The following is the text of the Historic Places Canterbury Submission on the Natural and Built Environment Bill Exposure Draft.

Submitter Details
Full Name:Historic Places Canterbury
Contact: Lynne Lochhead

Submission to the Environment Committee Inquiry on the Natural and Built Environments Bill Exposure Draft

Historic Places Canterbury (HPC), an independent regional society affiliated to Historic Places Aotearoa (HPA). HPC is the NZHPT (now Heritage New Zealand) approved body which the Canterbury Branch Committee transitioned to. Our objectives are the protection of heritage, providing local advocacy on heritage and promoting the education of the public in their appreciation of heritage values.

HPC welcomes the opportunity to comment on the exposure draft of the Natural and Built Environments Bill. We note that the exposure draft only deals with a selection of provisions and that others are yet to be drafted. For this reason it is difficult to know how the drafted provisions will relate to the still to be drafted provisions and what impact the full draft might have on views. Nevertheless there are a number of matters which we wish to address in relation to the exposure draft. Given our role as an organization concerned with promoting protection of heritage our comments will largely address the impact of the Bill on managing and protecting cultural heritage in New Zealand.

HPC supports the need for a major reform of resource management law. The existing legislation, despite an emphasis on sustainability, has failed to adequately manage the natural environment, with key environmental indicators getting worse every year. lt has also proven to be insufficiently responsive to major issues such as global warming. Numerous amendments over time have resulted in an Act that is cumbersome and increasingly complex. A complete overhaul is timely.

HPC welcomes the emphasis on pursuing positive outcomes within clearly defined environmental limits and the emphasis on a national planning framework. However we feel concern that despite the name of the Bill, the importance of the built environment is downgraded in this draft and that cultural heritage is significantly downgraded from its status under s. 6 of the RMA as a matter of national importance.

Specific recommendations

Clause 3

Cultural heritage HPC supports the use of cultural heritage rather than historic heritage as a more inclusive term and one that is consistent with the terminology of the revised ICOMOS New Zealand Charter 2010. We note that cl.8 (h) refers to cultural heritage including cultural landscapes but the term cultural landscape is not referred to in cl. 3 definition of cultural heritage. Logically it needs to be included as a replacement subclause (b) (iv)and also to be separately defined in accordance with the definition in the ICOMOS New Zealand Charter. For greater clarity subclauses b (i- iii) should add “and their associated surroundings.” Surroundings should also be separately defined in accordance with the definition of setting in the ICOMOS New Zealand Charter.

Precautionary approach We would argue that threats of irreversible harm apply equally to loss of cultural heritage, and thus the definition should refer to the natural environment and cultural heritage. Development close to a heritage site may threaten its significance, requiring time to assess the nature of the risk and the way, if any, in which it may be mitigated. Currently unidentified heritage assets will inevitably be threatened from time to time by proposed developments. Risk of irreversible loss is particularly likely to occur in relation to previously unrecorded archaeological sites such as potential wāhi tapu sites, the precise location of which are unlikely to be known in advance. We suggest an amendment along the following lines.

precautionary approach is an approach that, in order to protect the natural environment and cultural heritage if there are threats of serious or irreversible harm to the environment, favours taking action to prevent those adverse effects rather than postponing action on the ground that there is a lack of full scientific certainty or full understanding of the cultural heritage significance of a site and any threat to it. 

Built Environment– for consistency of providing definitions on specific types of “environments” include one for the built environment as natural environment currently has a definition.

Add definitions for the following Maori terms used in the document:

• Kawa
• Kaitiakitanga
• Mana
• Mātauranga Maori
• Mauri
• Te Orangao te Taiao
• Te Mana o te Taiao
• Te Mana o te Taiao
• wāhi tapu

For consistency with the HNZPT act we believe the following definitions should be added:

wähi tapu area means land that contains 1 or more wähi tapu

wähi tüpuna means a place important to Mäori for its ancestral significance and associated cultural and traditional values, and a reference to wähi tüpuna includes a reference, as the context requires, to-

1. wähi tipuna:
2. wähi tupuna:
3. wähi tipuna

Clause 5 Purpose of this Act.

The draft bill places the concept of Te Oranga o Te Taiao as the central purpose of the Bill. The concept is not defined in cl. 3 and is used in an open-ended way within cl. 5, with words such as “incorporates” and “includes”. Our understanding is that the concept expresses the intergenerational importance of the well-being of the environment but such a fundamental concept needs to be clearly defined within cl. 3. The critical importance of environmental health and well-being, the interconnectedness of all parts of the environment and the relationship between its health and its capacity to sustain life cannot be doubted. But what of the built environment? It is curious that in a Bill which is intended to deal with the natural and built environment, the term built environment is not defined and it appears nowhere in the purpose section. We recognize that the definition of environment includes built environment “ as the context requires” but such a tangential reference to it is surely not sufficient in the purpose section. Built environment needs a separate definition within cl 3 and it also needs to be directly addressed within the purpose clause.

The specific reference to natural environment in the clause sets up an awkward dichotomy between the use of natural environment and the use of environment which is repeated in a number of places throughout the draft. The purpose clause is too central to the Bill to be allowed to continue in its present form. A redraft is needed which articulates the purpose in relation to the built environment more clearly. We see some merit in the redrafting suggestions of the Environmental Defense Society, but it does not resolve the key problem of where and how the built environment is seen as fitting into the purpose. There remains a further point, that the concept of Te Oranga o te Taiao is defined as including the intrinsic relationship between iwi, hapū and te taiao, but this begs the question of what impact such a definition might have on the relationship of other iwi and non-Māori. Is the clause opening up a potential litigative can of worms?

Clause 6. Te Tiriti o Waitangi HPC supports the strengthening of this provision from “shall take into account” in the RMA to “must give effect to”.

Clause 7 Environmental Limits

The draft Bill rightly places emphasis on setting environmental limits to ensure the maintenance of the life-sustaining capacity of the ecosystem. However, HPC believes that Clause 7 (4) needs to be amended to add a new sub-clause (g) cultural heritage. Although limits for cultural heritage cannot perhaps be set so readily as for biophysical limits, it would a be possible to define quantitative limits based on the carbon costs of replacing heritage buildings versus the carbon benefits of retention. It is also possible to conceive of limits defined in terms of a baseline using the heritage listings/schedules of Heritage New Zealand and district councils. The issue of demolition by neglect could be dealt with by a provision that where there is evidence of deliberate neglect or damage to a cultural heritage asset, the deteriorated state should not be taken into account when making a decision. Limits for cultural heritage are often likely to be qualitative in expression but we note that cl.12 (2) (a) provides that environmental limits can be described qualitatively or quantitatively.

Just as the health of the natural environment is critical to the health and well-being of communities, cultural heritage is a finite asset and there is well documented evidence that it is also vital to our health and wellbeing. See for example https://historicengland.org.uk/content/heritage-counts/pub/2019/heritage-and-society-2019/ For these reasons we believe the concept of limits is applicable to cultural heritage. If this recommendation is accepted clause 1 (b) should be modified to read health and well-being  and in 3 (b) “natural” should be deleted so that it simply refers to “environment”.

Clause 8 Environmental Outcomes

Clause 8 contains a long list of desired environmental outcomes although it is unclear whether there is any hierarchy to this list. It is simply stated that all plans must promote the following outcome. We would suggest that “ promote” is a rather wishy-washy term and it would be better to state “ recognize and provide for”. There is an implicit hierarchy dictated by the fact that some but not all of the outcomes listed are required to be dealt with in the national planning framework

(cl 13). Conflict between outcomes is inevitable but clear national planning frameworks should help to alleviate or resolve some of these.

Clause 8 (f) Add wāhi tapu areas, and wāhi tūpuna subclause for consistency with the Heritage New Zealand Pouhere Taonga Act 2014 and define these terms in cl 3 as already suggested.

Clause 8(g) identifies the environmental outcome of “the mana and mauri of the natural environment are protected and restored;”. We suggest the following amendment:

“the mana and mauri of the natural environment and cultural heritage are protected and restored.” We believe the concepts of mana and mauri can and should also apply to cultural heritage

Clause 8 (h) HPC notes that this sub-clause is the only one that mentions proportionality and introduces the term cultural values. We are unclear whether cultural values is a surrogate for significance and whether the change of terminology has any significance in the mind of the drafters. Most planning concepts are inherently subjective so we feel concern that the perfectly valid notion of proportionality is spoken about only in relation to this outcome. We reiterate the point made at the beginning of this submission, that the draft appears to be significantly downgrading the importance of cultural heritage. The words “through active management that is proportionate to its cultural values” should be struck out so that the focus of the sub-clause is on the outcome, not the manner in which the outcome is achieved.

Clause 8 (k) Although it is important to have well-functioning urban areas, this is surely too limited an aspiration. We should aspire to well-designed, high quality urban environments.

Amend the subclause as follows;

high quality urban areas that are well-designed, well-functioning and responsive to growth and

other changes, including by—

1. enabling a range of economic, social, and cultural activities; and
2. ensuring a resilient urban form with good transport links within and beyond the urban area.

Add a new subclause Amenity values and the quality of the environment are protected and enhanced

While we fully support the need to protect outstanding natural environments, we believe it is important that legislation which is concerned with our built environment should also be concerned to promote the quality of the environment where we spend most of our time, whether that be the urban environment or the working rural environment. The concept of amenity seems to have become a dirty word in New Zealand, tainted by NIMBYism and has been deliberately kept out of the draft because of its supposed subjectivity. This does not make the concept any less important and it is notable that the UK Planning Policy Framework does not shy away from using amenity.

Clause 9 National Planning Framework

HPC is supportive of the requirement for a National Planning Framework which we believe will help to alleviate many of the inconsistencies, uncertainties and costs inherent in the current system, with the proviso that it is essential that there is adequate opportunity for public input into the development of the framework. There is a clear place for national direction which has not been fully utilized under the existing legislation and national templates have an important role to play in reducing costs.

Clause 10 Purpose of the National Planning Framework

We are reassured that the draft recognizes that there may be matters of consistency which are not necessarily desirable in all parts of New Zealand. It would be unfortunate if the drive for a National Planning Framework resulted in a bland uniformity which downgrades the importance of local character and identity and its significance for a sense of place. We recommend that the Select Committee have regard to the manner in which the UK National Planning Policy Framework and the New Leipzig Charter 2020 highlight the importance of the local. At the most fundamental level, people live and work in neighbourhoods not regions. With the shift to regional plans, there is the possibility that this reality will be lost sight of in the drive for national consistency. One matter we are very mindful of is cultural heritage is intrinsically connected to a sense of place, Cultural Heritage is intrinsically local and must be anchored within its context and to the people of the area in which it exists.

Clause 13 Topics that the National Planning Framework must include

Notwithstanding our comments about the importance of the local above, the exclusion of cultural heritage from the topics which the National Planning Framework must include is one of our major concerns about the draft. Issues around the identification and protection of heritage have been the subject of a number of investigations, most recently the Ministry of Culture and Heritage's Strengthening Cultural Heritage Project. The need for national direction has been clearly identified so it seems to us perverse that cultural heritage is excluded from the list of compulsory topics to be covered in the National Planning Framework. A clear national planning framework for cultural heritage is consistent with meeting the government's international obligations with regard to cultural heritage and it is certain that without a clear national policy framework, New Zealand will face difficulty in achieving Unesco World Heritage Status for built heritage sites. (It is significant that our sole cultural heritage area, Tongarairo National Park, is a dual heritage area, which has the protection of the National Parks Act).

At present, there are clear inconsistencies between the two main acts dealing with cultural heritage, the RMA and HNZPT Act, as well as further possible conflicts with the Building Act. There are confusing and conflicting responsibilities for managing cultural heritage with District Councils, Regional Councils, DOC and HNZPT all involved in different aspects. Formulation of a National Policy Framework on Cultural Heritage would provide an impetus for resolving inconsistencies and clarifying lines of responsibility, particularly in the highly confusing and unsatisfactory situations where consent might be required from more than one agency.

Inclusion of Cultural Heritage in the National Planning Framework would also provide greater assurance that cultural heritage will be adequately covered in Natural and Built Environment Plans. Although Clause 22 ( c ) requires that plans must provide for the matters promoted in cl. 8 there is a proviso that this is subject to any direction given in the National Planning Framework. This may simply be stating that clause 8 outcomes must be provided for in the manner directed by the National Planning Framework. However, there is sufficient ambiguity here to suggest that the clause may be providing for the possibility that cl. 8 outcomes which are not specifically covered in the National Planning Framework, might be overridden by the contents of a the National Planning Framework.

24 (2) (a) Considerations relevant to planning committee decisions

Consistently with the view we have already expressed above in relation to environmental limits, we believe that 24 (2) (c) needs to be amended in recognition of the fact that cultural heritage is a irreplaceable resource. Given time, natural environments are capable of recovering but destruction of cultural heritage is irreversible.

23 Planning Committees

With the lack of information about how planning committees will work, but with the inevitably that in order to avoid unwieldiness, the number of representatives from each district within a region is likely to be very limited, it is difficult to anticipate how this new structure will work in practice. What is certain is that public participation is vital to the successful development of plans as it is vital that robust and innovative mechanisms are developed to ensure that public engagement is possible from regions as a whole down to local neighbourhoods.

Conclusion

There is one further matter which falls somewhere between this Bill and the yet to be released Climate Change Adaptation Bill, which we wish to draw to the attention of the Select Committee. It is very clear that cultural heritage in its built form can make a significant contribution to carbon reduction. Studies here and overseas have demonstrated the importance of embodied carbon, particularly whole-of-life embodied carbon.

The Building Research Association of New Zealand (BRANZ) notes that:

“The construction and demolition industry is one of the largest waste-producing industries in New Zealand. Construction and demolition waste may represent up to 50% of all waste generated in New Zealand, with 20% of the waste going to landfill and 80% going to cleanfill sites.

Disposing of these materials to landfill means that, as well as not being recovered for further use, they are contributing to adverse environmental effects. These include harmful chemicals leaching into soil and waterways, plus methane emissions into the air, as the waste breaks down and rots.”

Given the very small percentage of our built environment that is listed heritage, it is clear that the contribution preventing demolition of those buildings would make is quite small, though not to be discounted. However, the large quantity of unlisted existing buildings, many of which contribute significantly to our sense of place and cultural identity, could make a major contribution to reducing our carbon footprint. It is evident that the embodied carbon contribution of our existing stock of buildings has been overlooked in the debates which have led to this proposed revamp of resource management legislation. The desire to protect character and local identity has been viewed as an obstacle to development rather than being seen as an opportunity to save significant carbon, (especially if linked to incentives to retrofit with effective energy saving measures). If we are really serious about reducing carbon emissions we should be looking to ways to encourage retention, repair, maintenance and retrofitting of buildings rather than their demolition and replacement. This way of looking at our built heritage would achieve both carbon-saving outcomes and cultural heritage protection outcomes.

One clear reason behind the apparent aversion to protecting character is the need for more houses. However it seems from a recent report on Stuff https://www.stuff.co.nz/life-style/homed/real-estate/125927856/is-there-really-a-housing-supply-shortage that the shortage is not absolute but a result of fewer properties being available on the market. That being the case it suggests that different policy instruments could be used to address the problem rather than an approach which puts the quality and character of many of our urban environments at risk. Many existing buildings could make a real contribution to the goal of providing more housing, through the adaptation and repurposing of building types which are no longer used for the purpose for which they were designed, for example central-city warehouses, excess office buildings and even unused schools and factories. The only real limitation to their reuse and retrofitting to modern carbon efficient standards is lack of imagination and the misguided belief that seems to inform our Urban Density Strategy, that highrise buildings are essential to solve urban density issues and prevent carbon inefficient and land hungry sprawl. Reducing sprawl and the inefficient extension of infrastructure, as well as protecting highly productive agricultural land is vital, but the reuse of existing buildings, alongside creative and well designed medium density developments on brownfield sites within existing urban boundaries offer the possibilities of more place-sensitive solutions.

Thank you for the opportunity to make a submission. We would like to make an oral submission.