Property problems: 'Archaeological sites' protected under act

Q. I have noticed in the media a number of instances where developers have discovered significant historical and cultural artefacts during excavation. I am interested to learn what degree of freedom developers have in such a case, what their obligations are, and what steps need to be followed.

A. The Historic Places Act 1993 sets out the legal processes that apply when a person wishes to either destroy, damage or modify an archaeological site.

As a person may be liable to a penalty of up to $100,000 for not complying with the act, it is imperative that property developers are fully aware of their obligations.

The act defines an "archaeological site" as a place associated with human activity that occurred before 1900 or that is the site of the wreck of a vessel that occurred before 1900. Further, the site must have the potential to provide evidence relating to New Zealand history.

Unless an authority has been granted by the Historic Places Trust, it is unlawful to destroy, damage or modify the whole or any part of any archaeological site. Under section 11 of the act, a person may apply to the Historic Places Trust to carry on their development, despite the presence of archaeological sites. The application must include:
* A description of the activity for which the authority is sought and its location.
* A description of the archaeological site in question.
* An assessment of any archaeological, Maori or other relevant values and the effect of the proposal on those values.
* A statement as to whether consultation with tangata whenua and other people likely to be affected has taken place. If it has, details must be provided, including the identity of the parties involved and the nature of the views expressed. If not, the application must say why.
* The consent of the owner if the owner is not the applicant.

The Historic Places Trust may, by written notice, require the applicant to provide further information.

A developer may prefer to make an application under section 12 for a general authority to disturb a number of sites in a particular area, rather than having to apply in relation to a number of specific sites.

After receiving an application to disturb an archaeological site or sites, the Historic Places Trust may either grant an authority in whole or in part - subject to any conditions it thinks should be imposed - or decline to grant an authority in whole or in part.

Although it would be more advantageous for developers to be granted a general, rather than a specific authority, it should be noted that the trust may grant a general authority only if satisfied on reasonable grounds that there is no particular (archaeological) benefit to justify the likely cost of locating and identifying every individual site within the particular area.

When an application for a general authority relates to a site or sites that the trust considers to be of Maori interest, the trust must refer the application to the Maori Heritage Council. The council then makes recommendations.

Generally, when the Historic Places Trust has received an application to disturb an archaeological site, it must make its decision within three months after the application is lodged. However, it may extend the time for making a decision up to six months.

The trust may impose conditions when it grants an authority. A common condition is that an archaeological investigation of the site must be carried out. This may be carried out either by the trust, or by another party, with the trust's prior written consent. In the former case, the developer is unable to disturb the site until payment is made to the trust for the cost of the investigation.

A developer who is aggrieved with some of the conditions may apply to the trust to change or cancel any of the conditions specifying details of the authority, the area of land involved, the conditions the holder wishes to be varied, and the reasons for the application.