preserved, as these sites are not “archaeological” under the HNZ Act and do
not require authorisations. In our experience, in many cases, unless offered by an applicant,
councils will not impose any conditions, meaning this heritage is lost. If councils do impose
conditions, for example, conditions requiring heritage reports, collection of any artefacts
and establishment of any signage and education of the sites, what should a council do with
that information? Should councils be responsible for a database of these heritage items?
Previous reform
A 1996 report by the Parliamentary Commissioner for the Environment identified an
ongoing loss of heritage and brought into question the adequacy of the (then) Historic
Places Act 1993.12 The Report identified the following issues with New Zealand’s legislative
framework:
The lack of an integrated strategy for all types of heritage conservation;
The absence of strategic planning;
The lack of a clear national strategy;
The limited focus and lack of resources and funding of historic and cultural heritage; and
12
Parliamentary Commissioner for the Environment, Historic and Cultural Heritage Management in New
Zealand (1996).
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Inconsistencies in the responsibilities of the various agencies involved in historic and cultural
heritage protection.
In 2009, the Ministry for Arts, Culture and Heritage began a review of the HPA, focussing on
three keys areas:13
1. the consenting process for archaeological authorities,
2. the legal structure of the New Zealand Historic Places Trust; and
3. the registration process.
This paper discusses the first of these three key areas.
Consenting process for archaeological authorities
Three options were considered for the reform of the archaeological consenting process:
1. The HPA option – to create a single type of authority and a separate process for
proposals with minor effects, to align timeframes with the RMA, and to allow the
same information to be submitted under both the HNZ Act and the RMA;
2. The RMA option – to integrate archaeological consenting into district plans, to
develop a National Policy Statement and National Environmental Standards and
repeal the HPA; and
3. The Hybrid option – to identify protected sites and include relevant rules in district
plans and to empower the New Zealand Historic Places Trust to process consents.
Ultimately, the Ministry decided to proceed with the HPA option. This option required the
least legislative change but, in our view, failed to address the issues previously identified by
the Parliamentary Commissioner for the Environment.
The HNZ Act replaced the HPA and:

reforms the governance of the New Zealand Historic Places Trust in line with its
status as a Crown entity;

facilitates the flow of information on government policy issues by appointing the
Chief Executive of the Ministry for Culture and Heritage as special adviser to the
Board;

streamlines the general provisions and principles by:
13
A series of cabinet papers were put forward from December 2009 through to introduction of the Bill.
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o amending the Treaty of Waitangi clause to reflect the provisions in the Act
that would give effect to the Treaty of Waitangi in line with current legislative
practice;
o widening the range of parties Heritage New Zealand must work
collaboratively with to include tangata whenua and interested parties
including central Government agencies;
o ensuring that the interests of property owners are recognised when Heritage
New Zealand performs functions under the Act; and
Attempts to improve efficiency, reduce costs, and improve alignment with the RMA by
making a number of changes to the archaeological provisions:
o there are now four types of archaeological authorities: General (including
minor effects), Exploratory, Scientific, and Emergency authorities;
o timeframes for processing general authorities have been reduced from 3
months to between 20 and 40 working days depending on the type of
application;
o where a recorded archaeological site is to be modified and the effects of the
activity on the site will be minor, no archaeological assessment need be
submitted with the authority application;
o an application to conduct a scientific investigation of a site of interest to
Māori requires the consent of the appropriate iwi or hapu;
o no archaeological authority is required for work on a pre-1900 building unless
it is being demolished;
o emergency authorities can be applied for following a declaration of a state of
emergency with reduced information requirements and processing times;
o in the case of sites of interest to Māori, the archaeologist approved to
undertake archaeological work under an authority must have skills and
competencies relating to recognising and respecting Māori values and have
access to appropriate cultural support;
o applications for all types of archaeological authorities are able to be
submitted without an owner’s consent, but that work under an authority may
not commence until consent is given; and
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o an authority now stays with the land and is still valid if ownership of the land
changes (in the same way a resource consent does).
However, the following questions remain:

Who is best placed to manage the modification or destruction of post-1900
heritage?

Is it really efficient to lodge the same documents to two different agencies to obtain
consent for an activity?
Future reform – ideas for better integration
Unfortunately, the recent reform of the HNZ Act was too focussed on process and did not
address critical broader questions about the protection and management of heritage in New
Zealand. Ideally, a robust review would have looked at the myriad of heritage legislation
and assessed options to streamline process where possible and fill any remaining gaps.
In our view, the better approach to integrating the RMA and the HNZ Act would be to
separate the advocacy and education functions from the consenting functions:

Councils should be solely responsible for consenting activities to modify or destroy
heritage sites; and

HNZ should have wider powers to advocate for and hold a database of post-1900
heritage sites that contribute to our history of New Zealand.
Councils – to consider applications and impose conditions
Under the RMA, Councils are required to assess whether particular applications should be
allowed. Decisions are ultimately governed by the purpose of the RMA, which is to promote
the sustainable management of natural and physical resources. A decision on whether a
development should proceed requires an assessment of, amongst other things, its effects on
historic heritage. In our view, a decision to approve a development under the RMA should
be paramount, and unable to be frustrated by subsequent specific narrow consents.
Heritage effects are integral to assessing whether a particular project should be approved
under the RMA. However, there are often a range of competing interests that need to be
assessed and balanced under the RMA. This assessment process ensures that the outcome
meets the sustainable management purpose.
By comparison, when HNZ considers an application for authorisation to modify or destroy a
site, it is limited to considering heritage matters and not the broader principle of sustainable
management.
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Having one consenting body also reduces regulatory red tape and increases efficiency. The
very fact that the same report can be lodged under the RMA and the HNZ Act indicates
unnecessary duplication and inefficiencies in the regimes.
We believe councils should be responsible for imposing conditions to manage the
modification or destruction of historic heritage. National Environmental Standards could be
drafted to provide national consistency to the consenting process and imposition of
conditions. Ultimately, this approach would ensure councils consider all historic heritage
and impose conditions accordingly.
Heritage New Zealand – to advocate and educate
In turn, we consider that HNZ needs a broader role to collect information and maintain a
national database on all historic heritage, regardless of whether a site is on one of the Lists
or is a pre-1900 site. These current limitations do not reflect the reality that all heritage
plays an important role in informing our cultural identity.
The strength of HNZ is its ability to advocate for the protection of heritage and educate New
Zealander’s about our history. In our experience, HNZ plays an important role in plan
making and resource consent applications by advocating for avoidance or appropriate
mitigation of adverse heritage effects. This advocacy role should be encouraged and
strengthened.
So let’s take the example of WWII camp sites that need to be destroyed to provide for a new
road. Under our integrated framework:
A council would assess all the effects of the project includes effects on the camp sites and
any other heritage. If consent is granted, the Council can impose appropriate conditions to
mitigate the destruction. The conditions could include a requirement for the sites to be
investigated by an archaeologist, a report to be produced and educational signs to be
erected near the site.
HNZ would be the organisation responsible for collect the report and any artefacts from the
sites and document these into a national database, and work with other organisation such
as museums to ensure the information is accessible to the public.
Conclusion
This paper has explored the uneasy relationship between the RMA and the HNZ Act, with a
focus on consenting. The uneasy relationship manifests in conditions of resource consent
that refer to the need to obtain archaeological authorities under the HNZ Act. In our view,
simply referring to, or relying on, archaeological authorities as a method of managing
modification and destruction is insufficient and fails to “recognise and provide for” the
protection of historic heritage as required by the RMA.
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Although steps have been taken to ‘streamline and simplify’ the archaeological authority
process and to align timeframes and reporting requirements with the RMA, there remains
overlapping, but inconsistent, jurisdiction between the regimes creating gaps.
We have suggested a new approach to consenting that seeks to fill the gaps and create a
comprehensive national framework to ensure all heritage is recognised as contributing to
our national identity. Our approach separates the consenting functions from the advocacy
and education functions and recommends broadening HNZ’s jurisdiction. The approach
would reduce inefficiencies and duplication while increasing the scope of heritage
recognised and provided for.
Bios
Jill Gregory is a senior solicitor at Chapman Tripp in the Resource Management team. Over
the past 10 years Jill has worked on a number of large infrastructure projects, on plan
change and resource consent appeals, and provided advice to developers, councils and
infrastructure providers. Jill is particularly interested in the interface between the RMA and
other legislative regimes such as the Local Government Acts and the Heritage New Zealand
Pouhere Taonga Act.
Amanda Stoltz is a fourth year Solicitor in the Resource Management Team at Chapman
Tripp. Amanda regularly advises private and public clients on environmental issues
applications associated with property developments, infrastructure projects, due diligence
investigations and land transport matters.
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