Natural and Built Environment Bill

Members, we come first to the Natural and Built Environment Bill. When we were last considering the bill, we were debating Part 8, the debate on clauses 497 to 553, “Matters relevant to natural and built environment plans”. The question again is that Part 8 stand part.

Thank you, Mr Chair. For the benefit—and with your indulgence just for a minute—of those people who may be listening on their radios or watching on television, it’s worthwhile just reiterating that we are debating the committee of the whole House portion of the Government’s proposed Natural and Built Environment Bill. It’s a very significant and long piece of statute—it runs to something close to nearly 1,000 pages, and the document I’m referring to brings us to Part 8 of the bill. It’s a multifaceted bill that is designed to replace the existing resource management regime, the Act that was first passed some 30 years ago. We on this side of the House have already made it very clear that should we have an opportunity to lead a new Government after the general election, we will repeal this bill in its entirety.

But notwithstanding all that, I want to turn to Subpart 2—I’m particularly referring to clause 541, which relates to heritage protection orders. This is an area that was the subject of quite a bit of discussion and debate during select committee. So my initial question to the Minister is for an explanation as to some of the detail, some of the rationale, some of the thinking behind this particular subpart and how it in particular differs, in his view, from the existing provisions that apply under the Resource Management Act. I’m particularly interested in clause 541(1), where it says that any iwi authority, group that represents hapū, or “Any Māori group with interests in relation to a place, and anybody corporate having an interest in the protection of any place, may apply to the Minister in the prescribed form for approval as a heritage protection authority for the purposes of protecting that place.” I’m keen to know from the Minister what he feels will be the criteria for the threshold required to meet the application level, and what the implications are of an iwi authority group that represents a hapū or Māori group becoming a heritage protection authority.

Thank you, Madam Chair. Subclause (5) of clause 541 says, “The Minister must not give [such an authority unless] (a) the approval of the applicant as a heritage protection authority is appropriate for the protection of the place that is the subject of the application; and (b) the applicant is likely to satisfactorily carry out the responsibilities, (including financial responsibilities) of a heritage protection authority”. An example of that might be an area on communally owned Māori land that is of historical significance, and it would seem entirely appropriate in that situation that that sort of function could be delegated to the relevant iwi.

Thank you, Madam Chair. That’s appreciated. So just coming then to clause 541(5)—which the Minister has just referred to—which requires the Minister to take those matters into consideration, clause 541(5)(a) makes reference to what is appropriate in terms of the place that is the subject of the application, but paragraph (b) specifically refers to carrying out the responsibilities of a heritage protection authority, and there are three bracketed words there that say “(including financial responsibilities)”. I’m interested to know from the Minister what he would envisage those financial responsibilities to be and the responsibilities to whom. Is it to the members of the iwi authority group that represents the hapū or the Māori group, or is it to the administering authorities—who are those financial responsibilities due to and what form should they take?

To the public—to the country. I mean, heritage protection orders are normally the preserve of the local authority or a Minister and Heritage New Zealand, and it’s described in clause 7, on page 51, under the definitions, who a heritage protection authority generally is. You can see in respect of those groups that they’ve generally got the financial wherewithal to do the job, and we don’t really need to ask the question as to whether they’re financially capable of doing it. If, however, a Māori grouping is being proposed as a heritage protection authority, the Government thought it wise to check that given that they’ve got a job to do, it would be reasonable to ask whether they’ve got the resources to do the job.

So that will be a test that is required in terms of financial stability and ability to perhaps meet the costs associated with the heritage designated land and potentially the prospect of an appeal. I’ll come to the appeal provisions shortly, but I want to just move on now to clause 545, which is the effect of a heritage protection order.

Clause 545(1) says that “While a heritage protection order is in force, regardless of the provision of any plan or resource consent, no person may, except in accordance with the prior written consent of the relevant heritage protection authority, do anything”—do anything—“that would wholly or partly nullify the effect of the heritage protection order, including—(a) undertaking any use of land; and (b) subdividing any land; and (c) changing the character, intensity, or scale of the use of any land.”

Now, those are very broad provisions that provide an incredibly wide scope for actually doing nothing. And I’m interested to know from the Minister about the breadth of the protection order. Will it be, for instance, that there will be a sliding measure of conformance or acceptance from one part of the country to another? Does the Minister envisage that there be a one-size-fits-all, a template approach that would mean that wherever a heritage protection order has been put into effect, but absolutely no undertakings of any use of land and subdividing of any land and changing the character and intensity or scale of the use of the land may occur—or does he anticipate that at some point there could be some evolution that would mean that, over the lifetime of the protection order, those matters could be refined, amended, adjusted to changing circumstances or perhaps changing knowledge and information about the historic qualities of the site due to, for instance, maybe some archaeology work or some historic data or information that may become available or just a better scientific understanding of the heritage of the place that’s covered by the protection order.

Thank you, Madam Chair. In respect of this provision, the member will see that the equivalent provision in the Resource Management Act is section 193—of the current Act. It has to be read in combination with the other sections around it, including clause 544, and I’m advised that the effect of a heritage protection order is that it, effectively, stays in place until a consideration is made as to whether there is a necessary plan change to give effect to the long-term protection of the site. So it’s, effectively, a temporary measure pending completion of more detailed provisions so that the interests of those that are affected by that can be properly heard.

Thank you, Madam Chair. It’s great to be able to stand and take a call in this debate. I’d like to build on my colleague Scott Simpson’s line of questioning regarding the effect of heritage protection orders, particularly, as we’re talking here, clause 545. I would like the Minister to be able to explain how opportunities can occur for those protection orders to be removed should there be, for example, earthquakes or perhaps, even more relevant, some sort of weather, climate change, subsidence kind of issue where you have a protection order in place—which, as Mr Simpson has said, is exceedingly constraining in terms of being able to use that land in any additional way apart from just locking it up in its current state. What happens, where are the mechanisms, if there is a need to be able to change that categorisation because of weather or climate change - related events? How does that happen? And, in particular, these are new conditions; how are they then consulted on and promulgated so that people can understand what change is expected?

Thank you, Madam Chair. I would note that, before they’re put in place finally, there are appeal rights so that if people feel that they’re wrong, they can appeal against the decision. There’s not only a hearing through a plan or some other process; there can be an appeal against that decision under clause 550. But in respect of the specific question of the member, if there was, for example, an earthquake and the building fell down, or there had been a landslip and some ancient site had been covered up by the landslide, clause 551 provides for that, which is the carry-over of section 195A of the existing Act. And it says, “A heritage protection authority that is responsible for a heritage protection order may at any time give notice to the relevant territorial authority of its intention to alter the heritage protection order.”

Thank you, Madam Chair. Just to carry on with that, Minister, if we had a Pompeii or Mt Vesuvius - type event, are you referring to that? That could be where we could get the ash covering the historic sites. You could, in theory, with some of the maunga in Tāmaki-makau-rau, lose one. It could disappear under ash. So would that be a subject of a protection order, and, if so, how would that be dealt with?

Well, I suppose the Pink and White Terraces, which used to be a wonder of the world, that were covered up by the Mount Tarawera explosion—or was it originally a lake? The whole mountain blew apart and covered the whole area in, amongst other things, ash. Theoretically, I suppose it would be possible to preserve the underlying Pink and White Terraces, deep under that ash, to the extent they still exist. That’s never happened, in the history of New Zealand, under the existing Resource Management Act provisions, and I think it will be no more likely under the new Act.

Thank you, Madam Chair, and I really hope the Taranaki maunga continues to behave. My question is around clause 552 on page 473. So it talks about the transfer of a heritage protection order, where the Minister may transfer responsibility for an existing protection order but not exercise power under subclause (2)(a) that relates to private land, or also in subclause (2)(c) where it relates to Māori land. So, Minister, I’m just looking for, perhaps, an example or a reason where this may happen, where the protection order is transferred but the landowners, whoever they may be, are protected. Thank you.

I’ll check with officials that I’ve got this right, but, having read the definition, I suppose one possibility would be that the original heritage protection order could have been obtained, for example, by the Department of Conservation, and they might think it’s appropriate to transfer it to Heritage New Zealand.

Madam Chair, thank you. I would like the Minister to further explain, please, clause 543(4), which is the heritage protection authority’s capacity to withdraw a notice of heritage protection order. When you compare with clause 545, which is the effect of the protection order—where, essentially, this land is locked up in perpetuity because you’ve got no use of land; it can’t be subdivided; the character, the intensity, the scale of the land can’t change—what I’m interested in is, whilst it makes sense at first reading to have the capacity for a notice to be withdrawn, what would the Minister see as being the sorts of criteria which would drive a withdrawal notice for a heritage protection order?

I’ll check with officials.

Thank you, Madam Chair, Actually, my question is on clause 542, “Consent of owners of Māori land”. It says, “A heritage protection authority must obtain the written consent of the owners of Māori land (as defined in section 4 of Te Ture Whenua Maori Act 1993) before it gives notice to a territorial authority of a heritage protection order affecting that land, except when the authority is the landowner.” My question is: does that include all of those landowners? Often there are many and that was one of the things that the National Government wanted to sort out with te ture whenua amendment bill some years ago, but that was opposed. But if the Minister could clarify that, because I think it’s really important that if it is to be an order going on that land, all of the landowners are indeed consulted. What happens if you can’t contact them all?

That’s an interesting question. There are actually many blocks of communally owned Māori land where the ownership is so fractionalised that there’s not really an economic interest for those who inherit the interest of their parents making it worthwhile going through the process of updating the records of the Māori Land Court to ensure that the appropriate transfers take place. In those situations, in my experience, the Māori Land Court try to call meetings of the people to whom they can give notice, and the Māori Land Court run a process through which the collective owners who often own structures such as ahu whenua trusts are asked to take a decision overseeing through a process which is approved by the Māori Land Court.

Thank you, Madam Chair. Just following on from what the Minister said, and I want to come to the appeal clauses in a minute, but I’m interested just to tease out the concept of communal owned land. Because it’s not only iwi, hapū, Māori land that is potentially communally owned. There are a number of organisations, some of them more controversial than others where, on the face of it, land is owned communally. I can think of back in the day, and the Minister may well have visited some of the communal owned properties in my electorate in the Coromandel—back in the day. He may be able to recall having made those visits and partaken of the hospitality of those communes. But does he envisage a situation where communally owned land, other than land owned by Māori, or iwi, or hapū could be encapsulated into the provisions of this subpart of the bill? Is that something that is limited exclusively to iwi, hapū, Māori groups, or could it stretch to land communally owned by other organisations, groups, or entities?

Responding to an earlier question in respect of clause 543(4) that I said I’d ask officials about as to when a heritage protection authority may withdraw a notice said “Act”, I’m advised that that might occur, for example, where it looks like a planned change that would be necessary to give effect to that protection is unlikely to result, and people might think that in those circumstances it wasn’t worth proceeding. In that sort of situation, it could be that a decision maker would withdraw their application.

In respect of the question about whether there are sorts of land other than Māori land that are owned by more than one party that could be covered by heritage protection orders, yes, they would, but they’re not caught within the definition of Te Ture Whenua Māori Act Māori land as referred to in respect of clause 542.

Thank you, Madam Chair. Minister, forgiving my naivety with this—clause 543, we’ve been talking about heritage protection orders, and I’m cognisant of the fact that there are certain areas, especially in Northland, with well-known geological features that have shared ownership locally. They would, arguably, be considered culturally sensitive to those, but they are non-Māori owned, as they’ve a shared ownership structure. In terms of heritage protection orders, would there be a potentiality that that ownership structure, should they be in a local authority that enforces a protection order on them—would that be eroded, and what would that, in terms of outcomes, look like under the veil of that cultural heritage use that was referenced in here?

Well, it would be an issue for the decision makers who are, actually, generally, local authorities, as to whether they thought some sort of protection was warranted under the rules of their plan.

Clause 545 is the clause that I spoke about earlier that gives effect to the heritage protection order. It’s the clause that sets out the fairly extensive and broad nullification of a whole lot of activities on land that has been designated as subject to a protection order—so nothing that includes any undertaking of any land use, subdividing any land, or changing the character, intensity, or scale of the use of any land.

Then there are several other clauses, and it’s not until we get to clause 550 that we find that there is an appeal provision relating to clause 545. In clause 550(1) it says that the “section applies if a person—(a) proposes to do anything in relation to land that is subject to a heritage order for the purpose that, but for the heritage protection order, would be lawful; and (b) has been refused consent to undertake that”, and so on.

But, then, in subclause (2) of clause 550, there is the ability for a person to appeal to the Environment Court against a heritage protection authority’s refusal to consent to the conditions. Now, that’s good, I guess, but an appeal through to the Environment Court has the potential to be slow, cumbersome, and expensive. I’m wondering whether the balance is right in terms of that appeal process, where the heritage authority that has already been tested, in terms of its own financial ability to be robust, clearly will have resources available to defend and protect themselves against an appeal of a protection order, but an individual could be, for instance, one of the communal property owners who may feel that the situation unfairly imposes upon their ability to enjoy, peacefully and lawfully, access to the land or to some use of the land. But the balance between the two—the authority has already had its financial probity tested and proved, so they’ve got assets, they’ve got strength, and they’ve got financial might, but the individual that is appealing may not have. And I’m keen to have the Minister’s sense about how the relative power imbalance or the potential power imbalance might potentially be better addressed.

Well, I suppose I would first make it clear that in respect of heritage protection orders on private land, as opposed to communally owned Māori land, those heritage protection orders can only be made by a council or the Crown; they can’t be made by a Māori authority. So it’s the council or the Crown.

Then, if someone has land that is subject to a heritage protection order—and they may have bought the land subject to that order. It’s not always imposed upon them; it’s often something that a prior landowner has wanted to protect for the future, before they sold their land. It might be—I don’t know—a very old church, it might be a place that’s got some significant trees on it, or it might be the site of the first school in the area—for whatever reason, they might have wanted to preserve it. But, then, a subsequent landowner might want to say, “Well, look, I still want to do something here.”, and they could apply to the council or the Crown, if the Crown was the relevant authority. Their permission might be refused, and they might think that unreasonable. In order for that to be tested, there is an appeal right created, as is the case in just about any other appeal right. In respect of important matters of public or private interests, it’s normal for the appeal to go to a court, because they run fair processes, they act judicially without bias, they apply the law without fear and favour, and they give reasons for their decisions, which gives confidence to the public that the system is robust, and that’s what’s proposed here.

Thank you, and thanks for the Minister’s explanation. I want to come back to this sense of a potential power imbalance between the authority that has deemed a piece of land communally owned to be the subject of a protection order and the potential for an individual to appeal that—as I say, potentially one of the communal owners or a small group of those communal owners.

In clause 550(4), it says, “In considering an appeal under this section, the court must have regard to” and then it has three legs to the matters that the court must have regard to, and this is the Environment Court. The first leg is “(a) whether the decision appealed against has caused”—has caused—“or is likely to cause serious hardship to the appellant; and,”. I can think of a wide variety of circumstances where it may be relatively easy for an appellant to show that, actually, serious hardship has occurred or is likely to occur.

But then there’s the second leg, and it’s not an “or”; it’s an “and”. So these three legs all have to be met before a successful appeal could be made. The second leg is “(b) whether the decision appealed against would render the land concerned incapable of reasonable use; and”. It’s that question about reasonable use and being incapable that I’m keen to have some sense from the Minister about; how that test of incapacity or reasonableness will be applied in terms of appeal decisions. I know that there’s a lot of common law about the test for reasonableness. But that’s the second leg; so that’s another “and”.

And then the third leg is—this is clause 550(4)(c)—“the extent to which the decision may be modified without wholly or partly nullifying the effect of the heritage protection order.” So three legs to a successful appeal need to be met, not individually but collectively—the three legs. I put it to the Minister that that’s actually a very high threshold for an appellant to meet, and the potential likelihood of an appeal being successful based on meeting all three of those legs would be relatively small, if indeed at all.

So I’m interested in the Minister’s views on that and whether he thinks that that is an adequate protection and whether it’s a reasonable threshold for, as I’ve indicated previously, perhaps a single individual with limited means to try and meet the threshold of the three appeal criteria under that clause.

Again, I would note this is a carry-over of section 195 of the existing Resource Management Act. I would further note that the court must have regard to those three factors; it doesn’t say that all three factors have to be fully met in order for an earlier decision appealed against to be modified. They’re just the factors that must be considered. It doesn’t say how they should be weighted.

I would have thought in practice that if the decision appealed was going to cause serious hardship and it would render the land unable to be reasonably used and the decision couldn’t be modified in a way that could accommodate that, the decision of the court would then in part depend on what they thought was a fair outcome according to the scheme of the Act. That might include, using the example I used earlier, whether the person purchased the land already subject to that inhibition or whether this was something new or recent.

In terms of the court’s remedies there, the court—at subclause (5)—can either confirm the decision, reverse the decision, modify the heritage protection order, or cancel it.

I move, That the question be now put.

Thank you, Madam Chair, and thank you, Minister, for those fulsome answers. In clause 552, “Transfer of heritage protection order”—and you’ve touched on this before—it says that “The Minister may, on the Minister’s own initiative, transfer responsibility for an existing heritage protection order to another heritage protection authority.” However, the Minister may not exercise that power, particularly when it relates to private land. Does mean, Minister, that if a heritage protection order is being administered by a council over some site and a Minister believes that it’s not being administered to a standard that the Minister might like, their hands are tied so that they can’t actually say, “Well, I’ll take it over now, as the Minister, rather than the council.”—is that possible, and, if not, why not?

Before I call the Minister, I just want to say that there have been at least five calls on heritage protection orders. It’s beginning to be repetitive.

Well, I think the clause means what it says, which is that the Minister must not exercise the discretion to transfer responsibility for an existing heritage protection order if the heritage protection order relates to private land.

Thank you, Madam Chair. Minister, back to clause 545, “Effect of heritage protection order”, in verbatim if you’d be so kind to indulge me: “(1) While a heritage protection order is in force, regardless of the provisions of any plan or resource consent, no person may”—and we can go through it, as you can well read. And I’ll go through (a), (b), and (c): “(a) undertaking any use of land; and (b) subdividing any land; and (c) changing the character,” Well, I’m cognisant of the fact that in ownership structures—and in the multiple-ownership structures—there can be possible multiple titles with multiple owners involved. If there was, in this arrangement, a property that was subject to heritage protection orders, how would this potentially affect those of multiple-ownership structures versus singular in terms of outcome and protection to their property rights?

The legislation contemplates all of those possibilities and indeed needs to, because there are many different ways in which people own land—either on their own account; they can sometimes own fee simple interests or leasehold interests; they can sometimes have other interests in land like easements across the land. And each of those different interests in land can either be owned by individuals, by corporate bodies, or by groups of individuals or corporates.

Thank you, Madam Chair. This is my first occasion to speak on this committee stage for the entire bill. I want to make a couple of general remarks about the widespread agreement across the House that the current Resource Management Act is no longer fit for purpose and needs improvement. Our general consensus, looking at this very large piece of legislation, is that rather than fixing it, it will make it worse in many respects, and we’re now working our way through the mountain of detail and questions. I don’t know what hour we’re up to: 20th hour or 10th hour or 12th hour—we’re halfway through.

I’ve got some specific questions I could ask here about Subpart 2 of Part 8, which may or may not shed any light on it. I suppose—where it sort of becomes interesting; I look at clause 541(1), for example. It says that “any [iwi authority] with interest in relation to a place may apply to the Minister in the prescribed form for approval as a heritage protection authority”.

I’d just be interested to know from the Minister what “interest in relation to a place” means. Does that mean that they own the place, or that they may claim to have some kaitiaki role in respect of the place? What are the boundaries of that, in the sense that it could be an individual’s house, for example, totally unrelated to that particular group, but the group claims to have some broader interest in the land? I don’t know; take, for example, if somebody owned a house on the waterfront in Whangamatā or Coromandel, and there was a group that claimed to have a connection with that area of the Coromandel, would that mean that they could apply to have a heritage protection authority over an individual’s property, and, if so, what would that mean from a heritage point of view? So I suppose the starting point, just to clarify that, is: what are the boundaries around the interest, and how tightly is that defined?

I did address this previously, in respect to an earlier question. The only authorities or organisations that can be heritage protection authorities in respect to private land are Ministers of the Crown or local authorities or Heritage New Zealand. In respect to Māori land, some Māori groupings can sometimes apply to be a heritage protection authority, in respect to that Māori land, but not other private land.

I call on the Hon Paul Goldsmith, but before I do, this particular area has been addressed by the Minister before and, yes, it’s your first call on this bill, but it doesn’t mean that we will trapeze it. It’s begun to be a bit repetitive.

Thank you for your indulgence, Madam Chair. I suppose I accept the answer from the Minister in relation to private land. I’ll be interested to know what it means when it comes in relation to public land or council land or even disputed lands. I’m thinking in terms of council-owned land or Government lands. So what interest would a particular iwi authority or group have to have in relation to some sort of structure on council land in an area that there might be interest in? What are the boundaries around whether they could apply to be a heritage protection authority for that place?

Well, they couldn’t if it wasn’t Māori land.

I move, That the question be now put.

The question is that Simon Court’s amendment to Part 8 on Supplementary Order Paper 389 set out on Supplementary Order Paper 392 be agreed to.

The question is that the Minister’s amendments to Part 8 set out on Supplementary Order Paper 389 be agreed to.