Heritage protection for our Planning legislation
Russell Degnan

The February edition of Planning News [1] was interesting because it included not one but two underwhelming articles on the Productivity Commission report on Heritage places. While both Marcus Spiller and Chris Gallagher were quick to point out that the report recommended that private properties not be put on the market without the owner's consent, neither bothered to explain why, even, in Gallagher's case, going so far as to distort the key findings in a way that ignores the most important one.

For what it is worth, that was as follows:

"Prescriptive regulation can lead to ineffective, inefficient and inequitable outcomes, particularly for less significant (marginal) places. Typically, the regulations restrict development and use, which can inappropriately and unnecessarily erode property rights and values. There is little, or no:

- restraint on the tendency to list all properties identified with heritage values, irrespective of degree of significance; and

consideration of the added conservation costs (of operation, maintenance and use restrictions)."

This is subtantially broader than merely saying that "statutory listing of individual places can create unfair burdens on owners". It points to fundamental flaws in the current process listing of properties that seriously question whether heritage is providing a net community benefit.

The rest of her article is no better, from somehow claiming that the PC view:

"Heritage controls are seen, on the other hand, as restrictions which have an impact on a property's potential uses and capital value, generating community-wide benefits at the expense of the owner"

is different to the Heritage Council view that:

"Heritage controls are part and parcel of the evolution of planning controls aimed at delivering community benefits and are now broadly accepted component of the operation of the property market in Victoria"

The only difference being a shocking acceptance of the status quo without reference to its flaws and side-effects.

What is far more relevant, is that unless we hold some expectation that the heritage rules will change in the future, heritage listing is theoretically forever. The fact that only 5% of owners complain about being listed is irrelevant over the long-term. Owners will generally be in favour of listing because they (like their neighbours) support the current streetscape staying the same. However, future residents and developers (which are really potential residents), will not necessarily hold the same view, be it two, forty, or four-hundred years hence. The fact that the current community supports strong heritage controls, or that most current owners don't request funding support, is equally irrelevant. At some point, the cost of heritage protection will fall on someone, in ownership of an under-developed property, and with very little scope for improvements (even moderate ones) that have been the norm in every city in the world until very, very recently.[2]

Marcus Spiller takes a different tack, equally conservative, but in a way that aims to protect planners from having to consider releasing the reins of power. He argues that Australia has no fundamental development rights, but rather, they are "granted by the community". While this is right in a strict legal sense, it is also a furphy. If Victoria truly had no "rights" then the system would be entirely in the domain of political fiat and public protest. The existence of planning schemes, decision guidelines and VCAT are proof that regardless of the planners belief in their own godliness they are subject to legal restrictions, and development rights exist, if not in fact, at least as a reasonable expectation.

What the PC is saying is quite clear. The absence of proper development rights is raising the costs of development through inefficient bureaucratic planning legislation, and ill-defined community consultation processes. That this applies to areas of planning other than heritage is a given, but it is worth starting somewhere. Heritage, being related to matters of aestheticism and the preferences of neighbouring properties for historic styles, is one of the most arbitrary aspects of the planning scheme, and by corollary, one of the most in need of reform.

Which is not to say I agree with the productivity commission completely, but it is worth making these points:
1) Heritage imposes a cost on property owners for the benefit of surrounding residents and the broader community. There are dozens of potential ways to defray those costs using market mechanisms, some of which do involve negotiation with the owner. A further exploration of that can wait till another day.
2) Contrary to what the lunatic fringe of various heritage groups might think, the broader community doesn't want toy-town suburbs of old heritage housing, so much as an improvement in the built form. It is easy to forget that in the 19th century a lot of poor buildings were built because they no longer exist. As I have argued elsewhere, the best type of heritage is not strict listing, but a net-improvement requirement in historic and architectural quality. This would be very subjective, but is certainly no more subjective than current heritage provisions.

[1] Not online of course, who'd join the PIA if it was?
[2] A note too, on the call for "Commonwealth funding of large scale heritage precincts". No kidding, this is a disgrace. Shutting the gates on their own neighbourhood to development (thereby raising housing costs) is one thing, but to actually ask the rest of the country to pay for it...

Sterner Matters 17th March, 2006 23:06:09   [#] 


I am thinking of joining the PIA. I am interested to hear of your (Russell's as well as others) experience of the organisation...
Geoff  20th March, 2006 16:26:59  

Heritage protection for our Planning legislation
Geoff, I am not a member. I get the news from university, so I can't really comment on their value. I was hoping Aaron would, as he is.

The PIA do do functions for young members and they seem worthwhile. The professional development stuff is around, but fairly limited from what I can tell. In my opinion, they are also increasingly devoted to validating themselves as a profession, which I am not sure I agree with. Almost all professions do this though, so take that how you will.
Russ  27th March, 2006 15:52:13