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Heritage orders and heritage protection authorities

A heritage protection authority is the body that can give notice to a local council of a requirement for a heritage order to protect the special heritage qualities of a place or structure.

All Ministers of the Crown, local authorities, and the Historic Places Trust are automatically heritage protection authorities under the Resource Management Act 1991 (RMA). This status is also reinforced for the Historic Places Trust by section 5 of the Historic Places Act 1993 (HPA). A body corporate having an interest in protecting a place may apply to the Minister for the Environment to become a heritage protection authority.

These are the entities that have been approved as heritage protection authorities:

Name of heritage protection authority	Year of approval	Notice
The Save Erskine College Trust	1992	Order 1992/352 (available on the NZ Legislation website, in the Regulations database)
Royal Forest and Bird Protection Society	1993	Order 1993/166 (available on the NZ Legislation website, in the Regulations database)
Taupo Orchid Society Inc	1993	Gazette 146/4005
Friends of Mount Street Cemetery Inc	1994	Gazette 98/2976
Orchid Council of New Zealand Incorporated	2008	Gazette 08/2477

A heritage order is a provision in a district plan to protect the heritage qualities of a particular place or structure.

A place is defined in the RMA as including any feature or area, and the whole or part of any structure (s188(2)).

Any place of special interest, character, intrinsic or amenity value or visual appeal may qualify. This may be of special cultural, architectural, historical, scientific, ecological, or other interest. It includes places of special significance to the tangata whenua for spiritual, cultural or historical reasons.

A heritage order may also include part of the land surrounding a proposed protected place where it is necessary to ensure the protection or enjoyment of the values being protected.

A heritage order is similar in effect and has a similar process to a designation because it is a provision in a district plan that affects how a place can be used. Where a heritage order is included in a district plan, no one, without the prior consent of the heritage protection authority, can do anything that would compromise the effect of the heritage order (s193).

The definition of historic heritage and its elevation to being a matter of national importance was introduced through the Resource Management Amendment Act 2003.

How are heritage protection authorities approved?

Ministers of the Crown, local authorities, and the New Zealand Historic Places Trust are automatically heritage protection authorities. The only body that can apply to be a heritage protection authority is a body corporate. A body corporate includes:

a company
a corporation sole
an incorporated society
a state owned enterprise
organisations set up under the Friendly Societies Act 1909, or the Industrial and Provident Societies Act 1908 or the Charitable Trusts Act 1957
incorporations and trusts set up under sections 215, 216, 217 and 247 of Te Ture Whenua Maori Act 1993
Maori Trust Boards set up under the Maori Trust Board legislation.

Applications for heritage protection authority status must be made in the prescribed form [Form 25 (RTF document 37KB)] of the Resource Management (Forms, Fees and Procedure) Regulations 2003 (SR 2003/153). A fee of $250 must accompany all applications. The Ministry for the Environment processes all applications and makes recommendations to the Minister.

Before approving a body corporate as a heritage protection authority, the Minister must be satisfied that:

the approval of the applicant as a heritage protection authority is appropriate for protecting the place that is subject to the application; and
the applicant is likely to satisfactorily carry out all the responsibilities (including financial responsibilities) of a heritage protection authority under the RMA.

Any body corporate seeking status as a heritage protection authority must demonstrate that it is fully aware of the responsibilities and potential costs involved including on-going maintenance costs and the possibility of defending appeals.

The Minister also has the ability to revoke an organisation’s heritage protection authority status under section 188(6).

How is a provision for a heritage order included in a district plan?

A heritage order can be included in a district plan in two ways – either as a new designation, or as a designation that is continued or 'rolled over' from a previous district plan.

RMAA 2009 increased new options for the processing of notices of requirement for heritage orders. Notice of requirements for heritage orders can now be directly referred to the Environment Court provided that the council agrees. RMAA 2009 also clarified that a notice of requirement for a new heritage order or to alter an existing heritage order can be called in as a matter of national significance by the Minister for the Environment.

For more information on the processing of heritage orders that are directly referred to the Environment Court or called-in by the Minister for the Environment refer to:

Process for heritage orders which are not part of a proposal of national significance or directly referred to the Environment Court

A heritage protection authority may notify the territorial authority that it intends to protect land by issuing a 'notice of requirement' to the territorial authority. This notice of requirement must be in the prescribed form [Form 26 (RTF document 43KB)] Resource Management (Forms, Fees and Procedure) Regulations 2003 and is to include the information set out in section 189(3) of the RMA.
The territorial authority may request further information on the notice of requirement.
The territorial authority may publicly notify the notice of requirement in the same way that resource consent applications are notified [sections 95A-F].
If the requirement is publicly notified the public notice must be in the prescribed form [either Form 18 (RTF document 37 KB) or Form 19 (RTF document 32 KB)]. The notice must be served on specific people including affected parties, relevant iwi authorities and local authorities and the Minister of Conservation and Minister of Fisheries where appropriate [Regulation 10 of Resource Management (Forms, Fees, and Procedure) Regulations 2003].

If the requirement is limited notified, notice of the requirement must be served on all parties who are considered to be adversely affected (except for those who have already given their written approval).
If the application is not notified then the territorial authority may make a decision under step 7 below.

Any person may make a submission to the territorial authority relating to the notice of requirement if the application is publicly notified.

Any person who is served notice of a notice of requirement may make a submission to the territorial authority relating to the notice of requirement if the application is limited notified.

Any submission on a notice of requirement should be made in the same way as a submission on a resource consent application.

The territorial authority may conduct a pre-hearing meeting or it may proceed straight to a council hearing of the notice of requirement if it is publicly or limited notified.
In considering the notice of requirement, the territorial authority must take into account the information set out in the requirement notice, public submissions, the factors outlined in section 191, and matters including:

whether the place merits protection; and
whether the requirement is reasonably necessary for protecting the place to which the requirement relates; and
whether including an area of land around the place is necessary to ensure its protection and the enjoyment of the place; and
management plans or strategies approved under other Acts which relate to the place; and
all relevant provisions of any national policy statement, New Zealand coastal policy statement, regional policy statement, proposed regional policy statement, regional plan, proposed regional plan and district plan.

The territorial authority makes a recommendation back to the heritage protection authority as to whether the heritage protection authority should confirm (with or without conditions) or withdraw the requirement.
The heritage protection authority makes a decision whether to accept or reject that recommendation, in whole or part.
The territorial authority must ensure that if the notice of requirement was notified that every person who made a submission receives notice of the heritage protection authority's decision.
The territorial authority or any submitter to the notice of requirement may appeal the decision made by the heritage protection authority under section 172, to the Environment Court.
Depending on the outcome of the appeal, the heritage order may be placed in the district plan.

Further information

For more particular advice on how to include a heritage order in the district plan, contact your district council or refer to the provisions in the RMA (sections 187-198) (available on the NZ Legislation website, in the Statutes database).

If you would like further information on how to apply to become a heritage protection authority please email rmainfo@mfe.govt.nz.

Useful resources:

Last updated: 8 August 2008