Heritage orders

A heritage order acts like a designation through incorporating the protection of features and places into district plans. They are very rarely utilised. 

Who is a heritage protection authority?

Heritage protection authorities include: ⁴⁰⁴⁸

• A Minister of the Crown
• Local authority
• New Zealand Historic Places Trust
• A body corporate approved as a heritage protection authority

How can you apply to become a heritage protection authority?

Any body corporate having an interest in the protection of any place may apply to the Minister for the Environment to be approved as a heritage protection authority for that place. ⁴⁰⁴⁹  Applications must be made in accordance with Form 25. Before approving the application, the Minister must be satisfied that approval of the application is appropriate for the protection of the place and that the applicant is likely to satisfactorily carry out all its responsibilities as a heritage protection authority under the RMA. An application is formally approved by notice in the Gazette.

How is a heritage order finalised?

A heritage protection authority may give notice to a territorial authority of its requirement for a heritage order. ⁴⁰⁵⁰  Such a notice must be in accordance with Form 26 and contain:

• A description of the place and surrounding area to which the requirement applies
• The existing restrictive conditions applying to the place or surrounding area
• The new restrictive conditions which will apply to the place or surrounding area
• The effects that the heritage order will have on the present and future uses of the place and surrounding area
• The reasons why the place merits protection
• The reasons why the heritage order is needed
• The reasons why the inclusion of the area surrounding the place is necessary for the purpose of ensuring the protection and reasonable enjoyment of the place
• The provisions and plans relevant to the requirement
• Any consultation which has taken place and, if not, why consultation has not taken place.

A heritage protection authority may also give notice of a requirement for a heritage order to the EPA under the call-in process or may seek that the requirement be the subject of a decision by the Environment Court instead of the territorial authority.

A requirement for a heritage order is processed in the same manner as a resource consent application with the exception that, instead of making a decision on the requirement, the territorial authority recommends that the requirement be confirmed, with or without modifications, or withdrawn. The territorial authority must also decide whether to notify the notice of requirement in the same manner as it would for a resource consent application. If the requirement is publicly notified, any person may make a submission about it to the territorial authority. If the requirement is the subject of limited notification, only a person notified may make a submission.

Submissions are made in accordance with Form 21. In making this decision the authority must have particular regard to: ⁴⁰⁵¹

• Whether the place merits protection
• Whether the requirement is reasonably necessary for protecting the place
• The contents of policy statements and plans
• Management strategies approved under any other Act.

The territorial authority may recommend the imposition of a condition that the heritage protection authority reimburse the owner of the place for any additional costs of upkeep required as a result of the heritage order.

The heritage protection authority then decides whether to accept or reject the recommendation. The decision made by the authority is publicly notified and can be appealed by the territorial authority or any person who made a submission on the requirement in accordance with Form 22. When the order is confirmed it is included in the district plan.

Heritage orders may also be included in proposed district plans and submissions may be made on these as part of the plan preparation process. The decision of the heritage authority can be appealed in accordance with Form 8.

What is the effect of a heritage order?

Regardless of the provisions in a plan or a resource consent, no person may, without the prior written consent of the relevant heritage protection authority, do anything which would wholly or partly nullify the heritage order. ⁴⁰⁵²  This includes subdividing land and changing the character, intensity or scale of use of the land. As soon as a heritage protection authority gives notice of a requirement for a heritage order, this will also have the interim effect of restricting a person from doing anything which would wholly or partly nullify the effect of the heritage order unless the person has the prior written consent of the heritage protection authority. ⁴⁰⁵³

A heritage protection authority can apply to the Minister of Lands to have the affected land compulsorily acquired under the Public Works Act 1981. Affected landowners can also apply to the Environment Court for an order that the heritage protection authority purchase the land under the Public Works Act or withdraw the heritage order. However this order can only be granted if the Court is satisfied that the heritage order renders the land incapable of reasonable use. ⁴⁰⁵⁴

What costs are involved?

An application for approval as a heritage protection authority incurs a fee. Seeking a heritage order can involve several costs, including the council's administrative charges for processing the notice of a requirement for a heritage order and your costs of preparing the notice and supporting it through the council, and possibly the Environment Court, hearings. If the process reaches the Environment Court stage, you may also be subject to an award of costs against you if you are unsuccessful. If you are successful, you may, as the heritage protection authority, be required to reimburse the owner of the place affected for additional costs of upkeep incurred as a result of the order.

Last updated at 12:08PM on November 23, 2017