13 February 2004
Mr Ray Tonkin
Executive Director
Heritage Victoria
Level 22, Nauru House
80 Collins St.
MELBOURNE 3000
Dear Mr Tonkin
Thank you for the opportunity to comment at this early stage of the above strategy. A discussion paper at such a general conceptual level makes detailed engagement difficult. However, we would like to make the following general comments:
1. Diversifying the strategy to take account of new and more intangible aspects of heritage is notionally desirable and innovative. However, there is a danger that heritage objectives will become more diffuse and that core objectives of protecting historic fabric will be weakened. We consider that there are significant dangers in the statement [page 10] that ‘In a way, heritage has become a broader concept, less fixed to fabric, and more responsive to community values, and one that appears likely to continue to evolve in new directions.’ Our disquiet on this front stems from our perception of weaknesses in the current regime protecting historic fabric, as detailed below, and a fear that it may become further weakened if Heritage Victoria commits to a less tangible brief.
2. There is a perception in the community, which observation appears to support, that Heritage Victoria is significantly under-resourced to cope even with its present range of tasks. Enforcement is not pro-active and there appears to be little activity in the way of updating statements of significance or developing heritage policy (outside the present high level strategy). Before determining to strike out in new directions, careful review should be undertaken of weaknesses in the present system. Since a lack of resources is one of the key weaknesses, budgetary support for the defence and promotion of heritage should be a key strategic objective and budgetary context should guide the strategy.
3. Another key weakness is the present legislative regime. While it is conventional to regard protection of Heritage places under the Heritage Act as the strongest form of State protection of heritage values, in reality this is no longer the case. The Heritage Overlay (HO) control in municipal planning schemes provides that a development does not require a planning permit under the HO if a permit for that development has been issued by the Executive Director, Heritage Victoria. In practice, this means that a development affecting a place that is listed under an HO receives more scrutiny than a development for which a Heritage Victoria permit is required. There are various reasons for this:
(a) A permit application under a Planning Scheme is most often the subject of formal notification and objection rights, including third party rights of appeal to VCAT. The only formal right of appeal in the Heritage Act resides with the developer, against refusal or conditions. VCAT appeals entail a more significant interplay of information and opinion than informal ‘meetings of interested parties’, especially when at the latter Heritage Victoria is in the confused role of mediator/secondary decision-maker and first-instance decision-maker.
(b) A permit application under a Planning Scheme brings into play other aspects of the scheme, including the performance criteria of local heritage-protection policies and ‘amenity’ criteria in respect of impacts on neighbouring properties (through the ResCode clauses – Cl..54 and 55, which the Heritage Overlay control requires to be applied). The capacity to avoid key planning performance standards, as a result of a permit being obtained under the Heritage Act rather than through the planning system, is a loophole that requires closing.
(c) The decision-criteria for permits under the Heritage Act are significantly narrower (more ‘place’ than precinct-based) than under the HO. Assessment under the Heritage Act concentrates on the extent of registration of the HV registered building or place. Assessment under local planning schemes considers the alterations or development in a wider, often more comprehensive context, often providing for greater protection of the heritage building and surrounding area. Under the Heritage Act, Section 73(1A), the Executive Director only “may consider” the heritage significance of adjoining or neighbouring property subject to heritage requirement or control in relevant planning schemes, but does not have to consider matters which are mandatory under local (wider and usually more comprehensive) heritage controls.
There is a clear irony that such exemption is granted to the very heritage places which have been designated as of State significance. Even where a planning permit is required by other elements of a planning scheme, the divided jurisdiction (between Heritage Victoria, on the heritage permit) and the responsible authority (on other planning issues) can fragment decision-making and result in the decisions of one body being used to negate or over-ride the other.
In our view, it is critical that these anomalies are addressed, and that the regulatory system applying to heritage-listed places is at least as strong as – and preferably stronger than – that which applies to heritage properties considered to have lesser significance.
If requested, we can supply details of some cases highlighting these issues and would be pleased to help formulate some specific legislative measures to achieve these outcomes.
4. While we understand that, as a statutory body, Heritage Victoria must be seen to remain at arms’ length from community groups committed to protection of heritage, the current lack of regular communication and relationship with groups such as ourselves (and, we suggest, with local government) is a missed opportunity to view and understand State significant buildings in their local heritage context. The bulk of activity of residents’ associations such as the North and West Melbourne Association, Carlton Residents Association, Parkville Association and the East Melbourne Group consists of heritage promotion (local walks, newsletters) and local heritage protection. The associations contain significant local historical, architectural and in some cases legal expertise, and have an in-depth knowledge of their local areas. In an environment of stretched resources, regular communication (including direct notification of all permit applications significantly affecting external fabric) could elicit useful voluntary input and promote decision-making that is much better informed at the local level. We therefore strongly support ‘building a culture of sharing knowledge amongst heritage organisations and individuals’ [Page 19].
5. As part of resourcing effective decision-making, we would like to see the appointment of experts to act as specialist heritage advisors to Heritage Victoria, on condition that they are not consultants who regularly appear before VCAT and other bodies in defence of development proposals. There is currently an acute lop-sidedness in heritage advisory, with most heritage experts generating their major income from the development industry. A couple of well-funded, independent expert positions at Heritage Victoria might assist in redressing this and restoring balance to decision-making processes. (This, of course, would not preclude developers from continuing to engage their own heritage experts for the purposes of development advocacy).
6. We are sceptical of a ‘whole of government’ definition of heritage, given our practical experience of the attitude of government to heritage. In this respect we agree with the reported finding of the Mid-Term Review [quoted page 8] that ‘there is a limited sense of ownership of the Victorian Heritage Strategy in government generally’. A definition that is likely to prove acceptable on a ‘whole of government’ basis is likely to be so innocuous that heritage will slip, rather than gain, in recognition. In a situation of threat to heritage, a strongly articulated concept from a segment of government may be considerably more valuable than a half-hearted commitment from whole of government.
7. In this context, we concur with the views expressed [at page 22] that the recently adopted metropolitan strategy Melbourne 2030 constitutes a potential threat to heritage. Indeed, it is our view that the strategy represents the most significant general threat to heritage values in the inner city, with several of Melbourne’s key Victorian precincts being nominated as ‘activity centres’ for more intensive development under the strategy. We urge Heritage Victoria to spearhead ‘new solutions to overcome the perceived conflicts between urban planning priorities and heritage place protection’ [page 22]. Should Heritage Victoria so desire at a later stage, we would be pleased to provide copies of our submissions to DSE on Melbourne 2030 expressing our concerns in this regard.
8. With respect to heritage and sustainability, we highlight the potential conflicts in this area, which we have begun to encounter at local government level – e.g. between the sustainability objective of water conservation and the preservation of the European-heritage character of many major parks and gardens. We have advocated to the City of Melbourne that it undertake a review of heritage parks and gardens with a view to determining priorities for their preservation or transition to more sustainable planting. As European trees die (e.g. on some of the major boulevards), the issue of their replacement by others of the same character or planting of alternative species will arise. In the design of buildings, sustainability objectives are sometimes advanced to justify design outcomes that are at variance with heritage values. Thus while ‘developing a clearer and well-articulated understanding of how heritage contributes to sustainability will become increasingly important’ [page 8], this can be expected to create some significant tensions and the endeavour should not be embraced on the assumption that reconciliation of the two will invariably be easy.
9. We support the objective of ‘demonstrating that heritage is a core business across government’ (subject to the misgivings expressed in paragraph 6).
10. We support the draft vision statement from the National Cultural Heritage Forum [quoted page 6], viz:
Australia’s heritage, shaped by nature and history, is an inheritance passed from one generation to the next. It is a living record of places, objects, events, associations and memories which define and sustain our natural and cultural history. It is for us, the present generation, to nourish and nurture this inheritance for future generations.
11. We support the recognition on page 12 that:
More resources are applied to the protection of places of State significance and yet the vast majority of places that make up a locality’s heritage are of local significance. Increasing community focus on local character, identity and distinctiveness is another challenge to the current heritage protection system.’
Our comments at paragraphs 3 and 4 are relevant to this issue.
12. We support the objectives listed under ‘Effective local heritage studies’ at Page 14 and in particular the development of tools to guide the use of the results. In this context, we note that Statements of Significance for individual places are most often years out of date and reflect the assumptions of earlier phases of heritage protection – e.g. the earliest statements of architectural significance concentrate heavily on façade or frontal elements of structures and often favour the decorative and grandiose over typical, modest elements. The statements and studies need to be revised to recognise the community’s increasing interest in three-dimensional preservation, the significance of the more humble aspects of built form heritage, the social character of worker and warehouse precincts, and the significance of building backs, outhouses and laneways.
We note that the time of issue of the Discussion Paper (immediately pre-Christmas) has to some extent hampered the ability of community groups to respond to the paper and attend the February workshops. We are, however, vitally interested in the further development of heritage policy and look forward to further participation in the process.
The CoRA contact list is attached. Note that the Kensington Association is considering this submission and may write a supportive letter in the next few days. Please address correspondence to all of the signatories.