From Heritage New Zealand, Summer 2007

by Geraldine Johns

Memories are made of the stuff that heritage covenants cover

A heritage covenant can be employed by property owners wanting to protect their historic place or area, as Major John Moore found out when he sought to place an Historic Places Trust heritage covenant over his home several years ago. Major Moore wanted to preserve the integrity and history of his Christchurch home for several generations, and was able to do so by negotiating a heritage covenant through the Trust.

The term “heritage covenant” can strike dread into the heart of a developer as much as it gives peace of mind to property owners wishing to protect their historic patches. Covenants are registered on the title of a property and exist in perpetuity. Therefore, they are still binding once a property changes hands.

However, new owners of covenanted properties can approach the NZHPT to discuss the future of the property in light of the terms of the covenant.

In the case of Major Moore, the house at 17 Rossall Street, Fendalton, in Christchurch, had famous foundations in the form of both its architect and its first owner. It was built 80 years ago by Christchurch architect Cecil Wood for Josiah Ballantyne, son of Canterbury department store founder John Ballantyne. Major Moore, now 91, bought the house from Ballantyne 40 years ago, and has lived there ever since.

The house, he writes, is a memorial to Cecil Wood, who, he maintains, “never received the approbation or appreciation for the many fine buildings in Canterbury” for which he was responsible.

Five buildings sit on the original Ballantyne House site, on the corner of Rossall Street and Rhodes Street. Major Moore has the remaining quarter acre, “which is considered a luxury by today’s standards,” he notes.

The Ballantyne Moore residence and its memories should live happily ever after, thanks largely to Major Moore’s foresight and the covenant, which was registered in 1996.

About 100 other sites and addresses around the country, big and small, are similarly covenanted. It’s not only historic homes that are afforded such protection, although about one third of them apply to residential properties.

Other covenants apply to various public buildings, including former post offices, the result of government policy that saw itcovenant some historic properties before their sale, as well as such things as stables, farm stations, rock art and archaeological sites and an old oak tree.

For those interested in preserving their own piece of history in this way, here’s a guide.

A heritage covenant can be instigated in a number of ways, explains Raewyn Ng, legal adviser for the Historic Places Trust, “either by people wanting to protect and preserve their historic place because it’s important to them or they think others can get value from it, or it can arise from a district council resource consent proceeding”. Covenants can also be initiated as a condition of a grant from the NZHPT’s National Heritage Preservation Incentive Fund scheme or as a result of a mediated outcome following an archaeological authority process where works may have uncovered something of interest.

Heritage covenants are provided for under Section 6 of theHistoric Places Act 1993. They set out to protect, conserve and maintain any historic place, historic area, wahi tapu or wahi tapu area as defined in the act.

The covenant involves a voluntary act by property owners who, in obtaining a covenant, have made a decision to protect and preserve a piece of New Zealand heritage for future generations to enjoy.

The NZHPT drafts the covenant, and there is no charge to the owner for that, says Ng. However, the owner is encouraged to obtain independent legal advice regarding the terms of the covenant. The owner will then generally instruct their lawyer to register the covenant against the property’s Certificate of Title.

Once a covenant is registered on the title, it cements an ongoing relationship between the owner and the NZHPT, says Ng. Obtaining a covenant means a commitment on the part of the landowner, because heritage values will be taken into account in the consideration of any future development decisions on the site. However, there are numerous advantages, most significantly that it protects a site from damage or demolition.

The benefits are both public and private. Communities will see a variety of properties safeguarded for future generations, and in some cases limited public access to historic sites is provided for, while property owners can have peace of mind, knowing that the property will continue to be cared for by supportive owners in the future. As well, the NZHPT may be able to offer specialist advice on maintaining the property in some cases, and there may be rates relief.

Covenants can arise even in the most protracted of disputes over the path of progress, as was the case with Wellington’s inner city bypass. The subject of lengthy protests over the effect on numerous old buildings in an historic area, the bypass is now fully functioning. But not before 12 buildings in Te Aro, moved to make way for the bypass, had heritage covenant negotiations initiated. In some cases, the Te Aro buildings may have been moved no more than a few metres; others were regrouped into blocks similar to those in which they originally stood.

Other, non-residential examples of covenanted properties have included: the former Auckland Electric Power Board building on the corner of Nuffield Street and Remuera Road in Newmarket, Auckland; the Downdraft Kiln in Stratford, part of the former brickworks at Douglas, New Plymouth; the former St Martin’s Anglican Church at Rathkeale College in Willow Park Road, Masterton; the Taniwha rock shelter site in Goulds Road, Pleasant Point, Timaru.

The terms of a covenant are to be discussed between the owner and the NZHPT to achieve the best heritage outcomes for a specific property, Raewyn Ng continues. “The terms are negotiable, allowing for movement on both sides.”

The agreement may come under scrutiny when the protectedbuilding or site is sold, and the new owner comes to the NZHPT seeking a waiver of the covenant conditions. Issues that may come under consideration for a heritage covenant include whether or not to allow further sub-division; building or alteration to the building; consultation with the NZHPT regarding conservation of significant heritage features; reasonable access for NZHPT staff for monitoring of the covenant.

People not wanting to take the formal steps involved in obtaining a heritage covenant have other options. Voluntary mechanisms include registering a building.

For Major Moore, there are some uncanny coincidences connected with the house he has enjoyed living in for the best part of half his life.

As well as serving with the British Occupation Forces in Austria in World War II, he was himself an authorised architect. Cecil Wood, he notes, died in 1945, the same year that Major Moore got married and designed his own dream house. He never expected it to be built, “but it is so similar to this building [the Ballantyne Moore House], it is unbelievable,” he writes.