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BEFORE THE CHRISTCHURCH REPLACEMENT DISTRICT PLAN HEARINGS PANEL
IN THE MATTER of the Resource Management Act 1991 and the Canterbury Earthquake (Christchurch Replacement District Plan) Order 2014
AND
IN THE MATTER of the Natural and Cultural Heritage Stage 3 Proposal
CLOSING LEGAL SUBMISSIONS ON BEHALF OF CHRISTCHURCH CITY COUNCIL
9.3 HISTORIC HERITAGE
17 June 2016
Barristers & Solicitors M G Conway / C G Coyle Telephone: +64-4-499 4599 Facsimile: +64-4-472 6986 Email: [email protected] / [email protected] PO Box 2402 WELLINGTON
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TABLE OF CONTENTS
1. INTRODUCTION ...... 1 2. KEY CHANGES TO PROPOSAL SINCE START OF HEARINGS ...... 4 3. DEVELOPMENT OF THE PROPOSAL ...... 8 4. OBJECTIVE ...... 11 5. POLICIES ...... 12 6. RULES ...... 26 7. MATTERS OF CONTROL AND MATTERS OF DISCRETION ...... 49 8. APPENDICES ...... 52 9. DEFINITIONS ...... 55 10. HERITAGE PROFESSIONAL ...... 60 11. STATEMENTS OF SIGNIFICANCE ...... 66 12. HERITAGE INTERIORS ...... 68 13. LANDOWNER ENGAGEMENT AND BUY-IN ...... 72 14. FINANCIAL BURDEN AND PART 2 RMA MATTERS ...... 72 15. BESPOKE REGIME FOR CHURCHES ...... 76 16. APPROACH OF LISTING BUILDINGS AS A WHOLE ...... 76 17. COUNCIL NON-REGULATORY METHODS ...... 77 18. SITE SPECIFIC REQUESTS ...... 78 The Crossings Development / Former Beath’s Department Store ...... 78 High Street Triangles ...... 79 Hagley Park ...... 80 Akaroa Heritage Area ...... 83 Arts Centre Registry Office ...... 84 St Barnabas Parish Administration Building ...... 89 Public Trust – 152 Oxford Terrace ...... 90 19 Exeter Street ...... 97 104 Glandovey Road ...... 98 Rehutai - 427 Menzies Bay Road ...... 98 Slab Cottage ...... 99 Lyttelton Heritage Area ...... 99 3 Rue Benoit, Akaroa ...... 100 Holy Trinity Avonside Lychgate ...... 100 St Peters Church Lychgate ...... 101 Banks Peninsula Presbyterian Church Akaroa ...... 101 College House – 100 Waimairi Road ...... 102 81 Grehan Valley Road ...... 103 Bishopspark Chapel...... 103 32 Armagh Street – Christ's College ...... 104
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35 Knowles Street ...... 104 Waltham Park Memorial Gates...... 105 St Marys Pro Cathedral, Aberdeen Cottages, Manchester Street Manor Cottages and Victoria Square ...... 105 St Saviours Church at Holy Trinity ...... 106 19. CONCLUSION ...... 106
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MAY IT PLEASE THE PANEL:
1. INTRODUCTION
1.1 These closing legal submissions are filed on behalf of the Christchurch City Council (Council) and relate to Topic 9.3 of the Chapter 9: Natural and Cultural Heritage (Stage 3) Proposal (Proposal).
1.2 The protection of historic heritage from inappropriate subdivision, use and development is a matter of national importance under section 6(f) of the Resource Management Act (RMA). Recognising and providing for this protection presents particular challenges in post-earthquake Christchurch, and the Council has sought to do so in a way that achieves appropriate protection while enabling heritage building owners to continue to use and adapt their buildings.1 The fact that there are submissions seeking stricter protection and submissions seeking more permissive rules is indicative of the challenge in striking this balance.
1.3 After the conclusion of the hearing, the Council filed a memorandum on 15 February 2016 with a proposal for further drafting and mediation in response to matters raised through the hearing. The Panel issued a minute on 22 February 2016 setting out preliminary comments on the provisions and site specific matters, and confirmed directions for mediation.
1.4 Facilitated mediation took place on 21, 22 and 30 March 2016. The mediation sessions allocated a significant amount of time to address the matters raised in the Panel’s minute. These mediation sessions were constructive and have assisted in resolving a range of drafting and site specific matters. The Council filed its updated revised proposal on 20 April 2016 reflecting its position following the conclusion of mediation.
1.5 Since the resumed hearing on 9 and 10 May 2016 and consideration of submitter closing statements, the Council has made further
1 See for example, Fiona Wykes at Transcript, 23 January 2016 (Day 6), page 847.
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refinements to the provisions, as reflected in the revised proposal attached as Appendix A.
1.6 These closing legal submissions:
(a) outline the key changes made to the proposal since the hearing;
(b) explain the approach taken to identifying and protecting historic heritage in the proposed Replacement District Plan (pRDP) with reference to the objective, policies, rules and schedules and submitter comments on these provisions;
(c) respond to the following additional matters in relation to the proposal, raised at the hearing or in closing legal submissions:
(i) the qualifications to be a heritage professional; (ii) the approach taken in preparing statements of significance; (iii) the updated approach to heritage interiors; (iv) matters raised by the Panel; (v) the approach of listing buildings as a whole; (vi) Council non-regulatory methods; and (vii) site specific requests.
1.7 The following documents are attached:
(a) Appendix A – an updated marked-up version of the revised proposal incorporating changes made following consideration of submitters' closings;
(b) Appendix B – an updated clean version of the revised proposal incorporating changes made following consideration of submitters' closings;
(c) Appendix C – an updated section 32 report;
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(d) Appendix D – the outline of rules in other chapters which trigger the Matters of Discretion for the Akaroa Heritage Area (HA1);
(e) Appendix E – Planning Maps (filed separately due to their size);
(f) Appendix F – index of aerial maps and index of Statements of Significance;
(g) Appendix G – a table setting out evidence references and outcome in relation to site specific scheduling requests;
(h) Appendix H – Akaroa Heritage Area Map showing Council's suggested addition; and
(i) Appendix I – an updated Statement of Significance for 104 Glandovey Road;
(j) Appendix J – an updated Statement of Significance for St Cuthberts; and
(k) Appendix K – updated Statements of Significance for Taylors Mistake baches.
1.8 Leave is respectfully sought to file the updated accept/reject table (Appendix L) by 5pm on Wednesday 22 June 2016, in order to enable it to be checked and updated to reflect the latest amendments to the revised proposal.
1.9 In the course of preparing the compiled heritage aerial maps for including with these closing submissions, the Council has identified that the maps that have been updated through the course of the hearing process need to be reinserted into the main bundle of maps and the order checked. This would not alter the substantive detail of the maps themselves, but will ensure ease of implementing the consequential hyperlinking between the aerial maps, schedule and property search function. This task is underway and requires careful
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attention to detail, cross checking and review to ensure the heritage aerial maps and schedules are correct. Rather than rushing this purely technical piece of work, Council requests that additional time be given to provide the re-ordered aerial maps. This work can be completed by Friday 24 June.
1.10 In light of the above, the Council respectfully requests a direction from the Panel that the Council prepare and provide to the Panel by Friday 24 June 2016 a reordered set of heritage aerial maps.
2. KEY CHANGES TO PROPOSAL SINCE START OF HEARINGS
2.1 Key changes that have been made to the proposal since the hearing commenced in January hearing include:
(a) Financial and engineering factors relating to the scheduling and management of heritage items has been directly woven into the objective, and into policies 9.3.2.1, 9.3.2.3 and 9.3.2.8.
(b) Policy 9.3.2.1 now provides further policy direction on how heritage items are assessed for significance and high significance, and in addition that interiors are only scheduled where they are specifically identified.
(c) Policy 9.3.2.2 - Heritage areas, has been amended, together with matters of discretion introduced to reflect the introduction of a heritage area overlay for Akaroa.
(d) A new policy 9.3.2.3 – Management of Significant Historic Heritage, has been introduced to replace policy 9.3.2.5. The policy retains a set of principles, with these being expanded and amended in focus. In addition to incorporating engineering and financial factors, the policy directs flexibility in approach to heritage management, as well as works needing to be undertaken in a manner sensitive to the heritage values of the heritage item. A third part of the policy provides policy direction for heritage areas.
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(e) Policy 9.3.2.8 – demolition (previously 9.3.2.9) has been amended to replace ‘exceptional circumstances’ with alternate wording. Changes have been made to the set of matters within the policy, including removals / additions, such as a new clauses addressing costs, and level of significance of the heritage item.
(f) The standard requiring consultation has been removed from Rule P8.
(g) New rules are included for ‘temporary lifting’, and ‘temporary moving’ of damaged heritage items. New rule P14 enables some types of alterations as permitted activities.
(h) In the previous revised proposal, Rules P1, P2 and P3 were amended to provide scope for non-compliance with standards where the works were under the design and/or supervision by a heritage professional. These changes have now been fully integrated with ‘heritage professional’ having become a defined term, and some adjustments have been made to the standards.
(i) Rule P3 (heritage investigative and temporary works) provides permitted activity status for both Group 1 and Group 2 heritage items (previously it was controlled for Group 1).
(j) A permitted activity / certification pathway for ‘heritage upgrade works’ and ‘reconstruction and restoration’ connected with completion of a ‘heritage works plan’ has been fully integrated into the proposal. This includes (as for the above point) ‘heritage professional’ being a defined term. A ‘heritage works plan’ has been introduced at Appendix 9.3.6.8, setting out the matters to be met to undertake the certification.
(k) The use of a certification pathway for confirming whether fabric is ‘non-heritage fabric’ has been introduced. This
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includes a new Appendix 9.3.6.9 Certification of Non- Heritage fabric.
(l) A number of the definitions have been amended, for example, the definition of ‘heritage setting’ now includes the words ‘integral to’ (as opposed to ‘contributes to’).
(m) Associated changes have been made to the provisions to reflect a portion of the Schedule now setting out protected interiors, with the main addition being a set of appendices which describe the scheduled heritage fabric for those heritage items.
2.2 In relation to site specific requests, Appendix G to these closing submissions is a table setting out evidence references and the outcome of evidence and discussions in relation to site specific scheduling requests. It includes an indication of where the Council understands the submitter's request has been resolved. The Council notes in particular that agreement has been reached with submitters in relation to the following sites:
(a) Lyttelton Port Company Limited – agreement was reached in relation to the extent of the Battery Point listing and the heritage setting for Lyttelton Port dry dock and a signal box at 1 Norwich Quay, as confirmed in the joint memorandum dated 2 February 2016.
(b) Taylors Mistake and Boulder Bay baches – agreement was reached with submitters to schedule these baches with the exception of bach 4.2
(c) 159 Manchester Street – the Council has agreed with the building owner's submission (Boltbox) not to add this building to the schedule.3
2 Transcript, 22 January 2016 (Day 5) at pages 846, 858 and 3 February 2016 (Day 8) at page 1324. 3 Transcript, 3 February 2016 (Day 8) at page 1323.
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(d) 25 Helmores Lane – agreement was reached with Mr and Mrs Gaba to remove the listing for this building in mediation held on 21 March.4
(e) Elmwood Park – agreement was reached at mediation on 30 March 2016 to exclude the four sports buildings from the heritage listing and retain the car park within the heritage listing5 with an exemption from the heritage rules.6
(f) 16 Aubrey Street, Akaroa – agreement was reached with respect to this site and the submission of Mrs Lyon at mediation on 30 March 2016 to alter the heritage setting so that the setting boundary would be identified by a concrete retaining wall. The interior of this dwelling is not currently protected under the revised proposal.
(g) St Luke’s Bell Tower, St Faith's Church, St James's Church, St Cuthbert's Church and Former Vicarage, St John the Evangelist – agreement was reached to retain these listings with revised settings.
(h) St Augustine's Church Cashmere – agreement was reached to exclude the basement of this building from the listing.
(i) Canterbury Museum – agreement has been reached in relation to a revised extent of this listing.7
(j) 6 Peartree Lane – agreement was reached with Ms Wenlock at mediation on 30 March 2016 to a revised setting.
(k) Spreydon Coronation Hall and Barrington Park Memorial Gates – agreement was reached with the Cashmere
4 Mediation report, 21, 22, 30 March 2016, at page 3. See also Supplementary Legal Submissions on behalf of Greg & Mia Gaba, The Roman Catholic Bishop of the Diocese of Christchurch, Church Property Trustees and Tailorspace Property Limited, dated 6 May 2016, at paragraph [5]. 5 The extent of the park as outlined in heritage Aerial Map 672 remains unaltered as this is the area of contributing heritage fabric and values. The carpark area is included in the heritage outline as this contains trees and land which are an integral part of the heritage significance of the park. 6 In addition, Ms Ohs provided a revised statement of significance in her Evidence in Chief (Appendix D) which addressed the factual errors pointed out in the Elmwood Club’s submission. 7 Revised proposal dated 20 April 2016, confirmed as agreed by the Canterbury Museum Trust Board's 25 May 2016 closing legal submissions.
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Residents' Association to include these items in the schedule.8
3. DEVELOPMENT OF THE PROPOSAL
3.1 The process that was followed in developing this proposal was outlined in Ms Beaumont's evidence and in the joint statement of Ms Beaumont and Mr Matheson.
3.2 As outlined in Ms Beaumont's evidence (paragraphs 4.5 and 5.3), the "objective of the [Ministry for Culture and Heritage's] Heritage Recovery Programme … is to achieve an appropriate balance between retaining heritage buildings and places as an important part of greater Christchurch’s identity, and the need for wider earthquake recovery to proceed quickly and within available funding." The Council has consciously sought to strike an appropriate balance between these matters in its development of the proposal and in changes made in response to submissions.
3.3 Mr Matheson and Ms Beaumont described the methodology for the identification and assessment of heritage places,9 and explained that the methodology "has been guided by the Council's adopted policy, the statutory planning framework, best practice heritage conservation and the particular situation in Christchurch following the earthquakes."10
3.4 Senior staff at the Council facilitated engagement with statutory partners and key stakeholders, and took on board feedback received through that process. Input was received from a Collaborative Advisory Group and a Technical Advisory Group, an external reviewer, Councillors and the Ministers, before being approved by the Council for notification.11
3.5 The Council was well aware that heritage buildings had sustained damage in the earthquakes, and this is reflected in the section 32
8 Supplementary evidence of Amanda Ohs, dated 4 April 2016. 9 Joint statement of Alan Matheson and Helen Beaumont, dated 2 February 2016 at paragraph [4.9] and part 5. 10 Joint statement of Alan Matheson and Helen Beaumont, dated 2 February 2016 at paragraph [3.2]. 11 Joint statement of Alan Matheson and Helen Beaumont, dated 2 February 2016 at parts 4 and 5.
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report. For example, in the course of discussing Best Practice Heritage Conservation Management and Ongoing Use, the report notes:12
The ICOMOS New Zealand Charter 2010 is restricted in its scope with heritage conservation being its sole focus. The RMA context of sustainable management and the unique situation for heritage buildings and heritage building owners in the post-earthquake period require a broader and more pragmatic approach that enables recovery.
3.6 The Council’s section 32 report did not involve investigation and reporting on the particular extent of damage of each scheduled building, and the engineering possibilities and cost implications for each of those buildings, due to the scale of this task (over 600 heritage items) and the time available for preparation of the proposal. However, where information was held about the condition of heritage buildings, it was factored into the heritage assessment.13 In addition, the Council commissioned an economic assessment of the value of heritage and the economic impact of the proposal (Appendix 10 of the section 32 report).
3.7 Further, as was explained by Ms Rachlin, information provided as part of the submission and hearing process has been used to further inform the planning response.14 This has included commissioning of economic evidence by Dr Fairgray, valuation evidence by Mr Blake, and the review of engineering and cost information and preparation of evidence commenting on that information. Consideration of this information has resulted in amendments to the proposal in some instances (eg delisting of 217 Armagh Street,15 48a Fendalton Road,16 and the Former Cocksfoot Shed at 78 Starvation Gully Road17).
3.8 An updated section 32 report has been filed along with these closing submissions. It reflects the substantial changes that have been made to the provisions since the preparation of the initial section 32 report.
12 Section 32 report, Appendix 4, at page 27. 13 Rebuttal evidence of Amanda Ohs dated 18 December 2015 at paragraphs [5.9] and [5.27]. 14 Transcript, 2 February 2016 (Day 7) at page 963. 15 Evidence in chief of Mr Andrew Marriott, dated 3 December 2015 at paragraph [4.29]. 16 Rebuttal evidence of Jackie Gillies, dated 18 December 2015 at paragraph [4.3]. 17 Evidence in chief of Mr Andrew Marriott, dated 3 December 2015 at paragraph [4.44].
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3.9 The encouragement of protection as a first preference in the provisions is consistent with section 6(f) and Objective 13.2.1,18 Objective 13.2.3,19 policy 13.3.1 and associated methods20 of the Canterbury Regional Policy Statement (CRPS), and an approach that did not do so would fail to give effect to these higher order provisions.
3.10 Likewise, the revised proposal’s encouragement of repair, rebuilding, upgrading, seismic strengthening and adaptive re-use of historic buildings gives effect to policy 13.3.4 of the CRPS,21 which in turn reflects the terminology used in section 5. Policy 13.3.4 is significant, because it confirms that the repair, rebuilding, upgrading, seismic strengthening and adaptive re-use of historic buildings are ways of recognising and providing for the social, economic and cultural well- being of people and communities.
3.11 Policy 9.3.2.3 provides appropriate recognition of matters such as the condition of buildings and the need for their repair, the possibility that engineering and financial factors could present a challenge to that process, and the need for a flexible approach to heritage management, while still ensuring that the heritage values are protected and conserved from inappropriate subdivision, use and development. In summary, this policy recognises that the scheduling of a heritage item in the pRDP does not prevent its repair or adaptive reuse; rather it encourages it. Likewise, policy 9.3.2.5 requires provision for the appropriate ongoing use and adaptive reuse of heritage items, and policy 9.3.2.8 recognises that there will be circumstances when demolition may be appropriate.
18 Objective 13.2.1 states “Identification and protection of significant historic heritage items, places and areas, and their particular values that contribute to Canterbury’s distinctive character and sense of identity from inappropriate subdivision, use and development.” 19 Objective 13.2.3 states “The importance of enabling the repair, reconstruction, seismic strengthening, and ongoing conservation and maintenance of historic heritage and the economic costs associated with these matters is recognised.” 20 Policy 13.3.1 is “To recognise and provide for the protection of the historic and cultural heritage resource of the region from inappropriate subdivision, use and development.”
Method 2 states that Territorial Authorities will “Set out objectives and policies, and may include methods that provide for the recognition and protection of significant historic heritage items, places or areas, outside of the coastal marine area, that meet the criteria set out in policy 13.3.1 (1) – (4).”
Method 3 states that Territorial Authorities should “Provide for the recognition and protection of historic heritage items, places or areas that are significant or important within their communities.” 21 Policy 13.3.4 states “Recognise and provide for the social, economic and cultural well-being of people and communities by enabling appropriate repair, rebuilding, upgrading, seismic strengthening and adaptive re-use of historic buildings and their surrounds in a manner that is sensitive to their historic values.”
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3.12 The rules in turn provide a resource consent pathway to test whether a particular proposal represents appropriate use and development. It is submitted that such an approach is consistent with Part 2 and the directions in the CRPS.
4. OBJECTIVE
9.3.1 – Historic Heritage
4.1 Following consideration of the Panel’s 22 February 2016 minute and discussions with submitters in mediation, the Council has made substantial changes to the objective for this chapter.
4.2 In particular, the Council has sought to increase alignment between the objective and the directions in Objectives 13.2.1 and 13.2.3 and Policies 13.3.1 and 13.3.4 of the CRPS.
4.3 To enable a suitable degree of flexibility in the policies and rules about how historic heritage is managed, the objective now requires the maintenance of the contribution that historic heritage makes to the district's character and identity, rather than the maintenance of historic heritage per se. The intent of this change is to recognise that historic heritage does not necessarily have to be maintained or preserved in its present state in order to continue to make a valuable contribution to the district's character and identity.
4.4 The objective now requires protection and conservation, but only of "significant" historic heritage, providing for consistency with the remainder of the chapter and recognising the necessary judgement about what historic heritage will be protected.
4.5 In line with changes made to policies, the objective also expressly takes into account the condition of buildings and the effect of financial and engineering factors on the ability to retain, restore and continue using the heritage item. Support for the changes to this effect has
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been expressed by submitters who were involved in the drafting mediations.22
4.6 The Crown and Church Property Trustees have expressed their agreement with and support for the objective as drafted.23 The Council did not receive any further comments on the objective. The Council has made a minor change, and recommended that the factors be listed as "engineering and financial" as opposed to "financial and engineering" to remain consistent with the order in Policies 9.3.2.1 and 9.3.2.3.
4.7 In light of the changes made and the alignment between the objective and the relevant CRPS directions, the Council submits that Objective 9.3.1 in its modified form is the most appropriate way to achieve the purpose of the RMA in relation to historic heritage.
5. POLICIES
9.3.2.1 – Identification and Assessment of Historic Heritage Places for Scheduling in the District Plan
5.1 Policy 9.3.2.1 is in four parts:
(a) part (a) provides the criteria for assessing a heritage item’s significance;
(b) part (b) provides the basis for assessing whether the item is significant or of high significance;
(c) part (c) provides for the scheduling of significant historic heritage items; and
(d) part (d) (added in the 20 April 2016 revised proposal) provides for the scheduling of the interiors of heritage items.
22 Supplementary Legal Submissions on behalf of Greg & Mia Gaba, The Roman Catholic Bishop of the Diocese of Christchurch, Church Property Trustees and Tailorspace Property Limited, dated 6 May 2016, at paragraph [12]. 23 Closing submissions for the Crown, dated 10 December 2016 at page 16; Closing submissions for Church Property Trustees, dated 10 December 2016 at paragraph [8].
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5.2 The Panel’s 22 February minute supported the Council’s suggestion of expanding this policy to provide more explanatory detail about what is entailed in the assessment methodology for listing, drawing on the material that is already in the section 32 report.
5.3 Accordingly, the Council has amended parts (a) and (b), providing further detail about what the individual values that are considered as part of the heritage assessment (a) and setting out more clearly the distinction between significant and high significance heritage items and how a categorisation decision is reached. The Council submits that these changes improve the alignment of the policy with the Statement of Expectations at (b), in relation to having objectives and policies that clearly state the outcomes intended for the Christchurch district and at (i), which states the pRDP must use clear, concise language and be easy to use.
5.4 In terms of the matters set out in paragraphs 26 - 27 of the Panel’s minute, the Council considers the amendments made to this policy better reflect the distinction between assessment, identification and protection of heritage items. In particular, the amendments to policy 9.3.2.1(c) now:
(a) make it clear at (i) that heritage items will only be scheduled where they meet the thresholds for significance (which was the intent of the existing policy and the way it had been applied); and
(b) recognise at (ii) and (iii) that engineering or financial factors may make it unreasonable to retain or reinstate the damaged item in a way that retains the heritage significance, and that if this is the case, then the item will not be scheduled.
5.5 Policy 9.3.2.1(c)(i) and (ii) have been added to expressly identify that a value judgement is needed when determining whether scheduling of a particular heritage item is appropriate. Such value judgements were already signalled in the policies about ongoing use of heritage items and demolition of heritage items, and provided for in the rules,
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but had not been signalled in the policies about identification of significant heritage items. This has now been rectified. As noted earlier, and in recognition of information about the matters that are now identified in policy 9.3.2.1(c)(i) and (ii), properties such as 48a Fendalton Road, 217 Armagh Street, the Cocksfoot Shed at Pigeon Bay, and the part of the Public Trust Building behind the façade have been removed from the schedule.
5.6 The Council also notes that it has moved away from use of the term “economic viability”24 in this chapter in light of the disagreements between experts about what it means and the challenges of applying that concept to non-commercial buildings such as dwellings and churches. Consistent with that approach, it has chosen to refer in this policy to financial and engineering factors, as it considers these terms will be more readily understandable to users of the pRDP. The Council submits that it is not necessary to define these terms further now that the reference to “viability” has been removed, and does not consider it appropriate to seek to identify a particular financial or technical threshold over which (iii) would be triggered. It is more important, in the Council’s submission, that the policy identifies financial and engineering matters, such as the condition of buildings, as being relevant to the value judgement about scheduling.
5.7 The Panel has enquired whether certification on matters as to feasibility/viability would be appropriate as a trigger to release a listed item from the usual Group 1 and 2 protection rules and thereby alter activity classification.25 The Council submits that such an approach would create uncertainty and potentially issues of validity, as well as compromising the protection sought by section 6(f) and the CRPS. This is because such an approach would effectively involve a delegation, to a person engaged by a building owner, of the decision about whether the rules should apply to that building. It is not considered appropriate to delegate this decision on such a significant matter. In any event, the Council submits that, with the removal of references to economic viability from the provisions and their replacement with references to financial and engineering factors, a
24 Panel's Minute, dated 22 February 2016 at paragraph [36]. 25 Panel's Minute, dated 22 February 2016 at paragraph [37].
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certification pathway to determine what is feasible or viable is not required.
5.8 The Panel’s minute also addressed the level of protection provided to heritage settings, noting the bearing this can have on a landowner's capacity to adaptively reuse their property.26 The Council received a large number of submissions on settings and notes that many of these were resolved by adjusting the extent of the setting. Further, the rules for settings are limited, with a focus solely on new buildings, temporary structures for events, and signs. The Council submits that whilst new buildings can be carefully located in heritage settings, there is a significant risk to the heritage values of the heritage setting and the heritage item, if this is not undertaken appropriately, hence the need for control of these activities.27
5.9 Policy 9.3.2.1(d) has been added following the March 2016 mediations, and provides that interiors will only be protected where they are clearly identified in the schedule. The management of heritage interiors is discussed further in part 12 of these submissions.
5.10 Ms Lyon's closing submissions sought additional policy guidance about which interiors are to be scheduled through a future process.28 The Council has included additional wording to clause (d) to clarify that interior fabric will be scheduled only to the extent that it contributes to the significance of the item. The Council submits that no further qualifiers are required at present, because a plan change will be required in order to schedule and protect additional interior heritage fabric, and that will provide an opportunity for input by landowners into consideration of interior scheduling and any associated policy wording amendments. The Council submits it would be better to address Ms Lyon's concern in a more comprehensive way through that future process.
5.11 At paragraphs [41] – [42] of its minute, the Panel queried whether notified policy 9.3.2.4 (now 9.3.2.2 as discussed below) could be expanded to address how future assessment and identification of
26 Panel's Minute, dated 22 February 2016 at paragraph [40]. 27 Evidence in chief of Caroline Rachlin, dated 18 December 2015 at paragraph [13.36]. 28 Closing submissions of Rosemary Lyon, dated 10 June 2016 at paragraph [8].
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heritage items and settings will be undertaken. It is submitted that the revised policies, including 9.3.2.1 and 9.3.2.2, will apply to future assessments and that separate “future assessment” policies are not needed. The previous policy 9.3.2.4 has therefore been deleted.
5.12 The Crown considers that the descriptions in (a) are too broad and do not provide a clear understanding of the policy focus, in particular without identification of themes that the values relate to.29 However, those descriptions are consistent with the way in which the heritage assessment has been carried out and it is submitted that they have enabled sufficient clarity through that process.
5.13 The Crown also submits that (b) should incorporate consideration of rarity and representativeness. Those matters are already inherent as qualifiers within the listed matters and the Council submits that this change is not necessary.
5.14 The Council has considered the minor changes the Crown has suggested to (c) and (d), and aside from the amendment to (d) noted above, submits that these are not necessary and are largely matters of drafting preference.
9.3.2.2 – Heritage Areas
5.15 In the notified proposal, no heritage areas were identified and scheduled, and policy 9.3.2.4 set out the manner in which the Council would undertake future assessments of historic heritage areas and develop a framework for their protection, including through scheduling in the pRDP and through non-regulatory methods. In conjunction with the recommended inclusion of HA1 (discussed below at 18.1), the Council has replaced this policy with policy 9.3.2.2, which provides for the identification and scheduling of heritage areas.
5.16 Policy 9.3.2.2 refers back to policy 9.3.2.1 in relation to the criteria for assessing the significance of groups of related historic places, and directs consideration in (a)(ii) of "whether the area is a
29 Closing submissions for the Crown, dated 10 January 2016 at pages 18 – 21.
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comprehensive, collective and integrated place". The wording of this policy, including (a)(ii), arose from mediation in March 2016.
5.17 As discussed later in these submissions, the heritage area relies on the underlying zone rule triggers for resource consent, rather than introducing additional consent triggers by virtue of an area being a heritage area. If those underlying rules are triggered, additional matters of discretion in Chapter 9 apply.
5.18 No submitter closings have sought changes to this policy.
9.3.2.3 – Management of Significant Historic Heritage
5.19 The previous policy 9.3.2.2 Protection of Significant Historic Heritage – Heritage Items and Heritage settings has been deleted and replaced with new policy 9.3.2.3, which sets out more detail about the way in which the pRDP manages effects on scheduled heritage items, heritage settings and heritage areas.
5.20 This approach was signalled in the Council's 15 February 2016 memorandum30 and commented on in the Panel’s minute,31 which referred to the CRPS directions and indicated that the new policy should be directed at enabling and facilitating the repair, rebuilding, upgrading, seismic strengthening, ongoing maintenance and adaptive re-use of heritage buildings and their settings to enable the maintenance of Objective 9.3.1 Historic Heritage. At paragraph 45 the Panel outlined what it considered the provision should encompass.
5.21 The Council has considered the Panel’s comments and developed policy 9.3.2.3. As invited by the Panel, the new policy goes further than had been signalled in the Council’s 15 February memorandum, and:
(a) Sets out the way in which effects of subdivision, use and development on heritage items, heritage settings and
30 Memorandum of Counsel on behalf of Christchurch City Council, dated 15 February 2016 at paragraph [5(a)]. 31 At paragraphs [43] – [45].
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heritage areas should be managed. In particular, (a) requires protection and conservation of heritage values from inappropriate (rather than all32) subdivision, use and development. It also expressly acknowledges ongoing use and adaptive reuse in a heritage-sensitive manner, recognises engineering and financial factors, and recognises a flexible approach to heritage management;
(b) Lists principles applicable to any works to heritage items and heritage settings, which build upon and support the matters set out in (a); and
(c) In relation to heritage areas, includes a requirement to manage land use and subdivision in a way that avoids significant adverse effects on heritage values and enables development that is compatible with the heritage values.
5.22 The protection requirement in policy 9.3.2.3(a) is consistent with the CRPS at Issue 13.1.1, which notes that inappropriate use, development or subdivision can lead to a loss or degradation of historic heritage values that make a significant contribution to a regional sense of identity. Objective 13.2.1 in turn requires the identification and protection of significant heritage items, places and areas, and their particular values that contribute to Canterbury’s distinctive character and sense of identity from inappropriate subdivision, use and development. This need for protection was also recognised in the Panel’s minute at paragraph 45.
5.23 The acknowledgement of ongoing use and adaptive reuse in a heritage-sensitive manner also aligns with policy 13.3.4 of the CRPS. The CRPS explains that the ongoing use, development and protection historic heritage needs to be recognised and provided for in such a way that enables appropriate economic and adaptive use of historic heritage, reducing loss and degradation of heritage values that make a significant contribution to a regional sense of identity.33
32 CRPS Objective 13.2.1 likewise focuses on protection from inappropriate subdivision, use and development. 33 Explanation to Issue 13.1.1, CRPS Chapter 13, at page 148.
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5.24 The Panel suggested the policy should address the degree of appropriate protection signalled by the provisions, including using the phrase "sensitive to their historic value" instead of absolute protection or maintenance of identified heritage values. The Council has incorporated this suggestion in policy 9.3.2.3(a)(ii) and (iii), and (b) (viii). This provides for further flexibility for landowners in the management of their heritage items.
5.25 Policy 9.3.2.3(b) lists principles that any works to heritage items and settings should be in accordance with. It replaces policy 9.3.2.5, which required these works to follow best practice heritage conservation management and heritage principles, and set out key principles. The Panel expressed concern about the potential for uncertainty about what “best practice” means,34 and indicated a preference for the policy itself to list the key principles. Policy 9.3.2.3(b) retains and builds upon the principles that were set out in policy 9.3.2.5, and no longer refers to “best practice”. The Council submits this list encompasses the appropriate principles.
5.26 The Panel’s minute at paragraph 49 sought recognition of the context of recovery from earthquake damage, and the need for ongoing adaptive reuse. The Council submits that:
(a) Recovery from earthquake damage is clearly a relevant part of the context for works that might be considered under this policy, and this context is reflected in policy 9.3.2.5, which seeks to provide for repairs, restoration and reconstruction of heritage items. It is also reflected in policy 9.3.2.8, which identifies matters relevant to the question of whether heritage items can be retained. However, it is not a best practice heritage principle, hence the choice to recognise it through other policies instead of in policy 9.3.2.3(b). In addition, the relevance and provision is already covered in policy 9.3.2.3 through part (a) of the policy.
(b) Under the ICOMOS Charter, "use" is a conservation principle (Article 8), while "adaptation" is a conservation
34 Panel's Minute, dated 22 February 2016 at paragraph [48].
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process rather than a best practice principle (Article 21). Adaptive re-use is not a best practice heritage principle per se, but in any event it is already expressly provided for in policy 9.3.2.6, so there is no need for it to be repeated in policy 9.3.2.3(b).
5.27 The Panel also suggested that policy 9.3.2.3(b) should encompass landowner "economic costs" accounting for the different perspectives of landowners (eg as commercial entities, non-commercial community organisations or home owners.) As outlined at paragraph 5.6, the Council has used the phrase “engineering and financial factors” rather than economic costs, in part because of the need to recognise that not all landowners have commercial drivers, but engineering and financial factors will be relevant to all landowners regardless of their commercial status or otherwise. Other provisions such as policy 9.3.2.8 also refer to costs and allow consideration of what is reasonable, which enable the particular owner's circumstances to be taken into account. Collectively the terminology used allows for case by case consideration of costs to landowners.
5.28 Policy 9.3.2.3(b)(iii) notes that any works to heritage items and heritage settings should focus any changes to those parts of heritage items or heritage settings, which have more potential to accommodate change. Submitters have noted35 that in Christchurch it may not always be practical to focus on parts of a heritage item which have the potential to accommodate change, and that change will be focused where change is necessary, for example in the case of repairs and maintenance as a result of earthquake damage.
5.29 The Council submits that it remains appropriate for the policy to direct such a focus, because of the benefit to heritage values if this focus can be achieved. The Council has made a minor amendment to (b)(iii) to include "wherever practicable" at the end, to enable a more flexible approach.
35 Supplementary legal submissions on behalf of Greg & Mia Gaba, The Roman Catholic Bishop of the Diocese of Christchurch, Church Property Trustees and Tailorspace Property Limited, dated 6 May 2016, at paragraph [14.1].
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5.30 These submitters also commented on policy 9.3.2.3(b)(vii),36 which states that works to heritage items and heritage settings should be reversible wherever practicable. They note Christchurch's post- earthquake environment, and state that works could include repairs that, by their nature, are not intended to be reversible.
5.31 The Council submits that it is appropriate for the policy to express a preference for reversibility, and the recognition of the matters raised by the submitters is already inherent in the use of the qualifier “where practicable”. This can take into account, for example, of major structural works which by their very nature would be unlikely to be reversible. As noted in the Heritage Technical Report, Principle 21 Adaptation of the ICOMOS New Zealand Charter 2010 states:
…Alterations and additions may be acceptable where they are necessary for a compatible use of the place. Any change should be the minimum necessary, should be substantially reversible, and should have little or no adverse effect on the cultural heritage value of the place.
5.32 The Crown supports policy 9.3.2.3, specifically the merging of policies on heritage protection (previously 9.3.2.2) and heritage management (previously 9.3.2.5) and the clarification of the principles and the change in management focus to provide for greater flexibility to better reflect the 'sensitive change' approach of the CRPS.37
9.3.2.4 - Archaeological Sites
5.33 This policy acknowledges Heritage New Zealand Pouhere Taonga's role in the identification and protection of archaeological sites. It has not been altered since December 2015 when Ms Rachlin made a minor amendment based on Church Property Trustees’ submission.38
5.34 Heritage New Zealand Pouhere Taonga's submission sought that this policy be amended to also include the identification and protection of
36 Supplementary legal submissions on behalf of Greg & Mia Gaba, The Roman Catholic Bishop of the Diocese of Christchurch, Church Property Trustees and Tailorspace Property Limited, dated 6 May 2016, at paragraph [14.2]. 37 Closing submissions for the Crown, dated 10 June 2016 at page 16. 38 Submission of Church Property Trustees, 3610.5.
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significant archaeological sites. Ms Wykes's evidence explained why she did not consider it necessary or appropriate to identify archaeological sites in the pRDP,39 and this change is not pursued in Heritage New Zealand Pouhere Taonga's closing submissions.
9.3.2.5 – Ongoing, Viable Use of Heritage Items and Heritage Settings
5.35 Policy 9.3.2.5 was the subject of mediation on 21, 22 and 30 March 2016, however agreement about its wording was not reached. The Council has however proposed amendments to the policy in light of the Panel’s comments and the discussions at mediation.
5.36 The policy expands upon and complements the directions in policy 9.3.2.3 about ongoing use and adaptive reuse of historic heritage places, and already listed specific activities that are envisaged as being acceptable in the context of ongoing use and adaptive reuse. These include repairs, maintenance, temporary activities, alterations, restoration, reconstruction and heritage upgrade works. The amendments to the policy adjust its focus and refine its wording to align with changes to the remainder of the provisions.
5.37 It is submitted that this policy appropriately gives effect to CRPS policy 13.3.4, by providing express recognition of the types of activities that policy 13.3.4 seeks to enable (appropriate repair, rebuilding, upgrading, seismic strengthening and adaptive re-use).
5.38 The Council agrees with the Crown's suggestion to delete the word "appropriate" from policy 9.3.2.5(a), as it introduces uncertainty.40 Further, the word is now unnecessary as this policy is read as part of a package including policy 9.3.2.3.
9.3.2.6 – Relocation of Heritage Items within and Beyond Heritage Settings
5.39 Aside from renumbering, the Council has not proposed any changes to this policy, and seeks its confirmation in its notified form.
5.40 No submitter closings have sought changes to this policy.
39 Evidence in Chief of Fiona Wykes, dated 2 December 2015 at paragraphs [6.1] – [6.5]. 40 Closing submissions on behalf of the Crown, dated 10 June 2016 at paragraph [21].
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9.3.2.7 – Utilities
5.41 The Council has proposed a new policy at 9.3.2.7 to provide the connection to rules within the utilities chapter and ensure utilities do not inappropriately compromise the values associated with heritage items. Alongside the inclusion of this policy, Policy 11.1.2.1 has been amended to remove all references to Natural and Cultural Heritage.
5.42 The policy is consistent with the approach within the other sub-topics of Chapter 9.41 As explained in the How to use the rules section at 9.3.3.1.6, the rules that relate to utilities within heritage items and heritage settings are found in Chapter 11 rather than in Chapter 9.
5.43 Orion has noted its support for the insertion of this policy into Topic 9.3 and the drafting proposed by the Council.42 No other submitter closing comments have been received.
9.3.2.8 – Demolition of Heritage Items
5.44 Policy 9.3.2.8 primarily seeks to avoid the demolition of heritage items, in recognition of the protective directions in section 6(f) of the RMA and in Objective 9.3.1. It also acknowledges that there will be circumstances in which demolition might be appropriate. At the time of the hearing, the policy provided this acknowledgement by referring to exceptional circumstances and providing a list of matters that would be taken into account in determining whether special circumstances exist.
5.45 The Council has moved away from the use of the words “economic viability” as noted earlier in these submissions. In policy 9.3.2.8, it has replaced this term with a reference to whether the costs to retain the heritage item would be unreasonable. This enables an assessment of whether these costs would be in proportion with the value of the property and the heritage values in question.
41 For example, policy 9.4.2.4. 42 Closing submissions for Orion, dated 29 April 2016 at paragraph [7.1].
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5.46 The Panel’s 22 February minute raised concerns with the use of the term "exceptional circumstances" in this policy, and invited the parties to consider a reformulation that enables financial, engineering, safety and other related circumstances to be considered, particularly in the context of earthquake-related damage.43
5.47 As a result, the Council proposes the deletion of the reference to exceptional circumstances, and the expansion of the list of factors to which regard must be had when determining whether the heritage item could be retained rather than demolished. The list is inclusive rather than exhaustive, and the matters listed now include:
(a) whether there is a threat to life and property, where interim measures would not remove the threat. [This is an extension of the request from Church Property Trustees, The Roman Catholic Bishop of the Diocese of Christchurch and Alpine Presbytery who had sought recognition of the risk to public health and safety from the retention of heritage items];
(b) whether the work required would result in the heritage values and integrity of the heritage item being significantly compromised;
(c) whether the costs to retain the heritage item would be unreasonable;
(d) the ability to retain the heritage values and significance through a reduced degree of demolition; and
(e) the level of significance of the heritage item.
5.48 The Council considers that these matters address appropriate considerations and avoid reliance on terms such as exceptional circumstances and "economically viable use". The policy better meets the Statement of Expectations than the previous wording by clearly stating the outcome intended for the Christchurch District –
43 Minute of the Panel, dated 22 February 2016 at paragraphs [52] – [53].
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that heritage items will only be demolished if demolition cannot be avoided – in a more succinct and certain manner.
5.49 The Crown generally supports the wording of Policy 9.3.2.8 but seeks to tie the cost considerations in clause (iv) to an assessment of whether retention or repair would be financially viable.44 The Council disagrees with this amendment, as it unnecessarily narrows the provision and would preclude its application in situations where the use of the building is non-commercial (eg churches) and financial viability may have little or no application.
5.50 Tailorspace seeks the inclusion of an additional clause in 9.3.2.8 requiring regard to be had to whether retention of the heritage item would enable and facilitate recovery from the impacts of the Christchurch earthquakes.45 The Council disagrees with this amendment because matters of recovery are already inherent in the other matters listed in this policy (in particular (iii)).
5.51 Church Property Trustees have noted their support for the changes to this policy.46
9.3.2.9 – Awareness and Education of Historic Heritage
5.52 Aside from renumbering, the Council has not proposed any changes to this policy, and seeks its confirmation in its notified form. Three submissions were received in support of this policy.47
5.53 No submitter closings have sought changes to this policy.
9.3.2.10 – Incentives and Assistance for Historic Heritage
5.54 This policy was amended with Ms Rachlin's rebuttal evidence as a result of consideration of a suggestion from the Crown. As traversed in evidence and at the hearing, the Council provides a free heritage
44 Closing submissions for the Crown, dated 10 June 2016 at page 21. 45 Closing submissions for Tailorspace, dated 20 June 2016 at paragraphs [14] and [31]. 46 Closing submissions for Church Property Trustees, dated 10 June 2016 at paragraph [8]. 47 Akaroa Civic Trust (#3627.48), Dr Ian and Dr Lynne Lochhead (#3633.13 and 3633.13.39), and the Christchurch Civic Trust (#3700.10).
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advice service.48 The change to policy 9.3.2.10 recognises this position and its benefit in achieving the retention, conservation and ongoing use of historic heritage.
5.55 The Crown seeks to narrow this policy to financial incentives rather than incentives more broadly.49 The Council considers this would unduly narrow the policy and preclude consideration of non-financial incentives.50
Conclusion in relation to policies
5.56 Overall, and for the reasons outlined above and in the updated section 32 report provided with these closing submissions, it is submitted that the policies in the revised proposal are the most appropriate way to achieve Objective 9.3.1.
6. RULES
9.3.3.1 How to use the rules
6.1 The how to use the rules section outlines that the rules applies to scheduled heritage items and heritage settings. As requested by Heritage New Zealand for consistency, the word "listed" has been replaced with "scheduled", and "heritage areas" have been provided for alongside "heritage items".
6.2 As a result of the addition of Topic 9.5 which provides rules for Sites and Areas of Ngāi Tahu Cultural Significance, all references to silent files in 9.3.3.1 have been removed.
6.3 The Council agrees with the Crown's suggestions for amendments in relation to the following matters: (a) 9.3.3.1.2; (b) 9.3.3.1.3; (c) 9.3.3.1.6; (d) 9.3.3.1.8; and
48 Transcript, 23 January 2016 (Day 6) at pages 861 and 2 February 2016 at page 1044. 49 Closing submissions of the Crown, dated 10 June 2016 at page 22. 50 Rebuttal evidence of Caroline Rachlin, dated 15 January 2016 at paragraph [4.7].
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(e) the numbering of clauses 9.3.3.8 – 9.3.3.12.51
6.4 These amendments provide for clarity and certainty. The Crown has suggested that 9.3.3.1.8 is unnecessary because the application of rules to activities in heritage settings is explained in 9.3.3.1.5, 9.3.3.1.16 and 9.3.3.9.52 The Council would prefer to retain this clause in order to provide clarity for plan users.
6.5 9.3.3.1.3 has been amended to reflect the Council’s updated position regarding interiors.53 This provision now states that where the interiors of a heritage item are specifically scheduled, this is stated in Appendix 9.3.6.1 with specific interior heritage fabric that is protected for that heritage item listed in Appendix 9.3.6.7.
6.6 9.3.3.1.6 has been amended to make it clear that the rules in the utilities chapter and subdivision chapter apply to activities within heritage items and heritage settings. In relation to utilities, it is only the Chapter 11 rules that apply, except that matters of discretion relating to historic heritage are contained in Chapter 9 rather than Chapter 11, and Chapter 11 cross-references back to the matters of discretion in Chapter 9. Orion has noted its support for this policy.54
6.7 9.3.3.1.7 was introduced following a submission by Orion55 requesting that rules in the activity tables do not apply to works undertaken to electrical equipment located within heritage items 201, 207, 489, 544, 600 and 614 scheduled in the pRDP, where those works are for the purpose of replacement, repair, maintenance and minor upgrading of the electricity distribution network. Orion supports the drafting of this rule.56 The Council agrees that it is not appropriate for heritage rules to apply to such works. In light of the revised approach to interiors, Rule 9.3.3.1.7 may strictly be unnecessary at present, but it provides certainty about the intent of the pRDP and would have relevance in the future if interiors of heritage items 201, 207, 489, 544, 600 and 614 were scheduled in the future through a plan change.
51 Closing submissions of the Crown, dated 10 June 2016 at pages 22 – 23. 52 Closing submissions of the Crown, dated 10 June 2016 at page 22. 53 Memorandum of Council, dated 1 April 2016. 54 Closing submissions for Orion, dated 10 June 2016 at paragraph [7.2]. 55 #3720.36 at page 13. 56 Supplementary Closing Submissions for Orion, dated 14 June 2016 at paragraph [7].
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6.8 9.3.3.1.8 was introduced to provide clarity57 that activities are permitted in heritage settings (subject to other rules in the pRDP), with the exception of new buildings in heritage settings and temporary structures and signage. This provision was in response to Lyttelton Port Company Limited's submission requesting the deletion of P7.58
6.9 9.3.3.1.11 was introduced as an exemption for part of Elmwood Park following mediation.
6.10 9.3.3.1.12 was introduced to reflect the regulatory approach that is proposed within the proposed HA1. That regulatory approach is that the presence of HA1 does not of itself trigger any resource consent requirements, but if specified underlying zone rules are triggered, then the matters of discretion for heritage areas will apply to the relevant consent application (either as matters of discretion for restricted discretionary activity rules, or as assessment matters for discretionary activity rules). The relevant rules from those other chapters were attached to the Council's 20 April 2016 memorandum of counsel, and are reproduced at Appendix D to these closing submissions.
6.11 All of the activity status tables begin with a note stating that the rules apply to what may be done with heritage fabric, and that if a certificate is obtained confirming that particular fabric is not heritage fabric (as per Appendix 9.3.6.9.), the rules about heritage fabric will cease to apply to that fabric. This certificate provides landowners with an avenue to increase certainty about the consent requirements for work they wish to undertake, in addition to the availability of advice from the Council’s heritage team.
9.3.3.2.1 - Permitted Activities
Certification of non-heritage fabric
6.12 The Crown has suggested amendments to the introduction to 9.3.3.2.1, 9.3.3.2.2 and 9.3.3.2.3 to clarify the use of certification that
57 In accordance with the Statement of Expectations at (i). 58 #3323.28.
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particular fabric is not heritage fabric.59 The Council has made wording adjustments in response to these suggestions in order to clarify the use of certification.
6.13 The Council notes Heritage New Zealand's concern about the focus on heritage fabric and the use of certification to exclude particular heritage fabric.60 The Council acknowledges that the overall significance of a heritage item is made up of a complex of values, but submits that certification of non-heritage fabric in the manner proposed is a way to enable works that will have a lesser impact on heritage value and may therefore be more appropriate.
P1 and P2
6.14 Rule P1 provides for the maintenance of a heritage item and Rule P2 provides for repairs to a heritage item. As requested by Church Property Trustees, the Roman Catholic Bishop of the Diocese of Christchurch and Alpine Presbytery,61 an exception to the permitted activity standards restricting the affixing of temporary scaffolding has been added to enable scaffolding to be affixed where not doing so would breach health and safety requirements. The Council agrees that this is an appropriate exception.
6.15 Amendments to P1 and P2 have also been proposed to allow an alternative pathway to carry out maintenance and repairs as permitted activities under the design and/or supervision of a heritage professional. The reason for this alternative is to enable greater flexibility of methodology than the other permitted activity standards allow, while still retaining a mechanism for ensuring that the works are carried out in a manner that is sensitive to the heritage values in question. Mr Phillips for the Carter Group noted his support for these amendments.62
6.16 The Panel’s minute commented on potential issues with referring to a "qualified heritage practitioner on a Council approved list" in Rules P1
59 Closing submissions of the Crown, dated 10 June 2016 at page 23. 60 Closing submissions of Heritage New Zealand, dated 10 June 2016 at paragraphs 15 – 17. 61 Submission #3670 at page 15. 62 Transcript, 3 February 2016 (Day 8), at page 1135.
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– P3, P10 and P11.63 The Council has considered the Panel's comments and has amended the provision, removing the requirement for the professional to be approved by the Council. A definition of heritage professional has been included in the Plan, as discussed in further detail in part 10 of these submissions. The terminology used in Rules P1 – P3, P10 and P11 has been updated to reflect the definition. The Crown has noted its support for a flexible and enabling approach when these activities are under the supervision of a heritage professional, as this will aid recovery.64
6.17 The Crown has outlined its concerns with the words "under the design and/or supervision". The Crown considers that "supervision" could imply a broader responsibility for the work than is necessary to ensure the work is carried out in a way that respects heritage values.65 The Council has updated and simplified the wording so that it now reads "in accordance with the guidance of a Heritage Professional". This wording seeks to ensure that the Heritage Professional's advice is adhered to but without implying that the Heritage Professional must either be present on site at all times or assume a greater responsibility for supervising the overall project than needs to be the case.
6.18 Church Property Trustees and the Roman Catholic Bishop of the Diocese of Christchurch have requested the deletion of the word "qualified" from in front of "heritage professional".66 The Council confirms that this word was superfluous in light of the definition of Heritage Professional, and it has been deleted.
6.19 These submitters have also sought a change so that where the heritage professional is not an architect, an architect is also required for the Rule P1 and P2 role. The Council considers this change is unnecessary, because the focus of these provisions is to provide an efficient way to ensure the works are carried out in a heritage- sensitive manner, and an architect may not be needed. It may well be that an architect is involved in the maintenance or repair work in
63 Panel's Minute, dated 22 February 2016 at paragraph [56]. 64 Closing submissions of the Crown, dated 10 June 2016 at page 23. 65 Closing submissions of the Crown, dated 10 June 2016 at page 23. 66 Closing submissions of The Roman Catholic Bishop of the Diocese of Christchurch and Church Property Trustees dated 10 June 2016 at paragraphs [22] – [27].
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any event, but the Council does not wish to assume that an architect must be engaged in every situation.
P3
6.20 Heritage investigative and temporary works were previously a controlled activity for Group 1 heritage items under Rule C3, but are now permitted under Rule P3. A number of amendments have been made to Rule P3 through mediation. As with Rules P1 and P2, Rule P3 now allows an alternative pathway to carry out these activities as permitted activities under the design and/or supervision of a heritage professional. Activities not able to comply with Rule P3 require consent under Rule RD5.
6.21 The Panel has signalled its view that P3 in relation to Group 1 items should not be confined to works required as a result of earthquake damage. Relevant oral evidence was given by Mr Nixon67 and Mr Phillips.68 The rule has been amended accordingly to apply equally across Group 1 and Group 2 items whether or not the works are required as a result of earthquake damage.
6.22 The Council submits that the rule as now drafted appropriately allows for heritage property owners to conduct investigative and temporary works, whilst placing appropriate limitations on those activities to reduce the risk to heritage values.
P4 and P5
6.23 P4 and P5 provide for temporary buildings or structures for events in a heritage item in an open space, and for temporary buildings or structures for events in a heritage setting. The Council has amended these rules in reliance on submissions by the Arts Centre of Christchurch Trust Board69 and Canterbury Museum Trust Board.70
6.24 In relation to Hands off Hagley's request that the permitted activity standards be brought into line with the 2013 Environment Court
67 Transcript, 3 February, page 1239. 68 Transcript, 3 February, page 1135. 69 #3275. 70 #3351.
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decision, the Council notes that that decision relates to a resource consent for a particular activity, and there is no requirement or need for the rules in the pRDP, which apply much more broadly than to Hagley Park, to be made the same as in that resource consent.
6.25 Canterbury Cricket Association have noted their agreement with Rule P5.71
P6
6.26 P6 provides for signage for heritage items and settings. Following mediation on 9 December 2015, substantial changes were made to this rule to avoid it being too restrictive. The Council also agreed with the Crown's suggestions to include wording clarifying that this rule sits alongside the rules in Chapter 6, and where the rules conflict, this rule (P6) will prevail.
6.27 The changes made to the rule include changes requested by the Arts Centre of Christchurch Trust Board72 to include further detail in this rule. The rule now distinguishes between signs on heritage items and signs in heritage settings, and provides size limits and protection methods for the heritage items and settings. The Crown has noted its support for this provision.73
P7
6.28 The original Rule P7 as notified permitted works within a heritage setting. This has now been deleted in light of the confirmation in 9.3.3.1.8 (discussed earlier) that activities are permitted in heritage settings (subject to other rules in the pRDP), with the exception of new buildings in heritage settings and temporary structures and signage. The Crown has noted its support for the deletion of P7 to avoid confusion about the scope of regulation of activities in heritage settings.74
71 Closing submissions of Canterbury Cricket Association, dated 10 June 2016 at paragraph [4]. 72 #3275 at page 7. 73 Closing submissions for the Crown, dated 10 June 2016 at page 16. 74 Closing submissions for the Crown, dated 10 June 2016 at page 16.
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6.29 Rule P7 in the revised proposal was introduced in reliance on the Council’s submission, in order to regulate development on sites above Monks Cave, Moa Bone Point Cave and the Lyttelton Rail Tunnel. This rule permits buildings and earthworks on these sites, where they avoid impacts on the underground scheduled item. The wording of this rule has been tidied up by deleting superfluous words at the end of the activity description.
P8
6.30 Rule P8 relates to the demolition and deconstruction of heritage items that are subject to a notice under section 38 of the Canterbury Earthquake Recovery Act (CER Act).
6.31 Following consideration of Panel questions at the hearing75 and mediation held on 21 March 2016, standard (a) has been amended to remove the reference to works having been commissioned by the Chief Executive of the Canterbury Earthquake Recovery Authority (CERA). Both section 38 of the CER Act and section 77 of the Greater Christchurch Regeneration Act 2016 relate to works carried out by the chief executive, so a further reference to the chief executive is not necessary.
6.32 Following consideration of the Panel’s feedback76 and mediation held on 21 March 2016, standard (b) has been deleted. This standard required the Chief Executive of CERA to consult with Heritage New Zealand Pouhere Taonga and the Christchurch City Council. The Council considers it appropriate to rely on the process established under section 38 rather than seek to direct consultation in relation to that separate process through the pRDP.
6.33 The Council remains of the view that the inclusion of this rule is appropriate, as indicated in Ms Rachlin’s evidence in chief at paragraph 10.9. It also considers it is not appropriate to restrict Rule P8 to particular buildings by excluding it from applying to the ChristChurch Cathedral as has been sought by the Great Christchurch Buildings Trust.
75 Transcript, dated 2 February 2016, at page 1094. 76 Minute, dated 22 February 2016 at paragraph [56(c)].
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6.34 The Roman Catholic Bishop of the Diocese of Christchurch, Church Property Trustees and Tailorspace Property Limited77 have sought the inclusion of a reference in this rule to section 38 notices that existed as at 18 April 2016, i.e. before the CER Act expired. The Council submits that this change is not necessary and the provision is sufficiently clear as it is. If there is a valid section 38 notice in place, the rule already authorises works carried out under that notice. In the Council’s submission, the addition of a date in this rule would simply serve to create an anomalous situation in the event that a section 38 notice lapsed, was overturned, or otherwise ceased to authorise works; that is, Rule P8 would then authorise works on the basis of an approval that no longer existed.
6.35 The Great Christchurch Buildings Trust is opposed to the extension of Rule P8 to include demolition under a notice issued under section 77 of the Greater Christchurch Regeneration Act 2016 on the basis that it consists of a de facto delegation of the exercise of a discretion reserved for the consent authority, to the Minister.78 The Trust also notes that, under section 71(2)(a) of the Greater Christchurch Regeneration Act 2016, in the event that the Minister considers it necessary, he or she has the power to amend the District Plan to make works under a section 77 notice a permitted activity.
6.36 The Council submits that, if the Panel concludes that it is appropriate to include Rule P8 with a reference to section 38 of the CER Act, then there is no good reason to exclude a reference to section 77 of the Greater Christchurch Regeneration Act 2016. Both section 38 and section 77 involve a decision being made by a third party, and under both the Greater Christchurch Regeneration Act and the CER Act there is79 (or was80 in relation to the latter) a power to modify a district plan to facilitate the works that have been commissioned.
6.37 In the case of section 77 notices, the existence of the section 71(2)(a) power may mean that it is not strictly necessary to have a rule such
77 Supplementary opening submissions, 6 May 2016; and closing submissions of the Roman Catholic Bishop of the Diocese of Christchurch and Church Property Trustees, dated 10 June 2016 at paragraph [20.2]. 78 Closing submissions for the Great Christchurch Building Trust, dated 10 June 2016 at paragraph [9]. 79 Section 71(2)(a) of the Greater Christchurch Regeneration Act 2016. 80 Section 38(6) of the Canterbury Earthquake Recovery Act 2011.
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as P8, but it does not in itself make it inappropriate to have such a rule. In the Council's experience, the section 38 process has involved collaboration with the Council and with Heritage New Zealand Pouhere Taonga, and if a building owner has been through a similar process under section 77, for them to have to go through a process of requesting the exercise of the Minister's section 71 power would be unreasonable in the Council's submission.
6.38 To assist the Panel in case it wishes to compare section 38 of the CER Act with section 77 of the Greater Christchurch Regeneration Act, the two sections are set out below.
d Section 38 Canterbury Earthquake Section 77 Greater Christchurch Recovery Act 2011 Regeneration Act 2016
(1) The chief executive may carry out or (1) The chief executive may carry out or commission works. commission works.
(2) The works include (without limitation)— (2) The works include (without limitation)—
(a) the erection, reconstruction, (a) the erection, reconstruction, placement, alteration, or extension of all or placement, alteration, or extension of all or any part of any building, structure, or other any part of any building on or under land: erection on or under land: (b) the demolition of all or any part of any (b) the demolition of all or part of a building on or under land (demolition building, structure, or other erection on or work): under land: (c) the removal and disposal of any (c) the removal and disposal of any building on or under land, or material. building, structure, or other erection on or under land, or material. (3) The chief executive may remove (3) The chief executive may remove fixtures and fittings from any building. fixtures and fittings from any building.
(4) If the chief executive gives written (2) The chief executive must give written notice to an owner of a building, structure, notice to the owner and, if the owner is not or other erection on or under land that the occupier, the occupier of the private demolition work is to be carried out land specifying— there,— (a) the nature of the work that will be (a) the owner must give notice to the chief carried out; and executive within 10 days after the chief executive’s notice is given stating whether (b) the date when the work will begin, or is or not the owner intends to carry out the expected to begin if it is not possible to
35 27904391_3.docx 3723 CCC Closing submission Topic 9.3 Page 39 of 111 works and, if the owner intends to do so, specify a definite date. specifying a time within which the works will be carried out; and (3) If it is necessary for the land or buildings, or both, to be vacated either (b) if the owner fails to give notice under wholly or partly to enable the works to be paragraph (a) or the chief executive is not carried out, the notice under this section satisfied with the time specified, or the must also direct the owner or occupier to works are not carried out in the time leave the land or buildings, as the case specified or otherwise agreed, then— may be, for a specified period, or from a specified date until further notice. (i) the chief executive may commission the carrying out of the works; and (4) If practicable, a copy of the notice must be given to— (ii) in the case of the demolition of a (a) every person who has an interest in the building to which section 40(1) or (2) land on which the works are situated that refers, the chief executive may recover the is registered under the Land Transfer Act costs of carrying out the work from the 1952; and owner of the dangerous building in question; and (b) every person claiming an interest in the land that is protected by a caveat lodged (iii) the amount recoverable becomes a and in force under section 137 of the Land charge on the land on which the work was Transfer Act 1952. carried out.
(5) A notice under this section is sufficiently served if it is delivered personally to the person or sent to the person at the person’s usual or last known place of residence or business.
(6) If a notice or other document is to be served on a body (whether incorporated or not), service on an officer of the body in accordance with subsection (5) is taken to be service on the body.
(7) A notice or other document sent by post to a person in accordance with subsection (5) or (6) must be treated as having been received by that person on the fourth day after it was posted.
(8) A notice under this section must be given at least 1 month in advance, but there is no right of appeal or objection against the notice.
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(5) To avoid doubt, works under this (4) Works under this section may be section may be undertaken on or under undertaken on or under public or private public or private land, and with or without land and with or without the consent of the the consent of the owner or occupier. owner.
(6) To avoid doubt, this section does not (5) To avoid doubt, this section does not override any requirements for resource override any requirements for resource consents or building consents that may consents or building consents that may apply to works under this section, but any apply to works under this section. such requirements may be varied by Orders in Council made under this Act.
(6) Nothing in section 11(2) applies to the carrying out or commissioning of works under this section on land or buildings owned by the Crown.
(7) In this section, building includes any structure or other erection.
P9
6.39 Rule P9 provides for the replacement of buildings (which are not heritage buildings scheduled under the pRDP) within a heritage setting or an open space heritage setting, where replacement is required as a result of earthquake damage. The Council submits this rule and the corresponding activity standards are appropriate to provide certainty to owners of heritage buildings that they may replace damaged buildings without requiring a resource consent. Such an approach is also consistent with the Statement of Expectations at (a)(i). The Crown has noted its support for this rule.81
P10 and P11
6.40 Heritage upgrade works are permitted under P10, and reconstruction and restoration are permitted under P11. The Crown has noted its support for these provisions.82 Heritage upgrade works are defined as follows:
81 Closing submissions for the Crown, dated 10 June 2016 at page 16. 82 Closing submissions for the Crown, dated 10 June 2016 at page 16.
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Heritage upgrade works in relation to a heritage item or heritage setting, means works undertaken to satisfy or increase compliance with Building Act and Building Code requirements, but excludes building code upgrade works undertaken as part of repairs, reconstruction or restoration Heritage upgrade works may include: a. structural seismic upgrades, core sample drilling, shifting off foundations or permanent realignment of foundations; b. fire protection; and c. provision of access. Heritage upgrade works also include temporary relocation of a heritage item to allow for ground, foundation and retaining wall remediation.
6.41 These rules have been amended through mediation and following consideration of the Panel’s feedback.83 The Council has considered the suggestion of not limiting the rules to works required as a result of earthquake damage, and has concluded that such an approach is appropriate for Group 2 buildings but not for Group 1 buildings, due to the higher significance of the latter and the need to ensure closer scrutiny of such works accordingly. This possibility was signalled in the Panel’s minute at paragraphs 56(d) and (e).
6.42 The amendments have also resulted in the addition of a new Appendix 9.3.6.8, showing a heritage works plan. The contents of this plan are discussed below at paragraphs 8.6-8.9. Under P10 and P11 this plan must be submitted to the Council before the works are undertaken. The heritage works plan will be certified by a heritage professional, and once this is complete the works are permitted so long as they are carried out in accordance with the certified plan. The Council must be sent a copy of the certified plan but it does not have a role in certifying the plan.
6.43 The Council submits that the use of a heritage works plan ensures a careful and planned approach to the works and allows the Council to
83 Minute, dated 22 February 2016 at paragraphs [56(d)] – [56(e)].
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be kept informed about the manner of compliance with the District Plan, without requiring landowners to obtain a resource consent. This aligns with the Statement of Expectations at (a)(i).
6.44 Repairs are addressed in Rule P2, and Reconstruction and Restoration are addressed in Rule P11.
6.45 The Panel in its Minute of 22 February at paragraph 56(f) indicated support for Mr Taylor's suggestion for a new rule authorising the continuation of Central City reconstruction activities in response to the earthquakes where the activity was authorised for the Operative Plan. The Panel invited parties to consider whether such a rule should only be required for the Arts Centre.
6.46 It was agreed in mediation in March 2016 that there was no need for a new rule in light of the activities that are already authorised in Rule P11.84
P12 (renumbered from P13)
6.47 Rule P12 (renumbered from P13 to remove a gap in the numbering sequence) was introduced following mediation in March 2016 to provide for temporary lifting of a damaged heritage item for the purposes of heritage investigative works or repairs. This rule provides standards that must be met for the lifting to be permitted, such as the height the item may be lifted, how it is lowered, who is to supervise the activity, and notification of neighbours and the Council.
P13 (renumbered from P14)
6.48 As identified in the Council's memorandum dated 15 February 2016, the Council supports in principle that a permitted pathway could be available for minor alterations to heritage items. However, as
explained by Ms Rachlin, there are some difficulties in comprehensively defining those alterations which would be 'minor' in terms of their effect on heritage values.
84 Mediation report, dated 21, 22 30 March 2016.
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6.49 Minor alterations were discussed at mediation held on 22 March 2016, and the parties agreed that there should be a new permitted activity rule allowing for minor alterations. Agreement was not reached on with all submitters on the precise wording of that rule.
6.50 The Council’s proposal is set out in Rule P13 (renumbered from P14 to remove a gap in the numbering sequence). It allows for the installation, modification or removal of systems and fixtures which form part of the heating, cooling, ventilation, lighting, audio-visual, cooking, hot or cold water systems for buildings. This provides further flexibility for landowners to carry out works without the need for resource consent.
6.51 Ceres New Zealand seeks that this rule be extended to allow the removal of internal walls or other structures that do not themselves form part of the original heritage fabric, or other changes that can be considered a "minor alteration".85 The Council does not support such an extension, and nor does the Crown.86
6.52 The Council has limited the ambit of this rule and has not extended it to include small scale utility work as the Council submits this is appropriately provided for in Chapter 11.
9.3.3.2.2 – Controlled Activities
C1 and C2
6.53 Heritage upgrade works and reconstruction and restoration activities that do not fall within P10 or P11 respectively are a controlled activity under C1 and C2, enabling a greater degree of control over these activities to ensure heritage values are carefully managed. The matters of control have been simplified as discussed later in these submissions. The Crown has noted its support for these provisions.87
6.54 Ceres New Zealand seeks changes to Rules C1 and C2 on the basis that it does not wish to exclude Group 1 heritage items from these
85 Closing submissions for Ceres New Zealand, dated 10 June 2016 at paragraph [8]. 86 Closing submissions for the Crown, dated 10 June 2016 at paragraph [17]. 87 Closing submissions for the Crown, dated 10 June 2016 at paragraph [16].
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rules where the works are required as a result of damage, which do not comply with the activity specific standards in corresponding permitted activity rules.88 It is submitted that this outcome is already provided by these rules and no change is required; ie C1 states:
High Significance (Group 1) heritage items where either the works do not comply with the activity standards in Rule 9.3.2.2.1 P10, or are not as a result of damage;….
C3
6.55 C3 previously provided for heritage investigative and temporary works to Group 1 heritage items. This activity has been deleted due to a change of activity status and it is now provided for in P3.
6.56 The current C3 provides for the demolition and deconstruction of the Cathedral of the Blessed Sacrament other than as provided for in Rule P8. This was introduced as a result of the submission of the Roman Catholic Bishop of the Diocese of Christchurch.89 This rule applies only where the demolition and deconstruction does not comply with P8, and has been included to ensure there is a streamlined process for consenting the demolition and deconstruction of this Cathedral in the event that the section 38 notice lapses or otherwise ceases to apply. Specific matters of control for demolition and deconstruction of the Cathedral of the Blessed Sacrament are provided at 9.3.4.2.
6.57 With the exception of the Great Christchurch Buildings Trust, the relevant parties at mediation on 21 March 2016 agreed to controlled activity status for demolition of the Cathedral of the Blessed Sacrament if there was no section 38 notice.90
6.58 The Roman Catholic Bishop of the Diocese of Christchurch has confirmed its support for the amended Rule C3.91
88 Closing submissions for Ceres New Zealand, dated 10 June 2016 at paragraphs [12] – [13]. 89 #3692.21 at page 14. 90 Mediation report, dated 21, 22 30 March 2016. 91 Supplementary Legal Submissions on behalf of Greg & Mia Gaba, The Roman Catholic Bishop of the Diocese of Christchurch, Church Property Trustees and Tailorspace Property Limited, dated 6 May 2016, at paragraph [11].
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6.59 Church Property Trustees has sought that this rule should also apply to the ChristChurch Cathedral.92 The Council does not consider this to be appropriate, and prefers discretionary status for the reasons outlined below under the discussion of Rule D3.
C4 and C5
6.60 Temporary lifting of a damaged heritage item for the purposes of heritage investigative works or repair is a controlled activity under C4, where it does not comply with P12. Temporary moving of a damaged heritage item is a controlled activity under C5. The Crown has noted its support for these rules.93
9.3.3.2.3 - Restricted Discretionary Activities
6.61 The restricted discretionary activity rules remain largely unchanged since the version filed with Ms Rachlin’s 18 December 2015 evidence, with the exception of the deletion of the former Rule RD8 (demolition of the Cathedral of the Blessed Sacrament) and the insertion of a new RD8 (demolition of the west façade of the former Public Trust office).
RD1
6.62 Carter Group Limited seeks that alteration of a Group 2 heritage item be made a permitted or controlled activity, subject to a certification process similar to that used for urban design in the Commercial Stage 1 decision.94 However, there is a significant risk to the heritage values of the heritage item, if this work is not undertaken appropriately, hence the need for careful management of these activities, including reservation of the ability to decline consent.95 For these reasons, the Council has retained Rule RD1.
92 Mediation report, dated 21, 22 30 March 2016. 93 Closing submissions for the Crown, dated 10 June 2016 at pages 16 – 17. 94 Closing submissions for Carter Group Limited, dated 10 June 2016 at paragraph [9]. 95 Evidence in chief of Caroline Rachlin, dated 18 December 2016 at paragraph [13.36].
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RD2
6.63 RD2 provides for new buildings in a heritage setting. It was amended in December 2015 at the request of Lyttelton Port Company Limited to clarify that it relates to new buildings rather than alteration of a heritage setting – new buildings.96
6.64 Carter Group Limited seeks that new buildings in a heritage setting be made a controlled activity, subject to a certification process similar to that used for urban design in the Commercial Stage 1 decision.97 However, whilst new buildings can be carefully located in heritage settings, there is a significant risk to the heritage values of the heritage setting and the heritage item, if this is not undertaken appropriately, hence the need for careful management of these activities, including reservation of the ability to decline consent.98 For these reasons, the Council has retained Rule RD2.
6.65 The Council notes that the requirement for consent for a new building in a heritage setting is not new in the pRDP. The Operative City Plan and the Operative Banks Peninsula District Plan require a consent for new buildings on heritage sites.99
RD8
6.66 RD8 previously provided for the Demolition of the Cathedral of the Blessed Sacrament other than as provided for in the former Rule C4. The Council now considers this rule to be unnecessary in light of what is now Rule C3 (discussed earlier) and has deleted the former Rule RD8.
6.67 The currently proposed Rule RD8 has been added to reflect the Council’s updated position in relation to the former Public Trust building, at 152 Oxford Terrace. That position is discussed further in relation to the site specific requests below at paragraph 18.26 and following. In brief, the Council remains of the view, informed by expert heritage evidence, that the west façade of the building
96 Lyttelton Port Company Limited (#3323.30). 97 Closing submissions for Carter Group Limited, dated 10 June 2016 at paragraph [9]. 98 Evidence in chief of Caroline Rachlin, dated 18 December 2016 at paragraph [13.36]. 99 Christchurch City Plan, Volume 3, Part 10, 1.0 – Protected buildings, places and objects.
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warrants scheduling as a Group 2 heritage item, but it considers that the matters that would need to be considered in any consent application for the demolition of that façade are sufficiently identifiable to warrant restricted discretionary activity status. Site-specific matters of discretion have been included at 9.3.5.2 f. – j.
6.68 Tailorspace is seeking the delisting of the Public Trust façade, and thus has submitted that RD8 is not necessary.100 The Council's view remains that RD8 is required, in conjunction with the scheduling of the façade, as discussed further from paragraph 18.26 of these submissions.
9.3.3.2.4 – Non-notification
6.69 The non-notification clause in 9.3.3.2.4 applies only to Rule 9.3.3.2.2 C1, C2, C3, C4 and C5 and 9.3.3.2.3 RD5. It clarifies that any resource consent application arising from these rules will not require written approvals and will not be publicly or limited notified. This amendment was made before the hearing on Topic 9.3 at the request of submitters.101
9.3.3.2.5 – Discretionary Activities
D2
6.70 Rule 9.3.3.2.5 D2 has been added at the request of submitters, to provide a lower activity status for Group 2 heritage items than was the case in the notified version of the proposal.102 Demolition of Group 1 items remains addressed in Rule NC1. In line with the Council’s inclusion of Rule RD8 for demolition of the west façade of the Public Trust building, a note has been added in Rule D2 to clarify that Rule D2 does not apply to that activity.
100 Closing submissions for Tailorspace, dated 10 June 2016 at [32]. 101 Canterbury Jockey Club 3414.22, at page 9 and Carter Group Limited 3602.263. 102 Canterbury Jockey Club 3414.23, at page 10 and Carter Group Limited 3602.270.
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D3 – ChristChurch Cathedral
6.71 The activity status for demolition of the ChristChurch Cathedral was non-complying in the notified proposal. Following mediation in March 2016, Council proposed that this be changed to discretionary in Rule D3 other than as provided for in 9.3.3.2.1 P8. No agreement was reached on this matter at mediation, and:
(a) Church Property Trustees seek that Rule C3 should also apply to the ChristChurch Cathedral.
(b) The Great Christchurch Buildings Trust supports discretionary activity status for demolition of this building other than deconstruction for reconstruction.103
(c) Restore Christchurch Cathedral Group Incorporated supports the recognition of ChristChurch Cathedral by listing it as a Group 1 building, and seeks non-complying status.104
6.72 The ChristChurch Cathedral is listed as a High Significance (Group 1) Heritage item in the pRDP, and no submitter has disputed this status. Church Property Trustees' submission and evidence105 reiterate this significance. CPT's opening submissions state that ChristChurch Cathedral is undoubtedly one of the most significant and iconic heritage buildings in Christchurch,106 and CPT's submission is critical that the notified proposal did not adequately recognise the significance of the Cathedral or its unique role in the central city.107
6.73 The Cathedral has high cultural and spiritual significance for its former role as the Cathedral Church of the Anglican Diocese in Canterbury, for its civic role as a venue for important cultural events and as the physical and metaphorical heart of the city. The Cathedral has high technological and craftsmanship significance for the quality of its masonry construction and the accomplishment of its
103 Great Christchurch Buildings Trust closing legal submissions at paragraph 120.1. 104 Restore Christchurch Cathedral Group Incorporated closing submissions at paragraph 2. 105 Evidence in chief of Bob Nixon, dated 12 January 2016 at paragraph [8.19]. 106 Evidence in chief of Bob Nixon, dated 12 January 2016 at paragraph [8.19]. 107 Page 9.
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constructional and applied decoration.108 As for a highly significant heritage building, applying a high level of protection to the Cathedral is consistent with Part 2 of the RMA and with the CRPS.
6.74 The Council submits that discretionary activity status is the most appropriate status for demolition of this Cathedral beyond the reconstruction provided for in Rule C2 and beyond what is authorised by the section 38 notice and therefore Rule P8, and that it would be inappropriate to apply the Catholic Cathedral's Rule C3 to full demolition of the ChristChurch Cathedral given the important difference in what the section 38 notices for the two Cathedrals authorise.
6.75 As Mr Nixon accepted,109 while the section 38 notice for the Catholic Cathedral is broad and allows complete demolition, the section 38 notice for the ChristChurch Cathedral is narrower and only allows demolition to the extent required to remove hazards. Any works that are not able to comply with that limitation, and therefore fall outside Rule P8, have not been assessed by CERA and the Council submits that it would not be appropriate to assume that such works should be able to proceed in the absence of an assessment of such a proposal. Careful assessment of the appropriateness of full demolition would be justified in the event it is proposed. The merits of the full demolition of the ChristChurch Cathedral should not be assumed to have been tested under the section 38 process, because that is not what the section 38 notice authorised. Nor does section 38 direct any public engagement on the question of whether a notice should be issued.
6.76 Church Property Trustees acknowledge that the Cathedral is key to recovery.110 Implicit in that statement is recognition that what happens to the Cathedral will be of significant public importance and will have a considerable impact on the central city, and to the city as a whole either positive or negative depending on the outcome. This emphasises the need for careful consideration of what is proposed for the site and whether that outcome itself will promote sustainable management, which in turn suggests that discretionary activity status
108 Evidence in chief of Fiona Wykes, dated 2 December 2016 at paragraph [10.58]. 109 Transcript pages 1245 and 1249. 110 Church Property Trustees closing submissions at paragraph 17(c).
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is more appropriate that controlled activity status. It also emphasises the need to ensure that public notification is able to occur subject to the usual tests under section 95A-95G of the RMA, and in that regard the Council agrees with the submissions of the Great Christchurch Buildings Trust at paragraph 80.
6.77 For completeness, attention is drawn to the discussion on the importance of the site and the activity status for reinstatement of the Christchurch Cathedral or the construction of a new cathedral contained in the Council’s closing legal submissions in respect of the Central City proposal hearing111 and these are adopted for the purpose of these closings.
6.78 It would not be correct to assume that recovery requires a District Plan response that facilitates the demolition of the ChristChurch Cathedral as a controlled activity, when recovery has been found to include "restoration and enhancement."112 and when the Dean Report resulted in agreement that it is feasible from an engineering perspective to reinstate the ChristChurch Cathedral or to replace it entirely.113 The evidence for the Church Property Trustees acknowledges that reinstatement is possible.114 The revised proposal seeks to encourage restoration by providing for reconstruction (which is defined as including deconstruction for the purposes of reconstruction) as a controlled activity under Rule C2. The Council submits that it is entirely appropriate that anything beyond that is tested through a discretionary activity resource consent application.
6.79 As outlined earlier, policy 9.3.2.8 has been amended through mediation to ensure that the reasonableness of the costs of retaining a heritage building can be tested through the resource consent process. The Church Property Trustees were represented in that mediation process and have not sought further changes to the 20 April version of policy 9.3.2.8.
111 Council Legal Submission, 4 May 2016 paragraphs 6.4 – 6.10 112 Canterbury Regional Council v Independent Fisheries Ltd and others [2013] 2 NZLR 57 at [25]. 113 Church Property Trustees closing submissions at paragraph 25. 114 Evidence in chief of Bob Nixon, dated 13 January 2016 at paragraph 8.19.
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6.80 As identified in CPT's closing submissions,115 deciding the future of the ChristChurch Cathedral soon is desirable in the interests of recovery. However, of greater importance for the city long term is the substantive outcome in relation to this site. The structure that is on the site long term will have a longer lasting impact on the city than any delay that is occasioned by a discretionary activity resource consent application.
6.81 For completeness, the Council notes that policy 15.1.5.1 in the Central City Proposal discusses the design, form and function of the ChristChurch Cathedral, however that policy states that any demolition or deconstruction is to be assessed against Chapter 9 provisions and not policy 15.1.5.1.116
9.3.3.2.6 – Non Complying Activities
NC1
6.82 Demolition of a Group 1 heritage item is a non-complying activity. This position is consistent with the notified proposal. As noted above, Group 2 items have been moved from this rule into new Rule D2.
6.83 Following the hearing, amendments were made to exclude demolition of the Cathedral of the Blessed Sacrament (now a controlled activity, C3), and demolition of ChristChurch Cathedral (a discretionary activity, D3) from this rule.
6.84 Restore Christchurch Cathedral Group Incorporated has noted its support for this provision.117
115 Paragraph 114. 116 Revised Proposal for the Central City Hearing, dated 15 April 2016 at page 360. 117 Closing submissions for Restore Christchurch Cathedral Incorporated (#3279), dated 9 June 2016 at paragraph [2].
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7. MATTERS OF CONTROL AND MATTERS OF DISCRETION
9.3.4 - Matters of control
9.3.4.1 – Heritage Upgrade Works, Reconstruction and Restoration of High Significance (Group 1) and Significant (Group 2) Heritage Items
7.1 Substantial changes were made to these matters of control through mediation and consideration of submitter evidence in late 2015, and the list of 11 matters has been compacted to 4 matters of control. The wording of the matters has remained largely the same since the filing of Ms Rachlin’s evidence in chief on 18 December 2015.
7.2 In conjunction with changes to the rules and as sought by the Crown, these matters of control now also apply to restoration, but not to heritage investigative and temporary works for Group 1 items.118
7.3 The Crown has requested that, in relation 9.3.4.2 (b), investigation should be deleted and reconstruction be added.119 The Council agrees with this amendment.
9.3.4.2 – Demolition and deconstruction – Cathedral of the Blessed Sacrament
7.4 Specific matters of control have been added in 9.3.4.2 in relation to the demolition and deconstruction of the Cathedral of the Blessed Sacrament beyond what is provided for in Rule P8.
9.3.4.3 – Temporary lifting or temporary moving of a damaged heritage item for the purposes of heritage investigative works or repair of heritage items and settings
7.5 The matters of control in 9.3.4.3 were added following mediation held in March 2016, in conjunction with the addition of Rules C4 and C5, which provide for the temporary lifting or temporary moving of a damaged heritage item for the purposes of heritage investigative works or repair of heritage items and settings.
118 Closing submissions for the Crown, dated 10 June 2016 at paragraph [24]. 119 Exhibit 16, at page 28.
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9.3.5 - Matters of discretion
9.3.5.1 – Alterations, New buildings, Relocations, Temporary Event Structures, Signage and Replacement of Buildings
7.6 The Crown has suggested a range of drafting changes to 9.3.5.1. Changes have already been made through mediation and Ms Rachlin’s evidence in chief, dated 18 December 2015, and further changes have been made following mediation in March 2016. The Council has made some of the amendments suggested in the Crown's closing submissions and submits that the remainder of the Crown's suggested changes are not necessary.
7.7 Matter (a) has been amended through mediation to take into account costs to repair and reconstruct the heritage item. The matter of economic viability has been deleted from the provision in line with the removal of this term from policies as outlined earlier. The Crown has proposed an amendment to refer to the options available to retain all or part of the heritage fabric.120 The Council considers this is not required, as alternatives are already covered in matter (b).
7.8 The Crown also seeks to narrow 9.3.5.1(b) by limiting it to consideration of alternative solutions that will have a lesser adverse effect on heritage values.121 The Council does not consider it necessary to narrow the provision to this extent.
7.9 The Crown has submitted that 9.3.5.1(d) should only relate to the significant heritage values of heritage items. The Council submits that this change would be an unnecessary restriction.
7.10 In relation to matter 9.3.5.1(e)(ii), the Crown seeks deletion of the reference to ICOMOS New Zealand Charter for the conservation of Places of Cultural Heritage Value. The Council submits that reference to this document will help to establish whether best practice heritage conservation management and heritage principles and practices have been adopted. The Council notes that the previous reference in (e) to best practice heritage conservation management
120 Closing submissions for the Crown, dated 10 June 2016 at page 25. 121 Closing submissions for the Crown, dated 10 June 2016 at page 25.
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has been removed and replaced with a reference to the principles set out in policy 9.3.2.3(b), for the reasons discussed under that policy.
7.11 The Crown seeks deletion of the second sentence of 9.3.5.1(j). The Council disagrees as the example of a mitigation measure provides guidance as to the type of mitigation measures envisaged.
7.12 The Council disagrees with the Crown's suggestion to delete the second half of clause 9.3.5.1(k), as it shows the importance of a Group 1 heritage item and provides clarity.
7.13 The Council agrees to the Crown's suggestions to amend 9.3.5.1(m) in so far as they are minor tidy-up changes, however submits that further changes to the provision are not required. The Council specifically disagrees with the Crown's amendment to remove the reference to the temporary protection plan as this could provide useful guidance about mitigation options.
7.14 Hands off Hagley noted that the matters of discretion address temporary event structures in heritage settings (9.3.5.1(n)) for activities not falling within Rule P5, but not temporary event structures in heritage items that are in an open space for activities not falling within Rule P4.122 The Council agrees with Hands off Hagley's submission, and has amended 9.3.5.1(n) accordingly.
9.3.5.2 – New Building, Alteration and Demolition of West Façade of the Public Trust Office
7.15 Matters of discretion 9.3.5.2 were added to the proposal following mediation held in March 2016. These matters apply to the West Façade of the Public Trust Building only. It is submitted that these matters encompass the important elements that will need to be considered in relation to any application to demolish this façade, in light of the particular circumstances of the building.
122 Closing submissions of Hands off Hagley, dated 15 June 2016 at page 5.
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9.3.5.3 – Akaroa Historic Area
7.16 These matters of discretion were discussed among mediation participants, and agreement was reached that there was room for the matters of discretion to be developed.123 It was agreed that a matter of discretion should apply to all underlying zones in the Heritage Area. The Council agreed to look further into which specific zones would be affected and how the matter of discretion would fit into each zone, and the zones and rules were identified in the attachment to the Council's 20 April 2016 memorandum, reproduced as Appendix D to these closing legal submissions.
7.17 Rod Donald Banks Peninsula Trust and Akaroa Civic Trust have submitted that 9.3.5.3 (c) is incorrect and is not the wording that was agreed to in mediation. The submitters have noted that the reference should instead be to the Design Guidelines in 15.10.5. This correction has now been made.
7.18 The Crown has confirmed that the current provisions in 9.3.5.3 reflect the matters sought by the Crown, noting that reference to the Akaroa Design Guide reflects inclusion of this in Chapter 15 (Commercial) through Decision 11.124
8. APPENDICES
9.3.6.1 – Schedules of Significant Historic Heritage Places
8.1 Appendix 9.3.6.1 provides the schedule of significant historic heritage places:
(a) 9.3.6.1.1 provides the schedule for Christchurch City (excluding Central City);
(b) 9.3.6.1.2 provides the schedule for Banks Peninsula; and
(c) 9.3.6.1.3 provides the schedule for Central City.
123 Mediation report, dated 21, 22 and 30 March 2016. 124 Closing submissions for the Crown, dated 10 June 2016 at page 17.
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8.2 Submissions seeking changes to the scheduling of specific heritage items are dealt with in part 18 of these closing legal submissions.
8.3 Church Property Trustees provided a table of corrections to 9.3.6.1 as part of their closing submissions.125 The Council has updated the various references as appropriate. As noted later in these submissions, the Council has also accepted Church Property Trustees' request to change the name of St Saviours Church at Holy Trinity.
8.4 In preparing the revised proposal, a number of other minor amendments have been made, as summarised below:
(a) Use of capital letters i.e. where setting, building or dwelling was spelt with a small letter this has been corrected to capital (consistent with the rest of the Schedules).
(b) Change required to name of heritage item in "Description" column to be consistent with the name specified in the heading of the revised Statements of Significance (79 Carmen Road and College House).
(c) Inclusion of the words "and Setting" where specific reference to setting has not been included under the "Description" column where there is an associated setting but this has not been specified (Coronation Hall, Radley Street, Canterbury Provincial Buildings).
(d) Addition of Heritage NZ Heritage List number and registration type.
(e) Correction where the heritage item is not listed in alphabetical order by Street address, as per the remainder of the Schedules.
(f) Other minor editing corrections - removal of commas, underlining, dashes.
125 Closing submissions for Church Property Trustees, dated 10 June 2016 at schedule B.
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9.3.6.7 – Scheduled Interior Heritage Fabric
8.5 The Crown supports the Council's revised approach to scheduling interiors only where they have been assessed as making a contribution to the significance of the heritage item. However, the Crown questions whether the scheduled fabric needs to be itemised to the degree of detail proposed.126 The Council's reason for including a high level of detail was to provide as much certainty as possible about which aspects of the interiors are heritage fabric. As confirmed by the Council's witnesses at the resumed hearing and discussed in part 12 below, it would be possible to adjust this level of detail and take a more summarised approach if that is what the Panel preferred.127
9.3.6.8 – Heritage Works Plan
8.6 The amendments to Rules P10 and P11, as discussed earlier, have resulted in the addition of a new Appendix 9.3.6.8, showing a heritage works plan.
8.7 Two important components required to be in the heritage works plan, as set out in Appendix 9.3.6.8, are a statement certifying that the expert meets the definition of heritage professional, and a statement setting out the experience the expert is relying on in the particular situation to establish that he or she is suitably experienced. These requirements add transparency to the process and ensure that there is an ability for the building owner and the Council to see a clear record of the expert’s relevant expertise. The statement setting out the relevant experience also enables a check to be carried out that the expert’s experience in fact relates to the same type of heritage building or fabric, and a project of a comparable scale to that set out in the heritage works plan. This should help to avoid an expert with very narrow expertise being in a position of certifying works that are not properly within his or her expertise.
126 Closing submissions for the Crown, dated 10 June 2016 at page 26. 127 Transcript 10 May 2016 (Day 14), at pages 2204 – 2205, 2218.
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8.8 The Crown supports the content of the proposed Heritage Works Plan, however it has proposed some amendments to the drafting of the provision.128 Amendments have been made to Appendix 9.3.6.8 following consideration of those drafting suggestions. In response to the Church Property Trustees' concerns about paragraph 2.6, the Council notes that these provisions were developed through a series of meetings, and have been refined since then. The Council considers paragraph 2.6 is necessary to ensure that the plan is robust, and considers these to be reasonable requirements in light of the works that might be undertaken under a heritage works plan and the potential effects of those works on heritage fabric.
8.9 The Council has also replaced "registered structural engineer" with "chartered structural engineer" to better reflect the current terminology.
9.3.6.9 - Certification of non-heritage fabric
8.10 The Crown has noted its support for the provision for certification to avoid activities being captured inappropriately by the rules, and has suggested amendments to this appendix.129 The Council has accepted the changes that it considers are appropriate, and does not consider that the remainder of the changes are necessary.
9. DEFINITIONS
9.1 Defined terms throughout the revised proposal have been shown using orange underlined text.
Alteration of a heritage item
9.2 The Crown considers that the definition of alteration of a heritage item should not refer to vegetation unless it is limited to management of vegetation in the immediate vicinity of cemetery plots where it could damage headstones, plaques or other structures. The Crown suggests deleting (g) and (h) entirely, and amending (f). The Council
128 Closing submissions on behalf of the Crown dated 10 June 2016 at pages 26 – 27. 129 Closing submissions on behalf of the Crown dated 10 June 2016 at pages 28 – 29.
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disagrees, and submits that all of the elements of the definition are appropriate and necessary in order to protect heritage values.130
9.3 The Council has retained the references to "interior or exterior" fabric at (a) and (c) on the basis that they provide certainty that the heritage fabric may be located throughout a heritage item.131
Demolition
9.4 The Crown seeks an addition to the end of the definition to state "it does not include deconstruction for the purposes of reconstruction or restoration". The Council submits that this amendment is not necessary given that deconstruction for the purpose of reconstruction is expressly included within the definition of "reconstruction".132
Heritage fabric
9.5 Concerns were raised regarding the certainty of this definition. The Council's amended approach to the protection of interiors has assisted with clarifying this definition.
9.6 Minor amendments have been made to "heritage fabric" since discussions held at mediation on 22 March 2016, by excluding some specific items from "heritage fabric", such as liturgical items and museum exhibitions. The Council has now excluded inbuilt museum and artwork exhibitions and displays. It has clarified that heritage fabric is limited to heritage fabric which is scheduled in the Schedule of Interior Heritage Fabric for that heritage item.
9.7 The Panel asked for consideration of whether the need for specialist technical advice in applying the provisions can be removed or minimised. The Council submits that this is substantially addressed by the revised approach to heritage interiors.133
130 Evidence in chief of Caroline Rachlin, dated 18 December 2015 at paragraph [16.11]; and evidence in chief of Amanda Ohs, dated 2 December 2015 at paragraph [8.8]. 131 Evidence in chief of Caroline Rachlin, dated 18 December 2015 at 16.7. 132 Evidence in chief of Caroline Rachlin, dated 18 December 2015 at paragraph [16.18]. 133 Minute of the Panel, dated 22 February 2016 at paragraph [56(d)].
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9.8 The Crown submits that this definition requires amendments to ensure that it is clear and appropriately focused on fabric that contributes to heritage significance.134 The Crown seeks to replace "aspect" with "material". The Council submits this change is unnecessary.
9.9 Further, the Crown seeks to add an additional aspect as (a), stating that heritage fabric includes "all physical material from which the heritage item is constructed." The Council submits that this is unnecessary because this is already implicit in the definition.
9.10 The Council has agreed to the Crown's suggestions to add in a specific appendix reference, and to add "for open space heritage items" to (d) for clarification.
Heritage investigative and temporary works
9.11 The Panel suggested, based on Mr Nixon's evidence, that this definition should specifically include temporary lifting and relocation of buildings, and drilling for core samples.135
9.12 This definition was discussed in mediation held on 22 March 2016. It now includes core drilling, and a change has been made to 9.3.2.1 P3 so that it does not require reinstatement of drilled cores. Temporary lifting is provided for by way of new Rule P12. The Council submits that the definition is appropriate in its current terms.
Heritage professional
9.13 The definition of heritage professional is discussed below in part 10 of these submissions. It has been updated to simplify the definition following consideration of the Crown's closing legal submissions.
134 Closing submissions for the Crown dated 10 June 2016 at page 31. 135 Minute of the Panel, dated 22 February 2016 at paragraph [60].
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Heritage setting
9.14 The Panel queried whether this definition should be amended to refer to the spatial context which is "integral to" the significance item rather than "contributes to".136 The Council has made this change.
9.15 The Crown seeks amendments to the definition of heritage setting.137 The Council agrees to remove the word "other" from the beginning of (b) however it submits that other changes are unnecessary. The words the Crown are seeking to be deleted from the provision provide detail and clarity.
Heritage values
9.16 The Crown has submitted that this definition is unnecessary as heritage values are defined in policy 9.3.2.2. The Council disagrees, as the term heritage values is used throughout the provisions in Chapter 9, so it is useful to provide a definition.
Historic Heritage Place
9.17 The Council disagrees with the Crown's proposed amendments to this definition and submits that the definition is sufficiently clear as it stands.
Maintenance
9.18 The Council disagrees with the Crown's request to considerably shorten the definition. There is a benefit for interpretation of the rules to provide detail about what is "maintenance" at a more specific level. This helps to differentiate maintenance from other activities.138
136 Minute of the Panel, dated 22 February 2016 at paragraph [60(c)]. 137 Closing submissions from the Crown, dated 10 June 2016 at page 33. 138 Evidence of in chief of Caroline Rachlin, dated 18 December 2015 at paragraph [16.14].
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Minor alterations
9.19 The drafting of a definition of minor alterations was considered at mediation in March 2016.139 Having considered this matter, the Council's preferred approach, as illustrated in the 20 April revised proposal and the attached revised proposal, is to instead specify the particular activities that are authorised in new Rule P13, rather than seeking to define minor alterations. See also the discussion above in relation to Rule P13.
Reconstruction and Restoration
9.20 The Crown seeks the deletion of "mainly" from these definitions as they consider it clouds the distinction between the two activities.140 The Council has not made this change in the revised proposal, because without this word both definitions would exclude situations where a mix of new and existing materials are used.
Repairs
9.21 The Council has amended the definition of "repairs" as a result of submitter and Panel concerns, to include building code upgrades which may be needed to meet relevant standards as part of repairs.
9.22 The Panel suggested the Council consider whether this definition should include heritage upgrade works.141 Wording was added at the end of the definition in the 20 April 2016 version so that the definition includes building code upgrades that may be needed to meet relevant standards, as part of the repairs.
New definition sought – partial demolition
9.23 The Crown seeks the addition of Partial demolition as a definition. The Council considers that a definition of partial demolition is not required in order to read and apply the plan provisions. There is
139 Mediation agreement, dated 21, 22 and 30 March 2016. 140 Closing submissions of the Crown, dated 10 June 2016 at page 35. 141 Minute of the Panel, dated 22 February 2016 at paragraph [60(b)].
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already a definition of demolition and no significant benefit will result in defining partial demolition.142
10. HERITAGE PROFESSIONAL
10.1 During the hearing, questions were raised about the accreditation and qualifications of "heritage professionals". In particular, there was a suggestion that training as an architect is a necessary precondition for the purpose of being a "heritage professional",143 and that training as an architect is necessary in order to undertake an assessment of architectural heritage significance to determine whether a building should be scheduled.144
10.2 The definition of heritage professional that has been included in the Council's revised proposal was developed through mediation and although there is some level of support for the principle of a definition there remain areas of disagreement about the specific wording. The parties gave careful thought to the Panel’s questions about whether architectural qualifications were a prerequisite and concluded that such an approach would be incorrect and inappropriate in light of the range of matters captured within the field of heritage and the way in which the definition is used in the Plan.
10.3 The definition of "historic heritage" in section 2 of the RMA lends support to a wider interpretation of what constitutes a heritage expert. The definition encompasses a range of places and qualities, of which architectural qualities is only one:
historic heritage— (a) means those natural and physical resources that contribute to an understanding and appreciation of New Zealand’s history and cultures, deriving from any of the following qualities: (i) archaeological: (ii) architectural:
142 Evidence in chief of Caroline Rachlin, dated 18 December 2015 at paragraph [16.33]. 143 Transcript of Proceedings, dated 10 February 2016 at pages 1902 – 1906. 144 See, for example, Transcript 3 February 2016 (Day 8) at page 1319 and 4 February 2016 (Day 9) at page 1438.
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(iii) cultural: (iv) historic: (v) scientific: (vi) technological; and (b) includes— (i) historic sites, structures, places, and areas; and (ii) archaeological sites; and (iii) sites of significance to Māori, including wāhi tapu; and (iv) surroundings associated with the natural and physical resources.
10.4 Architectural qualifications may assist in relation to some aspects of this definition (eg architectural and technological qualities). Qualifications in architectural history are also relevant to assessing architectural heritage value. For other aspects (eg archaeological, cultural, historic and scientific qualities), a degree in heritage conservation, history (including art history and architectural history), archaeology or other fields could have much greater relevance.
10.5 It is not the case that only architects are qualified to have input into heritage matters, and counsel are not aware of any legislative or case law support for such a proposition.
10.6 The Environment Court in Scurr v Queenstown Lakes District Council (C060/2005, 29 April 2005) stated that the key issue in considering whether a person is an “expert” is "whether the witness is sufficiently qualified, either by a special course of study and/or by experience, to assist the Court on the subject matter in issue". Whether or not a witness is sufficiently qualified is a question of fact to be determined on a case-by-case basis.145
10.7 We have not identified any discussion in Environment Court cases or cases from other courts that specifically comments on what qualifies a person to be a "heritage expert". However, the consideration of evidence from "heritage experts" without architectural qualifications in previous Environment Court cases supports a conclusion that an
145 Scurr v Queenstown Lakes District Council (C060/2005, 29 April 2005) at paragraph [48].
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architecture qualification is not a precondition to be a heritage expert.146
10.8 In Palmer v Masterton District Council [2009] NZRMA 1, although not commenting on the specific qualifications of a heritage expert, the Environment Court highlighted that architectural significance is only one of the heritage qualities that it will consider under the section 2 definition of historic heritage:
[54] We summarise the evidence on the historic heritage of the building in question by reference to qualities that respond to relevant aspects of the definition of historic heritage in the Act, and to relevant criteria in the operative and proposed district plans for assessing applications for resource consent to deal with heritage items identified in them. Some of these overlap with others to an extent. We consider the evidence about the historic significance of the building; its architectural significance; its cultural significance; its technological significance; its group significance; its significance on its original site; and the effect of the proposal on the heritage qualities that it is found to possess (emphasis added).
10.9 Accepting only those with architectural qualifications as capable of being heritage experts would be too narrow an approach and would fail to recognise the range of other heritage qualities that are of equal importance under the definition of "historic heritage" section 2 of the RMA.
146 See for example Lambton Quay Properties Nominee Ltd v Wellington City Council (2014) ELRNZ 295 at paragraph [62], referring to earlier litigation ([2013] NZEnvC 238) where the Environment Court "heard evidence from five witnesses with expertise in architectural heritage". Of those five expert witnesses, two witnesses (Ms Ann Neill and Mr Michael Kelly) did not have architectural qualifications. See also Re Site 10 Redevelopment Ltd Partnership [2015] NZEnvC 173 where Ms Barbara Fill is referred to as a "heritage expert" for Waterfront Watch Inc, despite not having any formal architectural qualifications.
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10.10 It is also noteworthy that section 4 of the Heritage New Zealand Pouhere Taonga Act 2014 expressly recognises the need to take account of all relevant disciplines:
All persons performing functions and exercising powers under this Act must recognise— … (b) the principle that the identification, protection, preservation, and conservation of New Zealand's historical and cultural heritage should—
(i) take account of all relevant cultural values, knowledge, and disciplines; …
10.11 The purpose of having input from a heritage professional under the Plan is also critical to the way it is defined. That purpose is to ensure that a person who understands heritage values is sufficiently involved in a project to ensure that historic heritage is protected and that works are carried out in a manner that is sensitive to historic values.147 This purpose would not lend itself to a restriction to architects alone, even if the submission above were not to be accepted. Beyond the core heritage considerations inherent in the above purpose, the Chapter 9.3 rules do not concern themselves with the architectural or other merits of particular works.
10.12 For assessing heritage significance or confirming what is or is not ‘heritage fabric’, there is no need for a heritage professional to be an architect. A degree in heritage conservation or art or architectural history has greater relevance for heritage identification, research and heritage significance assessment, including assessments of architectural heritage value (which is broader than its design merits and whether it is aesthetically pleasing - see the heritage assessment criterion in policy 9.3.2.1(a)(iii)) and assessing buildings for the broad range of heritage values to determine if a building meets the threshold for listing in the District Plan.
147 See policy 13.3.4 of the Canterbury Regional Policy Statement, for example.
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10.13 The types of works a heritage professional under the pRDP would provide guidance for are:
(a) the maintenance of a heritage item;
(b) repairs to a heritage item;
(c) heritage investigative and temporary works;
(d) temporary lifting; and
(e) installation, modification and removal of specified systems and fittings.
10.14 It is possible that an architect (or a draftsperson) would be involved in some of the above works in any event for reasons other than heritage. For more major works (such as heritage upgrade works or reconstruction), an architect's involvement would seem highly likely along with other professionals (eg structural engineer). However, the involvement or not of an architect or other professional in these types of works is not something that Chapter 9.3 is specifically concerned with. Importantly for those matters listed in (a) to (e) above, which Chapter 9.3 is concerned with, an architectural qualification alone, without training and experience in heritage conservation, would not be sufficient to meet the purpose of the particular Chapter 9.3 permitted activity standards that rely on involvement of a heritage professional. Even if an architect had designed particular works affecting a heritage building or setting, in the absence of additional experience or qualifications in heritage conservation, a heritage professional (architect or not) would also be needed on the project team to advise and assess impacts on heritage fabric and values of the proposed design.
10.15 If the main architect on a project has heritage conservation qualification and/or experience, that person could take on the heritage professional role for that project. Whereas, if the architect on the project does not have heritage conservation qualifications / experience, it would be necessary to involve a heritage professional
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in order to complement the role of the main architect and provide the safeguards that Chapter 9.3 is seeking to ensure.
10.16 In light of the above matters, the definition of heritage professional intentionally encapsulates different types of training, recognising that there is more than one area of specialisation within the heritage field, and more than one way of qualifying as a heritage expert in one or more of those areas. The provisions include in-built safeguards to ensure that a person who is seeking to fulfil the role of a heritage expert in any given situation is in fact working within their area of expertise. In particular, the expert who signs off a heritage works plan must include, within that plan, information confirming that they have experience that is relevant to the project at hand. In the case of certifying whether particular fabric is heritage fabric, evidence of experience assessing that type of fabric would be necessary.
10.17 The Crown has suggested amendments to the definition of heritage professional, including the removal of the category that required experience but not a qualification. The Council agrees to the removal of this category, and has made further refinements to the definition as shown in the revised proposal. For ease of reference, the amended definition is set out below:
Heritage professional
In relation to rules for heritage items in 9.3.3 and Appendix 9.3.6.8 and Appendix 9.3.6.9, heritage professional means:
(a) A registered architect with at least three years of experience, and with a recognised post-graduate qualification in a field related to heritage conservation or management, and with experience on at least three projects where he/she has acted as the principal heritage advisor for works involving a heritage building listed by Heritage New Zealand, and/or a District Plan; and/or
(b) A person with a degree or with a recognised post- graduate qualification in a field related to heritage
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conservation or management, and with at least five years of experience in heritage conservation or management, and with experience on at least five projects where they have acted as a principal heritage advisor for works involving a heritage building listed by Heritage New Zealand, and/or in a District Plan.
10.18 The Council submits that the definition is appropriate and addresses the key elements that are needed to ensure that a person is appropriately qualified and experienced to carry out the role they are given under the rules.
11. STATEMENTS OF SIGNIFICANCE
11.1 Paragraph 14 of the Panel’s 22 February 2016 minute recognised that the use of heritage statements of significance to underpin the section 32 analysis was a sound approach, but raised concerns about the way in which this approach had been implemented. In particular, the Panel was critical of the fact that the statements do not identify their contributing authors, suggested that several of the statements were prepared without input from properly qualified people, expressed concern that there was variability in the way heritage fabric was described, and suggested that there was no robust peer review of the statements.
11.2 The question of appropriate qualifications is addressed above. In light of the matters discussed there, the team approach that was taken to the preparation of the statements of significance by people with a range of qualifications,148 and the peer reviews that were undertaken as noted below, it is submitted that there is no basis for concluding that the statements were prepared without input from appropriately qualified people.
11.3 Specialists in the Council Heritage Team and external consultants with qualifications in art and architectural history, history, architecture,
148 See Appendix 4 (Heritage Technical Report) of the section 32 report, at page 17 for a summary of the process that was followed.
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cultural heritage management and experience in researching and writing heritage assessments have written the statements of significance for each of the places identified in the plan. The team held regular internal moderation meetings to address issues, ensure consistent interpretation of the criteria, develop standard terminology (where required), formatting and referencing.149
11.4 It is submitted that the absence of identification of the contributing authors in the statements is immaterial to the question of whether the statements serve their purpose of identifying key heritage significance and values of the relevant item, to underpin the section 32 evaluation. Nor does it hinder a building owner who wishes to discuss the statement or its contents with the Council; the heritage team is available to discuss the statements and in many instances the key contributors to the statements will be known to the building owner through previous correspondence or site visits. As an example this has occurred with the owners of the baches at Taylors Mistake. The Council has met with these owners on site and is writing up Statements of Significance.
11.5 In terms of variability in the descriptive approach taken, there is more than one "right" way to describe heritage significance and values, and some natural variability is to be expected. As noted previously, the authors sought to apply consistent technical terminology, but individual style in other aspects of the Statements of Significance is immaterial. Provided the reader of a statement can identify the relevant significance and values, having variation in the descriptive approach between different statements is not inherently problematic.
11.6 In relation to the matter of peer reviews, the Council reiterates that the statements were peer reviewed and it stands by the robustness of those peer reviews. The preparation and peer review process is set out in the Heritage Technical Report and in the 2 February 2016 joint statement of Mr Matheson and Ms Beaumont.
11.7 The Panel heard evidence from two of the peer reviewers, Ms May and Dr McEwan. Both are very experienced heritage consultants,
149 Appendix 4 (Heritage Technical Report) of the section 32 report, at page 17.
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neither is a Council employee, and neither was questioned or challenged about their qualifications, experience or the independence of their peer reviews.
12. HERITAGE INTERIORS
12.1 The notified proposal involved protection of heritage buildings in their entirety, including interior heritage fabric. The Panel’s 22 February 2016 minute expressed concern that this approach might not provide sufficient certainty to heritage building owners about which interior aspects could be modified without consent and which could not.
12.2 In light of the Panel’s minute, on 26 February the Council sought time to collate existing information about interiors of approximately 100 heritage buildings and engage with building owners about this information. Following mediation and given that the available timeframes did not allow time to collate the necessary information and hold discussions with the relevant owners, the Council revised its list of the buildings for which this exercise was achievable, in order to focus on 48 Council-owned buildings.150 The Council also confirmed that, as a consequence, it would not be possible to protect interiors of non-Council owned heritage buildings using a detailed scheduling approach through this pRDP process, and that scheduling and protection of the interiors of those other buildings would need to follow as a separate process and plan change in due course, should that be the approach Council subsequently wished to promote.
12.3 The Council’s 20 April 2016 supplementary evidence addressed these matters as follows:
(a) Mr Alan Matheson’s evidence provides an overview of the approach the Council has taken in preparing the revised approach to heritage interiors, and outlines the intention for future work to assess and schedule interiors of remaining heritage buildings.
150 Memorandum of counsel for Christchurch City Council, dated 1 April 2016.
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(b) Ms Amanda Ohs’ evidence outlines the importance of protecting interior heritage fabric, and explains the process, methodology and results of the recent work programme to schedule interior heritage fabric.
(c) Ms Caroline Rachlin’s evidence outlines the way in which the revised approach to heritage interior protection has been incorporated into the revised proposal.
12.4 As was traversed at the resumed hearing on 10 May 2016, there are a range of methods and levels of detail available to record the extent of heritage interior protection of particular buildings. The approach in the notified proposal involved protection of heritage buildings in their entirety, which was simpler but led to Panel concerns about potential for it to restrict works that did not in fact affect heritage fabric.
12.5 The approach in the 20 April 2016 revised proposal would provide a much more fine-grained level of protection, leading to increased certainty about what is protected and what is not. The Council recognises that there are middle-ground options available, such as the more summarised (and necessarily more broad-brush) descriptions in the Wellington District Plan. Such an approach could be taken in Christchurch by summarising the information in the heritage interior schedules, if that was considered to be preferable. However, that approach is not the Council’s preference for the following main reasons:
(a) It does not meet the test of having “particular regard to the statement of expectations”,151 specifically in matter (i) which requires that the plan uses clear, concise language and is easy to use. The approach being advocated by the Crown could lead to the schedule of interiors being listed by three different methods: (i) Broad description where all (ie 100%) interior fabric was subject to rules; (ii) Detailed description where only some aspects of heritage fabric were subject to rules; and
151 Order in Council, clause 6(2).
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(iii) A hybrid of broad and detailed descriptions where there was a mixture.
For plan users, having three different approaches to heritage fabric descriptions has the potential to create uncertainty.
(b) The approach of detailing the heritage fabric also satisfies the direction in the statement of expectations as it reduces the reliance on resource consent processes to only those aspects of heritage fabric that need to be considered (matter (a)(i)).
(c) It does not satisfy the requirements of rule writing in that rules must be clear and precise, so that those who administer the plan or are affected by it should be able to identify without difficulty the provisions that apply.
(d) For future work with heritage building owners, it is anticipated that building owner support for scheduling of interior heritage fabric is more likely to be forthcoming if the owners can see that the protection is targeted, while still allowing modifications without resource consent to other parts of the interior not scheduled. Although this will necessitate additional work on behalf of Council, a better outcome is anticipated.
12.6 At the resumed hearing on 10 May 2016, the Panel and Mr Carranceja queried whether it would be possible to house the interior fabric schedules outside the District Plan, perhaps by incorporating them by reference.152
12.7 Part 3, Schedule 1 of the RMA provides for the Incorporation of documents by reference in plans and proposed plans. Under clause 30 any written material that deals with technical matters and is too large or impractical to include in, or print as part of, the proposal plan may be incorporated by reference. The schedules of protected interior fabric could potentially fall into this category.
152 Transcript, at page 2217.
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12.8 This approach would help to reduce the length of the District Plan in terms of printed pages. However, it is submitted that this reason alone would not necessarily justify having this material incorporated by reference, as the Plan is an e-plan and the Appendices will appear as hyperlinks rather than as large or lengthy pages that must be scrolled through.
12.9 Incorporating the schedules by reference would not substantially reduce the process requirements for updating the schedules or adding interior schedules for additional heritage buildings. This is because under clause 31, updating material that is incorporated by reference requires a plan change before the material will have legal effect as part of the plan.
12.10 The Council therefore submits that including the interior fabric detail in Appendices within the Plan itself is the most appropriate method.
12.11 During the hearing on 10 May 2016, Dr Mitchell queried whether a rule could be drafted in such a way as to extend interior protection to other scheduled buildings where there was agreement from the landowner. He queried whether having provisions providing for the process of scheduling and agreement in the future would add value to the Plan.153
12.12 Mr Matheson agreed that such a provision could have value, and advised that the Council would look into some policy direction for future work in 9.3.2.1(d).
12.13 The Council has considered this matter further, and while it supports the idea in principle, it considers there are significant uncertainties about whether such an approach could properly be translated into the rules. In essence the approach would purport to add particular fabric informally to the schedule of interior fabric in the Plan, without going through a plan change. The Council has not included such an approach in the revised proposal.
12.14 The Council notes that there are other methods outside the Plan that can be used where a ‘willing owner’ seeks to protect a heritage
153 Transcript, at page 2197.
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building (including transferring of the building to a trust that has the purpose of the buildings protection, private and Council covenants). The Council’s preference is to rely on the private plan change process (which provides for Council to adopt as its own) or a Council- led plan change. Given the ‘willing owner’ situation, the risks of heritage loss are considered minimal and do not warrant further development of this approach.
13. LANDOWNER ENGAGEMENT AND BUY-IN
13.1 Emphasis has been placed on the need for landowner engagement in the course of this hearing.154 The Council agrees that, as a general proposition, it is desirable to have "buy in" from stakeholders in relation to proposed plan provisions. However, the Council submits that this does not mean that a heritage listing can only be included in the plan where there is landowner agreement. Irrespective of the level of buy-in from landowners, there are obligations in section 6(f) of the Act that must be recognised and provided for. Landowners do not have a right of veto in relation to the controls that are imposed on their land under the RMA.
13.2 Nor does landowner buy-in mean that requiring resource consents is not acceptable. A district plan is a regulatory document and inherently involves a level of intervention in order to achieve the purpose of the RMA.
14. FINANCIAL BURDEN AND PART 2 RMA MATTERS
14.1 The Council has considered the Panel's questions regarding whether financial burden, for churches in particular, should be taken into account under section 5 of the RMA and weighed against matters of protection in section 6.155
14.2 It is submitted that any financial burden of a particular regulatory approach is relevant to the Panel's assessment of costs under section 32, and will also have relevance under the section 5
154 For example, see Transcript, 18 January 2016 (Day 1) at page 118. 155 Transcript, 2 February 2016 (Day 7) at pages 1006 – 1007.
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consideration of whether the regulatory approach enables people and communities to provide for their social, economic, and cultural well- being.
14.3 Section 6 matters are to be recognised and provided for "in achieving the purpose of this Act". The traditional approach since NZ Rail v Marlborough District Council [1994] NZRMA 70 (HC) has been to apply an overall broad judgement about sustainable management under section 5. However, there has been more recent recognition that provision must still be made for the matters in section 6, and that there is a tension between the overall broad judgement approach and the ability to set binding policy directives (eg in national or regional policy statements) that must be given effect to in district plans.156
14.4 In the present case, it is submitted that the direction in the Canterbury Regional Policy Statement (CRPS) is instructive as it is the most immediate and relevant higher order document, including on the question of the benefits and costs of heritage protection. Objectives 3 and 6 and Policy 17 of the New Zealand Coastal Policy Statement 2010 are also relevant, but are not considered separately as they are broader and have been incorporated with more specific detail within the objective and policy framework of the CRPS. In particular:
(a) Objective 13.2.3 and its associated principal reasons and explanation state:
Objective 13.2.3 Repair, reconstruction, seismic strengthening, on-going conservation and maintenance of built historic heritage The importance of enabling the repair, reconstruction, seismic strengthening, and ongoing conservation and maintenance of historic heritage and the economic costs associated with these matters is recognised.
Principal reasons and explanation
156 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38.
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The devastating loss of the built heritage in the Canterbury earthquakes has increased the value of the remaining built heritage in the Canterbury Region. The objective seeks to recognise that there are economic costs associated with the ongoing conservation and maintenance of these remaining buildings. Some of the economic costs resulting from repair, reconstruction and seismic strengthening may be met through ensuring that appropriate development is able to occur, including sensitive adaptive re-use, while maintaining the historic values of the buildings.
(b) Policy 13.3.4 and its associated principal reasons and explanations state:
Policy 13.3.4 Appropriate management of historic buildings Recognise and provide for the social, economic and cultural well-being of people and communities by enabling appropriate repair, rebuilding, upgrading, seismic strengthening and adaptive re- use of historic buildings and their surrounds in a manner that is sensitive to their historic values.
Principal reasons and explanations Providing for adaptive re-use of historic buildings can enable the social, economic and cultural well- being of people and communities and ensure that historic heritage is conserved and maintained for use and enjoyment by both current and future generations. This policy recognises the direct relationship between social, cultural and economic wellbeing and the ability to repair, reconstruct, seismic strengthen, conserve and maintain historic buildings, while being sensitive to the historic values of the buildings and their surrounds. Economics will often be a factor as to how quickly
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or easily re-use can be achieved, and will need to be considered on a case-by-case basis.
14.5 The above provisions demonstrate the following themes:
(a) The CRPS prioritises enabling the repair, reconstruction, seismic strengthening, and ongoing conservation and maintenance of historic heritage.
(b) At the same time it recognises the economic costs associated with doing so.
(c) The direction to enable appropriate development, including sensitive adaptive re-use, while maintaining the historic values of the buildings, is specifically in response to the economic costs resulting from repair, reconstruction and seismic strengthening.
(d) Enabling appropriate repair, rebuilding, upgrading, seismic strengthening and adaptive re-use of historic buildings and their surrounds in a manner that is sensitive to their historic values is a means of recognising and providing for the social, economic and cultural well-being of people and communities.
(e) There is a direct relationship between social, cultural and economic wellbeing and the ability to repair, reconstruct, seismic strengthen, conserve and maintain historic buildings.
14.6 It is respectfully submitted that the revised proposal appropriately gives effect to the clear policy direction in the CRPS, including its emphasis of the benefits of protecting historic heritage for the overall well-being of the community, while recognising individual costs.
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15. BESPOKE REGIME FOR CHURCHES
15.1 During the course of the hearing, the Panel raised the possibility of applying a bespoke regime for churches, given the unique difficulties associated with their position as non-commercial buildings.157
15.2 Mr Nixon outlined that there would be two ways to provide a bespoke regime for churches, being to categorise the buildings differently or to assess demolition and repair in a way that recognises the differences between churches and other sites. Mr Nixon expressed reservations about the development of a bespoke regime, due to the possibility of it raising discrimination issues and concerns that the regime was unjustified. He acknowledged that churches are in a uniquely difficult position.158
15.3 The Council submits that a bespoke regime for churches beyond what is already provided for the two Cathedrals is not necessary or appropriate, and notes that it has not been specifically pursued in closing legal submissions. The current rules adequately provide for churches, and a number of rules apply only to particular churches as and when appropriate. The rules now also provide greater flexibility for all building owners through the change in approach to protection of interiors, and the supervision pathway in the permitted activity rules. The Council does not wish to separate churches out as being any more or less significant than any other heritage item.
16. APPROACH OF LISTING BUILDINGS AS A WHOLE
16.1 The Panel queried during the hearing whether the Council has taken a consistent approach to the listing of buildings as a whole or as partial listings.159
16.2 The Council's preference remains that in general buildings should not be split up into separate listings or split so only part of a building is listed.160
157 For example, Judge Hassan questions to Mike Copeland (Transcript 4 February 2016 (Day 9) at page 1393) regarding Churches not being commercial / motivated by commercial drivers so it may be less efficient to regulate them. 158 Transcript 3 February 2016 (Day 8), at pages 1263 – 1264. 159 Transcript 3 February 2016 (Day8), at page 1323.
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16.3 The Council acknowledges that agreement was reached to exclude the basement of St Augustine’s Church Cashmere from the listing, following the Panel's preliminary view that the basement should be excluded from the listing.161 In this instance the Council considered an exception could be made in light of the Panel's view and because:
(a) Although the basement and the rest of the building are physically attached, there is separation between the building and the basement. The form of the two parts is quite distinct.162
(b) The interior of the basement has limited heritage value.
17. COUNCIL NON-REGULATORY METHODS
17.1 The Council Heritage team provides free advice to owners of heritage buildings, places and objects. Specifically, the support the Council offers includes:
(a) guidance to owners of earthquake damaged buildings helping to explore options for future use, with a particular focus on repair options and processes, enabling owners to make informed decisions;
(b) conservation advice including guidance for making safe and repairing all types of heritage buildings. Best practice conservation principles contained in the ICOMOS New Zealand Charter 2010 are promoted as far as practical in the Canterbury post-earthquakes context;
(c) advice on resource consents for works to listed heritage items, including discussions and site visits before any applications are made;
160 Memorandum of Counsel regarding Council's position on 9.1, 9.3 and 9.4, dated 15 February 2016 at paragraph [20]. 161 Minute of the Panel, dated 22 February 2016 at paragraph [67]. 162 Transcript 22 January 2016 (Day 5), at page 807.
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(d) further details about the Council's grant funding available for conservation works on listed buildings; and
(e) access to hard copy heritage files for listed heritage items and some non-listed items which are able to be viewed at Council offices by appointment.
17.2 In addition to the Central City Landmark Heritage Grants programme discussed later in these submissions, the Heritage Incentive Grants Fund is aimed to encourage maintenance, repair, upgrade and retention of heritage buildings. It provides financial assistance to owners of heritage items. Owners can apply for grants of up to 50% towards heritage related works such as conservation of exterior and interior heritage fabric, professional fees, and seismic strengthening.
17.3 Both the Council advice and the Heritage Incentive Grants have been available to owners of heritage items since the 1990s. The Council encourages owners who wish to conduct work on their scheduled items to discuss their work with the heritage team and apply for the grant.
18. SITE SPECIFIC REQUESTS
The Crossings Development / Former Beath’s Department Store
18.1 Carter Group Limited's submission supported the inclusion of Heritage Item 90 – Former Beath's Department Store, in the heritage schedule as notified in the pRDP,163 and the expert evidence called by the Carter Group (Ms May and Mr Phillips) was consistent with that submission. However, during the hearing, Mr Carter reversed that position and sought the removal of the building from the heritage schedule in its entirety.164
18.2 As a result of the change of position, the listing of the former department store and future Crossing development site was discussed at mediation held in March 2016. The mediation report notes the intention for further discussion about the listing of the
163 Submission of Carter Group Limited, #3602. 214 - .218. 164 Transcript, 3 February 2016 (Day 8), at page 1153.
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façade and the potential for the inclusion of a matter of discretion for urban design. Agreement has not been reached about this matter and the Council’s position remains that the façade meets the threshold for listing as a significant (Group 2) heritage item. There is no expert evidence disputing that position.
18.3 The reason for Mr Carter’s change of view appears to have been a concern about the applicable rules being too restrictive. However, in between the time of lodging the Carter Group’s submission in support of the listing and the change of position to opposing the listing, the rules have become less restrictive as a result of evidence and mediations, as outlined earlier in these closing submissions. The Carter Group’s planner, Mr Phillips, was present at those mediations.
18.4 The Council submits that the scheduling of this façade remains appropriate and that, particularly with the amendments that have been made to the rules, there is a clear and reasonable pathway for the Carter Group to carry out works on the building, either under the expanded permitted activity rules or through a resource consent application.
High Street Triangles
18.5 The High Street Triangles are the five reserves formed by High Street Crossing on Colombo, Cashel, Lichfield and Tuam Streets. The formation of triangles at this site was a result of the development of a roadway to connect the city to Sumner creating a diagonal across a grid layout. Originally, the Triangles served as a location for essentials such as wells, water troughs and a taxi stand. In more recent times the Triangles have been converted to provide inner city recreational space with fountains, plantings and seating.165
18.6 Carter Group Limited’s submission opposed the listing of the Triangles as heritage items, noting a concern that their protection may affect adjacent development.166 However, as noted in Mr Phillips’ evidence for the Carter Group, both Ms May for the Carter Group and
165 Evidence in chief of Amanda Ohs, dated 2 December 2015 at paragraph [9.26]. 166 #3602 at paragraph [6.22(c)] and Closing Submissions of Carter Group Limited, dated 10 June 2016 at paragraph [22].
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Ms Ohs for the Council supported the listing of the triangles on heritage grounds.167 Mr Phillips’ evidence noted that, on the basis of that evidence and noting that there is no direct consenting obligation on adjacent or nearby landowners, he considered that the listing of the Triangles is appropriate.168
18.7 All four expert witnesses who gave evidence in relation to the Triangles, two of whom were engaged by the Carter Group, supported the continued listing of the Triangles. It is submitted that these witnesses’ evidence should be relied upon and that the listing should remain.
Hagley Park
18.8 Hands Off Hagley's submission (#3711) sought the scheduling of Hagley Park as a heritage item.169 The Council has considered this matter carefully and it has been traversed in several mediations. The Council does not dispute the importance of Hagley Park to the city. The question is what is the most appropriate way to recognise that importance and manage activities at the park. At present, there is a range of regulatory and non-regulatory measures in place.
18.9 The Council submits that scheduling Hagley Park would be inappropriate, and that Hagley Park’s values are already sufficiently protected by other mechanisms. In particular, the Council submits that an appropriate level of management and protection is already provided by other parts of the pRDP and by various plans and documents which sit outside the pRDP.
18.10 Ms Rachlin in her evidence to the Panel:
(a) Provided a summary of the regulatory and non-regulatory controls in relation to Hagley Park. Ms Rachlin noted that identification in the Schedule is not the only available form of protection for heritage values, and that inclusion in the
167 Evidence in chief of Jeremy Phillips, dated 10 December 2015 at paragraph [40]; evidence of Jennifer May, dated 10 December 2015 at paragraph [14]; and evidence in chief of Amanda Ohs, dated 2 December 2015 at paragraph [9.26]. 168 Evidence in chief of Jeremy Phillips, dated 10 December 2015 at paragraph [41]. 169 Hands off Hagley's Closing Submissions, dated 10 June 2016 at page 5.
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Schedule "may not necessarily be the best mechanism for the Park's protection"; and
(b) Further assessment was required to confirm whether Hagley Park met the thresholds/criteria for inclusion in the Schedule.170
18.11 Ms May's evidence was that "in principle" she considered that Hagley Park would have sufficient heritage and historic values to warrant its listing in the Schedule. However, Ms May described this as a "qualified statement" and noted the listing of Hagley Park would "require scrutiny through the Council's heritage assessment methodology and thresholds criteria".171 Exhibit 8 tabled at the hearing on 22 January 2016 is a statement of significance prepared by Louise Beaumont in that regard.
18.12 Ms May also acknowledged, in response to questions from the Panel, the difference between identifying significance, and decisions made on how to recognise and provide for it (the latter being a planning matter).172 Ms Rachlin concluded that the current protection is sufficient from a planning perspective.173
18.13 While Hagley Park includes a number of heritage features and heritage characteristics, the park also serves an important function as public active recreation space. Hands off Hagley has not put forward a concrete proposal about what rules it considers would be appropriate for this location, and it should not be assumed that the Chapter 9 rules applying to heritage items would necessarily be appropriate.
18.14 The amendments proposed by the Council to the objectives, policies and rules applying to Hagley Park through its Open Space Community Park (OCP) zoning provide a greater, and appropriate,
170 Ms Caroline Rachlin's rebuttal evidence, dated 15 January 2016 at paragraph [7.1]. 171 Transcript, 22 January 2016 (Day 5) at page 782. 172 Transcript, 22 January 2016 (Day 5) at page 792. 173 Transcript, 2 February 2016 (Day 7) at page 935.
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degree of recognition to the Park’s heritage and heritage characteristics.174 In particular:
(a) 18.1.3 Objective 3 a. includes that “Activities, buildings and structures within open spaces are of a scale, form and design which…viii protect the heritage and visual landscape characteristics of Hagley Park and its primary function for outdoor active and passive recreation and sporting activities".
(b) In response to Hands off Hagley's concerns, additional matters for Hagley Park have been added to the matters of discretion for the Council to consider when deciding whether to grant a resource consent for activities not complying with the permitted activity standards. These include the botanical and heritage features within the park (18.7.1.14 and 18.7.2.6).
18.15 Through Chapter 9.3, the Council has identified particular historic heritage features of Hagley Park to be listed for protection as Significant Historic Heritage Places in Appendix 9.3.6.1 of the proposal, including the Canterbury Cricket Umpires' Association Pavilion, the Band Rotunda, Park Bridge, and Helmores Lane Bridge.
18.16 Hands off Hagley noted in their closing submissions that the Council has simply "rolled over" these four heritage structures.175 The Council stands by the inclusion of these four listings and notes that each is supported by a Statement of Significance.
18.17 The Council submits that adding all of Hagley Park to the Schedule is not necessary to protect the Park’s identified heritage features and characteristics, in light of the other methods described above. However, the Council recognises the Park's importance to the people of Christchurch, and that it is a significant part of the urban form of the City. The Council considers that some of the current regulatory and non-regulatory documents that manage activities within Hagley Park
174 Christchurch City Council’s Closing Legal Submissions for Open Space, dated 7 April 2016 at paragraphs [6.17] – [6.18]. 175 Closing submissions for Hands off Hagley, dated 10 June 2016 at page 24.
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are out of date, are uncoordinated, and/or contain matters that are better placed in another document. A comprehensive review and updating of all documents is required. Therefore it is open to continuing discussions with Hands off Hagley and the wider community regarding possible future recognition of the Park's importance in a broader sense through another mechanism.
18.18 Hands off Hagley, in its closing submissions dated 10 June 2016, discussed changes to Chapter 18: Open Space. The Council notes that the time for closing submissions on Chapter 18 has now passed.
Akaroa Heritage Area
18.1 The inclusion of an Akaroa Heritage Area was agreed at mediation held on 22 March 2016.
18.2 The map attached to these closings at Appendix H shows the area which Council recommends to be added into the boundaries of the Akaroa Heritage Area in response to the closing submission of Rod Donald Banks Peninsula Trust and the Akaroa Civic Trust. This would form an additional area of land beyond that shown in the Council's revised proposal of 20 April 2016.
18.3 The area to be included falls within the Garden of Tane Reserve Land. Both this area and the further area sought by the submitters (i.e. cemeteries) as shown on the map are recognised by the Council as having historical heritage value and forming part of the registered Heritage New Zealand area.
18.4 However, when turning to considerations of fairness to landowners, including whether the landowner would have readily been aware of the extent of the submission (i.e. whether the land is included with the Trust's submission) and the impact of the submission the following is noted:
(a) the Garden of Tane extension is considered to be a logical extension, given part of it is already mapped within the
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BPDP Akaroa Historic Area, and is under the ownership of the Department of Conservation;
(b) the additional cemeteries area is zone for open space in the pRDP, and accordingly the Council considers that appropriate provision is already made to manage the open space values in this locality. Those provisions will assist in suitably managing the heritage values, and given the use of the land it is considered there is limited risk to not include this area in the Akaroa Heritage Area; and
(c) the additional cemeteries area (also shown on Appendix H) is managed by the City Council however is not owned by the Council. The Council has concerns as to the extent of awareness that the owners of the land would have had of the submitters' request including their land, particularly given the nature of the submissions on this matter which did not attach a map per se but relied on the Heritage New Zealand map.
18.5 The Council has therefore not included the cemeteries land in the Akaroa Heritage Area in the revised proposal.
18.6 The heritage area does not result in any additional resource consent triggers, but instead relies on matters of discretion being added in relevant rules so that, if an activity already requires consent, the heritage values of the area need to be considered. These matters of discretion are located at 9.3.5.3 as discussed above at paragraph 7.16.
Arts Centre Registry Office
18.7 When this proposal was notified, the Arts Centre Registry Office (built in 1957 and 1966) was scheduled as part of the Registry Building (built in 1916 and 1926) as a Group 1 heritage item. As outlined in Dr McEwan’s evidence,176 following mediation and further consideration, the Council has agreed that the office building is separate from the
176 Transcript, 23 January 2016 (Day 6) at page 879, Evidence in Chief of Dr Ann McEwan, dated 2 December 2015, at paragraph [5.5].
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registry building and could therefore be assessed independently of the earlier building.
18.8 The Arts Centre Trust Board seeks the delisting of the Registry Office, while the Council remains of the view that the exterior of the Registry Office meets the threshold for listing as a Group 2 building.
18.9 The Panel heard evidence from two heritage witnesses in relation to this building. Dr McEwan provided an updated statement of significance for the Registry Office and its setting, which concluded that it is of “overall heritage significance to Christchurch, including Banks Peninsula, as a distinctive, mid-twentieth century element within a complex of buildings that housed Canterbury University College (later the University of Canterbury) between the 1870s and the 1970s, and the Christchurch Arts Centre from that time to the present day.”
18.10 In relation to the values set out in policy 9.3.2.1(a):
(a) The building has historical and social significance for its former role as the University’s administrative offices and the development of the building illustrates the growth of the university in the post-war period.
(b) The Registry has cultural value for its service to Canterbury College/University and, for the last forty years, the Arts Centre of Christchurch.
(c) The building has architectural and aesthetic significance for its design by leading Canterbury architectural practice Collins Architects that illustrates the transition from a mid- twentieth century response to the Gothic Revival style to the high point of International Modernism.
(d) The Registry Office has technological and craftsmanship significance for the capacity it has to reveal information about mid-twentieth century materials and construction methods, particularly its first floor glass curtain walling.
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(e) The building has contextual value in relation to the Registry, its shared setting within the former Canterbury College Heritage Place, and as a component of the wider heritage area in the western central city.
(f) The Registry Office and its setting have archaeological significance because they have the potential to provide archaeological evidence relating to past building construction methods and materials, and human activity on site, including that which occurred prior to 1900.
18.11 Dr McEwan’s evidence is that all the buildings on the Arts Centre site have a shared history and heritage value in relation to one another in the former University of Canterbury development of the block.177
18.12 Mr Pearson did not dispute that the building had heritage significance, but rather took the view that the significance was lower “some significance” than as assessed by Dr McEwan. Mr Pearson’s view was that the building was intended to be a short term solution to the university’s needs. However, the building is still standing on the Arts Centre site 60 years later, and it is submitted that the original owner’s intentions upon construction, even if Mr Pearson is correct about those, are not determinative of whether a building has heritage value.
18.13 A substantial portion of Mr Pearson’s heritage significance assessment178 focused on architectural elements of the building, and he was critical of the building from an architectural perspective. His view was that the building was utilitarian and a second rate imitation of a stone building, and that it detracts from the registry and campus. The Arts Centre’s closing submissions rely heavily on Mr Pearson’s ability to comment on the architectural merits of the building179 and on the level of detail of his description of the fabric of the building.180
177 Transcript, 23 January 2016 (Day 6) at page 879. 178 Evidence in chief of Mr David Pearson, dated 10 December 2015 at Part 3 of the report, Appendix A. 179 Arts Centre Trust Board closing submissions, dated 9 June 2016 at paragraphs [11] – [12]. 180 Arts Centre Trust Board closing submissions, dated 9 June 2016 at paragraph [16].
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18.14 It is submitted that the Trust Board’s case has:
(a) placed an overemphasis on architecture. As is evident from policy 9.3.2.1(a), architectural and aesthetic value is only one of the six aspects of heritage significance assessment;
(b) incorrectly substituted “architectural merit” for “architectural and aesthetic value”. The focus of this aspect of heritage significance assessment is on the latter, and what those values are demonstrative of or associated with, rather than on whether a building has architectural merit or is of a particular standard, as illustrated by policy 9.3.2.1(a)(iii):
“Architectural and aesthetic values that demonstrate or are associated with: a particular style, period or designer, design values, form, scale, colour, texture and material of the place”.
18.15 Dr McEwan confirmed when she gave evidence that she could not comment on Mr Pearson’s criticisms of whether the execution and detail of the Registry Office, particularly the ground floor, is of a lower standard compared to the other buildings on the Arts Centre site.181 Contrary to what the Arts Centre closing submissions suggest,182 the significance of this point is not that Dr McEwan is insufficiently qualified to assess heritage significance (she is well qualified in that regard), but that criticisms about the architectural merits of a building are not assessments of heritage value.
18.16 The Council rejects the Trust Board’s suggestion that Dr McEwan’s involvement with DOCOMOMO somehow reduces her ability to expertly assess heritage significance. That involvement (along with Dr McEwan’s involvement with the Society of Architectural Historians of Australia and New Zealand, the Professional Historians Association of New Zealand Aotearoa, the Auckland Council Heritage Advisory Panel, the Hamilton City Council Heritage Advisory Panel, and the School of Architecture & Planning at the University of Auckland) simply reflects Dr McEwan’s professional interest in
181 Transcript, 23 January 2016 (Day 6) at page 897. 182 Arts Centre Trust Board closing submissions, dated 9 June 2016 at paragraph [12].
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heritage, history and architecture. The absence of such associations would be more concerning than their presence.
18.17 The Council also rejects the Trust Board’s suggestion that Dr McEwan has insufficient experience with the Arts Centre to carry out a heritage assessment of it, or that her assessment was not robust. Dr McEwan has undertaken a site visit, and she has also drawn on available information about the history and plans of the site.183
18.18 The Arts Centre Trust Board is concerned that scheduling the Registry Office would compromise the flexibility and adaptability of this building.184 However, in line with the approach to heritage interiors outlined earlier, it is now only the exterior of the building that is to be protected under this proposal, removing the uncertainty about whether future changes to the internal layout of the building would require resource consent. In addition, more flexibility has been built into the rules since the proposal was notified. In particular: 18.19 (a) P1, P2 and P3 allow for repairs, maintenance, and heritage and investigative works of a heritage item as permitted with an alternative pathway to complying with the standard through the oversight of the works by a heritage professional (newly defined term);
(b) P4 allows for temporary buildings or structures, and is no longer limited to buildings, marquees or containers; P6 allows for larger signs;
(c) P10 allows for heritage upgrade works; and
(d) new P13 also enables some minor alterations as permitted, for example installing heating, cooling, and ventilation systems for buildings
18.20 The Trust broadly supports the changes that have been made to the provisions, and has not sought any further changes. It is submitted that the additional flexibility in the rules will reduce the cost of
183 Evidence in chief of Dr Ann McEwan, dated 2 December 2015 at paragraph [5.4]. 184 Arts Centre Trust Board closing submissions, dated 9 June 2016 at paragraph [2(b)].
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complying with the rules while maintaining an appropriate degree of protection of this building’s heritage value.
St Barnabas Parish Administration Building
18.21 The scheduling of this building was discussed in mediation, but no agreement was reached.
18.22 In relation to the values set out in policy 9.3.2.1(a), the Council maintains that the building has historical and social significance as a reflection of the mid-twentieth century peak in church attendance in New Zealand. It has spiritual significance for past use as a Sunday School and the continued use for 50-odd years as administration for the Church.185 It is an example of the work by Hollis and Leonard, it has been designed in sympathy with the adjacent buildings, and the use of the aggregate reflects the construction materials and colours of the hall and the church.186 The Council has provided further details in the updated Statement of Significance attached to Ms Ohs’ rebuttal evidence at Appendix D, and at the hearing Ms Ohs confirmed that she considered the building meets the threshold for listing.187
18.23 Mr Pearson acknowledged the historical and social significance of the overall site.188 He acknowledged that the building has some historical and social significance, some cultural and spiritual significance, and that degrees of significance are a matter of judgement and could be finely balanced.189
18.24 Mr Pearson’s evidence was critical of the St Barnabas Parish Administration Building from an architectural perspective.190 However, as noted above in relation to his evidence on the Arts Centre Registry Office, the focus of the architectural aspect of heritage significance assessment is on “architectural and aesthetic value”, and what those values are demonstrative of or associated with, rather than on whether a building has architectural merit or is of a particular standard.
185 Transcript, 22 January 2016 (Day 5) at page 811. 186 Transcript, 22 January 2016 (Day 5) at page 812. 187 Transcript, 22 January 2016 (Day 5) at page 798. 188 Transcript, 3 February 2016 (Day 8) at page 1210. 189 Transcript, 3 February 2016 (Day 8) at page 1215. 190 Evidence in chief of Mr David Pearson, dated 10 December 2015 at paragraphs [83] – [84].
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18.25 Church Property Trustees' closing submissions attempt to discount Ms Ohs’ views on the basis of her reliance on the revised Statement of Significance.191 The statement of significance was attached to Ms Ohs' rebuttal evidence and it was clear from Ms Ohs’ evidence at the hearing that she had considered and formed her own views about the heritage significance of the building. Given that the key points of the assessment were set out in the statement of significance attached to her evidence, there was no need for her to repeat those points in the body of her evidence. In addition, the statement of significance had had input from and peer review by other heritage professionals as per the process outlined earlier in these submissions.
Public Trust – 152 Oxford Terrace
18.26 In the notified proposal, the former Public Trust building at 152 Oxford Terrace was scheduled as a Group 2 heritage building. The revised proposal is for the scheduling of the façade only, with a new restricted discretionary activity rule RD8 for demolition of the façade.
18.27 Tailorspace’s submission sought the delisting of the building and/or controlled activity status for its demolition. Tailorspace’s closing submissions indicate opposition to the scheduling of the façade and seek an amendment to policy 9.3.2.8 to include reference to whether retention of the heritage item would enable and facilitate recovery from the impacts of the Christchurch earthquakes.
Higher order directions
18.28 As acknowledged by Tailorspace, the CRPS undeniably provides a framework that recognises and provides for heritage values.192 Tailorspace likewise acknowledges that the emphasis in the CRPS on repair and reconstruction is appropriate in light of section 6(f).193
191 Closing submissions of Church Property Trustees, dated 10 June 2016 at page 6. 192 Closing submissions of Tailorspace, dated 10 June 2016 at Appendix A paragraph [37]. 193 Closing submissions of Tailorspace, dated 10 June 2016 at Appendix A, at paragraph [35].
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18.29 However, Tailorspace’s anticipation of an argument that such directions “preclude demolition of heritage items”194 misconstrues the Council’s position and the effect of the revised proposal. The Council does not claim that section 6(f) and the CRPS require demolition of heritage items is to be “precluded” (which would appear to assume a prohibited activity status that has never been part of the proposal).
18.30 Contrary to the repeated statements in Tailorspace's closing submissions, the revised proposal does not take a "very heavy" or "near-total heritage conservation" approach, or “preclude” demolition. Rather, the heritage assessment and scheduling provisions and the policies that address management of heritage items include recognition that there may be good reasons why a building should not be scheduled, or why an owner should be able to adaptively reuse a scheduled building, or demolish it in appropriate circumstances.
18.31 Demolition of the Public Trust façade is a restricted discretionary activity under Rule RD8. To further put this into perspective, and setting aside the heritage listing, a restricted discretionary activity consent is required under the Operative City Plan in any event for any building in the Central City zone, with a focus on urban design matters (eg relationship of the frontage to the street, relationship to adjoining buildings).
Where does recovery fit in and what does it require?
18.32 Appendix A of Tailorspace's closing submissions helpfully sets out key references in the CER Act to recovery, and the meaning of the term recovery as confirmed in case law.195 However, in applying that term to the revised proposal, Tailorspace repeats its incorrect categorisation of the proposal as requiring “near-total conservation”, and as a result it incorrectly assumes that the proposal is inconsistent with the recovery.
18.33 As noted earlier, the proposal does not take a near-total conservation approach. Nor does recovery necessarily require the demolition of damaged buildings. Rather, as Tailorspace has noted, recovery
194 Closing submissions of Tailorspace, dated 10 June 2016 at Appendix A, at paragraph [36]. 195 Closing submissions of Tailorspace, dated 10 June 2016 at Appendix A, paragraphs [2] – [4].
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“includes restoration and enhancement, the latter clearly incorporating the concept of improvement”, and repair and rebuilding are expressly included in section 3(f) of the CER Act:
to facilitate, co-ordinate, and direct the planning, rebuilding, and recovery of affected communities, including the repair and rebuilding of land, infrastructure, and other property.
18.34 Nowhere in the provisions quoted by Tailorspace is there a directive that recovery favours demolition over repair. There is more than one response to damage.
18.35 The Council submits that retaining heritage is a core part of recovery and it should not be assumed that encouraging the retention of heritage items impedes recovery. As noted earlier, policy 13.3.4 of the CRPS expressly recognises that “enabling appropriate repair, rebuilding, upgrading, seismic strengthening and adaptive re-use of historic buildings and their surrounds in a manner that is sensitive to their historic values” is a way of recognising and providing for the social, economic and cultural well-being of people and communities. As explained below that policy:
Providing for adaptive re-use of historic buildings can enable the social, economic and cultural well-being of people and communities and ensure that historic heritage is conserved and maintained for use and enjoyment by both current and future generations. This policy recognises the direct relationship between social, cultural and economic wellbeing and the ability to repair, reconstruct, seismic strengthen, conserve and maintain historic buildings, while being sensitive to the historic values of the buildings and their surrounds. Economics will often be a factor as to how quickly or easily re-use can be achieved, and will need to be considered on a case-by-case basis.
Heritage significance – policy 9.3.2.1(a) and (b)
18.36 The heritage significance of the Public Trust building was outlined by Ms May, and no contrary heritage evidence was called by any submitter.
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18.37 As outlined by Ms May, “the Public Trust building has considerable heritage significance and value as a reflection of the large-scale
building programme by the Public Trust in the early part of the 20th century, for the subsequent social and intangible history it has gathered overtime and for its high architectural significance”.196 She noted that it is “a prominent landmark fronting the Avon River” and is a survivor in an area that once housed a number of listed buildings.
18.38 The Council acknowledges that the building is damaged, and that this presents challenges for the use of the site in the future. In light of the condition of the rear of the building, the Council has accepted that the building’s scheduling can be modified to exclude the rear of the building (ie with the scheduling applying only to the façade). The section 32 report recognises the potential to take this approach in situations where the remainder of the building is irrevocably damaged or no longer standing in order to maintain city identity and cultural anchors for the community.197
18.39 Ms May’s evidence is that she could support façade retention, in that the façade would retain contextual values, sense of place and enough tangible evidence to support continued scheduling.198
18.40 A revised statement of significance reflecting the scheduling of the façade only was filed with the Panel on 20 April 2016. It concludes that the façade “has overall significance to Christchurch, including Banks Peninsula for its long association with the Public Trust”. In relation to the values set out in policy 9.3.2.1(a) and the threshold set out in policy 9.3.2.1(b), the statement notes that:
(a) The façade has historical and social significance as a reflection of the large-scale building programme undertaken by the Trust as it decentralised its operations in the 1910s and 1920s.
(b) The façade has cultural significance for its association with the work of the Public Trust in Canterbury.
196 Evidence in chief of Jennifer May, dated 2 December 2015 at paragraph [12.4]. 197 Section 32 report, Appendix 4, at page 21. 198 Transcript, 22 January 2016 (Day 5) at page 783.
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(c) The façade’s architectural significance arises from its neoclassical design by leading inter-war architect Cecil Wood. It is considered one of his best commercial works.
(d) The façade has craftsmanship significance for its use of materials, detailing and association with noted local building company P Graham and Son and leading Canterbury sculptor Frederick Gurnsey.
(e) The façade and its setting have contextual significance as a prominent landmark fronting the Avon River and as part of a group of listed heritage places in the immediate vicinity and wider setting of the central business district.
(f) The façade and its setting have archaeological significance because the property has the potential to provide evidence relating to past building construction methods and materials, and human activity on the site, including that which occurred prior to 1900.
18.41 In terms of policy 9.3.2.1(c), Ms May's evidence is that with façade retention the façade would retain contextual values, sense of place and enough tangible evidence to support continued scheduling. Engineering and financial factors are addressed below in relation to façade retention. The Council submits that the façade meets the threshold for scheduling as a Group 2 historic heritage item.
Façade retention
18.42 As traversed in evidence and at the hearing, options still exist to retain the façade. In terms of engineering, Mr Marriott acknowledged that retaining the façade and rebuilding behind it “would require significant temporary propping work similar to that undertaken to the McKenzie and Willis façade on Tuam Street post-earthquake, and the cost of this option would need to be considered”. However, he considered that “this approach is worth investigating further before concluding that full retention and repair is the only option”.199
199 Evidence in chief of Mr Andrew Marriott, dated 3 December 2015 at paragraph [4.22].
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18.43 Mr Oldfield accepted that when designing a solution for a heritage listed building, options to retain heritage fabric would be important. He confirmed that retention of the façade is technically feasible. He indicated that there were some engineering issues with such an approach but that from an engineering perspective they could be resolved.200
18.44 The Council recognises that there will be a cost to retain the façade. Mr Pomeroy estimated that to be $2,350,000.201 However, off-set against that cost is the potential cost saving from not having to construct a new façade for the replacement building. Mr Stanley’s evidence was that a new façade would cost between $445,000 and $742,000, and that this cost would need to be subtracted from the cost of retaining the existing façade, along with the addition of unidentified costs associated with exclusions noted in Mr Pomeroy’s evidence.202 Mr Pomeroy accepted that if the existing façade was retained, then there would be a reduction on that item in terms of the cost of the building overall.203
18.45 In addition, the Public Trust Building is on the list of buildings eligible to apply to the Council for a Landmark Heritage Grant. The Section 32 report sets out a summary of the Central City Landmark Heritage Grants programme,204 and Ms Beaumont's evidence (para 5.4) noted:
The Landmark Grant is a specific recovery initiative responding to the loss historic heritage buildings within the central city. Council seeks to work with the owners of key ‘landmark’ buildings – those with significant heritage values that contribute to the sense of place in the City – seriously damaged in the earthquakes and at risk of demolition. Council staff work with the owners of these buildings to explore the options for retention and adaptive re-use. Grants ranging from $800,000 to $1,700,000 have been made towards the repair, seismic upgrade and restoration of
200 Transcript, 22 January 2016 (Day 5) at page 717. 201 Evidence in Chief of Keeley Pomeroy, dated 11 December 2015 at paragraph [16(b)]. 202 Rebuttal evidence of Gavin Stanley, dated 18 December 2015 at paragraph [5.4], corrected in Mr Stanley’s highlights package at Transcript page 871. 203 Transcript, 22 January 2016 (Day 5) at page 725. 204 Stage 3 – Section 32, Chapter 9 Natural and Cultural Heritage, Appendix 5.2.
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several buildings – the Christchurch Club, Trinity Congregational Church, West Avon apartments, Victoria Mansions, St Michael’s stone classroom, and the Community of the Sacred Name.
18.46 Contrary to what Tailorspace's closing submissions suggest, the Council has not offered a grant and then rescinded that offer. The position has always been that the Public Trust building is eligible for consideration for a grant if the owner wishes to pursue a proposal that would involve retention of the building or substantial heritage fabric and values. The transcript references given by Tailorspace show that Ms Gillies was asked “can you tell me what the Council is prepared to put up for your retention option?” to which Ms Gillies replied “more than a million I am told”.205 She was not able to answer whether that could be formalised, and she would not have had authority to make any sort of “offer”. As clarified the following day,206 a proposal would need to be submitted to the Council to secure the funding.
18.47 Tailorspace has indicated that it has no desire to retain the façade or apply for a grant to assist with this outcome. However, a lack of willingness by a building owner to avail itself of options for the retention of an item of heritage significance is not determinative of whether the item should be scheduled.
Conclusion
18.48 In concluding on this property, the Council notes that the façade of the Public Trust building has been identified as significant historic heritage. In order to implement the CRPS and objective 9.3.1, it is submitted that the Plan should provide appropriate mechanisms to protect and conserve the façade in order to maintain its contribution to the district's character and identity in the manner envisaged by paragraphs (a)-(c) in the objective. In relation to those paragraphs:
(a) façade retention represents the use and adaptive reuse of this historic heritage item, and would be a positive outcome in the post-earthquake context;
205 Transcript, 2 February 2016 (Day 7) at page 1051. 206 Transcript, 3 February 2016 (Day 8) at page 1133.
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(b) façade retention is consistent with the facilitation of the retention and repair of this damaged heritage item; and
(c) the condition of the building has been taken into account and has led to the exclusion of the rear of the building for the heritage listing in the revised proposal. Engineering and financial factors have been addressed in the evidence and, while they pose a challenge in relation to this building, the evidence did not establish that those factors present an insurmountable barrier to the retention of the façade.
18.49 It is submitted that, in light of the heritage significance of this building, the importance placed on the protection of historic heritage by section 6(f), and the options and funding available to achieve that protection, scheduling the façade and requiring a resource consent as a restricted discretionary activity for its demolition is reasonable and appropriate.
19 Exeter Street
18.50 The Council's evidence is that the former parsonage at 19 Exeter Street meets the threshold for listing. It has historical and social significance as the site of Lyttelton's Wesleyan Methodist Parsonage from 1862 and in the present building from 1881 – 1963, and as a former home of the Catholic missions to seamen, and the Apostleship of the Seas, and as a former home of the St Joseph's Covenant of the Sisters of Mercy. The site has technological and craftsmanship significance, as well as archaeological significance.207
18.51 The submitters acknowledge the historical significance of the property,208 however submit that the many of the interior heritage fabric and features have been significantly modified and compromised over the years such that the property no longer reaches the threshold for listing.209
207 Evidence in chief of Fiona Wykes, dated 2 December 2015 at paragraph [10.39]. 208 #3963, at page 6. 209 Submission #3693, at page 8.
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18.52 Ms Wykes for the Council conducted a site visit in November 2015. She concluded that in spite of the changes the building has seen, the building retains enough authenticity and integrity, through matters such as the layout and the remaining original fabric, to retain its heritage significance.210 The alterations to the exterior, such as the new landscaped paths, concrete slabs, and sheds do not as alterations that remove the heritage value from the site.
18.53 The Council also notes that the revised approach to the protection of interiors means that further interior alterations to this building are not restricted by the revised proposal.
104 Glandovey Road
18.54 Westall Trust owns the property at 104 Glandovey Road. On 6 June 2016 the Trust lodged an application for leave to make a late further submission in relation to the heritage listing of the dwelling at this property. By decision dated 8 June 2016, the Panel declined to waive the time limit for filing the submission in relation to this listing.
18.55 For completeness, the Council wishes to record that it has considered the information provided by the Trust in relation to the statement of significance, and has updated the details of the statement to reflect information provided by the Trust to the extent the Council considers appropriate. A copy of the updated statement of significance is attached as Appendix I.
Rehutai - 427 Menzies Bay Road
18.56 Te Wharau Investments Ltd submitted on the Rehutai Homestead, outlining its view that the property should be removed from the schedule of protected historic items in the pRDP due to the condition of the building and the resource consent and cost requirements that a listing would impose on any future efforts to restore or relocate the building.
210 Evidence in chief of Fiona Wykes, dated 2 December 2015 at paragraph [10.44].
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18.57 Ms Ohs and Ms Wykes for the Council agreed with Ms May's evidence for Te Wharau Investments Limited that despite the condition of the building it meets the threshold for protection in the pRDP.211 The Council notes Heritage New Zealand agreed with the listing of the property.212
18.58 The Council notes that the revised approach to interiors reduces the consenting requirements on the owners. The owners of this building may alter or remove interior fabric without requiring a resource consent under this proposal.
Slab Cottage
18.59 Okains Bay Maori and Colonial Museum Board (#3565) requested Slab Cottage at 1149 Okains Bay Road be added to the schedule of protected items at 9.3.6.1. The property is currently listed in the Operative Banks Peninsula District Plan.
18.60 The Council disagrees with the submitter’s request as evidence has not been provided that justifies its listing. Ms Wykes for the Council gave evidence that the cottage had lost its contextual significance, in that it used to be in the Kaituna Valley and is now in the Okains Bay Museum and it was reconstructed. Original technological and craftsmanship detail has been significantly reduced.213
18.61 The Council notes that no evidence has been received from the submitter.
Lyttelton Heritage Area
18.62 The Rod Donald Banks Peninsula Trust's original submission sought the inclusion of Lyttelton Historic Area in the pRDP.214 The Lyttelton Historic Area is listed by Heritage New Zealand as a historic area.
211 Evidence of Jennifer May, dated 10 December 2015; Evidence in chief of Fiona Wykes, dated 2 December 2016 at paragraph [10.48]; Evidence in chief of Amanda Ohs, dated 18 December 2015 at paragraph [18.3]. 212 Transcript, 2 February 2016 (Day 7) at page 1072. 213 Evidence in chief of Fiona Wykes, dated 2 December 2015 at paragraph [13.1] – [13.2]. 214 Rod Donald Banks Peninsula Trust (#3469) at page 10.
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18.63 Dr McEwan for the Council provided evidence that the Heritage New Zealand protection is more appropriate for guiding overall character values while individual scheduled items and heritage conservation areas are identified for a higher level of protection.
18.64 Dr McEwan noted her support of a policy based approach using assessment criteria to identify and assess significant historic heritage areas in the future.215 The Council remains of the view that it is not appropriate to add a Lyttelton Heritage Area within the pRDP at this time. This matter is not addressed in the closing submissions of the Rod Donald Banks Peninsula Trust.
3 Rue Benoit, Akaroa
18.65 Viewfield Trust (#3289) submitted on the pRDP requesting 3 Rue Benoit be removed from the schedule at 9.3.6.1.
18.66 Ms Ohs considers that the building meets the threshold for listing, noting that the former Taylor residence has overall heritage significance to Banks Peninsula and Christchurch. It has historical significance for its association with Thomas Taylor. Ms Ohs stated that the property has sufficient intactness, with the degree of authenticity and integrity required to be of overall significance to the Christchurch district. The Council submits the property meets the threshold for listing.216
18.67 The Council notes that the submitter has not provided any evidence on the listing of the property and the Council has had no further contact from the submitter.
Holy Trinity Avonside Lychgate
18.68 Historic Places Canterbury (#3675) and Dr Ian and Dr Lynne Lochhead (#3633) provided a submission outlining that in their opinion the assessment of heritage significance understates the
215 Evidence in Chief of Dr Ann McEwan, dated 2 December 2015 at paragraphs [7.15] – [7.16]. 216 Evidence in chief of Amanda Ohs, dated 2 December 2015 at paragraphs [9.29] – [9.31].
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significance of lychgate such that the listing should be raised from significant to high significance.217
18.69 Ms Ohs’ evidence noted that due to the lack of documentation backing up the Lochhead submission, she could not support a change in the assessment to high significance.218
18.70 For completeness it is noted that agreement was reached with Church Property Trustees in relation to the extent of the setting for this item.
St Peters Church Lychgate
18.71 Similar to the Holy Trinity Avonside Lychgate, Historic Places Canterbury (#3675) and Dr Ian and Dr Lynne Lochhead (#3633) submit that this lychgate should be raised from significant to high significance.
18.72 Ms Ohs stated in her evidence that she had assessed the lychgate against the thresholds for high significance, and concluded that the lychgate did not meet the threshold. As it was a repurposed and relocated fragment of a now demolished 1858 church building she did not consider the lychgate to have high integrity, however she acknowledged that the lychgate conveys important aspects of the thematic development of the Christchurch district. Ms Ohs compared this listing to that of St Peter's Church or churchyard, which are both rated high significance. She did not see it as being of equivalent significance.219
18.73 The Council therefore disagrees with this submission point.
Banks Peninsula Presbyterian Church Akaroa
18.74 The Banks Peninsula Presbyterian Church requests that the church's rating be decreased from high significance to significant, however it has not provided heritage evidence in support of this request.
217 Dr Ian and Dr Lynne Lochhead (#3633) at paragraph [11]. 218 Evidence in chief of Amanda Ohs, dated 2 December 2015 at paragraph [10.6]. 219 Evidence of Amanda Ohs, dated 2 December 2016 at paragraph [10.12].
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18.75 The Council’s evidence is that the Trinity Church, Hall and setting have high historical and social significance as they have served as the church complex for the Presbyterian community of Akaroa since they were built in 1886 and 1916. The church is largely unmodified and has high integrity, and as such, the Council has not agreed to downgrade the heritage rating.220
College House – 100 Waimairi Road
18.76 The Council and College House have come to an agreement on some of the heritage items located at 100 Waimairi Road. College House sought a Group 2 status for the Principal's Lodge, and the Council has agreed to this request, as acknowledged during the hearing.221 Further, the Council notes that the revised approach to interiors, detailed in part 12 of these submissions, reduces consent requirements in relation to interior modifications.
18.77 The remaining area in dispute relates to the squash court. During the hearing, College House noted that the Squash Court is well away from the main central precinct of the campus and submitted that it does not require a heritage listing.222 Mr Bruce stated that College House was particularly interested in the management of heritage values as College House wishes to have flexibility with management of the buildings, and may want to put this building to an alternative use.223 However, he had not been involved in or made any submissions in relation to the heritage management objectives, policies or rules in the pRDP.224
18.78 The Council’s evidence is that the continued scheduling of the Squash Court is warranted due to its heritage values.225 The Council notes that a change in use of the building, if proposed in the future, may find support in policy 9.3.2.5.
220 Evidence of Amanda Ohs, dated 2 December 2015 at paragraph [10.18]. 221 Transcript, 3 February 2016 (Day 8) at page 1315. 222 Transcript, 3 February 2016 (Day 8) at page 1315. 223 Evidence of Alec Bruce, dated 10 December 2015 at page 4. 224 Transcript, 3 February 2016 (Day 8) at pages 1319 – 1320. 225 Rebuttal evidence of Amanda Ohs, dated 18 December 2015 at paragraph [7.2].
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81 Grehan Valley Road
18.79 Alister Cocks (#3654) sought a reduction in the heritage setting, noting that the property consists largely of a modern garden setting with plantings, structures and a modern dwelling.226
18.80 Ms Ohs for the Council provided in her evidence that the reduction sought would not provide sufficient open space, context and views to the heritage item. The setting reflects the historical extent of the property which was associated with a mill operation, and recognises early fruit trees historically associated with the heritage item, and the importance of the proximity of the river.227
18.81 The Council submits that there is potential for impact on the listed item from subdivision or new buildings, and therefore the setting protection is appropriate.228
18.82 For completeness, the Council notes that the submitter did not present evidence at the hearing or participate in mediation.
Bishopspark Chapel
18.83 This chapel is listed as a High Significance item in the pRDP. Anglican Living disputed the setting of the chapel.229
18.84 Ms Ohs on behalf of the Council notes in her evidence in chief her agreement in part with the submission. The Council provided an updated statement of significance showing the reduced setting, which aims to require consideration to be given to further development within the confined spatial setting in which the chapel now sits.230
226 Submission 3654. 227 Evidence of Amanda Ohs, dated 2 December 2015 at paragraph [12.24]. 228 Evidence of Amanda Ohs, dated 2 December 2015 at paragraph [12.24]. 229 Submission #3349, at 3. 230 Evidence in chief of Amanda Ohs, dated 2 December 2015 at paragraph [12.37].
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32 Armagh Street – Christ's College
18.85 Christ's College submitted that the cottage has relatively little heritage value, limited functional value as a building and needs extensive repairs and upgrading to make it functional.231
18.86 Ms May, on behalf of the Council, undertook a site visit in November 2015. Her evidence is that the building has historical significance as a c. 1875 colonial cottage, the former home of Ernest Empson, and for its association with Christchurch Girl's High School. It has architectural significance due to the authenticity of its exterior and original interior. It also holds contextual significance.232
18.87 Ms May noted further that the heritage values of the building would not be compromised by any work required to bring the building to a good standard. She noted that the submission provided no information to justify the assertion that there was relatively little heritage value.233 The Council submits that Ms May’s evidence should be relied upon and that the cottage meets the threshold for listing and should remain scheduled for protection at 9.3.6.1.
35 Knowles Street
18.88 Ms Gillies for the Council discusses 35 Knowles Street in her evidence in chief. Rafe Hammett seeks that the building be removed from the schedule at 9.3.6.1 or that demolition be a permitted activity.234
18.89 Ms Gillies, Ms May and Mr Stanley carried out a site visit in November 2015. Ms Gillies outlined that the house is typical of Arts and Crafts design with a large Marseille tiled roof, dormer windows and overhanging eaves. Ms Gillies noted her agreement with the submitter that if the repairs described in the submission were undertaken, much of the heritage value would be lost.235
231 Submission #3212, at 23. 232 Evidence in chief of Jennifer May, dated 2 December 2015 at paragraph [8.3]. 233 Evidence in chief of Jennifer May, dated 2 December 2015 at paragraphs [8.5] – [8.6]. 234 Submission #3666 at 27 – 29. 235 Evidence in chief of Jackie Gillies, dated 2 December 2015 at paragraphs [7.69] – [7.73].
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18.90 However, in light of the potential for an alternative repair solution to be adopted, whereby the building could be repaired to a suitable standard with little loss of heritage fabric and heritage values,236 the Council submits that its retention on the schedule is appropriate.
18.91 For completeness, the Council notes that this submitter did not provide evidence at the hearing and did not take part in mediation.
Waltham Park Memorial Gates
18.92 Mr Tindall on behalf of Cashmere Residents Association (#3601) made a submission requesting the Waltham Park Memorial Gates be included for protection as a historic heritage item under appendix 9.3.6.1.
18.93 During the hearing Mr Tindall noted that these gates were under repair and were due for reuse at the ANZAC day memorial 2016. However Mr Tindall did not present any further information or submissions these gates during the hearing.237
18.94 The Council notes the lack of information required to complete the statement of significance to a level of detail whereby the assessment of heritage significance could be determined,238 and in light of that lack of information it does not consider that these gates should be scheduled.
St Marys Pro Cathedral, Aberdeen Cottages, Manchester Street Manor Cottages and Victoria Square
18.95 Peterborough Village Incorporated Society (#3233) sought the protection of these items in the pRDP. The Council requested additional information from the submitter, however no information was provided. Therefore, the Council has been unable to undertake a heritage assessment.239
236 Evidence in chief of Jackie Gillies, dated 2 December 2015 at paragraph [7.77]. 237 Transcript, 10 February 2016 (Day 12) at page 1957. 238 Evidence in chief of Amanda Ohs, dated 2 December 2015 at paragraph [14.9]. 239 Evidence in chief of Amanda Ohs, dated 2 December 2015 at paragraph [14.11].
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18.96 The Council notes that the future work programme may be an appropriate avenue for Peterborough Village Incorporated Society to pursue the listing. The heritage team at the Council has a work programme to undertake identification, research and assessment of 30 – 40 buildings or places per annum.240
St Saviours Church at Holy Trinity
18.97 Church Property Trustees have submitted that heritage item 1331, listed as St Saviour's Church, is incorrectly named, with the correct name being "St Saviours Church at Holy Trinity." The Council accepts this change and has made it in the revised proposal attached to these closing legal submissions, noting also that a reference to the associated setting is necessary.
19. CONCLUSION
19.1 Topic 9.3 addresses a matter of national importance under the RMA, and one that is subject to particular challenges in a post-earthquake Christchurch. The CRPS is instructive in how the District Plan should respond to those challenges. It directs recognition of the importance of historic heritage for social, cultural and economic wellbeing, and a requirement to identify and protect significant historic heritage items, places and values.
19.2 The purposes, focus and provisions of the Canterbury Earthquake Recovery Act 2011 recognised that immediate steps were needed to facilitate recovery, and that the RMA process could not adequately accommodate those steps. The purposes of the Greater Christchurch Regeneration Act 2016 signal that the emphasis has now moved from recovery to regeneration. Regeneration, and the associated term urban renewal, are defined in the Regeneration Act as follows:
240 Evidence in chief of Amanda Ohs, dated 2 December 2015 at paragraph [14.9].
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regeneration means—
(a) rebuilding, in response to the Canterbury earthquakes or otherwise, including— (i) extending, repairing, improving, subdividing, or converting land: (ii) extending, repairing, improving, converting, or removing infrastructure, buildings, and other property: (b) improving the environmental, economic, social, and cultural well-being, and the resilience, of communities through— (i) urban renewal and development: (ii) restoration and enhancement (including residual recovery activity)
urban renewal means the revitalisation or improvement of an urban area, and includes— (a) rebuilding: (b) the provision and enhancement of community facilities and public open space.
19.3 The careful management of historic heritage is an important part of both recovery and regeneration, and the CRPS prioritises enabling the repair, reconstruction, seismic strengthening, and ongoing conservation and maintenance of historic heritage, while recognising the economic costs associated with doing so. The CRPS is clear that enabling appropriate repair, rebuilding, upgrading, seismic strengthening and adaptive re-use of historic buildings and their surrounds in a manner that is sensitive to their historic values is a means of recognising and providing for the social, economic and cultural well-being of people and communities under section 5 of the RMA.
19.4 Reflecting those higher order directions, the revised proposal contains targeted protective mechanisms while providing a greater degree of flexibility for building owners both in the scheduling and the management of heritage items.
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19.5 The Council submits that the objectives and policies in the Council's final proposal are the most appropriate to achieve the Strategic Directions Objectives and the higher order policy directions, including giving effect to the CRPS and RMA. Further discussion of these matters is included in the updated section 32 report.
19.6 Accordingly, the Council respectfully seeks the Panel's approval of the final revised proposal provided with these submissions.
Dated this 17th day of June 2016
______M G Conway / C G Coyle Counsel for Christchurch City Council
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