Prosecuting to protect the past

At a time where land for new commercial and residential buildings is becoming increasingly scarce, heritage can be seen as a hindrance to development.  Property owners, failing to appreciate the significance of their historic items, will undertake work without consulting with councils and/or applying for resource consent.  However, the public interest in preserving heritage is high.  Heritage is protected under planning instruments, as well as being specifically considered under the Resource Management Act 1991 (RMA) as a matter of national importance.   In order to ensure that our neighbourhoods retain their heritage character, councils should not be afraid to prosecute for breaches of heritage plan provisions.

Elements of the offence

The elements to prove a charge for undertaking work on a heritage item without a resource consent are the same as for any other breach of a plan under s 338(1)(a) of the RMA:

  1. A person must use land;
  2. In a manner that contravenes a district rule;
  3. Where such use is not expressly allowed by a resource consent or otherwise allowed as an existing use under ss 10 or 10A of the RMA.

The unlawful alteration of heritage is a strict liability offence.  It is irrelevant that a person may not have recognised the heritage value of their property or subsequently obtained retrospective resource consent for the work.

Examples

Following the inclusion of historic heritage as a matter of national importance in the RMA in 2003, there have only been a handful of cases where the breach of heritage planning provisions have been prosecuted.  However, it is likely these cases will only increase as property becomes more expensive, land becomes scarcer and the maintenance costs for heritage items rise.

Ling v Christchurch City Council[1]

Mr Ling owned a section upon which there was a Heritage New Zealand-registered category 2 historic place.  After failing to obtain resource consent to demolish this building, Mr Ling successfully obtained a building consent and resource consent authorising construction of a two-storey office block at the rear part of the section.  However, in creating the driveway to the office block, Mr Ling had shorn off the right hand wall of the historic place, destroying its symmetry.

Mr Ling pleaded guilty to the charges.  At sentencing, the Court considered the offending was deliberate and that the predominant factor in sentencing was deterrence.  Mr Ling had aspirations for developing his property but was hamstrung by the overarching public interest of preserving historically significant buildings.  Property owners need to be aware of these considerations when purchasing and developing their properties.  Mr Ling was fined $7,500.

Christchurch City Council v Solid Stone Ltd[2]

Solid Stone Ltd owned a property that contained the historic Trinity Church building.  Solid Stone Ltd’s director, Mr Slade, had discussed with the council redeveloping the property.  He was advised that if any aspect of the heritage fabric of the building was altered, it would require resource consent.  In the months following, it was found that building work on the property was being undertaken without consent.  Retrospective resource consent was subsequently granted authorising the work.

Solid Stone Ltd pleaded guilty.  Although the work was ultimately authorised, the Court found at sentencing that the offending was deliberate, given Mr Slade’s knowledge that consent was required.  The Court was not impressed with Solid Stone Ltd’s development approach which was to amend the fabric first and apply for resource consent later.  Furthermore, as the building was ultimately converted into a restaurant, it was clear Solid Stone Ltd was attempting to bypass the correct process for commercial gain.  In considering the seriousness of the offending, the Court emphasised the national importance under the RMA of the protection of historic heritage from inappropriate use and development .  Solid Stone Ltd was fined $2,000 and ordered to pay legal, court and investigation costs.

Auckland Council v Liu & Ors[3]

Mr Liu was the director of a company that owned a site at Gilles Ave, Newmarket containing a basalt stone retaining wall.   The wall was a Category B Scheduled Place under the Proposed Auckland Unitary Plan.  Mr Liu’s contractor, Mr Parsons, excavated holes in the wall without a resource consent and partially destroyed a stone staircase in the middle of the wall.  Although the defendants subsequently reinstated the wall and steps, they were found guilty of contravening the plan’s heritage protection rules.

At sentencing the judge found the relative gravity of the offending was moderate.  The complete destruction of heritage had not occurred.  However it was not the lowest level of offending when considered against the RMA provisions that identify heritage as a matter of national importance. Although the loss, in light of the repairs, would unlikely be apparent without forensic inspection or specialist knowledge, the integrity of the wall and steps (being the quality of what was inherited from a previous generation) was diminished.  Mr Liu was fined $8,000 and Mr Parsons was fined $1,800.

Take-home points

Councils should be vigilant in monitoring heritage buildings, particularly where owners have sought to obtain resource consents and been met with resistance.

Councils should not be afraid to pursue prosecution even where the damaged heritage fabric has been remediated and/or authorised by retrospective resource consent.  Breaches of s 338(1) are strict liability offences and property owners need to be deterred from attempting to bypass consenting processes.

Fines for breaching heritage provisions in plans have tended to be on the low side (albeit a number of cases were decided before the tariffs under s 339 of the RMA increased).  This is often because the breaches can be somewhat rectified.

Heritage is about more than just aesthetic values.  It is also about preserving traditional materials and methodologies, and preventing the chipping away of historical integrity.

[1] Ling v Christchurch City Council CRI-2004-409000212 HC Christchurch, 2 December 2004.

[2] Christchurch City Council v Solid Stone Ltd CRN06009504445, CRN0600950444 DC Christchurch, 30 May 2007.

[3] Auckland Council v Liu & Ors [2017] NZDC 10864.

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