Most Read Contributor in New Zealand, September 2016
The dilemma facing the owner of the iconic Harcourts Building in
Wellington's CBD was accepted by the Environment Court. He
can't insure it, or tenant it, and is currently not raising
enough from it to even cover the rates bill.
The Court also accepted that, until strengthened, the building
will continue to pose a risk to "life, limb and other property
in the event of a major earthquake".
What the Court did not accept was that this was enough to
justify pulling it to the ground. Accordingly, the owner's
appeal against the refusal of a consent to demolish by Wellington
City Council (WCC) was denied.
The Harcourts Building on Lambton Quay is classified category 1
under the Historic Places Act. More problematically, it is also
classified at 17% of New Building Standard (NBS), against a minimum
requirement of 33%, meaning that it is a serious earthquake
So, in July 2012, the WCC served the owner with a notice under
section 124 of the Building Act 2004 requiring him to either
strengthen it or knock it down.
Confronted with this apparent choice, the owner - considering
that strengthening to 100% NBS was the only marketable option as
potential tenants would not accept anything less, and satisfied
that this was not commercially feasible – decided to clear
the site and build a modern 20 storey office complex.
And that is when he ran into trouble with the WCC, because the
Building Act is not the only instrument which comes into play. The
WCC's District Plan and the Resource Management Act (RMA) also
The Court1 found that both the Plan and RMA sections
6 and 7 contained "strongly expressed" protections for
the Plan provided that a listed building could be demolished
"only where the Council is convinced that there is no
reasonable alternative", and
the RMA required that, before acceding to demolition, the
consent authority must be satisfied that benefits deriving from the
proposed new use can overcome the nationally important protection
of historic heritage.
The Court found that these tests had not been met. While a
number of uses had been explored – refurbishment as office
accommodation or conversion to apartments, a boutique hotel, a
student hostel – the Court was not satisfied that they had
been explored "other than with a handicap imposed by a rigidly
set bottom-line figure" which the owner was demanding for the
land and property in their present condition.
Neither had the Historic Places Trust's option B, sensitive
retention of the building's facades, been adequately
The Court had some sympathy with the owner's predicament but
was clear that both the District Plan and the RMA required that the
alternatives were "exhaustively and convincingly
excluded" before demolition could be justified.
"We acknowledge that there is an inherent irony in the
juxtaposition of the RMA and the Building Act, and a tension
between them, both for the Council and for building owners.
"The irony in the present situation is the greater in that
the Building Act, dealing with structural integrity and safety, is
administered by the same body that may refuse consent under the RMA
– the City Council.
"Is there a solution to that tension? We think
not....Having a permit under one statute will not necessarily be
matched by one under another....," it said.
It will be interesting to see whether the owner appeals this
decision to the High Court.
As to the broader implications for other heritage building
owners, although district plans will differ from authority to
authority, the RMA is obviously national in its application and, at
least in its current form, recognises and provides for the
protection of historic heritage as a matter of national
In many cases throughout the country, as in this case, the
protection is heightened when demolition is classed as a restricted
discretionary activity because decision makers have limited ability
to consider wider costs and benefits to the building owner and the
community. And when the contest is between historic heritage and a
commercial return from the building's destruction, the RMA bias
is strongly for the former.
So anyone wanting to demolish a listed property will need to be
able to demonstrate that the public values offered by the proposed
development are not only high but are higher than could be derived
through any alternative use of the existing building.
1Lambton Quay Properties Nominee Ltd v
Wellington City Council  NZEnvC238
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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