Heritage Act 1995
Location: Victoria

1 Introduction

The RHSV welcomes the government’s review of the Heritage Act. The RHSV accepts and supports the proposals presented in the Review Paper, with two exceptions:

1.1 the proposal “to make the Executive Director a determining referral authority under the Planning and Environment Act 1987 for subdivision applications for places on the Register” (Re- view of the Heritage Act 1995 Discussion Paper [hereinafter Review Paper], p. 7). We discuss this under Section 2, Powers of Executive Director and of Council.

1.2 the proposal to “ensure the Victorian Civil and Administrative Tribunal (VCAT) has appropriate expertise to consider referred matters” (Review Paper, p. 9). We support the objective of ensuring that VCAT has appropriate heritage expertise, but we do not believe that, even with the improvements suggested, VCAT is the appropriate body to consider such matters. We discuss this below under Section 7, Minister’s Power to Call in Applications.

The RHSV in this submission also addresses a number of issues not discussed in the Review Paper.

2 Powers of Executive Director and of Council

The Act gives sweeping and unchecked power to the Executive Director in relation not only “to recommend to the Heritage Council the registration of any place or object or the removal of places and objects from the Heritage Register or the amendment of the Heritage Register” (s. 15 b) but also “to determine applications for permits and consents under this Act” (s. 15 c). In effect, this makes a politically appointed bureaucrat the ultimate authority determining which applications come before Council and, most importantly, the determining authority for permits to alter or even demolish buildings or objects on the Register. And, while the Act specifies the qualifications of members of Council (s. 7 2 a), it specifies nothing about the Executive Director’s qualifications.

The RHSV submits that s. 14 and 15 of the Act should be revised to specify:

* that the Executive Director be chosen by the Minister from nominations made by the Council;

* that s. 15c (“to determine applications for permits and consents under this Act”) be deleted; The RHSV submits that the relevant sections should be amended to provide:

* that all decisions regarding listings and permits be made by Council or by the Executive Director and the President of the Council under delegation from Council;

* that all applications for listings and for permits be given a preliminary determination jointly by the Executive Director and the President of the Council: * that in the case of disagreement between the Executive Director and the President of the Council, the matter be determined by the Council;

* in the case of refusal by the Executive Director and the President, Council have the right to call in any application for determination.

3 Ensure Consideration of Interim Protection Orders

S. 56 allows the Heritage Council or the Executive Director to make an interim protection order at their discretion. This does not, however, offer protection to buildings that may in the future be nom- inated for listing and it does not provide for an ipo to be initiated except on the initiative of the Council.

The RHSV believes that protection should be afforded as early as possible and therefore submits that s. 56 should be revised to specify:

* that concerned members of the public may apply for an ipo to be subject to a preliminary consideration by the Executive Director, whether or not a building or site is currently on the Regis- ter or under consideration. The Executive Director must then rule on whether a prima facie case for consideration exists and, if so, apply an ipo until the building or site is considered for inclusion on the Register;

* that any building nominated for consideration for inclusion in the Register be automatically put under an ipo until consideration is completed.

4 Ensure Owner’s Responsibility for Protection

S. 36 provides for owner’s responsibilities without placing the onus on the owner to take all reasonable measures to protect listed buildings or sites from deterioration through lack of maintenance, squatting or vandalism, fire, etc.

The RHSV submits that such provision should be made for buildings on the Register and under ipos.

5 “Remove ‘undue financial hardship’ considerations in permit determinations” (Review Paper, p. 7).

The RHSV strongly supports removing this provision from s. 73 of the Act.

The RHSV notes, however, that “the provision for consideration of ‘reasonable or economic use’ will be retained” (Review Paper, p. 8). While the RHSV accepts giving consideration to ‘reasonable or economic use’ (s. 73, 1 a), we submit that proposals for use or estimates of economic viability formulated at one particular time should not outweigh “the extent to which the application, if ap- proved, would affect the cultural heritage significance of the registered place or registered object” (s. 73, 1 a & b) over the long-term. A current economic use may change; an analysis at one time for one owner and for one use of a building may prove inadequate. Yet on the basis of one such often limited analysis, a building may be significantly altered or demolished and then is gone forever.

The RHSV therefore submits that s. 73 of the Act should be revised to specify:

* that the effects upon long-term cultural heritage of Victoria of the agreement or refusal to grant a permit be given overriding consideration.

6 State Responsibilities for Local Heritage

The Review Paper appears to accept that “The Act does not manage heritage places of local signifi- cance which are protected by Heritage Overlays included as part of local council planning schemes” (Review Paper, p. 3). In fact, s. 8 g currently provides for the Council “to advise government de- partments and agencies and municipal councils on matters relating to the protection and conserva- tion of places and objects of cultural heritage significance.” This function should be extended.

Local heritage protection through overlays of buildings or precincts is too important to be left to local Councils. Local Councils are under-resourced to deal with such matters. Few Councils have officers with heritage expertise; those that do generally only employ them on a limited part-time basis. Thus heritage issues are generally left to planning officers. With the government’s proposed rate freeze, this area is unlikely to gain additional resources.

More importantly, local heritage overlays tend to be considered alongside planning issues and Council planning officers are often focussed on these planning issues to the detriment of heritage considerations. Moreover, even when Councils do refuse permits on grounds which include heritage, they are often challenged by developers and taken to VCAT, where heritage issues get short shrift. As the Review Paper implies (in its suggestion “to require the tribunal [in certain circumstances] to consist of a member or members with an in-depth and up-to-date knowledge of heritage legislation and practice”—Review Paper, p. 9), VCAT does not have the expertise and is unlikely to gain it to the extent required to deal appropriately with heritage issues. These issues are often raised in the context of a planning dispute in which the heritage aspect is often submerged in planning considerations. The legalistic, case by case approach enshrined in the legislation creating VCAT works against heritage considerations.

The RHSV therefore submits that

* Local Heritage Overlays should be subject to state overview and responsibility.

* When considering planning issues involving Local Heritage Overlays, local Councils and,a fortiori, VCAT, be required to seek advice from the Heritage Council and take into consideration the long-term cultural impact of the proposal.

7 Minister’s Power to Call in Applications or Refer Applications to VCAT

The Review Paper seeks to “Provide for consistent decision-making on review” and proposes to “require all review bodies to consider the matters set down in s.73 of the Act (“Matters to be considered in determining applications”) when reviewing a permit decision. The RHSV welcomes this as a positive step.

The RHSV, however, notes that the Minister’s power to call in a decision under ss. 43 and 78 is without any checks or balances. The whole point of the Heritage Act is to ensure that our cultural heritage is preserved for the future precisely in the case that current fashions or economic pressures may lead to alteration or demolition. Victorian history tells many stories of demolitions now regretted and of fashions which have proved transient, such as the removal of verandas. The current provision for a call-in subjects the Minister to the economic pressures of developers or others. The Minister should be protected from these pressures.

S. 78 (1) (b) of the Act provides that, “if in the Minister’s opinion the determination of the appeal may have a significant effect on the achievement or development of planning and heritage objec- tives, [the Minister has the power] to refer the appeal to the Tribunal for review of the determination the subject of the appeal.”

As suggested in section 4, above, VCAT does not have and is unlikely ever to have the expertise required to deal with planning issues. This power is simply a means of circumventing Council and transforming heritage issues into planning issues, with considerable potential for loss of heritage.

The RHSV therefore submits that s. 43 (1) and s. 78 (1) (b) of the Act be revised as follows:

* s. 43 (1): At any time after notice of a recommendation is published under section 35 and before the decision of the Heritage Council on the recommendation under Division 3, the Minister may make a submission to the Heritage Council requiring that, in considering the matter, it take into account any particular points the Minister shall determine and submit to the Council.

* s. 78 (1) (b): During a fortnight from the date Council makes its decision, the Minister may, at her or his discretion, refer the decision to the Tribunal if, in the Minister’s opinion, the Council has failed to take adequate account of the Minister’s submission. If VCAT determine that the Council has so failed, the matter will be referred back to Council with a requirement to take adequate account of the submission as per any VCAT directions.

8 Role of the National Trust

The Review Paper notes that the “Act currently requires the Heritage Council to conduct a hearing into a permit appeal if a hearing is requested by the National Trust. However, the National Trust has no ability to lodge an appeal. It is proposed to provide for the National Trust to be heard in any per- mit appeal activated by the owner or applicant where the National Trust lodged a submission during advertising of the permit application.” (Review Paper, p. 8). The RHSV strongly supports this recommendation.

The RHSV notes, however, the National Trust’s excellent work in considering preservation issues and registering significant buildings gives it great expertise unlikely to be matched by the Ministry without a great increase in funding. We therefore recommend that s. 7 (2) of the act be revised:

* with the addition of a new clause under sub-section (2) providing that, of the persons ap- pointed to the Heritage Council, one be a representative of the National Trust.

Submission drafted by Emeritus Professor Charles Sowerwine, FAHA;
Approved by the Council of the Royal Historical Society of Victoria,
Tuesday 25 August 2015.