Heritage Listing Processes at State and Local Level

The Heritage Management System (HMS) in NSW is administered primarily through planning instruments providing for general controls by local councils, upper level intervention for contested items and issues of state significance, and mechanisms for certain appeal rights. The HMS in New South Wales (NSW) is underpinned by three primary Acts:

  1. The Environmental Planning & Assessment Act, 1979, known as the EP&A Act, governs the operation of the state’s 150 local government areas (LGAs).  Each LGA has or is moving toward a comprehensive local environment plan (LEP) which lists local heritage items giving them the status of an officially gazetted listing. There are approximately 26,000 items of local heritage significance protected in this fashion.
  2. The Heritage Act, 1977 regulates state-listed items through the State Heritage Register covering approximately 1700 items.
  3. The Land & Environment Court Act, 1979 is effectively an appeal Court apparatus established to hear planning matters. In its Class 1 Appeals Division, the Court is able to hear disputed heritage matters arising either from dissatisfied owners who have had their applications to modify their heritage listed buildings refused by local councils or in which disaffected third parties bring heritage matters to be heard in the public interest.

Despite a robust suite of protective measures as set out above, there are few incentives available to private owners of CBH to willingly embrace the system.  There is an essential duality of listed buildings in that they are both privately and publically owned.  The public nature of the asset gives rise to an expectation in society that private owners of CBH would do everything in their power to conserve the asset and assume appropriate levels of custodial responsibility.

However, the reality is that many private owners resent that role because they perceive the listing to work against both optimal market value and future development potential (PCR 2006, 169 & 170) . Generally, heritage lists are drawn up without affected owners being consulted and disaffected listees claim that they are not granted sufficient say in this process. In response to this quandary, the PCR 2006 proposed a method of redressing disaffected owners by calling for a greater degree of consultation with private owners by listing authorities

There are three key stages in the proposed review process. The first covers the identification, public consultation and assessment phase.  The second covers the path of listing without a negotiated conservation agreement.  The third involves the negotiation of a conservation agreement, whether undertaken prior to listing or as the result of a successful appeal on the grounds of unreasonable costs.

The Commission explains that the aim of a negotiated conservation agreement is to achieve cost-effective heritage conservation for communities without imposing unreasonable costs on owners.  Negotiated conservation agreements would ensure that, where the cost of conservation is likely to be high, heritage values for the community would be of a similar magnitude. The community, through the listing authority, would need to assess the heritage values it seeks to conserve against the likely cost associated with their conservation.  In this fashion, governments need not intervene because the community’s willingness to spend on conservation pervades as the essential motivation to list (PCR 2006, 253).

The Commission explores the notion of compensation for private owners of CBH.  Compensation takes the form of a one-off monetary sum, ongoing assistance, or the ability to appeal listings on the grounds of ‘unreasonable costs’.  A notable departure from current practice is signified by the suggestion that ‘conservation agreements’ become far more widely used. Conservation agreements take the form of ‘voluntary planning agreements’ and set out the possibility of tailoring conservation obligations to owner’s specific needs and capabilities. They are seen as incorporating flexibility with a certain leeway granted to owners in order to facilitate ongoing conservation.

The seven essential steps of the proposed methodology are as follows (PCR 2006, 266):

  1. Set out an agreed statement about the heritage values contained in the place;
  2. Set out a schedule of allowed works, development and uses;
  3. Outline specific prohibited works, future development and uses;
  4. Set out a system of assessment for the evaluation of future modifications;
  5. Provide for an effective dispute resolution system to be determined by neutral third party experts;
  6. Outline the range of financial or other assistance that would be available to the owner;
  7. Provide a mechanism for the regular statutory review of the property’s heritage values once every ten years.

Despite the suggestion by the PCR 2006 that the provision of information about listed properties forms the basis upon which individual agreements with owners may be struck, very little of this is utilised in current NSW heritage policy.  As a result, misinformation, confusion and a general reluctance by private owners of CBH to willingly participate in listing campaigns, continues to pervade the sector.

Paul Rappoport - Heritage 21 - 5 February 2012

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