Difference between revisions of "Site Protection"
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== Covenants and Trusts == | == Covenants and Trusts == | ||
| − | Covenants are legal mechanisms. A covenant is entered onto a land title and places an obligation on the current and future land owners to comply with the conditions in the covenant. There has to be a land title - not all land has such. Covenants are sometimes entered into voluntarily where an owner wishes to protect some aspect of the property. Property developmeent and subdivision also give rise to them, where part of a property may be protected as part of an agreement to allow development of the remainder. Such | + | Covenants are legal mechanisms. A covenant is entered onto a land title and places an obligation on the current and future land owners to comply with the conditions in the covenant. There has to be a land title - not all land has such. Covenants are sometimes entered into voluntarily where an owner wishes to protect some aspect of the property. Property developmeent and subdivision also give rise to them, where part of a property may be protected as part of an agreement to allow development of the remainder. Such covenants are usually a condition of the Resource Management consent. |
| − | Covenanted land remains in private ownership and the owner is free to do anything that is not restriced by the | + | Covenanted land remains in private ownership and the owner is free to do anything that is not restriced by the covenant. This is where problems can arise. Where ownership passes from an owner who created the covenant volutarily to another, the goodwill from the first owner may not necessarily follow. With subdivisions the owner of the remaining land may have little interest in its conservation but even the reverse; a substantial financial incentive to have the covenant lifted and the land onsold or further subdivided. Other reserve mechanisms with public ownership are preferable to creating this sort of situation. |
Covenants may require surveys if they do not apply to the whole property. Linz have set [http://www.linz.govt.nz/docs/surveysystem/survey-publication/osgpolicy2002-01v1.pdf standards] for these. Where areas are to be separately managed they may require fencing to exclude stock, or limit vehicle traffic. | Covenants may require surveys if they do not apply to the whole property. Linz have set [http://www.linz.govt.nz/docs/surveysystem/survey-publication/osgpolicy2002-01v1.pdf standards] for these. Where areas are to be separately managed they may require fencing to exclude stock, or limit vehicle traffic. | ||
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'''Other Covenants''' | '''Other Covenants''' | ||
| − | Lastly covenants do not have to be under an Act as in the above examples. They can be agreements that place the power over the covenant conditons enforcement with a party other than the land owner. They are registered against the title as previously. They are most commonly used to control future development on a site or share parking or some like issue, but they can equally be used for heritage protection. The key issue is to have a party to monitor and enforce the covenenant. They need to be credible, perpetual and have sufficient resources. The New Zealand Coastal Trust listed below is a potential party | + | Lastly covenants do not have to be under an Act as in the above examples. They can be agreements that place the power over the covenant conditons enforcement with a party other than the land owner. They are registered against the title as previously. They are most commonly used to control future development on a site or share parking or some like issue, but they can equally be used for heritage protection. The key issue is to have a party to monitor and enforce the covenenant. They need to be credible, perpetual and have sufficient resources. The New Zealand Coastal Trust listed below is a potential party for these. There will be other local land and heritage protection trusts that could be considered. |
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'''New Zealand Coastal Trust''' [http://www.nzcoastaltrust.com nzcoastaltrust.com] | '''New Zealand Coastal Trust''' [http://www.nzcoastaltrust.com nzcoastaltrust.com] | ||
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The New Zealand Coastal Trust was established in 2008 to promote the preservation and protection of the coastal environment through voluntary mechanisms. A prime focus of the Trust is to become a party to restrictive covenants and land management agreements which will preserve coastal land, and protect it from subdivision and development, in perpetuity. | The New Zealand Coastal Trust was established in 2008 to promote the preservation and protection of the coastal environment through voluntary mechanisms. A prime focus of the Trust is to become a party to restrictive covenants and land management agreements which will preserve coastal land, and protect it from subdivision and development, in perpetuity. | ||
The need for the Trust was identified through cases where land protection covenenants resulting from subdivisions were held by local authorities but not enforced, or were relaxed after further subdivision proposals were made by new owners. | The need for the Trust was identified through cases where land protection covenenants resulting from subdivisions were held by local authorities but not enforced, or were relaxed after further subdivision proposals were made by new owners. | ||
Revision as of 23:08, 7 July 2008
Contents
Site Protection
Protecting archaeological sites is not only about the future of our interest, it is protecting heritage, particularly where that heritage is open to the appreciation of the general public.
Public Heritage Lists
Site protection through lisiting and scheduling is an option. The following table is from Law and Greig 2004. The different options have their own strengths and weaknesses. They are not mutualy exclusive.
|
Type of list |
Protection |
Disadvantages / Weaknesses |
|
World Heritage listing |
Enormous moral suasion. |
Will only ever cover elite sites. Only one site a year may be nominated. Enforcing legal protection would be expensive. |
|
HPA Registration |
Moral protection, more likely to be protected in RMA plans, must be considered in RMA consents, and HPA notified of consent applications which affect registered sites. |
Takes time and effort – will only ever cover important sites / groups of sites or sites perceived to be under threat. Can be misunderstood as conferring protection. |
|
RMA Plan Schedules |
Considerable legal protection. |
Local Authorities need a defensible process for the sites being scheduled. The opportunity to have sites included only arises when Plans are reviewed. |
|
Local Government Heritage Inventory |
No legal protection but will ensure sites are advised in LIM reports and may form the basis of RMA Plan schedules. |
Requires a sustained effort by the TLA to create and maintain an inventory. |
|
Coverage by the HPA archaeological site definition |
Opportunity for Legal protection exists via consent process if sites will be affected by any activity. |
Reactive. Despite the consent processa lot of sites are lost because they were not known / not valued. Limited to sites covered by the HPA definition. |
|
NZAA SRS record |
No legal protection via SRS, but makes it much more likely the HPA will be applied if site meets legal definition. Forms one source of information for local government heritage inventories. |
Information is rarely sufficient to directly feed a heritage inventory. |
.
Physical Site Protection
Kevin Jones' publication on managing and protecting sites is recommended (Jones 2007)
.
Covenants and Trusts
Covenants are legal mechanisms. A covenant is entered onto a land title and places an obligation on the current and future land owners to comply with the conditions in the covenant. There has to be a land title - not all land has such. Covenants are sometimes entered into voluntarily where an owner wishes to protect some aspect of the property. Property developmeent and subdivision also give rise to them, where part of a property may be protected as part of an agreement to allow development of the remainder. Such covenants are usually a condition of the Resource Management consent.
Covenanted land remains in private ownership and the owner is free to do anything that is not restriced by the covenant. This is where problems can arise. Where ownership passes from an owner who created the covenant volutarily to another, the goodwill from the first owner may not necessarily follow. With subdivisions the owner of the remaining land may have little interest in its conservation but even the reverse; a substantial financial incentive to have the covenant lifted and the land onsold or further subdivided. Other reserve mechanisms with public ownership are preferable to creating this sort of situation.
Covenants may require surveys if they do not apply to the whole property. Linz have set standards for these. Where areas are to be separately managed they may require fencing to exclude stock, or limit vehicle traffic.
There are a variety of covenents:
Statutory Covenants
Heritage covenants under the Historic Places Act.
The Historic Places Act has provision for Heritage Covenants to be agreed between site owners and the HPT. They are entered on land title documents, ensuring the presence of a site is signalled when people have reason to look at titles, such as when a change of ownership is considered, or undertaken. This is a valuable means of signalling the presence of important sites, but needs a cooperative landowner. HPT Covenants
Conservation Covenants under the Reserves Act.
Two sorts of Conservation Covenants are allowed under this Act: Section 77 Covenants which may be between a private land owner and either the Crown or a local body. The purposes of these may include protecting land of historic value. Section 77A Nga Whenua A Rahui Kawaenata where Maori land or Crown land held under a Crown lease by Maori may be protected for its historic value. The advantage of these arrangements is that the management of the covenanted land becomes more formally established, and the covenant must achieve the purpose of the protection. Some local bodies decline involvement and require coveneanting as a condition of consents to be under the QEII Trust. Others have a poor record of enforcing the conditions of covenants, and have on occasion allowed their lifting or allowed further subdivision on contradiciton to the terms.
QEII Trust Covenants
The National Trust was established by the Queen Elizabeth the Second National Trust Act 1977,to encourage and promote the provision, protection and enhancement of open space for the benefit and enjoyment of the people of New Zealand. The broad definition of open space in the Act is: Any area of land or body of water that serves to preserve or to facilitate the preservation of any landscape of aesthetic, cultural, recreational, scenic, scientific, or social interest or value. The Trust operates primarily though covenants in respect of private land. It has some funds to help establish protected land. Its general operation has not been to preserve land solely with cultural value, but to seek to operate in areas with a broad range of values. The Trust is good at ensuring that the generosity of private landowners who agree to restrictions on their rights is recognised. QEII Covenants
Other Covenants
Lastly covenants do not have to be under an Act as in the above examples. They can be agreements that place the power over the covenant conditons enforcement with a party other than the land owner. They are registered against the title as previously. They are most commonly used to control future development on a site or share parking or some like issue, but they can equally be used for heritage protection. The key issue is to have a party to monitor and enforce the covenenant. They need to be credible, perpetual and have sufficient resources. The New Zealand Coastal Trust listed below is a potential party for these. There will be other local land and heritage protection trusts that could be considered.
An alternative to covenants for Maori Land is:
Maori reservation under the Teture Whenua Maori Act 1993
Land may be set aside under this Act as a reservation for communal purposes including a place of historical or heritage interest. Management is vested in a body corporate. This mechanism will allow greater attention to be given to historic heritage values within Maori land.
New Zealand Coastal Trust nzcoastaltrust.com
The New Zealand Coastal Trust was established in 2008 to promote the preservation and protection of the coastal environment through voluntary mechanisms. A prime focus of the Trust is to become a party to restrictive covenants and land management agreements which will preserve coastal land, and protect it from subdivision and development, in perpetuity. The need for the Trust was identified through cases where land protection covenenants resulting from subdivisions were held by local authorities but not enforced, or were relaxed after further subdivision proposals were made by new owners.
References
Kevin L. Jones 2007 Caring for archaeological sites Practical guidelines for protecting and managing archaeological sites in New Zealand. Department of Conservation On Line ISBN 978–0–478–14259–4
Garry Law and Karen Grieg 2004 Protecting archaeological heritage through public heritage lists Archaeology in New Zealand 47(2)99-107. See also a letter from Kevin Jones in the subsequent issue.
