Case Study – Opposing Heritage Listing in District Plan

October 13, 2023

Overview

Franks Ogilvie was instructed to assist with strategic advice and legal submissions on the Lower Hutt City Council proposed Change 56. This change was required due to new intensification laws and the Council sought to protect some areas from the new intensification with heritage protections.

Issue

The Voluntary Heritage Group seeks to have planning laws and regulations changed to ensure heritage listing can only be imposed on a property with the consent of the landowner.  Franks Ogilvie was originally instructed to assist with the designation of new and expanded heritage areas in the Lower Hutt City Council District Plan. However, Parliament passed the Resource Management (Enabling Housing Supply and Other Matters) Amendment Act which required specified councils, such as Lower Hutt, to incorporate new intensification requirements in to their District Plan in a short time period.

What we did

In Plan Change 56, the Council effectively transposed the work to date on the District Plan regarding heritage. This would have resulted in significant new residential and commercial areas of Lower Hutt restricted in their ability to renovate or build. Franks Ogilvie provided support to the campaign that engaged with affected residents to enable them to submit on the process. Typically processes such as these are dominated by those that wish to protect heritage properties and the affected landowners struggle to have the information required to oppose them. The Voluntary Heritage Group provided a platform for these owners to demonstrate to council the impact a heritage designation would have on their property.

Franks Ogilvie provided legal advice on the responsibilities of the Council under the Enabling Housing Act and demonstrated that the Council was not meeting the high threshold the Act imposed for intensification exemptions. Franks Ogilvie drafted submissions for the process that drew on the insufficient evidence in the proposed plan change, illustrating that legally the Council could not impose the restrictions they sought to do so. Franks Ogilvie joined members of the group and expert witnesses to present orally to the Independent Panel.

Franks Ogilvie also provided support with media and member communications, and engagement with politicians.

Outcome

The Council was not able to impose the new and expanded heritage areas. The Independent Panel Report agreed with the arguments put forward by the Voluntary Heritage Group including the Enabling Supply Act process was not the appropriate pathway to impose these new areas, the expert evidence in the report was insufficient and the Council had failed to properly engage with the Voluntary Heritage expert report. Notably, the Panel agreed with a key point raised by the Group that the proposed areas were actually areas of ‘special character’ that did not qualify for exemption under the Act.

For further information on this case or similar issues, please contact Director, Brigitte Morten.

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