The creation of heritage value through more innovative policies is the key to the sustainability of the conservation sector and community support. There are lessons to be gained and adapted from international best practice. For example, the modification of property rights incorporating the granting of easements is a nascent area of heritage policy reform and has the advantage of pinning owners down to defined conservation commitments in exchange for advantages over and above normal planning controls.  In the case of easements, such as façade easements, the idea is to get the community to pay for components of deemed sharing. That is, the listed building may be privately owned but the parts that connect with the visual communal environment such as facades, gardens and streetscapes become costs to the community which are directed back to private owners for maintenance works (Schuster 2002). 

Another form of incentive is the so called ‘enabling development’ policy brought in by English Heritage. The policy sits within the framework provided by English Heritage’s Conservation Principles, Policies and Guidance for the Sustainable Management of the Historic Environment (2008).  It promotes a values-based approach to assessing heritage significance by enabling development that would be unacceptable in planning terms but for the fact that it would bring public benefits sufficient to justify it being carried out and which could not otherwise be achieved.  Such a policy acknowledges the necessity to secure the long-term future of listed buildings and the key public benefit they generated for society as well as associated business through local tourism.

Wood and Johannson (2008, 359) explain that ‘smart regulation’ is an umbrella term used to describe a middle path between the extremes of command regulation and deregulation.  It aims to make effective and efficient use of public resources by use of a sophisticated mix of regulatory instruments involving corporate environmental covenants, disclosure obligations and public participation rights.  It  emphasizes environmental performance goals over the precise techniques used to achieve them.  Smart regulation stimulates self-reflection and self-correction by regulated actors in line with public goals, rather than by dictating the details of permissible behaviour. It attempts to create incentives and procedures that induce entities to act in certain ways and to engage in internal reflection about what form that behaviour should take. It relies on education, persuasion, rewards, and voluntary self-regulation where possible, and escalates up the regulatory pyramid toward mandated self-regulation, co-regulation, fines, and imprisonment when necessary.  T

he smart regulation movement emerged in the 1990s as an effort to seek middle ground between the conventional “command and control” model of environmental regulation that prevailed in the 1970s and the excesses of deregulation experienced under neoliberalism in the 1980s onward.

I advocate the establishment of alternative funding models for current and future listings where privately owned Cultural Built Heritage (CBH) is concerned. In line with the basic precepts of smart regulation, these models could facilitate self-managed methods of acquiring capital for the repair and ongoing maintenance costs associated with all listed places.  If such self-managed systems could be made to work, then private owners would become willing participants in a scheme designed to radically overhaul funding shortfalls. It is further suggested that the success of self-funded schemes could conceivably achieve the following positive externalities:

• Provision of consistency regulation and dependability upon such for owners and developers;• Provision of capital sinking funds for maintenance, repairs and upkeep;• Stimulation of investment in the heritage sector;• Creation of employment in the heritage sector;• Less dependence upon government for access to shrinking funding;• Promotion of heritage as a positive public good in society;• Increase in levels of technical proficiency and public awareness;• Generation of more incentives for associated local tourism and businesses;• Engagement by communities in more profound ways;• Increase in the curatorial governance practised by private owners;• Release of embargos placed on new listings. A self-funded system would respond appositely to the strains that neoliberal governance imposes upon the provisioning of public goods and services in society.

The key to such a transformation would be the shifting of the cost burden from individual private owners into a collective land trust management system not unlike the constitution of owner’s corporations as practised under Strata Title Law in NSW. The pooling of resources into a common sinking fund would allow the collective heritage stock in designated precincts to receive funding equitably as required and like strata titled properties, voting rights and decision making would be established upon democratic entitlements. 

By combining the notion of collectivising the needs and expectations of private owners possibly with a system of transferable development rights as practised in USA and partially in Australia, it is conceivable that the owners corporations could receive external investment to boost the coffers of the sinking fund, thereby increasing the sustainability of the entire listed stock. Such thinking suggests a gradual shift away from the current command and control approach which fails to deliver positive outcomes for CBH in NSW.

Neoliberal governance indicates that the lack of public goods provisioning by governments generally today is bound to continue as corporatisation and globalization systemically alters existing social and commercial forms of society.  In response to this change, smart regulation dictates that the equitable resourcing through new private-public mechanisms need to fill the vacuum formed by government withdrawal under traditional funding models.

Paul Rappoport – Heritage 21 – 8 September 2013